Noe v. Seroski et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-03340-CMA-STV
(Consolidated with Civil Action No. 23-cv-00695-CMA-STV)
PETER NOE,
Plaintiff,
v.
UNITED STATES OF AMERICA;
JENNIFER SEROSKI; and
DR. D. OBA,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This Matter comes before the Court on Individual Defendants’ Motion to Dismiss
Bivens Claims (the “Motion”) [#160]. The Motion has been referred to this Court. [#162]
This Court has carefully considered the Motion and related briefing, the entire case file
and the applicable case law, and has determined that oral argument would not materially
assist in the disposition of the Motion. 	For the following reasons, the Court respectfully
RECOMMENDS that the Motion be GRANTED and that Plaintiff’s claims against Jennifer
Seroski and Dr. D. Oba be DISMISSED.
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I. 	BACKGROUND1
Plaintiff is a Federal Bureau of Prisons (the “BOP”) inmate at the United States
Penitentiary ADMAX (“ADX”), located in Florence, Colorado. 	[#1 at ¶ 5] 	At all relevant
times, Dr. D. Oba and Ms. Seroski were medical providers employed or contracted by the
BOP and responsible for meeting Plaintiff’s medical needs. 	[Id. at ¶¶ 7-8] 	In the fall of
2020, Plaintiff became sick with symptoms such as fever, chills, weakness and a
headache. 	[Id. at ¶ 19] 	ADX medical providers diagnosed Plaintiff with the flu and
Plaintiff’s symptoms resolved. [Id.] Approximately two months later, Plaintiff developed
the same symptoms, and was again diagnosed with the flu. [Id. at ¶ 20] About a week
after that, in December 2020, Plaintiff informed the ADX medical unit (“Medical”) that he
felt like he needed to urinate all the time, but was having difficulty passing urine. [Id. at ¶
21] 	Dr. Oba responded to Plaintiff’s symptoms by ordering two tests—a urine dipstick
test and a post-void residual (“PVR”) test. [Id. at ¶ 22] While the PVR test did not occur
until months later, test results for both tests were normal, as were the results of a second
dipstick test that took place in February 2021. [Id. at ¶¶ 22-23, 27]
In the meantime, from December 2020 through July 2021, Plaintiff repeatedly
complained to Medical of bladder issues and unbearable pain in his lower stomach and
testicles. [Id. at ¶ 24] During this time, Plaintiff also repeatedly filed requests relating to
1 The facts are drawn from the allegations in Plaintiff’s Complaint and Jury Demand (the
“Complaint”), Docket Number 1 in case number 23-cv-00695-CMA-STV, which the Court
will cite to as “[#1]” for simplicity. On October 4, 2023, case number 23-cv-00695-CMA-
STV was consolidated into case number 21-cv-03340-CMA-STV for all purposes. [#157]
The Court ordered that all future documents in the consolidated actions be filed in the
lowest numbered case (i.e., 21-cv-03340) only. [Id. at 5] Accordingly, with the exception
of citations to the Complaint, all citations to court filings refer to filings made in 21-cv-
03340-CMA-STV.
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the failure of Dr. Oba and Ms. Seroski to provide Plaintiff with pain medication. [Id. at ¶
25] 	Dr. Oba and Ms. Seroski denied Plaintiff pain medication for his extreme pain. 	[Id.
at ¶ 26]
Plaintiff was evaluated by Ms. Seroski on March 2, 2021. [Id. at ¶ 28] Ms. Seroski
ordered blood work, a urine analysis, and an abdominal x-ray. 	[Id.] 	All tests returned
normal results, and both Dr. Oba and Ms. Seroski reviewed the results of these tests.
[Id.] 	Ms. Seroski prescribed Plaintiff medication for a suspected enlarged prostate. [Id.
at ¶ 29] Plaintiff was on the medication for six weeks with no resolution of his symptoms.
[Id.] Dr. Oba and Ms. Seroski continued to perform tests, but failed to attempt any pain
management for Plaintiff’s extreme pain. 	[Id. at ¶ 31] 	Despite the clear ineffectiveness
of the medication, neither Dr. Oba nor Ms. Seroski prescribed any alternate treatment for
Plaintiff until five months later, in August 2021. [Id. at ¶ 30]
In August 2021, Plaintiff saw Dr. Oba in person for the first time. 	[Id. at ¶ 32]
Plaintiff explained his difficulty urinating and his pain. 	[Id.] 	Dr. Oba made a diagnosis
and prescribed antibiotics, which were ineffective. [Id. at ¶¶ 32-33] In late August 2021,
Dr. Oba placed an order for Plaintiff to be evaluated by a urologist. [Id. at ¶ 34] The BOP
did not provide Plaintiff with a urologist evaluation until late December 2021, despite
obvious signs of Plaintiff’s worsening conditions. [Id. at ¶¶ 35-36] Dr. Oba approved this
delay. [Id. at ¶ 35] During this time, Plaintiff continued to experience extreme pain in his
stomach and testicles, and Dr. Oba and Ms. Seroski against refused to provide Plaintiff
with pain medication. [Id. at ¶ 36] Plaintiff repeatedly complained of his symptoms, the
denial of pain medication, and the delay in seeing a urologist to Medical and the BOP.
