# Monk v. United States

> District Court, N.D. Alabama · August 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9991759

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** August 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991759

## How later opinions describe it (automated extraction)

- holding that Bivens may not be extended to a new context where special factors counsel hesitation absent affirmative action by Congress
- explaining that with a factual attack, “no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”
- recognizing Bivens claim where prison officials placed a transgender prisoner in the general prison population despite knowledge of a serious danger to the prisoner’s safety there

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

BARBARA C. MONK, individually
and as the executrix of the estate
of Jimmy Allen Monk, deceased,
Plaintiff,

v. Case No. 1:22-cv-1030-CLM

UNITED STATES, et al.,
Defendants.

MEMORANDUM OPINION
Jimmy Monk died after contracting COVID-19 in the Talladega
Federal Prison. His wife sued the United States, the Federal Bureau of
Prisons, and nine individual defendants for personal injury, wrongful
death, and loss of consortium.
The United States moved to dismiss Monk’s FTCA claims against
it. (Doc. 12). Individual defendants Gentry, Hanson, Holbrook, Jackson,
Lassiter, Mourtada, and Williams also moved to dismiss the Bivens claims
against them (doc. 26), and individual defendant Nash later moved to
dismiss the Bivens claims against her (doc. 37). One individual defendant,
Stanley Dickerson, has not moved to dismiss the claims against him.
For the reasons stated below the court will GRANT the United
States’ motion to dismiss the claims against it (doc. 12) and will DISMISS
any claims against the United States Federal Bureau of Prisons. The court
will also GRANT the individual defendants’ motions to dismiss the claims
against them. (Docs. 26, 37).
Because defendant Stanley L Dickerson has not moved to dismiss
the claims against him, those claims remain.
BACKGROUND
Jimmy Monk was convicted of bank fraud and sentenced to serve
one year and a day in the Talladega Federal Prison. Monk started his
sentence on October 1, 2020—i.e., during the COVID-19 pandemic.
1. COIVD measures: The United States took several measures to
deal with the pandemic’s effect on federal prisons before Monk arrived.
Attorney General William Barr first sent a memo to the Bureau of Prisons
(BOP) on March 26, 2020. It directed the BOP to prioritize home
confinement under existing statutory authority where appropriate. In
determining when to utilize home confinement, the BOP was to consider
the totality of the circumstances, statutory requirements for home
confinement, and a list of non-exhaustive discretionary factors. Those
factors included the vulnerability of the inmate, the security level of the
facility, the inmate’s conduct in prison, the inmate’s PATTERN score, the
conditions of and plan for home confinement, and the inmate’s crime of
conviction. The BOP had statutory authority to release prison inmates to
home confinement under 18 U.S.C. § 4042(a) (BOP duties), 18 U.S.C. §
3624 (c)(2) (home confinement authority), and 34 U.S.C. § 6054(g) (elderly
and family reunification for certain nonviolent offenders).
Congress passed the CARES Act the next day. See Pub. L. No. 116-
136, 134 Stat. 281. It provided that during the COVID pandemic, “the
Director of the Bureau may lengthen the maximum amount of time for
which the Director is authorized to place a prisoner in home confinement
under the first sentence of section 3624(c)(2).”
AG Barr followed up with another memo a few days after Congress
passed the CARES Act. That memo directed the BOP to prioritize the use
of home confinement to combat COVID where appropriate. Barr stated
that “I am therefore directing you to immediately review all inmates who
have COVID-19 risk factors,” and immediately process all inmates the
BOP finds suitable for home confinement.
Other existing regulations also guided the BOP’s handling of
COVID. C.F.R. 522.21 provided that the warden of the prison should
interview inmates to determine whether they should be housed
separately, and medically screen the inmate within 24 hours of arrival.
C.F.R. 549.10 provided that the BOP “will manage infectious diseases in
the confined environment of a correctional setting through a
comprehensive approach which includes testing, appropriate treatment,
prevention, education, and infection control measures.” And C.F.R. 549.13
sets out guidelines for handling inmates with infectious diseases.
Before Monk arrived in October, the BOP provided a home
confinement update. It gave the warden the final decision authority to
refer inmates for home confinement. It also provided that, among other
things, inmates should not be approved for home confinement if they have
not served 50% or more of their sentence.
2. Monk’s death: Monk was at high risk for complications from
COVID-19 when he arrived at Talladega: he was obese, had received
double bypass heart surgery, had an out of rhythm heart, high blood
pressure, high cholesterol, was borderline diabetic, and was also over 60
years old. Central to Ms. Monk’s allegations is that the prison officials
ignored these risk factors when deciding whether and how to prevent Mr.
Monk from contracting the virus and whether and how to treat him for
the virus.
