Wood

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

ANDREW WOOD, )

)

Plaintiff, )

v. ) Civil Action No. 5:25-00735

)

WARDEN MESSENGER, )

)

Defendant. )

PROPOSED FINDINGS AND RECOMMENDATION

On December 15, 2025 Plaintiff, acting pro se, filed a “Verified Complaint” for alleged

violations of his constitutional and civil rights pursuant to Bivens v. Six Unknown Federal

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971).1

(Document No. 2.) Plaintiff names Warden Messenger as the sole Defendant. (Id.) Plaintiff

alleges that Defendant has violated his due process and equal protection rights under the Fifth

Amendment and subjected him to cruel and unusual punishment in violation of the Eighth

Amendment. (Id.) Plaintiff alleges that he has been diagnosed as being “poly-substance abuse

dependent.” (Id.) Since Plaintiff is “poly-substance abuse dependent,” Plaintiff states that he “has

been screened and approved by the BOP’s Psychology Services and Health Services Department

to be placed on the Medication Assisted Treatment (“MAT”) Program.” (Id.) Plaintiff explains

that “[p]atients on the MAT Program are prescribed to receive daily doses of the opioid-blocker

medication Suboxone.” (Id.) Plaintiff, however, contends that “Defendant refuses to allow

Plaintiff to be given the Suboxone because Plaintiff has too much time remaining to serve on his

1 Because Plaintiff is acting pro se, the documents which he has filed in this case are held to a less stringent standard

than if they were prepared by a lawyer and therefore, they are construed liberally. See Haines v. Kerner, 404 U.S.

519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

sentence.” (Id.) Plaintiff, however, claims that “[o]ther FCI Beckley inmates who have more

time to serve than Plaintiff and/or who have less of a clinically-indicated need for MAT are

currently being given Suboxone.” (Id.) Plaintiff states that “Defendant’s refusal to allow the

Plaintiff to receive Suboxone has caused, and continues to cause, Plaintiff needlessly to suffer

excessively and emotional distress and anguish.” (Id.) Plaintiff requests monetary and injunctive

relief. (Id.)

STANDARD

Pursuant to 28 U.S.C. § 1915A, the Court is required to screen each case in which a

prisoner seeks redress from a governmental entity or officer or employee of a governmental

entity. On screening, the Court must recommend dismissal of the case if the complaint is

frivolous, malicious or fails to state a claim upon which relief can be granted. A “frivolous”

complaint is one which is based upon an indisputably meritless legal theory. Denton v.

Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A “frivolous” claim lacks “an

arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827,

1831 - 32, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is “based on

an indisputably meritless legal theory.” Id., 490 U.S. at 327, 109 S.Ct. at 1833. A claim lacks an

arguable basis in fact when it describes “fantastic or delusional scenarios.” Id., 490 U.S. at 327 -

328, 109 S.Ct. at 1833. A complaint therefore fails to state a claim upon which relief can be

granted factually when it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief. With these standards in mind, the Court

will assess Plaintiff’s allegations in view of applicable law.

This Court is required to liberally construe pro se documents, holding them to a less

stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.

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285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal

construction, however, “does not require courts to construct arguments or theories for a pro se

plaintiff because this would place a court in the improper role of an advocate seeking out the

strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL

2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)).

Further, liberal construction does not require the “courts to conjure up questions never squarely

presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other

words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411

(7th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can

ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable

in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)).

Where a pro se Complaint can be remedied by an amendment, however, the District Court may

not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez,

504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); also see Goode v. Central Va.

Legal Aide Society, Inc., 807 F.3d 619 (4th Cir. 2015).

DISCUSSION

A Bivens action is a judicially created damages remedy which is designed to vindicate

violations of constitutional rights by federal actors. See Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 388, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971);

See also Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)(extending Bivens

to Eighth Amendment claims); Davis v. Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264, 2274

n. 18, 60 L.Ed.2d 846 (1979)(extending Bivens to allow citizen’s recovery of damages resulting

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from a federal agent’s violation of the Due Process Clause of the Fifth Amendment.) A Bivens

action is the federal counterpart of an action under 42 U.S.C. § 1983. An action for money

damages may be brought against federal agents acting under the color of their authority for

injuries caused by their unconstitutional conduct. Proof of causation between the official’s

conduct and the alleged injury is necessary for there to be liability. A plaintiff asserting a claim

under Bivens must show the violation of a valid constitutional right by a person acting under

color of federal law. However, Bivens claims are not actionable against the United States, federal

agencies, or public officials acting in their official capacities. See FDIC v. Meyer, 510 U.S. 471,

475, 484-86, 114 S.Ct. 996, 127 L.Ed. 2d 308 (1994); Berger v. Pierce, 933 F.2d 393, 397 (6th

Cir. 1991); Reingold v. Evers, 187 F.3d 348, 355 n. 7 (4th Cir. 1999).