[Id. at ¶ 37]
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Beginning in October 2021, Plaintiff included in his complaints that he was
experiencing extremely sharp/burning and constant pain in his lower back, hip, leg, and
foot, as well as numbness in his leg and foot. [Id. at ¶ 38] Dr. Oba and Ms. Seroski failed
to provide Plaintiff with treatment for these symptoms. [Id. at ¶ 39] Plaintiff also reported
to Medical that his urinary symptoms had reoccurred, and that he got sick again with
fever, weakness, chills, and headache. 	[Id. at ¶ 40] 	Ms. Seroski was aware of these
complaints and symptoms, but refused to provide Plaintiff with any pain management or
attempt to further diagnose him. [Id. at ¶ 41]
Plaintiff was evaluated by a urologist on December 23, 2021. [Id. at ¶ 42] 	Upon
evaluation, the urologist immediately suspected Plaintiff’s issues stemmed from a
neurological source. 	[Id.] 	The urologist recommended further assessment and tests,
including an MRI scan, which were ordered by Dr. Oba. [Id. at ¶ 43] Plaintiff waited two
months for the MRI scan, and when it occurred on February 27, 2022, Dr. Oba ordered a
scan of the wrong area of Plaintiff’s body—his abdomen as opposed to his back. [Id. at
¶ 46] The BOP delayed performing the correct MRI scan on Plaintiff’s back until June 12,
2022, and Dr. Oba and Ms. Seroski did not review the results until approximately ten days
later. [Id. at ¶ 48]
In the meantime, Ms. Seroski had finally prescribed pain medication for Plaintiff on
January 11, 2022, shortly after the urologist’s evaluation. 	[Id. at ¶ 45] 	The prescribed
medication was similar to ibuprofen. 	[Id.] 	Plaintiff informed Medical that the pain
medication was not working, and he was prescribed a new pain medication on February
18, 2022. 	[Id. at ¶ 47] 	Plaintiff continued to experience pain and made repeated
complaints to Medical. 	[Id. at ¶ 48] 	At some point, Dr. Oba prescribed Plaintiff a new
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pain medication, which helped alleviate the pain somewhat but not completely. [Id. at ¶
49]
The results of the June 12, 2022 MRI showed that Plaintiff had disc herniation and
disc degeneration. [Id. at ¶ 50] These issues were the cause of all of Plaintiff’s symptoms.
[Id. at ¶ 51] 	Despite these results, Plaintiff was not prescribed medication targeted to
treat his nerve pain until December 2022. [Id. at ¶ 53] Plaintiff was seen by a neurologist
in late 2022, who informed Plaintiff that emergency back surgery would be the only
effective treatment for the disc herniation and degeneration. [Id. at ¶ 54] Plaintiff is still
waiting for the BOP to provide that surgery. [Id. at ¶ 55]
In his Complaint, Plaintiff brings two claims for relief: (1) negligence pursuant to
the Federal Tort Claims Act against the United States [id. at ¶¶ 69-85] and (2) deliberate
indifference to serious medical needs in violation of Plaintiff’s Eighth Amendment rights
against Dr. Oba (in his individual capacity) and Ms. Seroski (in her individual capacity)
(the “Individual Defendants”) [id. at ¶¶ 86-100]. 	Relevant here, Claim Two alleges that
the Individual Defendants violated Plaintiff’s Eighth Amendment rights by failing to provide
timely medical care and deliberately choosing to not take appropriate medical action
despite knowledge of a substantial risk of serious harm to Plaintiff. 	[Id.] Plaintiff brings
this claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). [Id. at ¶ 87]
On October 11, 2023, the Individual Defendants filed a partial motion to dismiss,
seeking to dismiss Plaintiff’s Bivens claims against Dr. Oba and Ms. Seroski under
Federal Rule of Civil Procedure 12(b)(6). [#160] Plaintiff has responded [#174] and the
Individual 	Defendants 	have 	replied 	[#178]. 	On 	January 	5, 	2024, 	the 	Individual
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Defendants filed a notice of supplemental authority [#183] and the Court subsequently
permitted the parties to provide briefing regarding the supplemental authority [#185].
Plaintiff has filed a response addressing the supplemental authority [#186] and the
Individual Defendants have replied [#187].