Talladega prison experienced a COVID outbreak in early December
2020. Over a four-day span, 20 inmates tested positive for COVID. Monk
alleges that the prison isolated those inmates, but not the inmates they
had been in contact with. Monk also alleges that Mr. Monk was denied
treatment for an illness about a week later, and that even though five
more inmates tested positive for COVID the day after the outbreak, the
prison failed to take measures to protect other inmates or treat Mr.
Monk’s illness.
Mr. Monk tested positive for COVID three days later and attempted
to visit the prison doctor (defendant Mourtada). But Mourtada denied him
treatment. Mr. Monk later passed out in the shower and began vomiting.
His wife alleges that other inmates tried to place Monk in a chair, but that
the prison officials ordered the inmates to stay away from him. The prison
then transported him to an outside hospital where he was pronounced
dead because of COVID and cardiovascular disease.
3. The lawsuit: Ms. Monk filed an administrative claim in her
capacity as executor of Mr. Monk’s estate that claimed the BOP and
United States negligently and wrongfully killed Mr. Monk and sought
damages for his wrongful death. That claim did not mention Ms. Monk’s
personal claims.
Ms. Monk then sued the United States, the BOP, and the following
individual defendants for Mr. Monk’s death: Cheron Nash (warden at
Talladega), Keith Williams (associate warden), Celia Hanson (employee),
Destiney Lassiter (unit manager where Monk was housed), FNU Jackson
(Monk’s case manager), Dr. Moonir Mourtada (physician at Talladega),
Dr. William Holbrook (physician at Talladega), Stanley Dickerson
(employee), and FNU Gentry (federal government agent).
Monk’s central allegations are that the United States, BOP, and
prison officials failed to follow COVID directives from the federal
government, failed to screen and test inmates for COVID, returned
symptomatic inmates to the general population and failed to properly
isolate inmates with COVID, and failed to properly treat inmates who
were sick. Monk alleges that these failures deprived Mr. Monk of his
Eighth Amendment rights.
STANDARDS OF REVIEW
A. Rule 12(b)(6)
The individual defendants seek dismissal under Rule 12(b)(6).
Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff must provide “a
short and plain statement of the claim showing that the pleader is entitled
to relief.” To survive a motion to dismiss under Rule 12(b)(6), the “[f]actual
allegations [in the complaint] must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citation omitted). This “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”
Id. (citation omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. 544, 556).
B. Rule 12(b)(1)
The United States seeks dismissal under Rule 12(b)(1). Federal
Rule of Civil Procedure 12(b)(1) allows the court to dismiss a complaint
for lack of subject matter jurisdiction. A party may challenge jurisdiction
under Rule 12(b)(1) as either a facial attack or a factual attack. A facial
attack challenges whether the allegations of subject matter jurisdiction
are sufficient, taking all allegations in the plaintiff’s complaint as
true. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). On the
other hand, a factual attack challenges “the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are considered.” Id. The
United States’ motion to dismiss makes both a facial attack and a factual
attack.
When a party makes a factual attack, the court’s ability to make
findings of fact and weigh evidence depends on whether the attack
implicates the merits of the plaintiff’s claim. Garcia v. Copenhaver, Bell
& Associates, 104 F.3d 1256, 1261 (11th Cir. 1997). When the
jurisdictional challenge implicates the merits of the claim, the district
court should “find that jurisdiction exists and deal with the objection as a
direct attack on the merits of the plaintiff’s case.” Id. at 1261. But when
the challenge does not implicate the merits of the claim, “the trial court is
free to weigh the evidence and satisfy itself as to the existence of its power
to hear the case.” Id.; Lawrence, 919 F.2d at 1529 (explaining that with
a factual attack, “no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will not preclude
the trial court from evaluating for itself the merits of jurisdictional
claims.”).
The inquiry into whether Monk’s claims are subject to the
discretionary function of the FTCA does not implicate the merits of the
claims, so the court may weigh evidence, including extrinsic evidence if it
deems doing so necessary.
DISCUSSION
I. Monk’s Claims Against the Federal Bureau of Prisons
The United States argues that the court should dismiss the claims
against the United States BOP and its employees for lack of subject-
matter jurisdiction because the United States—not its agencies or
employees—are the only proper defendants in an FTCA claim. Monk
concedes that the BOP is not a viable defendant in his matter. (Doc. 21, p.
1). So the court DISMISSES all claims against the United States Federal
Bureau of Prisons.
II. Monk’s Claims Against the United States
Monk sues the United States under the FTCA for negligence,
claiming it is liable for the prison employees’ acts that caused Monk’s
death. She also incorporates her alleged violation of her Eighth
Amendment rights into her FTCA claim. Central to Monk’s claims against
the United States is the BOP’s failure to follow federal COVID guidelines
that led to Mr. Monk contracting and ultimately dying from COVID.
