UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished opinion.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 USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 1 of 162 Unpublished opinio ns are not binding precedent in this circuit. USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 2 of 163 PAMELA HARRIS, Circuit Judge : Edwa rd Nel l son, 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

s ued 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 Amendme nt. He also raised state

- law medical negligence claims against the medical

- staff defendants. The district court entered judgment for all the defendants, and Nel l son 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 2 005, 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 inca rcerated 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 Nel l son, 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 t wo herniated disks and a dis k extrusion . Nellson sued officials at four separate facilities where he was housed from 2016 to 2019, alleging that USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 3 of 164 all failed to provide him with adequate medical treatment in violation of the Eighth Amendment. The cl aims a t 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 W arden Joseph Coa kley and Special Housing Unit Lieutenant James Soule ; and two medical professionals, Dr. Gregory Mims and Physician Assistant (“PA”) Leigh Bird. Nellson’s Eighth Amendment clai ms , asserted against all four defendants, center on his alleged placement in H azelton’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 d efendants , 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). Nel l son also raises state

- law medical negligence claims against the tw o 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 prop erly diagnose and treat his spinal injuries and attendant symptoms, including seizures and his difficulty with walking. USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 4 of 165 After Nellson’s Hazelton claims were transferred to the Northern District of West Virginia, the defendants moved to dismiss Nellson’s c o mplaint for failure to state a claim or, in the alternative, for summary judgment. See F ed. 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 Nellso n 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, Ne llson 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 , t hat 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 re quire 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, P A 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 USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 5 of 166 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 . Th ose claims could not go forward, the court held, in part because they were untimely under the Federal Tort Claims Ac t (“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 ; s ee 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 Nell son 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 th e 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

. USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 6 of 167 II. We understand the district court to have granted summary judgment to the defendants at least in part, relying on record material s 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’ altern ative motion to dismiss, our review is likewise de novo. Pledger , 5 F.4th at 517. “To surv ive 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 (200 9 ) (internal quotation marks omitted).
A. We begin with Nell son’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 claim s 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

ma rk s omitted) )

. USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 7 of 168 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 fo r 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 i nvolves a new category of defendants.” Id. at 137 ( internal quotation marks omitted ) (quot ing 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 USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 8 of 169 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 .” I d. 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 appro ving 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 violation s 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 h ave 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 USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 9 of 1610 “ involve the sam e ‘ 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 Ca rlson

ar ose 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 administra tive 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 c ase 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. USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 10 of 1611 We do not doubt that a prison administrator’s failure to accommodate a n inmate’s serious medical condition or need in making a placement could , under certain circum stances , give ri se 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 Carlso n 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 a re 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. A s 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 USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 11 of 1612 as effective as a suit for damages, weighs heavily against recogni zing 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 all eges 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 som e meaningful difference, see Tate , 54 F.4th at 84 5 , 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 co mplaint alleges that all four defendants are liable under this theory, Nellson has now conceded that Dr. Mims and PA Bird had nothing to do USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 12 of 1613 with his placement in the SHU without an assistive device. According to Nellson , his placement in the SHU was an en tirely 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 allegedl y 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
Ne llson’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 mak e out

1 Nellson’s amended complaint includes a separate Bivens “supervisory capacity” count against Dr. Mims , as well as the two administrato r 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 s upervisory capacity with regard to the defendants that Nellson claims Dr. Mims supervised . On these ground s alone, we may affirm the district court’s dismissal of Nellson’s “supervisory capacity ” Bivens claim against these defendants

. USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 13 of 1614 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 pris on 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 neurologica l 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 clai ms 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 USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 14 of 1615 consistently have found, fall short of deliberate indifferenc e 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 c laims against the United States brought pursuant to the FTC A , 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, u nder 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 appropri ate 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 administ rative 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 2 8 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 woul d be liable under the law of the place where the act occurred . 28 U.S.C. § 1346(b)(1). USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 15 of 1616 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 wait ed 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 an d 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 i d. USCA4 Appeal: 21-6206 Doc: 57 Filed: 05/10/2023 Pg: 16 of 16