CAUTHEN

v.

BLACKMON

Blackmon and Davis (Doc. 48; Blackmon Motion), and one by Defendant Wise (Doc. 57; Wise Motion).² Plaintiff has responded to the motions (Doc. 49; Pl. Blackmon Resp.) (Doc. 59; Pl. Wise Resp.). As such, the motions are ripe for this Court’s review.

II. Motion to Dismiss Standard

Under the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for a plaintiff’s “failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, the court must accept the plaintiff’s allegations as true, liberally construing those by a plaintiff proceeding pro se, but need not accept as true legal conclusions. Iqbal,

556 U.S. at 678. Though detailed factual allegations are not required, Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A plaintiff should allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

III. Analysis

Defendants jointly argue, in nearly identical motions,³ that Plaintiff’s excessive force claim is not cognizable under Bivens after the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and even if it is, Bivens does not extend to official-capacity claims. Def. Motions at 3, 12. Alternatively, Defendants invoke qualified immunity. Id. at 10, 12. Plaintiff’s responses to

caused by . . . these Defendants [violated his] 8th Amendment rights.” Pl. Wise Resp. at 1. As an initial matter, however, the Court notes that, if an excessive force claim is cognizable under Bivens, Plaintiff’s claims against Defendants in their official capacities and his requests for injunctive relief would be subject to dismissal. In a Bivens action, the appropriate remedy is monetary damages, not injunctive relief. See Carlson v. Green, 446 U.S. 14, 21 (1980) (recognizing Bivens extends damages remedies against individuals). Additionally, a Bivens claim may proceed against only an individual actor, not against an entity or agency. F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994).

A. Excessive Force Under Bivens5

In Bivens, the Supreme Court recognized a violation of a citizen’s Fourth Amendment right to be free from unreasonable searches and seizures “gives rise to a cause of action for damages” against the offending federal officers. 403 U.S. at 389. See also Carlson, 446 U.S. at 18 (“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.”). After Bivens, the Supreme Court has recognized an implied damages action for the violation of one’s constitutional rights only in two other contexts: gender discrimination in the workplace; and deliberate indifference to serious medical needs in prison. See Ziglar, 137 S. Ct. at 1854- 55 (citing Davis v. Passman, 442 U.S. 228 (1979); Carlson, 446 U.S. at 21). Of particular relevance here, in Carlson, the Court held a Bivens remedy extended to a claim alleging prison officials violated an inmate’s Eighth

Amendment right to receive adequate medical care, even though the plaintiff also could have sued under the Federal Tort Claims Act (FTCA). 446 U.S. at 19. The Court noted, “[W]e have here no explicit congressional declaration that

While recognizing the continued vitality of Bivens and its progeny, the Ziglar Court instructed that lower courts are to exercise “caution before

First, a court should determine “whether [the] case presents a new Bivens context,” or one that “diff[ers] in a meaningful way from previous Bivens cases decided by th[e] Court.” Id. at 1859. See also Hernandez, 140 S. Ct. at 743. Second, if a court determines a case does present a new context, then the court should consider whether “special factors” counsel hesitation in extending a damages remedy. Ziglar, 137 S. Ct. at 1857, 1861-62. i. New Context The Supreme Court has not articulated “an exhaustive list of differences that [would be] meaningful enough to make a given context a new one,” but, in Ziglar, it set forth some relevant factors: the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. Id. at 1859-60. Though the Court in Ziglar identified the “constitutional right at issue” as a relevant consideration, the Court later clarified that the constitutional right at issue cannot alone be the determinative consideration. Hernandez, 140 S. Ct. at 743.

For instance, in Hernandez, the plaintiffs argued their Fourth and Fifth Amendment claims did not present “a new context because Bivens and Davis involved claims under those same two amendments.” Id. The Court rejected that argument because the nature of the claims in Hernandez was markedly different than those in Bivens or Davis. The plaintiffs in Hernandez sought redress from a Border Patrol agent for the cross-border shooting of their son, a Mexican national, which resulted in his death. Id. at 740. The Court noted, “[O]nce we look beyond the constitutional provisions involved in Bivens, Davis,

and the present case, it is glaringly obvious that [the plaintiffs’] claims involve a new context.” Id. at 743. In this case, not only is the constitutional provision the same as that involved in Carlson, but other factors the Ziglar Court identified persuade this