The United States argues the court should dismiss the claims
against it for lack of subject-matter jurisdiction, asserting both a facial
and a factual attack on the complaint The United States argues that its
facial attack should prevail because it is apparent from the face of the
complaint that the United States has not waived sovereign immunity for
the claims—i.e., that exceptions to the FTCA apply. And the United States
argues that even if a facial attack fails, a factual attack should prevail
because (1) Mr. Monk’s estate—not Ms. Monk personally—filed an
administrative claim before suing, so Ms. Monk has failed to exhaust her
administrative remedies, and (2) one or more of the individuals at
Talladega were health care providers and, as private persons, are shielded
from the covid-related FTCA claims under Alabama’s COVID Immunity
law. For the reasons stated below, the court agrees with the United States
that its facial attack should prevail because at least one exception to the
FTCA shields the United States from Monk’s claims against it.
1. The FTCA and the Discretionary Function Exception:
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471,
475 (1994). When the government has not waived sovereign immunity for
a claim, the court should dismiss the claim for a lack of subject-matter
jurisdiction. F.R.C.P. 12(b)(1); See Meyer, 510 U.S. at 475. When the
government has waived its sovereign immunity, “a court must strictly
observe the ‘limitations and conditions upon which the Government
consents to be sued’ and cannot imply exceptions not present within the
terms of the waiver.” Zelaya v. United States, 781 F.3d 1315, 1322 (11th
Cir. 2015) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)).
The FTCA waives the United States’ sovereign immunity for certain
torts but is subject to exceptions within the statute. One exception is the
discretionary-function exception. 28 U.S.C. § 2680(a).
The discretionary-function exception carves out an exception to the
FTCA’s waiver of sovereign immunity for any common-law tort claim that
is “based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal agency or
an employee of the Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). “In short, the discretionary function
exception serves to preserve sovereign immunity for any claim that is
based on a federal agency or employee’s performance or nonperformance
of a discretionary task, even if, in so acting, the agency employee may have
abused his discretion.” Zelaya, 781 F.3d at 1329.
The Supreme Court has established a two-part test to determine the
applicability of the discretionary function exemption. “First, the conduct
that forms the basis of the suit must involve an element of judgment or
choice by the employee.” Zelaya, 781 F.3d at 1229 (citing Berkovitz v.
United States, 486 U.S. 531, 536 (1988)). This step focuses on “whether
the controlling statute or regulation mandates that a government agent
perform his or her function in a specific manner.” Hughes v. United
States, 110 F.3d 765, 768 (11th Cir. 1997). “[U]nless a ‘federal statute,
regulation, or policy specifically prescribes a course of action embodying a
fixed or readily ascertainable standard,’ it will be presumed that the
particular act involved an element of judgment or choice.” Zelaya, 781
F.3d at 1330 (citing Autery v. United States, 992 F.2d 1523, 1529 (11th
Cir. 1993)).
If the government meets the first step, the second step requires the
court to “determine whether that judgment is of the kind that the
discretionary function exception was designed to shield.” Berkovitz, 486
U.S. at 536. “A particular decision will be of the kind protected by the
exception if it is the type of decision that one would expect to be inherently
grounded in considerations of policy.” Zelaya, 781 F.3d at 1330. “[W]hen
a government agent is permitted to exercise discretion in making a
particular decision—whether that permission is express or implied—’it
must be presumed that the agent’s acts are grounded in policy when
exercising that discretion.’” Id. (quoting United States v. Gaubert, 499
U.S. 315, 324 (1991)). And “in examining whether an employee’s
discretion is of the type grounded in public policy, one uses an objective
test, and the employee’s subjective intent is irrelevant.” Id.
Step One: The United States argues that step one of the inquiry is
met because while statutes, regulations, and policies guide the prison’s
treatment of Mr. Monk, they do not compel the use of specific methods for
operating and managing federal prisons. Monk responds that statutes,
regulations, and directives all placed on BOP officials the requirement to
act—to prevent the spread of COVID, treat Mr. Monk for COVID, and to
utilize home confinement, and that the employees were without discretion
to fail to act altogether.
The court agrees with the United States that the statutes,
regulations, and policy memos Monk cites provide BOP officials with “an
element of judgment or choice” and do not mandate a specific action.
Zelaya, 781 F.3d at 1229.
Start with AG Barr’s first memorandum. While it made clear that
BOP officials should prioritize the use of home confinement, it also
emphasized that the decision to utilize home confinement was
discretionary. For example, Barr ordered officials to use home
confinement “where appropriate,” to “consider the totality of the
circumstances” and provided a “non-exhaustive list of discretionary
factors.” (Doc. 1-5).
The pre-COVID statutes and CARES Act are no different. 18 U.S.C.
