HUCKABY v. BRADLEY et al.

Filing 55

OPINION. Signed by Judge Noel L. Hillman on 4/30/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LANNY SCOTT HUCKABY,
Plaintiff,
v.
PAUL E. BRADLEY, as an
Individual and in his
official capacity as Employee
of Department of the Navy,
DEXTER ISAIAH CHRONIS,
as an Individual and in his
official capacity as Employee
of Department of the
Airforce, ANTONIO CORTEZ
DAVIS, as an Individual and
in his official capacity as
Employee of Department of the
Airforce, KEVIN LAMAR EVANS,
as an Individual and in his
official capacity as Employee
of Department of the
Airforce, TERRANCE TYRONE
JONES, as an Individual and
in his official capacity as
Employee of Department of the
Airforce, CELSO MALDONADO,
as an Individual and in his
official capacity as Employee
of Department of the
Airforce, XAIMARA OTERO–
ORTIZ, as an Individual and
in her official capacity as
Employee of Department of the
Airforce, RANDALL JAMES
PRILL, as an Individual and
in his official capacity as
Employee of Department of the
Airforce, BRYAN G. REESER, as
an Individual and in his
official capacity as Employee
of Department of the
Airforce, KENNETH FRANCES

No. 1:16-cv-4327 (NLH/KMW)
OPINION

ROTHWEIN, as an Individual
and in his official capacity
as Employee of Department of
the Airforce, MICHAEL EDDIE
RODRIGUEZ, as an Individual
and in his official capacity
as Employee of Department of
the Army, and OFFICER BOVA,
as an Individual and in his
official capacity as Employee
of Department of the Army or
Department of the Navy or
Department Of the Airforce,
Defendants.

APPEARANCES:
DAVID P. SCHROTH
795 PARKWAY AVENUE
SUITE A-3
TRENTON, NJ 08618
On behalf of Plaintiff
ROBERT E. SPITZER
MAN NEILL O'NEILL & RIVELES LLC
240 CEDAR KNOLLS ROAD
SUITE 104
CEDAR KNOLLS, NJ 07927
On behalf of Defendant Paul E. Bradley
DAVID V. SIMUNOVICH
OFFICE OF THE U.S. ATTORNEY
DISTRICT OF NEW JERSEY
970 BROAD STREET
SUITE 700
NEWARK, NJ 07102
On behalf of Defendants Dexter Isaiah Chronis, Antonio
Cortez Davis, Kevin Lamar Evans, Terrance Tyrone Jones,
Celso Maldonado, Xaimara Otero-Ortiz, Bryan G. Reeser,
Michael Eddie Rodriguez, and Officer Bova
DANIEL BIDDLE MCMEEN
JAMES BRENDAN JOHNSTON
GOLDEN ROTHSCHILD SPAGNOLA LUNDELL BOYLAN & GARUBO
1011 ROUTE 22 WEST
2

SUITE 300
BRIDGEWATER, NJ 08007
On behalf of Defendants Randall James Prill and Kenneth
Frances Rothwein

HILLMAN, District Judge
This is a purported Bivens 1 action under the Fifth Amendment
Due Process Clause concerning the medical treatment Plaintiff
Lanny Scott Huckaby received by Defendants, various military
personnel, at a New Jersey military base. 2

Before the Court are

three related motions to dismiss: (1) by Defendants Randall
James Prill and Kenneth Frances Rothwein, (2) by Defendants
Dexter Isaiah Chronis, Antonio Cortez Davis, Kevin Lamar Evans,
Terrence Tyrone Jones, Celso Maldonado, Xaimara Otero-Ortiz,
Bryan G. Reeser, Michael Eddie Rodriguez, and Charles Bova, and
(3) by Defendant Paul E. Bradley.

For the reasons that follow,

the Court finds Plaintiff cannot sustain a Bivens cause of
action.

The Court will grant all three motions to dismiss.
I.

The Court takes its facts from Plaintiff’s September 18,
2017 Amended Complaint.

