Edward Nellson v. John Doe

USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 1 of 16

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 21-6206

EDWARD NELLSON,

Plaintiff - Appellant,

v.

JOHN DOE, Warden of USP Hazelton; JOHN DOE, SHU Lt. at USP Hazelton;
GREGORY MIMS; LEIGH BIRD,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. John Preston Bailey, District Judge. (5:20-cv-00112-JPB-JPM)

Argued: January 27, 2023 Decided: May 10, 2023

Before HARRIS, Circuit Judge, and MOTZ and KEENAN, Senior Circuit Judges.

Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Senior Judge
Motz and Senior Judge Keenan joined.

ARGUED: John Michael Shoreman, MCFADDEN & SHOREMAN, Washington, D.C.,
for Appellant. Maximillian Fitzsimmons Nogay, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellees. ON BRIEF: Mario B. Williams,
NDH LLC, Atlanta, Georgia, for Appellant. William Ihlenfeld, United States Attorney,
Randolph J. Bernard, Acting United States Attorney, Christopher J. Prezioso, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellees.
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 2 of 16

Unpublished opinions are not binding precedent in this circuit.

2
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 3 of 16

PAMELA HARRIS, Circuit Judge:

Edward Nellson, a federal prisoner, claims that prison officials denied him adequate

medical care when they placed him in a special housing unit without a walker or wheelchair

despite his inability to walk without assistance, forcing him to crawl on the ground. He

sued for damages in federal court, bringing a Bivens claim against two sets of federal

defendants – two prison administrators and two prison medical professionals – for

deliberate indifference to his serious medical needs, in violation of the Eighth Amendment.

He also raised state-law medical negligence claims against the medical-staff defendants.

The district court entered judgment for all the defendants, and Nellson appealed.

For the reasons that follow, we affirm the judgment of the district court.

I.

Edward Nellson has been in the custody of the federal Bureau of Prisons since 2005,

serving a life sentence for robbery and murder. This action concerns only his time at the

Hazelton penitentiary in Bruceton Mills, West Virginia, where Nellson was incarcerated

from December 2016 to November 2017. But Nellson’s medical issues – and prison

officials’ alleged failure to address them – began earlier, in March 2016, when Nellson fell

from his bunk at a different facility and sustained a concussion. According to Nellson,

officials at various federal prisons then failed to properly diagnose or treat his injuries,

which led to seizures and difficulty walking without an assistive device, until March 2018,

when he finally was diagnosed with two herniated disks and a disk extrusion. Nellson sued

officials at four separate facilities where he was housed from 2016 to 2019, alleging that

3
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 4 of 16

all failed to provide him with adequate medical treatment in violation of the Eighth

Amendment.

The claims at issue here, severed and transferred to the Northern District of West

Virginia, arise solely from Nellson’s roughly year-long incarceration at Hazelton. Named

as defendants are four Hazelton officials: two prison administrators, former Warden

Joseph Coakley and Special Housing Unit Lieutenant James Soule; and two medical

professionals, Dr. Gregory Mims and Physician Assistant (“PA”) Leigh Bird.

Nellson’s Eighth Amendment claims, asserted against all four defendants, center on

his alleged placement in Hazelton’s Special Housing Unit (“SHU”) for months at a time

without a walker or wheelchair. According to Nellson, the defendants knew he could not

walk unassisted. Nevertheless, he claims, he was left in the SHU to crawl on the floor,

causing painful sores on his hands and knees and aggravating his yet-to-be-diagnosed

spinal injuries. By way of a Bivens action, see Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Nellson seeks damages from the four

federal defendants, alleging that by allowing his placement in the SHU without an assistive

device, they were deliberately indifferent to his serious medical needs in violation of the

Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97 (1976).

Nellson also raises state-law medical negligence claims against the two medical-

professional defendants, alleging a more general failure to provide him with adequate

medical care during his time at Hazelton. Specifically, Nellson alleges, Dr. Mims and

PA Bird failed to properly diagnose and treat his spinal injuries and attendant symptoms,

including seizures and his difficulty with walking.

4
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 5 of 16

After Nellson’s Hazelton claims were transferred to the Northern District of West

Virginia, the defendants moved to dismiss Nellson’s complaint for failure to state a claim

or, in the alternative, for summary judgment. See Fed. R. Civ. P. 12(b)(6) (dismissal); Fed.

R. Civ. P. 56 (summary judgment). The district court granted the motion and entered

judgment for the defendants. See Nellson v. Doe, No. 5:20-cv-00112-JPB-JPM (N.D.

