Timothy Ryan v. R. Robinson - Bivens Claims Dismissed With Prejudice, FTCA Claims Dismissed Without Prejudice

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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

Timothy Ryan v. R. Robinson, et al.

District Court, D. New Jersey

• Citations: None known
• Docket Number: 1:22-cv-01175

• Precedential Status: Unknown Status

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• Authorities (69)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TIMOTHY RYAN,

Plaintiff,
Civil Action No. 22-1175 (RMB-MJS)
v.
OPINION
R. ROBINSON, et al.,

Defendants.

RENÉE MARIE BUMB, Chief United States District Judge
THIS MATTER comes before the Court upon a Motion to Dismiss filed by Federal
Bureau of Prisons (“BOP”) officials and employees (“Individual Defendants”) and the United
States Government (the “Government”) (collectively, “Defendants”), pursuant to Federal
Rule of Civil Procedure 12(b)(1) and (6). [Docket No. 70.] Having considered the parties’
submissions, the Court resolves the Motion without oral argument. FED. R. CIV. P. 78(b);
D.N.J. LOC. CIV. R. 78.1(b). For the reasons that follow, Defendants’ Motion to Dismiss is
GRANTED IN PART.
I. BACKGROUND
Plaintiff Timothy Ryan (“Plaintiff”) is a federal prisoner incarcerated at the Federal
Correctional Institution in Fort Dix, New Jersey (“FCI Fort Dix”). On March 4, 2022,
Plaintiff filed a pro se Complaint against Individual Defendants R. Robinson, T. Jones, and
M. Castellanos alleging that he contracted COVID-19 and suffered other related harms
because Individual Defendants prohibited him from moving to a safer, open bunk. See
[Docket No. 1, at 3–4 (“Compl.”).] Plaintiff also claimed that Defendants refused to properly
handle his outbound legal correspondence. See [id., at 4.] The Court thereafter granted
Plaintiff’s application to proceed in forma pauperis (“IFP”) following its sua sponte responsibility
to screen prisoner complaints under the Prison Litigation Reform Act (“PLRA”).1 [Docket
Nos. 3–4].

On June 12, 2023, the Court granted Plaintiff’s request to add new claims for personal
injury and denial of medical care. [Docket Nos. 12–13.] Plaintiff filed an opaque Amended
Complaint the following month, naming additional BOP employees Stevie M. Knight, J.
Petrucci, Carl Sceusa, Ravi Sood, Nicoletta Turner-Foster, and BOP Director John Doe as
Defendants. See [Docket No. 14 (“Am. Compl.”).] The Amended Complaint, as the Court
understood it, set forth First and Eighth Amendment claims for equitable relief as well as
money damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics
(“Bivens”), 403 U.S. 388 (1971). See [id.] Plaintiff also brought claims under the Federal Tort
Claims Act (“FTCA”, or the “Act”) but did not name the Government as a Defendant. See

[id.]
Following the briefing, Plaintiff filed three self-styled motions that collectively raised
new claims concerning his food allergies and religious diet, seeking emergency declaratory
and injunctive relief, including release from BOP custody or, alternatively, a specialized
kosher, organic, and allergen- and cruelty-free diet in the form of sealed foods served outside
the FCI Fort Dix Dining Hall. See [Docket Nos. 39, 41–42.] Defendants moved to dismiss
the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket No.
33.]

1 After informing him that his original IFP application was deficient, the Court granted Plaintiff’s
second, complete IFP application. [Docket No. 2.]
On December 17, 2024, the Court granted in part Defendants’ first motion to dismiss
and denied Plaintiff’s three motions for emergency declaratory and injunctive relief. [Docket
Nos. 43–44.] As to Defendants’ motion, the Court dismissed Plaintiff’s Bivens claims with
prejudice, his FTCA claims without prejudice for not naming the Government as a defendant,

but reserved the issue of whether Plaintiff failed to administratively exhaust his Eighth
Amendment equitable relief claims, as required under the PLRA, for subsequent findings of
fact. [Docket No. 44, at 1.] With respect to Plaintiff’s three motions, the Court denied them
for raising new claims which the Court could not clearly comprehend, thus preventing judicial
review on irreparability.2 [Docket No. 43, at 13–14.]
To address these combined issues, the Court granted Plaintiff leave to file a second
amended complaint and ordered him to file, within 30 days, a submission not to exceed 3
pages clarifying the claims and defendants alleged in the Amended Complaint. [Docket No.
44, at 1.] Defendants, in turn, would have 45 days to file a responsive submission. [Id.] In

consideration of Plaintiff’s alleged emergent health complications, the Court also ordered
Defendants to file a submission within 10 days advising that Plaintiff’s medical needs were
being addressed. [Id., at 2.]
Defendants satisfactorily complied with the latter directive concerning Plaintiff’s
medical condition and the care provided. See [Docket No. 45.] On January 22, 2025, Plaintiff
filed a Second Amended Complaint, adding the Government, Food Service Administrator
Ardoline, Assistant Food Service Administrator Michael Marchese, Warden Rachael
Thompson, Associate Warden Matthew DeMercurio, Medical Director F. Ahmedi, Regional

2 Embedded in the three motions were requests for the appointment of pro bono counsel for the
new claims asserted, which the Court denied without prejudice. [Docket No. 43, at 2–3.]
Director Amy Boncher, and John Doe Regional Administrative Remedy Coordinator as
Defendants.3 See [Docket No. 46 (“Second Am. Compl.”).] In the Second Amended
Complaint, Plaintiff re-alleges that he is presently starving, losing significant weight, and
experiencing allergic reactions of vomiting, bleeding, and anaphylaxis caused by the BOP’s

failure to provide him an allergen-free, religiously-obedient diet. [Id., ¶ 5.] Soon thereafter,
Plaintiff filed a Motion to Request Copy of the Docket Sheet and to Reconsider Denial of
Injunctive Relief [Docket No. 49], the latter of which the Court construed as seeking a
temporary restraining order with respect to the new nutrition- and diet-based claims in the
Second Amended Complaint [Docket No. 52, at 1 n.1].
After review, the Court denied Plaintiff’s request for temporary injunctive relief,4 but
ordered Defendants to supplement their prior filing about their efforts to meet Plaintiff’s
medical needs with a submission detailing their efforts to provide Plaintiff adequate nutrition
considering his food allergies and religious diet. [Id., at 4.] Specifically, if Plaintiff had

requested or received any medical treatment for allergies or inadequate nutrition in the last
60 days, Defendants were to submit those records under seal, and if warranted, the Court
would reconsider Plaintiff’s request for a TRO. [Id.]
Defendants timely complied with the Court’s order to file a supplemental statement
concerning Plaintiff’s recent medical history. [Docket No. 53.] Then, Plaintiff filed a request
for the appointment of pro bono counsel and a preliminary injunction to provide religiously-
adherent, allergen-free foods specified by himself, or to be fully released from BOP custody.

3 The Defendants provide the correct titles and name spelling of their names in their brief in
support of the instant Motion. [Docket No. 70-1, at 4 nn.3–4 (“Defs.’ Br.”).]

4 The Court granted Plaintiff’s request for a copy of the docket sheet. [Docket No. 52, at 4.]
See [Docket Nos. 64, 66.] Thus seeking to alter, not simply maintain, the status quo, the Court
reserved ruling on these requests and ordered Defendants to file under a seal a third
submission advising how Plaintiff’s dietary and medical needs are being addressed, making
sure to include any associated medical request slips or medical records from the last 60 days.