On July 15, 2014, Plaintiff was making

a delivery to the Joint Base McGuire-Fort Dix-Lakehurst military

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
2

Plaintiff’s Amended Complaint identifies Defendants as
“officers/military personnel” who were members of the 87th
Security Forces Squadron.
3

base in Burlington County, New Jersey.

While at the military

base, Plaintiff advised military personnel there were handguns
in the trailer attached to his vehicle.
around 4:00 PM by Defendants.

Plaintiff was arrested

As he was being taken into

custody, Plaintiff was instructed to remove his footwear.
Plaintiff was then placed in a holding cell with his feet
clothed only in socks.
At the time, Plaintiff had an open diabetic wound on the
bottom of his right foot.

Plaintiff advised Defendants of this

wound and that he could not be without footwear or additional
bandages to protect the wound from infection.

He further

explained that he was diabetic and that diabetic wounds often do
not heal and are susceptible to infection.

Plaintiff

specifically asked Defendants to retrieve his shoes and bandages
to protect the wound.
Plaintiff alleges he was in the holding cell from
approximately 4:00 PM to midnight.

Over the course of this

time, Plaintiff’s wound was visibly bloody, and blood seeped
through his sock, leaving marks on the floor.

Defendants

retrieved gauze and bandages, but they refused to provide them
to Plaintiff to protect his wound.

Defendants refused to give

Plaintiff his shoes, and further refused to contact medical care
providers to determine the proper care for Plaintiff’s wound.

4

Plaintiff’s wound ultimately became infected.

Plaintiff

became visibly ill, and shortly after his release, Plaintiff
sought medical care.
infection worsened.

Over the next weeks and months, the
Plaintiff was consequently hospitalized

from October 12, 2014 through November 7, 2014.

Over the course

of the next year, the infection eventually spread to Plaintiff’s
right leg bone.

In November 2015, Plaintiff’s lower right

extremity was amputated just below the right knee.

Plaintiff

also suffered side effects, including septic shock and kidney
damage.

During his hospitalization, Plaintiff also went into

cardiac arrest and is believed to have died before being
resuscitated and revived by medical providers.
Plaintiff’s Amended Complaint brings one count against
Defendants: a Bivens claim for violation of the Fifth Amendment
right to due process.

Plaintiff argues Defendants “completely

rejected the Plaintiff’s request for medical assistance; denied
the Plaintiff access to medical care, which he specifically
requested; and denied the Plaintiff’s request for simple BandAids, gauze and lace-less Croc shoes to protect the diabetic
seeping wound on his right foot.”

The Amended Complaint

alleges:
The Due Process Clause of the Fifth Amendment to the
United States Constitution does not allow defendants to
inflict punishment on pretrial detainees. The denial of
medical care when the Defendants were fully informed of
the Plaintiff’s medical condition and the Defendants’
5

abhorrent refusal to assist and protect the Plaintiff
are tantamount to the infliction of punishment without
due process.
Plaintiff asks this Court for compensatory damages, punitive
damages, and attorneys’ fees and costs.
Defendants filed their motions to dismiss on October 5,
2017 and October 6, 2017. 3
II.
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1331, as it is brought as a Bivens action and under the
Fifth Amendment to the United States Constitution. 4
III.
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.

3

Defendants previously filed motions to dismiss on August
17, 2017. Plaintiff filed opposition to those motions,
attaching an Amended Complaint and asking the Court to permit
the filing of the Amended Complaint. As Plaintiff was permitted
to amend as a matter of course at that time, the Court’s
September 12, 2017 Order dismissed the August 17, 2017 motions
as moot, directed the filing of the Amended Complaint, and
allowed the refiling of motions to dismiss in response to the
Amended Complaint.
4

Plaintiff pleads this Court further has diversity
jurisdiction pursuant to 28 U.S.C. § 1332. However, Plaintiff
has not properly pleaded diversity jurisdiction, and the Court
consequently rests its jurisdiction upon 28 U.S.C. § 1331.
6

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
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) (alteration in original)
(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,
47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a
court must take three steps.
First, the court must
“tak[e] note of the elements a plaintiff must plead to
state a claim.”
Second, the court should identify
allegations that, “because they are no more than
conclusions, are not entitled to the assumption of
truth.” Third, “whe[n] there are well-pleaded factual
allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations
in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 664, 675, 679 (2009)).

