Bien-Aime v. MDC Brooklyn Warden et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ELIJAH BLAISE BIEN-AIME,
Plaintiff,
v.
LIEUTENANT STEDMAN FERGUSON,
CORR. COUNSELOR DEBRA GIEBFRIED,
CORR. OFFICER ANTHONY COSME,
CORR. OFFICER ANTHONY CARIC, and
CAPTAIN CARLOS RODRIGUEZ,
Defendants.
MEMORANDUM & ORDER
24-CV-03667 (HG)
HECTOR GONZALEZ, United States District Judge:
Plaintiff Elijah Bien-Aime, a Bureau of Prisons (“BOP”) inmate who commenced this
proceeding pro se,1 brings this action alleging that Defendants, various employees of the
Metropolitan Detention Center in Brooklyn (“MDC”), subjected him to “inhumane” living
conditions while he was detained at the MDC. Because Plaintiff brings this action against
federal officers, the Court construes his complaint as asserting claims under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”).
See ECF No. 1 (“Initial Complaint”).2 Specifically, Plaintiff alleges that Defendants violated his
constitutional rights under the First, Eighth, and Fourteenth Amendments. Id. Defendants move
to dismiss the Complaint. See ECF No. 22 (Mot. to Dismiss). For the reasons that follow, the
Court GRANTS Defendants’ motion and dismisses the complaint in its entirety.
1 	Plaintiff engaged counsel after Defendants filed their motion to dismiss.
2 	Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits
all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court
refers to the pages assigned by the Electronic Case Files system (“ECF”).
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 1 of 14 PageID #:
<pageID>

2
BACKGROUND
I. 	Factual History3
On January 22, 2022, Plaintiff robbed a convenience store in Brooklyn. See United
States. v. Bien-Aime, No. 22-cr-0133 (E.D.N.Y. Feb. 6, 2024), ECF No. 7. He was arrested
about three months later and indicted shortly thereafter. Id. On April 11, 2023, Plaintiff pleaded
guilty, see id. at April 11, 2023, Text Order, and in February 2024, the Court sentenced him to 85
months’ imprisonment, two years’ supervised release, and restitution of $12,100, id. at ECF
No. 48.
In connection with that sentence, Plaintiff was held at the MDC until March 12, 2024,
during which time he spent approximately two weeks (from February 14, 2024, to February 26,
2024) in the MDC’s Special Housing Unit (“SHU”). ECF No. 22-3 ¶ 5; ECF No. 27-1 ¶ 3.4
Plaintiff was then transferred to the Federal Correctional Institution in Lewisburg, Pennsylvania
(“FCI Lewisburg”), before he was transferred to the United States Penitentiary Big Sandy in
Inez, Kentucky (“USP Big Sandy”), where he is currently incarcerated. ECF No. 27-1 ¶ 3.
3 	The Court “recite[s] the substance of the allegations as if they represented true facts, with
the understanding that these are not findings of the [C]ourt, as [I] have no way of knowing at this
stage what are the true facts.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d
Cir. 2021).
4 	Plaintiff submitted a Declaration in support of his opposition to Defendants’ motion to
dismiss (ECF No. 27-1 (the “Additional Declaration”)). In the Additional Declaration, he sets
out allegations concerning his attempts to obtain and submit BOP forms seeking administrative
remedies (i.e., BP-8 and BP-9 forms) to relevant parties at the MDC, as well as his efforts to
submit similar forms (BP-10 and BP-11 forms) while at USP Big Sandy. See id. Plaintiff also
alleges Defendants threatened to retaliate against him when he attempted to seek administrative
remedies. See id.
Given that Plaintiff initially proceeded pro se, the Court construes his Additional
Declaration as additional factual allegations and considers them for the purposes of the instant
motion. See West v. Harkness, No. 17-cv-0621, 2021 WL 5321958, at *5 (N.D.N.Y. Nov. 16,
2021) (“if the filing party was proceeding pro se at the time of filing, the filing party is entitled to
an extra-liberal construction, even if he or she became represented at a later time”).
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 2 of 14 PageID #:
<pageID>

