Noe v. Seroski et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Christine M. Arguello
Civil Action No. 21-cv-03340-CMA-STV
(Consolidated with Civil Action No. 23-cv-00695-CMA-STV)
PETER GEORGE NOE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
JENNIFER SEROSKI, and
DR D. OBA,
Defendants.
ORDER OVERRULING PLAINTIFF’S OBJECTION AND AFFIRMING FEBRUARY 5,
2024 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the February 5, 2024 Recommendation (Doc.
# 188) of United States Magistrate Judge Scott T. Varholak, wherein Judge Varholak
recommends granting Defendants Dr. D. Oba and Jennifer Seroski’s (collectively
“Individual Defendants”) Motion (Doc. # 160) to Dismiss Bivens Claims. Plaintiff Peter
George Noe, objects to that Recommendation. (Doc. # 189.) For the following reasons,
the Court overrules Mr. Noe’s Objection and affirms Judge Varholak’s
Recommendation.
I. 	BACKGROUND
Judge Varholak’s Recommendation provides a thorough recitation of the factual
and procedural background of this case. (Doc. # 188 at 2–6.) The Recommendation is
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incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Accordingly, the Court will reiterate only the facts necessary to address Mr. Noe’s
Objection.
This litigation revolves around medical care, and the alleged lack thereof,
provided to Mr. Noe between fall 2020 and late 2022, while incarcerated at the United
States Penitentiary ADMAX in Florence, Colorado. See generally (Doc. # 1.) At all
relevant times the Individual Defendants were medical providers employed or
contracted by the Federal Bureau of Prisons (“BOP”) and responsible for meeting Mr.
Noe’s medical needs. (Id. at ¶¶ 7–8.) Mr. Noe brings two claims for relief: (1) negligence
pursuant to the Federal Tort Claims Act against the United States; and (2) deliberate
indifference to serious medical needs in violation of Mr. Noe’s Eighth Amendment rights
against Dr. Oba and Ms. Seroski in their individual capacities. (Id. at ¶¶ 69–100.) Mr.
Noe brings this second claim pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), and alleges that the Individual Defendants
failed to provide timely medical care and deliberately chose not to take appropriate
medical action despite knowledge of a substantial risk of serious harm to Mr. Noe. (Id.
at ¶ 87.)
On October 11, 2023, the Individual Defendants filed the instant partial Motion to
Dismiss seeking to dismiss the Bivens claims against them pursuant to Federal Rules of
Civil Procedure 12(b)(6). (Doc. # 160.) Following full and supplemental briefing, Judge
Varholak issued his Recommendation on February 5, 2024. (Doc. # 188.) Judge
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Varholak recommends that the Motion be granted and that Mr. Noe’s claims against the
Individual Defendants be dismissed with prejudice. (Id. at 18.)
Mr. Noe, represented by counsel, timely filed an Objection on February 20, 2024.
(Doc. # 189.) Defendants responded on March 5, 2024. (Doc. # 190.) Thus, the matter
is ripe for review.
II. 	LEGAL STANDARDS
A. 	REVIEW OF A MAGISTRATE JUDGE’S RECOMMENDATION
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommended] disposition that has been
properly objected to.” In conducting the review, “[t]he district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). To be properly made
and, therefore, to preserve an issue for de novo review by the district judge, an
objection must be both timely and specific. United States v. One Parcel of Real Property
Known As 2121 East 30th Street, 73 F.3d 1057, 1059–60 (10th Cir. 1996). An objection
is proper if it is specific enough to enable the “district judge to focus attention on those
issues—factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059
(internal quotation marks omitted).
B. 	FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” “The
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court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff's complaint alone is
legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start,
Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (internal quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of [a] plaintiff's
factual allegations are true and construes them in the light most favorable to the
plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. However, the Court need not accept conclusory allegations without
supporting factual averments. S. Disposal, Inc. v. Tex. Waste Mgmt., 161 F.3d 1259,
1262 (10th Cir. 1998). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Nor
does the complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (internal quotation marks and brackets omitted).