7

A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.”
Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416
U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in
the coffin for the ‘no set of facts’ standard that applied to
federal complaints before Twombly.”).

“A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
face.’”

Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).
IV.
The Court’s analysis begins and ends with the 2017 United
States Supreme Court decision Ziglar v. Abbasi, 137 S. Ct. 1843
(2017).

The Court begins with a brief look at the history of

Bivens actions, as the Supreme Court did in Ziglar.
While 42 U.S.C. § 1983 “entitles an injured person to money
damages if a state official violates his or her constitutional
rights[,] Congress did not create an analogous statute for
federal officials.”

Id. at 1854.

Rather, the Supreme Court

decided in Bivens that, “even absent statutory authorization, it
8

would enforce a damages remedy to compensate persons injured by
federal officers who violated the prohibition against
unreasonable search and seizures.”

Id.

Since that time, the Supreme Court has “recognized what has
come to be called an implied cause of action in two cases
involving other constitutional violations” after recognizing
such an action in Bivens: Davis v. Passman, 442 U.S. 228 (1979)
and Carlson v. Green, 446 U.S. 14 (1980).

In Davis, the Supreme

Court “held that the Fifth Amendment Due Process Clause
gave . . . a damages remedy for gender discrimination.”
137 S. Ct. at 1854-55.

Ziglar,

In Carlson, the Supreme Court “held that

the Eighth Amendment Cruel and Unusual Punishments Clause
gave . . . a damages remedy for failure to provide adequate
medical treatment.”

Id. at 1855.

Bivens, Davis, and Carlson

are “the only instances in which the Court has approved of an
implied damages remedy under the Constitution.”

Id.

Over time, the Court’s approach to recognizing implied
causes of actions changed, and “the Court has made clear that
expanding the Bivens remedy is now a ‘disfavored’ judicial
activity.”

Id. at 1857.

There is a two-step framework for

determining whether there is a cognizable Bivens claim.

First,

the court must determine whether the case presents a new Bivens
context.

If so, the court must determine whether special

9

factors counsel hesitation.

If so, a Bivens remedy is

unavailable.

A. New Bivens Context
The Supreme Court defined the analysis for “determining
whether a case presents a new Bivens context” as follows:
If the case is different in a meaningful way from
previous Bivens cases decided by this Court, then the
context is new.
Without endeavoring to create an
exhaustive list of differences that are meaningful
enough to make a given context a new one, some examples
might prove instructive.
A case might differ in a
meaningful way because of the rank of the officers
involved; the constitutional right at issue; the
generality or specificity of the official action; the
extent of judicial guidance as to how an officer should
respond to the problem or emergency to be confronted;
the statutory or other legal mandate under which the
officer was operating; the risk of disruptive intrusion
by the Judiciary into the functioning of other branches;
or the presence of potential special factors that
previous Bivens cases did not consider.
Id. at 1859-60.
In considering whether there is a new Bivens context, the
Supreme Court has advised that “even a modest extension is still
an extension” and that even small differences can be “meaningful
ones” that would create a new Bivens context, although some may
“be so trivial that they will not suffice to create new Bivens
context.”

Id. at 1864, 1865.

10

In the case before this Court, Plaintiff seeks a Bivens
remedy for a pretrial detainee alleging a Fifth Amendment due
process claim against military personnel for deliberate
indifference to a serious medical need.
be a new Bivens context.

The Court finds this to

This case does not fall within the

confines of Bivens itself, which concerned a Fourth Amendment
search and seizure.

While Davis allowed a Bivens claim under

the Fifth Amendment Due Process Clause, that was in the context
of an administrative assistant suing a Congressman for gender
discrimination, starkly different facts than are present here.
There is no employment relationship, nor any kind of claim for
discrimination; the fact that this suit is also brought under
the Fifth Amendment Due Process Clause does not bring it within
the confines of Davis.
Carlson concerned an Eighth Amendment Cruel and Unusual
Punishment claim for failure to provide adequate medical
treatment.