W. Va. Jan. 22, 2021), available at J.A. 397–407.

Nellson’s Eighth Amendment deliberate indifference claim, the district court held

in relevant part, was foreclosed by Nellson’s pleadings and the record evidence. Id. at

396–401. To establish a constitutional violation, the district court explained, Nellson

would have to prove that the defendants “knew of an excessive risk to his health or safety

and consciously disregarded that risk.” Id. at 400; see Farmer v. Brennan, 511 U.S. 825,

837 (1994). But there was no allegation, the district court noted, that the two administrator

defendants – Warden Coakley and Lieutenant Soule – had any involvement in Nellson’s

medical care. Instead, as non-medical personnel, they were entitled to rely on the judgment

of the prison’s medical staff that Nellson did not require an assistive walking device.

Nellson, J.A. 396–98.

As for Dr. Mims and PA Bird, the district court found, Nellson’s medical records

demonstrated conclusively that Nellson “was appropriately and timely treated for all

medical issues he presented” at Hazelton. Id. at 399. Most important here, after a lengthy

intake review of Nellson’s medical history, PA Bird found nothing to confirm his self-

reported need for an assistive device for walking. And while Nellson disagreed with that

diagnosis, the court concluded, there was no evidence suggesting that Bird or Mims knew

5
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 6 of 16

it was incorrect, or otherwise consciously disregarded a known risk to Nellson’s health or

safety as would be required to make out an Eighth Amendment claim. “[T]he plaintiff

merely disagrees with the prison’s medical staff as to his diagnosis or course of treatment.

However, such a claim . . . does not rise to the level of a constitutional violation.” Id. at

401.

The district court then turned to Nellson’s state-law medical negligence claims

against Dr. Mims and PA Bird. Those claims could not go forward, the court held, in part

because they were untimely under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§ 1346(b)(1), which allows for “damages liability for certain acts of federal employees that

violate state law.” Pledger v. Lynch, 5 F.4th 511, 515 (4th Cir. 2021). Under the FTCA,

the district court explained, Nellson was required to exhaust his claim administratively with

the Bureau of Prisons (“BOP”) and then, if not satisfied, file suit in district court within six

months of the BOP’s determination. Nellson, J.A. 405–06; see 28 U.S.C. § 2401(b). But

here, the district court concluded, the BOP denied the only relevant administrative claim

on March 21, 2019, and Nellson did not file suit until a year later, on March 22, 2020,

rendering his action untimely. Nellson, J.A. 406.

Nellson appealed. After briefing was completed, the Supreme Court issued its

decision in Egbert v. Boule, 142 S. Ct. 1793 (2022), addressing the availability of the

Bivens cause of action. We asked the parties to file supplemental briefs on whether, in

light of Egbert, Nellson’s Eighth Amendment deliberate indifference claims against federal

prison officials are cognizable under Bivens.

6
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 7 of 16

II.

We understand the district court to have granted summary judgment to the

defendants at least in part, relying on record materials outside the complaint to do so. We

review that judgment de novo. See Pledger, 5 F.4th at 524. Summary judgment is

appropriate if, viewing the record in the light most favorable to Nellson as the nonmoving

party, there is no genuine dispute of material fact and the defendants are entitled to

judgment as a matter of law. See id.; Fed. R. Civ. P. 56. To the extent the district court

granted the defendants’ alternative motion to dismiss, our review is likewise de novo.

Pledger, 5 F.4th at 517. “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

A.

We begin with Nellson’s damages claims against the two prison-administrator

defendants, Warden Coakley and SHU Lieutenant Soule, for alleged violations of his

Eighth Amendment rights. In the absence of a statutory cause of action for damages,

Nellson relies on the implied cause of action established in Bivens. We conclude, however,

that Nellson’s claims are not cognizable under Bivens, and we therefore affirm the district

court’s judgment in favor of these defendants. See United States v. Flores-Granados, 783

F.3d 487, 491 (4th Cir. 2015) (“We are entitled to affirm on any ground appearing in the

record, including theories not relied upon . . . by the district court.” (internal quotation

marks omitted)).

7
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 8 of 16

Since the Supreme Court issued its recent decision in Egbert, we have twice

considered the availability of Bivens claims against federal prison officials. See Tate v.

Harmon, 54 F.4th 839 (4th Cir. 2022) (finding no Bivens cause of action for conditions of

confinement after placement in SHU); Bulger v. Hurwitz, 62 F.4th 127 (4th Cir. 2023)

(finding no Bivens cause of action for placement of inmate in general population and failure

to protect from prisoner-on-prisoner violence). Both opinions detail the arc of the Supreme

Court’s precedent in this area, see Tate, 54 F.4th at 843–45; Bulger, 62 F.4th at 135–37,

and we will not repeat the full analysis here. For present purposes, what matters is that the

Supreme Court has not overruled Bivens or its direct progeny – Davis v. Passman, 442 U.S.

