govinfo:USCOURTS-njd-1_23-cv-12960-0

UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
JESUS HOB DURAN, 
 
 Plaintiff, 
 
 v. 
 
ASSISTANT WARDEN ROOT, et al., 
 
 Defendants. 
 
 
Civil Action 
No. 23-12960 (CPO) (MJS) 
 
 
OPINION 
 
 
O’HEARN, District Judge. 
Before the Court is Defendants’ motion to dismiss the Amended Complaint (hereinafter 
“Complaint”), pursuant to Federal Rule of Civil Procedure 12(b)( 6). (ECF No. 48). For the 
following reasons, the Court will grant Defendants’ motion and dismiss the Complaint for failure 
to state a claim. 
I. FACTUAL BACKGROUND1 
This case arises from Plaintiff’s placements in the Special Housing Unit (“SHU”) during 
his incarceration at Federal Correctional Institution Fairton . The remaining Defendants are 
Assistant Warden Brian Root, Warden Steven Merendino, Assistant Warden Christopher Nobile, 
Special Investigative Services (“SIS”) Lieutenant John Weiler, and SIS Officer Jonathan 
Kopistecki. (See ECF No. 13, at 4 –8; ECF No. 48 -2, at 5 n.2 (correcting the spelling of certain 
Defendants’ names)). 
On January 27, 2023, officers placed Plaintiff into the SHU without explanation. (ECF No. 
13, at 6). A few days later, Assistant Warden Root informed Plaintiff that he was placed in the 
SHU for witness-security, as an informant affiliated with the gang MS-13. (Id. at 9). Plaintiff told 
 
