Washington v. United States et al

Filing 320

ORDER re 304 MOTION to Dismiss filed by G Victor Loranth, Richard Lepiane, Federal Bureau of Prisons, Eve Ulmer, United States and 315 TEXT Order on Motion to Dismiss: The Rule 12(c) motion is GRANTED a nd the Individual Defendants Richard Lepiane, Eve Ulmer, and the Estate of G. Victor Loranth are dismissed as parties to this action. Plaintiff's remaining claims against the United States and the Federal Bureau of Prisons pursuant to the FTCA, the Rehabilitation Act, and an Eighth Amendment claim for injunctive relief will proceed to trial. Signed by Honorable Bruce Howe Hendricks on 8/25/2022. (vdru, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Burl Washington,
Plaintiff,
vs.
Federal Bureau of Prisons;
Richard Lepiane; Eve Ulmer;
Estate of Dr. G. Victor Loranth;
and the United States,
Defendants.

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Civil Action No. 5:16-3913-BHH

OPINION AND ORDER

This matter is before the Court on Defendants Richard Lepiane, Eve Ulmer, and
the Estate of Dr. G. Victor Loranth’s (“Individual Defendants”) motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). (ECF No. 304.) The Rule
12(c) motion contends that Plaintiff Burl Washington’s (“Plaintiff”) claims pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
are subject to dismissal in light of the U.S. Supreme Court’s recent decision in Egbert v.
Boule, 142 S. Ct. 1793 (2022), which clarified the Court’s Bivens framework. Plaintiff
responded to the motion on August 2, 2022, and the Individual Defendants filed a reply
on August 9, 2022. (ECF Nos. 307 & 310.) This Court heard oral arguments on the Rule
12(c) motion on August 11, 2022. (ECF No. 313.) For the following reasons, the motion
for judgment on the pleadings is granted and Plaintiff’s Bivens claims against the
Individual Defendants are dismissed. Trial will proceed on August 22, 2022, as to
Plaintiff’s Federal Tort Claims Act (“FTCA”) and injunctive claims only.

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BACKGROUND
The factual background of this case is set out in significant detail in the Court’s
prior Orders, and the Court assumes familiarity therewith. (See, e.g., ECF No. 239
(denying Defendants’ motions for summary judgment).) On April 12, 2019, Plaintiff filed
his Third Amended Complaint, which encompasses claims against the Federal Bureau of
Prisons (“BOP”), the United States, and three individual federal employees. As to the
BOP, Plaintiff claims he was discriminated against because of his disability
(“Rehabilitation Act claim”) (ECF No. 197 ¶¶ 108–19), and he has been subjected to cruel
and unusual punishment due to the BOP’s and the Individual Defendants’ inconsistent
medical care and failure to provide the medical and personal assistance that he needs
due to his blindness (“Injunctive Relief claim” and “Bivens claims”) (id. ¶¶ 120–38). As to
the United States, Plaintiff alleges he has suffered medical malpractice and violation of
the Federal Tort Claims Act (“FTCA”) through the BOP’s and the Individual Defendants’
alleged failure to provide medically necessary treatment, surgery, consultations, physical
and occupational therapy, tools, assistance, and education necessitated by his condition;
alleged failure to provide or exercise due care; and alleged failure to provide health care
services. (id. ¶¶ 139–56.)
Plaintiff’s Bivens claims are set out in Count 3 of the Third Amended Complaint (id.
¶¶ 127–131). As to the Individual Defendants, Plaintiff alleges:
129. Defendants have ignored and disregarded the express instructions of
Washington’s treating ophthalmologists that Washington be provided with a
nurse or companion to assist him with ambulation, activities of daily living,
and administration of his medications. They have done so despite being
informed that the above accommodations are medically necessary and
failure to provide them will cause Washington’s condition to worsen.
130.