228 (1979), and, relevant here, Carlson v. Green, 446 U.S. 14 (1980), allowing a damages

suit against federal prison officials under the Eighth Amendment for deliberate indifference

in failing to treat an inmate’s serious medical needs. See Bulger, 62 F.4th at 136

(describing cases). But at the same time, the Supreme Court has “scaled back Bivens

significantly” and “consistently rebuffed” every effort to expand Bivens beyond those three

cases. Id. (internal quotation marks omitted); see Tate, 54 F.4th at 843.

We are left with a “highly restrictive two-step analysis for Bivens cases,” intended

to “severely limit the reach of Bivens.” Bulger, 62 F.4th at 137. First, a court must

determine whether a claim falls within the causes of action already authorized by the

Supreme Court’s Bivens trilogy – Bivens, Davis, and Carlson – or “whether it arises in a

new context or involves a new category of defendants.” Id. at 137 (internal quotation marks

omitted) (quoting Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)). The Supreme Court’s

understanding of a “new context” is broad, requiring only some “meaningful” difference

8
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 9 of 16

from a previous Bivens case. See Tate, 54 F.4th at 844. If a claim does not “fall precisely

under Bivens, Davis, or Carlson,” then the court proceeds to the second step, asking

whether there are “any special factors that counsel hesitation about granting [an] extension

of Bivens.” Id. at 844–45 (internal quotation marks omitted). Here, we are instructed to

focus on separation-of-powers principles, and whether it can be said that a court, “rather

than the political branches, is better equipped to decide whether existing remedies should

be augmented by the creation of a new judicial remedy.” See id. at 847 (quoting Egbert,

142 S. Ct. at 1804).

Nellson’s primary argument is that he prevails at the first step of this analysis: His

case does not present a “new context” because it is squarely governed by Carlson. In his

case, he explains, he alleges that Warden Coakley and Lieutenant Soule violated his Eighth

Amendment rights by approving his months-long placement in the SHU, with no access to

a walker or wheelchair, in deliberate indifference to his serious medical needs. And the

Supreme Court already has approved, in Carlson, an implied cause of action for Eighth

Amendment violations by prison officials who exhibit deliberate indifference to an

inmate’s serious medical or health needs. So there is nothing “new” about this context,

Nellson finishes, and his claim may proceed under Carlson.

We cannot agree. It is not enough, as we have made clear, that a case involves the

same constitutional provision or the same right as in Carlson; that level of generality is too

high. See Bulger, 62 F.4th at 138. For these purposes, the Supreme Court instructs, “courts

should not interpret Carlson to apply outside the precise context at issue in that case.” Id.

Even claims alleging deliberate indifference to an inmate’s medical needs, though they

9
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 10 of 16

“involve the same ‘right and mechanism of injury’ as in Carlson,” may “still present

‘different’ contexts.” Id. (alteration omitted) (quoting Ziglar v. Abbasi, 582 U.S. 120,

138–39 (2017)).

This is just such a case. The alleged constitutional violations at issue in Carlson

arose from prison officials’ failure to provide competent medical care after an inmate

suffered a severe asthma attack, leading to his death. 446 U.S. at 16 & n.1. In contrast, as

the district court observed, Nellson does not allege any involvement, direct or indirect, by

the two prison administrators in his medical care. Instead, with respect to these defendants,

Nellson challenges what is by his own account a purely administrative decision: his

placement in the SHU, where standard policy, for safety and security reasons, does not

permit mobility devices. See Opening Br. of Appellant at 13 (“Nothing in the record

supports that this was a medical decision.”). That makes this case less like Carlson, which

turned on decisions about an inmate’s medical care, and more like Tate and Bulger, in

which we held that claims arising from administrative placement decisions fall outside

Carlson’s “context.” See Tate, 54 F.4th at 846–47 (finding “materially distinct” from

Carlson a deliberate indifference claim that placement in SHU exposed inmate to

conditions that put his health at risk); Bulger, 62 F.4th at 138 (same for deliberate

indifference claim that placement of inmate in general population without protection from

other prisoners led to his death). Such claims are meaningfully different from Carlson, we

explained, because they implicate “organizational policies, administrative decisions, and

economic concerns inextricably tied to inmate transfer and placement determinations.”

Bulger, 62 F.4th at 138.