§ 4042 gives the BOP general management authority over federal prisons.
18 U.S.C. § 3624(c)(2) authorizes home confinement for “the shorter of 10
percent of the term of imprisonment of that prisoner or 6 months” for
“prisoners with lower risk levels and lower needs . . . .” 34 U.S.C. §
60541(g) established a pilot program for the Attorney General to “release
some or all eligible elderly offenders and eligible terminally ill offenders .
. . to home detention. . . .” And the CARES Act allowed the BOP to
“lengthen the maximum amount of time for which the director is
authorized to place a prisoner in home confinement under . . . section
3624(c)(2).” Plus, the statutes use the permissive “may,” allowing the BOP
and AG discretion to determine when home confinement is appropriate.
All these statutes make clear that it is up to BOP officials to use their
judgment to recommend inmates for home confinement.
AG Barr’s second memo retains the same discretionary nature as
his first. He titled the memo “[i]ncreasing the use of home confinement at
institutions most affected by COVID-19.” But he again noted that home
confinement should only be utilized “where appropriate.” He specifically
ordered officials at FCI Oakdale, FCI Danbury, FCI Elkton, and other
similarly affected to immediately review all inmates with COVID risk
factors. Yet the BOP officials still had discretion to determine which
candidates were suitable for home confinement and were to use the same
factors outlined in the March 26 memo.
Monk also cites various regulations, a prison bulletin, and prison
handbooks to argue that the officials’ conduct falls outside the
discretionary function exception to the FTCA. Yet none of those
regulations or policies mandated that Talladega release Mr. Monk to
home confinement or treat him in a particular way. C.F.R. 522.21 provides
that the warden should interview and screen inmates for infectious
disease within 24 hours of arriving at the prison. C.F.R. 549.10 provides
that the BOP “will manage infectious diseases in the confined
environment of a correctional setting through a comprehensive approach
which includes testing, appropriate treatment, prevention, education, and
infection control measures.” And C.F.R. 549.13 sets out guidelines for
handling inmates with infectious diseases.
Prior to Monk’s arrival, the BOP provided a home confinement
update via bulletin. It gave the warden the final decision authority to refer
inmates for home confinement. But that update explicitly said that,
among other things, inmates should not be approved for home
confinement if they have not served 50% or more of their sentence. Mr.
Monk did not meet this criterion, so that update fails to establish that the
BOP had a duty to treat him in a particular way or release him to home
confinement. And the handbook sections that Monk cites also fail to place
her claims within the FTCA.
None of the statutes, regulations, or policies that Monk cites
establish that the BOP officials had to release Mr. Monk to home
confinement. They also do not require the officials to treat Mr. Monk in a
certain way or establish specific prison procedures relating to COVID. See
United States v. Wilson, 2021 WL 5360084 (W.D. Pa. Nov. 17, 2021)
(“[D]ecisions (regarding what COVID protocols to follow) are within the
discretion of BOP and their determination of relative risk levels given the
changing nature of the pandemic and the availability of vaccines.”)
Monk cites a case from the District of South Carolina to support her
argument that the court should allow the case to move forward to
discovery. Farmer v. United States, No. 0:21-cv-2572-TMC, 2022 WL
3500363 (D. S.C. Aug. 18, 2022). Monk says that Farmer suggests that
allegations that a federal prison disregarded the BOP’s COVID action
plan should survive a motion to dismiss because the action plan created a
mandatory compliance system and therefore does not fall under the
discretionary function exception to the FTCA.
The United States disagrees. It argues that the court in Farmer only
allowed the case to go to discovery on the plaintiff’s claim of negligence
relating to the prison officials’ failure to follow COVID action plans. Id. at
*5. But the United States attached the documents the plaintiff submitted
to support their claims, and those documents show that the action plans
were “recommendations and best practices,” not a mandate. Thus, the
United States argues this also falls under the discretionary function
exception.
The Court agrees with the United States. The court in Farmer held
that COVID-related claims brought under 18 U.S.C. § 4042(a), 3624(c)(2),
the CARES Act, and CDC guidelines are barred by the discretionary
function exception. The Farmer court reasoned that the language in the
“Action Plan” could be mandatory, so it denied the United States’ motion
to dismiss on that specific claim. But after careful review, this court finds
that it contains no mandatory language. Thus, the court finds that the
United States has satisfied step one of the discretionary-function inquiry.
Step Two: As explained above, the second step requires the court
to “determine whether that judgment is of the kind that the discretionary
function exception was designed to shield.” Berkovitz, 486 U.S. at 536.
That is, the court must determine whether the decision was “inherently
grounded in considerations of policy.” Zelaya, 781 F.3d at 1330. The court
must presume that is the case “when a government agent is permitted to
exercise discretion in making a particular decision.” Id.