Defendants have failed to properly administer Washington’s

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medicines and have prevented Washington from accessing his medications
and other medically necessary items, such as sunglasses, by refusing
treatment, and ignoring or altering Washington’s prescriptions.
(id.) Plaintiff asserts that the Individual Defendants’ deliberate indifference to his serious
medical needs “has caused [him] to suffer persistent pain, frustration, and anxiety, and
accelerated [his] vision loss[.]” (id. ¶ 131.)
Defendants moved for summary judgment (ECF Nos. 229 & 230) and the Court
denied Defendants’ motions on February 3, 2020. (ECF No. 239.) Specifically, the Court
found the state of the evidence regarding whether Defendants’ failed to timely schedule
Plaintiff’s medical appointments and assist Plaintiff with the administration of his eye
drops, in conjunction with the claim that Defendants were aware that a delay in medical
treatment and improper administration of Plaintiff’s eye drops could result in pain for
Plaintiff and a diminishment of Plaintiff’s vision, created a question of fact concerning
whether Plaintiff was unconstitutionally denied medical treatment. (Id. at 14.) After various
scheduling adjustments, a jury trial on Plaintiff’s Bivens claims was set for August 22,
2022. (ECF No. 291.) The Supreme Court decided Egbert on June 8, 2022. 142 S. Ct.
1793. The Individual Defendants filed their Rule 12(c) motion on July 19, 2022. (ECF No.
304.)
STANDARD OF REVIEW
A motion for judgment on the pleadings under Rule 12(c) is assessed under the
same standard as a motion to dismiss under Rule 12(b)(6). Massey v. Ojaniit, 759 F.3d
343, 347, 353 (4th Cir. 2014). Consequently, a Rule 12(c) motion “‘tests only the
sufficiency of the complaint and does not resolve the merits of the plaintiff’s claims or any
disputes of fact.’” Id. at 353 (quoting Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th

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Cir.2014)). The court must “accept all well-pleaded allegations . . . as true” and “draw all
reasonable factual inferences in [the plaintiff’s] favor,” but is “not obliged to accept
allegations that ‘represent unwarranted inferences, unreasonable conclusions, or
arguments,’ or that ‘contradict matters properly subject to judicial notice or by exhibit.’” Id.
(quoting Blankenship v. Manchin, 471 F.3d 523, 529 (4th Cir. 2006)). The unavailability
of a Bivens remedy may be raised through a motion under Rule 12(c). See Fed. R. Civ.
P. 12(h)(2)(B).
A party may move for judgment on the pleadings “[a]fter the pleadings are closed—
but early enough not to delay trial.” Fed. R. Civ. P. 12(c). It is appropriate to move for
judgment on the pleadings where, as here, an intervening decision from the Supreme
Court changes the legal landscape in a way that makes clear that certain claims should
be disposed of before trial as a matter of law. See, e.g., Andrews v. Miner, 301 F. Supp.
3d 1128, 1131 (N.D. Ala. 2017) (granting Rule 12(c) motion filed twenty-one days prior to
start of trial in light of then-recent Supreme Court Bivens decision in Ziglar v. Abbasi, 137
S. Ct. 1843 (2017), because claim presented new Bivens context, the existence of
alternate available remedies weighed against extension of Bivens, and ‘special factors’
counseled the court should hesitate to fashion a Bivens remedy where Congress had
been silent); see also Fed. R. Civ. P. 1 (requiring construction and use of Federal Rules
of Civil Procedure “by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding”).
Plaintiff’s contention that the instant motion is untimely is rejected as the motion is
based on a recent development in applicable law and a Rule 12(c) motion must be heard
and decided before trial unless the court orders a deferral until trial. Fed. R. Civ. P. 12(i).