1. Equal Protection and Due Process Claim:

As stated above, a Bivens action is a judicially created damages remedy which is

designed to vindicate violations of constitutional rights by federal actors. See Bivens, 403 U.S. at

395 -97, 91 S.Ct. at 1999. Bivens core premise is to deter individual officers’ unconstitutional

acts. Correctional Services Corp v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456

(2001)(declining to extend Bivens to confer a right of action for damages against private entities

acting under the color of federal law). In Bivens, the Supreme Court first recognized that a

victim of a Fourth Amendment violation by federal officers may bring suit for money damages

against the officers in federal court. Bivens, 403 U.S. at 396, 91 S.Ct. 1999; Hernandez v. Mesa,

589 U.S. 93, 140 S.Ct. 735, 741, 206 L.Ed.2d 29 (2020)(In Bivens, “the Court broke new ground

by holding that a person claiming to be the victim of an unlawful arrest and search could bring a

Fourth Amendment claim for damages against the responsible agents.”) In the years following

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the decision in Bivens, the Supreme Court recognized an implied damages remedy under the Due

Process Clause of the Fifth Amendment for a claim of sex discrimination, Davis v. Passman, 442

U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the Cruel and Unusual Punishments Clause

of the Eighth Amendment for a prisoner’s claim of inadequate medical care, Carlson v. Green,

446 U.S. 14, 100, S.Ct. 1468, 64 L.Ed.2d 15 (1980). Since Carlson, the Supreme Court has

consistently refused to extend Bivens liability to any new context or new category of defendants.

See Goldey v. Fields, 606 U.S. 942, 944-45, 145 S.Ct. 2613, 2615, ___ L.Ed.2d ___

(2025)(noting that the Supreme Court “[f]or the past 45 years, has consistently declined to

extend Bivens to new contexts and declining to extend Bivens to plaintiff’s Eighth Amendment

claim of excessive force); Egbert v. Boule, 596 U.S. 482, 486, 142 S.Ct. 1793, 1799-80, 213

L.Ed.2d 54 (2022)(noting that the Supreme Court has declined 11 different time to imply similar

causes of actions in the years since Bivens was decided); FDIC v. Meyer, 510 U.S. at 484-86,

114 S.Ct. 996(declined to extend Bivens to permit suit against a federal agency); also see Bulger

v. Hurwitz, 62 F.4th 127, 138 (4th Cir. March 3, 2023)(rejecting request to extend Bivens to a

prisoner’s Eighth Amendment failure to protect and intervene claims against BOP officials);

Dyer v. Smith, 56 F.4th 271, 275 (4th Cir. 2022)(declining request to extend Bivens to claims

against Transportation and Security Administration officers for violations of the First and Fourth

Amendments); Tate v. Harmon, 54 F.4th 839, 841-42 (4th Cir. 2022)(rejecting request to extend

Bivens to conditions of confinement claim under the Eighth Amendment); Annappareddy v.

Pascale, 996 F.3d 120, 126 (4th Cir. 2021)(declining to extend Bivens to claims against federal

prosecutors and investigators for violations of the Fourth and Fifth Amendments); Earle v.

Shreves, 990 F.3d 774, 776 (4th Cir. 2021)(rejecting request to extend Bivens to claims of

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unlawful retaliation by prison officials for filing grievances in violation of the First

Amendment); Tun-Cos v. Perrotte, 922 F.3d 514, 517-18 (4th Cir. 2019)(declining to extend

Bivens to claims of unlawful searches and seizures by Immigration and Customs Enforcement

agents in violation of the Fourth and Fifth Amendments); Holly v. Scott, 434 F.3d 287, 290 (4th

Cir. 2006)(declining to extend Bivens to an Eighth Amendment claim against employees of a

privately operated prison); Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012)(declining to extend

Bivens in a military context). In 2017, the Supreme Court made clear the very limited scope of

Bivens actions and that “expanding the Bivens remedy is now a disfavored judicial activity.”