II. 	STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” 	Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not
rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain 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) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
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elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. 	ANALYSIS
Plaintiff alleges that the Individual Defendants were deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment, and asserts a claim under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). 	[#1 at ¶¶ 86-100] 	The Individual Defendants argue that Plaintiff’s Eighth
Amendment claims against them should be dismissed because a Bivens remedy is not
available for Plaintiff’s claims, and because the Individual Defendants are entitled to
qualified immunity. 	[#160] 	Because the Court determines that a Bivens remedy is not
available to Plaintiff, the Court does not address the issue of qualified immunity.
This Court has considered the availability of a Bivens remedy under similar
circumstances 	in 	one 	of 	Mr. 	Noe’s 	prior 	cases, 	Noe 	v. 	United 	States 	(“Noe
Recommendation”), No. 21-CV-01589-CNS-STV, 2022 WL 18587706 (D. Colo. Dec. 14,
2022), report and recommendation adopted, No. 21-CV-01589-CNS-STV, 2023 WL
179929 (D. Colo. Jan. 13, 2023), aff’d, No. 23-1025, 2023 WL 8868491 (10th Cir. Dec.
22, 2023) (unpublished), and will quote extensively from that prior recommendation:2
The Eighth Amendment to the United States Constitution protects a
prisoner’s 	right 	to 	“humane 	conditions 	of 	confinement 	guided 	by
‘contemporary standards of decency.’” 	Penrod v. Zavaras, 94 F.3d 1399,
1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Prison 	officials 	are 	required 	to 	“ensur[e] 	inmates 	receive 	the 	basic
necessities 	of 	adequate 	food, 	clothing, 	shelter, 	and 	medical 	care
and . . . tak[e] reasonable measures to guarantee the inmates’ safety.”
Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). Prison officials
2 For completion, the Court retains the placement and contents of the footnotes contained
in the excerpted section, but renumbers them to align with the numbering in the instant
Recommendation.
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violate this standard when they are deliberately indifferent to an inmate’s
serious medical needs. 	See Sealock v. Colorado, 218 F.3d 1205, 1209
(10th Cir. 2000). . . .
“‘Deliberate indifference’ involves both an objective and a subjective
component. The objective component is met if the deprivation is ‘sufficiently
serious.’” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)). A sufficiently serious medical need “is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s
attention.” Id. (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
1999)). “The subjective component is met if a prison official knows of and
disregards an excessive risk to inmate health or safety.” 	Crowson v.
Washington Cnty., 983 F.3d 1166, 1178 (10th Cir. 2020).
The Supreme Court has made clear that a prisoner asserting a
deliberate indifference claim has some fairly high hurdles to clear. 	Mere
negligence on the part of his medical providers is not sufficient. 	Farmer,
511 U.S. at 835. 	Rather, “[t]he subjective component [of a deliberate
indifference claim] is akin to ‘recklessness in the criminal law,’ where, to act
recklessly, a ‘person must “consciously disregard” a substantial risk of
serious harm.’” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting
Farmer, 511 U.S. at 837, 839).
Nonetheless, a prisoner who can clear these high hurdles, who can
establish 	that 	his 	medical 	providers 	acted 	with 	a 	mindset 	“akin 	to
recklessness in the criminal law,” has historically had a civil remedy against
his medical providers. 	For a state prisoner, that remedy was provided
through 42 U.S.C. § 1983. “Section 1983 provides a cause of action for ‘the
deprivation 	of 	any 	rights, 	privileges, 	or 	immunities 	secured 	by
the Constitution and laws’ by any person acting under color of state law.”
Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C.
§ 1983). Thus, a state prison official—or any individual acting under color
of state law—may be sued for violating another individual’s constitutional
rights. By its terms, however, Section 1983 only applies to individuals acting
“under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia.” 	42 U.S.C. § 1983. 	Thus,
federal officials are not covered by Section 1983.
So, without an explicit statutory remedy applicable to federal officials,
are 	individuals 	acting 	pursuant 	to 	federal 	law 	free 	to 	violate 	others’
constitutional rights without recourse? Historically, no. As the United States
Supreme Court has explained, “Bivens established that the victims of a
constitutional violation by a federal agent have a right to recover damages
against the official in federal court despite the absence of any statute
conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). 	Indeed,
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“[i]n the early years of Bivens, the [Supreme] Court essentially presumed
new Bivens actions were valid ‘unless the action [wa]s “defeated” in one of
two specified ways’—an express declaration from Congress creating a
substitute remedy or the existence of ‘special factors’ that counselled
‘hesitation.’” 	Silva v. United States, 45 F.4th 1134, 1139 (10th Cir. 2022)
(quoting 	Carlson, 	446 	U.S. 	at 	26-27, 	(Powell, 	J., 	concurring 	in 	the
judgment)). 	Following this formulation, the Supreme Court expanded the
remedy recognized in Bivens to a gender discrimination claim under the
Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and, most
relevant here, to a claim 	of deliberate indifference under the Eighth
Amendment arising out of inadequate medical treatment to a prisoner,
Carlson, 446 U.S. 14.