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DISCUSSION
A. Bivens, its Progeny, and the Change Wrought by Egbert
Damages actions pursuant to 42 U.S.C. § 1983 represent the remedy that
Congress created for plaintiffs whose constitutional rights have been violated by state
officials. There is no parallel congressionally created remedy for constitutional violations
committed by agents of the federal government. In Bivens, the Supreme Court recognized
an implied damages action to compensate persons injured by federal agents who violated
the Fourth Amendment’s prohibition against unreasonable searches and seizures. 403
U.S. at 397. The Bivens court acknowledged that the Fourth Amendment does not provide
for money damages “in so many words,” but stated that “‘where legal rights have been
invaded, and a federal statute provides for a general right to sue for such invasion, federal
courts may use any available remedy to make good the wrong done.’” Id. at 396 (quoting
Bell v. Hood, 327 U.S. 678, 684 (1946)). The Court also noted that it was not limited by
any “explicit congressional declaration that persons injured by a federal officer’s violation
of the Fourth Amendment may not recover money damages from the agents,” and
determined that the case “involve[d] no special factors counseling hesitation in the
absence of affirmative action by Congress [to create such a remedy].” Id. at 396–97. Thus,
the Bivens court held that it could authorize a remedy under general principles of federal
jurisdiction. See id. at 392.
In the decade following Bivens, the Supreme Court implied similar remedies twice
more, in a Fifth Amendment gender discrimination case, Davis v. Passman, 442 U.S. 228
(1979) (wherein an administrative assistant sued a U.S. Congressman for firing her
because she was a woman), and in an Eighth Amendment cruel and unusual punishment

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clause case, Carlson v. Green, 446 U.S. 14 (1980) (wherein a prisoner’s estate sued
federal jailers for failing to treat the prisoner’s asthma, which failure led to the prisoner’s
death). “After those decisions, however, the Court changed course.” Hernández v. Mesa,
140 S. Ct. 735, 741 (2020). Although Bivens, Passman, and Carlson remain valid in their
own contexts, the Supreme Court’s willingness to extend Bivens-type remedies has
grown increasingly narrow over time. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009) (“Because implied causes of action are disfavored, the Court has been reluctant
to extend Bivens liability ‘to any new context or new category of defendants.’” (quoting
Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001)).
In determining whether to imply a damages action pursuant to Bivens, Supreme
Court precedent instructs district courts to ask two questions: (1) whether the case
presents a “new Bivens context”—i.e., whether it is meaningfully different from the three
cases in which the Supreme Court implied a damages action (Ziglar, 137 S. Ct. at 1859–
60); (2) if a claim arises in a new context, whether there are “special factors counselling
hesitation”—i.e., whether such factors cause a court to hesitate in affirming that the
Judiciary, as opposed to Congress, is well suited to consider and weigh the costs and
benefits of allowing a damages action to proceed (id. at 1858). In Ziglar, the Supreme
Court stated:
The proper test for determining whether a case presents a new Bivens
context is 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

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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.
137 S. Ct. at 1859–60. “Given the notable change in the Court’s approach to recognizing
implied causes of action, . . . the Court has made clear that expanding the Bivens remedy
is now a ‘disfavored’ judicial activity.” Id. at 1857 (quoting Iqbal, 556 U.S. at 675).
Accordingly, any Bivens claim must be dismissed if it arises in a new context and presents
“‘special factors counselling hesitation’” in fashioning a remedy absent action by
Congress. Earle v. Shreves, 990 F.3d 774, 779 (4th Cir. 2021) (quoting Ziglar, 137 S. Ct.
at 1860). The Fourth Circuit has recognized that this pre-Egbert framework was in
keeping with the Supreme Court’s move away from recognizing implied causes of action:
“Consistent with the Court’s view that further expansion of the Bivens remedy was
disfavored, the analytical framework established by the Ziglar Court places significant
obstacles in the path to recognition of an implied cause of action.” Id. at 778 (emphasis
added).
Egbert clarified this analytical framework in a manner that made it even more
rigorous, in effect making it significantly more unlikely that an implied cause of action will
be recognized. In Egbert, the Supreme Court considered two Bivens claims: (1) a Fourth
Amendment excessive force claim that presented “‘almost parallel circumstances’” and a
similar “‘mechanism of injury’” to Bivens itself, 142 S. Ct. at 1805 (quoting Ziglar, 137 S.
Ct. at 1859), and (2) a novel First Amendment retaliation claim, 142 S. Ct. at 1807–08.
Both claims arose out of the plaintiff’s interactions with the U.S. Border Patrol. Id. at 1799–
1802. The Egbert court acknowledged that its precedents “describe two steps,” but
explained that these steps “often resolve to a single question: whether there is any reason