Ziglar v. Abbasi, 582 U.S. 120, 134, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). If the

asserted Bivens claim is not one of the three Bivens-type actions previously recognized by the

Supreme Court, closer scrutiny is required. Id. More recently, the Supreme Court in Egbert noted

“[n]ow long past the heady days in which this Court assumed common-law powers to create

causes of action [such as Bivens], we have come to appreciate more fully the tension between

this practice and the Constitution’s separation of legislative and judicial power.” Egbert, 596

U.S. at 490, 142 S.Ct. at 1802(internal citations omitted). The Supreme Court stated that “[i]n

both statutory and constitutional cases, our watchword is caution.” Hernandez, 589 U.S. at 100,

140 S.Ct. at 742; Tate, 54 F.4th at 844(stating that the Supreme Court’s “recent admonitions are

clear: ‘[T]he Judiciary’s authority to [create a cause of action under the Constitution] is, at best,

uncertain,’ . . . ; courts must beware of ‘arrogating legislative power’. . .; and ‘our watchword is

caution,’. . .”)(internal citations omitted). The Supreme Court explained that “a federal court’s

authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, . .

. and no statute expressly creates a Bivens remedy.” Hernandez, 589 U.S. at 100, 140 S.Ct. at

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742; also see Egbert, 596 U.S. at 502, 142 S.Ct. at 1809(“[M]ore recently, we have indicated that

if we were called to decide Bivens today, we would decline to discover any implied causes of

action in the Constitution.”)

Although the Supreme Court called into doubt the validity of the “implied rights” in

Bivens, the Supreme Court did not overturn Bivens. Id. The Supreme Court, however,

“impose[d] a highly restrictive analysis for Bivens cases by (1) narrowing the precedential scope

of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied,

require courts to reject any expansion of Bivens remedies.” Tate, 54 F.4th at 844. The Supreme

Court explained that when asked to extend Bivens, a Court should engage in a two-step inquiry.

Hernandez, 489 U.S. at 101, 140 S.Ct. at 743. First, the Court should inquire “whether the

request involves a claim that arises in a ‘new context’ or involves a ‘new category of

defendants.’” Id.(citation omitted). The Supreme Court clarified that its “understanding of a ‘new

context’ is broad,” thereby requiring the scope of the exiting Bivens causes of action to be

narrowly construed. Id. Second, if a claim is found to arise in a new context, the Court should

inquire “whether there are any ‘specific factors [that] counsel hesitation’ about granting the

extension.” Id.(quoting Abbasi, 582 U.S. at 135, 137 S.Ct. at 1857); also see Greenpoint Tactical

Income Fund LLC v. Pettigrew, 38 F.4th 555, 561 (7th Cir. 2022)(The two-part test used

post-Abbasi to evaluate claims under Bivens remains the same after Egbert); Feao v. Ponce, 2023

WL 3213553 (C.D.Cal. March 3, 2023)(Although Egbert indicates that existence of “special

factors” can itself create a new context, the court rejected defendants’ argument that Egbert had

the effect of collapsing the inquiry altogether and dispensing with the “next context” inquiry).

In Abbasi, the Supreme Court set out a framework for determining whether a claim

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presents a “new Bivens context.” Abbasi, 582 U.S. at 140, 137 S.Ct. at 1860. As stated above,

the Supreme Court has recognized a Bivens remedy in only three cases: (1) A Fourth

Amendment claim against agents of the Federal Bureau of Narcotics for violating the prohibition

against unlawful searches and seizures when they handcuffed a man in his home without a

warrant; (2) A Fifth Amendment general discrimination claim against a Congressman for firing

his female administrative assistant; and (3) An Eighth Amendment claim brought by an inmate’s

estate against prison officials for failure to provide adequate medical care for his asthma. Id. at

1854-55(citations omitted). The Abbasi Court explained that “[i]f the case is different in a

meaningful way from previous Bivens cases decided by this Court, then the context is new.” Id.

at 1859. Although the Abbasi Court did not provide “an exhaustive list of differences that are

meaningful enough to make a given context a new one,” the Court did provide the following

“instructive” examples:

A case might differ in a meaningful way because of the rank of the officers

involved; the constitutional right at issue; the generality or specificity of the

official action; the extent of judicial guidance as to how an officer should respond

to the problem or emergency to be confronted; the statutory or other legal

mandate under which the officer was operating; the risk of disruptive intrusion by

the Judiciary into the functioning of other branches; or the presence of potential

special factors that previous Bivens cases did not consider.

Id. at 1859-60. In Tate, the Fourth Circuit recognized that a single fact distinguishing a case from

Bivens, Davis, and Carlson, potentially can create a “new context.” Tate, 54 F.4th at 846.