Court that Plaintiff’s excessive force claim does not present a new context. The rank of the officers involved is substantially similar—federal correctional employees. Additionally, judicial guidance in the area of prison conditions and the treatment of prisoners is extensive, meaning there would be no “disruptive intrusion by the Judiciary into the functioning of other branches.” Ziglar, 137 S. Ct. at 1860. In fact, one of the preeminent Supreme Court prison-condition opinions involves a Bivens claim. See Farmer v. Brennan, 511 U.S. 825, 829 (1994) (explaining the plaintiff’s Bivens claim alleged federal prison officials violated his Eighth Amendment rights by their deliberate indifference to his safety). As the Court recognized in Bivens, “That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition.” 403 U.S. at 395. The same proposition holds true in this context: it should hardly be surprising to federal prison officials that courts and Congress authorize damages awards to vindicate the violation of an inmate’s Eighth Amendment right to be free from cruel and unusual punishments, at least when the prisoner sustains a physical injury. See, e.g., Farmer, 511 U.S. at 828 (“A prison official’s “deliberate indifference” to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”); 28 U.S.C. § 1346(b)(2) (“No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury . . . .”); 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury . . . .”). That Plaintiff’s excessive force claim implicates the same constitutional amendment as did the plaintiff’s deliberate indifference claim in Carlson, while not solely determinative, cannot be disregarded, as Defendants suggest. On this point, the Court finds persuasive a district court order from this Court’s Ocala Division, Rivera v. Lebron, No. 5:15-cv-317-RBD-PRL, Doc. 103 (M.D. Fla. Oct. 29, 2021) (Ocala Order). In that case, a federal prisoner alleged correctional officers used excessive force against him when they were trying to prevent him from disposing of contraband. Ocala Order at 2. The plaintiff offered evidence showing officers caused him serious injuries. Id. at 4-5. In Rivera, the court found the plaintiff’s claim, though “not identical to the deliberate claim in Carlson,” did not arise in a new context. Id. at 11. The court was unpersuaded by an argument that a “divergent legal theor[y] or factual scenario[]” created a meaningful distinction between the excessive force claim raised there and the deliberate indifference claim raised in Carlson. Id.

at 12. The court explained, “under either theory . . . an inmate must establish . . . both an objective deprivation or injury and a subjectively culpable state of mind.” Ocala Order at 13 (citing Thomas v. Bryant, 614 F. 3d 1288, 1304 (11th Cir. 2010); Swain v. Junior, 961 F. 3d 1276, 1285 (11th Cir. 2020)).

Defendants also rely heavily on a Fifth Circuit opinion, which held a plaintiff’s Fourth Amendment unlawful arrest claim presented a new context because it was different in “several meaningful ways” from the Fourth Amendment claim presented in Bivens. See Def. Motions at 5 (citing Byrd v. Lamb, 990 F. 3d 879, 882 (5th Cir. 2021)). In declining to extend a damages remedy in Byrd, the Fifth Circuit emphasized significant differences between that plaintiff’s Fourth Amendment claim and the Fourth Amendment claim in Bivens: the location of the arrest (public property in Byrd versus private property in Bivens); the nature and extent of the personal invasion (threats and brandishing of a weapon in Byrd versus a warrantless arrest followed by manacling the plaintiff in front of family and then later strip-searching him in Bivens); and the nature of the dispute (personal in Byrd versus official in Bivens). Id.7

The undersigned finds the Fifth Circuit opinion inapposite. The factual differences the Byrd court highlighted were material in the context of the constitutional analysis presented in that case as compared to the context presented in Bivens. For instance, in the Fourth Amendment context, it is relevant whether a person is inside his home or on public property when officers encounter him. See, e.g., Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it comes to the Fourth Amendment, the home is first among equals.”). In the context of prisoners’ rights, however, it is well “settled that the

Id. (internal citations omitted). The Supreme Court also has suggested in dicta that a Bivens remedy would extend to an Eighth Amendment claim by a federal prisoner against a federal officer regardless of the precise theory underlying the claim. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (“If a federal prisoner in a BOP facility alleges a[n Eighth Amendment] deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity.”). See also Minneci v. Pollard, 565 U.S. 118, 126 (2012) (holding the employment status of the defendant—a private company versus the federal government in Carlson—was a “critical difference” in the analysis whether a

Bivens remedy would extend to a prisoner’s claim that a privately operated prison violated his Eighth Amendment rights). For the reasons articulated, the Court finds Plaintiff’s excessive force claim does not present a new Bivens context. Finding as much, the Court is not required to proceed to the second step in the Ziglar analysis. However, in an abundance of caution, the Court will do so. ii. Special Factors Defendants argue Plaintiff’s access to the BOP’s grievance procedure and his ability to file suit against the United States under the FTCA are factors that counsel hesitation in extending a Bivens remedy here. Def. Motions at 8- 9. The Supreme Court has not defined the phrase, “special factors counseling hesitation,” though in prior decisions where the Court declined to extend