III. 	ANALYSIS
In his Recommendation, Judge Varholak quoted extensively from a previous
recommendation from one of Mr. Noe’s earlier cases in which Judge Varholak
considered the availability of a Bivens remedy under similar circumstances, Noe v.
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United States, 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) (“Noe I”). In Noe I, Mr. Noe brought an Eighth Amendment
deliberate indifference claim against individual dental and medical providers for
allegedly inadequate medical treatment. Noe I, 2023 WL 8868491 at *1.
The quoted portion of the Noe I recommendation laid out in detail the history of
the United States Supreme Court’s Bivens jurisprudence, from creation, to expansion,
to constriction. (Doc. # 188 at 7–11 (quoting Noe I, 2022 WL 18587706, at *5–*7).) As
important to the instant case, Judge Varholak noted that Carlson v. Green, 446 U.S. 14
(1980), established Eighth Amendment deliberate indifference claims arising out of
inadequate medical treatment as one of only three categories of recognized Bivens
actions. (Doc. # 188 at 9 (quoting Noe I, 2022 WL 18587706, at *6).) When Bivens
actions began to be judicially disfavored, however, the Supreme Court instructed district
courts to apply a two-step approach for determining whether a plaintiff could seek
damages for constitutional violations by federal officials:
First, the Court asked whether the case presented ‘a new Bivens context’
such that it was ‘different in a meaningful way from’ . . . Carlson. [Ziglar v.
Abassi, 582 U.S. 120, 122 (2017)]. 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 [136].
(Doc. # 188 at 9 (quoting Noe I, 2022 WL 18587706, at *6).)
Judge Varholak then explained that in Egbert v. Boule, 596 U.S. 482 (2022), the
Supreme Court again “tightened the vice around Bivens.” (Doc. # 188 at 9 (quoting Noe
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I, 2022 WL 18587706, at *7).) Judge Varholak went on to analyze Silva v. United
States, 45 F.4th 1134 (10th Cir. 2022), the then-most recent guidance from the United
States Court of Appeals for the Tenth Circuit regarding Egbert:
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.
(Doc. # 188 at 11 (quoting Noe I, 2022 WL 18587706, at *8) (modifications in the
recommendation maintained).)
Relying on this case law, and on the Tenth Circuit’s affirmance of Noe I, Judge
Varholak concluded that Egbert, as interpreted by the Tenth Circuit,
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 Program—such as [Mr. Noe]. This is true regardless
of any factual similarity between an inmate’s claim and those presented in
. . . Carlson. Silva solidifies this interpretation within the Tenth Circuit, as
reiterated by that court in Noe [I].
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(Doc. # 188 at 15 (footnote omitted).) Judge Varholak recognized Mr. Noe’s arguments
that (1) Egbert did not alter the two-step approach directed by Ziglar, (2) numerous
courts (mostly outside the Tenth Circuit) have permitted Bivens deliberate indifference
claims against medical providers to proceed,1 and (3) the Tenth Circuit’s decision in
Noe I is unpublished and not precedential. (Id. at 16 (citing Doc. # 174 at 8–12, n.2.))
Despite these arguments, and a recognition of the “fundamentally unjust legal state of
affairs” that flows from his legal reasoning, Judge Varholak concluded that he “simply
[could not] agree that, under Egbert and Silva, the factual similarities between this case
and Carlson suffice to allow a Bivens claim to proceed.” (Id. at 16–17 (quoting Straker v.
Stancil, No. 20-CV-3478-WJM-STV, 2023 WL 4962147, at *4 (D. Colo. Aug. 3, 2023).)
1 Mr. Noe points to two cases from this district which support his position that Egbert, as
interpreted by the Tenth Circuit in Silva, did not alter the sequential two-step analysis prescribed
by Ziglar: (1) Straker v. Stancil, No. 20-cv-3478-WJM-STV, 2023 WL 4962147, at *4 (D. Colo.
Aug. 3, 2023), and (2) Smith v. Trujillo, No. 20-cv-0877-RBJ-STV, 2023 WL 5434715, at *3 (D.