While there are similarities here, as the gravamen

of Plaintiff’s claim is inadequate medical care, there are also
meaningful, non-trivial differences present.

Carlson was an

Eighth Amendment claim, while Plaintiff brings a Fifth Amendment
claim.

See id. at 1864 (“The constitutional right is different

here, since Carlson was predicated on the Eighth Amendment and
this claim is predicated on the Fifth.”).

The plaintiff in

Carlson was also an inmate at a federal prison, unlike Plaintiff
11

here, who identifies himself at the time as a pretrial detainee.
Defendants in this case are also all military personnel, unlike
the defendants in Bivens, Davis, and Carlson.
The Court finds Plaintiff’s Fifth Amendment claim is a new
Bivens context, as it is meaningfully different from Bivens,
Davis, and Carlson.

Accordingly, the Court now considers

whether there are special factors present that counsel
hesitation in this Court recognizing a Bivens remedy.
B. Special Factors Counselling Hesitation
“[A] Bivens remedy will not be available if there are
‘special factors counselling hesitation in the absence of
affirmative action by Congress.’”

Id. at 1857.

[The Supreme] Court has not defined the phrase “special
factors
counselling
hesitation.”
The
necessary
inference, though, is that the inquiry must concentrate
on whether the Judiciary is well suited, absent
congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages action
to proceed. Thus, to be a “special factor counselling
hesitation,” a factor must cause a court to hesitate
before answering that question in the affirmative.
Id. at 1857-88.
It is not necessarily a judicial function to establish
whole categories of cases in which federal officers must
defend against personal liability claims in the complex
sphere of litigation, with all of its burdens on some
and benefits to others. It is true that, if equitable
remedies prove insufficient, a damages remedy might be
necessary to redress past harm and deter future
violations.
Yet the decision to recognize a damages
remedy requires an assessment of its impact on
governmental operations systemwide.
Those matters
include the burdens on Government employees who are sued
12

personally, as well as the projected costs and
consequences to the Government itself when the tort and
monetary liability mechanisms of the legal system are
used to bring about the proper formulation and
implementation of public policies.
These and other
considerations may make it less probable that Congress
would want the Judiciary to entertain a damages suit in
a given case.
Id. at 1858.
The Court further advised that “if there is an alternative
remedial structure present in a certain case, that alone may
limit the power of the Judiciary to infer a new Bivens cause of
action.”

Id.

“For if Congress has created ‘any alternative,

existing process for protecting the [injured party’s] interest’
that itself may ‘amoun[t] to a convincing reason for the
Judicial Branch to refrain from providing a new and freestanding
remedy in damages.’”

Id. (alterations in original) (quoting

Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).

The Court

addresses this consideration first.
Plaintiff has another case pending before this Court,
brought pursuant to the Federal Tort Claims Act (Docket No. 176332).

In Carlson, the Supreme Court found no authority “in the

Federal Tort Claims Act (FTCA) or its legislative history to
show that Congress meant to pre-empt a Bivens remedy or to
create an equally effective remedy for constitutional
violations.”

446 U.S. at 19.

However, the Southern District of

New York reconsidered this in light of Ziglar:

13

Although the Supreme Court considered the existence
of the FTCA remedy in Carlson, and nevertheless created
an implied private right of action in that case, the
Supreme Court’s recent decision in Ziglar indicates that
hesitation is nevertheless appropriate today.
In
emphasizing that “expanding the Bivens remedy is now
considered a ‘disfavored’ judicial activity,” the
Supreme Court observed that its conclusion in Carlson
“might have been different if [it] were decided today.”
Therefore, despite the fact that previously, the FTCA
and Bivens were considered “parallel, complementary
causes of action,” the Court believes that, in light of
the Supreme Court’s recent decision in Ziglar, the
existence of the alternative remedial structure is
nevertheless
a
factor
counselling
hesitation
in
extending an implied damages remedy . . . .
Morgan v. Shivers, No. 14-7921, 2018 WL 618451, at *6 (S.D.N.Y.
Jan. 29, 2018).

