STILE v. HOLLINGSWORTH et al

Filing 4

OPINION. Signed by Judge Renee Marie Bumb on 10/23/2017. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JAMES T. STILE,
Civ. No. 17-2693 (RMB)

Plaintiff,
v.

OPINION

UNITED STATES OF AMERICA, et
al.,
Defendants.

BUMB, District Judge
Plaintiff James T. Stile seeks to bring a civil rights
complaint pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971) against the
United States of America, past and present wardens of FCI Fort
Dix, FCI Fort Dix employee Brian Womack, and Dr. Ravi Sood,
alleging that the conditions of confinement at FCI Fort Dix and
the inadequate medical care provided to him violate the Eighth
Amendment.
proceed
financial

(Compl., ECF No. 1.)

in

forma

pauperis

eligibility

to

He has filed an application to

(“IFP”),

proceed

which

without

establishes

prepayment

of

his
fees.

(IFP App., ECF No. 1-1.)
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) require courts to
review a prisoner’s complaint in a civil action and sua sponte

dismiss any claims that are (1) frivolous or malicious; (2) fail
to state a claim on which relief may be granted; or (3) seek
monetary relief against a defendant who is immune from such
relief. For the reasons discussed below, the Court grants the
IFP

application,

dismisses

with

prejudice

the

Bivens

claims

against the United States, Brian Womack and Ravi Sood in their
official capacities; dismisses the Eighth Amendment failure to
protect

and

Eighth

Amendment

inadequate

medical

care

claims

without prejudice; and permits the Eighth Amendment conditions
of confinement claims to proceed, subject to briefing by the
parties of the effect of Ziglar v. Abbasi, 137 S.Ct. 1843 (2017)
on the Bivens remedy.
I.

Sua Sponte Dismissal
Courts must liberally construe pleadings that are filed pro

se.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle

v. Gamble, 429 U.S. 97, 106 (1976)).
however

inartfully

standards

than

pleaded,

formal

must

pleadings

be

se

pleadings

are

charged

held

drafted

(internal quotation marks omitted).
pro

Thus, “a pro se complaint,
to
by

‘less

stringent

lawyers.’”

Id.

“Court personnel reviewing

with

the

responsibility

of

deciphering why the submission was filed, what the litigant is
seeking, and what claims she may be making.”

See Higgs v. Atty.

Gen. of the U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting
Jonathan D. Rosenbloom, Exploring Methods to Improve Management
2

and Fairness in Pro Se Cases: A Study of the Pro Se Docket in
the Southern District of New York, 30 Fordham Urb. L.J. 305, 308
(2002)).
Under

28

U.S.C.

§

1915(e)(2)(B),

district

courts

must

review complaints filed by persons proceeding in forma pauperis
in civil actions, and dismiss any claim that is frivolous or
malicious,

fails

to

state

a

claim

upon

which

relief

may

be

granted, or seeks monetary relief from a defendant who is immune
from

such

relief.

28

U.S.C.

§

1915A(a)

also

requires

an

identical screening for “a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity.”
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

“To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to
‘state

a

Ashcroft

claim
v.

to

Iqbal,

relief
556

that

U.S.

is

662,

plausible
678

(2009)

on

its

(quoting

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
has

facial

plausibility

when

the

plaintiff

face.’”

pleads

Bell

“A claim
factual

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
(quoting Twombly, 550 U.S. at 556.)

3

Id.

“[A]

court

must

accept

contained in a complaint[.]”

as

true

Id.

all

of

the

allegations

Legal conclusions, together

with threadbare recitals of the elements of a cause of action,
do

not

suffice

to

considering

a

identifying

pleadings

state

motion

to

a

claim.

dismiss

that,

Id.
can

because

Thus,

choose

they

are

“a

to
no

court

begin
more

conclusions, are not entitled to the assumption of truth.”
at 679.

by
than
Id.

“While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.”

Id.

If a complaint can be remedied by an amendment, a district court
may not dismiss the complaint with prejudice, but must permit
the amendment.

Grayson v. Mayview State Hospital, 293 F.3d 103,

108 (3d Cir. 2002).
II.

