Noe v. United States Gov't

• Docket Number: 23-1025
• Decision Date: 22 December 2023
• Parties: PETER GEORGE NOE, Plaintiff-Appellant, v. UNITED STATES GOVERNMENT; BERKLEY, Dr.; H. SCHOUWEILER; FEDERAL BUREAU OF PRISONS; DUNN, R.N.; FELLOWS, R.N., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

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PETER GEORGE NOE, Plaintiff-Appellant,
v.
UNITED STATES GOVERNMENT; BERKLEY, Dr.; H. SCHOUWEILER; FEDERAL BUREAU OF PRISONS; DUNN, R.N.; FELLOWS, R.N., Defendants-Appellees.

No. 23-1025

United States Court of Appeals, Tenth Circuit

December 22, 2023

(D.C. No. 1:21-CV-01589-CNS-STV) (D. Colo.)

Before EID, CARSON, and ROSSMAN, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Allison H. Eid, Circuit Judge

Peter George Noe, pro se, appeals the district court's judgment dismissing claims he raised concerning dental care he received from prison staff. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

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I. BACKGROUND

Noe is a federal prisoner housed at the United States Penitentiary Administrative Maximum Facility in Florence, Colorado. He filed a pro se action against the United States, the Bureau of Prisons (BOP), and four individual BOP employees in their individual capacities: a dentist (defendant Burkley), a dental assistant (defendant Schouweiler), and two nurses (defendants Dunn and Fellows). In the operative amended complaint, Noe alleged that at a November 2019 visit with Dr. Burkley, he complained of substantial pain in three teeth. ^[1] Dr. Burkley told Noe that the three teeth needed crowns, but because prison policy did not allow crowns due to the expense, Dr. Burkley planned to use fillings. Dr. Burkley then put a filling in one of those teeth ("tooth #3") and declined to treat the other two teeth because of a one-tooth-per-visit policy. When Noe complained that tooth #3 was worse, Dr. Burkley tried another filling. And when that did not work, Dr. Burkley tried a pin and a filling. The third procedure, which occurred in June 2020, broke tooth #3, which then had to be extracted. Noe received fillings in the other two teeth in November 2020 and April 2021. During the eighteen months between Noe's initial visit and the last repair, he was in substantial pain and was denied pain medication. The teeth continue to cause him substantial pain.

Noe asserted three claims: (1) Eighth Amendment deliberate indifference against the individual defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

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403 U.S. 388 (1971); (2) a claim under the Federal Tort Claims Act (FTCA) against the United States; and (3) a claim for injunctive relief against the BOP based on the no-crowns policy. He sought declarations that defendants were liable on each claim, damages on claims one and two, and injunctive relief on claim three.

Noe sought and received multiple extensions of time to file a certificate of review for his FTCA claim, but he never filed one.^[2] Defendants eventually filed motions to dismiss. In December 2022, the magistrate judge recommended: (1) dismissing the Bivens claim as not cognizable under applicable precedent, because the BOP's Administrative Remedy Program provided an alternative remedy Noe could have used to obtain relief; (2) dismissing the FTCA claim because Noe failed to obtain a certificate of review; and (3) dismissing the claim for injunctive relief because any "no crowns" policy did not violate the Eighth Amendment, but with leave to amend the claim to add allegations that might show such a policy amounted to an Eighth Amendment violation.

Noe filed objections, which included factual allegations supporting the claim for injunctive relief against the BOP that the magistrate judge had outlined. The district court overruled the objections, adopted the recommendation, and granted the

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motions to dismiss. However, the court allowed Noe fourteen days to file an amended complaint limited to the claim for injunctive relief against the BOP.

Noe never filed an amended complaint. Instead, he filed a notice of appeal on January 30, 2023.

II. APPELLATE JURISDICTION

Defendants filed a motion to dismiss this appeal for lack of jurisdiction, arguing that the district court's order granting their motions to dismiss was not a final, appealable order. However, Noe has since filed a motion in the district court stating he did not intend to file an amended complaint and asking for a final judgment. On May 9, 2023, the district court entered a final judgment. Noe's notice of appeal, therefore, "is treated as filed on the date of and after the entry" of the final judgment, Fed. R. App. P. 4(a)(2). The notice of appeal is therefore timely and confers appellate jurisdiction on this court. Consequently, we deny as moot defendants' motion to dismiss and two related motions Noe filed ("Motion to Voluntarily Dismiss Motions" and "Motion for Clarification").