The United States says it has satisfied this step because the BOP
officials’ decisions related to inmate care, housing, and home confinement
are grounded in public policy. Because the court agrees with the United
States that the BOP employees exercised discretion in their decision
making, the court begins with the presumption that the decisions were
grounded in considerations of policy.
In other contexts, the Supreme Court has acknowledged that prison
officials “should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional
security.” Whitley v. Albers, 475 U.S. 312, 321–22 (1986). The court
therefore agrees with the United States that given the COVID pandemic,
“prison management and operations require a very delicate balancing of
prisoner, staff, and public safety with available resources to implement
prisoner-housing and medical guidance in a thoughtful, systematic way
across BOP’s facilities.” (Doc. 12, p. 21). So the court holds that the United
States has also satisfied the second step of the discretionary-function test,
and GRANTS the United States’ motion to dismiss. (Doc. 12).
The United States separately argues that the claims against it are
to be dismissed under the quarantine exception to the FTCA, Alabama
Covid Immunity law that shields healthcare providers from COVID-
related suits, and because Ms. Monk failed to exhaust her claims of loss
of consortium and pain and suffering with the BOP. But the court need
not address those arguments because the discretionary-function exception
to the FTCA applies.
III. Monk’s Claims Against the Individual Defendants
Monk sues the individual defendants under Bivens for violating Mr.
Monk’s First, Fifth, Eighth, and Fourteenth Amendment rights. Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). Monk does not object to dismissal of the Bivens claims against the
individual defendants under the First, Fifth, and Fourteenth
Amendments. (Doc. 32, p. 4). So the court GRANTS the individual
defendants’ motions to dismiss those claims. (Docs. 26, 37).
That leaves the Eighth Amendment. Monk alleges the individual
defendants violated Mr. Monk’s Eighth Amendment rights by acting
deliberately indifferent to Mr. Monk’s health and safety by exposing him
to and failing to protect him from COVID. She says the officials failed to
protect Mr. Monk from COVID, disregarded home confinement or referral
to outside medical providers, failed to recognize and screen Monk’s risk
factors for COVID, and failed to treat Monk when he collapsed in the
shower. She also alleges that the prison supervisors failed to properly
supervise correctional officers and medical staff at the prison.
The individual defendants argue that the Eighth Amendment
Bivens claims fail because this case is meaningfully different from Bivens,
Davis, and Carlson, and because Congress is best equipped to determine
an individual-damages remedy here. And in any event, the individual
defendants argue that qualified immunity bars Monk’s Eighth
Amendment claim.
A. Rule 12(b)(6)
The individual defendants first argue that Monk’s complaint does
not meet the standard of review set out in Rule 12(b)(6), Twombly, and
Iqbal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). They argue that only
four paragraphs in the complaint (50, 52, 54, and 55) associate a specific
defendant with a specific factual allegation and thus does not satisfy the
applicable pleading standard.
Because the court agrees with the individual defendants that their
claims should be dismissed for the reasons stated below, the court finds it
unnecessary to consider this argument.
B. Bivens
The Supreme Court made available a cause of action for money
damages against federal officials in their individual capacities for
violating constitutional rights in Bivens. See Bivens, 403 U.S. at 395–97.
A Bivens claim may only proceed under narrow circumstances. Egbert v.
Boule, 142 S. Ct. 1793, 1803 (2022). Suits for monetary damages under
Bivens have been permitted for violating the Eighth Amendment, as Monk
alleges here. See Carlson v. Green, 446 U.S. 14, 19 (1980).
To prevail on her Bivens claim, Monk must establish that a person
acting under color of federal law deprived her husband of his
Constitutional rights. Bivens, 403 U.S. at 396–97. The parties do not
dispute that the named individual defendants were acting under color of
federal law, but the individual defendants do argue that the alleged
violation is not redressable as a Bivens claim.
To prevail, Monk must show that (a) her claims are either analogous
to a claim type the Supreme Court has previously recognized under
Bivens, or (b) if the case presents a new Bivens context, that the officials
violated a clearly established constitutional right, there are no other
remedies available, and that no special factors counsel against extending
Bivens. See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (holding
that Bivens may not be extended to a new context where special factors
counsel hesitation absent affirmative action by Congress).
“A case presents a new Bivens context when it is ‘different in a
meaningful way’ from previous Bivens cases decided by the Supreme
Court.” Montalban v. Samuels, 2022 WL 4362800 (11th Cir. 2022).
Whether a case presents a new context is a fact-specific analysis. Ziglar
v. Abbasi, 582 U.S. at 138. The second step regarding special factors “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 137.
While Monk’s complaint is unclear on her exact Bivens theory, the
court gives Monk the benefit of the doubt and reads it to include these four
claims: (a) conditions of confinement, (b) failure to train/supervise, (c) loss
of consortium, and (d) deliberate indifference to serious medical needs.