[Docket No. 67, at 2–3.] Plaintiff could then offer a response once submitted. [Id., at 3.]
On September 18, 2025, Defendants complied, filing the requested material under seal.
[Docket No. 69.] Plaintiff filed his response shortly thereafter. [Docket No. 74.] As before,
the Court is satisfied that Plaintiff is in no real danger regarding his health and that his needs
are being addressed. After being granted an extension of time to respond to the Second
Amended Complaint in the meanwhile, Defendants now move to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1) and (6). [Docket Nos. 65, 67, 70.] The Motion is fully
briefed and ripe for review. [Defs.’ Br., Docket No. 75 (Pl.’s Opp. Br.”).]
II. STANDARD OF REVIEW

A. 12(b)(1)
A motion to dismiss under Rule 12(b)(1) challenges the existence of a federal court’s
subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). “A challenge to subject matter
jurisdiction under Rule 12(b)(1) may be either a facial or a factual attack.” Davis v. Wells
Fargo, 824 F.3d 333, 346 (3d Cir. 2016); CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008).
“The former challenges subject matter jurisdiction without disputing the facts alleged in the
complaint, and it requires the court to ‘consider the allegations of the complaint as true.’”
Davis, 824 F.3d at 346 (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006));
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). The latter, a factual

challenge, “attacks the factual allegations underlying the complaint’s assertion of jurisdiction,
either through the filing of an answer or ‘otherwise present[ing] competing facts.’” Davis, 824
F.3d at 346 (quoting Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014)).
In contrast to a facial challenge, a factual attack allows “a court [to] weigh and
consider evidence outside the pleadings.” Aichele, 757 F.3d at 358 (internal quotation marks

omitted); see Torres v. United States, No. 19-16395, 2019 WL 7343494, at *2 (D.N.J. Dec. 31,
2019) (citing Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)) (“Unlike with
a facial attack, in a factual attack, ‘the court may consider evidence outside the pleadings to
satisfy itself of its power to hear the case.’”). “Unlike a facial analysis, no presumption of
truth attaches to a plaintiff’s allegations in a factual challenge and ‘the existence of disputed
material facts will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.’” Liu v. Lu, No. CV 23-3819 (MAS) (RLS), 2024 WL 2750817, at *3
(D.N.J. May 29, 2024) (quoting Mortensen, 549 F.2d at 891). Whichever sortie is launched,
the plaintiff bears the burden of persuasion when confronted with a subject matter jurisdiction

challenge under Rule 12(b)(1). Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005)
(citation omitted).
B. 12(b)(6)
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A party may move to
dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for “failure to state
a claim upon which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552 (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](https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/#678) (2009) (quoting id. at 570). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556).
When considering a 12(b)(6) motion to dismiss, a district court must “accept as true
all allegations in the complaint and all reasonable inferences that can be drawn therefrom,

and view them in the light most favorable to the plaintiff.” Evancho v. Fisher, 423 F.3d 347,
350–51 (3d Cir. 2005) (internal citations omitted). “However, a court need not credit either
‘bald assertions’ or ‘legal conclusions’ in a complaint when deciding a motion to dismiss.” Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
The proper role of the district court in reviewing the sufficiency of a complaint is thus limited:
the issue is not “whether the plaintiffs will ultimately prevail” but “whether they are entitled
to offer evidence to support their claims.” Langford v. City of Atl. City, 235 F.3d 845, 847 (3d
Cir. 2000). “When presenting a Rule 12(b)(6) motion, the defendant bears the burden to show
that the plaintiff has not stated a claim.” Davis, 824 F.3d at 349 (citation omitted).

Whether under Rule 12(b)(1) or (6), the Court will liberally construe Plaintiff’s
pleadings, “however inartfully pleaded”. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations
omitted). Nevertheless, even pro se litigants must “still must allege sufficient facts in their
complaints to support a claim.” Owens v. Armstrong, 171 F. Supp. 3d 316, 328 (D.N.J. 2016)
(quoting Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)). Plaintiff is not
exempt, in other words, from complying with federal pleading standards. See Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir. 2010).
III. DISCUSSION
The Second Amended Complaint is denominated into six paragraphs. At the behest

of Defendants, the Court construed the Second Amended Complaint to allege FTCA claims
in paragraphs 1, 2, 3, 4, and 6. [Docket No. 51; Second Am. Compl., ¶¶ 1–4, 6.] In paragraph
5, Plaintiff sets forth claims under Bivens, the FTCA, the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), and claims for declaratory and equitable relief.
[Second Am. Compl., ¶ 5.] The Bivens claims are asserted against Defendants Ardoline,

Marchese, Thompson, DeMercurio, Ahmedi, Sood, Boncher, and Regional Administrative
Remedy Coordinator Doe. [Id.] Defendants variably move to dismiss these claims. See
[Defs.’ Br.] The Court shall review, as best it can, the Second Amended Complaint alongside
Plaintiff’s other relevant pleadings to liberally discern what claims are asserted and factual
support marshalled and whether they survive Defendants’ request for dismissal. Some
hornbook FTCA law to start, then, a claim-by-claim review, excepting that relating to
Plaintiff’s allergies and religious diet, which the Court will separately address given its
preponderance.
A. The Federal Tort Claims Act

The FTCA “is the exclusive remedy against the United States for tort claims arising
out of the wrongful acts of Government employees acting within the scope of their
employment.” Lichtman v. United States, 316 F. App’x 116, 120 (3d Cir. 2008). The Act
“waives sovereign immunity and grants district courts jurisdiction over tort claims against the
United States ‘under circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the act or omission
occurred.’” Gould Elecs. Inc., 220 F.3d at 179 (emphasis omitted) (quoting 28 U.S.C.
§ 1346 (b)(1)). This waiver of sovereign immunity is limited though. “Because the Federal
Tort Claims Act constitutes a waiver of sovereign immunity, the Act’s established procedures

have been strictly construed.” Livera v. First Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3d
Cir. 1989); see United States v. Kubrick, 444 U.S. 111, 117–18 (1979) (“[W]e should not take it
upon ourselves to extend the waiver beyond that which Congress intended.”).
An FTCA claim is actionable if it alleges the six elements of § 1346(b), which are that
the claim be:

[1] against the United States, [2] for money damages, ... [3] for injury or loss of
property, or personal injury or death [4] caused by the negligent or wrongful
act or omission of any employee of the Government [5] while acting within the
scope of his office or employment, [6] under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.

Brownback v. King, 592 U.S. 209, 212 (2021) (quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994)).
Apart from this there are several procedural hurdles that must be jumped in order to
bring an FTCA claim. Specifically, the Act “provides that an ‘action shall not be instituted
upon a claim against the United States for money damages’ unless the claimant has first
exhausted his administrative remedies.” McNeil v. United States, 508 U.S. 106, 107 (1993)
(quoting 28 U.S.C. § 2675 (a)). To do so, a plaintiff suing under the FTCA must present the
offending agency, which here would be the BOP, with adequate notice of the claim, including
a “sum certain” demand for monetary damages. White-Squire v. U.S. Postal Serv., 592 F.3d
453, 457 (3d Cir. 2010). Exhaustion occurs when either the agency denies the claim or six
months have passed without a written denial thereof. 28 U.S.C. § 2675 (a). “This requirement
is jurisdictional and cannot be waived.” Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015);
Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir. 2009). The exhaustion requirement
applies to all FTCA plaintiffs regardless of their pro se or incarcerated status. Shelton, 775 F.3d
at 569; Wadhwa v. Nicholson, 367 F. App’x 322, 325 n.5 (3d Cir. 2010).
1. The BOP’s Alleged Refusal to Provide Plaintiff a CPAP Machine
“Due to refusals for treatment, delays in treatment, and faulty tests,” Plaintiff allegedly
“suffered 7.5 years without [a] needed CPAP [continuous positive airway pressure] machine,
thus suffocating in his sleep, suffering severe insomnia, daytime somnolence, weakened

immune system, depression, feelings of helplessness, and fear of dying in his sleep.” [Second
Am. Compl., ¶ 1.] Plaintiff seeks $27,365,000 in monetary damages, or $10,000 for every
CPAP-less day he suffered from May 1, 2017, to November 21, 2024.5 [Id.] The Government
brings first a factual attack on this Court’s jurisdiction, arguing that Plaintiff has not
administratively exhausted this claim. [Defs. Br., at 8]; see Campbell v. United States, No. 24-
CV-5642 (EP) (CLW), 2025 WL 1527463, at *2 (D.N.J. May 29, 2025) (citing Medina v. City
of Philadelphia, 219 F. App’x 169, 172 (3d Cir. 2007)) (“Because the United States is
challenging Plaintiff’s compliance with a jurisdictional [prere]quisite under the FTCA, this is a factual attack.”).