1 The Court will accept as true the factual allegations in the Complaint for the purposes of this 
Opinion only. The Court has made no findings as to the veracity of Plaintiff’s allegations. PageID:
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Assistant Warden Root that he was the wrong inmate, because he was a former member of the 
prison gang, partido revolucionario mexicano (“PRM”), not MS-13. (See id.; ECF No. 48-2, at 5). 
On February 9, 2023, Plaintiff discovered that there was another inmate with the last name 
Duran, housed in the SHU, that was affiliated with MS -13. (ECF No. 13, at 9). About a week 
later, Plaintiff attempted to explain the mistaken identity situation to Assistant Warden Root. (Id.). 
Assistant Warden Root replied that Plaintiff was under SIS investigation and refused to explain 
for what reason. (Id.). The following week, Plaintiff asked Warden Merendino “why he was being 
punished” for the prison ’s mistake. (Id.). Defendant Merendino replied that Plaintiff was under 
SIS investigation and “knows what he did.” (Id.). 
On February 28, 2023, Plaintiff asked SIS Lieutenant Wieler when SIS would inform him 
of what he was being investigated for and for his SHU placement order, as thirty days had passed. 
(Id. at 10). SIS Lieutenant Wieler advised that no “order has to be given [and] that all an inmate 
needs to know is [that] he is being investigated.” (Id. (cleaned up)). 
A few weeks later, on March 21, 2023, Warden Merendino, Assistant Warden Root, and 
Assistant Warden Nobile took Plaintiff to a holding room. ( Id.). Assistant Warden Root advised 
that Plaintiff “was going to be allowed out of the SHU,” but that “if he hears anything about what 
happened in the SHU and the other Duran,” Plaintiff would be returned to the SHU. (Id.). Plaintiff 
did not comply, filed grievances regarding the events above, and spoke to someone from the 
Bureau of Prisons’ (“BOP”) regional office. (Id. at 11). 
 On June 14, 2023, Assistant Warden Root told Plaintiff that he “should have kept [his] 
mouth shut.” (Id.). Defendants Root, Merendino, Nobile, and the SIS returned Plaintiff to the SHU 
in retaliation for filing grievances. (Id.). Approximately two weeks later, SIS Officer Kopistecki 
took Plaintiff and his cellmate to an office and informed Plaintiff that he “was pissing off the wrong PageID:
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people and to apologize before things get worse.” (Id.). SIS Officer Kopistecki then threatened to 
place Plaintiff and his cellmate in paper suits to cause conflict between them. (Id.). Later that day, 
the two men were placed in paper suits. (Id.). 
Finally, Plaintiff alleges that since June 14, 2023, he had been denied certain “personal and 
legal mail” and that the prison had not responded to his attorney’s attempts to set up a call. (Id. at 
12). Plaintiff does not specify, however, who he believes was responsible for those ostensibly 
retaliatory actions. (See id.). 
Plaintiff initiated this case in August of 2023, and filed the instant Complaint in February 
of 2024, claiming that Defendants violated his rights under the First, Fifth, and Eighth 
Amendments. (Id. at 5–16). In terms of relief, Plaintiff seeks compensatory and punitive damages. 
Defendants filed a motion to dismiss pursuant to Rule 12(b)(6), (ECF No. 48), Plaintiff filed an 
Opposition, (ECF No. 49), and Defendants did not file a reply. 
II. STANDARD OF REVIEW 
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to 
state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts 
accept all factual allegations as true, construe the complaint in the light most favorable to the 
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may 
be entitled to relief.” Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting 
Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint 
survives a motion to dismiss if it contains 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); Bell 
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). PageID:
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To make this determination, a court conducts a three-part analysis. Santiago v. Warminster 
Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the elements a plaintiff 
must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the court should identify 
allegations that, “because they are no more than conclusions, are not entitled to the assumption of 
truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 680). Finally, “where there are well -pleaded factual 
allegations, a court should assume their veracity and then determine whether they plausibly give 
rise to an entitlement for relief.” Id. 
IV. DISCUSSION 
 Plaintiff brings his remaining claims pursuant to Bivens v. Six Unknown Named Agents of 
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 13, at 3). The Court construes 
the Complaint as raising retaliation claims under the First Amendment, procedural due process 
claims under the Fifth Amendment, and cruel and unusual punishment claims under the Eighth 
Amendment. (See id. at 5–16). Defendants move to dismiss, arguing among other things, that 
Plaintiff can no longer pursue a Bivens remedy in light of Ziglar v. Abbasi, 582 U.S. 120 (2017), 
and its progeny. 
A. Current State of Bivens 
 In Bivens, the Supreme Court created an implied cause of action under the Fourth 
Amendment, “against federal agents who allegedly manacled the plaintiff and threatened his 
family while arresting him for narcotics violations. ” Egbert v. Boule , 596 U.S. 482, 490 (2022) 
(quoting Bivens, 403 U.S. at 397). The Court extended the Bivens remedy twice more in Davis v. 
Passman, 442 U.S. 228 (1979) (holding that a Bivens remedy exists for a Fifth Amendment gender 
discrimination claim where a congressman fired an administrative assistant), and Carlson v. Green, 