DISCUSSSION
A.

The United States as a Defendant

Plaintiff names the United States of America as a defendant
in this Bivens Action, alleging his conditions of confinement at
FCI Fort Dix violate the Eighth Amendment, and that he received
inadequate medical care in violation of the Eighth Amendment.
Plaintiff also sues two federal employees, Brian Womack and Dr.
Ravi Sood, in their official capacities.
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” FDIC v. Meyer, 510 U.S.
471,

475

(1994)

(citations

omitted).
4

Similarly,

federal

officials
suit.

sued

in

their

official

capacities

are

immune

from

See Hines v. Irvington Counseling Center, 933 F.Supp.

382, 388 (D.N.J. Jan. 23, 1996) (dismissing suit against federal
agency

employees

Graham,

473

in

U.S.

their

159,

official

166

(1985)

capacities);

(a

suit

Kentucky

against

a

v.

federal

officer in his official capacity is actually a suit against the
United States).

Plaintiff’s Bivens claims against the United

States, and against Brian Womack and Dr. Ravi Sood in their
official capacities, are dismissed with prejudice because they
are immune from Bivens liability.
The United States is a proper defendant to an FTCA claim
based on negligent acts of federal employees, but there is a
jurisdictional prerequisite that a plaintiff must first present
the claim to the appropriate agency in writing, and request a
sum certain for damages.

Hoffenberg v. U.S., 504 F. App’x 81,

83 (3d Cir. 2012) (citing 28 U.S.C. § 2675(a); Deutsch v. United
States,
intended

67
to

complaint,

F.3d

1080,

bring

an

1091
FTCA

establishing

(3d

Cir.

claim,

that

he

1995)).

he

must

met

If

file

the

Plaintiff

an

amended

jurisdictional

prerequisites.
B.

Ziglar v. Abbasi

On June 19, 2017, the U.S. Supreme Court held that when a
party

seeks

to

assert

an

implied

5

cause

of

action

under

the

Constitution, courts must not extend Bivens to a new context1 if
there are “special factors counseling hesitation in the absence
of affirmative action by Congress.”
1843,

1857

(2017)

(citation

Ziglar v. Abbasi, 137 S.Ct.

omitted).

“If

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, courts must refrain from creating the
remedy.”

Id. at 1858.

An alternative remedial structure may

also limit the Judiciary's power to infer a new Bivens cause of
action.

Id.

First, courts must determine whether a claim arises in a
new

Bivens

context,

and

the

context

is

new

if

the

case

is

different in a meaningful way from the previous Bivens cases
decided

by

the

Supreme

Court.

Id.

at

1859.

Meaningful

differences may include,
the rank of the officers involved; the
constitutional right at issue; the extent of
judicial
guidance
[for
the
official
conduct]; 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

1

There are only three instances where the Supreme Court has
found an implied cause of action for a Constitutional violation
by agents of the Federal Government:
Bivens, 403 U.S. 388
(Fourth Amendment unlawful search and seizure); Davis v.
Passman,
442
U.S.
228
(1979)
(Fifth
Amendment
gender
discrimination); and Carlson v. Green, 446 U.S. 14 (1980)(Eighth
Amendment claim of inadequate medical care in prison).
6

special factors that previous Bivens cases
did not consider.
Id. at 1860.
Second, courts must conduct the special factors analysis to
determine

whether

Congress,

not

the

courts,

whether a damages action should be allowed.

should

decide

Id. at 1857.

For

example, a Bivens action is not a proper vehicle for altering
high-level executive policy.

Id. at 1860.

Third, courts must

consider whether there were other alternative forms of judicial
relief available, including injunctions and habeas petitions.
Id. at 1849; see also Vanderklok v. United States, 868 F.3d 189,
200

(3d

Cir.

2017)

However,“[d]isposing
constitutional

(discussing

of

question,

a

Bivens

while

analysis
claim

assuming

under

by
the

Bivens remedy—is appropriate in many cases.”

