UNPUBLISHED 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Affirmed by unpublished opinion.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.

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Unpublished opinions are not binding precedent in this circuit.

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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 

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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 medicalprofessional 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.

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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 selfreported 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 

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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. 

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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)). 

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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 

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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 

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“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. 

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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 

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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 

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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. 

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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 

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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).

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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.

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