After reviewing the BOP’s Northeast Regional Office’s computerized index storing
Plaintiff’s administrative tort claims, the Government attests that it “has no record of Plaintiff
submitting an SF-95 tort claim” for this issue. [Defs.’ Br., at 8 (citing Docket No. 70-2, ¶¶ 3–
4 (“Dobovich Decl.”)).] Plaintiff, in response, provides a completed SF-95 form complaining
about his neglected need for a CPAP machine, which he purportedly “submitted … on or
about” February 20, 2023. [Pl.’s Opp. Br., ¶ 2 & Ex. A.] Plaintiff’s ostensible mailing of the

5 According to the asserted chronology, Plaintiff went 2,762 days without the CPAP machine,
which, at a $10,000 daily rate, would amount to $27,620,000 in damages. Plaintiff may very well
seek damages equal to or lesser than the “sum certain” requested at the administrative level, but,
“[b]y the terms of the statute, damages are capped at the amount set forth in the administrative
claim presented to the agency, that is, the SF-95 filed by” Plaintiff.” Salas v. United States, No. CV
16-2485 (SRC), 2021 WL 82268, at *5 (D.N.J. Jan. 11, 2021) (citing 28 U.S.C. § 2675 (b)).
SF-95 form on February 20, 2023, does not carry his jurisdictional burden of showing that he
properly presented the administrative tort claim to the BOP.
Specifically, Plaintiff’s de facto reliance on the mailbox rule does not satisfy what is
known as the FTCA’s “presentment” requirement. “In order to satisfy the presentment

requirement, a plaintiff must demonstrate that the appropriate federal agency actually received
the claim.” McKay v. United States, No. 24-CV-9863 (SRC), 2025 WL 624448, at *3 (D.N.J.
Feb. 26, 2025) (emphasis in original) (quoting Medina, 219 F. App’x at 172); see also 28 C.F.R.
§ 14.2 (a) (emphasis added) (“For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and
2675, a claim shall be deemed to have been presented when a Federal agency receives from a
claimant … an executed Standard Form 95 or other written notification of an incident[.]”).
Demonstrating an agency’s receipt of a claim is “not an onerous requirement, as proof of
receipt can easily be obtained by sending a claim by certified mail or by registered mail, or by
obtaining acknowledgment of receipt from the agency itself.” Medina, 219 F. App’x at 172–

1. The Third Circuit “expressly held” in Lightfoot v. United States, 564 F.3d 625, 627–28 (3d Cir. 2009), “that mere mailing of a claim will not satisfy an FTCA plaintiff’s burden of demonstrating that the claim has been presented to the appropriate agency, within the meaning of 28 U.S.C. § 2675 (a).” Vargas v. Eckhardt, No. CV 18-12803 (SRC), 2018 WL 4676050, at *4 (D.N.J. Sept. 28, 2018); see McKay, 2025 WL 624448, at *3; Freeman v. Lincalis, 158 F.4th 166, 176 (3d. Cir. 2025) (“[W]e have held that a plaintiff must generally provide affirmative evidence of receipt … where the government brought a factual jurisdictional challenge, proffering at least some affirmative evidence of non-receipt.”). Here, Plaintiff “merely provide[s] a copy of the” SF-95 form “allegedly sent on” February 20, 2023, “but provide[s] no registered or certified mail receipt of the letter or acknowledgment by the” BOP. McKay, 2025 WL 624448, at *3; see [Pl.’s Opp. Br.] Consequently, Plaintiff has not persuaded this Court of its jurisdiction over this claim at this

juncture, which shall be accordingly dismissed without prejudice. See McKay, 2025 WL
624448, at *3 (“[D]istrict courts in this jurisdiction have routinely dismissed FTCA claims
absent proof that an administrative claim was actually received by a federal agency by either
proof of receipt by certified or registered mail or acknowledgment of the claim by the federal
agency.”) (collecting cases); N.J. Physicians, Inc. v. President of U.S., 653 F.3d 234, 241 n.8 (3d
Cir. 2011) (explaining that dismissals for lack of subject matter jurisdiction are “by definition
without prejudice”).
2. The BOP’s Alleged Failure to Treat Plaintiff’s Hand
On January 9, 2022, “while assisting [a]n elderly inmate orderly … carry … [a] faulty

15 gallon chemical jug (full) with a broken handle, it slipped from [Plaintiff’s] grip and crushed
[his] hand on the stairs.” [Dobovich Decl., Ex. 2, at 1.] This allegedly “resulted in contusions
and snapped [Plaintiff’s] extensor tendon [i]n [his] dominant hand’s pinky”. [Id.] Plaintiff
claims that a “lack of medical care after” caused him “permanent deformity, chronic aches[,]
and difficulty with many basic tasks”.6 [Id.] Upon review of the SF-95 form, the BOP denied

6 Plaintiff intimates that it is the sole fact that he “came into contact with” the faulty jug, and not
the subsequent medical care, that gives raise to the claim. [Pl.’s Opp. Br., at 8).] How Plaintiff’s
admittedly volitional decision to assist an elderly inmate carry an allegedly defective jug without
BOP participation possibly gives raise to governmental tort liability is mystifying. Indeed, the
inmate orderly specifically attests that “nobody was assigned to help me.” [Id., Ex. D, at 1.]
Whatever duties, if any, the Government may have owed to that inmate in the exercise of his
assignment are for that inmate to litigate, not Plaintiff. So understood, severing Plaintiff’s
allegedly deficient medical care thereafter at the hands of the BOP makes very little sense in
constructing the claim.
Plaintiff’s claim on December 27, 2023. [Dobovich Decl., Ex. 3.] The Government does not
protest administrative exhaustion, therefore, but that Plaintiff has not set forth sufficient
factual matter to sustain his claim. [Defs.’ Br., at 22–23.]
The FTCA “does not itself create a substantive cause of action against the United

States; rather, it provides a mechanism for bringing a state law tort action against the federal
government in federal court. Accordingly, the extent of the United States’ liability under the
FTCA is generally determined by reference to state law.”7 Lomando v. United States, 667 F.3d
363, 372–73 (3d Cir. 2011) (citations and quotation marks omitted). The Court therefore
surmises that Plaintiff is asserting a medical malpractice claim under New Jersey law. See
Scott v. Manenti, 781 F. App’x 65, 68 (3d Cir. 2019) (citation omitted) (“FTCA claims are
generally governed by the substantive tort law of the state where the acts or omissions
occurred.”). Putting aside this Court’s exercise of supplemental jurisdiction, to establish a
New Jersey medical malpractice claim “a plaintiff must demonstrate: (1) the existence of a

duty owed by the federal employee or agent; (2) a breach of that duty; (3) proximate causation
linking the breach to the plaintiff’s injury; and (4) actual damages.” Maher v. United States,
No. 19-CV-9060 (RMB), 2025 WL 2463253, at *5 (D.N.J. Aug. 27, 2025) (citing Polzo v. Cnty.
of Essex, 196 N.J. 569, 584 (2008)).
After review, the Court finds Plaintiff’s claim too vague and conclusory to proceed. In
his Amended Complaint,8 Plaintiff states the following:

7 To the extent Plaintiff alleges “a violation of his constitutional rights, constitutional torts are not
cognizable under the FTCA.” Zierke v. United States, 679 F. App’x 103, 106 (3d Cir. 2017) (citing
Meyer, 510 U.S. at 477–78).

8 The original Complaint and Second Amended Complaint do not add much in the way of factual
matter for this claim. See [Compl.; Second Am. Compl.] On a related note, as this Court
previously advised Plaintiff, the unexplained references to the miscellany of attached exhibits to
True to their deliberately indifferent nature, medical staff did not treat movant
for this injury. Movant was not x-rayed and given a splint for 2 days and not
seen by an orthopedic surgeon for months, which was a farcical video visit. No
treatment has ever been given other than ineffective NSAID [nonsteroidal anti-
inflammatory drugs] pain relievers ….