Ziglar).

resolving
existence

the
of

a

Hernandez v. Mesa,

137 S.Ct. 2003, 2007 (2017).
C.

Eighth Amendment Conditions of Confinement Claim

The

conditions

subject

to

scrutiny

under
under

which
the

a

prisoner

Eighth

is

Amendment.

confined
Farmer

are
v.

Brennan, 511 U.S. 825, 832 (1994) (citing Helling v. McKinney,
509 U.S. 25, 31 (1993)).

“[P]rison officials must ensure that

inmates receive adequate food, clothing, shelter, and medical
care, and must “take reasonable measures to guarantee the safety

7

of the inmates.” Id. (quoting Hudson v. Palmer, 468 U.S. 517,
526–527 (1984)).
[A] prison official cannot be found liable
under the Eighth Amendment for denying an
inmate humane conditions of confinement
unless the official knows of and disregards
an excessive risk to inmate health or
safety; the official must both be aware of
facts from which the inference could be
drawn that a substantial risk of serious
harm exists, and he must also draw the
inference.
Id. at 837.
“[E]xtreme

deprivations

are

conditions-of-confinement claim.”

required

to

make

out

a

Hudson v. McMillian, 503 U.S.

1, 8 (1992). “[O]nly those deprivations denying ‘the minimal
civilized measure of life's necessities’ are sufficiently grave
to form the basis of an Eighth Amendment violation.”

Id. at 9

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citation omitted).
“Conditions

must

not

involve

the

wanton

and

unnecessary

infliction of pain, nor may they be grossly disproportionate to
the severity of the crime warranting imprisonment.”

Rhodes, 452

U.S. at 347.
The first aspect of judicial decisionmaking
in this area is scrutiny of the actual
conditions under challenge. It is important
to recognize that various deficiencies in
prison
conditions
“must
be
considered
together.” Holt v. Sarver, 309 F.Supp.[362,]
373
[E.D.
Ark.
1970]
The
individual
conditions
“exist
in
combination;
each
8

affects the other; and taken together they
[may] have a cumulative impact on the
inmates.” Ibid. Thus, a court considering an
Eighth Amendment challenge to conditions of
confinement must examine the totality of the
circumstances. Even if no single condition
of confinement would be unconstitutional in
itself, “exposure to the cumulative effect
of prison conditions may subject inmates to
cruel and unusual punishment.” Laaman v.
Helgemoe, 437 F.Supp. 269, 322–323 (NH
1977).
Rhodes, 452 U.S. at 362-63; Nami v. Fauver, 82 F.3d 63, 66 (3d
Cir. 1996) (finding district court erred by failing to consider
conditions of confinement as a whole.)
In his complaint, Plaintiff alleges he has been housed for
two years in a twelve-man room with only 43 square feet of space
for

each

inmate,

and

the

overcrowded.

(Compl.,

alleges

overcrowded

the

confrontations

between

ECF

common

No.

1,

spaces
Ground

conditions

inmates

and

the

are

Three.)

result
spreading

in
of

similarly
Plaintiff
physical
disease.

(Id.)
Plaintiff also complains of daily exposure to asbestos and
mastic glue since June 2015 (Ground One); three day exposure to
friable asbestos during a demolition job in the rear of the law
library in September 2016 (id.); constant exposure to black mold
in Building 5811; contaminated drinking water as evidenced by
sludge and sediment in the water pipes, and as evidenced by a
March 2017 news story about contamination of the water supply at

9

Joint

Base

McGuire-Dix-Lakehurst

(Ground

Four);

inadequate

ventilation because the window size was reduced and air handlers
are used only in the summer, causing exposure to jet engine
fumes where the housing unit is in close proximity to an active
runway

for

take-offs

and

landings

of

military

planes;

and

frequent exposure to diesel generator fumes when FCI Fort Dix
regularly

suffers

power

outages

(Ground

Five);

unsanitary

conditions including dripping of toilet drain pipes and shower
drain

pipes,

overflowing

(unnumbered);

lack

(unnumbered);

of

and

garbage

available

excess

cans

sanitizer

humidity

attracting
for

causing

the

bugs

telephones

transmission

of

bacteria and viruses (unnumbered).
The injuries Plaintiff alleges to have suffered from these
conditions
poisoning,

include:
with

potential

symptoms

which

lung
may

damage
not

from

appear

for

asbestos
years;

exacerbation of COPD and emphysema which causes him to use an
inhaler

more

than

he

otherwise

would;

psychological

distress

from exposure to dangerous substances; cold, flu and E Coli
infections; and fear of future development of cancer based on
contaminated water.