3
Plaintiff’s allegations in the instant case center around events that allegedly occurred
during his time in the MDC’s SHU. He alleges that he was subjected to “inhumane conditions”
during that twelve-day period, namely, that his constitutional rights under the First, Eighth, and
Fourteenth Amendments were violated because: (1) the lighting and heating systems of his cell
in the SHU did not work; (2) the mattress in that cell was too thin and short; (3) he was denied
access to the law library; (4) he was prohibited from buying stamps and hygiene supplies; and
(5) he was denied access to the MDC’s barbershop. ECF No. 7 at 4.
He also alleges that he attempted to file a complaint regarding the conditions of his
confinement using the BOP’s Administrative Remedy Program (“ARP”) on multiple occasions
but was unsuccessful each time, and that MDC staff threatened him with violence or additional
time in the SHU if he continued to complain. ECF No. 1-2 at 3; ECF No. 27-1 ¶¶ 8, 9.
Plaintiff’s allegations concerning BOP’s ARP focus on various BOP forms. In connection with
his time in the SHU, Plaintiff alleges that he requested a BP-8 form approximately eight or nine
times from various MDC employees, including Defendant Debra Giebfried, the Correctional
Counselor assigned to his floor, as well as Defendants Lieutenant Stedman Ferguson, Captain
Carlos Rodriguez, Correction Officer Anthony Caric, and Correction Officer Anthony Cosme,
but each time, Defendants refused to provide the form he requested. ECF No. 27-1 ¶ 9. Plaintiff
further alleges that, on one occasion, Officers Caric and Cosme threatened to withhold food from
him if he continued to complain about the heating and lighting in his cell. Id. When Plaintiff
eventually obtained a BP-8 form from a staff member on a different floor, no one was willing to
accept it. Id. ¶10–12. Plaintiff also alleges that, in connection with his efforts to submit BP-8
forms, Defendant Giebfried threatened him and told him that if he returned to her unit after his
time in the SHU, she would “make sure” that he got sent back there. Id. ¶ 11. And he alleges
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 3 of 14 PageID #:
<pageID>

4
that, after being threatened by Defendant Giebfried, he attempted to submit the BP-8 form to
Schnahider Demosthenes, his Unit Manager at the MDC who was responsible for “overseeing
certain aspects of the Administrative Remedy Program,” but Demosthenes refused to accept the
form. Id. ¶ 12; ECF No. 22-3.
After he was unable to submit his BP-8 form, Plaintiff sought to escalate his concerns and
submit a BP-9 form. ECF No. 27-1 ¶ 13. Plaintiff alleges that he obtained a BP-9 form from a
Unit Manager on a different floor after members of his unit team again denied his requests for
the form on multiple occasions. Id. Similar to the BP-8 form, Plaintiff alleges that Defendant
Giebfried refused to accept the completed BP-9 form and “cursed at” him when he tried to
submit it. Id.
On March 12, 2024, Plaintiff was transferred from the MDC to FCI Lewisburg, and was
later moved to USP Big Sandy. ECF No. 22-3 ¶ 5; id. ¶ 3. At USP Big Sandy, where Plaintiff
also spent time in the facility’s SHU, Plaintiff alleges that he was eventually able to submit BP-8
and BP-9 forms concerning his conditions at the MDC SHU, but that unit staff later returned the
forms without explanation and threatened to place him in the SHU for a longer period if he
attempted to file the forms. ECF No. 27-1 ¶ 16.
Notably, while Plaintiff did not bring administrative claims in connection with this
action, he filed administrative claims at the MDC on at least four occasions before February
2024, when the alleged events underlying the instant matter are alleged to have occurred. ECF
No. 22-1 ¶ 7; ECF No. 22-6 at 13.
II. 	Procedural History
Plaintiff originally filed his complaint pro se on May 15, 2024, see ECF No. 1, and
attached a document, titled “Motion of Intent to File for Civil Rights Violation,” ECF No. 1-2,
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 4 of 14 PageID #:
<pageID>