446 U.S. 14 (1980) (holding that a prisoner’s estate had a Bivens remedy under the Eighth PageID:
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Amendment against prison officials for failing to treat the prisoner’s asthma which resulted in his 
death). “These three cases—Bivens, Davis, and Carlson—represent the only instances in which 
the Court has approved of an implied damages remedy under the Constitution itself. ” Ziglar, 582 
U.S. at 131. 
 After more than fifty years of Bivens jurisprudence, “the Supreme Court . . . pulled back 
the reins to . . . a full stop.” Xi v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023). In Ziglar v. Abbasi, 
582 U.S. 120, 135 (2017), the Supreme Court announced, “that expanding the Bivens remedy is 
now a ‘disfavored’ judicial activity.” The Court held that if “there are sound reasons to think 
Congress might doubt the efficacy or necessity of a damages remedy,” a court “must refrain from 
creating it.” Egbert, 596 U.S. at 491 (quoting Ziglar, 582 U. S. at 137). “Even a single sound 
reason to defer to Congress is enough to require a court to refrain from creating such a remedy. ” 
Id. (emphasis added) (internal quotation marks omitted). Stated differently, “if there is a rational 
reason to think ” that Congress, rather than the courts, “should decide whether to provide . . . a 
damages remedy, . . . . no Bivens action may lie. ” Id. at 492. The Court warned that Congress 
should make that decision “in [al]most every case.” Id. 
 As a result, when faced with a proposed Bivens claim, courts should now engage in a two-
step inquiry. Id.; Xi, 68 F.4th at 833. First, the court asks, “whether the case presents a new Bivens 
context,” i.e., whether the case is “meaningfully different ” from Bivens, Davis, and Carlson. 
Egbert, 596 U.S. at 492; Xi, 68 F.4th at 833. “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). 
 If the claim does arise in a new context, a court should proceed to the second step and ask 
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Egbert, 596 U.S. at 492; Xi, 68 F.4th at 833. The Supreme Court defined a “special factor” as one 
that suggests that Congress is better suited than the judiciary to “weigh the costs and benefits” of 
creating a new remedy for monetary damages. Egbert, 596 U.S. at 492; Xi, 68 F.4th at 833. The 
test is incredibly stringent, “[i]f there is even a single ‘reason to pause before applying Bivens in a 
new context, ’ a court may not recognize a Bivens remedy.” Egbert, 596 U.S. at 492 (quoting 
Hernandez v. Mesa, 589 U.S. 93, 102 (2020)); Xi, 68 F.4th at 836. 
B. New Contexts 
 When deciding whether a claim presents a new context, the Supreme Court has “made clear 
that the category of ‘new contexts’ is ‘broad,’ and [that] this threshold test is ‘easily satisfied.’” 
Xi, 68 F.4th at 834 (quoting Hernandez, 589 U.S. at 102; Ziglar, 582 U.S. at 139) ; Bulger v. 
Hurwitz, 62 F.4th 127, 138 (4th Cir. 2023) ; see also Mays v. Smith, 70 F.4th 198, 203 (4th Cir. 
2023), cert. denied, 144 S. Ct. 1008 (2024) ( “This [step] is a low bar because even ‘quite minor’ 
differences . . . can amount to a new context. ”). Thus, even if a case presents “almost parallel 
circumstances or a similar mechanism of injury, ” such “superficial similarities are not enough. ” 
Egbert, 596 U.S. at 495 (internal quotation marks omitted); Mays, 70 F.4th at 204; Xi, 68 F.4th at 
834. 
 To determine whether a claim might differ in a “meaningful way,” the Supreme Court 
suggested that these differences might concern: 
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 o ther 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 
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Ziglar, 582 U.S. at 139–40. The Court emphasized that this was not an exhaustive list, but merely 
a few examples. Id. at 139. 
 Starting with Petitioner ’s First Amendment claims, it is well settled that “the Supreme 
Court has never recognized a Bivens remedy for First Amendment retaliation claims . . . in the 
prison context.” Mack v. Yost, 968 F.3d 311, 320 (3d Cir. 2020); see also Egbert, 596 U.S. at 498 
(“[T]here is no Bivens cause of action for . . . First Amendment retaliation claim[s].”); Reichle v. 
Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First 
Amendment claims.”). Accordingly, Petitioner ’s First Amendment retaliation claims present a 
new Bivens context. 
 Next, Petitioner’s cruel and unusual punishment claims regarding his placement into the 
SHU and being forced to wear a “paper suit” also present a new Bivens context. The nature of 
these claims is entirely different from those in Bivens, Davis, and Carlson. See Ziglar, 582 U.S. 
at 131 (discussing Bivens, a Fourth Amendment unreasonable search and seizure claim against 
federal narcotics agents; Davis, a Fifth Amendment gender discrimination claim against a 
congressman; and Carlson, an Eighth Amendment claim for failure to provide adequate medical 
care to a federal prisoner); see also Goldey v. Fields, 606 U.S. 942, 943 –44 (2025) (holding that 
Eighth Amendment claims related to solitary confinement and physical abuse during that period 
presented a new context); Kalu v. Spaulding, 113 F.4th 311, 338 (3d Cir. 2024) (finding that Eighth 
Amendment conditions of confinement claims presented a new context). 
 Finally, Petitioner ’s Fifth Amendment procedural due process claims challenging the 
decisions to place him in the SHU without notice or an opportunity to be heard are similarly 
different from those in Bivens, Davis, and Carlson. See, e.g., Ziglar, 582 U.S. at 131 ; Mays v. 
Smith, 70 F.4th 198, 203 (4th Cir. 2023) (“The Supreme Court has never authorized a Bivens claim PageID:
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for procedural due process.”); Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019) (“Fifth 
Amendment procedural due process claims presented [a] new Bivens context.”). Consequently, 