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to think that Congress might be better equipped to create a damages remedy.” 142 S. Ct.
at 1803; see also Silva v. United States., No. 21-1008, 2022 WL 3023684, at *3 (10th Cir.
Aug. 1, 2022) (recognizing that Egbert “appeared to alter the existing two-step Bivens
framework”). The Court instructed that if there is “even a single” rational reason to defer
to Congress to create a remedy for relief, “a court may not recognize a Bivens remedy.”
Id. at 1803 (citing Hernández, 140 S. Ct. at 741, 743). Moreover, Egbert rejected the
petitioner’s Fourth Amendment claim despite its extremely close factual and legal
parallels with Bivens itself, affirming that the plaintiff’s Fourth Amendment claim presented
a new Bivens context despite the fact that, as in Bivens, the alleged excessive force arose
in the setting of the plaintiff’s arrest by a law enforcement officer. Id. at 1800–01, 1804.
The Court spelled out the takeaway from this demanding approach: a Bivens remedy will
be unavailable “in most every case.” Id. at 1803 (“If there is a rational reason to think that
[Congress is better situated than the courts to decide whether to provide for a damages
remedy]—as it will be in most every case—no Bivens action may lie. Our cases instruct
that, absent utmost deference to Congress’ preeminent authority in this area, the courts
arrogate legislative power.” (cleaned up)). As the Tenth Circuit recently stated, “[t]he
Supreme Court’s message could not be clearer—lower courts expand Bivens claims at
their own peril.” Silva, 2022 WL 3023684, at *1.
Ultimately, Egbert held that the Court of Appeals was wrong to conclude that there
was no reason to hesitate before recognizing an implied cause of action against the
Border Patrol Agent “for two independent reasons: Congress is better positioned to create
remedies in the [context considered by the Court], and the Government already has
provided alternative remedies that protect plaintiffs like [the respondent].” Id. at 1804.

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Because the Fourth Amendment claim in Egbert could not proceed, the Eighth
Amendment claims against the Individual Defendants in this case also fail as a matter of
law. Both independent reasons articulated in Egbert apply in this case.
B. New Context Analysis
Based on Egbert, the Court finds that Plaintiff’s claims against the Individual
Defendants arise in a new Bivens context. A Bivens claim arises in a new context
whenever the case is “different in a meaningful way from previous Bivens cases decided”
by the Supreme Court. Ziglar, 137 S. Ct. at 1859. The Court has previously acknowledged
that its “understanding of a ‘new context’ is broad” and “[a] claim may arise in a new
context even if it is based on the same constitutional provision as a claim in a case in
which a damages remedy was previously recognized.” Hernández, 140 S. Ct. at 743.
However, Egbert signals a significant shift in how courts should approach the new
context inquiry. Egbert affirmed that the plaintiff’s Fourth Amendment claim arose in a
new context despite its very close factual and legal similarities to Bivens. See 142 S. Ct.
at 1810 (Gorsuch, J., concurring) (“Candidly, I struggle to see how this set of facts differs
meaningfully from those in Bivens itself.”); id. at 1815 (Sotomayor, J., concurring in the
judgment in part and dissenting in part) (“At bottom, [the respondent’s] claim is materially
indistinguishable from the claim brought in Bivens.”). In doing so, the majority observed
that “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with
Bivens, Passman, or Carlson unless he also satisfies the ‘analytic framework’ prescribed
by the last four decades of intervening case law.” Id. at 1809. In other words, a court
should conduct a special factors analysis even when the plaintiff’s allegations closely
resemble Carlson because that case “predates [the Court’s] current approach to implied