[Am. Compl., at 10.] What is immediately deficient is Plaintiff’s failure to provide “the
identities of the treatment providers”, simply referring to anonymous “medical staff”. See
Corral v. United States, No. CIV.A. 12-6220 JBS, 2013 WL 4540919, at *3 (D.N.J. Aug. 27,
2013) (dismissing New Jersey medical malpractice claim for, inter alia, not naming medical
personnel involved). And even if the Court assumes them to be Individual Defendants Drs.
Sood, Sceusa, and Turner-Foster, such largesse does not plausibly clarify each doctor’s role
in the putative malpractice, let alone how their supposed departures from their respective
standards of care proximately caused Plaintiff’s injury—a natural consequence of course of
only naming unidentified “medical staff” as tortfeasors. This besides, there are no “dates of
the treatments [or attempts to receive care]”. Corral, 2013 WL 4540919, at *3. Other than
Plaintiff’s purported injury occurring on January 9, 2022, and him signing the SF-95 form on
July 29, 2022, there is nothing from which the Court could reasonably infer a chronology
within this seven-month window. See [Am. Compl., at 10; Dobovich Decl., Ex. 2, at 1.]
The claim is furthermore elusively contradictory. Plaintiff alleges that “[n]o treatment
has ever been given other than” pain relievers, but implies only one sentence before that he
was x-rayed, given a splint, and evaluated by an orthopedic surgeon, whose “farcicality” is
not explained at all, nor are the results of the x-ray discussed, which one would think relevant

the Amended Complaint are not legally sufficient to state claim. See [Docket No. 43, at 3.]
Plaintiff’s entitlement to liberal construction does not transmogrify the Court into a truffle pig.
and integral to a claim such as this.9 See [Am. Compl., at 10]; see also [Pl.’s Opp. Br., at 8
(vaguely alleging medical treatment received was “not adequate”).
Assuming, arguendo, the Court could make sense of the claim, the BOP’s denial letter
imparts what would otherwise appear a proper course of treatment that is not contradicted by

Plaintiff’s pleading deficiencies. According to the BOP, medical staff evaluated Plaintiff on
January 10, 2022, a mere day after the alleged injury. [Dobovich Decl., Ex. 3.] He was then
prescribed pain medication, and the ordered x-rays “revealed no fracture or malalignment.”
[Id.] Plaintiff then visited the orthopedic surgeon on April 12, 2022, who reported “no fracture
or significant damage” and advised Plaintiff to “work on mobilization exercises in [his]
finger.” [Id.] Medical staff even “continued to evaluate” Plaintiff’s hand, finding “no
evidence of continuing injury to [his] finger.” [Id.] All this is to say that Plaintiff’s conclusory
and contradictory allegations, in tandem with the administrative record at hand, portray a
mere disagreement with the chosen course of treatment, which would not adequately state a

claim of negligence under New Jersey law.10 See Maher v. United States, No. 19-CV-9060
(RMB), 2025 WL 2463253, at *5 (D.N.J. Aug. 27, 2025) (citing Schueler v. Strelinger, 43 N.J.
330, 344 (1964)). The Court will therefore dismiss this claim without prejudice.11 See

9 For the same reasons, dismissal would still be warranted if the Court were to construe the claim
as one of ordinary negligence. See Brown v. United States, No. CV 15-7734 (RMB/JS), 2017 WL
1064665, at *4 (D.N.J. Mar. 21, 2017) (“A medical malpractice case is a kind of tort action in
which the traditional negligence elements are refined to reflect the professional setting of a
physician-patient relationship.”).

10 The Court is careful to note that this is hypothecation on its part. A finding of a non-cognizable
disagreement would only necessarily arise if Plaintiff had sufficiently pleaded the predicate
elements of a medical malpractice in the first place, which he has not.

11 Because the Court dismisses the claim on this basis, there is no imperative to address whether
dismissal is also warranted in light of Berk v. Choy, 607 U.S. ----, 2026 WL 135974 (2026). A
plaintiff alleging a New Jersey medical malpractice claim typically must submit, absent limited
exceptions, an affidavit of merit within 60 or 120 days, or risk dismissal with prejudice. See, e.g.,
Brownback, 592 U.S. at 217 (“[I]n the unique context of the FTCA, all elements of a
meritorious claim are also jurisdictional.”); N.J. Physicians, Inc., 653 F.3d at 241 n.8.
3. Plaintiff’s Alleged Multiple Contractions of COVID-19
“Due to the BOP’s mishandling of the COVID-19 pandemic and deliberate

indifference of” Individual Defendants R. Robinson, T. Jones, and M. Castellanos “actively
preventing Plaintiff from social distancing by preventing him from moving to an open bed in
the corner of the same room, Plaintiff suffered constant exposure to and infections of COVID-
19.” [Second Am. Compl., ¶ 3 (cleaned up).] Allegedly, this resulted in an array of physical
and psychological harms necessitating $797,000 in damages. [Id.] The Government argues
threefold: (1) the claim is time-barred; (2) the discretionary function exception applies; and
(3) Plaintiff fails to adequately plead causation. [Defs.’ Br., at 8–9, 14–16, 23.] Although
atypical, as it is an affirmative defense,12 the Court will start with the FTCA’s statute of

Brown, 2017 WL 1064665, at 4 –5; N.J. STAT. ANN. § 2A:53A-29. In Berk, the Supreme Court
held that Delaware’s affidavit of merit statute conflicts with Federal Rule of Civil Procedure 8
and therefore does not apply in federal court. Berk, 2026 WL 135974, at 4–6. The Court need
not at this time determine if New Jersey’s analogous statute is similarly inapplicable.

12 The Government mistakenly characterizes this defect as one of administrative exhaustion, and
therefore as jurisdictional. [Defs.’ Br., at 8–9.] Section 2401(b) is neither, but rather a non-
jurisdictional time bar. Knapp v. United States, No. 21-1523, 2022 WL 3657184, at 4 (3d Cir.
Aug. 25, 2022) (citing United States v. Wong, 575 U.S. 402, 405 (2015)). And while this would
typically limit 12(b)(6) scrutiny to the face of the pleadings, courts routinely consider
administrative records, such as SF-95 forms, appended to motions to dismiss when ruling on
whether a FTCA claim is time-barred. See, e.g., Hunt v. U.S. Dep’t of Veterans Affs., No. CV 18-
9443 (KM/JBC), 2019 WL 1236835, at *4–5 & nn.1–2 (D.N.J. Mar. 14, 2019) (first quoting
Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017); and then citing In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)) (recognizing statute of limitations as affirmative
defense typically established on “face of the complaint” but observing that Rule 12(b)(6)
encompasses “document[s] integral to or explicitly relied upon in the complaint”); Gillie v.
Esposito, No. CV 14-3704 (JBS-JS), 2018 WL 6499864, at *4 n.1 (D.N.J. Dec. 11, 2018) (same);
see also Est. of Roman v. City of Newark, 914 F.3d 789, 796–97 (3d Cir. 2019) (cleaned up) (“We can
also consider documents that a defendant attaches as an exhibit to a motion to dismiss if they are
‘undisputedly authentic’ and the plaintiff’s claims are based on them.”).
limitations to demonstrate the vagueness of Plaintiff’s allegations that fatally bleed throughout
the claim.
a. The Statute of Limitations
Under the FTCA, “[a] tort claim against the United States shall be forever barred

unless it is presented in writing to the appropriate Federal agency within two years after such
claim accrues.” 28 U.S.C. § 2401 (b). “The determination of when a claim accrues for the
purposes of the FTCA is a question of federal law.” Miller v. Phila. Geriatric Ctr., 463 F.3d
266, 271 (3d Cir. 2006) (citing Tyminski v. United States, 481 F.2d 257, 262–63 (3d Cir. 1973));
Green v. United States, 180 F. App’x 310, 312 (3d Cir. 2006). “Normally, a tort claim accrues
at the time of injury.”13 Miller, 463 F.3d at 271 (citation omitted).
The BOP received Plaintiff’s SF-95 form on July 17, 2023. [Dobovich Decl., ¶ 6 &
Ex. 4, at 1.] Plaintiff’s “time of injury”, or, in this case, his contracting COVID-19, must have
occurred “within two years” before. 28 U.S.C. § 2401 (b). But the SF-95 form reveals that

Plaintiff contracted the virus on October 6, 2020. [Dobovich Decl., Ex. 4, at 1.] And even if
the Court considers the contraction date of December 22, 2020, as pleaded in the original
Complaint, each fall well without the two-year presentment window required by the FTCA.
[Compl., at 3.] However, the BOP’s own denial letter, appended to the Government’s
Motion, states that Plaintiff “tested positive for COVID-19 on January 22, 2022”, within the
two-year window. [Dobovich Decl., Ex. 5.] The Government ignores this date in its briefing.
See [Defs.’ Br., at 8–9.] Without the benefit of briefing by either party on how to apply the

13 The Court does not construe this claim as one of medical malpractice, whereby “accrual occurs
when ‘the putative plaintiff possesses facts which would enable ‘a reasonable person to discover
the alleged malpractice.’” Green, 180 F. App’x at 312 (quoting Hughes v. United States, 263 F.3d
272, 275 (3d Cir. 2001)); see Kubrick, 444 U.S. at 119–22. Nor does Plaintiff contend otherwise.
See [Pl.’s Opp. Br., at 2–3.]
FTCA’s statute of limitations in the event of multiple times of injury, especially when the
BOP appears to have evaluated the administrative claim upon a statutorily-compliant date,
the Court is reluctant to find that the Government has shouldered its burden to show the claim
time-barred at this time.14
b. Causation