Despite this precedent—despite the fact that the Supreme Court held
more than forty years ago in Carlson that a prisoner who can establish that
his medical providers acted with a mindset akin to recklessness in the
criminal law could seek a civil remedy against those medical providers—the
United States argues that such a remedy no longer exists. Reluctantly, this
Court, bound by the decisions of the Supreme Court, agrees.
The Supreme Court’s early amicability towards Bivens actions was
short-lived. 	The Supreme Court has since “adopted a far more cautious
course” with respect to Bivens actions. 	Ziglar v. Abbasi, 137 S. Ct. 1843,
1855 (2017). 	Thus, Bivens, Davis, and Carlson “represent the only
instances in which the [Supreme] Court has approved of an implied
damages remedy under the Constitution itself.” Id.
As solidified in Ziglar, the Supreme Court adopted a two-step
approach to determine whether a plaintiff could vindicate his constitutional
rights in a suit for damages through a Bivens action. First, the Court asked
whether the case presented “a new Bivens context” such that it was
“different in a meaningful way from” Bivens, Davis, or Carlson. Id. at 1859.
If so, then the Court examined whether there was any alternative remedial
structure present or other “special factor counselling hesitation” in creating
an implied damages remedy. Id. at 1857-58. . . .
Just this year, however, the Supreme Court once again tightened the
vice around Bivens. In Egbert v. Boule, 142 S. Ct. 1793 (2022), the Court
made 	its 	strongest 	pronouncement 	yet 	against 	Bivens. 	The 	Court
emphasized 	that 	“recognizing 	a 	cause 	of 	action 	under 	Bivens 	is 	‘a
disfavored judicial activity,’” and that “‘[e]ven a single sound reason to defer
to Congress’ is enough to require a court to refrain from creating such a
remedy.” Egbert, 142 S. Ct. at 1803 (first quoting Ziglar, 137 S. Ct. at 1856-
57 then quoting Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021)
(plurality 	opinion)). 	The 	Court 	explained 	its 	two-step 	approach 	that
“inform[s] a court’s analysis of a proposed Bivens claim”—i.e., whether the
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case arises in a new context and whether special factors counsel against
recognizing a Bivens remedy—but clarified that “those steps often resolve
to a single question: whether there is any reason to think that Congress
might be better equipped to create a damages remedy.” 	Id. at 1803. 	Put
differently, “[a] court faces only one question [in conducting a Bivens
inquiry]: 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.’”3 Id. at 1805 (quoting Ziglar, 137 S. Ct. at
1858).
The Egbert Court further explained that a court must determine
whether there is “an alternative remedial structure” available.4 	Id. at 1804
(quoting Ziglar, 137 S. Ct. at 1858). A court must conduct such an inquiry
because “a court may not fashion a Bivens remedy if Congress already has
provided, or has authorized the Executive to provide, ‘an alternative
remedial structure’”—regardless of the extent of relief provided to the
plaintiff by that remedial scheme. 	Id. (quoting Ziglar, 137 S. Ct. at 1858).
Simply put, “[s]o long as Congress or the Executive has created a remedial
process that it finds sufficient to secure an adequate level of deterrence, the
courts cannot second-guess that calibration by superimposing a Bivens
remedy.” Id. at 1807.
3 And, as the Court explained, there is essentially always at least one
rational reason to defer to Congress to create a remedy, namely that: “At
bottom, creating a cause of action is a legislative endeavor . . . [and]
Congress is far more competent than the Judiciary to weigh [the] policy
considerations [involved with creating a cause of action]. And the Judiciary’s
authority to do so at all is, at best, uncertain.” Egbert, 142 S. Ct. at 1802
(quotations and citations omitted).
4 	As 	explained 	below, 	the 	Tenth 	Circuit 	has 	described 	these 	two
questions—whether Congress is better positioned to create remedies and
whether 	the 	Government 	has 	already 	provided 	remedies—as 	“two
independent reasons” to deny a Bivens remedy. Silva v. United States, 45
F.4th 1134, 1141 (10th Cir. 2022). This Court is not entirely convinced that
the two questions are completely independent. 	One possible reading of
Egbert is that the fact that the Government created alternative remedies
necessarily means that Congress is better positioned to create remedies.
Egbert, 142 S. Ct. at 1803 (“While our cases describe two steps, those steps
often resolve to a single question: whether there is any reason to think that
Congress 	might 	be 	better 	equipped 	to 	create 	a 	damages 	remedy.”
(emphasis added)); id. at 1804 (“If there are any alternative remedial
structures in place, that alone, like any special factor, is reason enough to
limit the power of the Judiciary to infer a new Bivens cause of action.”