But see Linlor v. Polson, 263 F. Supp. 3d 613,

620-21 (E.D. Va. 2017) (deciding, after the Ziglar decision,
that “the Supreme Court has squarely held that the FTCA does not
provide an alternative remedial process bearing on the
availability of a Bivens remedy”).
The Court initially takes note of two potential concerns:
(1) Plaintiff is asserting his claim against individual
defendants, not the United States, and (2) Plaintiff’s Amended
Complaint alleges a due process violation under the United
States Constitution.

“[U]nder the relevant provisions of the

FTCA, the United States is the only proper defendant in a suit
for personal injuries arising out of the negligence of federal
employees.”

Dilg v. U.S. Postal Serv., 635 F. Supp. 406, 407

(D.N.J. 1985) (citation omitted) (citing 28 U.S.C. §§ 1346(b),

14

2679(a)).

Further, federal constitutional violations “are not

cognizable under the FTCA.”

Alexander v. Ortiz, No. 15-6981,

2018 WL 1399302, at *16 (D.N.J. Mar. 20, 2018); see FDIC v.
Meyer, 510 U.S. 471, 477-78 (1994) (stating that “§ 1346(b)’s
reference to the ‘law of the place’ means law of the State – the
source of substantive liability under the FTCA,” and thus, “[b]y
definition, federal law, not state law, provides the source of
liability for a claim alleging the deprivation of a federal
constitutional right”); Vanderklok v. United States, 868 F.3d
189, 201 (3d Cir. 2017) (“There are two types of claims that are
exempt from the general rule that the FTCA provides the
exclusive means for relief: first, claims that are ‘brought for
a violation of the Constitution of the United States,’ and
second, claims that are ‘brought for a violation of a statute of
the United States under which such action against an individual
is otherwise authorized.’” (quoting 28 U.S.C. § 2679(b)(2)(A),
(B))).
Nonetheless, Plaintiff has brought a separate suit, against
the United States, asserting a claim for negligence.

While the

named defendants, and the legal bases, are different, the
factual bases are the same, as is the nature of the request for
relief: damages.

Moreover, it would appear that the elements of

negligence are somewhat easier for a plaintiff to prove than a
claim of an official’s deliberate indifference to a serious
15

medical need. 5

On balance, the Court finds the availability of a

remedy against the United States on a claim of negligence under
the FTCA, in light of Ziglar, is a factor weighing against the
Court recognizing a Bivens remedy here.
Defendants ask the Court to also consider the Military
Claims Act as an alternative remedial scheme.

10 U.S.C.

§ 2733(a) provides:
Under such regulations as the Secretary concerned may
prescribe, he, or, subject to appeal to him, the Judge
Advocate
General
of
an
armed
force
under
his
jurisdiction, or the Chief Counsel of the Coast Guard,
as appropriate, if designated by him, may settle, and
5

“The FTCA ‘does not itself create a substantive cause of
action against the United States; rather, it provides a
mechanism for bringing a state law tort action against the
federal government in federal court.’” Galloway v. United
States, No. 14-6372, 2017 WL 5172393, at *3 (D.N.J. Nov. 8,
2017) (quoting In re Orthopedic Bone Screw Prod. Liab. Litig.,
264 F.3d 344, 362 (3d Cir. 2001)). “FTCA claims are governed by
the substantive tort law of the state where the acts or
omissions occurred.” Id. In New Jersey, “[t]o prevail on a
claim of negligence, a plaintiff must establish four elements:
(1) that the defendant owed a duty of care; (2) that the
defendant breached that duty; (3) actual and proximate
causation; and (4) damages.” Id. at *4 (quoting Fernandes v.
DAR Dev. Corp., 119 A.3d 878, 885-86 (N.J. 2015)). A claim of
deliberate indifference places a higher burden of proof on a
plaintiff. A deliberate indifference claim requires plaintiffs
to “demonstrate (1) that the defendants were deliberately
indifferent to their medical needs and (2) that those needs were
serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(Eighth Amendment deliberate indifference claim); see also
Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000) (holding
that a pretrial detainee is entitled to no less protection than
a sentenced inmate is entitled to under the Eighth Amendment);
Alpheaus v. Camden Cty. Corr. Facility, No. 17-180, 2017 WL
2363001, at *7 (D.N.J. May 31, 2017) (“Conduct that constitutes
negligence does not rise to the level of deliberate indifference
. . . .”).
16