Liberally construing Plaintiff’s Complaint, Plaintiff alleges that Defendant violated his

right to due process and equal protection under the Fifth Amendment. (Document No. 2.) The

undersigned first considers whether Plaintiff’s above claims under the Fifth Amendment

constitute an improper extension of Bivens. As to the Fifth Amendment, the undersigned

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acknowledges that Davis involved the Fifth Amendment. Davis, however, involved a claim of

sex discrimination involving the equal protection component of the Fifth Amendment Due

Process Clause against a Congressman for unlawful employment termination. Davis, 442 U.S. at

248-49, 99 S.Ct. 2264(Plaintiff was a congressional employee who was permitted to sue a

Congressman for unlawful employment termination in violation of the Fifth Amendment’s Due

Process Clause.) Based upon a review of the Fourth Circuit’s decision in Mays v. Smith, the

undersigned finds that Plaintiff’s due process and equal protection claims under the Fifth

Amendment arise in a new context. In Mays, the Fourth Circuit explained “[t]he only Fifth

Amendment-based Bivens claim that the Supreme Court has recognized was the one in Davis,

which concerned alleged sex discrimination on Capitol Hill.” Mays v. Smith, 70 F.4th 198, 203

(4th Cir. 2023)(internal quotation marks omitted). The Fourth Circuit further recognized that the

Supreme Court has never authorized a Bivens claim for due process violations. Id.; also see

Tun-Cos, 922 F.3d at 517-18(declining to extend Bivens to claims of unlawful searches and

seizures by Immigration and Customs Enforcement agents in violation of the Fourth and Fifth

Amendments); Annappareddy, 996 F.3d at 134(declining to extend Bivens to Fifth Amendment

due process claims); Nasiruddin v. Pliler, 2024 WL 2262664, * 10 (S.D.N.Y. May 17,

2024)(noting that “courts in other circuits have held that Fifth Amendment claims concerning

property damage or destruction are ‘meaningfully different from the Bivens trilogy and clearly

present new Bivens contexts’”)(collecting cases); Barrett v. Ciolli, 2023 WL 3571951, * 6

(E.D.Cal. May 19, 2023)(“Plaintiff’s Fifth Amendment claim for deprivation of property alleges

that prison officials confiscated Plaintiff’s personal property without providing due process”

presents a new Bivens context); Murphy v. Inmate Systems Management, Inc., 2008 WL

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793631, * 9 (S.D.W.Va. March 20, 2008)(The Supreme Court has never recognized a Bivens

remedy for a Fifth Amendment Due Process violation for the withholding of inmate property, so

long as there is an adequate post-deprivation remedy.”); Hildago v. Federal Bureau of Prisons,

2014 WL 37050, * 4 (S.D.W.Va. Jan. 6, 2014)(finding that due process was not implicated

respecting an inmate’s claim of intentional deprivation of property where the inmate had

meaningful post-deprivation remedies); Louis-El v. Ebbert, 448 F.Supp.3d 428, 439 (M.D.Penn.

March 24, 2020)(“[T]he Supreme Court has never recognized a Bivens remedy for a Fifth

Amendment Due Process violation for the withholding of prisoner property.”); Tate v. Harmon,

2020 WL 7212578, * 5 (W.D.Va. Dec. 7, 2020)(finding prisoner’s Fifth Amendment violation of

due process claim regarding the deprivation of property was a new context). Similar to Mays,

Plaintiff’s Fifth Amendment claims “are brough against a ‘new category of defendants’ – prison

officials, as opposed to a former Congressman in Davis – operating in a different legal and

factual context (prison ligation).” Mays, 70 F.4th at 203(quoting Tate, 54 F.4th at 846). The mere

fact that Davis involved the same constitutional provision is “insufficiently granular for the

new-context inquiry.”) Id. at 202(“[C]itation to the constitutional provision alone is insufficiently

granular for the new-context inquiry.”) Additionally, the Supreme Court has made it clear that

“[a] claim may arise in a new context even if it is based on the same constitutional provision as a

claim in a case in which a damages remedy was previously recognized.” Hernandez, 489 U.S. at

101, 140 S.Ct. at 743. Based upon the foregoing, the undersigned finds that Plaintiff’s due

process and equal protection claims under the Fifth Amendment clearly present a new context.