(quotation omitted)). 	Ultimately, however, this is a distinction without a
difference—post-Egbert, a “yes” answer to either question necessarily
disposes of the Bivens claim.
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Applying these general principles, the Egbert Court unsurprisingly
held that a Bivens remedy was not available to Plaintiff Boule against
federal officials for an alleged violation of the Fourth Amendment. 	The
Court accepted the Court of Appeals’ concession that Plaintiff Boule’s
Fourth Amendment Claim presented a new context, and held that no Bivens
remedy could exist under this context because: (1) national security was at
issue, distinguishing the case from the facts of Bivens and making the case
particularly 	ill-suited 	for 	judicial 	intervention, 	id. 	at 	1804-06, 	and,
independently; 	(2) 	“Congress 	ha[d] 	provided 	alternative 	remedies 	for
aggrieved parties in [Plaintiff] Boule’s position that independently foreclose
a Bivens action here,” id. at 1806-07. This was true even though the “set of
facts [presented did not] differ[] meaningfully from those in Bivens itself.” Id.
at 1810 (Gorsuch, J., concurring); see also id. at 1805 (recognizing that
“Bivens and this case . . . arguably present ‘almost parallel circumstances’”
(quoting Ziglar, 137 S. Ct. at 1859)); id. at 1815 (Sotomayor, J., concurring
in part and dissenting in part) (“At bottom, [Plaintiff] Boule’s claim is
materially indistinguishable from the claim brought in Bivens.”).
In providing guidance on how courts in this Circuit are to apply
Egbert, the Tenth Circuit has explained that expanding Bivens “is an action
that is impermissible in virtually all circumstances.” Silva, 45 F.4th at 1140;
see also id. at 1140-41 (noting the similarity between the facts in Egbert and
those in Bivens, and questioning whether any circumstances could exist
where there would be no reason to think that Congress was better equipped
than the courts to create a cause of action). The Tenth Circuit stated that
“the 	Supreme 	Court 	appeared 	to 	alter 	the 	existing 	two-step 	Bivens
framework” and “emphasize[d] what [it] view[ed] as the key takeaway from
Egbert, 	namely, 	that 	courts 	may 	dispose 	of 	Bivens 	claims 	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.’” 	Id. at 1139, 1141
(quoting Egbert, 142 S. Ct. at 1804) (emphasis in original). 	The Tenth
Circuit then held that the existence of the BOP Administrative Remedy
Program constituted an adequate alternative remedy that foreclosed the
plaintiff’s Bivens claim against a BOP corrections officer. Id. at 1141. The
Tenth Circuit declined to address whether there was any reason to think
that Congress might be better equipped to create a damages remedy with
respect to the plaintiff’s claim. Id. at 1141 n.5.
Under this precedent, this Court finds that a Bivens remedy is not
available to Plaintiff. 	Pursuant to Egbert and Silva, the existence of an
alternative remedial scheme available to Plaintiff bars Plaintiff’s Bivens
claim. 	The Court acknowledges that Plaintiff’s claim presents somewhat
“parallel 	circumstances” 	and 	a 	“similar 	mechanism 	of 	injury” 	as 	that
presented 	in 	Carlson—an 	Eighth 	Amendment 	claim 	for 	deliberate
indifference to a prisoner’s medical needs. 	But, under Egbert, factual
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similarity to previous cases no longer appears sufficient to permit a Bivens
claim to proceed.5 According to the Court in Egbert, “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.” 142 S. Ct. at
1809; see also Silva, 45 F.4th at 1140 (“The Supreme Court's rejection of
the plaintiff's Fourth Amendment claim, despite its close resemblance to the
facts of Bivens itself, underscores the extent of the Court’s disfavor towards
Bivens claims.”); Washington v. Fed. Bureau of Prisons, No. CV 5:16-3913-
BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022) (“[Under Egbert], 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 causes of action.’” (quoting Egbert, 142
S. Ct. at 1808)). 	This required “analytical framework” includes asking
whether an “alternative remedial structure” exists. 	Egbert, 142 S. Ct. at
1804. As explained by the Tenth Circuit, the apparent collapsing of the two
steps in the Bivens inquiry means that under Egbert’s framework, courts
should “dispose of Bivens claims for ‘two independent reasons: 	[(1)]
Congress is better positioned to create remedies in the [context considered
by the court], and [(2)] the Government already has provided alternative
remedies that protect plaintiffs.’” 45 F.4th at 1141 (quoting Egbert, 142 S.
Ct. at 1804) (emphasis in original). This second reason asks only if an
alternative remedial structure exists. 	If so, then that alone provides an
“independent means of disposing of Bivens claims,” regardless of their
context. Id.