Step One (New Context): The court must first consider whether
this case presents a new Bivens context that is “meaningfully different
from the three cases in which the Court has implied a damages action.”
Egbert, 142 S. Ct. at 1803. The defendant bears the burden to show the
plaintiff is bringing a claim in a new context.
The Supreme Court originally recognized a Bivens claim under the
Eighth Amendment where prison officers failed to provide adequate
treatment for an asthmatic prisoner. Carlson v. Green, 446 U.S. 14, 22–
23 (1980). Typically, Eighth Amendment Bivens claims arise in the prison
context where officials use excessive force against an inmate or
deliberately disregard a substantial risk of serious harm to an inmate. See
Farmer v. Brennan, 511 U.S. 825, 833 (1994) (recognizing Bivens claim
where prison officials placed a transgender prisoner in the general prison
population despite knowledge of a serious danger to the prisoner’s safety
there). This requires the defendants have a subjective knowledge of the
risk.
The court must first consider whether this case presents a new
Bivens context that is “meaningfully different from the three cases in
which the Court has implied a damages action.” Egbert, 142 S. Ct. at 1803.
“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 v. Mesa, 140 S. Ct. 735, 743 (2020).
In Carlson, the plaintiff sued the BOP on behalf of her deceased son
when staff members knew he had asthma, lacked the capability to treat
it, kept him in prison against doctors’ advice, failed to provide him with
medical attention for eight hours after an asthma attack, gave him drugs
and employed a respirator—both of which made the attack worse, and
unreasonably delayed his transfer to an outside hospital. Carlson, 446
U.S. at 16. Plus, the prison officials’ deliberate indifference flowed from
racial animus. Id.
The Court extended Bivens to these claims for two reasons. First,
there were no special factors to cause the court to hesitate because the
officials did not “enjoy such independent status in our constitutional
scheme as to suggest that judicially created remedies against them might
be inappropriate,” and qualified immunity provided them with adequate
protection. Second, Congress did not preclude constitutional-tort liability
in this situation.
The individual defendants argue that Monk’s claims pose a
“superficial similarity” to Carlson and present a new context. Egbert v.
Boule, 142 S. Ct. at 1805. They point out that COVID was unprecedented
and created a different fact scenario, including conditions of confinement,
screening for a novel disease, determining risk factors for a new disease,
mitigating risk of that disease, making home confinement
recommendations, and supervising BOP employees’ handling of the
pandemic. All these factors were not present in Carlson, so defendants say
this is a new context. See Walker v. United States, No. 3:21-cv-1881, 2022
WL 1472872, at *4 (M.D. Pa. May 10, 2022) (“There is no question that
Walker’s Eighth Amendment conditions of confinement claim presents a
new context….”); Smith v. Wood, No. 1:19-cv-3673, 201 WL 13068185, at
*5 (N.D. Ga. Oct. 31, 2019) (“Plaintiff’s conditions of confinement claims
all present new contexts under Bivens.”).
Monk argues that her claims arise in the same context as Carlson
because this case involves prison officials who failed to treat an individual
for a severe medical condition. Monk acknowledges that the COVID-19
pandemic was unprecedented but argues that it should still be treated like
other serious illnesses, and that the crux of her lawsuit is that the prison
officials failed to treat Mr. Monk, just like the officials in Carlson.
The court agrees with the individual defendants in part. This case
presents a new context based on (a) conditions of confinement, (b) failure
to train/supervise, and (c) loss of consortium because those claims are
different in a meaningful way from Carlson.
Monk’s conditions of confinement allegations—how Mr. Monk was
treated, the measures taken to prevent COVID, the use of home
confinement, and the general prison procedures—all differ from Carlson.
The facts surrounding the BOP officials’ actions, the lack of judicial
guidance on COVID in 2020, and no legal mandates on the officials to act
in a certain way all show that this case is much different from the facts in
Carlson.
The same is true for Monk’s failure to train and failure to supervise
allegations. Stroud v. Warden, USP Lewisburg, No. 1:22-cv-0515, 2022
WL 17340626, at *5 (M.D. Pa. Nov. 30, 2022) (collecting cases holding that
failure-to-supervise claims present a new context for a Bivens claim). And
Monk’s loss of consortium claim also presents a new context. See Zundel
v. Holder, 687 F.3d 271, 279, 283 (6th Cir. 2012) (“the loss of spousal
consortium is not a constitutional right that may be asserted by a spouse
in a Bivens action.”). So the court will proceed to step two on Monk’s claims
that are based on (a) conditions of confinement, (b) failure to
train/supervise, and (c) loss of consortium.
But to the extent that Monk’s claims are of deliberate indifference
to serious medical needs, her claims do not present a new context. The
court will address this theory in Part IV, Qualified Immunity.