Next, the Court must determine whether Bivens should be extended to the above new

context. First, the Court should consider “whether any alternative, existing process for protecting

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the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a

new freestanding remedy in damages.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588. “[T]he existence

of alternative remedies usually precludes a court from authorizing a Bivens action.” Abbasi, 582

U.S. at 148, 137 S.Ct. at 1865(“[I]f there is an alternative remedial structure present in a certain

case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.”);

Malesko, 534 U.S. at 69, 122 S.Ct. at 515(“So long as the plaintiff had an avenue for some

redress,” a court may decline to provide a new Bivens remedy). Alternative remedies can include

administrative, statutory, equitable, and state law remedies. The undersigned first finds that

Plaintiff had alternative remedies available to him through the BOP administrative remedy

program.2 The BOP administrative remedy program allows inmates to seek formal review of

issues relating to any aspect of his or her confinement. Second, Congress through the Inspector

General Act of 1978 authorized the Department’s Inspector General to investigate allegations of

criminal wrongdoing or administrative misconduct by Department of Justice employees. See 5

U.S.C. App. 3 § 8E(d); also see Egbert, 596 U.S. at 498, 142 S.Ct. at 1807(finding that if

“Congress or the Executive has created a remedial process that it finds sufficient to secure an

adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a

Bivens remedy”); Abbasi, 582 U.S. at 144, 137 S.Ct. at 1862. Finally, Plaintiff had other

alternative remedies such as the following: (1) Seeking injunctive relief pursuant to 18 U.S.C. §

3626(a)(2) for any ongoing constitutional violations; (2) Filing a claim pursuant to 31 U.S.C. §

3723, which allows claims up to $1,000 to be presented to the agency for redress of damages

caused by a federal officer’s negligence; and (3) Filing a claim pursuant to the Federal Tort

2 In Goldey, the Supreme Court rejected the Fourth Circuits finding that there were no special factors counseling

against providing a judicial remedy where there were allegations that rogue officers thwarted the inmate’s access to

alternative remedies, such as the administrative remedy program.

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Claims Act, which authorizes claims for damages against the United States for certain intentional

torts committed by federal officers.3 See Millbrook v. United States, 569 U.S. 50, 54 – 57, 133

S.Ct. 1441, 185 L.Ed2d 531 (2013); Minneci v. Pollard, 565 U.S. 118, 127-30, 132 S.Ct. 617,

181 L.Ed.2d. 606 (2012); Borowski v. Baird, 2018 WL 6583976, * 2 (S.D.Ill. Dec. 14, 2018),

aff’d, 772 Fed.Appx. 338 (7th Cir. 2019); White v. Sloop, 2018 WL 6977336, * 3 (S.D.Ill. Aug.

31, 2018); also see Chilicky, 487 U.S. at 425-27, 108 S.Ct. 2460(As long as the plaintiff had an

avenue for some redress, the bedrock principles of separation of powers foreclosed judicial

imposition of a new substantive liability); Malesko, 534 U.S. at 74, 122 S.Ct. at 523(stating that

“unlike the Bivens remedy, which we have never considered a proper vehicle for altering an

entity’s policy, injunctive relief has long been recognized as the proper means’ for preventing

entities from acting unconstitutionally”); Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed.

939 (1946)(recognizing the “jurisdiction of federal courts to issue injunctions to protect rights

safeguarded by the Constitution”). Thus, the undersigned finds that Plaintiff had alternative

3 An inmate “can sue under the FTCA to recover damages from the United States Government for personal injuries

sustained during confinement in a federal prison, by reason of the negligence of a government employee.” United

States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). The FTCA, however, does not create a new

cause of action. Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). The statute merely waives sovereign

immunity and “permits the United States to be held liable in tort in the same respect as a private person would be

liable under the law of the place where the act occurred.” Id. Thus, the FTCA is a limited waiver of sovereign

immunity. This waiver is subject to the condition that an administrative claim must first be submitted to the

appropriate agency and denied before suit can be filed. See 28 U.S.C. § 2675(a); also see Bellomy v. United States,

888 F. Supp. 760 (S.D.W.Va. 1995). As a general matter, filing a timely administrative claim is jurisdictional and

cannot be waived. Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994)(citing Henderson v. United States, 785

F.2d 121, 123 (4th Cir. 1986); Muth v. United States, 1 F.3d 246 (4th Cir. 1993); Gibbs v. United States, 34

F.Supp.2d 405 (S.D.W.Va. 1999). Thus, before an inmate can bring a claim under the FTCA, the inmate must

exhaust procedures specified at 28 C.F.R. §§ 14.1 to 14.11 and 543.30 to 543.32. Additionally, the Court cannot

hold the case in abeyance while a plaintiff presents an administrative tort claim with the appropriate agency. See

Plyer v. United States, 900 F.2d 41, 42 (4th Cir. 1990)(“Since the district court has no jurisdiction at the time the

action was filed, it could not obtain jurisdiction by simply not acting on the Motion to Dismiss until the period had

expired.”). The Fourth Circuit has also recognized that “[a]n administrative claim must be properly presented.”