5
but due to a filing error, several pages were omitted from the complaint. After he was notified of
the filing error, Plaintiff re-filed his complaint with all the pages included, but without the
attachment. See ECF No. 7 (“Corrected Complaint”).5 On March 13, 2025, Defendants filed
their motion to dismiss. See ECF No. 22. About two weeks after Defendants filed their motion,
counsel filed notices of appearance on behalf of Plaintiff, see ECF Nos. 24–26, and on May 13,
2025, Plaintiff (now represented by counsel) filed his opposition to the motion to dismiss, ECF
No. 27. On June 13, 2025, Defendants filed their reply. See ECF No. 32.
LEGAL STANDARD
I. 	Federal Rule of Civil Procedure Rule 12(b)(1)
When a party moves to dismiss under Rule 12(b)(1) as well as on other grounds, courts
“consider the Rule 12(b)(1) challenge first” because if a court finds that it lacks subject matter
jurisdiction, then the Defendants’ other “defenses and objections become moot and do not need
to be determined.” Daly v. Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019). “A district court
properly dismisses an action under [Rule 12(b)(1)] for lack of subject matter jurisdiction if the
court lacks the statutory or constitutional power to adjudicate it.” Cortlandt St. Recovery Corp.
v. Hellas Telecomms. S.à.r.l., 790 F.3d 411, 416–17 (2d Cir. 2015). “A plaintiff asserting subject
matter jurisdiction must prove by a preponderance of the evidence that it exists.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering a motion to dismiss for lack of
subject matter jurisdiction, a “district court must take all uncontroverted facts in the complaint
5 	For the sake of clarity, the Court’s references to the “Corrected Complaint” refer to
Plaintiff’s complete complaint, i.e., ECF No. 7, and the Motion of Intent to File for Civil Rights
Violation attached to the original complaint, i.e., ECF No. 1-2. The Court considers the factual
allegations contained therein in light of Plaintiff’s pro se status at the time of filing and because
that attachment expands on the facts alleged in the Corrected Complaint. See DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (In considering a motion to dismiss, “a
district court may consider the facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by reference in the complaint.”).
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 5 of 14 PageID #:
<pageID>

6
(or petition) as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.
2014). Furthermore, for purposes of assessing jurisdiction, the Court must assume that
Plaintiff’s legal claims “would be successful on the merits.” See Clementine Co., LLC v. Adams,
74 F.4th 77, 83 (2d Cir. 2023).
II. 	Federal Rule of Civil Procedure Rule 12(b)(6)
In order to survive a motion to dismiss under Rule 12(b)(6), the complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim is plausible ‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be
true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
In addition to requiring sufficient factual matter to state a plausible claim for relief, Rule
8 of the Federal Rules of Civil Procedure requires a plaintiff to provide a short, plain statement
of the claim against the defendant so that the defendant has adequate notice of the claims being
asserted. See Iqbal, 556 U.S. at 677–78 (Rule 8 “demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.”). A pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Id. at 678. To satisfy this standard, the
complaint must, at a minimum “disclose sufficient information to permit the defendant to have a
fair understanding of what the plaintiff is complaining about and to know whether there is a legal
basis for recovery.” Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000). “Plaintiff must allege
sufficient facts to state a plausible claim against each defendant named in his amended
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 6 of 14 PageID #:
<pageID>

7
complaint.” Mitchell v. Macy’s Inc., No. 17-cv-1845, 2017 WL 11453552, at *4 (S.D.N.Y. May
3, 2017).
III. 	Plaintiff’s Pro Se Status
A pro se complaint “must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court’s obligation “to
construe a pro se complaint liberally” continues to apply “[e]ven after Twombly” established the
plausibility standard for assessing pleadings. Newsome v. Bogan, 795 F. App’x 72, 72 (2d Cir.
2020). “A pro se litigant, however, is not exempt ‘from compliance with relevant rules of
procedural and substantive law.’” Ramos-Nunez v. United States, No. 14-cr-102, 2019 WL
1300811, at *4 (S.D.N.Y. Mar. 21, 2019) (quoting Traguth v. Zuck, 710 F.2d 90, 96 (2d Cir.
1983)).6
IV. 	The Bivens Framework
In Bivens, the Supreme Court recognized “an implied private action for damages against
federal officers alleged to have violated a citizen’s constitutional rights.” McGowan v. United
States, 825 F.3d 118, 123 (2d Cir. 2016). There, the Supreme Court implied a private right of
action under the Fourth Amendment for an unreasonable search and seizure claim against federal
narcotics agents for handcuffing a man in his own home without a warrant. Bivens, 403 U.S. at
389. Since then, the Supreme Court has recognized Bivens claims in only two other
circumstances: (1) under the Fifth Amendment’s due process clause for gender discrimination
against a Congressman for firing his female secretary, see Davis v. Passman, 442 U.S. 228
(1979); and (2) under the Eighth Amendment’s prohibition on cruel and unusual punishment
6 	In this case, the Court applies the less stringent pro se pleading standard by considering
all facts alleged by Plaintiff, including the additional allegations submitted in his Opposition
after he obtained counsel. See West, 2021 WL 5321958, at *5.
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 7 of 14 PageID #:
<pageID>