these claims also present a new Bivens context. 
C. Special Factors 
 As these claims present new Bivens contexts, the Court must proceed to the second step 
and determine whether any “special factors” warrant hesitation in extending a Bivens remedy to 
Plaintiff’s claims. Egbert, 596 U.S. at 492; Xi, 68 F.4th at 833. Once again, a “special factor” is 
one that suggests that Congress is better suited than the judiciary to “weigh the costs and benefits” 
of creating a new remedy for monetary damages . See Egbert, 596 U.S. at 492. If “there is any 
rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of 
allowing a damages action to proceed,” a court cannot imply a cause of action under Bivens. Id. at 
496 (emphasis in original) (internal quotation marks omitted); Xi, 68 F.4th at 836. 
 Here, as “in [al]most every case, ” a number of special factors weigh against creating a 
Bivens remedy. See Egbert, 596 U.S. at 492. First, the Supreme Court held in Egbert that “a court 
may not fashion a Bivens remedy if Congress . . . has provided, or has authorized the Executive 
to provide, ‘an alternative remedial structure.’” Id. at 493 (quoting Ziglar, 582 U.S. at 137). The 
Supreme Court held that the BOP ’s administrative remedy program is a sufficient “alternative 
remedial structure ” to constitute a special factor. See id. at 497 (citing Corr. Servs. Corp. v. 
Malesko, 534 U.S. 61, 74 (2001)); Muniz v. United States, 149 F.4th 256, 263–65 (3d Cir. 2025); 
Bulger, 62 F.4th at 140–41; Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022). 
 Since the BOP’s administrative remedy program is an “alternative remedial structure” that 
was available to Plaintiff, “that alone, like any special factor, is reason enough to . . . [preclude] a 
new Bivens cause of action. ” Egbert, 596 U.S. at 493; Bulger, 62 F.4th at 140 –41; Muniz, 149 PageID:
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F.4th at 264–65; Marquez v. C. Rodriguez, 81 F.4th 1027, 1033 (9th Cir. 2023); Silva, 45 F.4th at 
1141; Dongarra, 27 F.4th at 181. “It is irrelevant that monetary damages are not available through 
the . . . program.” Yaeger v. Song, No. 22-05056, 2024 WL 3064673, at *4 (D.N.J. June 20, 2024); 
see also Egbert, 596 U.S. at 493 (holding that it does not matter that “existing remedies do not 
provide complete relief”); Muniz, 149 F.4th at 264 (“The effectiveness of the [BOP administrative 
remedy program] is, at best, dubious. . . . But, in the step-two Bivens analysis, alternative remedies 
need not provide complete relief.” (cleaned up)). “So long as Congress or the Executive has 
created a remedial process that it finds sufficient to secure an adequate level of deterrence, the 
courts cannot second -guess that calibration by superimposing a Bivens remedy,” even if those 
alternatives “are not as effective as an individual damages remedy. ” Egbert, 596 U.S. at 498 
(internal quotation marks omitted). 
 While the Court is cognizant of the practical difficulties, Plaintiff was able to use the 
administrative process, and it did spur the BOP to begin an investigation. (See ECF No. 13, at 5, 
10). Accordingly, the existence of the BOP ’s administrative remedy program is a special factor 
that cautions against implying a Bivens remedy. See Egbert, 596 U.S. at 492–93 (noting that Bivens 
relief will be unavailable “in most every case”); Muniz v. United States, 149 F.4th at 265 (holding 
that since the Plaintiff had access to the BOP’s administrative remedy program “his Bivens claim 
is foreclosed”). 
 Next, the passage of the Prison Litigation Reform Act ( “PLRA”), Pub. L. No. 104 –134 
(April 26, 1996), is another special factor . Approximately fifteen years “after Carlson was 
decided, Congress passed the [PLRA], which made comprehensive changes to the way prisoner 
abuse claims must be brought in federal court.” Ziglar, 582 U.S. at 148. Congress had the “specific 
occasion to consider the matter of prisoner abuse and . . . [how] to remedy those wrongs, ” but PageID:
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chose “not [to] provide . . . a standalone damages remedy against federal jailers. ” See id. at 148–
49. That legislative action “suggest[s] that Congress does not want a damages remedy,” and “is . 
. . a factor” that cautions against implying a Bivens remedy. Id. at 148; Davis v. Samuels, 962 F.3d 
105, 113 n.5 (3d Cir. 2020). Similarly, the Supreme Court observed that in recent years, “Congress 
has actively legislated in the area of prisoner litigation but has not enacted a statutory cause of 
action for money damages. ” Goldey, 606 U.S. at 944. That inaction also constitutes a special 
factor against extending Bivens. See id. at 944–45. 
 In sum, these claims present new Bivens contexts, and although one was sufficient, multiple 
special factors caution against extending a Bivens remedy. See Egbert, 596 U.S. at 496. As a 
result, the Court will not imply a Bivens remedy for these claims . Accordingly, even assuming 
that Defendants violated his rights, Plaintiff has no available remedy.2 
V. CONCLUSION 
For the foregoing reasons, the Court will grant Defendants’ motion to dismiss and dismiss 
the Complaint with prejudice. To be clear—Plaintiff’s allegations raise serious concerns regarding 
a lack of process and Plaintiff’s unwarranted assignment to SHU, which undoubtedly caused him 
suffering, despite prison officials having several opportunities to rectify their apparent mistake. 
The Court recognizes the harshness of this outcome . Nevertheless, as a district court, t his Court 
is constrained by the recent decisions of the Supreme Court. An appropriate Order follows. 
 
Dated: June 2, 2026 
/s/ Christine P. O’Hearn 
 Christine P. O’Hearn 
 United States District Judge 
 
 
2 As a result of its analysis as to the Bivens claims, the Court need not reach Defendants’ arguments 
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