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causes of action.” Id. at 1808.
Plaintiff asserts that his claim is not “materially different from the claim deemed
viable by the Supreme Court in Carlson” and that “the differences are trivial.” (ECF No.
307 at 1, 6.) He further asserts “the Individual Defendants have identified no authority
expressly indicating that Eighth Amendment claims pursued by prisoners against prison
officials for inadequate medical care are no longer available under Bivens and its progeny.
Until Bivens and Carlson are overturned, Plaintiff’s nearly identical claims against the
Individual Defendants remain viable.” (Id. at 10–11.) Plaintiff contends the Court does not
need to infer a new Bivens cause of action because the Supreme Court “already extended
Bivens to the Eighth Amendment context.” (ECF No. 307 at 12.)
The Court disagrees and finds that Plaintiff’s allegations present more than merely
“trivial” differences with Carlson. Plaintiff’s Bivens claims do not involve a medical
emergency, as did Carlson, but rather focus on a long term and ongoing course of medical
treatment of Plaintiff’s chronic, non-fatal condition. This difference is significant for
multiple reasons, including that administrative and injunctive relief would have a
completely different application to Plaintiff’s claims than to the claims in Carlson, where
the failure to properly address a medical emergency proved fatal. See Egbert, 142 S. Ct.
at 1803 (explaining that “a new context arises when there are ‘potential special factors
that previous Bivens cases did not consider’” (quoting Ziglar, 137 S. Ct. at 1864)).
Whereas the Court in Carlson fashioned a Bivens-type remedy to make right a grave
constitutional wrong, Plaintiff’s Bivens claims here risk transforming this Court into an ad
hoc medical review board tasked with deciding, with little to no judicial guidance, which
medical errors, if any, cross the threshold into constitutional injury. If the plaintiff’s claims

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in Egbert implicated a new context as to Fourth Amendment excessive force theory, then
Plaintiff’s claims here implicate a new context as to Eighth Amendment deliberate
indifference theory. It is of no moment that Plaintiff’s claims parallel those in Carlson to
the degree they are brought under the Eighth Amendment and relate to medical care in
the prison setting generally. After Egbert, such broad similarities with Bivens, Passman,
or Carlson are not sufficient on their own to authorize a claim. See 142 S. Ct. at 1804–05
(affirming a finding of a new context despite “almost parallel circumstances”). Rather, the
Court finds that Plaintiff’s Bivens claims arise in a new context and proceeds to the special
factors analysis.
C. Special Factors Analysis
Because Plaintiff’s claims arise in a new context, so long as there is “‘[e]ven a
single sound reason’” for a court “‘to defer to Congress’” rather than create an implied
damages remedy, it must do so. Egbert, 142 S. Ct. at 1803 (quoting Nestlé USA, Inc. v.
Doe, 141 S. Ct. 1931, 1937 (2021)). A “special factor” indicates that Congress is better
suited than the Judiciary to “‘weigh the costs and benefits’” of creating a new damages
remedy. Id. (quoting Ziglar, 137 S. Ct. at 1858). The special factors inquiry is broadranging and simply asks “whether there is any rational reason (even one) to think that
Congress is better suited to ‘weigh the costs and benefits of allowing a damages action
to proceed.’” Id. at 1805 (emphasis in original) (quoting Ziglar, 137 S. Ct. at 1858).
“[S]eparation-of-powers principles are or should be central to the analysis.” Ziglar, 137 S.
Ct. at 1857.
This case presents several sound reasons for deference, including: (1) Congress
is better positioned to create remedies in the context of chronic medical care in federal