pay in an amount not more than $ 100,000, a claim against
the United States for –
. . . .
(3) personal injury or death . . . .
The Seventh Circuit acknowledged that the cap on awards and the
existence of discretion might mean that the Military Claims Act
is “not [a] full substitute for a Bivens remedy,” but stated it
took two things from the Act: “[F]irst, Congress has decided
that compensation should come from the Treasury rather than from
the pockets of federal employees; second, plaintiffs do not need
a common-law damages remedy in order to achieve some recompense
for wrongs done them.”
(7th Cir. 2012). 6

Vance v. Rumsfeld, 701 F.3d 193, 201

This Court agrees with these observations.

Viewing the FTCA and the Military Claims Act together, the
Court finds there are alternative remedial schemes.

The Court

reaches this conclusion even though the claims and accompanying
relief may differ.

See Ziglar, 137 S. Ct. at 1862-63 (finding

injunctive relief and a habeas remedy can constitute alternative
methods of relief).
In any event, “even in the absence of an alternative, a
Bivens remedy is a subject of judgment: ‘the federal courts must
make the kind of remedial determination that is appropriate for

6

Like the FTCA, the Military Claims Act similarly provides
for relief for a claim against the United States, not a claim
against individual defendants.
17

a common-law tribunal, paying particular heed, however, to any
special factors counselling hesitation before authorizing a new
kind of federal litigation.’”

Wilkie, 551 U.S. at 550 (quoting

Bush v. Lucas, 462 U.S. 367, 378 (1983)).

“[I]f there are sound

reasons to think Congress might doubt the efficacy or necessity
of a damages remedy as part of the system for enforcing the law
and correcting a wrong, the courts must refrain from creating
the remedy in order to respect the role of Congress in
determining the nature and extent of a federal-court
jurisdiction under Article III.”

Ziglar, 137 S. Ct. at 1858.

The Supreme Court stated “[s]ometimes there will be doubt
because the case arises in a context in which Congress has
designed its regulatory authority in a guarded way, making it
less likely that Congress would want the Judiciary to
interfere.”

Id.

The Court cited Chappell v. Wallace, 462 U.S.

296 (1983) in support of that statement, specifically
pinpointing that the military is such an area by parenthetical.
Chappell rejected a Bivens remedy for enlisted personnel against
their superior officers.

While Plaintiff here is not an

enlisted person bringing a claim against a superior, the Court
finds the Supreme Court’s reasoning in that case instructive.
The Court reasoned:
The special status of the military has required,
the Constitution has contemplated, Congress has created,
and this Court has long recognized two systems of
18

justice, to some extent parallel: one for civilians and
one for military personnel.
The special nature of
military life – the need for unhesitating and decisive
action by military officers and equally disciplined
responses by enlisted personnel – would be undermined by
a judicially created remedy exposing officers to
personal liability at the hands of those they are charged
to command. . . .
Also, Congress, the constitutionally authorized
source of authority over the military system of justice,
has not provided a damages remedy for claims by military
personnel that constitutional rights have been violated
by superior officers. Any action to provide a judicial
response by way of such a remedy would be plainly
inconsistent with Congress’ authority in this field.
Id. at 303-04.

Similar considerations were weighed in United

States v. Stanley, 483 U.S. 669, 683 (1987) (“The ‘special
facto[r]’ that ‘counsel[s] hesitation’ is not the fact that
Congress has chosen to afford some manner of relief in the
particular case, but the fact that congressionally uninvited
intrusion into military affairs by the judiciary is
inappropriate.” (alterations in original)).
The Court finds the fact that military personnel are the
defendants in this case to be particularly relevant.

Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) (“Since Carlson
we have consistently refused to extend Bivens liability to any
new context or new category of defendants.”); see also Ziglar,
137 S. Ct. at 1857 (“[T]he Court has made clear that expanding
the Bivens remedy is now a ‘disfavored’ judicial activity.