8
against prison officials for failure to treat an inmate’s asthma which led to his death, Carlson v.
Green, 446 U.S. 14 (1980).
“Since these cases, the [Supreme] Court has not implied additional causes of action under
the Constitution. Now long past the heady days in which th[e] [Supreme] Court assumed
common-law powers to create causes of action, [the Supreme Court] ha[s] come to appreciate
more fully the tension between judicially created causes of action and the Constitution’s
separation of legislative and judicial power.” Egbert v. Boule, 596 U.S. 482, 491 (2022).
“Given the notable change in the [Supreme] 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.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). When asked to imply a Bivens
action, the Supreme Court’s “watchword is caution” and “[e]ven a single sound reason to defer
to Congress is enough to require a court to refrain from creating such a remedy.” Egbert, 596
U.S. at 491.
The Supreme Court has instructed district courts to proceed in two steps when analyzing
a Bivens claim: first, “ask whether the case presents a new Bivens context—i.e., is it
meaningfully different from the three cases in which the Court has implied a damages action,”
then, “if a claim arises in a new context, a Bivens remedy is unavailable if there are special
factors indicating that the Judiciary is at least arguably less equipped than Congress to weigh the
costs and benefits of allowing a damages action to proceed.” Id. at 492. However, “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. Furthermore, “a court may not fashion a
Bivens remedy if Congress already has provided, or has authorized the Executive to provide, an
alternative remedial structure.” Id. at 493.
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 8 of 14 PageID #:
<pageID>

9
DISCUSSION
Defendants argue this action should be dismissed for the following reasons: (1) the Court
lacks subjective matter jurisdiction because Plaintiff failed to exhaust his administrative
remedies prior to bringing this action; (2) Plaintiff fails to state a cognizable Bivens claim; and
(3) Plaintiff’s claims seeking injunctive relief regarding the conditions of his confinement at the
MDC became moot upon his transfer out of that facility.7 See ECF No. 22-6.8
In response, Plaintiff, now represented by counsel, argues that his complaint should not
be dismissed because (1) exhaustion under the Prison Litigation Reform Act (“PLRA”) is not a
jurisdictional prerequisite, and (2) he had no administrative remedies available before bringing
this action. See ECF No. 27 at 12–21.
I. 	Subject Matter Jurisdiction
The Court first addresses the Rule 12(b)(1) issue. See Daly, 939 F.3d at 426. Defendants
argue that the Court lacks subject matter jurisdiction with respect to Plaintiff’s PLRA claim
because Plaintiff failed to exhaust his administrative remedies under the BOP’s ARP before
bringing this lawsuit. See ECF No. 22-6 at 11.
7 	The Court agrees with Defendants’ argument that injunctive relief related to the
conditions of his confinement at MDC is no longer appropriate because Plaintiff has been
transferred out of the MDC. See ECF No. 22-6 at 23–24; see also Deutsch v. Morton, 101 F.3d
683 (2d Cir. 1996) (“A transfer between prisons renders moot a suit for injunctive relief.”). In
any event, because Plaintiff failed to address the issue of injunctive relief in his Opposition, that
claim is abandoned. See Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-cv-
442, 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage . . ., a
plaintiff abandons a claim by failing to address the defendant’s arguments in support of
dismissing that claim.”).
8 	The Court does not need to consider Defendants’ additional argument that Plaintiff has
brought a non-cognizable Section 1983 claim, ECF No. 22-6 at 25–26, because Plaintiff
concedes that his claims are only Bivens claims. ECF No. 27 at 13.
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 9 of 14 PageID #:
<pageID>