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prisons; (2) the Government has already provided alternative remedies that protect
claimants like Plaintiff, including processes for administrative and injunctive relief; and (3)
Congress’ passage of the Prison Litigation Reform Act (“PLRA”).
First, “the Judiciary is not undoubtedly better positioned than Congress to
authorize a damages action” in the context of chronic medical care in federal prisons. See
Egbert, 142 S. Ct. at 1805 (holding the same as to border security context because it
implicates national security considerations). The provision of chronic medical care is a
specialized activity requiring a high degree of training and qualification. In the prison
context, the provision of such care is made all the more multifaceted because it must
coincide with the security demands and inherent limitations of the custody setting. Given
this constellation of circumstances, “the Judiciary is comparatively ill suited to decide
whether a damages remedy against any [BOP medical provider] is appropriate.” Id.
Second, the Government has “provided alternative remedies for aggrieved parties
in [Plaintiff’s] position that independently foreclose a Bivens action here.” Egbert, 142 S.
Ct. at 1806. The BOP’s Administrative Remedy Program (“ARP”) allows an inmate who
believes receiving inadequate medical care to file a grievance to correct the issue. See
28 C.F.R. § 542.10; see also Egbert, 142 S. Ct. at 1806 (holding that the U.S. Border
Patrol’s grievance procedure foreclosed a Bivens remedy and citing BOP’s ARP as a
special factor that made a Bivens claim unavailable in Malesko, 534 U.S. at 74); Silva,
2022 WL 3023684, at *4 (concluding that the availability of ARP alone was enough to bar
the plaintiff’s Bivens claim based on Egbert’s reasoning). “The [ARP] process is
substantial; it contains its own statutes of limitations, filing procedures, and appeals
process. And prisoners may retain attorneys for assistance with the process.” Callahan

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v. Fed. Bureau of Prisons, 965 F.3d 520, 524 (6th Cir. 2020) (internal citation omitted).
Where a situation “threatens the inmate’s immediate health or welfare,” the warden must
respond to a grievance within three days. 28 C.F.R. § 542.18. Notably, with respect to
federally incarcerated persons, by adding an administrative exhaustion requirement to
the PLRA, see 42 U.S.C. § 1997e(a), Congress has incorporated the ARP into its scheme
for resolving inmate disputes and decreasing the amount of litigation emanating from
prisons. The ARP thus bears the endorsement of both the BOP and Congress as the
proper means of addressing the complaints of federal inmates. Plaintiff utilized the ARP
and exhausted his administrative remedies in this case. (See 3rd Am. Compl., ECF No.
197 (describing various administrative requests, grievances, and appeals pursued by
Plaintiff).)
The Supreme Court has repeatedly explained, with respect to alternative
processes, that “the absence of relief ‘does not by any means necessarily imply that
courts should award money damages.’” Egbert, 142 S. Ct. at 1808 (quoting Schweiker v.
Chilicky, 487 U.S. 412, 421 (1988)). Rather, “the question whether a given remedy is
adequate is a legislative determination that must be left to Congress, not the federal
courts.” Id. at 1807 (2022). When an administrative grievance is denied, prisoners have
the option of seeking injunctive relief through a judicial action. See Ziglar, 137 S. Ct. at
1862 (observing that the ability to pursue injunctive relief for abuses in the prison setting
is a special factor). Indeed, Plaintiff obtained preliminary injunctive relief in this case (see
ECF No. 169) and is seeking further injunctive relief at trial. This is a sharp contrast with
Carlson, where the injury was fatal and it was therefore “‘damages or nothing.’” Ziglar,
137 S. Ct. at 1862 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring in judgment);