Plaintiff’s alleged multiple contraction dates, while perhaps unsuitable for the statute
of limitations, do demonstrate, as the Government alternatively argues, that he has not
plausibly pleaded that Individual Defendants’ inactions caused him to contract COVID-19.
[Defs.’ Br., at 23.] The Court once again presumes that Plaintiff sets forth New Jersey torts
of negligence and gross negligence. Lomando, 667 F.3d at 372–73; Scott, 781 F. App’x at 68.
“The elements of a negligence and gross negligence claim under New Jersey law are the same
but very in degree: (1) duty of care; (2) breach of that duty; (3) proximate cause; and (4) actual
damages.” Lackner v. United States, No. CV 22-4951 (RMB-AMD), 2025 WL 314965, at *7

(D.N.J. Jan. 28, 2025). A “proximate cause” produces the complained of result, unbroken
by an intervening cause. Bond v. Solvay Specialty Polymers, USA, LLC, 583 F. Supp. 3d 643,
650–51 (D.N.J. 2022) (citing Broach-Butts v. Therapeutic Alternatives, Inc., 191 A.3d 702, 711 (N.J. Super. Ct. App. 2018)). Proximate cause is typically a jury issue but can be decided on
a motion to dismiss if “no reasonable jury could find that the Plaintiff’s injuries were not
proximately caused” in the manner alleged by the plaintiff. Id. (quoting Broach-Butts, 191

14 This obviates the Court’s need to address at length Plaintiff’s strained contention of a distinction
between exposure to and contraction of the virus, such that his alleged present exposure renders his
claim timely. [Pl.’s Opp. Br., at 2.] This is casuistical artifice that would effectively nullify the
FTCA’s statute of limitations. How does mere “exposure” to the coronavirus result in the
physical and related harms Plaintiff asserts as the basis of his FTCA claim? It does not, obviously.
A.3d at 711). If there are contributing causes of the alleged injury, a plaintiff must show
negligence was a “substantial factor” contributing to the result. Id. (cleaned up).
To start, there are no allegations as to the purported contractions on October 6, 2020,
or January 22, 2022, from which a reasonable jury could find proximate causation. See

[Compl., Am. Compl., Second Am. Compl.] The Court can therefore narrow its focus to
December 22, 2020. Plaintiff allegedly “request[ed] to move to an open bed in [his] cell to
allow for social distancing during [the] COVID outbreak” on November 20, 21, 30 and
December 2 and 10, 2020. [Compl., at 3.] Even if the Court inferentially assumes that
Individual Defendants housed Plaintiff with sick inmates from which he sought to distance
himself—an allegation that Plaintiff does not explicitly aver15—his “causation theory is too
speculative.” Lackner, 2025 WL 314965, at *7. The intervening 12 days between Plaintiff’s
latest request and his contraction are unaccounted for. See [Compl., Am. Compl., Second
Am. Compl.] As this Court has noted hitherto, “[t]here are many potential intervening causes

with a highly transmissible virus, and it would be virtually impossible to determine the cause.”
Lackner, 2025 WL 314965, at *7 (dismissing COVID-19-exposure claim under FTCA because
21-day intervening period was too speculative to demonstrate proximate causation).
Consequently, the Court will dismiss without prejudice Plaintiff’s FTCA claim concerning
the alleged negligent exposure to COVID-19. Brownback, 592 U.S. at 217; N.J. Physicians, Inc., 653 F.3d at 241 n.8.

15 Plaintiff does allege that he had “to sleep in an area surrounded by COVID[-]positive …
persons,” but vaguely claims that it “resulted in [his] second contraction of COVID-19.” [Am.
Compl., at 3 (emphasis added).] There is no telling from the pleadings what number contraction
to assign to that of December 22, 2020. See [Compl., Am. Compl., Second Am. Compl.]
c. Discretionary Function Exception
Even if Plaintiff adequately alleged causation, the discretionary function exception
would also preclude jurisdiction under the FTCA. The FTCA waiver is subject to a number
of exceptions, such as the discretionary function exception. See 28 U.S.C. § 2680 (a); Xi v.

Haugen, 68 F.4th 824, 837 (3d Cir. 2023). Under the discretionary function exception, the
United States retains sovereign immunity for “[a]ny claim ... based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty ... whether
or not the discretion involved be abused.” 28 U.S.C. § 2680 (a); see United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984) (“The discretionary
function exception … marks the boundary between Congress’ willingness to impose tort
liability upon the United States and its desire to protect certain governmental activities from
exposure to suit by private individuals.”).
In United States v. Gaubert, 499 U.S. 315 (1991), the Supreme Court established a two-

part test for determining whether the discretionary function should apply. “First, a court must
determine whether the act involves an element of judgment or choice.” Id. at 322. If the
answer is yes, the court then must ask, “whether that judgment is of the kind that the
discretionary function exception was designed to shield.” Id. As the purpose of the exception
“is to prevent judicial ‘second-guessing’ of ... decisions grounded in social, economic, and
political policy ... the exception protects only governmental actions and decisions based on
considerations of public policy.” Id. at 323; S.R.P. ex rel. Abunabba v. United States, 676 F.3d
329, 333 (3d Cir. 2012). The “focus of the inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or regulation, but on the nature of the actions
taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325;
Abunabba, 676 F.3d at 333.
“Even if the government can show that both parts of the discretionary function
exception apply, there is an additional step.” Thieme v. United States, No. CV 21-682 (RMB-

AMD), 2023 WL 8271766, at *3 (D.N.J. Nov. 30, 2023); see also Xi, 68 F.4th at 838–40. A
court must also determine whether the exercise of discretion “plausibly” violated the
Constitution. Xi, 68 F.4th at 838–40. As the Third Circuit has explained, “conduct cannot
be discretionary if it violates the Constitution” because federal “officials do not possess
discretion to violate constitutional rights.” Id. at 838–39 (quoting U.S. Fid. & Guar. Co. v.
United States, 837 F.2d 116, 120 (3d Cir. 1988)). Although a plaintiff bears the burden of
showing that their claims fall within the scope of the FTCA’s waiver, the Government bears
the burden of establishing that the discretionary function exception applies. Abunabba, 676
F.3d at 333. Thus, “[a]t the motion-to-dismiss stage, all a plaintiff must do to negate the

discretionary function exception is plausibly allege a constitutional violation.” Xi, 68 F.4th
at 840.
Plaintiff concedes that the discretionary function exception applies to the BOP’s
housing, testing, and quarantining policies during his imprisonment at Fort Dix during the
pandemic of Fall 2020, but argues that Individual Defendants R. Robinson, T. Jones, and M.
Castellanos violated his Eighth Amendment right to be free from cruel and unusual
punishment. See [Pl.’s Opp. Br., at 3 (ceding inapplicability of discretionary function
exception as “moot” in light of Thieme v. United States, No. CV 21-682 (RMB-AMD), 2025
WL 2490526 (D.N.J. Aug. 29, 2025), but stressing that Individual Defendants’ “active
cruelty” otherwise disables application).16 The Court disagrees.
“The Eighth Amendment ‘prohibits any punishment which violates civilized
standards and concepts of humanity and decency.’” Thomas v. Tice, 948 F.3d 133, 138 (3d

Cir. 2020) (quoting Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992)). The Supreme Court
has interpreted this prohibition as “impos[ing] affirmative duties on prison officials ‘to provide
humane conditions of confinement.’” Young v. Martin, 801 F.3d 172, 177 (3d Cir. 2015)
(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). “To sufficiently allege prison officials
violated his Eighth Amendment rights by imposing inhumane conditions, [Plaintiff’s]
complaint had to allege facts showing (1) the deprivation he endured was ‘sufficiently serious,’
and (2) the prison officials had ‘a sufficiently culpable state of mind.’” Clark v. Coupe, 55 F.4th
167, 179 (3d Cir. 2022) (quoting Thomas, 948 F.3d at 138).
The deprivation element is adequately pleaded when the allegations depict conditions

where the inmate is denied “the minimal civilized measure of life’s necessities.” Wilson v.
Seiter, 501 U.S. 294, 299 (1991). The benchmark for alleging such deprivation is not that the
inmate was merely uncomfortable; he or she must show they are “incarcerated under
conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Showing a
substantial risk of harm is a less demanding standard than alleging conditions posing “a
probable risk of harm.” Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 227 (3d Cir. 2015);
Van Hunter v. Schullery, No. CV 24-2139 (KMW) (EAP), 2025 WL 1180385, at *8 (D.N.J.
Apr. 23, 2025).