Step Two (Special Factors): When a plaintiff attempts to bring a
Bivens claim in a new context, the court may not imply a Bivens remedy
if (a) there is alternative federal or state remedy, or (b) special factors—
such as encroaching on other branches of government or areas covered by
existing federal regulation—that cause the court to hesitate to extend the
remedy. Ziglar, 137 S. Ct. at 1858. In the end, “[a] court faces only one
question: whether there is any rational reason (even one) to think that
Congress is better suited to weigh the costs and benefits of allowing a
damages action to proceed.” Egbert, 142 S. Ct. at 1805.
The defendants point out that Congress enacted 31 U.S.C. § 3724(a)
that permits the Attorney General to settle death claims attributable to
BOP officials up to $50,000. Ms. Monk also could have sought BOP
administrative remedies. And the defendants argue that because
Congress enacted the PLRA over a decade after Carlson and chose not to
create a standalone damages remedy against individual BOP officers, the
court should not do so now.
The court agrees with the individual defendants that the judiciary
is not well suited to weigh the costs and benefits of allowing a damages
action to proceed under these circumstances because at least one special
factor counsels the court’s hesitation. As the defendants point out,
Congress has provided an alternative remedy in 31 U.S.C. § 3724(a). And
“Congress is best positioned to evaluate whether, and the extent to which,
monetary and other liability should be imposed upon individual officers
and employees of the Federal Government based on constitutional torts.”
Hernandez, 140 S. Ct. at 742. Congress has also otherwise legislated
regarding prisoner rights in the PLRA. Even more, allowing these Bivens
claims to proceed could significantly interfere with prison administration.
For the reasons stated above, the court GRANTS the individual
defendants’ motions to dismiss to the extent that Monk’s Bivens claims
relate to (a) conditions of confinement, (b) failure to train/supervise, and
(c) loss of consortium. (Docs. 26, 37).
IV. Qualified Immunity
In Part III, the court found that Monk could proceed on her theory
that the individual defendants were deliberately indifferent to her
husband’s serious medical needs. The individual defendants argue that, if
even if this is a recognized Bivens claim, qualified immunity protects them
from the claim.
Qualified immunity protects officials “from liability for civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“A district court must dismiss a complaint under Fed. R. Civ. P.
12(b)(6) when the complaint’s allegations, on their face, show that an
affirmative defense bars recovery on the claim.” Nichols v. Maynard, 204
F. App’x 826, 828 (11th Cir. 2006). “Unless the plaintiff’s allegations state
a claim of violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the commencement of
discovery.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
To properly assert qualified immunity, the government officials
must have been “acting within the scope of [their] discretionary authority
when the alleged wrongful act occurred.” Echols v. Lawton, 913 F.3d 1313,
1319 (11th Cir. 2019). “The term discretionary authority includes all
actions of a governmental official that (1) were undertaken pursuant to
the performance of his duties, and (2) were within the scope of his
authority.” Patel v. City of Madison, 959 F.3d 1330, 1338 (11th Cir. 2020)
(cleaned up). The government officials bear the burden to establish that
their conduct occurred while acting within the scope of their discretionary
authority. Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir.
1998).
Once the government officials have established they were acting
within the scope of their discretionary authority, the plaintiff has the
burden to (1) “make out a violation of a constitutional right” and (2) show
that “the right at issue was clearly established at the time of [the] alleged
misconduct.” Pearson, 555 U.S. at 232 (quotation omitted). But a court
may consider the two prongs of qualified immunity in any order. Id. at
236. If the court determines that the right was not clearly established at
the time of the alleged misconduct, it need not consider the first prong.
Discretionary Authority: The individual defendants argue that they
were acting within the scope of their discretionary authority in all the
conduct that led to Monk’s alleged constitutional violations. They say that
this conduct can be grouped into two primary categories: (1) protecting
Monk from COVID, and (2) providing medical treatment to him once he
contracted the virus.
The court agrees with the individual defendants that they were
acting within the scope of their discretionary authority. The facts alleged
in the complaint make clear that the defendants were undertaking duties
related to preventing and treating COVID in the prison, and the officials
were acting under the discretion afforded to them by Congress, DOJ, and
the BOP.
Clearly Established Law: The court will first determine whether
Monk’s allegations state a claim of violation of clearly established law. A
right may be clearly established by (1) a materially similar case that has
already been decided; (2) an accepted general principle should control the
novel facts of the case with obvious clarity; or (3) the conduct in question
so obviously violated the Constitution that no prior case law is
necessary. Loftus v. Clark-Moore, 690 F.3d 1200, 1204–05 (11th Cir.
2012).