Kokotis v. United States Postal Service, 223 F.3d 275, 278 (4th Cir. 2000). In the above action, there is no allegation

or indication that Plaintiff satisfied the requirement of presenting an administrative claim for a sum certain to the

proper agency.

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remedies available to address his allegations of due process and equal protection claims under

the Fifth Amendment.

Irrespective of whether an alternative remedy exists, a Bivens remedy should not be

extended where “there are ‘special factors counselling hesitation in the absence of affirmative

action by Congress.’” Abbasi, 582 U.S. at 136, 137 S.Ct. at 1857(quoting Carlson, 446 U.S at 18,

100 S.Ct. 1468); also see Goldey, 606 U.S. at 944, 145 S.Ct. at 2615(finding “special factors

counsel against recognizing an implied Bivens cause of action for Eighth Amendment

excessive-force violations.”). Although the Supreme Court has not defined what constitutes

“special factors counselling hesitation,” the Court has observed that “[t]he necessary inference . .

. is that the inquiry must concentrate on whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the costs and benefits of allowing a

damages action to proceed.” Id. at 1857-58. Put simply, “a factor must cause a court to hesitate

before answering that question in the affirmative.” Id. at 1858. Similar to Egbert and Tate, the

undersigned finds there is certainly at least one “rational reason” why Congress would be better

equipped that the courts to determine whether to allow such claims. First, “legislative action

suggesting that Congress does not want a damages remedy is itself a factor counseling

hesitation.” Abbasi, 582 U.S. at 148, 137 S.Ct. at 1865; also see Egbert, 596 U.S. at 493-94, 142

S.Ct. at 1804 (The political branches are indeed better equipped to decide whether existing

remedies should be augmented by the creation of a new judicial remedy.). The Abassi Court

explained that since Congress did not provide for a standalone damages remedy against federal

jailers when it passed the Prison Litigation Reform Act [“PLRA”], “[i]t could be argued that this

suggests Congress chose not to extend the Carlson damages remedy to cases involving other

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types of prisoner mistreatment.” Id. The Supreme Court explained as follows:

Some 15 years after Carlson was decided, Congress passed the [PLRA] of 1995,

which made comprehensive changes to the way prisoner abuse claims must be

brought in federal court. See 42 U.S.C. § 1997e. So it seems clear that Congress

had specific occasion to consider the matter of prisoner abuse and to consider the

proper way to remedy those wrongs.

Id. The PLRA’s exhaustion requirement clearly applies to Bivens actions. Porter v. Nussle, 534

U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Supreme Court has further recognized

that in enacting the PLRA, Congress intended to “reduce the quantity and improve the quality of

prisoner suits.” Jones v. Bock, 549 U.S. 199, 203-04, 127 S.Ct. 910, 1666 L.Ed.2d 798

(2007)(citing Porter v. Nussle, 534 U.S. at 524, 122 S.Ct. at 983). Additionally, the Supreme

Court has stated that “courts are ill equipped to deal with the increasingly urgent problems of

prison administration and reform.” Turner v. Safely, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96

L.Ed.2d 64 (1987)(citation omitted); also see Earle, 990 F.3d at 781(“[T]he recognition of a

Bivens remedy in this case would work a significant intrusion into the area of prison

management that demands quick response and flexibility, and it could expose prison officials to

an influx of manufactured claims.”) The Supreme Court explained that “[r]unning a prison is an

inordinately difficult undertaking that requires expertise, planning, and the commitment of

resources, all of which are peculiarly within the province of the legislative and executive

branches of government.” Turner, 482 U.S. at 84, 107 S.Ct. at 2259. Since prison administration

is a task that has been committed to the responsibility of the legislative and executive branches of

government, the Supreme Court has stated that “separation of powers concerns counsel a policy

of judicial restraint.” Id., 482 U.S. at 85, 107 S.Ct. at 2259; also see Earle, 990 F.3d at

781(“Under these circumstances, we believe that Congress, not the Judiciary, is in the best

14

position to ‘weigh the costs and benefits of allowing a damage action to proceed.”). Thus, the

foregoing supports a finding that Congress has been active in creating legislation regarding

prisoner litigation and such causes the undersigned hesitation as to expanding Bivens to

Plaintiff’s due process and equal protection claims under the Fifth Amendment. Barrett, 2023

WL 3571951 at * 7(finding at least one special factor indicating that the Judiciary is at least

arguably less equipped than Congress to weigh the costs and benefits of allowing Bivens

damages action to proceed” concerning Plaintiff’s confiscation of property claim); Louis-El, 448

F.Supp.3d at 440-41(finding special factors counseled against extending Bivens to Plaintiff’s

Fifth Amendment due process claim); Tate, 2020 WL 7212578 at * 6 (finding special factors

counseled against extending Bivens to Plaintiff’s First, Fifth, and Eighth Amendment claims);

Reid, 2018 WL 1588264 at * 3(finding Congress has been active in the area of prisoners’ rights,

and its actions do not support the creation of a new Bivens claim); Gehrke, 2018 WL 1334936 at

* 4(same); Gonzalez, 269 F.Supp.3d at 61(same).