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Passman, 442 U.S. at 245).
In addition, Congress has legislated extensively regarding the rights and
protections of incarcerated persons but has never created the remedy that Plaintiff now
seeks from this Court. That counsels hesitation. When Congress has legislated
extensively on a topic but declined to create a damages remedy, “the silence of Congress
is relevant” and suggests an intent not to create such a remedy. Ziglar, 137 S. Ct. at 1862.
Relatedly, Congress’s decision to delegate authority to an agency and insulate the
agency’s decision-making from judicial review also “mak[es] it less likely that Congress
would want the Judiciary to interfere” by authorizing a Bivens remedy. See id. at 1858
(discussing contexts in which Congress has designed regulatory authority “in a guarded
way”).
Numerous aspects of the maintenance of federal prison institutions and the
treatment, rights, and grievance procedures of persons incarcerated there are regulated
by statute, including the provision of medical care. For example, the BOP is required to
place prisoners in facilities where “the prisoner’s mental and medical health needs” can
be met, 18 U.S.C. § 3621, and to “provide for the safekeeping, care, and subsistence” of
all prisoners, 18 U.S.C. § 4042(a)(2). But despite mandating adequate medical care,
Congress has never opted to create an individual capacity cause of action that permits
federal prisoners sue BOP healthcare providers when their services are perceived to fall
short. Instead, Congress has delegated broad authority to the Attorney General over “[t]he
control and management of Federal penal and correctional institutions[.]” 18 U.S.C.
§ 4001(b)(1).1
1

Notably, Congress has cabined the Attorney General’s authority over state prisons to intervention in cases

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And rather than expand the scope of prisoner litigation, Congress passed the
PLRA in 1995 to “limit litigation brought by prisoners.” Montcalm Pub. Corp. v.
Commonwealth of Va., 199 F.3d 168, 171 (4th Cir. 1999); see also Cagle v. Hutto, 177
F.3d 253, 257 (4th Cir. 1999) (explaining that the PLRA is intended to “remove the federal
district courts from the business of supervising the day-to-day operation” of prisons). As
multiple courts have noted, “Congress paid close attention to inmate constitutional claims
when it enacted the [PLRA] of 1995,” Callahan, 965 F.3d at 524, but did not create a
“standalone damages remedy against federal jailers,” id. (quoting Ziglar, 137 S. Ct. at
1865); see also Butler v. S. Porter, 999 F.3d 287, 294 (5th Cir. 2021) (observing the same
and rejecting Bivens remedy). Congress has thus had opportunities to authorize Plaintiff’s
proposed Bivens claims when legislating on multiple subjects—including prison medical
care and prisoner litigation—but has always declined. This suggests that it would be
inappropriate for this Court to act in Congress’s place by implying a remedy.
Based on the clarified framework outlined in Egbert, Plaintiff’s Bivens claims arise
in a new context, and there are sound reasons for this court “to defer to Congress” rather
than create an implied damages remedy. In particular, the existence of alternative
processes and Plaintiff’s utilization those processes with respect to the harm alleged in
this case counsels against recognizing a Bivens remedy. For these reasons, his Bivens
claims are no longer viable.

involving “egregious or flagrant conditions which deprive persons residing in institutions of any rights,
privileges, or immunities secured or protected by the Constitution or laws of the United States causing them
to suffer grievous harm.” 42 U.S.C. § 1997c(a)(1). This in keeping with Congress’s disparate treatment of
state prisons—where federal oversight is more limited and prisoners may file private constitutional claims
under 42 U.S.C. § 1983 to protect their federal rights—and federal prisons—where the federal government
has direct control over its institutions and the authority to implement its own safeguards.

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CONCLUSION
For the foregoing reasons, the Rule 12(c) motion is GRANTED and the Individual
Defendants Richard Lepiane, Eve Ulmer, and the Estate of G. Victor Loranth are
dismissed as parties to this action. Plaintiff’s remaining claims against the United States
and the Federal Bureau of Prisons pursuant to the FTCA, the Rehabilitation Act, and an
Eighth Amendment claim for injunctive relief will proceed to trial.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
August 25, 2022
Charleston, South Carolina

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