5 Some courts across the country have disagreed, and have interpreted
Egbert as merely restating the two-step test—concluding that if a claim does
not arise in a “new [factual] context” but is sufficiently similar to claims that
the Supreme Court or governing Circuit caselaw had allowed in the past,
then the analysis ends there and the Bivens claim may proceed even after
Egbert. 	See, e.g., Kennedy v. Massachusetts, No. CV 22-11152-NMG,
2022 WL 17343849, at *4 (D. Mass. Nov. 30, 2022); (“[B]ecause this Court
is not fashioning a new Bivens context, the Court need not consider
alternative remedial structures.”); Ibuado v. Fed. Prison Atwater, No. 1:22-
cv-00651-BAM(PC), 2022 WL 16811880, at *4 (E.D. Cal. Nov. 8, 2022)
(“Plaintiff's medical claim does not present a new Bivens context. In Carlson
v. Green, the Supreme Court found that there was an available Bivens
remedy for a federal prisoner's Eighth Amendment claim for failure to
provide adequate medical treatment. 	The Court will therefore consider
whether Plaintiff states a cognizable claim[] [u]nder the Eighth Amendment.”
(citations omitted))[, report and recommendation vacated, 2023 WL 159568
(E.D. Cal. Jan. 11, 2023)]. 	Bound as it is to Supreme Court and Tenth
Circuit precedent, this Court is unpersuaded that Egbert and Silva permit
this method of analysis.
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13
As the Tenth Circuit made clear in Silva, the availability of the BOP’s
Administrative Remedy Program provided “sufficient ground to foreclose
[the plaintiff’s] Bivens claim.” Id. Because this same administrative remedy
program 	was available to Plaintiff regarding his allegedly inadequate
[medical treatment],6 this Court finds that the existence of this program
forecloses the availability of a Bivens remedy against BOP officials in
Plaintiff’s case, despite any “parallel circumstances” that may exist between
it and Carlson.
Accordingly, the Court RECOMMENDS that Plaintiff’s claims against
[the Individual Defendants] be DISMISSED WITH PREJUDICE due to the
lack of a Bivens remedy.7 	The Court issues this Recommendation fully
aware of the implications of the Recommendation’s rationale. 	Under the
rationale of this Recommendation, a federal prison official may sadistically
beat an inmate to within an inch of his life and that inmate will not have a
civil remedy against that prison official—after all, the inmate may file a
grievance pursuant to the BOP Administrative Remedy Program.8 But the
Court is bound by Egbert and, in this Court’s view, Egbert compels this
conclusion.
Noe Recommendation, 2022 WL 18587706, at *5-9. 	The Noe Recommendation was
adopted and affirmed by the presiding District Judge—who noted the apparent shift in
jurisprudence brought about by Egbert, but also separately determined that Mr. Noe’s
claims “present[ed] a new Bivens context and [were] factually distinct from Carlson.” Noe
6 The BOP Administrative Remedy Program “allow[s] an inmate to seek
formal review of an issue relating to any aspect of his/her confinement.” 28
C.F.R. § 542.10(a). It “applies to all inmates in institutions operated by [the
BOP] . . . .” Id. at § 542.10(b).
7 Dismissal with prejudice is proper under these circumstances, as further
amendment to the Complaint would be futile. 	See Silva, 45 F.4th at 1142
(“In sum, Plaintiff's Bivens claim is foreclosed by the availability of the BOP
Administrative 	Remedy 	Program 	to 	address 	his 	complaint. 	For 	the
foregoing reasons, we AFFIRM the district court's dismissal of Plaintiff's
complaint WITH PREJUDICE.”).
8 To state the obvious, were a state prison official to do the same thing, that
state prison official would be subject to civil liability pursuant to Section
1983. 	See Smith v. Trujillo, 2021 WL 1608829, at *2 (D. Colo. April 26,
2021) (declaring in a pre-Egbert decision that extended a Bivens remedy to
an excessive force claim brought by a federal inmate that “[i]t would be
anomalous that a state prisoner could pursue an excessive force claim
against a correctional officer, but a federal prisoner could not”).
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14
v. United States, No. 21-CV-01589-CNS-STV, 2023 WL 179929, *3 (D. Colo. Jan. 13,
2023), aff’d, No. 23-1025, 2023 WL 8868491 (10th Cir. Dec. 22, 2023) (unpublished).
Mr. Noe appealed, and the Tenth Circuit affirmed the dismissal of his Bivens
claims. Noe v. United States (“Noe”), No. 23-1025, 2023 WL 8868491 (10th Cir. Dec. 22,
2023) (unpublished). In so doing, the Tenth Circuit explained as follows:9
We 	need 	not 	decide 	whether 	Noe’s 	case 	is 	meaningfully
different from Carlson, because in the wake of Egbert and Silva v.