This

is in accord with the Court’s observation that it has
‘consistently refused to extend Bivens to any new context or new
19

category of defendants.’” (citations omitted) (first quoting
Iqbal, 556 U.S. at 675; and then quoting Malesko, 534 U.S. at
68)).

The Court considers military personnel to be a new

category of defendants, and a category that, under admittedly
different circumstances, the Supreme Court has refused to extend
a Bivens remedy to.

See Stanley, 483 U.S. 669; Chappell, 462

U.S. 296.
In Vanderklok, 868 F.3d 189, the Third Circuit considered
“whether a First Amendment claim against a [Transportation
Security Administration (TSA)] employee for retaliatory
prosecution . . . exists in the context of airport security
screenings.”

Id. at 194.

In determining that it does not, the

Third Circuit found there were special factors counseling
hesitation.

Id. at 209.

The Third Circuit noted that “TSA was

created in response to the terrorist attacks of September 11,
2001, specifically for the purpose of securing our nation’s
airports and air traffic” and that the claim in that case “can
be seen as implicating ‘the Government’s whole response to the
September 11 attacks, thus of necessity requiring an inquiry
into sensitive issues of national security.’”

Id. at 206

(quoting Ziglar, 137 S. Ct. at 1861).
“The Supreme Court has never implied a Bivens remedy in
a case involving the military, national security, or
intelligence.” To the contrary, it has recognized that
“[m]atters intimately related to foreign policy and
national security are rarely proper subjects for
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judicial intervention.”
In recognition of that,
national security decisions, insofar as they relate to
foreign relations and the military, have, to a large
extent, been insulated from judicial review. . . .
Although there is no doctrine depriving us of
jurisdiction, the reluctance of the Supreme Court to
weigh in on issues of national security strongly
suggests that we too should hesitate to create a remedy
when those issues are in play.
Id. at 206-07 (footnotes omitted) (citations omitted) (first
quoting Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C. Cir. 2012); and
then quoting Haig v. Agee, 453 U.S. 280, 292 (1981)).
The Third Circuit noted that “TSA employees . . . are
tasked with assisting in a critical aspect of national security
– securing our nation’s airports and air traffic.”

Id. at 207.

The Court determined that “’Congress is in a far better position
than a court to evaluate the impact of a new species of
litigation’ against those who act on the public’s behalf.”

Id.

at 208 (quoting Wilkie, 551 U.S. at 562).
The Court recognizes the broader national security concerns
that were present in Vanderklok than in this case.

Nonetheless,

that the incident in this case took place on a military base,
and that Defendants are military personnel, is not lost on this
Court, and the significance of that cannot be overlooked.

The

Court notes that the “impact on governmental operations,” “the
burdens on Government employees who are sued personally,” and
“the projected costs and consequences to the Government itself,”
Ziglar, 137 S. Ct. at 1858, warrant special consideration when
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military personnel are involved.

The Court finds these to be

special factors causing the Court hesitation.
Ultimately, the question for this Court “is ‘who should
decide’ whether to provide for a damages remedy, Congress or the
courts?”

Id. at 1857 (quoting Bush, 462 U.S. at 380).

In the

unique context of this case, the Court has sufficient hesitation
such that it concludes it should not be the courts.
V.
The Court finds Plaintiff’s Amended Complaint presents a
new Bivens context and that special factors weigh against the
Court recognizing a Bivens remedy under the circumstances
presented in Plaintiff’s Amended Complaint. 7

The Court will

grant the pending motions to dismiss. 8
An appropriate Order will be entered.

Date: April 30, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

7

The Third Circuit has directed in civil rights cases the
“district courts must offer amendment irrespective of whether it
is requested when dismissing a case for failure to state a claim
unless doing so would be inequitable or futile.” Fletcher
Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
251 (3d Cir. 2007). The Court finds any amendment would be
futile in this case, as Plaintiff’s claim is barred by Ziglar.
8

As the Court finds Plaintiff has not pleaded an actionable
Bivens claim, the Court does not address Defendants’ qualified
immunity arguments.
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