(Compl., ECF No. 1.)

Plaintiff alleges

Warden Jordan Hollingsworth and Warden David Ortiz were aware of
but failed to do anything about these conditions for the period
from June 2015 to the present.

(Compl., ECF No. 1, ¶¶2, 3 and

pp. 22-23.)
10

When

“‘the

incarceration
health

cumulative
the

well-being

and

threatens

impact

of

of

physical,
the

the

conditions

mental,

inmates

and

and/or

of

emotional
creates

a

probability of recidivism and future incarceration,’ the court
must

conclude

that

the

conditions

violate

the

Constitution.”

Rhodes, 452 U.S. at 364 (quoting Laaman v. Helgemoe, 437 F.Supp.
269, 323 (D.N.H. 1977)). Plaintiff has sufficiently pled that
the combination of his conditions of confinement exacerbated his
COPD

and

emphysema,

caused

the

spread

of

illness,

has

the

potential to cause serious damage to his future health, and
caused him emotional distress about his health.
Although the Court will allow the conditions of confinement
claim

to

proceed

1915(e)(2)(B);

an

past

screening

Eighth

pursuant

Amendment

to

conditions

28
of

U.S.C.

§

confinement

claim is a new Bivens claim, subject to the analysis set forth
in Ziglar. Defendants may choose to file a motion to dismiss in
lieu of an answer if they wish to assert that this Court should
not

imply

a

alternative
interests

Bivens
process

at

stake

cause

of

capable
or

action

of

that

because

protecting
there

are

there

the

exists

an

constitutional

factors

counseling

hesitation in implying a cause of action.
D.

Eighth Amendment Inadequate Medical Care Claims

Plaintiff brings individual capacity Bivens claim against
his primary care physician at FCI Fort Dix, Dr. Ravi Sood, for
11

inadequate medical care in violation of the Eighth Amendment.
(Compl., ECF No. 1 at 20.)

The Court notes this is not a new

Bivens context under Ziglar.

The Supreme Court has recognized

an

for

implied

cause

of

action

Eighth

Amendment

inadequate

medical care claims against a federal actor who is personally
involved in the deprivation.

Carlson v. Green, 446 U.S. 14

(1980).
Plaintiff alleges the following facts: (1) Dr. Sood failed
to prescribe antibiotics to Plaintiff to treat E. Coli for more
than

a

week

after

a

urologist

ordered

the

medication

for

Plaintiff; (2) Dr. Sood failed to review Plaintiff’s medical
records

to

determine

the

cause

of

the

bacterial

infections

Plaintiff suffered for a year or longer; (3) Dr. Sood failed to
prescribe antibiotics to Plaintiff for two months while Dr. Sood
had laboratory records indicating Plaintiff had E Coli; (4) Dr.
Sood did not properly treat Plaintiff’s longstanding symptoms of
constant diarrhea and urinary infections, and told Plaintiff to
drink more water, but the water is contaminated; (5) Dr. Sood
failed

to

Plaintiff’s

order

a

symptoms

tract sensation.

bladder
of

ultrasound

fever,

diarrhea,

test
and

(Compl, ECF No. 1 at 20.)

to

burning

urinary

Plaintiff also

alleges:
Twice, the Plaintiff has submitted to a
urine test and was not apprised of the
positive results of bacterial infection for
12

diagnose

longer than a full month after the test
results
were
in
possession
of
the
Defendants, then the Plaintiff was not
dispensed antibiotics for as long as a week
thereafter, all of which contributed to the
unnecessary suffering both physically and
psychologically of the Plaintiff.
(Id. at 19.)
To state an inadequate medical care claim under the Eighth
Amendment’s proscription against cruel and unusual punishment,
an

inmate

must

allege

facts

showing

the

defendant’s

conduct

constituted “unnecessary and wanton infliction of pain” or that
the

defendant

serious

was

medical

deliberately

needs.