16 The Government underscores Plaintiff’s concession, noting that its evidence marshalled
instantly is that used “in other Covid-19 challenges under the FTCA and are re-filing them here
because they concern the same facility and the same time period.” [Defs. Br., at 16 n.11.]
The second element is subjective and requires an inmate to sufficiently plead prison
officials acted with deliberate indifference. Farmer, 511 U.S. at 834 (citations omitted).
Deliberate indifference is effectively alleged where an inmate shows officials knew of, but
disregarded, that the prison conditions posed “an excessive risk to inmate health and safety.”

Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001); see Jones v. Ellis, 2021 WL 5015921,
at *3 (D.N.J. Oct. 28, 2021) (“Thus, a detainee asserting deliberate indifference based on
exposure to COVID-19 must … establish that the Defendant had the requisite mental state,
which is akin to recklessness.”).
Plaintiff’s couple-three conclusory allegations are bereft of factual matter to find that
these Individual Defendants plausibly violated his Eighth Amendment rights. Assuming the
objective prong is met, see Thieme, 2023 WL 8271766, at *7 (finding COVID-19 presented a
pronounced substantial risk of serious harm at FCI Fort Dix), Plaintiff does not sufficiently
plead deliberate indifference. What we encounter is more so a dog chasing its tail. Individual

Defendants exhibited deliberate indifference by: “actively preventing [Plaintiff] from social
distancing by preventing him from moving to an open bed”; “maliciously refusing to allow
[Plaintiff] to move to an open bunk”; “ignor[ing] or den[ying]” his requests to move. [Compl.,
at 3; Am. Compl., at 3; Second Am. Compl., ¶ 3.] These are “bald assertions” and “legal
conclusions” the Court need not credit. Evancho, 423 F.3d at 351.
The sole factual averment that adds a shade of color is that Individual Defendants
allegedly “assigned another inmate to the open bunk to prevent [Plaintiff] from sleeping there
….” [Am. Compl., at 3.] But the Court is left to woolgather at the near-infinite explanations
and motivations behind the Individual Defendants’ decision to do so. The Court is a liberal

constructor, not a claim whisperer. Plaintiff’s meager and speculative allegations are a far cry
from plausibly pleading deliberate indifference. Resultantly, Plaintiff has not plausibly
pleaded a violation of the Eighth Amendment that renders the discretionary function
exception inapplicable to his FTCA claim. The Court would thus alternatively dismiss this
claim without prejudice for lack of jurisdiction on this basis. N.J. Physicians, Inc., [653 F.3d at

241](https://www.courtlistener.com/opinion/222429/new-jersey-physicians-inc-v-president-of-the-united-states/) n.8.
4. Plaintiff’s Alleged Exposure to Mold and Unknown Chemicals
Plaintiff alleges “constant exposure to mold and water that is contaminated with some
unknown chemical(s).” [Second Am. Compl., ¶ 4.] Plaintiff seeks $7,795,000.17 [Id.] On
July 12, 2023, the BOP received Plaintiff’s SF-95 form specifically asserting as the basis of the
claim exposure to “PFOS and PFOA chemicals introduced to the ground water supply by the
United States Government.” [Dobovich Decl., Ex. 6, at 1.] The BOP subsequently issued a
denial letter on December 27, 2023. [Id., Ex. 7.] The Government posits that Plaintiff has
not administratively exhausted this claim, thereby depriving the Court of jurisdiction. [Defs.’

Br., at 9–11.]
Based on the SF-95 form, the Court preliminarily agrees with the Government that
“there is no administrative tort claim filed by Plaintiff alleging exposure to mold.” [Id., ¶ 8 &
Ex. 6.] Said another way, Plaintiff did not provide the BOP sufficient notice of alleged mold
exposure for FTCA exhaustion. While “the FTCA does not require that the claimant’s notice
present every theory of liability, …the claimant’s submission must, at least, ‘give[ ] the agency
written notice of his or her claim sufficient to enable the agency to investigate.’” Hause v.

17 As footnoted earlier, Plaintiff’s claim is capped to the $4.5 million asked for in the SF-95.
[Dobovich Decl., Ex. 6, at 1.] To the extent that any additional damages for ongoing harm are
permissible under the newly-discovered evidence exception, such an inquiry is mooted for failure
to exhaust, as explained.
United States, 378 F. App’x 158, 159 (3d Cir. 2010) (quoting Roma v. United States, 344 F.3d
352, 362–63 (3d Cir. 2003)). “This is not a high bar,” simply requiring “minimal notice”, but
Plaintiff here has “present[ed] one claim to the agency and [is] maintain[ing] suit on the basis
of a different set of facts.” Freeman, 158 F.4th at 177–78 & nn.49, 54 (first quoting Tucker v.

United States Postal Serv., 676 F.2d 954, 658–59 (3d Cir. 1982)); and then quoting Roma, 344
F.3d at 362). The BOP had no reason “to investigate” mold exposure because Plaintiff never
complained of it in the SF-95 form. See [Dobovich Decl., Ex. 6.] Plaintiff must first
administratively exhaust his mold-exposure claim before properly invoking this Court’s
FTCA jurisdiction thereover. Shelton, 775 F.3d at 569. He has not. Thus, this particular
claim is dismissed without prejudice.
Plaintiff’s other alleged exposure to “unknown chemical(s)” is similarly unexhausted.
The SF-95 could not be clearer: “Claimant exposed to and forced to consume toxic PFOS and
PFOA chemicals introduced to the ground water supply by the United States.” [Dobovich

Decl., Ex. 6, at 1 (emphasis added).] The SF-95 tellingly goes on that “these chemicals are
known to be deadly and cause a myriad of deadly maladies.” [Id. (emphasis added).] After
BOP denied this administrative claim, Plaintiff now attempts to bring an FTCA claim for
exposure to “unknown chemical(s).” [Second Am. Compl., ¶ 4.] No can do. By so filing a
PFOS- and PFOA-based claim, Plaintiff implicitly acknowledges that he can differentiate and
identify such toxins from others, whether known or “unknown”. A prisoner to his own
apparent hydrologic expertise, Plaintiff is once more “present[ing] one claim to the agency
and then maintain[ing] suit on the basis of a different set of facts.” Freeman, 158 F.4th at 178.
Bootstrapping, he cannot do. If Plaintiff believes he has been exposed to mold and unknown

chemicals, then he must first bring administrative claims before the BOP. He has not.
Therefore, these claims are dismissed without prejudice for want of jurisdiction. N.J.
Physicians, Inc., 653 F.3d at 241 n.8.
5. Plaintiff’s Alleged Stairway Fall
Plaintiff alleges that he “lost consciousness on the stairs” and was “hospitalized”

because BOP officials “refused to alter [his] third floor bunk assignment.” [Second Am.
Compl., ¶ 6.] Plaintiff purportedly sustained injuries to his head and spine and now suffers
from bathmophobia, or a fear of stairs. [Id.] Plaintiff presently seeks $5,000,000 from the
Government. [Id.] The Government triply argues for dismissal on the grounds of: (1)
administrative non-exhaustion; (2) the discretionary function exception; and (3) Plaintiff’s
failure to otherwise state a claim. [Defs.’ Br., at 11–12, 16–17, 24–25.]
The Court will begin with the discretionary function exception. Firstly, “[i]t is well-
established that BOP housing and cellmate assignments are discretionary functions exempted
from FTCA liability.” McAteer v. United States, No. CV 23-1335, 2024 WL 3967488, at *4

