IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE : ROBERT S. DORSEY, : Civ. Action No. 22-431(RMB-EAP) : Plaintiff, : : v. : : ANNEMARIE BURNS, et al., : : Defendants : : RENÉE MARIE BUMB, Chief United States District Judge This matter comes before the Court on the unopposed motion to dismiss Plaintiff’s Bivens claim for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) by Defendants Jeremy Ardoline, David Ortiz, Lamine N’Diaye, Adam Sassaman, and Annmarie Burns (the “Individual Defendants”) (Individ. Defs’ Mot. to Dismiss, Dkt. No. 33.) Plaintiff Robert S. Dorsey is a former federal inmate at the Federal Correctional Institution in Fort Dix, New Jersey, from 2019 to 2021, (“FCI Fort Dix”) who filed a civil rights and Federal Tort Claims action against the United States1 and the Individual Defendants for misrepresenting the safety of the drinking water and failing to provide safe drinking water at FCI Fort Dix. (Compl., Dkt. No. 1.) Plaintiff did not respond to 1 The United States filed a separate motion to dismiss Plaintiff’s claim under the Federal Tort Claims Act. (Dkt. No. 36.) Defendant’s motion to dismiss his Bivens claims. The Court will determine the motion on the brief and record, pursuant to Federal Rule of Civil Procedure 78(b).
I. PLAINTIFF’S BIVENS CLAIMS Plaintiff alleges that he was exposed to contaminated drinking water at FCI Fort Dix, in violation of the Eighth Amendment. (Compl. ¶¶ 2-5, Dkt. No. 1.) He seeks damages based on an implied cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff makes the
following factual allegations against the Individual Defendants: • Jeffrey Ardoline, Food Service Administrator, “said that the menu does not have water on it” and “failed to provide safe drinking water [despite] knowing the water at [FCI] Fort Dix is contaminated with dangerous chemicals[;]” • Annemarie Burns, Assistant Food Service Administrator (retired), “misled [i]nmates [by] stating [that] the water was safe for drinking” and “failed to provide safe drinking water [despite] knowing the water at [FCI] Fort Dix is contaminated with dangerous chemicals[;]” • Adam Sassaman, Safety Administrator, “falsified claims that [the] water was safe[;]” • David Ortiz and Lamine N’Diaye, former wardens (retired), “failed to provide safe drinking water.” (Id. ¶ 4.) Plaintiff alleges his requests for bottled water were denied. (Id. ¶ 5.) He was injured by his “[c]onsumption of dangerous chemicals in the drinking water” at FCI Fort Dix, which exposed him to perfluorooctanesulfonic acid (“PFOS”), perfluorooctanoic acid (“PFOA”), and other toxins, and “[r]ender[ed] the [COVID- 19] vaccine ineffective[,]” causing him to “test[] positive” for COVID-19 three times. (Id. ¶ 5.)
II. DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS A. New Bivens Context The Individual Defendants argue that Plaintiff’s conditions of confinement claims present a new Bivens context, and “special factors” counsel against implying a damages remedy under the Constitution. (Individ. Defs’ Mot. to Dismiss, Dkt. No.
33-1 at 10.) Alternatively, the Individual Defendants claim they are entitled to qualified immunity. (Id. at 23-24.) First, the Individual Defendants contend the Court should not imply a Bivens remedy for Plaintiff’s claims based on Supreme Court precedent. (Id. at 10-23.) Plaintiff’s claims arise in a new Bivens context because the Supreme Court has
recognized a Bivens remedy only three times since Bivens was decided: (1) in Bivens itself, which involved a Fourth Amendment claim that federal narcotics agents “manacled” a man in his home without a warrant, 403 U.S. at 389; (2) in Davis v. Passman, 442 U.S. 228 (1979), which involved a congressional staffer’s Fifth Amendment claim of gender discrimination; and (3) in Carlson v. Green, 446 U.S. 14
(1980), which involved an Eighth Amendment claim of deliberate indifference to a prisoner’s serious medical condition, resulting in his death. Egbert v. Boule, 596 U.S. 482, 490-91 (2022). (Id. at 10.) Any case that is “meaningfully different from th[ose] three cases” presents a “new Bivens context.” Egbert, 596 U.S. at 492 (internal quotation marks and citations omitted). (Individ. Defs’ Mot. to Dismiss, Dkt. No. 33-1 at 12.) B. Qualified Immunity
The Individual Defendants alternatively argue they are entitled to qualified immunity on Plaintiff’s Bivens claims. (Id. at 23-33.) “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). (Id. at 23.) “Qualified immunity is ‘ ‘an entitlement not to stand trial or face the other burdens of litigation.’” Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). (Id. at 24.) The Individual Defendants submit that Plaintiff failed to plead
sufficient facts to plausibly allege a violation of a clearly established constitutional right by each of the Individual Defendants. (Id. at 25-33.) III. DISCUSSION A. Rule 12(b)(6) Standard of Law Under Federal Rule of Civil Procedure 12(b)(6), courts must determine the
legal sufficiency of the allegations in a complaint. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Kalu v. Spaulding, No. 23-1103, 2024 WL 3884268, at *5 (3d Cir. Aug. 21, 2024) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is plausible on its face ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Id. (quoting Iqbal, 556 U.S.