Estelle

indifferent
v.

Gamble,

to

the

429

U.S.

inmate’s
97,

104

(1976). “A medical need is “serious,” in satisfaction of the
second prong of the Estelle test, if it is “one that has been
diagnosed by a physician as requiring treatment or one that is
so

obvious

that

a

lay

person

would

easily

recognize

the

necessity for a doctor's attention.” Monmouth County Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting
Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), aff'd, 649
F.2d 860 (3d Cir. 1981)).
Denial of or delay in treatment that causes unnecessary and
wanton infliction of pain may also constitute a serious medical
need.

Id. (citing Estelle, 429 U.S. at 103).

“[W]here denial

or delay causes an inmate to suffer a life-long handicap or
permanent loss, the medical need is considered serious.” Id.
13

(citations omitted); Andrews v. Camden County, 95 F.Supp.2d 217,
227

(D.N.J.

2000)

(same);

Price

v.

Corr.

Med.

F.Supp.2d 740, 745 (D. Del. 2007) (same).

Serv.,

493

An allegation of

medical malpractice or simple negligence does not rise to the
level of a constitutional violation.

Spruill v. Gillis, 372

F.3d 218, 235 (3d Cir. 2004).
Most of Plaintiff’s allegations concerning his medical care
amount to disagreement with the treatment he received from Dr.
Sood.

For example, the failure to review Plaintiff’s medical

records to look for a cause of the frequent bacterial infections
Plaintiff suffered is a disagreement with how Dr. Sood evaluated
and treated Plaintiff’s bacterial infections.

The failure to

order a bladder ultrasound is also disagreement with the medical
evaluation

provided,

and

does

not

rise

to

the

level

of

deliberate indifference.
The failure to prescribe antibiotics for E Coli is not
deliberate indifference unless no other treatment was provided,
and

if

the

lack

of

antibiotics

unnecessary infliction of pain.
allegations

that

Dr.

Sood

resulted

in

wanton

and

The same is true of Plaintiff’s

failed

to

advise

him

of

positive

results for bacterial infection from a urine test for one month,
and did not prescribe antibiotics for another week.

Not all

bacterial infections require treatment with antibiotics.

See

e.g. Stewart v. Kelchner, 358 F. App’x 291, 292 n. 1 (3d Cir.
14

2009)

(“most

MRSA

skin

infections

can

be

treated

without

antibiotics by draining the sores”) (quoting Kaucher v. County
of Bucks, 455 F.3d 418, 421 (3d Cir. 2006)).
lacks

sufficient

factual

detail

to

draw

the

The complaint
inference

that

failure to treat with antibiotics caused Plaintiff unnecessary
and wanton infliction of pain.
Plaintiff
ordering

also

the

alleged

antibiotics

Dr.

Sood

prescribed

delayed
by

for

another

one

week

physician.

Plaintiff has not alleged the reason for the delay or how the
delay caused him unnecessary and wanton infliction of pain.
example,
prescribed

if

Dr.

Sood

treatment,

disagreed

and

with

prescribed

a

another
different

treatment, deliberate indifference cannot be shown.

For

physician’s
course

of

See White

v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (‘[n]o claim is
stated when a doctor disagrees with the professional judgment of
another doctor.

There may, for example, be several acceptable

ways to treat an illness”) (emphasis in original).

For these

reasons, Plaintiff’s Eighth Amendment inadequate medical care
claims against Dr. Sood are dismissed without prejudice.
E.

Eighth Amendment Failure to Protect Claim

Plaintiff

brings

an

Eighth

Amendment

failure

to

protect

claim against federal employee Brian Womack, in his individual
capacity.

(Compl., ECF No. 1 at 21.)

Plaintiff alleges Womack

authorized the demolition of the “asbestos laden” floor in the
15

law library of Building 5842 in the West Compound of FCI Fort
Dix in September 2016.

(Id. at 4.)

