UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

:

RAUL NAZARIO,

:

 Plaintiff ACTION NO. 3:22-CV-1366

:

 v. (JUDGE MANNION)

:

MERRICK GARLAND and 

SCOTT FINLEY, :

 Defendants :

MEMORANDUM

Defendant Merrick Garland moves to dismiss Plaintiff Raul Nazario’s 

complaint. Defendant Garland is the Attorney General of the United States, 

and Defendant Scott Finley was the Warden and Chief Executive Officer of 

the Federal Correctional Institution at Schuylkill County, Pennsylvania, 

where Plaintiff was employed. Plaintiff alleges violations of the Rehabilitation 

Act, Title VII of the Civil Rights Act of 1964, and the United States 

Constitution. 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 1 of 27
- 2 -

I. BACKGROUND

A. Factual Background1

Plaintiff was employed as a Recreational Specialist at FCI Schuylkill. 

(Doc. 1 ¶5). During his employment, his coworkers and supervisors 

commented on his accent and Puerto Rican heritage. (Id. ¶¶101–02). His 

coworkers also talked about the fact that Plaintiff drove a Mercedes, and they

criticized his interactions with Spanish-speaking inmates. (Id. ¶¶104–06). 

In late January 2020, Plaintiff was diagnosed with localized 

osteoarthritis in his right knee. (Id. ¶41). His treating physician initially 

ordered temporary work restrictions until February 22, 2020. (Id. ¶¶45–46). 

After Plaintiff was told by his supervisor that he would not be allowed to return 

to work with restrictions, he obtained revised medical clearance to return 

immediately without restrictions. (Id. ¶¶59–65). Another Recreation 

Specialist, Adam Ducayne, was permitted to return to work in a “light duty” 

position for several weeks after breaking his foot. (Id. ¶¶52–54). 

Upon returning to work, Plaintiff was ordered to submit to a physical 

search of his person and belongings. (Id. at ¶¶70–72). He was then 

1 Because this is a motion to dismiss, the court must “accept all factual 

allegations as true.” Bruni v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir. 

2016). The factual background is therefore drawn from the Complaint. (Doc. 

1). 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 2 of 27
- 3 -

reassigned to a position in the administration building. (Id. ¶76). Defendant 

Finley told Plaintiff that he was being reassigned because he was under 

investigation for misconduct. (Id. ¶80). 

On March 18, 2020, Plaintiff participated in an EEO informal 

counseling telephone interview with his attorney and an EEO counselor. (Id. 

¶107). Later that day, he was asked to speak privately with his supervisor, 

who said that “Management” had instructed him to warn Plaintiff about 

“watching too much TV in the staff room.” (Id. ¶110–12). 

In late November 2020, Defendant Finley received a copy of the report 

of investigation for Plaintiff’s EEO complaint against him. (Id. ¶119). In early 

December, Finley came to Plaintiff’s office and “verbally berated him” for not 

wearing a mask. (Id. ¶120). Plaintiff submitted a memorandum to the union 

president about the incident, and later that same day received a negative 

performance entry ordered by Defendant Finley. (Id. ¶121–22). Plaintiff 

made a complaint to the prison’s human resources manager, and Defendant 

Finley thereafter “went out of his way to come to Plaintiff’s office to check on 

Plaintiff every single day.” (Id. ¶124). Plaintiff submitted a complaint against 

Finley to the Bureau of Prisons’ Northeast Regional Office in January 2021,

alleging harassment and retaliation. (Id. ¶125). Finley continued to come to 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 3 of 27
- 4 -

Plaintiff’s office every day. (Id. ¶128). Defendant Finley retired from BOP 

service in September 2021. (Id. ¶131). 

In February 2022, Plaintiff was interviewed by an agent of the United 

States Office of Inspector General at the request of the new warden. (Id. 

¶¶141, 143). The agent informed Plaintiff that he was subject to investigation 

for suspected involvement in narcotics smuggling efforts at the prison. (Id. 

¶144). He also told Plaintiff that the investigation had been sent back to 

Defendant Finley multiple times but that Finley had referred the investigation 

back to the OIG. (Id. ¶146). Plaintiff was notified in May 2022 that the 

investigation was closed. (Id. ¶153). 

B. Procedural History

Plaintiff initially contacted an EEO Counselor on February 28, 2020, 

(Id. ¶17), and on March 18 participated in an EEO interview and requested 

a 60-day extension of the EEO counseling period. (Id. ¶¶18–19). He received 

a Notice of Right to File a Discrimination Complaint on May 28, 2020. (Id. 

¶20). He submitted a formal complaint of discrimination on June 12, 2020. 

(Id. ¶22). On August 4, 2021, he requested a final agency decision, which 

decision remained unissued as of August 1, 2022. (Id. ¶¶25, 28). 

