In his Recommendation, Judge Varholak quoted extensively from a previous recommendation from one of Mr. Noe's earlier cases in which Judge Varholak considered the availability of a Bivens remedy under similar circumstances, Noe v.United States, No. 21-CV-01589-CNS-STV, 2022 WL 18587706 (D. Colo. Dec. 14, 2022), report and recommendation adopted, No. 21-CV-01589-CNS-STV, 2023 WL 179929 (D. Colo. Jan. 13, 2023), aff'd, No. 23-1025, 2023 WL 8868491 (10th Cir. Dec. 22, 2023) (unpublished) (“Noe I”). In Noe I, Mr. Noe brought an Eighth Amendment deliberate indifference claim against individual dental and medical providers for allegedly inadequate medical treatment.
This Court has considered the availability of a Bivens remedy under similar circumstances in one of Mr. Noe's prior cases, Noe v. United States (“Noe Recommendation”), No. 21-CV-01589-CNS-STV, 2022 WL 18587706 (D. Colo. Dec. 14, 2022), report and recommendation adopted, No. 21-CV-01589-CNS-STV, 2023 WL 179929 (D. Colo. Jan. 13, 2023), aff'd, No. 23-1025, 2023 WL 8868491 (10th Cir. Dec. 22, 2023) (unpublished), and will quote extensively from that prior recommendation: For completion, the Court retains the placement and contents of the footnotes contained in the excerpted section, but renumbers them to align with the numbering in the instant Recommendation.
The BOP Administrative Remedy Program allows inmates to seek formal review of an issue relating to any aspect of their confinement, including medical treatment. See 28 C.F.R. §§ 542.10-542.19; see also Noe v. U.S., No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *8 (D. Colo. Dec. 14, 2022) (BOP remedy available to plaintiff for his medical negligence claim), report and recommendation adopted, 2023 WL 179929 (D. Colo. Jan. 13, 2023)
Having concluded Plaintiff's claim is not an already covered Bivens remedy, the Court turns its analysis to the second of the independent reasons for dismissal-the existence of an alternative remedy. See Noe v. United States, No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *8 (D. Colo. Dec. 14, 2022) report and recommendation adopted 2023 WL 179929 (D. Colo. Jan. 13, 2023) (either one of these reasons “alone provides an ‘independent means of disposing of Bivens claims,' regardless of their context.”)
; Noe v. United States, No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *9 (D. Colo. Dec. 14, 2022) (observing that “a federal prison official may sadistically beat an inmate to within an inch of his life and that inmate will not have a civil remedy against that prison official-after all, the inmate may file a grievance pursuant to the BOP Administrative Remedy Program”), report and recommendation adopted, 2023 WL 179929 (D. Colo. Jan. 13, 2023).
“[E]xisting remedies” need “not provide complete relief.” Id. at 1804; see also Susinka v. Trujillo, No. 21-cv-01837-PAB-MEH, 2023 WL 2366730, at *6 (D. Colo. Mar. 6, 2023) (Chief Judge Brimmer agreeing that under Silva, the ARP is “an independently sufficient ground to foreclose a Bivens claim” (internal quotations and citation omitted)); Noe v. United States, No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *9 (D. Colo. Dec. 14, 2022) (Magistrate Judge Varholak relying on Silva and “find[ing] the existence of [the ARP] forecloses the availability of a Bivens remedy . . . despite any ‘parallel circumstances' that may exist between it and Carlson”), report and recommendation adopted sub nom. Noe v. United States Gov't, No. 21-cv-01589-CNS-STV, 2023 WL 179929 (D. Colo. Jan. 13, 2023), appeal filed, No. 23-1025 (10th Cir. Jan. 30, 2023).
Thus, Bivens, Davis, and Carlson ‘represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution itself.'” Noe v. United States, No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *6 (D. Colo. Dec. 14, 2022) (quoting Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1855 (2017)).