United States, 45 F.4th 1134 (10th Cir. 2022), the availability of the ARP
is sufficient to foreclose a Bivens claim despite any factual similarity
between the two. In Silva, we observed that Egbert “appeared to alter the
existing two-step Bivens framework by stating that ‘those steps often
resolve to a single question: whether there is any reason to think that
Congress might be better equipped to create a damages remedy.’” 45 F.4th
at 1139 (quoting Egbert, 596 U.S. at 492). 	And we viewed “the key
takeaway from Egbert” as being “that courts may dispose of Bivens claims
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.’” 45 F.4th
at 1141 (quoting Egbert, 596 U.S. at 494) (emphasis and brackets in Silva).
We concluded that, in light of Supreme Court precedent, “the [BOP's
Administrative Remedy Program (the “ARP”)] is an adequate ‘means
through which allegedly unconstitutional actions can be brought to the
attention of the BOP and prevented from recurring.’” 	Id. (ellipsis omitted)
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001)). 	And
“‘because Bivens is concerned solely with deterring the unconstitutional
acts of individual officers,’” we determined that “the availability of the ARP
offers an independently sufficient ground to foreclose a Bivens claim”
brought by a federal prisoner. Id. (quoting Egbert, 596 U.S. at 498).10
9 Again, the Court retains the placement and contents of the footnotes contained in the
excerpted section from the Tenth Circuit’s opinion, but renumbers them to align with the
numbering in the instant Recommendation.
10 In Silva, we noted that Egbert did not overrule [Ziglar] and that there was
some tension between [Ziglar’s] two-step approach and Egbert’s apparent
collapsing of those two steps into one. See 45 F.4th at 1139 & n.4. But we
“declined to address or resolve any such tension . . . because it was not
necessary to dispose of the appeal before us.” Id. Likewise, here, we may
decide this appeal without resolving any tension between [Ziglar] and
Egbert given our reliance on Silva’s interpretation of Egbert.
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15
Read 	together, 	Egbert 	and 	Silva 	direct 	that 	where 	the
government has provided an alternative remedy, a court generally
should not recognize a Bivens claim even if the factual context is not
meaningfully different from that in Bivens, Davis, or Carlson. And
here, the ARP, which Silva says is an adequate alternative remedy, is
available to Noe. 	Thus, Noe’s Bivens claim is, as the district court
concluded, not cognizable.
As Noe points out, at least one district court (outside the Tenth
Circuit) has said that if the context is not meaningfully different from Bivens,
Davis, or [Carlson], the analysis ends there, and the Bivens claims can
proceed without the step-two inquiry into whether an adequate alternative
remedy exists. See Kennedy v. Massachusetts, 643 F. Supp. 3d 253, 259
(D. Mass. 2022) (“Because this court is not fashioning a new Bivens context,
the Court need not consider alternative remedial structures.”).11 	But
precedential decisions of this court bind later panels unless there has been
“en banc reconsideration or a superseding contrary decision of the U.S.
Supreme Court.” 	United States v. Ensminger, 174 F.3d 1143, 1147 (10th
Cir. 1999) (internal quotation marks omitted). 	Because neither of those
conditions is satisfied, we are bound by Silva’s interpretation of Egbert.
Noe, 2023 WL 8868491, at *3 (emphasis in the first sentence and second paragraph
added) (brackets in original omitted unless otherwise noted).
To summarize, in this Court’s view, Egbert eviscerates the availability of a Bivens
remedy for individuals in BOP custody who bring claims that fall within the scope of the
BOP Administrative Remedy Program12—such as Plaintiff. This is true regardless of any
factual similarity between an inmate’s claim and those presented in Bivens, Davis, or
Carlson. 	Silva solidifies this interpretation within the Tenth Circuit, as reiterated by that
court in Noe.
11 Noe relies on another case taking the same approach, Ibuado v. Federal
Prison Atwater, No. 1:22-cv-00651, 2022 WL 16811880, at *4 (E.D. Cal.
Nov. 	8, 	2022) 	(unpublished), 	but 	that 	decision—a 	magistrate judge's
recommendation—was vacated by the magistrate judge before the district
court ever ruled on it, see 2023 WL 159568, at *1 (E.D. Cal. Jan. 11th, 2023)
(unpublished).
12 The BOP Administrative Remedy Program “allow[s] an inmate to seek formal review of
an issue relating to any aspect of his/her confinement.” 28 C.F.R. § 542.10(a). It “applies
to all inmates in institutions operated by [the BOP] . . . .” Id. at § 542.10(b).