10
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 11 of 16

We do not doubt that a prison administrator’s failure to accommodate an inmate’s

serious medical condition or need in making a placement could, under certain

circumstances, give rise to an Eighth Amendment claim. See Short v. Smoot, 436 F.3d 422

(4th Cir. 2006) (analyzing Eighth Amendment claim of deliberate indifference to

substantial risk that inmate would commit suicide); Brown v. Lamanna, 304 F. App’x 206

(4th Cir. 2008) (per curiam) (analyzing Eighth Amendment claim of deliberate indifference

through placement of inmate in SHU without crutches). But the question here is whether

that claim is meaningfully different, for Bivens purposes, from a Carlson claim regarding

the adequacy of the medical treatment provided to an inmate. Under the “highly

restrictive” standard we must apply, see Bulger, 62 F.4th at 137, we think the answer is

yes.

We thus turn to the second step of our inquiry: whether there are special factors

counseling against an extension of Bivens, or, in Egbert’s terms, “whether there is any

reason to think that Congress might be better equipped to create a damages remedy.”

Bulger, 62 F.4th at 140 (internal quotation marks omitted) (quoting Egbert, 142 S. Ct. at

1803). We held in both Tate and Bulger that special factors do indeed counsel against

extending Bivens in the prison context. See Bulger, 62 F.4th at 139–42; Tate, 54 F.4th at

847–48. We reach the same conclusion here for substantially the same reasons. As Bulger

explains, Congress’s decision not to include an individual-capacity damages remedy in the

Prison Litigation Reform Act “speaks volumes and counsels strongly against judicial

usurpation of the legislative function.” 62 F.4th at 141 (internal quotation marks omitted).

Likewise, the existence of an alternative remedial structure for prisoners, even if it is not

11
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 12 of 16

as effective as a suit for damages, weighs heavily against recognizing a new Bivens cause

of action. Id. at 140–41 (describing equitable remedies available to inmates). Under

Egbert, it is clear that “even one” such factor is enough to foreclose an extension of Bivens,

see 142 S. Ct. at 1805, leaving Nellson without a cognizable cause of action for damages

against Warden Coakley and Lieutenant Soule.

B.

We turn next to Nellson’s claim for damages against the two medical-staff

defendants, Dr. Mims and PA Bird, for alleged violations of his Eighth Amendment rights

through deliberate indifference to his serious medical needs. Here again, Nellson relies on

an implied Bivens cause of action, arguing that his claims are identical to the deliberate

indifference claim recognized in Carlson. Insofar as Nellson alleges a denial of adequate

medical treatment by these defendants, we agree that he is at least within striking distance

of Carlson. But we need not decide whether such a claim would “fall precisely” enough

under Carlson, or whether there still might be some meaningful difference, see Tate,

54 F.4th at 845, because to the extent Nellson has raised such a claim, he cannot prevail

on it.

Nellson’s Eighth Amendment deliberate indifference claim, set out in the first count

of his complaint, is based on just one allegation: that the defendants violated his

constitutional rights by “approving [his] placement in the SHU” and “refusing to provide

him with a wheelchair or walker,” despite their knowledge that he could not walk

unassisted. J.A. 180. But while the complaint alleges that all four defendants are liable

under this theory, Nellson has now conceded that Dr. Mims and PA Bird had nothing to do

12
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 13 of 16

with his placement in the SHU without an assistive device. According to Nellson, his

placement in the SHU was an entirely administrative decision, made without input from

any medical professional: “There is no evidence or allegation that medical personnel

recommended placing Mr. Nellson in the SHU or that they recommended he be placed

there without a walker or a wheelchair.” Opening Br. of Appellant at 14. Given Nellson’s

own framing of his case, there appears to be no ground on which to hold Dr. Mims or

PA Bird liable for the only Eighth Amendment violation he has alleged. 1

Some of the factual recitations in Nellson’s complaint, to be sure, do implicate Mims

and Bird, referencing other occasions, separate from the time in the SHU, on which they

allegedly misdiagnosed Nellson’s injuries or failed to provide him with appropriate

treatment. Because those factual allegations have no bearing on the Eighth Amendment

claim described in Nellson’s complaint, we think they are fairly read as pertaining only to

Nellson’s separate count for medical negligence. But however Nellson’s allegations

regarding Mims and Bird were intended, we agree with the district court that they in fact

“describ[e] behavior that might support a medical malpractice claim” but “do not make out

1
Nellson’s amended complaint includes a separate Bivens “supervisory capacity”
count against Dr. Mims, as well as the two administrator defendants. J.A. 180–81. But
there is no factual allegation in the complaint describing any action taken by either
administrator defendant in a supervisory capacity, nor are there any factual allegations
describing any action taken by Dr. Mims in a supervisory capacity with regard to the
defendants that Nellson claims Dr. Mims supervised. On these grounds alone, we may
affirm the district court’s dismissal of Nellson’s “supervisory capacity” Bivens claim
against these defendants.