10
Although Defendants are correct that the PLRA requires inmates to exhaust all internal
remedies before filing a lawsuit, see 42 U.S.C. § 1997e(a), the Second Circuit has concluded that
“failure to exhaust administrative remedies is not a jurisdictional predicate” under the PLRA.
Richardson v. Goord, 347 F.3d 431, 433 (2d Cir. 2003). Accordingly, the Court has jurisdiction
to adjudicate the case. See Dimick v. Baruffo, No. 02-cv-2151, 2003 WL 660826, at *2 n.1
(S.D.N.Y. Feb. 28, 2003) (concluding that motion to dismiss for failure to exhaust under PLRA
is “more appropriately addressed under Rule 12(b)(6)”).
II. 	The Bivens Claims
Moving on, the Court begins by applying the two-step analysis from Bivens and its
progeny. Defendants argue that Plaintiff’s claims arise in a new context, and special factors,
including an alternative remedial structure, counsel against finding a new Bivens remedy. ECF
No. 22-6 at 17–23. Specifically, Defendants assert that Plaintiff could have sought relief through
the BOP’s ARP or through a habeas corpus petition.9 Id. Plaintiff does not contest that his
claims arise in a new context. Rather, he states that “[t]he dispute here centers around the second
prong of the [Bivens analysis],” and argues that the alternative remedies were not available to
him. ECF No. 27 at 19–20.
A. 	Meaningfully Different Context
Since Plaintiff does not refute Defendants’ argument that Plaintiff’s claims arise in a new
Bivens context, the Court construes Plaintiff’s silence as a concession. See Curry Mgmt. Corp. v.
JPMorgan Chase Bank, N.A., 643 F. Supp. 3d 421, 426 (S.D.N.Y. 2022) (“A party may be
9 	The Court need not address the issue of habeas corpus because the existence of an
alternative remedy, see infra, cautions against granting Plaintiff habeas relief. See Rivera v.
Samilo, 370 F. Supp. 3d 362, 371–72 (E.D.N.Y. 2019) (“[b]ecause adequate alternative remedies
exist[] here, the Court need not address whether any other special factors counsel hesitation”).
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 10 of 14 PageID #:
<pageID>

11
deemed to concede an argument by failing to address it in an opposition brief.”). Accordingly,
the Court moves on to the second step in the Bivens analysis.
B. 	Special Factors
Under the second step, the Court turns to the question of whether any “special factors
counsel hesitation in the absence of affirmative action by Congress.” Egbert, 596 U.S. at 492.
Notably, if even one special factor applies, that “is reason enough to ‘limit the power of the
Judiciary to infer a new Bivens cause of action.’” Id. at 493 (quoting Ziglar, 582 U.S. at 137). In
this case, at least two special factors apply. The Court addresses them in turn.
i. 	Deference to Prison Administrators
The Court is bound by caselaw counseling against recognizing a Bivens remedy “in cases
involving prison administration.” Schulte v. Bureau of Prisons, 2022 WL 1468017, at *4
(S.D.N.Y. May 10, 2022). “Allowing individual claims for money damages against prison staff
would stray from the Supreme Court’s guidance that ‘[p]rison administrators should be accorded
wide-ranging deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain institutional
security.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). Because “it would be
inappropriate for the [C]ourt to imply a remedy for damages in an area that is uniquely within the
province and professional expertise of corrections officials,” the Court finds that the deference
owed to prison administrators constitutes a special factor weighing against recognition of a
Bivens remedy. Negron v. United States, 2020 WL 5634304, at *8 (S.D.N.Y. Sept. 21, 2020);
see Johnson v. Santiago, 624 F. Supp. 3d 295, 303 (E.D.N.Y. 2022) (deference to prison
administration constitutes a special factor counseling against a Bivens remedy when plaintiff
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 11 of 14 PageID #:
<pageID>