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16
Plaintiff argues that Egbert did not alter the two-step process for determining the
availability of a Bivens remedy, and that a remedy exists in this case because Plaintiff’s
claims do not arise in a materially different context than Carlson. [#174 at 4-8] Plaintiff
relies on the factual similarities between this case and Carlson, and points out that, post-
Egbert, numerous courts have permitted Bivens claims to proceed in cases involving “run-
of-the-mill deliberate indifference claim[s] against BOP medical providers.” 	[Id. at 8-9;
see also id. at 9-12 & n.2] As for the Tenth Circuit’s opinion in Noe, which explicitly rejects
Plaintiff’s basic argument here, Plaintiff notes that the opinion is unpublished and not
precedential,13 and asserts that it is wrongly decided. 	[#186 at 1-2] 	The Court
appreciates the argument and thorough research by Plaintiff’s counsel, and is aware that
Mr. Noe was proceeding pro se in the matter discussed at length above. 	But the Court
simply cannot agree that, under Egbert and Silva, the factual similarities between this
case and Carlson suffice to allow a Bivens claim to proceed. 	As it did in Silva (and,
persuasively, in Noe), the availability of the BOP Administrative Remedy Program
provides an “independently sufficient ground to foreclose [Plaintiff’s] Bivens claim.” Silva,
45 F.4th at 1141; Noe, 2023 WL 8868491, at *3; see also Egbert, 596 U.S. at 492-93
(explaining that “a new context arises when there are potential special factors that
previous Bivens cases did not consider,” and that an alternative remedial structure is such
a “special factor” (quotation omitted)); id. at 500-01 (citing Carlson’s analysis of alternative
remedies as an example of outdated analysis that “predates [the Court’s] current
13 Unpublished decisions from the Tenth Circuit are not binding, but the Court may
consider them for their persuasive value. See Anderson v. Spirit Aerosystems Holdings,
Inc., 827 F.3d 1229, 1240 n.7 (10th Cir. 2016); 10th Cir. R. 32.1(A) (“Unpublished
decisions are not precedential, but may be cited for their persuasive value.”).
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17
approach to implied causes of action and diverges from the prevailing framework in . . .
important ways”).
This Court is keenly aware of, and troubled by, the “fundamentally unjust legal
state of affairs” that flows from this Recommendation’s rationale. Straker v. Stancil, No.
20-CV-3478-WJM-STV, 2023 WL 4962147, at *4 (D. Colo. Aug. 3, 2023) (“The slow and
steady evisceration of Bivens by the Supreme Court over the years, coupled with the
persistent failure on the part of Congress to provide federal prisoners like [Plaintiff] with a
statutory remedy to address intentional official misconduct as alleged herein, has created
a fundamentally unjust legal state of affairs. Congress must act promptly to rectify this
gaping void in the remedies available to federal prisoners subjected to unconscionable
misconduct on the part of federal corrections officers.”). 	For decades, the fact that
“individual instances of discrimination or law enforcement overreach”—such as those
encountered by federal prisoners—are, “due to their very nature[,] . . . difficult to address
except by way of damages actions after the fact” was of “central importance” to the
Supreme Court in assessing the availability of a Bivens claim. 	Ziglar, 582 U.S. at 144.
But the Supreme Court has since made perfectly clear that asking whether a wrong, even
one of constitutional magnitude, will otherwise go unredressed is no longer a “relevant
question” to this analysis. 	Egbert, 596 U.S. at 493 (citing Bush v. Lucas, 462 U.S. 367,
388 (1983)); but see Bell v. Hood, 327 U.S. 678, 684 (1946) (“[W]here federally protected
rights have been invaded, it has been the rule from the beginning that courts will be alert
to adjust their remedies so as to grant the necessary relief.”); Marbury v. Madison, 5 U.S.
137, 163 (1803) (“The government of the United States has been emphatically termed a
government of laws, and not of men. It will certainly cease to deserve this high appellation,
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18
if the laws furnish no remedy for the violation of a vested legal right.”). 	As a result, this
Court, 	bound 	as 	it 	is 	by 	Egbert 	and 	by 	congressional 	inaction, 	respectfully
RECOMMENDS that the Motion be GRANTED and that Plaintiff’s claims against Jennifer
Seroski and Dr. D. Oba be DISMISSED WITH PREJUDICE due to the lack of a Bivens
remedy.14
IV. 	CONCLUSION
For the reasons set forth above, the Court respectfully RECOMMENDS that the
Individual Defendant’s Motion to Dismiss Bivens Claims be GRANTED and that Plaintiff’s
claims against Jennifer Seroski and Dr. D. Oba be DISMISSED WITH PREJUDICE.15
14 Dismissal with prejudice is proper under these circumstances, as further amendment
to the Complaint would be futile. See Silva, 45 F.4th at 1142 (“In sum, Plaintiff's Bivens
claim is foreclosed by the availability of the BOP Administrative Remedy Program to
address his complaint. For the foregoing reasons, we AFFIRM the district court's
dismissal of Plaintiff's complaint WITH PREJUDICE.”).
15 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
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19
DATED: February 5, 2024 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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