Plaintiff filed a complaint (the “Complaint”) in this court on September 

2, 2022. (Doc. 1). The Complaint brings the following claims against 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 4 of 27
- 5 -

Defendant Garland: (I) Rehabilitation Act – Failure to Provide Reasonable 

Accommodation; (II) Rehabilitation Act – Disparate Treatment; (III) 

Rehabilitation Act – Retaliation; (IV) Rehabilitation Act – Interference; (V) 

Title VII of the Civil Rights Act – Disparate Treatment; (VI) Title VII –

Retaliation; and (VII) Title VII / Rehabilitation Act – Retaliatory Hostile Work 

Environment. (Doc. 1 at 25–33). It brings the following claims against 

Defendant Finley: (VIII) Fourth Amendment – Seizure / Investigatory 

Detention; and (IX) Fourth Amendment – Warrantless Search. (Id. at 33–36). 

Plaintiff seeks damages and demands a jury trial. (Id. at 36). 

II. LEGAL STANDARD

In response to a complaint, a party may move for dismissal for “failure 

to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 

To survive dismissal, a complaint must make more than “conclusory or ‘barebones’ allegations,” and “‘threadbare recitals of the elements of the cause of 

action, supported by mere conclusory statements, do not suffice.’” Fowler v. 

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009)). Instead, the complaint must “set out 

‘sufficient factual matter’ to show that the claim is facially plausible.” Id. 

(quoting Iqbal, 556 U.S. at 678). 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 5 of 27
- 6 -

In considering the complaint, the court must apply a “two-part 

analysis.” Id. “First,” the court “must accept all of the complaint’s well-pleaded 

facts as true, but may disregard any legal conclusions.” Id. at 210–11. 

“Second,” the court “must then determine whether the facts alleged in the 

complaint are sufficient to show that the plaintiff has a plausible claim to 

relief.” Id. at 211. 

III. DISCUSSION

A. Defendants

Defendants are Merrick Garland and Scott Finley. Defendant Finley is 

sued in his personal capacity. (Doc. 1 ¶9). Because the Complaint does not 

allege any actions taken by Defendant Garland personally, the court 

assumes that he is sued in his official capacity,2 as the Attorney General of 

2 An official-capacity suit “generally represent[s] only another way of 

pleading an action against the entity of which the officer is an agent.” 

Kentucky v. Graham, 473 U.S. 159, 165 (1985). Such a suit “is ... to be 

treated as a suit against the entity.” Id. at 166. “Absent a waiver, sovereign 

immunity shields the Federal Government and its agencies from suit.” FDIC 

v. Meyer, 510 U.S. 471, 475 (1994). Here, Plaintiff sues Defendant Garland 

under §501 of the Rehabilitation Act and Title VII of the Civil Rights Act of 

1964. “Congress has waived the Federal Government’s sovereign immunity 

from compensatory damages claims for violations of §501 of the 

Rehabilitation Act,” Lane v. Pena, 518 U.S. 187, 193 (1996) (citing 29 U.S.C. 

§794a(a)(1)), as well as for claims under Title VII. Libr. of Cong. v. Shaw, 

478 U.S. 310, 323 (1986). 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 6 of 27
- 7 -

the United States and head of the United States Department of Justice, of 

which the Bureau of Prisons and FCI Schuylkill are part.

B. Count I – Failure to Provide Reasonable Accommodation

“To establish a prima facie case of discrimination under the 

Rehabilitation Act, a plaintiff must initially show, ‘(1) that he or she has a 

disability; (2) that he or she is otherwise qualified to perform the essential 

functions of the job, with or without reasonable accommodations by the 

employer; and (3) that he or she was nonetheless terminated or otherwise 

prevented from performing the job.’” Wishkin v. Potter, 476 F.3d 180, 184–

85 (3d Cir. 2007). 

Defendant argues that Count I should be dismissed because Plaintiff 

“fails to allege what specific accommodations he was seeking,” and thus has 

not plead that he was qualified to perform the essential functions of his 

position with or without reasonable accommodations. (Doc. 16 at 14). But 

Plaintiff alleges that his physician initially cleared him to work with “physical 

restrictions that included ‘no running, no restraints, squatting, kneeling.’” 

(Doc. 1 ¶56). Those limitations were later revised, Plaintiff alleges, to just “no 

running.” (Id. ¶60). Plaintiff has alleged what accommodations he was 

seeking. He has plead that he is qualified to perform the essential functions 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 7 of 27
- 8 -

of his position with or without reasonable accommodations. (Id. ¶36). 

Defendant’s motion to dismiss Count I will be denied. 

C. Counts II–IV

Defendant argues that Counts II through IV should be dismissed for 

the same reason as Count I: because Defendant has not alleged that he was 

qualified to perform the essential functions of his position with or without 

reasonable accommodations. (Doc. 16 at 14). As discussed supra Section 

III.B, the court disagrees. It will therefore not dismiss on this basis.

The court concludes that Plaintiff has not failed to state a claim for relief 

in Counts II–IV, so Defendant’s motion to dismiss these counts will be 

denied.

1. Count II - Rehabilitation Act Disparate Treatment

Plaintiff has alleged that he was disabled by his knee injury, that he 

was qualified to perform the essential functions of his position with or without 

reasonable accommodations, and that he suffered an adverse employment 

action by Management’s refusal to allow him to return to work with temporary 

physical restrictions. He has also alleged that a similarly situated individual, 

Specialist Ducayne, was treated differently. He has thus not failed to state a 

Rehabilitation Act disparate treatment claim. See Luckiewicz v. