Opinion
Civil Action 21-cv-03340-CMA-STV 23-cv-00695-CMA-STV
02-05-2024
PETER NOE, Plaintiff, v. UNITED STATES OF AMERICA; JENNIFER SEROSKI; and DR. D. OBA, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, MAGISTRATE JUDGE
This Matter comes before the Court on Individual Defendants' Motion to Dismiss Bivens Claims (the “Motion”) [#160]. The Motion has been referred to this Court. [#162] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED and that Plaintiff's claims against Jennifer Seroski and Dr. D. Oba be DISMISSED.
The facts are drawn from the allegations in Plaintiff's Complaint and Jury Demand (the “Complaint”), Docket Number 1 in case number 23-cv-00695-CMA-STV, which the Court will cite to as “[#1]” for simplicity. On October 4, 2023, case number 23-cv-00695-CMA-STV was consolidated into case number 21-cv-03340-CMA-STV for all purposes. [#157] The Court ordered that all future documents in the consolidated actions be filed in the lowest numbered case (i.e., 21-cv-03340) only. [Id. at 5] Accordingly, with the exception of citations to the Complaint, all citations to court filings refer to filings made in 21-cv-03340-CMA-STV.
Plaintiff is a Federal Bureau of Prisons (the “BOP”) inmate at the United States Penitentiary ADMAX (“ADX”), located in Florence, Colorado. [#1 at ¶ 5] At all relevant times, Dr. D. Oba and Ms. Seroski were medical providers employed or contracted by the BOP and responsible for meeting Plaintiff's medical needs. [Id. at ¶¶ 7-8] In the fall of 2020, Plaintiff became sick with symptoms such as fever, chills, weakness and a headache. [Id. at ¶ 19] ADX medical providers diagnosed Plaintiff with the flu and Plaintiff's symptoms resolved. [Id.] Approximately two months later, Plaintiff developed the same symptoms, and was again diagnosed with the flu. [Id. at ¶ 20] About a week after that, in December 2020, Plaintiff informed the ADX medical unit (“Medical”) that he felt like he needed to urinate all the time, but was having difficulty passing urine. [Id. at ¶ 21] Dr. Oba responded to Plaintiff's symptoms by ordering two tests-a urine dipstick test and a post-void residual (“PVR”) test. [Id. at ¶ 22] While the PVR test did not occur until months later, test results for both tests were normal, as were the results of a second dipstick test that took place in February 2021. [Id. at ¶¶ 22-23, 27]
In the meantime, from December 2020 through July 2021, Plaintiff repeatedly complained to Medical of bladder issues and unbearable pain in his lower stomach and testicles. [Id. at ¶ 24] During this time, Plaintiff also repeatedly filed requests relating to the failure of Dr. Oba and Ms. Seroski to provide Plaintiff with pain medication. [Id. at ¶ 25] Dr. Oba and Ms. Seroski denied Plaintiff pain medication for his extreme pain. [Id. at ¶ 26]
Plaintiff was evaluated by Ms. Seroski on March 2, 2021. [Id. at ¶ 28] Ms. Seroski ordered blood work, a urine analysis, and an abdominal x-ray. [Id.] All tests returned normal results, and both Dr. Oba and Ms. Seroski reviewed the results of these tests. [Id.] Ms. Seroski prescribed Plaintiff medication for a suspected enlarged prostate. [Id. at ¶ 29] Plaintiff was on the medication for six weeks with no resolution of his symptoms. [Id.] Dr. Oba and Ms. Seroski continued to perform tests, but failed to attempt any pain management for Plaintiff's extreme pain. [Id. at ¶ 31] Despite the clear ineffectiveness of the medication, neither Dr. Oba nor Ms. Seroski prescribed any alternate treatment for Plaintiff until five months later, in August 2021. [Id. at ¶ 30]
In August 2021, Plaintiff saw Dr. Oba in person for the first time. [Id. at ¶ 32] Plaintiff explained his difficulty urinating and his pain. [Id.] Dr. Oba made a diagnosis and prescribed antibiotics, which were ineffective. [Id. at ¶¶ 32-33] In late August 2021, Dr. Oba placed an order for Plaintiff to be evaluated by a urologist. [Id. at ¶ 34] The BOP did not provide Plaintiff with a urologist evaluation until late December 2021, despite obvious signs of Plaintiff's worsening conditions. [Id. at ¶¶ 35-36] Dr. Oba approved this delay. [Id. at ¶ 35] During this time, Plaintiff continued to experience extreme pain in his stomach and testicles, and Dr. Oba and Ms. Seroski against refused to provide Plaintiff with pain medication. [Id. at ¶ 36] Plaintiff repeatedly complained of his symptoms, the denial of pain medication, and the delay in seeing a urologist to Medical and the BOP. [Id. at ¶ 37]
Beginning in October 2021, Plaintiff included in his complaints that he was experiencing extremely sharp/burning and constant pain in his lower back, hip, leg, and foot, as well as numbness in his leg and foot. [Id. at ¶ 38] Dr. Oba and Ms. Seroski failed to provide Plaintiff with treatment for these symptoms. [Id. at ¶ 39] Plaintiff also reported to Medical that his urinary symptoms had reoccurred, and that he got sick again with fever, weakness, chills, and headache. [Id. at ¶ 40] Ms. Seroski was aware of these complaints and symptoms, but refused to provide Plaintiff with any pain management or attempt to further diagnose him. [Id. at ¶ 41]
Plaintiff was evaluated by a urologist on December 23, 2021. [Id. at ¶ 42] Upon evaluation, the urologist immediately suspected Plaintiff's issues stemmed from a neurological source. [Id.] The urologist recommended further assessment and tests, including an MRI scan, which were ordered by Dr. Oba. [Id. at ¶ 43] Plaintiff waited two months for the MRI scan, and when it occurred on February 27, 2022, Dr. Oba ordered a scan of the wrong area of Plaintiff's body-his abdomen as opposed to his back. [Id. at ¶ 46] The BOP delayed performing the correct MRI scan on Plaintiff's back until June 12, 2022, and Dr. Oba and Ms. Seroski did not review the results until approximately ten days later. [Id. at ¶ 48]
In the meantime, Ms. Seroski had finally prescribed pain medication for Plaintiff on January 11, 2022, shortly after the urologist's evaluation. [Id. at ¶ 45] The prescribed medication was similar to ibuprofen. [Id.] Plaintiff informed Medical that the pain medication was not working, and he was prescribed a new pain medication on February 18, 2022. [Id. at ¶ 47] Plaintiff continued to experience pain and made repeated complaints to Medical. [Id. at ¶ 48] At some point, Dr. Oba prescribed Plaintiff a new pain medication, which helped alleviate the pain somewhat but not completely. [Id. at ¶ 49]
The results of the June 12, 2022 MRI showed that Plaintiff had disc herniation and disc degeneration. [Id. at ¶ 50] These issues were the cause of all of Plaintiff's symptoms. [Id. at ¶ 51] Despite these results, Plaintiff was not prescribed medication targeted to treat his nerve pain until December 2022. [Id. at ¶ 53] Plaintiff was seen by a neurologist in late 2022, who informed Plaintiff that emergency back surgery would be the only effective treatment for the disc herniation and degeneration. [Id. at ¶ 54] Plaintiff is still waiting for the BOP to provide that surgery. [Id. at ¶ 55]
In his Complaint, Plaintiff brings two claims for relief: (1) negligence pursuant to the Federal Tort Claims Act against the United States [id. at ¶¶ 69-85] and (2) deliberate indifference to serious medical needs in violation of Plaintiff's Eighth Amendment rights against Dr. Oba (in his individual capacity) and Ms. Seroski (in her individual capacity) (the “Individual Defendants”) [id. at ¶¶ 86-100]. Relevant here, Claim Two alleges that the Individual Defendants violated Plaintiff's Eighth Amendment rights by failing to provide timely medical care and deliberately choosing to not take appropriate medical action despite knowledge of a substantial risk of serious harm to Plaintiff. [Id.] Plaintiff brings this claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [Id. at ¶ 87]
On October 11, 2023, the Individual Defendants filed a partial motion to dismiss, seeking to dismiss Plaintiff's Bivens claims against Dr. Oba and Ms. Seroski under Federal Rule of Civil Procedure 12(b)(6). [#160] Plaintiff has responded [#174] and the Individual Defendants have replied [#178]. On January 5, 2024, the Individual Defendants filed a notice of supplemental authority [#183] and the Court subsequently permitted the parties to provide briefing regarding the supplemental authority [#185]. Plaintiff has filed a response addressing the supplemental authority [#186] and the Individual Defendants have replied [#187].
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. ANALYSIS
Plaintiff alleges that the Individual Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment, and asserts a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). [#1 at ¶¶ 86-100] The Individual Defendants argue that Plaintiff's Eighth Amendment claims against them should be dismissed because a Bivens remedy is not available for Plaintiff's claims, and because the Individual Defendants are entitled to qualified immunity. [#160] Because the Court determines that a Bivens remedy is not available to Plaintiff, the Court does not address the issue of qualified immunity.
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 Eighth Amendment to the United States Constitution protects a prisoner's right to “humane conditions of confinement guided by ‘contemporary standards of decency.'” Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials are required to “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). Prison officials
violate this standard when they are deliberately indifferent to an inmate's serious medical needs. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)....
“‘Deliberate indifference' involves both an objective and a subjective component. The objective component is met if the deprivation is ‘sufficiently serious.'” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A sufficiently serious medical need “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). “The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Crowson v. Washington Cnty., 983 F.3d 1166, 1178 (10th Cir. 2020).
The Supreme Court has made clear that a prisoner asserting a deliberate indifference claim has some fairly high hurdles to clear. Mere negligence on the part of his medical providers is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component [of a deliberate indifference claim] is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839).
Nonetheless, a prisoner who can clear these high hurdles, who can establish that his medical providers acted with a mindset “akin to recklessness in the criminal law,” has historically had a civil remedy against his medical providers. For a state prisoner, that remedy was provided through 42 U.S.C. § 1983. “Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). Thus, a state prison official-or any individual acting under color of state law-may be sued for violating another individual's constitutional rights. By its terms, however, Section 1983 only applies to individuals acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” 42 U.S.C. § 1983. Thus, federal officials are not covered by Section 1983.
So, without an explicit statutory remedy applicable to federal officials, are individuals acting pursuant to federal law free to violate others' constitutional rights without recourse? Historically, no. As the United States Supreme Court has explained, “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). Indeed,
“[i]n the early years of Bivens, the [Supreme] Court essentially presumed new Bivens actions were valid ‘unless the action [wa]s “defeated” in one of two specified ways'-an express declaration from Congress creating a substitute remedy or the existence of ‘special factors' that counselled ‘hesitation.'” Silva v. United States, 45 F.4th 1134, 1139 (10th Cir. 2022) (quoting Carlson, 446 U.S. at 26-27, (Powell, J., concurring in the judgment)). Following this formulation, the Supreme Court expanded the remedy recognized in Bivens to a gender discrimination claim under the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and, most relevant here, to a claim of deliberate indifference under the Eighth Amendment arising out of inadequate medical treatment to a prisoner, Carlson, 446 U.S. 14.
Despite this precedent-despite the fact that the Supreme Court held more than forty years ago in Carlson that a prisoner who can establish that his medical providers acted with a mindset akin to recklessness in the criminal law could seek a civil remedy against those medical providers-the United States argues that such a remedy no longer exists. Reluctantly, this Court, bound by the decisions of the Supreme Court, agrees.
The Supreme Court's early amicability towards Bivens actions was short-lived. The Supreme Court has since “adopted a far more cautious course” with respect to Bivens actions. Ziglar v. Abbasi, 137 S.Ct. 1843, 1855 (2017). 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.” Id.
As solidified in Ziglar, the Supreme Court adopted a two-step approach to determine whether a plaintiff could vindicate his constitutional rights in a suit for damages through a Bivens action. First, the Court asked whether the case presented “a new Bivens context” such that it was “different in a meaningful way from” Bivens, Davis, or Carlson. Id. at 1859. If so, then the Court examined whether there was any alternative remedial structure present or other “special factor counselling hesitation” in creating an implied damages remedy. Id. at 1857-58....
Just this year, however, the Supreme Court once again tightened the vice around Bivens. In Egbert v. Boule, 142 S.Ct. 1793 (2022), the Court made its strongest pronouncement yet against Bivens. The Court emphasized that “recognizing a cause of action under Bivens is ‘a disfavored judicial activity,'” and that “‘[e]ven a single sound reason to defer to Congress' is enough to require a court to refrain from creating such a remedy.” Egbert, 142 S.Ct. at 1803 (first quoting Ziglar, 137 S.Ct. at 185657 then quoting Nestle USA, Inc. v. Doe, 141 S.Ct. 1931, 1937 (2021) (plurality opinion)). The Court explained its two-step approach that “inform[s] a court's analysis of a proposed Bivens claim”-i.e., whether the
case arises in a new context and whether special factors counsel against recognizing a Bivens remedy-but clarified that “those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. at 1803. Put differently, “[a] court faces only one question [in conducting a Bivens inquiry]: 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.'” Id. at 1805 (quoting Ziglar, 137 S.Ct. at 1858).
The Egbert Court further explained that a court must determine whether there is “an alternative remedial structure” available. Id. at 1804 (quoting Ziglar, 137 S.Ct. at 1858). A court must conduct such an inquiry because “a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure'”-regardless of the extent of relief provided to the plaintiff by that remedial scheme. Id. (quoting Ziglar, 137 S.Ct. at 1858). Simply put, “[s]o long as 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.” Id. at 1807.
Applying these general principles, the Egbert Court unsurprisingly held that a Bivens remedy was not available to Plaintiff Boule against federal officials for an alleged violation of the Fourth Amendment. The Court accepted the Court of Appeals' concession that Plaintiff Boule's Fourth Amendment Claim presented a new context, and held that no Bivens remedy could exist under this context because: (1) national security was at issue, distinguishing the case from the facts of Bivens and making the case particularly ill-suited for judicial intervention, id. at 1804-06, and, independently; (2) “Congress ha[d] provided alternative remedies for aggrieved parties in [Plaintiff] Boule's position that independently foreclose a Bivens action here,” id. at 1806-07. This was true even though the “set of facts [presented did not] differ[] meaningfully from those in Bivens itself.” Id. at 1810 (Gorsuch, J., concurring); see also id. at 1805 (recognizing that “Bivens and this case . . . arguably present ‘almost parallel circumstances'” (quoting Ziglar, 137 S.Ct. at 1859)); id. at 1815 (Sotomayor, J., concurring in part and dissenting in part) (“At bottom, [Plaintiff] Boule's claim is materially indistinguishable from the claim brought in Bivens.”).
In providing guidance on how courts in this Circuit are to apply Egbert, the Tenth Circuit has explained that expanding Bivens “is an action that is impermissible in virtually all circumstances.” Silva, 45 F.4th at 1140; see also id. at 1140-41 (noting the similarity between the facts in Egbert and those in Bivens, and questioning whether any circumstances could exist where there would be no reason to think that Congress was better equipped than the courts to create a cause of action). The Tenth Circuit stated that “the Supreme Court appeared to alter the existing two-step Bivens framework” and “emphasize[d] what [it] view[ed] as the key takeaway from Egbert, namely, that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs.'” Id. at 1139, 1141 (quoting Egbert, 142 S.Ct. at 1804) (emphasis in original). The Tenth Circuit then held that the existence of the BOP Administrative Remedy Program constituted an adequate alternative remedy that foreclosed the plaintiff's Bivens claim against a BOP corrections officer. Id. at 1141. The Tenth Circuit declined to address whether there was any reason to think that Congress might be better equipped to create a damages remedy with respect to the plaintiff's claim. Id. at 1141 n.5.
Under this precedent, this Court finds that a Bivens remedy is not available to Plaintiff. Pursuant to Egbert and Silva, the existence of an alternative remedial scheme available to Plaintiff bars Plaintiff's Bivens claim. The Court acknowledges that Plaintiff's claim presents somewhat “parallel circumstances” and a “similar mechanism of injury” as that presented in Carlson-an Eighth Amendment claim for deliberate indifference to a prisoner's medical needs. But, under Egbert, factual
similarity to previous cases no longer appears sufficient to permit a Bivens claim to proceed. According to the Court in Egbert, “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances' with Bivens, Passman, or Carlson unless he also satisfies the ‘analytic framework' prescribed by the last four decades of intervening case law.” 142 S.Ct. at 1809; see also Silva, 45 F.4th at 1140 (“The Supreme Court's rejection of the plaintiff's Fourth Amendment claim, despite its close resemblance to the facts of Bivens itself, underscores the extent of the Court's disfavor towards Bivens claims.”); Washington v. Fed. Bureau of Prisons, No. CV 5:16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022) (“[Under Egbert], a court should conduct a special factors analysis even when the plaintiff's allegations closely resemble Carlson because that case ‘predates [the Court's] current approach to implied causes of action.'” (quoting Egbert, 142 S.Ct. at 1808)). This required “analytical framework” includes asking whether an “alternative remedial structure” exists. Egbert, 142 S.Ct. at 1804. As explained by the Tenth Circuit, the apparent collapsing of the two steps in the Bivens inquiry means that under Egbert's framework, courts should “dispose of Bivens claims for ‘two independent reasons: [(1)] Congress is better positioned to create remedies in the [context considered by the court], and [(2)] the Government already has provided alternative remedies that protect plaintiffs.'” 45 F.4th at 1141 (quoting Egbert, 142 S.Ct. at 1804) (emphasis in original). This second reason asks only if an alternative remedial structure exists. If so, then that alone provides an “independent means of disposing of Bivens claims,” regardless of their context. Id.
As the Tenth Circuit made clear in Silva, the availability of the BOP's Administrative Remedy Program provided “sufficient ground to foreclose [the plaintiff's] Bivens claim.” Id. Because this same administrative remedy program was available to Plaintiff regarding his allegedly inadequate [medical treatment],this Court finds that the existence of this program forecloses the availability of a Bivens remedy against BOP officials in Plaintiff's case, despite any “parallel circumstances” that may exist between it and Carlson.
Accordingly, the Court RECOMMENDS that Plaintiff's claims against [the Individual Defendants] be DISMISSED WITH PREJUDICE due to the lack of a Bivens remedy. The Court issues this Recommendation fully aware of the implications of the Recommendation's rationale. Under the rationale of this Recommendation, 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.But the Court is bound by Egbert and, in this Court's view, Egbert compels this conclusion.Noe Recommendation, 2022 WL 18587706, at *5-9. The Noe Recommendation was adopted and affirmed by the presiding District Judge-who noted the apparent shift in jurisprudence brought about by Egbert, but also separately determined that Mr. Noe's claims “present[ed] a new Bivens context and [were] factually distinct from Carlson.” Noe v. United States, No. 21-CV-01589-CNS-STV, 2023 WL 179929, *3 (D. Colo. Jan. 13, 2023), aff'd, No. 23-1025, 2023 WL 8868491 (10th Cir. Dec. 22, 2023) (unpublished).
And, as the Court explained, there is essentially always at least one rational reason to defer to Congress to create a remedy, namely that: “At bottom, creating a cause of action is a legislative endeavor . . . [and] Congress is far more competent than the Judiciary to weigh [the] policy considerations [involved with creating a cause of action]. And the Judiciary's authority to do so at all is, at best, uncertain.” Egbert, 142 S.Ct. at 1802 (quotations and citations omitted).
As explained below, the Tenth Circuit has described these two questions-whether Congress is better positioned to create remedies and whether the Government has already provided remedies-as “two independent reasons” to deny a Bivens remedy. Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022). This Court is not entirely convinced that the two questions are completely independent. One possible reading of Egbert is that the fact that the Government created alternative remedies necessarily means that Congress is better positioned to create remedies. Egbert, 142 S.Ct. at 1803 (“While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” (emphasis added)); id. at 1804 (“If there are any alternative remedial structures in place, that alone, like any special factor, is reason enough to limit the power of the Judiciary to infer a new Bivens cause of action.” (quotation omitted)). Ultimately, however, this is a distinction without a difference-postEgbert, a “yes” answer to either question necessarily disposes of the Bivens claim.
Some courts across the country have disagreed, and have interpreted Egbert as merely restating the two-step test-concluding that if a claim does not arise in a “new [factual] context” but is sufficiently similar to claims that the Supreme Court or governing Circuit caselaw had allowed in the past, then the analysis ends there and the Bivens claim may proceed even after Egbert. See, e.g., Kennedy v. Massachusetts, No. CV 22-11152-NMG, 2022 WL 17343849, at *4 (D. Mass. Nov. 30, 2022); (“[B]ecause this Court is not fashioning a new Bivens context, the Court need not consider alternative remedial structures.”); Ibuado v. Fed. Prison Atwater, No. 1:22-cv-00651-BAM(PC), 2022 WL 16811880, at *4 (E.D. Cal. Nov. 8, 2022) (“Plaintiff's medical claim does not present a new Bivens context. In Carlson v. Green, the Supreme Court found that there was an available Bivens remedy for a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment. The Court will therefore consider whether Plaintiff states a cognizable claim[] [u]nder the Eighth Amendment.” (citations omitted))[, report and recommendation vacated, 2023 WL 159568 (E.D. Cal. Jan. 11, 2023)]. Bound as it is to Supreme Court and Tenth Circuit precedent, this Court is unpersuaded that Egbert and Silva permit this method of analysis.
The BOP Administrative Remedy Program “allow[s] an inmate to seek formal review of an issue relating to any aspect of his/her confinement.” 28 C.F.R. § 542.10(a). It “applies to all inmates in institutions operated by [the BOP] ....” Id. at § 542.10(b).
Dismissal with prejudice is proper under these circumstances, as further amendment to the Complaint would be futile. See Silva, 45 F.4th at 1142 (“In sum, Plaintiff's Bivens claim is foreclosed by the availability of the BOP Administrative Remedy Program to address his complaint. For the foregoing reasons, we AFFIRM the district court's dismissal of Plaintiff's complaint WITH PREJUDICE.”).
To state the obvious, were a state prison official to do the same thing, that state prison official would be subject to civil liability pursuant to Section 1983. See Smith v. Trujillo, 2021 WL 1608829, at *2 (D. Colo. April 26, 2021) (declaring in a preEgbert decision that extended a Bivens remedy to an excessive force claim brought by a federal inmate that “[i]t would be anomalous that a state prisoner could pursue an excessive force claim against a correctional officer, but a federal prisoner could not”).
Mr. Noe appealed, and the Tenth Circuit affirmed the dismissal of his Bivens claims. Noe v. United States (“Noe”), No. 23-1025, 2023 WL 8868491 (10th Cir. Dec. 22, 2023) (unpublished). In so doing, the Tenth Circuit explained as follows:
Again, the Court retains the placement and contents of the footnotes contained in the excerpted section from the Tenth Circuit's opinion, but renumbers them to align with the numbering in the instant Recommendation.
We need not decide whether Noe's case is meaningfully different from Carlson , because in the wake of Egbert and Silva v. United States , 45 F.4th 1134 (10th Cir. 2022), the availability of the ARP is sufficient to foreclose a Bivens claim despite any factual similarity between the two. In Silva, we observed that Egbert “appeared to alter the existing two-step Bivens framework by stating that ‘those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.'” 45 F.4th at 1139 (quoting Egbert, 596 U.S. at 492). And we viewed “the key takeaway from Egbert” as being “that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs.'” 45 F.4th at 1141 (quoting Egbert, 596 U.S. at 494) (emphasis and brackets in Silva). We concluded that, in light of Supreme Court precedent, “the [BOP's Administrative Remedy Program (the “ARP”)] is an adequate ‘means through which allegedly unconstitutional actions can be brought to the attention of the BOP and prevented from recurring.'” Id. (ellipsis omitted) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001)). And “‘because Bivens is concerned solely with deterring the unconstitutional acts of individual officers,'” we determined that “the availability of the ARP offers an independently sufficient ground to foreclose a Bivens claim” brought by a federal prisoner. Id. (quoting Egbert, 596 U.S. at 498).
Read together, Egbert and Silva direct that where the government has provided an alternative remedy, a court generally should not recognize a Bivens claim even if the factual context is not meaningfully different from that in Bivens, Davis, or Carlson. And here, the ARP, which Silva says is an adequate alternative remedy, is available to Noe. Thus, Noe's Bivens claim is, as the district court concluded, not cognizable.
As Noe points out, at least one district court (outside the Tenth Circuit) has said that if the context is not meaningfully different from Bivens, Davis, or [Carlson], the analysis ends there, and the Bivens claims can proceed without the step-two inquiry into whether an adequate alternative remedy exists. See Kennedy v. Massachusetts, 643 F.Supp.3d 253, 259 (D. Mass. 2022) (“Because this court is not fashioning a new Bivens context, the Court need not consider alternative remedial structures.”).But precedential decisions of this court bind later panels unless there has been “en banc reconsideration or a superseding contrary decision of the U.S. Supreme Court.” United States v. Ensminger, 174 F.3d 1143, 1147 (10th Cir. 1999) (internal quotation marks omitted). Because neither of those conditions is satisfied, we are bound by Silva's interpretation of Egbert.Noe, 2023 WL 8868491, at *3 (emphasis in the first sentence and second paragraph added) (brackets in original omitted unless otherwise noted).
In Silva, we noted that Egbert did not overrule [Ziglar] and that there was some tension between [Ziglar's] two-step approach and Egbert's apparent collapsing of those two steps into one. See 45 F.4th at 1139 & n.4. But we “declined to address or resolve any such tension . . . because it was not necessary to dispose of the appeal before us.” Id. Likewise, here, we may decide this appeal without resolving any tension between [Ziglar] and Egbert given our reliance on Silva's interpretation of Egbert.
Noe relies on another case taking the same approach, Ibuado v. Federal Prison Atwater, No. 1:22-cv-00651, 2022 WL 16811880, at *4 (E.D. Cal. Nov. 8, 2022) (unpublished), but that decision-a magistrate judge's recommendation-was vacated by the magistrate judge before the district court ever ruled on it, see 2023 WL 159568, at *1 (E.D. Cal. Jan. 11th, 2023) (unpublished).
To summarize, in this Court's view, Egbert eviscerates the availability of a Bivens remedy for individuals in BOP custody who bring claims that fall within the scope of the BOP Administrative Remedy Program-such as Plaintiff. This is true regardless of any factual similarity between an inmate's claim and those presented in Bivens, Davis, or Carlson. Silva solidifies this interpretation within the Tenth Circuit, as reiterated by that court in Noe.
The BOP Administrative Remedy Program “allow[s] an inmate to seek formal review of an issue relating to any aspect of his/her confinement.” 28 C.F.R. § 542.10(a). It “applies to all inmates in institutions operated by [the BOP] ....” Id. at § 542.10(b).
Plaintiff argues that Egbert did not alter the two-step process for determining the availability of a Bivens remedy, and that a remedy exists in this case because Plaintiff's claims do not arise in a materially different context than Carlson. [#174 at 4-8] Plaintiff relies on the factual similarities between this case and Carlson, and points out that, postEgbert, numerous courts have permitted Bivens claims to proceed in cases involving “run-of-the-mill deliberate indifference claim[s] against BOP medical providers.” [Id. at 8-9; see also id. at 9-12 & n.2] As for the Tenth Circuit's opinion in Noe, which explicitly rejects Plaintiff's basic argument here, Plaintiff notes that the opinion is unpublished and not precedential, and asserts that it is wrongly decided. [#186 at 1-2] The Court appreciates the argument and thorough research by Plaintiff's counsel, and is aware that Mr. Noe was proceeding pro se in the matter discussed at length above. But the Court simply cannot agree that, under Egbert and Silva, the factual similarities between this case and Carlson suffice to allow a Bivens claim to proceed. As it did in Silva (and, persuasively, in Noe), the availability of the BOP Administrative Remedy Program provides an “independently sufficient ground to foreclose [Plaintiff's] Bivens claim.” Silva, 45 F.4th at 1141; Noe, 2023 WL 8868491, at *3; see also Egbert, 596 U.S. at 492-93 (explaining that “a new context arises when there are potential special factors that previous Bivens cases did not consider,” and that an alternative remedial structure is such a “special factor” (quotation omitted)); id. at 500-01 (citing Carlson's analysis of alternative remedies as an example of outdated analysis that “predates [the Court's] current approach to implied causes of action and diverges from the prevailing framework in . . . important ways”).
Unpublished decisions from the Tenth Circuit are not binding, but the Court may consider them for their persuasive value. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1240 n.7 (10th Cir. 2016); 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”).
This Court is keenly aware of, and troubled by, the “fundamentally unjust legal state of affairs” that flows from this Recommendation's rationale. Straker v. Stancil, No. 20-CV-3478-WJM-STV, 2023 WL 4962147, at *4 (D. Colo. Aug. 3, 2023) (“The slow and steady evisceration of Bivens by the Supreme Court over the years, coupled with the persistent failure on the part of Congress to provide federal prisoners like [Plaintiff] with a statutory remedy to address intentional official misconduct as alleged herein, has created a fundamentally unjust legal state of affairs. Congress must act promptly to rectify this gaping void in the remedies available to federal prisoners subjected to unconscionable misconduct on the part of federal corrections officers.”). For decades, the fact that “individual instances of discrimination or law enforcement overreach”-such as those encountered by federal prisoners-are, “due to their very nature[,] . . . difficult to address except by way of damages actions after the fact” was of “central importance” to the Supreme Court in assessing the availability of a Bivens claim. Ziglar, 582 U.S. at 144. But the Supreme Court has since made perfectly clear that asking whether a wrong, even one of constitutional magnitude, will otherwise go unredressed is no longer a “relevant question” to this analysis. Egbert, 596 U.S. at 493 (citing Bush v. Lucas, 462 U.S. 367, 388 (1983)); but see Bell v. Hood, 327 U.S. 678, 684 (1946) (“[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”); Marbury v. Madison, 5 U.S. 137, 163 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”). As a result, this Court, bound as it is by Egbert and by congressional inaction, respectfully RECOMMENDS that the Motion be GRANTED and that Plaintiff's claims against Jennifer Seroski and Dr. D. Oba be DISMISSED WITH PREJUDICE due to the lack of a Bivens remedy.
Dismissal with prejudice is proper under these circumstances, as further amendment to the Complaint would be futile. See Silva, 45 F.4th at 1142 (“In sum, Plaintiff's Bivens claim is foreclosed by the availability of the BOP Administrative Remedy Program to address his complaint. For the foregoing reasons, we AFFIRM the district court's dismissal of Plaintiff's complaint WITH PREJUDICE.”).
IV. CONCLUSION
For the reasons set forth above, the Court respectfully RECOMMENDS that the Individual Defendant's Motion to Dismiss Bivens Claims be GRANTED and that Plaintiff's claims against Jennifer Seroski and Dr. D. Oba be DISMISSED WITH PREJUDICE.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).