Furthermore, the Abbasi Court explained that “the decision to recognize a damage

remedy requires an assessment of its impact on governmental operations systemwide.” Abbasi,

582 U.S. at 136, 137 S.Ct. at 1858. The impact on governmental operations systemwide include

“the burdens on Government employees who are sued personally, as well as the projected costs

and consequences to the Government itself when the tort and monetary liability mechanisms of

the legal systems are used to bring about the proper formulation and implementation of public

policies.” Id. The Supreme Court has emphasized that “’Congress is in a far better position than a

court to evaluate the impact of a new species of litigation’ against those who act on the public’s

behalf.” Wilkie, 551 U.S. at 562, 127 S.Ct. 2588(quoting Bush, 462 U.S at 389, 103 S.Ct. 2404).

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In Abbasi, the Supreme Court further explained as follows:

Claims against federal officials often create substantial costs, in the form of

defense and indemnification. Congress, then, has a substantial responsibility to

determine whether, and the extent to which, monetary and other liabilities should

be imposed upon individual officers and employees of the Federal Government.

In addition, the time and administrative costs attendant upon intrusions resulting

from the discovery and trial process are significant factors to be considered.

Abbasi, 582 U.S. at 134, 137 S.Ct. at 1856. The undersigned notes that expanding Bivens to

allow due process and equal protection claims under the Fifth Amendment by inmates would

clearly result in an increase of suits by inmates. This increase in suits would result in increased

litigation costs to the Government and impose a burden upon individual employees to defend

such claims. As stated above, Congress recognized the need of reducing costs related to frivolous

lawsuits by prisoners when it enacted the PLRA. Thus, the costs of defending such litigation

against the need for damages as a remedy to protect a prisoner’s rights must be balanced if

Bivens liability is extended to due process and equal protection claims under the Fifth

Amendment. This is exactly the type of activity that the Supreme Court determined in Abbasi is

better left to the legislative branch. Accordingly, the undersigned finds there are special factors

counselling hesitation as to the expansion of Bivens to Plaintiff’s due process and equal

protection claims under the Fifth Amendment. See Earle, supra, 990 F.3d at 780-81. Based upon

the foregoing, the undersigned respectfully recommends that the District Court find that Plaintiff

has failed to state a claim upon which relief can be granted concerning his Fifth Amendment

claims.

2. Deliberate Indifference Claim:

The undersigned views Plaintiff’s Complaint as setting forth a claim under the Eighth

Amendment. As a general matter, punishments prohibited under the Eighth Amendment include

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those that “involve the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S.

97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)(quoting Gregg v. Georgia, 428 U.S. 153, 173,

96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). “It not only outlaws excessive sentences but also

protects inmates from inhumane treatment and conditions while imprisoned.” Williams v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). Under the Eighth Amendment, sentenced prisoners

are entitled to “adequate food, clothing, shelter, sanitation, medical care and personal safety.”

Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), rev’d on other grounds, Bell v. Wolfish, 441

U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Thus, sentenced prisoners are entitled to

reasonable protection from harm at the hands of fellow inmates and prison officials under the

Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 832-34, 114 S.Ct. 1970, 1976-77,

128 L.Ed.2d 811 (1994); Trop v. Dulles, 356 U.S. 86, 102, 78 S.Ct. 590, 598-99, 2 L.Ed.2d 630

(1958); Woodhous v. Commonwealth of Virginia, 487 F.2d 889, 890 (4th Cir. 1973). Inmates’

claims, therefore, that prison officials disregarded specific known risks to their health or safety

are analyzed under the deliberate indifference standard of the Eighth Amendment. See Pressly v.

Hutto, 816 F.2d 977, 979 (4th Cir. 1987); Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir.