Bivens remedies to new contexts, it found significant that the plaintiff(s)/claimant(s) had alternative avenues through which they could seek administrative or judicial relief for the alleged constitutional violation(s). See Bush v. Lucas, 462 U.S. 367, 390 (1983) (Marshall and Blackmun, J.,

concurring) (noting the case would have been different “if Congress had not created a comprehensive scheme that was specifically designed to provide full compensation to civil service employees who are discharged or disciplined in violation of their First Amendment rights”); Chappell v. Wallace, 462 U.S. 296, 302 (1983) (“Military personnel, for example, may avail themselves of the procedures and remedies created by Congress in . . . the Uniform Code of Military Justice.”); Schweiker v. Chilicky, 487 U.S. 412, 425-26 (1988) (listing the numerous laws Congress passed to protect “persons affected by incorrect [social security] eligibility determinations”); Malesko, 534 U.S. at 72 (noting the claimant conceded at oral argument that “alternative remedies” were available, including a state-court negligence suit); Wilkie v. Robbins, 551 U.S. 537, 553 (2007) (noting the plaintiff had administrative and judicial processes available to him for “virtually all of his complaints”); Minneci, 565 U.S. at 125-

26 (finding the availability of state tort law or administrative remedies provided a “convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages”); Ziglar, 137 S. Ct. at 1862-63 (noting the alien detainees could have sought injunctive or habeas relief).

For the reasons cogently and persuasively offered in the Rivera order, the Court disagrees that the BOP grievance procedure or a claim under the FTCA provide sufficient alternatives for a prisoner to seek redress for an alleged Eighth Amendment violation. See Ocala Order at 15-23. The Court emphasizes some key considerations from the Rivera order. Notably, the Supreme Court itself has held “the FTCA is not a sufficient protector of the citizens’ constitutional rights,” at least in the context of a prisoner who suffers physical injury or death as a result of a federal officer’s violation. Carlson, 446 U.S. at 23. In Carlson, the Court observed, “nothing in the [FTCA] or its legislative history . . . show[s] that Congress meant to pre-empt a Bivens remedy or to create an equally effective remedy for constitutional violations.” Id. at 19. In fact, the Court noted, when Congress amended the FTCA in 1974— after Bivens was decided—the congressional comments “made it crystal clear that” the relevant provision “should be viewed as a counterpart to the Bivens case and its [progeny].” Id. (quoting S. Rep. No 93-588 at 3). Second, a Bivens claim is intended to deter federal officials from exceeding their authority. Id. at 21. Neither the BOP nor the FTCA has such a direct deterrent effect on individual federal officers, who are subject to “personal financial liability” under Bivens. Id. See also Minecci, 565 U.S. at 126 (finding significant that the defendant was a private company in refusing to extend a Bivens remedy because the plaintiff, a prisoner, could pursue a negligence action in state court, whereas federal prisoners “ordinarily cannot bring state-law tort actions against federal employees (emphasis in original)). The Supreme Court also has observed that Congress, in enacting the Prison Litigation Reform Act (PLRA), intended that its exhaustion requirement would apply not only to state prisoners suing under § 1983 but also to federal prisoners suing under Bivens. Porter v. Nussle, 534 U.S. 516, 524 (2002) (“[U]nlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all ‘action[s] ... brought with respect to prison conditions,’ whether under § 1983 or ‘any other Federal law.’”).⁸ In holding that the PLRA exhaustion requirement applies to all suits about prison life, regardless of whether brought by state prisoners or federal prisoners, the Court noted it “generally presume[s] that Congress expects its statutes to be read in conformity with th[e] Court’s precedents.” Id. at 528 (quoting United

States v. Wells, 519 U.S. 482, 495 (1997) (alterations in original)). In sum, even if the Court were to conclude Plaintiff’s excessive force claim arises in a new context under Bivens, the Court finds no special factors would counsel hesitation in extending a Bivens remedy here.⁹

B. Qualified Immunity

Defendants invoke qualified immunity, asserting Plaintiff fails to state a plausible Eighth Amendment violation against them. Def. Motions at 10. Defendants Davis and Wise contend Plaintiff wholly fails to lodge any allegations against them, see Blackmon Motion at 11-12; Wise Motion at 11- 12, while Defendant Blackmon contends Plaintiff does not allege Blackmon