13
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 14 of 16

a case of deliberate indifference.” See Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir.

2014).

As the district court explained, the subjective component of a deliberate indifference

claim requires more than a showing of negligence; only if a prison official “subjectively

‘knows of and disregards an excessive risk to inmate health or safety’” is the Eighth

Amendment violated. See Jackson, 775 F.3d at 178 (quoting Farmer, 511 U.S. at 837).

And here, as the district court found, the record gives no indication that Mims or Bird either

knew of or consciously disregarded any such risk to Nellson’s health. Instead, Nellson’s

prison medical records demonstrate conclusively that PA Bird conducted an extensive

review of Nellson’s medical history on intake, finding no evidence that Nellson had been

diagnosed with “Balance Equilibrium Disorder” or otherwise required assistance with

walking, as he reported. And after that, Hazelton’s medical staff provided care to Nellson

in accordance with the treatment plan outlined by Bird, and also as needed to address

emergent issues – such as Nellson’s reported seizure, which led to referrals for multiple

neurological examinations, an EEG, and treatment by medication. Nellson, of course,

alleges that Bird’s intake diagnosis was mistaken, and that Bird and Mims should have

done more to identify and treat his impaired mobility and other symptoms. But even if we

assume that is true, it is not enough to make out a claim for deliberate indifference. Cf.

Jackson, 775 F.3d at 178 (“[I]t is not enough that an official should have known of a risk;

he or she must have had actual subjective knowledge . . . .”). Nellson’s claims against

Dr. Mims and PA Bird are essentially “disagree[ments] . . . as to his diagnosis or course of

treatment,” as the district court concluded, Nellson, J.A. 401, and such disagreements, we

14
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 15 of 16

consistently have found, fall short of deliberate indifference under the Eighth Amendment.

Jackson, 775 F.3d at 178.

C.

Finally, we agree with the district court that Nellson’s state-law medical negligence

claims against Dr. Mims and PA Bird, construed as claims against the United States

brought pursuant to the FTCA, 2 are barred by the FTCA’s six-month statute of limitations.

Nellson does not meaningfully dispute this conclusion on appeal, and so we address it only

briefly.

As the district court explained, under the FTCA, a claimant must exhaust his

administrative remedies before initiating an action in federal court. See 28 U.S.C. § 2675.

After final denial of an administrative tort claim or qualifying agency inaction, the claimant

may file suit in an appropriate federal court, but he must do so within six months. 28 U.S.C.

§ 2675; 28 U.S.C. § 2401(b).

Before initiating the instant suit, Nellson submitted multiple administrative tort

claims to the BOP, only one of which concerned activity at Hazelton. In a letter dated

March 21, 2019, the BOP denied that claim and notified Nellson that he had six months to

file suit in federal court. See 28 C.F.R. § 14.9(a) (final denial of administrative claim “shall

2
Per Nellson’s request, the district court treated his medical negligence claims as
raised under the FTCA, which provides the exclusive remedy for claimants seeking
damages for torts committed by federal employees acting in the scope of their employment.
See 28 U.S.C. § 2679(b)(1); United States v. Smith, 499 U.S. 160, 165–66 (1991). The
FTCA effects a limited waiver of sovereign immunity for such tort claims, permitting the
United States to be held liable in tort in the same respect as a private person would be liable
under the law of the place where the act occurred. 28 U.S.C. § 1346(b)(1).

15
USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 16 of 16

include a statement that, if the claimant is dissatisfied with the agency action, he may file

suit in an appropriate U.S. District Court not later than 6 months after the date of mailing

of the notification”). Nellson nevertheless waited to file the initial complaint in this action

until March 22, 2020, a full year after the BOP denied his administrative claim.

Consequently, and as the district court found, Nellson’s medical negligence claims are

untimely. 3

III.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

3
The district court also dismissed Nellson’s medical negligence claims on an
alternative ground: that Nellson failed to comply with West Virginia’s pre-suit notice and
certification requirement for medical negligence cases. See W. Va. Code § 55-7B-6. After
the district court issued its order, however, we held in Pledger that such state-law
requirements “are inconsistent with the Federal Rules of Civil Procedure, and thus
displaced by those rules in federal court.” 5 F.4th at 513–14. Accordingly, that part of the
district court’s ruling was in error, and we do not rely on that ground here. See id.

16