at 662) (quoting Twombly, 550 U.S. at 556). Dismissal of a complaint is appropriate if, “accepting all factual allegations as true and construing the complaint in the light most favorable to the plaintiff, … the plaintiff is not entitled to relief under any reasonable reading of the complaint.” Id. (quoting McMullen v. Maple Shade Twp.,
643 F.3d 96, 98 (3d Cir. 2011) (quotation marks and citation omitted)). B. Analysis The Third Circuit Court of Appeals has recently analyzed the Supreme Court’s decision in Egbert. The Third Circuit “read Egbert to require the following: unless a case is indistinguishable from Bivens,2 Davis,3 or Carlson,4 a damages
remedy may be created by Congress, but not by the courts.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE : ROBERT S. DORSEY, : Civ. Action No. 22-431(RMB-EAP) : Plaintiff, : : v. : : ANNEMARIE BURNS, et al., : : Defendants : : RENÉE MARIE BUMB, Chief United States District Judge This matter comes before the Court on the unopposed motion to dismiss Plaintiff’s Bivens claim for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) by Defendants Jeremy Ardoline, David Ortiz, Lamine N’Diaye, Adam Sassaman, and Annmarie Burns (the “Individual Defendants”) (Individ. Defs’ Mot. to Dismiss, Dkt. No. 33.) Plaintiff Robert S. Dorsey is a former federal inmate at the Federal Correctional Institution in Fort Dix, New Jersey, from 2019 to 2021, (“FCI Fort Dix”) who filed a civil rights and Federal Tort Claims action against the United States1 and the Individual Defendants for misrepresenting the safety of the drinking water and failing to provide safe drinking water at FCI Fort Dix. (Compl., Dkt. No. 1.) Plaintiff did not respond to 1 The United States filed a separate motion to dismiss Plaintiff’s claim under the Federal Tort Claims Act. (Dkt. No. 36.) Defendant’s motion to dismiss his Bivens claims. The Court will determine the motion on the brief and record, pursuant to Federal Rule of Civil Procedure 78(b).
I. PLAINTIFF’S BIVENS CLAIMS Plaintiff alleges that he was exposed to contaminated drinking water at FCI Fort Dix, in violation of the Eighth Amendment. (Compl. ¶¶ 2-5, Dkt. No. 1.) He seeks damages based on an implied cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff makes the
following factual allegations against the Individual Defendants: • Jeffrey Ardoline, Food Service Administrator, “said that the menu does not have water on it” and “failed to provide safe drinking water [despite] knowing the water at [FCI] Fort Dix is contaminated with dangerous chemicals[;]” • Annemarie Burns, Assistant Food Service Administrator (retired), “misled [i]nmates [by] stating [that] the water was safe for drinking” and “failed to provide safe drinking water [despite] knowing the water at [FCI] Fort Dix is contaminated with dangerous chemicals[;]” • Adam Sassaman, Safety Administrator, “falsified claims that [the] water was safe[;]” • David Ortiz and Lamine N’Diaye, former wardens (retired), “failed to provide safe drinking water.” (Id. ¶ 4.) Plaintiff alleges his requests for bottled water were denied. (Id. ¶ 5.) He was injured by his “[c]onsumption of dangerous chemicals in the drinking water” at FCI Fort Dix, which exposed him to perfluorooctanesulfonic acid (“PFOS”), perfluorooctanoic acid (“PFOA”), and other toxins, and “[r]ender[ed] the [COVID- 19] vaccine ineffective[,]” causing him to “test[] positive” for COVID-19 three times. (Id. ¶ 5.)
II. DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS A. New Bivens Context The Individual Defendants argue that Plaintiff’s conditions of confinement claims present a new Bivens context, and “special factors” counsel against implying a damages remedy under the Constitution. (Individ. Defs’ Mot. to Dismiss, Dkt. No.