“acted sadistically and maliciously for the purpose of causing harm,” see Blackmon Motion at 12. An officer sued in his individual capacity “is entitled to qualified immunity for his discretionary actions unless he violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Black v. Wigington, 811 F. 3d 1259, 1266 (11th Cir. 2016) (quoting Case v. Eslinger, 555 F. 3d 1317, 1325 (11th Cir. 2009)). Qualified immunity allows officers to exercise their official duties without fear of facing personal liability. Alcocer v. Mills, 906 F. 3d 944, 951 (11th Cir. 2018). The doctrine protects all but the plainly incompetent or those who knowingly violate an inmate’s constitutional rights. Id. Upon asserting a qualified immunity defense, a defendant bears the initial burden to demonstrate he was acting in his discretionary authority at the relevant times. Dukes v. Deaton, 852 F. 3d 1035, 1041-42 (11th Cir. 2017). Defendants carry their burden. Thus, the burden shifts to Plaintiff to point to allegations demonstrating the violation of a clearly established constitutional right. Alcocer, 906 F. 3d at 951. “Because [Bivens] ‘requires proof of an affirmative causal connection between the official’s acts or omissions and the alleged constitutional deprivation,’ each defendant is entitled to an independent qualified-immunity analysis as it relates to his or her actions and omissions.” Id. (quoting Zatler v. Wainwright, 802 F. 2d 397, 401 (11th Cir. 1986) (per curiam)). Plaintiff does not allege Defendants Wise or Davis personally used force against him or were present when Defendant Blackmon allegedly attacked him. See Am. Compl. at 5. In fact, Plaintiff does not assert Defendants Wise or

Davis did anything that could liberally be construed as a constitutional violation. On the contrary, Plaintiff alleges Defendant Wise summoned Defendant Blackmon to extract Plaintiff from his cell to bring him to medical because he was having chest pains. Id. Because Plaintiff does not state a claim against Defendants Wise or Davis, they are entitled to qualified immunity. However, Plaintiff alleges Defendant Blackmon entered his cell and assaulted him so badly that Blackmon broke his arm in two places—all while he was having a heart attack. Id. The Eighth Amendment “prohibits the unnecessary and wanton infliction of pain, or the infliction of pain totally without penological justification.” Ort v. White, 813 F. 2d 318, 321 (11th Cir. 1987). Plaintiff alleges Defendant Blackmon assaulted him for no reason. As such, Plaintiff states an Eighth Amendment violation, and Defendant Blackmon is not entitled to qualified immunity at this juncture. See Skrtich v. Thornton, 280 F. 3d 1295, 1301 (11th Cir. 2002) (“In this Circuit, a defense of qualified immunity is not available in cases alleging excessive force in violation of the Eighth Amendment, because the use of force ‘maliciously and sadistically to cause harm’ is clearly established to be a violation of the Constitution.”).

Plaintiff does not use the terms “maliciously” or “sadistically” in describing Defendant Blackmon’s conduct, but magic words are not required to state a plausible claim for relief. Notably, Plaintiff does not allege he was acting out or disobeying orders, which may have prompted Defendant

Blackmon to use some force against him. Cf. Whitley v. Albers, 475 U.S. 312, 320 (1986) (noting officers are justified in using some force when necessary “to maintain or restore discipline”). Liberally construing Plaintiff’s allegations, as this Court must do, the Court finds Plaintiff alleges facts that, accepted as true,

permit the reasonable inference Defendant Blackmon violated his constitutional rights. Thus, the claim may proceed. Accordingly, it is ORDERED:

1. Defendants Blackmon and Davis’s motion to dismiss (Doc. 48) is GRANTED in part and DENIED in part. The motion is GRANTED to the extent Defendant Davis is entitled to qualified immunity for Plaintiff’s failure to state a plausible claim against Davis; Plaintiffs official-capacity claims are dismissed; and Plaintiffs requests for injunctive relief are dismissed. The motion is DENIED to the extent Plaintiff's excessive force claim against Defendant Blackmon survives.
2. Defendant Wise’s motion to dismiss (Doc. 57) is GRANTED.
3. The Clerk is directed to terminate Defendants Davis and Wise as parties to this action. 4, Defendant Blackmon must answer the amended complaint within twenty days of the date of this Order. The Court will thereafter set a discovery period and other deadlines.
5. Within fifteen days after the close of discovery, Plaintiff must provide Defendant Nurse Mathew’s full name or other identifying information to enable the United States Marshals Service to serve Defendant Mathews. If Plaintiff is unable to identify Defendant Mathews for service by this deadline, the Court will dismiss Defendant Mathews from this action. DONE AND ORDERED at Jacksonville, Florida, this 30th day of March, 2022.

Zi NO - KM) Armas

United States District Judge

Jax-6 3/30 c: Reco Valarie Cauthen Counsel of Record