BLAKEY v. PISTRO
MEMORANDUM; ETC.. SIGNED BY DISTRICT JUDGE JOSHUA D. WOLSON ON 6/7/21. 6/7/21 ENTERED AND NOT MAILED TO PRO SE.(JL )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Case No. 2:21-cv-572-JDW
Leslie Blakey’s Second Amended Complaint (“SAC”) provides additional
factual details about his claim but still comes up short. He has not alleged that any
prison official refused him medical care, delayed the provision of medical care, or
interfered with his right to medical care. He cannot pursue his remaining claims,
which focus on issues other than medical care, because they are not the type of claims
he can assert under the Supreme Court’s decision in Bivens v Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971).
Mr. Blakey asserts that Warden Pistro ordered him to be locked in his cell at
the Federal Detention Center Philadelphia for 24 hours a day during various dates
in October 2020. He claims that he did nothing to warrant this action. During the
lockdown, his toilet would not flush, and he had to sleep and eat near his nonoperational toilet in the presence of feces and urine. He alleges he became sick and
suffered from vomiting and diarrhea, but received no medical attention.
On Friday, November 13, 2020, his toilet again would not flush. He reported
this to an Officer Freeman and asked for a bucket of water to use to manually get the
toilet to flush and clean up feces and urine on the cell floor. Officer Freeman refused.
On November 14, 2020, Mr. Blakey suffered diarrhea, and he could not stop vomiting.
On November 15, 2020, Mr. Blakey told Officer Leroy about his symptoms and asked
Officer Leroy to contact the medical unit. Officer Leroy apparently did so because the
medical unit “responded that they would send someone but no medical staff came
[that day].” (ECF No. 12 at 4.) Medical staff failed to respond the next day, as well.
On November 17, 2020, Mr. Blakey’s toilet “flushed by itself. It turns out that all
they had to do was push one button to get the toilet to flush.” (Id.) He also saw a
doctor that day and received medication for diarrhea and Tylenol. (Id.)
On November 9, 2020, prior to the toilet issue, an inmate housed in Mr.
Blakey’s unit tested positive for COVID-19.
Rather than isolate the inmate,
Defendant Pistro locked down the entire unit. However, prisoners in the unit were
still using the same showers and phones, and both Mr. Blakey and his cellmate tested
positive for COVID-19. Mr. Blakey alleges that Warden Pistro and Officers Freeman
and Leroy failed to follow CDC guidelines, failed to take precautionary measures, and
ignored him. He also alleges that Warden Pistro was negligent in following Bureau
of Prisons guidelines and was deceitful in ordering the lockdown due to plumbing
problems when the actual reason was a lack of adequate staff.
Mr. Blakey asserts that the Defendants violated his Eighth Amendment right
to be free from cruel and unusual punishment arising from his cell conditions, his
contracting COVID-19, and the lockdown. He seeks money damages for anxiety and
depression and pain from contracting COVID-19.
STANDARD OF REVIEW
Because the Court granted Blakey leave to proceed in forma pauperis, 28
U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the SAC if it
fails to state a claim. The standard applicable to motions to dismiss under Federal
Rule of Civil Procedure 12(b)(6) applies to determine whether a complaint fails to
state a claim under § 1915(e)(2)(B)(ii). See Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999). That standard requires the Court to determine whether the
complaint contains “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)
(quotations omitted). Conclusory allegations do not suffice. Id. Because Mr. Blakey
is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att’y Gen.,
655 F.3d 333, 339 (3d Cir. 2011). If the Court dismisses a complaint, it should offer
an opportunity for a curative amendment “unless amendment would be inequitable
or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002).
Denial Of Medical Care
The United States Supreme Court has allowed Bivens claims against federal
prison officials in the context of an allegation of deliberate indifference to a serious
medical claim. See Blakey v. Pistro, No. 21-cv-572, 2021 WL 1721579, at *2 (E.D. Pa.
Apr. 29, 2021) (citing Carlson v. Green, 446 U.S. 14 (1980)). A serious medical need
exists where “failure to treat can be expected to lead to substantial and unnecessary
suffering.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). “A
medical need is serious . . . 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 Cty. Corr. Institutional Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal quote omitted).
A prison official is not deliberately indifferent “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.” Farmer v. Brennan, 511
U.S. 825, 837 (1994). To satisfy the deliberate indifference requirement, a plaintiff
must allege facts to show that “the prison official (1) knows of a prisoner’s need for
medical treatment but intentionally refuses to provide it; (2) delays necessary medical
treatment based on a non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d
The only defendant that Mr. Blakey alleges was involved in his request for
medical care was Officer Leroy. Mr. Blakey complained to Officer Leroy about
diarrhea and vomiting and requested medical care. It appears that Officer Leroy
contacted the medical unit because the medical unit responded to the request. Mr.
Blakey does not allege that Officer Leroy delayed making the request or had any role
in the medical unit’s response (including the timeliness of that response). Thus, even
assuming that Mr. Blakey’s diarrhea and vomiting constituted serious medical needs,
he has not stated a claim for denial of medical care. Nor does it appear that he could
cure the flaws, given the facts he has asserted. The Court will therefore dismiss his
claims for denial of medical care with prejudice.