Plaintiff was exposed to

breathing asbestos fibers and mastic glue for three days.
at 21.)

Womack conducted the asbestos removal “without proper

protection
remove

(Id.

and

the

without

going

asbestos.”

through

(Id.)

the

Plaintiff

proper
does

channels

not

allege

to
an

injury that arose over these three days, but he alleges that he
was exposed to a toxic substance that may cause future harm.
(Id. at 4-5.)
To state a claim for an Eighth Amendment violation based on
exposure to an environmental health risk, an inmate must show
that he is being exposed to unreasonably high levels that pose
an unreasonable risk of serious damage to his future health.
See

Helling

v.

McKinney,

509

U.S.

25,

35

(1993)

(alleging

exposure to second hand tobacco smoke).

The objective factor of

the

assess

test

“also

requires

a

court

to

whether

society

considers the risk that the prisoner complains of to be so grave
that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.”

Id.

Exposure for three days to asbestos tile removal does not
violate contemporary standards of decency because it does not
create an unreasonable risk of serious damage to future health.
See Templeton v. Anderson, 607 F. App’x 784, 787 (10th Cir.
2015) (finding exposure to black mastic and asbestos-containing
16

tile for one hour did not violate contemporary standards of
decency);

McNeil

v.

Lane,

16

F.3d

123,

125

(7th

Cir.

1993)

(exposure to moderate levels of asbestos is common); compare
Goss v. American Cyanamid, Co., 278 N.J.Super. 227, 236 (N.J.
Super. Ct. App. Div. 1994) (in a product liability asbestos
case,

frequent,

regular

removing asbestos

exposure

by

employees

applying

or

demonstrated sufficient exposure to establish

medical causation) (quoting Sholtis v. American Cyanamid Co.,
238 N.J. Super 8 (N.J. Super. Ct. App. Div. 1989)).
the

Court

will

dismiss

with

prejudice

the

Eighth

Therefore,
Amendment

failure to protect claim against Defendant Brian Mack in his
individual capacity.

The three-day removal of asbestos tiles

from the law library may be considered as part of the conditions
of confinement claim.
F.

Motion for Subpoena

After
filed

a

submitting

motion

for

his
a

complaint

subpoena

to

under

the

Court,

Federal

Rule

Plaintiff
of

Civil

Procedure 45, directing the non-party Labcorp Raritan to produce
certified
Plaintiff.

copies

of

all

laboratory

testing

(Mot. for Subpoena, ECF No. 2).

relating

to

First, Plaintiff

must submit a subpoena that complies with the form and contents

17

of a subpoena, as outlined in Federal Rule of Civil Procedure
45(a).2
Second, Federal Rule of Civil Procedure 45(a)(4) provides:
(4) Notice to Other Parties Before Service.
If the subpoena commands the production of
documents,
electronically
stored
information, or tangible things or the
inspection of premises before trial, then
before it is served on the person to whom it
is directed, a notice and a copy of the
subpoena must be served on each party.
After

the

summons

and

complaint

have

been

served

on

Defendants Jordan Hollingsworth and David Ortiz, Plaintiff must
serve the requisite notice of subpoena on them.

Therefore,

Plaintiff’s motion for subpoena is denied without prejudice.
III. CONCLUSION
For the reasons stated above, the Court grants the IFP
application,

dismisses

States,

Brian

and

the

Womack

Bivens
and

claims

Ravi

Sood

against
in

the

their

United

official

capacities; dismisses the Eighth Amendment failure to protect
and

Eighth

Amendment

inadequate

medical

care

claims

without

prejudice; and permits the conditions of confinement claims to
proceed, subject to briefing by the parties of the effect of

2

The subpoena submitted by Plaintiff does not include the
attachment described in the subpoena: “The provisions of
Fed. R. Civ. P. 45(c), relating to your protection as a
person subject to a subpoena, and Rule of 5 (d) and e),
relating to your duty to respond to this subpoena and the
potential consequences of not doing so, are attached.”
18

Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) on an implied Bivens
cause of action.
An appropriate order follows.

DATE: October 23, 2017
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge

19