12
asserted an Eighth Amendment claim based on a correction officer’s alleged failure to intervene
to protect him from an attack by another inmate).
ii. 	Alternative Remedies
The existence, here, of an alternative remedial scheme is an additional reason militating
against extending Bivens to Plaintiff's claims. The Supreme Court in Egbert held that the
availability of alternative remedial mechanisms is a special factor that counsels hesitation with
respect to extending Bivens. Egbert, 596 U.S. at 493. The relevant question is “not . . . whether
the court ‘should provide for a wrong that would otherwise go unredressed,’ [n]or does it matter
that ‘existing remedies do not provide complete relief.’” Id. “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 498. “In the context of prison litigation,
‘suits in federal court for injunctive relief and grievances filed through the [BOP]’s
Administrative Remedy Program’ constitute alternative remedies.” Crespo v. Carvajal, No. 24-
1138, 2025 WL 635497, at *1 (2d Cir. Feb. 27, 2025).
An alternative remedial scheme was available to Plaintiff in this case. Under BOP’s
ARP, a prisoner must submit a formal grievance within 20 calendar days of the event giving rise
to the complaint. See 28 C.F.R. § 542.14(a). Under that scheme, Plaintiff had 20 days following
his release from the MDC SHU on February 26, 2024, to file a grievance form. Plaintiff does
not challenge that the BOP’s ARP is applicable here, nor does he allege that he filed any of the
BOP forms within the twenty-day period. In fact, he does not even allege that he tried to submit
a grievance form during that period. See ECF No. 27-1. Instead, Plaintiff asserts that prison
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 12 of 14 PageID #:
<pageID>

13
staff thwarted his attempts to submit grievance forms (1) during his confinement at the MDC
SHU, i.e., before the twenty-day period began, and (2) during his incarceration at USP Big
Sandy, months after the period had expired. These allegations are immaterial, as both instances
fall outside the twenty-day period. Thus, even in a light favorable to Plaintiff, the Court cannot
reasonably infer that Defendants thwarted his attempts to submit the applicable forms. Plaintiff’s
allegations in this regard demonstrate only that he failed to properly use the remedial scheme
available to him. He does not establish that such regime was unavailable. Because such a
scheme was available, the Court declines to extend a Bivens remedy for this additional reason.
In sum, Plaintiff’s concession that the claim here would constitute a new Bivens context,
coupled with the two special factors discussed above, gives the Court “reason to think that
Congress might be better equipped to create a damages remedy.” Egbert, 596 U.S. at 483.
Accordingly, the Court finds that Plaintiff has failed to state a cognizable Bivens claim, and thus,
failed to state a claim upon which relief can be granted.10
10 	When a pro se complaint fails to state a cause of action, the court generally “should not
dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000). Of course, an opportunity to amend is not required where, as here, “[t]he
problem with [the plaintiff’s] cause of action is substantive” such that “better pleading will not
cure it.” Id. Thus, “[w]here granting leave to amend is unlikely to be productive . . . it is not an
abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993).
Here, the Court finds that leave to amend is unwarranted for two reasons. First, the
deficiencies in Plaintiff’s Bivens claim cannot be cured by amendment. See Porter v. Uhler,
No. 17-cv-0047, 2019 WL 1292226, at *6–7 (N.D.N.Y. Mar. 21, 2019), aff’d, 790 F. App’x 329
(2d Cir. 2020). Second, the Court has already considered the additional allegations set forth in
Plaintiff’s Additional Declaration, and finds that those allegations do not cure the deficiencies
discussed herein. Accordingly, Plaintiff’s Complaint is dismissed without leave to amend.
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 13 of 14 PageID #:
<pageID>

14
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss
Plaintiff’s complaint pursuant to Rule 12(b)(6). See ECF No. 22. The Court declines to issue a
certificate of appealability and certifies that any appeal from this order would not be taken in
good faith; therefore, in forma pauperis status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 445 (1962).
The Clerk of Court is respectfully directed to enter judgment consistent with this Order
and close this case.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
November 10, 2025
Case 1:24-cv-03667-HG-CHK Document 34 Filed 11/10/25 Page 14 of 14 PageID #:
<pageID>