(E.D. Pa. Aug. 28, 2024) (citing Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir. 2018)
(“join[ing]” First, Sixth, Seventh, Eighth, and Eleventh Courts of Appeals in so finding)).
The Rinaldi court specifically held that “housing and cellmate assignments unquestionably
involve an ‘element of judgment or choice,’ for while BOP officials must ‘provide suitable
quarters’ and ‘provide for the protection, instruction, and discipline of all’ of its inmates,
neither that provision nor any other ‘federal statute, regulation or policy’ can be said to
‘specifically prescribe[ ] a course of action’ for such assignments that BOP officials must
follow.” 904 F.3d at 274 (first quoting Gaubert, 499 U.S. at 322; then quoting 18 U.S.C.
§ 4042 (a)(2)–(3); and then quoting Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000)).
Housing assignments are then unequivocally “of the kind that the discretionary
function exception was designed to shield.” Id. (quoting Mitchell, 225 F.3d at 362). “And the
Third Circuit has also made clear that the first part of the discretionary function test is
generally satisfied even where officials house an inmate in a place that exposes him to a

heightened and foreseeable risk of injury.” Daniels v. United States, No. 23-CV-04572 (MEF)
(CLW), 2025 WL 1884885, at *5 (D.N.J. July 7, 2025) (citing id. at 262–63, 272–74). The
Court sees no reason to disturb “the overwhelming weight of federal law”, see id. at *5
(collecting cases), in finding, at the first step, that the BOP’s third-floor bunking decision in
this case “involve[d] an element of judgment or choice.” Gaubert, 499 U.S. at 322.
Rinaldi is also conclusively instructive at step two, reasoning that federal prison
housing assignments depend upon policy judgments regarding institutional order, discipline,
and security. See Rinaldi, 904 F.3d at 273–74 (first quoting Rhodes v. Chapman, 452 U.S. 337,
350 (1981); and then quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). “Other courts of

appeals have reached similar conclusions.” See Daniels, 2025 WL 1884885, at *5 (collecting
cases from First, Fifth, Eighth, and Eleventh Circuits). This Court has no trouble concluding,
all the more because Plaintiff offers no rebuttal on this issue, see [Pl.’s Opp. Br.], that his
housing assignment was “of the kind that the discretionary function exception was designed
to shield.” Mitchell, 225 F.3d at 363; see cf. Daniels, 2025 WL 1884885, at *6 (dismissing FTCA
claim that “prison employees assigned [plaintiff] to a cell in the Special Housing Unit, and he
fell while moving from his bunk to his wheelchair” because of discretionary function
exception).
But did it plausibly violate the Constitution? The Court finds not. Plaintiff’s allegation

is but a mere sentence: BOP personnel were deliberately indifferent because each “saw” that
Plaintiff was “clearly too weak and dizzy to walk” but “refused to assign” him “the available
open bunk on the first floor.” [Pl.’s Opp. Br., at 9.] Such factual paucity is far too insufficient
“to raise a right to relief above the speculative level.”18 Twombly, 550 U.S. at 555. Finding
no plausible Eighth Amendment violation, the discretionary function exception applies to

Plaintiff’s stairway-fall FTCA claim, divesting the Court of jurisdiction to adjudicate it. It is
therefore dismissed without prejudice.19 N.J. Physicians, Inc., 653 F.3d at 241 n.8.
B. Plaintiff’s Allergy and Religious Diet Claims
Finally, Plaintiff generally seeks to hold Defendants liable under numerous legal
theories for failing to provide him an allergen-free diet that comports with his religious beliefs.
[Second Am. Compl., ¶ 5.] Plaintiff appears to bring claims under Bivens, the FTCA,
RLUIPA, and also requests declaratory and equitable relief. [Id.]

18 As noted before, Plaintiff unexplainedly references affidavits and leaves it to the Court to cobble
together his claim. [Pl.’s Opp. Br., at 9.] It isn’t for the Court to dissect Plaintiff’s voluminous
findings in search of a plausible entitlement to relief; that is his responsibility as a federal plaintiff.
See Est. of Egenious Coles v. Zucker, Goldberg & Ackerman, 658 F. App’x 108, 111 (3d Cir. 2016)
(“[W]e cannot fault the District Court for failing to intuit the necessary factual allegations from
one of the many exhibits appended to the complaint.”); RD Legal Funding, LLC v. Barry A. Cohen,
P.A., No. 13-77, 2013 WL 1338309, at *2 (D.N.J. Apr. 1, 2013) (“Plaintiff cannot meet its
pleading requirements under Rule 8(a) by attaching numerous exhibits to its Complaint.”). Nor
does Plaintiff’s pro se status excuse him from these pleading obligations. Thakar, 372 F. App’x at
328.

19 As a result, the Court will sidestep the Government’s alternative ground of non-exhaustion.
Here, the Government argues for non-exhaustion because Plaintiff instituted this action or,
alternatively, filed the Second Amended Complaint before the BOP denied his administrative tort
claim. [Defs.’ Br., at 11–12.] Although true, and while it does appear that the Supreme Court
announced what is in effect a zero-tolerance bar on prematurely-filed FTCA claims in McNeil v.
United States, 508 U.S. 106 (1993), regardless of, say, subsequent administrative exhaustion in the
course of litigation as happened here, the Government’s brief is underdeveloped on the effect of
McNeil on this precise procedural posture. And the Court is further uneased by the Government’s
failure to address the very real ramification of its position that Plaintiff would then have failed to
initiate his claim “within six months after the date of mailing,” thus time-barring it “forever”,
absent equitable tolling. 28 U.S.C. § 2401 (b).
As a preliminary matter, the Court is satisfied with Defendants’ second supplemental
report concerning Plaintiff’s medical treatment for allergies or inadequate nutrition. See
[Docket No. 69.] The Court divines nothing at this time from these materials or Plaintiff’s
response that would warrant mandatory preliminary injunctive relief or otherwise compel the

Court to expedite review of these claims outside the regular course of litigation. Once more,
Plaintiff’s allegations are serious, but there is no sign of immediate and irreparable injury,
loss, or damage that will occur, let alone the “higher standard of showing” required for
“sparingly”-granted mandatory injunctive relief. Sias v. Way, No. CV 24-8747 (MAS) (RLS), 2024 WL 4505108, at *3 (D.N.J. Oct. 16, 2024) (first quoting Bennington Foods LLC v. St. Croix
Renaissance, Grp., LLP, 528 F.3d 176, 179 (3d Cir. 2008); and then quoting United States v.
Spectro Foods Corp., 544 F.2d 1175, 1181 (3d Cir. 1976)). In fact, Plaintiff’s recent filing from
February 13, 2026, leaves the impression that he is simply dissatisfied with the amount of
“sardines and tuna” that he must rely on for protein and “the total lack of variety of foods”

he must endure. [Docket No. 79, at 1.] In other words, a gastronomic, perhaps not legal,
disagreement. Plaintiff’s requests for injunctive relief and the appointment of pro bono counsel
are therefore denied. [Docket Nos. 64, 66.]
For its own part, what the Court is still dissatisfied with, however, is the factual basis
for these claims such that a proper review of Defendants’ motion is maintainable. The Second
Amended Complaint is unhelpful and Plaintiff’s allegations are strewn and haphazardly
referenced across numerous filings, achieving, at best, a tenuous coherence. See [Docket Nos.
39, 41–42, 49, 54, 56, 64, 66, 74–76, 79; Second Am. Compl., ¶ 5.] Therefore, if Plaintiff
wishes to pursue his claims, the Court will order Plaintiff to file another submission with

“short and plain” statements clearly articulating: (1) each claim; (2) the specific Defendant(s)
against which it is asserted; (3) the specific relief sought; and (4) and, most importantly, the
precise factual allegations supporting each claim—the who, what, where, when, why. FED.
R. CIV. P. 8(a)(2).
Plaintiff is advised that the Court will not ferret through his pleadings going forward.

This is Plaintiff’s lawsuit. He is responsible for putting Defendants and the Court on adequate
notice of his claims sufficient to sustain this litigation. All supporting factual allegations for
the claims relating to Plaintiff’s nutrition and diet shall reside in the forthcoming
submission. Notwithstanding the postponed adjudication of this particular set of claims,
Plaintiff’s First and Eighth Amendment Bivens claims are susceptible to review, and are
dismissed with prejudice for the reasons below.
1. Bivens
Plaintiff’s First and Eighth Amendment Bivens claims, much like Bivens itself, are

“dead on arrival.” Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023). In 1871, Congress
enacted 42 U.S.C. § 1983, which created a private cause of action to redress violations of
federal rights committed by state actors. But Congress has not created a similar cause of
action to vindicate violations of federal rights by federal officers. Yet, the Supreme Court has,
on occasion, found the Constitution to imply “a cause of action for damages against
individual federal officers to redress violations of constitutional rights.” Kalu v. Spaulding, 113
F.4th 311, 325 (3d Cir. 2024) (citing Bivens, 403 U.S. at 397). In the eponymous Bivens
decision, the “Supreme Court implied a cause of action against federal drug agents whose
warrantless search of a home violated the Fourth Amendment.” Fisher v. Hollingsworth, [115