Colo. April 27, 2023). Smith asserted that, “[i]f (and only if) the circumstances at issue present
‘meaningful differences’ from those [three] established [Bivens] contexts, the court then
assesses whether any special factors counsel hesitation in implying a remedy.” 2023 WL
5434715, at *3 (citing Silva, 45 F.4th at 1139). However, the court then concluded that Silva
squarely precluded Mr. Smith’s Eighth Amendment excessive force claim because Silva “implies
the proposition that all excessive force claims (or at the very least, those factually analogous to
Silva) present new Bivens contexts,” and thus fail under Ziglar’s first step. Id. Straker concluded
that a Bivens remedy was available for plaintiff’s Eighth Amendment claim of deliberate
indifference to inadequate medical care because such claims had been “explicitly recognized as
a viable Bivens action in Carlson,” 2023 WL 4962147, at *3 (citing Egbert, 596 U.S. at 490–91),
but that the plaintiff had failed to adequately counter defendants’ assertions of qualified
immunity. Id. at *5–*6.
For the reasons outlined below, the Court disagrees with Smith and Straker’s reading of Egbert
as interpreted by the Tenth Circuit in Silva. See Camreta v. Greene, 563 U.S. 692, 709 n.7
(2011); see also United States v. Rhodes, 834 F. App’x 457, 462 (10th Cir. 2020) (“[D]istrict
courts in this circuit are bound by [Tenth Circuit] decisions and those of the United States
Supreme Court Court—they are not bound by decisions of other district courts”). Further, in this
Court’s view, any doubts remaining on the issue of whether Ziglar’s two-step framework
remained intact following Egbert and Silva was dispelled by Logsdon v. U.S. Marshal Serv., 91
F.4th 1352 (10th Cir. 2024), which post-dates both Smith and Straker.
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On the same day that Judge Varholak issued his Recommendation, the Tenth
Circuit published another case, Logsdon v. U.S. Marshal Serv., 91 F.4th 1352 (10th Cir.
2024), which relied on Egbert to conclude that a Bivens remedy did not exist for Mr.
Logsdon. Summarizing its understanding of Egbert, the Tenth Circuit stated:
Without 	explicitly 	overruling 	its 	three 	acknowledged 	precedents 	[that
established Bivens remedies in similar contexts], the [Supreme] Court has
shown an increasing willingness to distinguish them, now stating that the
ultimate question to ask when determining whether the courts should
recognize a Bivens cause of action not created by Congress is ordinarily
only “whether there is any reason to think that Congress might be better
equipped to create a damages remedy. . . . And the circumstances in which
the answer to the question is “no” appears to comprise a null set.
91 F.4th at 1355 (quoting Egbert, 596 U.S. at 492, and citing id. at 503 (Gorsuch, J.,
concurring)). The Tenth Circuit went on to say, “perhaps even more striking, the
[Supreme] Court has justified a departure from those precedents even when the facts
are virtually the same if the government can provide a reason for not recognizing a
cause of action that was not considered in the applicable precedent.” Id. Such a reason
includes, in the Tenth Circuit’s reading, the existence of an alternative remedial process
which was not considered in the precedential case. Id. at 1356–57.
Following its summary of Egbert, the Tenth Circuit in Logsdon “conclude[ed their]
analysis should focus on that single question,” id. at 1357, “whether there is any reason
to think that Congress might be better equipped to create a damages remedy.” Id.
(quoting Egbert, 596 U.S. at 492). The Tenth Circuit then found three features of
Logsdon that meaningfully differed from Bivens, one of which was “the existence of
other remedies for misconduct.” Id. at 1357. The Tenth Circuit explained that Egbert
instructed:
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“So 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.
That is true even if a court independently concludes that the Government’s
procedures are not as effective as an individual damages remedy.”
Id. at 1359 (quoting Egbert, 596 U.S. at 498) (omission of internal quotation marks
maintained). Even though Mr. Logsdon argued that the alternative remedial process
available to him was ineffective, and existed prior to Bivens, the Court concluded such
arguments were inapposite because, under Ziglar, “a departure from the Bivens
precedents may be justified by the ‘presence of potential special factors that previous
Bivens cases did not consider.’” Id. at 1360–61 (quoting Ziglar, 582 U.S. at 140).