1991) cert. denied, 502 U.S. 828, 112 S.Ct. 97, 116 L.Ed.2d 68 (1991)(Stating that supervisory

liability may be imposed where prison supervisors “obdurately,” “wantonly,” or “with deliberate

indifference” fail to address a known pervasive risk of harm to an inmate’s health or safety). To

establish a violation of the Eighth Amendment in the context of a challenge to conditions of

confinement, an inmate must allege (1) a “sufficiently serious” deprivation under an objective

standard and (2) that prison officials acted with “deliberate indifference” to the inmate’s health

and safety under a subjective standard. Wilson v. Seiter, 501 U.S. 294, 297 - 99, 111 S.Ct. 2321,

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2323 - 2325, 115 L.Ed.2d 271 (1991); also see King v. Rubenstein, 825 F.3d 206, 218 (4th Cir.

2016)(quoting Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993))(“[T]o make out a prima

facie case that prison conditions violate the Eighth Amendment, a plaintiff must show both ‘(1) a

serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on

the part of prison officials.’”); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008)(explaining that

the above requirements “spring from the text of the amendment itself; absent intentionality, a

condition imposed upon an inmate cannot properly be called ‘punishment,’ and absent severity, a

punishment cannot be called ‘cruel and unusual.’”) To satisfy the objective component, Plaintiff

must show that the challenged condition caused or constituted an extreme deprivation. De’Lonta

v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). To demonstrate an “extreme deprivation,” a

plaintiff “must allege a serious or significant physical or emotional injury resulting from the

challenged conditions or demonstrate a substantial risk of such serious harm resulting from [her]

exposure to the challenged conditions.” Odom v. South Caroline Dept. of Corrections, 349 F.3d

765, 770 (4th Cir. 2003); also see Wilson v. Seiter, 501 U.S. at 298, 111 S.Ct. at 2321(A

sufficiently serious deprivation occurs when “a prison official’s act or omission . . . result[s] in

the denial of the minimal civilized measure of life’s necessities.”); White v. Gregory, 1 F.3d 267,

269 (4th Cir. 1991)(“In Strickler, we held that a prisoner must suffer ‘serious or significant

physical or mental injury’ in order to be ‘subjected to cruel and unusual punishment within the

meaning of the’ Eighth Amendment.”) To satisfy the subjective component, Plaintiff must

demonstrate a “deliberate indifference” to his health and safety by defendants. In particular,

Plaintiff must establish that each Defendant “knows of and disregards an excessive risk to inmate

health and safety; the official must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. Plaintiff in this case must therefore allege and

establish that Defendant was aware of the excessive risk to Plaintiff’s health or safety and

Defendant disregarded that risk.

In his Complaint, Plaintiff alleges that Defendant acted with deliberate indifference to his

health in violation of the Eighth Amendment by failing to adequately treat his “poly-substance

abuse dependent” disorder. (Document No. 2.) Liberally construing Plaintiff’s Complaint, the

undersigned concludes that Plaintiff has alleged a facially plausible claim under the Eighth

Amendment against Defendant.4

PROPOSAL AND RECOMMENDATION

Based upon the foregoing, it is respectfully PROPOSED that the District Court confirm

and accept the foregoing factual findings and legal conclusions and RECOMMENDED that the

District Court DISMISS Plaintiff’s Complaint as his due process and equal protection claims

under the Fifth Amendment; and REFER this matter back to the undersigned for further

proceedings on Plaintiff’s claim of deliberate indifference regarding his medical care under the

Eighth Amendment.

The Plaintiff is hereby notified that this “Proposed Findings and Recommendation” is

hereby FILED, and a copy will be submitted to the Honorable United States Chief District Judge

Frank W. Volk. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B),

and Rule 6(d) and 72(b), Federal Rules of Civil Procedure, the Plaintiff shall have fourteen (14)

days (filing of objections) and three (3) days (if received by mail) from the date of filing of this

4 The undersigned acknowledges that the issue of whether a deliberate indifference claim concerning improper

medical and dental care constitutes an improper extension of Bivens is currently pending before the Fourth Circuit.

See Mandriez Spivey v. Michael Breckson, No. 24-6490 (4th Cir. January 30, 2025)(oral argument was held on

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Findings and Recommendation within which to file with the Clerk of this Court specific written

objections identifying the portions of the Findings and Recommendation to which objection is

made and the basis of such objection. Extension of this time period may be granted for good

cause.

Failure to file written objections as set forth above shall constitute a waiver of de novo

review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.

Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 155

(1985); Wright v. Collins, 766 F.2d 841, 846 (4th Cir. 1985); United States v. Schronce, 727

F.2d 91, 94 (4th Cir. 1984). Copies of such objections shall be served on opposing parties, Chief

District Judge Volk and this Magistrate Judge.

The Clerk is requested to send a copy of this Proposed Findings and Recommendation to

Plaintiff, who is acting pro se.

Date: March 4, 2026. mses OISTRICS

aN ys United States Magistrate Judge

Lsreier of SS

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