KENT v. OGE

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

CHRISTOPHER KENT,

Plaintiff,

v. Case No. 3:24cv526-TKW-HTC

JAMES OGE,

Defendant. ______________________/

ORDER This case is before the Court based on the magistrate judge’s Report and Recommendation (Doc. 18) and Plaintiff’s objection (Doc. 19). The Court reviewed the issues raised in the objection de novo as required by 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(3), and based on that review, the Court agrees with the magistrate judge’s determination that this case should be dismissed with prejudice because there is no viable Bivens claim for the acts and omissions described in the amended complaint. None of the arguments in Plaintiff’s objection are persuasive. Only two warrant any discussion First, with respect Plaintiff’s argument that the BOP administrative remedy process is not a “special factor” that weighs against extending Bivens to the new context at issue in this case because that process does not allow for monetary damages, the magistrate judge correctly noted that Eleventh Circuit held in Johnson v. Terry, 119 F.4th 840 (11th Cir. 2024), that the BOP administrative remedy process is a “special factor.” Moreover, the Supreme Court made clear that the adequacy of the alternative remedy is irrelevant. See Egbert v. Boule, 596 U.S. 482, 493 (2022) (“Nor does it matter that ‘existing remedies do not provide complete relief.’”

(quoting Bush v. Lucas, 462 U.S. 367, 388 (1983))). Second, with respect to Plaintiff’s argument that this case should not have been dismissed with prejudice and that he should have been given an opportunity to file a second amended complaint, it is well established that leave to amend need not

be provided when an amendment would be “futile.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). An amendment would be futile when “the complaint as amended would still be properly dismissed or be immediately subject to summary

judgment for the defendant.” Id. That is the case here because nothing Plaintiff could allege in a second amended complaint would change the fact that he does not have a viable Bivens action against Defendant. Accordingly, it is ORDERED that:

1. The magistrate judge’s Report and Recommendation is adopted and incorporated by reference in this Order. Page 3 of 3

2. This case 1s DISMISSED WITH PREJUDICE under 28 U.S.C. $$1915A(b)(1) and 1915(e)(2)(B) for failure to state a claim on which relief can be granted. 3. The Clerk shall enter judgment in accordance with this Order and close the case file. DONE AND ORDERED this 24th day of February, 2025.

7. Wow > 4

T. KENT WETHERELL, II UNITED STATES DISTRICT JUDGE

Case No. 3:24cv526-TKW-HTC