33-1 at 10.) Alternatively, the Individual Defendants claim they are entitled to qualified immunity. (Id. at 23-24.) First, the Individual Defendants contend the Court should not imply a Bivens remedy for Plaintiff’s claims based on Supreme Court precedent. (Id. at 10-23.) Plaintiff’s claims arise in a new Bivens context because the Supreme Court has
recognized a Bivens remedy only three times since Bivens was decided: (1) in Bivens itself, which involved a Fourth Amendment claim that federal narcotics agents “manacled” a man in his home without a warrant, 403 U.S. at 389; (2) in Davis v. Passman, 442 U.S. 228 (1979), which involved a congressional staffer’s Fifth Amendment claim of gender discrimination; and (3) in Carlson v. Green, 446 U.S. 14
(1980), which involved an Eighth Amendment claim of deliberate indifference to a prisoner’s serious medical condition, resulting in his death. Egbert v. Boule, 596 U.S. 482, 490-91 (2022). (Id. at 10.) Any case that is “meaningfully different from th[ose] three cases” presents a “new Bivens context.” Egbert, 596 U.S. at 492 (internal quotation marks and citations omitted). (Individ. Defs’ Mot. to Dismiss, Dkt. No. 33-1 at 12.) B. Qualified Immunity
The Individual Defendants alternatively argue they are entitled to qualified immunity on Plaintiff’s Bivens claims. (Id. at 23-33.) “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). (Id. at 23.) “Qualified immunity is ‘ ‘an entitlement not to stand trial or face the other burdens of litigation.’” Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). (Id. at 24.) The Individual Defendants submit that Plaintiff failed to plead
sufficient facts to plausibly allege a violation of a clearly established constitutional right by each of the Individual Defendants. (Id. at 25-33.) III. DISCUSSION A. Rule 12(b)(6) Standard of Law Under Federal Rule of Civil Procedure 12(b)(6), courts must determine the
legal sufficiency of the allegations in a complaint. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Kalu v. Spaulding, No. 23-1103, 2024 WL 3884268, at *5 (3d Cir. Aug. 21, 2024) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is plausible on its face ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Id. (quoting Iqbal, 556 U.S.
at 662) (quoting Twombly, 550 U.S. at 556). Dismissal of a complaint is appropriate if, “accepting all factual allegations as true and construing the complaint in the light most favorable to the plaintiff, … the plaintiff is not entitled to relief under any reasonable reading of the complaint.” Id. (quoting McMullen v. Maple Shade Twp.,
643 F.3d 96, 98 (3d Cir. 2011) (quotation marks and citation omitted)). B. Analysis The Third Circuit Court of Appeals has recently analyzed the Supreme Court’s decision in Egbert. The Third Circuit “read Egbert to require the following: unless a case is indistinguishable from Bivens,2 Davis,3 or Carlson,4 a damages
remedy may be created by Congress, but not by the courts. Fisher v. Hollingsworth, No. 22-2846, 2024 WL 3820969, at *5 (3d Cir. Aug. 15, 2024). For the reasons discussed below, Plaintiff’s claims against the Individual Defendants are distinguishable from Bivens, Davis, and Carlson. Therefore, the Court will grant the Individual Defendants’ motion to dismiss Plaintiff’s Bivens claims.
Plaintiff alleges the Individual Defendants violated the Eighth Amendment by misrepresenting the safety of the drinking water at FCI Fort Dix and failing to
2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 3 Davis v. Passman, 442 U.S. 228 (1979). 4 Carlson v. Green, 446 U.S. 14 (1980). provide him with safe drinking water. Plaintiff’s Eighth Amendment conditions of confinement claim is distinguishable from Bivens, supra n. 2, which involved a Fourth Amendment claim of unreasonable search and seizure. Likewise,
Plaintiff’s claim is distinguishable from Davis, supra n. 3, which involved a Fifth Amendment discrimination claim. Furthermore, “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.” Hernandez v. Mesa, 589
U.S. 93, 103 (2020). The Supreme Court implied a damages remedy for an Eighth Amendment claim in Carlson, where the plaintiff alleged prison officials failed to provide emergency medical treatment to an inmate who had chronic asthma, causing the inmate’s death. The facts in Carlson bear little relation to Plaintiff’s allegations concerning the unsafe drinking water at FCI Fort Dix causing his
COVID-19 vaccine to be ineffective. Therefore, Plaintiff’s claim arises in a new Bivens context. No further analysis is required because the Supreme Court in Egbert instructed “‘uncertainty’ that results from extending Bivens to a new context ‘forecloses relief.’” Fisher v. Hollingsworth, No. 22-2846, 2024 WL 3820969, at *5
(3d Cir. Aug. 15, 2024) (quoting Egbert, 596 U.S. at 493). Said differently, “‘[t]he newness of [a] ‘new context’ ... alone require[s] dismissal.’” Id. (quoting Egbert, 596 U.S. at 493) (citations omitted in Fisher)). Moreover, “an administrative grievance procedure is an alternative remedy that forecloses a Bivens action.” Id. at 4 (quoting Egbert, 596 U.S. at 497-98). Petitioner has availed himself of the BOP’s administrative remedy program. (Comp. ¶ VII(E), Dkt. No. 1.) Finally, in Kalu, the Third Circuit declined to imply a Bivens cause of action to a prisoner’s
conditions of confinement claim because the Eighth Amendment claim was “far broader in scope than that in Carlson.” Kalu v. Spaulding, No. 23-1103, 2024 WL 3884268, at *14 (3d Cir. Aug. 21, 2024). Here, providing safe drinking water for inmates presents a claim far broader in scope than providing emergency treatment
for a single inmate having an asthma attack, as in Carlson. For all these reasons, the Court will decline to imply a Bivens cause of action in this new Bivens context. It is therefore, unnecessary to address the Individual Defendants’ alternative claim for qualified immunity. III. CONCLUSION
The Court will grant the Individual Defendants’ motion to dismiss Plaintiff’s Bivens claim. An appropriate Order follows.
Date: August 28, 2024 s/Reneé Marie Bumb Chief United States District Judge USDC, District of New Jersey