III. DISCUSSION

Noe raises five issues on appeal, which we address in the following order: (1) his Bivens claim is cognizable; (2) the district court should have allowed him to amend his complaint to cite certain statutes; (3) the district court abused its discretion in finding an expert was needed for his FTCA claim; (4) the district court should have granted him a fourth extension of time to file a certificate of review for his FTCA claim; and (5) the district court erred in denying his motion to appoint an

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expert. Liberally construing Noe's pro se filings, but without acting as his advocate, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008), we reject these arguments.

A. Bivens claim

In Bivens, the Supreme Court "authorized a damages action against federal officials for alleged violations of the Fourth Amendment." Egbert v. Boule, 596 U.S. 482, 486 (2022). Since then, the Supreme Court has only twice "fashioned new causes of action under the Constitution." Id. at 490. In Davis v. Passman, 442 U.S. 228 (1979), the Court recognized a damages action for a former congressional staffer's Fifth Amendment sex-discrimination claim. And in Carlson v. Green, 446 U.S. 14 (1980), the Court implied a damages action for a federal prisoner's inadequate-care claim under the Eighth Amendment.

However, the Supreme Court has since "emphasized that recognizing a cause of action under Bivens is a disfavored judicial activity." Egbert, 596 U.S. at 491 (internal quotation marks omitted). Accordingly, the Court eventually settled on a two-step analysis of proposed Bivens claims. At step one, a court has to consider "whether the case presents 'a new Bivens context'-i.e., is it 'meaningfully' different from the three cases in which the [Supreme] Court has implied a damages action." Id. at 492 (brackets omitted) (quoting Ziglar v. Abbasi, 582 U.S. 120, 139 (2017)). And at step two, "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

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equipped than Congress to 'weigh the costs and benefits of allowing a damages action to proceed.'" Id. (quoting Abbasi, 582 U.S. at 136).

Noe argues that his Bivens claim is cognizable because the factual context of his case is like the factual context in Carlson, and factual similarity is sufficient to permit a Bivens claims to proceed regardless of whether a plaintiff has a meaningful alternative remedy. Noe also argues that the BOP's Administrative Remedy Program (ARP) is not a meaningful alternative to a civil action. Because the district court dismissed the Bivens claim with prejudice for failure to state a claim for relief, our review is de novo. See Albers v. Bd. of Cnty. Comm'rs, 771 F.3d 697, 700 (10th Cir. 2014).

We need not decide whether Noe's case is meaningfully different from Carlson, because in the wake of Egbert and Silva v. United States, 45 F.4th 1134 (10th Cir. 2022), the availability of the ARP is sufficient to foreclose a Bivens claim despite any factual similarity between the two. In Silva, we observed that Egbert "appeared to alter the existing two-step Bivens framework by stating that 'those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.'" 45 F.4th at 1139 (quoting Egbert, 596 U.S. at 492). And we viewed "the key takeaway from Egbert" as being "that courts may dispose of Bivens claims for 'two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs.'" 45 F.4th at 1141 (quoting Egbert, 596 U.S. at 494) (emphasis and brackets in Silva).

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We concluded that, in light of Supreme Court precedent, "the [ARP] is an adequate 'means through which allegedly unconstitutional actions can be brought to the attention of the BOP and prevented from recurring.'" Id. (ellipsis omitted) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001)). And "'[b]ecause Bivens is concerned solely with deterring the unconstitutional acts of individual officers,'" we determined that "the availability of the [ARP] offers an independently sufficient ground to foreclose [a] Bivens claim" brought by a federal prisoner. Id. (quoting Egbert, 596 U.S. at 498).^[3]

Read together, Egbert and Silva direct that where the government has provided an alternative remedy, a court generally should not recognize a Bivens claim even if the factual context is not meaningfully different from that in Bivens, Davis, or Carlson. And here, the ARP, which Silva says is an adequate alternative remedy, is available to Noe. Thus, Noe's Bivens claim is, as the district court concluded, not cognizable.

As Noe points out, at least one district court (outside the Tenth Circuit) has said that if the context is not meaningfully different from Bivens, Davis, or Passman, the analysis ends there, and the Bivens claims can proceed without the step-two

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inquiry into whether an adequate alternative remedy exists. See Kennedy v. Massachusetts, 643 F.Supp.3d 253, 259 (D. Mass. 2022) ("[B]ecause this court is not fashioning a new Bivens context, the Court need not consider alternative remedial structures.").^[4] But precedential...