F.4th 197, 203](https://www.courtlistener.com/opinion/10041457/tony-fisher-v-jordan-hollingsworth/#203) (3d Cir. 2024).
The decade that followed saw the Supreme Court recognize two additional causes of
action under the Constitution: first, for a congressional staffer’s gender discrimination claim
under the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 244 (1979), and second, for
a federal prisoner’s inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 19 (1980). “Since these cases, the Court has not implied additional causes of
action under the Constitution.” Fisher, 115 F.4th at 203; see also Egbert v. Boule, 596 U.S. 482,
486 (2022) (“Over the past 42 years, however, we have declined 11 times to imply a similar
cause of action for other alleged constitutional violations.”). Quite contrawise, “in
recognition that separation of powers principles are central to the analysis, the Court has
‘made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.’” Kalu, 113 F.4th at 325 (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)).
The Court nevertheless proceeds two-step to determine whether a Bivens remedy
should be fashioned here. “First, we ask whether the ‘case presents a new Bivens context’—

i.e., whether the ‘case is different in a meaningful way from previous Bivens cases decided by’
the Supreme Court.” Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at 139). “Only three
cases serve as a benchmark: Bivens, Davis, and Carlson. ‘And our understanding of a “new
context” is broad.’” Kalu, 113 F.4th at 325 & n.6 (first citing Abbasi, 582 U.S. at 131; and
then quoting Hernández v. Mesa, 589 U.S. 93, 102 (2020)). So broad in fact that “Egbert
instructs us that ‘almost parallel circumstances’ are not sufficient.” Id. (quoting Egbert, 596
U.S. at 495). While there is no “exhaustive list of differences that are meaningful enough to
make a given context a new one,” factors to be considered include:
the rank of the officers involved; the constitutional right at issue; the generality
or specificity of the official action; the extent of judicial guidance as to how an
officer should respond to the problem or emergency to be confronted; the
statutory or other legal mandate under which the officer was operating; the risk
of disruptive intrusion by the Judiciary into the functioning of other branches;
or the presence of potential special factors that previous Bivens cases did not
consider.

Abbasi, 582 U.S. at 139–40. “If a case does not present a new Bivens context, the inquiry ends
there, and a Bivens remedy is available.” Shorter v. United States, 12 F.4th 366, 372 (3d Cir.
2021).
“Second, 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.’” Egbert, 596 U.S.
at 492 (quoting Abbasi, 582 U.S. at 136). “If there is even a single ‘reason to pause before
applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Id. (quoting
Hernández, 589 U.S. at 102); see also Fisher, 115 F.4th at 207 (citations omitted) (“Any special
factor—even one—suffices to foreclose a new Bivens cause of action. If there is a single reason
to pause, then we may not recognize a Bivens remedy.”). The two 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.” Egbert, 596 U.S. at 492. Hence, for example, why “a court
may not create a Bivens remedy if Congress already has provided, or has authorized the
Executive to provide, ‘an alternative remedial structure,’” Abbasi, 582 U.S. at 137, a
“quintessential special factor,” Fisher, 115 F.4th at 208.
Plaintiff’s First Amendment Bivens claim, whether dressed up as retaliation or free
exercise or both, is definitively foreclosed. The claim is firstly “meaningfully different”
because it is brought under the First Amendment, a different “constitutional right at issue”
than in Bivens, Davis, and Carlson. See Kalu, 113 F.4th at 327; Egbert, 596 U.S. at 498. This,

“[b]y itself,” ends the inquiry because “the ‘uncertainty’ that results from extending Bivens to
a new context ‘forecloses relief.’ And ‘[t]he newness of [a] “new context” ... alone require[s]
dismissal.’” Fisher, 115 F.4th at 207 (citations omitted).
Likewise with Plaintiff’s Eighth Amendment Bivens claim. True, the Supreme Court
implied such a remedy in Passman, but “a claim may arise in a new context even if it is based

on the same constitutional provision as a claim in a case in which a damages remedy was
previously recognized.” Hernandez, 589 U.S. at 103. The refusal to provide allergen-free
meals, as alleged instantly, is incontrovertibility distinct from where prison officials failed to
provide emergency medical treatment to an inmate who had chronic asthma, causing the
inmate’s death, as at issue in Passman. See 442 U.S. at 244. Thus, the facts in Passman bear
little relation to Plaintiff’s allegations such that a new Bivens context arises. See, e.g., Perez v.
Merendino, No. 23-23431 (GC) (TJB), 2025 WL 3771267, at *10 (D.N.J. Dec. 31, 2025)
(“However, an Eighth Amendment nutrition claim presents a new context under the first step
of the Bivens analysis.”); Kalu, 113 F.4th at 325 (understanding new Bivens context so broadly

that even “almost parallel circumstances” are insufficient). This “uncertainty” once more
“forecloses relief.” Fisher, 115 F.4th at 207.
Further, on step two, the Egbert court declared “that there is no Bivens action for First
Amendment retaliation,” 596 U.S. at 498, while the “Third Circuit has declined to recognize
a First Amendment Free Exercise claim for monetary damages under Bivens, in part, because
there is no need to imply a damages remedy where [the Religious Freedom Restoration Act]
provides for such relief”, Singh v. Thompson, No. CV 24-7641 (RMB-EAP), 2024 WL 4818771,
at *4 (D.N.J. Nov. 18, 2024) (citing Mack v. Warden Loretto FCI, 839 F.3d 286, 304 (3d Cir.
2016)); see also Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that

Bivens extends to First Amendment claims.”). Indeed, among other causes of action, Plaintiff
is asserting a First Amendment claim under RLUIPA, which the Court will liberally construe
as brought under RFRA. [Second Am. Compl., ¶ 5.] And this Court previously dismissed
Plaintiff’s Eighth Amendment Bivens claims because “[i]nmates in [his] position have full
access to an alternative remedial mechanism established by the Executive Branch: the BOP’s

ARP.” Kalu, 113 F.4th at 332 (citation omitted); see [Docket No. 43, at 10.] That reasoning
remains in force. For these reasons, the Court will dismiss Plaintiff’s First and Eighth
Amendment Bivens claims with prejudice.20
IV. CONCLUSION
Much has transpired in this case for this stage of litigation. But judicial process has
winnowed it down and burnished the Court’s focus. For the foregoing reasons, Defendants’
Motion to Dismiss is GRANTED IN PART.
Plaintiff’s claims brought under the Federal Tort Claims Act in paragraphs 1, 2, 3, 4,
and 6 of the Second Amended Complaint are DISMISSED WITHOUT PREJUDICE for

want of jurisdiction.
Plaintiff’s First and Eighth Amendment Bivens claims in paragraph 5 of the Second
Amended Complaint are DISMISSED WITH PREJUDICE.
With respect to Plaintiff’s allergy- and religious diet-based claims in paragraph 5 of the
Second Amended Complaint, Plaintiff’s requests for preliminary injunctive relief and the
appointment of pro bono counsel are DENIED WITHOUT PREJUDICE, but Defendants’

20 The Court limited Plaintiff’s leave to file a second amended complaint clarifying his claims to
those “which [he] understands have not been dismissed by this Court.” [Docket No. 43, at 13.]
Despite this clear instruction, the Second Amended Complaint tries to “absorb” an equivocally-
denied Bivens claim for the BOP’s alleged failure to provide Plaintiff with medical work boots.
[Id., at 10; Second Am. Compl., ¶ 6.] That claim remains dismissed with prejudice, and would
otherwise fail for the reasons above.
Motion to Dismiss is also DENIED WITHOUT PREJUDICE at this time. The Court will
reserve ruling on the FTCA, RFRA, and declaratory and equitable relief claims in paragraph
5 to allow Plaintiff to concretize them in a subsequent submission. To that end, Plaintiff shall
file within 30 days a submission, not to exceed 5 pages, that provides short and plain

statements only clearly articulating: (1) each of these claims; (2) the specific Defendant(s)
against which it is asserted; (3) the specific relief sought; and (4) and the precise factual
allegations supporting each claim. All supporting factual allegations for these claims shall be
set forth in Plaintiff’s submission. The Court will not hunt through Plaintiff’s other pleadings
in search of claims and allegations. If Plaintiff satisfies his obligation, then the Court will
subsequently grant Defendants 45 days to respond.
An accompanying Order shall issue.

February 27, 2026 /s/ Renée Marie Bumb
Date RENÉE MARIE BUMB
Chief United States District Judge