Conditions Of Confinement
Since Bivens was decided in 1971, the Supreme Court “has repeatedly refused
to extend Bivens actions beyond the specific clauses of the specific amendments [of
the Constitution] for which a cause of action has already been implied, or even to
other classes of defendants facing liability under those same clauses.” Vanderklok v.
United States, 868 F.3d 189, 200 (3d Cir. 2017). Expanding Bivens as a cause of
action is “a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857
(2017), A court must engage in a “rigorous inquiry before implying a Bivens cause of
action in a new context or against a new category of defendants.” Vanderklok, 868
F.3d at 200. The Supreme Court has provided a two-step analysis to determine
whether to imply a Bivens cause of action in a new context.
First, a court must determine whether the case presents a new context for a
Bivens claim. “[I]f the case is different in a meaningful way to previous Bivens cases
by [the Supreme] Court, then the context is new.” Abbasi, 137 S. Ct. at 1859. “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 in to the
functioning of other branches; or the presence of potential special factors that
previous Bivens cases did not consider.” Id. at 1860.
Second, if the claim presents a new Bivens context, the court must then ask
whether “special factors counsel hesitation in expanding Bivens.” Mack v. Yost, 968
F.3d 311, 320 (3d Cir. 2020); see also Abbasi, 137 S. Ct. at 1857. This 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.” Abbasi, 173 S. Ct. at 1857-58.
To be a “special factor counselling
hesitation,” a factor must cause a court to hesitate before answering that question in
the affirmative. See id. One factor is whether “any alternative, existing process for
protecting the injured party’s interest that itself may amount to a convincing reason
for the Judicial Branch to refrain from providing a new and freestanding remedy in
damages.” Id. at 1858 (cleaned up). Separation of powers concerns are another
“particularly weighty” factor.
Mammana v. Barben, No. 20-cv-2365, 2021 WL
2026847, at *4 (3d Cir. May 21, 2021). When performing the special-factors analysis,
courts must consider “‘who should decide’ whether to provide for a damages remedy,
Congress or the courts?” Abbasi, 137 S. Ct. at 1857-58. “The answer most often will
be Congress [because] [w]hen an issue involves a host of considerations that must be
weighed and appraised, it should be committed to those who write the law rather
than those who interpret them.” Id. (citation omitted).
Mr. Blakey’s non-medical Eighth Amendment claim is meaningfully different
from claims that the Supreme Court has recognized. Because no Supreme Court
decision has ever extended Bivens to encompass the situations that Blakey’s claim
presents, his claim presents new Bivens contexts. Accord Hanson v. United States,
Civ. A. No. 18-cv-17, 2018 WL 5046067, at *2 (E.D. Ky. Oct. 17, 2018) (claim based
on denial of access to toilet was sufficiently distinct from all three of these prior
contexts, and, therefore, was a “new context” for purposes of a Bivens analysis).
The Court must therefore consider whether special factors counsel against
expanding Bivens. They do. As a starter, the Prison Litigation Reform Act covers the
type of complaints that Mr. Blakey asserts and demonstrates Congress’s preference
that prisoners present them through administrative processes. See 42 U.S.C. § 1997e.
Congress’s enactment of the PLRA provides a strong indication “that Congress does
not want a Bivens remedy in this context.” Gonzalez v. Hasty, 269 F.Supp.3d 45, 61
(E.D.N.Y. 2017). As the Supreme Court has explained, the PLRA does not provide
for a standalone damages remedy against federal jailers. See Abbasi, 137 S.Ct. at
1865. At least one Court of Appeals has declined to extend Bivens to a claim asserting
unsanitary cell conditions for this reason. See Schwarz v. Meinberg, 761 F. App’x 732,
734 (9th Cir. 2019) (claim based on nonfunctioning toilet not viable under Bivens).
The Third Circuit also recently declined to extend Bivens remedies to a non-medical
Eighth Amendment claim citing, in part, the PLRA.
See Mammana, 2021 WL
2026847, at *4.
Separately, extending Bivens to a claim concerning the need to lockdown a
penal facility during a worldwide pandemic – also not a recognized extension of
Bivens – would substantially affect government operations and unduly burden
federal correctional officials who must defend against such a suit in their personal
See Railey v. Ebbert, 407 F. Supp. 3d 510, 523 (M.D. Pa. 2019)
administration of prisons’ is another factor weighing against extension of
the Bivens remedy.”); see also Mammana, 2021 WL 2026847, at *4 (“Recognizing such
a broad new category of claims [implicating prison administration] would step well
into the lawmaking privilege delegated only to Congress, and well over the bounds of
our limited constitutional power.”). Thus, the Court will not imply a Bivens remedy
for Mr. Blakey’s claims. Because Mr. Blakey cannot cure these issues with an
amended pleading, the Court will dismiss these claims with prejudice.
Mr. Blakey has provided additional details about his claims, but he has not
shown them to be plausible. Nor can he fix them, so the Court will dismiss them with
prejudice. An appropriate Order follows.
BY THE COURT:
June 7, 2021
/s/ Joshua D. Wolson
JOSHUA D. WOLSON, J.
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