Accordingly, the Tenth Circuit affirmed the district court’s dismissal of Mr. Logsdon’s
Bivens action. Id. at 1361.
Mr. Noe objects to the Recommendation’s conclusion that his Eighth Amendment
deliberate indifference claim against the Individual Defendants should be dismissed for
lack of a Bivens remedy. Mr. Noe asserts that this claim should be allowed to proceed
because it “does not meaningfully differ from Carlson v. Green, 446 U.S. 14 (1980),
[and] the analysis ends there, without consideration of whether an adequate alternative
remedy exists.” (Doc. # 189 at 2.) Mr. Noe argues that Judge Varholak’s legal reasoning
errs because (1) Noe I was wrongly decided and departed from Egbert which did not
overrule the two-step framework, and (2) Silva did not overrule Ziglar because Silva
sought to expand Bivens and therefore “addressed the second step of the inquiry in
determining whether the claim could move forward; it did not collapse the steps into
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one.” (Id. at 2 (quoting Silva, 45 F.4th at 1139–40).) Mr. Noe does not address Logsdon
in his objection.
Despite Mr. Noe’s arguments to the contrary, and despite his contrasting
caselaw, the Tenth Circuit explicitly reads Egbert as “appear[ing] to alter the existing
[Ziglar] two-step Bivens framework.” Silva, 45 F.4th at 1139. Thus, reading Egbert
together with Silva—as is required of this Court—the Court sees two potential avenues
for district courts in the Tenth Circuit: either (1) the two Ziglar questions remain, but
following Egbert, the order of consideration is immaterial because an affirmative answer
to either provides an “independent reason” to deny a Bivens remedy, or (2) the two
questions have collapsed into one because the existence of an “alternative remedial
structure” or other “special factors” not considered in Bivens/Carlson is both a
“meaningful difference” and an indication that “Congress might be better equipped to
create a damages remedy.” Ziglar, 582 U.S. at 122, 136; Egbert, 596 U.S. at 492; Silva,
45 F.4th at 1141 n.5; 91 F.4th at 1357.
In Logsdon, although not explicitly mandating one of these analytical frameworks,
the Tenth Circuit clearly indicates a preference for the latter. 91 F.4th at 1357 (“In this
case we conclude our analysis should focus on that single question.”) Of course,
whichever framework is used, the outcome in this case is the same, the existence of an
alternative remedial process not considered in Carlson—including the BOP
Administrative Remedy Program—forecloses the availability of Bivens to plaintiffs
seeking damages for constitutional violations by federal officials. Silva, 45 F.4th at 1141;
Noe I, 2023 WL 8868491, at *3; see also Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 74
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(2001) (explaining that Bivens relief was unavailable where a federal prisoner could,
amongst other options, file grievances through the Administrative Remedy Program).
Mr. Noe does not dispute that his allegations of deliberately indifferent medical
care fall within the BOP’s Administrative Remedy Program. See generally (Doc. # 190.)
Pursuant to the case law outline above, the Court has no choice but to dismiss Mr.
Noe’s Bivens claim against Dr. Oba and Ms. Seroski. See Rhodes, 834 F. App’x at 462.
The Court adds its voice to those of its colleagues in calling on Congress to “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.”
Straker, 2023 WL 4962147, at *4.
IV. 	CONCLUSION
For the foregoing reasons, it is ORDERED as follows:
• 	Plaintiff Peter George Noe’s Objection (Doc. # 189) is OVERRULED;
• 	the February 5, 2024 Recommendation of United States Magistrate Judge (Doc.
# 188) is AFFIRMED AND ADOPTED;
• 	the Defendants Dr. D. Oba and Jennifer Seroski’s Motion to Dismiss (Doc. # 160)
is GRANTED; and
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• 	Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs
claim against the Individual Defendants brought pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), is
DISMISSED WITH PREJUDICE.
DATED: April 4, 2024
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
Senior United States District Judge
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