The court must determine whether the individual defendants
violated Monk’s clearly established Eighth Amendment rights by acting
deliberately indifferent to Mr. Monk’s serious medical needs. Monk argues
that case law and egregious conduct show that the alleged violation was
clearly established.
Monk points to four cases to prove that the alleged constitutional
violation was clearly established. See Hannah v. Armor Corr. Health
Services, Inc., 792 Fed. App’x 742 (11th Cir. 2019); Hoffer v. Jones, 290 F.
Supp. 3d 1292 (N. D. Fla. 2017); Bryant v. Buck, 793 Fed. Appx. 979 (11th
Cir. 2019); Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004). District
courts cannot clearly establish law, so the court will not consider Hoffer.
And unpublished Eleventh Circuit opinions also cannot clearly establish
law but can be used as evidence that a particular right is not clearly
established. See Corbitt v. Vickers, 929 F.3d 1304, 1319 n. 14 (11th Cir.
2019).
That leaves the court with Brown v. Johnson to determine whether
that case clearly established Monk’s alleged constitutional violation.
There, prison officials stopped a prisoner’s treatments for HIV and
hepatitis, causing him skin and scalp infections, pain in the eyes and
vision problems, fatigue, prolonged stomach pains, and susceptibility to
future illnesses. Brown, 387 F.3d at 1350. The court noted that
“[d]eliberate indifference may be established by a showing of grossly
inadequate care as well as by a decision to take an easier but less
efficacious course of treatment,” and that “[w]hen the need for treatment
is obvious, medical care which is so cursory as to amount to no treatment
at all may amount to deliberate indifference.” Id. at 1351 (citing
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). The court held
that “the continuing disregard of Brown’s HIV and hepatitis” sufficiently
constituted deliberate indifference. Id.
The defendants say that there is no clearly established right here,
because the COVID pandemic made this situation unique. They say that
there is no clearly established right to specific quarantine procedures,
COVID testing, home confinement, or specific conditions of confinement
to avoid contracting the disease. And as they point out, Monk cited no
controlling precedent that Mr. Monk had a clearly established right to
protection from COVID or any other novel and highly contagious disease.
The court agrees with the defendants that Monk has failed to meet
her burden of establishing that clearly established law applied to her
husband’s particular facts. “[T]he preexisting law must make it obvious
that the defendant’s acts violated the plaintiff’s rights in the specific set
of circumstances at issue.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th
Cir. 2010). Rather than meet this level of specificity required, Monk has
instead laid out general principles for deliberate indifference claims in
factually distinguishable cases.
The caselaw existing at the time of the alleged conduct did not and
could not have considered the complexities of the COVID pandemic and
the prison’s response to it. It is true that prison officials act with deliberate
indifference by failing to provide treatment to an unconscious prisoner.
See Bozeman v. Orum, 422 F.3d 1265, 1273 (11th Cir. 2005). And “an
official acts with deliberate indifference when he intentionally delays
providing an inmate with access to medical treatment, knowing that the
inmate has a life-threatening condition or an urgent medical condition
that would be exacerbated by delay.” Lancaster v. Monroe Cty., Ala., 116
F.3d 1419, 1425 (11th Cir. 1997).
But none of these cases clearly established rights to a particular
COVID prevention plan, a right to home confinement, or how to respond
to inmates’ sickness when an outbreak has occurred throughout the
prison. Indeed, no case at the time of the alleged conduct considered the
impact a global pandemic may have on officials’ decisions. “COVID-
19 pose[d] novel health risks to incarcerated inmates—and novel
administrative challenges for jail and prison administrators[.]” Swain v.
Junior, 961 F.3d 1276, 1294 (11th Cir. 2020).
The court also agrees with the individual defendants that the
conduct Monk alleges was not egregious enough to clearly violate the
Constitution. Monk has not shown “that the official’s conduct was so far
beyond the hazy border between excessive and acceptable force that the
official had to know he was violating the Constitution even without case
law on point.” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997).
Monk has failed to meet her burden of establishing “the right at
issue was clearly established at the time of [the] alleged misconduct.”
Pearson, 555 U.S. at 232. So the court will GRANT the individual
defendants’ motions to dismiss the claims against them for violating Mr.
Monk’s Eighth Amendment rights by acting deliberately indifferent
towards his medical needs. (Docs. 26, 37).
CONCLUSION
For the reasons stated above, the court will GRANT the United
States’ motion to dismiss the claims against it (doc. 12) and will DISMISS
any claims against the United States Federal Bureau of Prisons. The court
will also GRANT the individual defendants’ motions to dismiss the claims
against them. (Docs. 26, 37).
Because defendant Stanley L Dickerson has not moved to dismiss
the claims against him, those claims remain.
DONE and ORDERED on August 7, 2028.
hex of Hoy
COREY . MAZE <¢
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991759. Public record. Not legal advice.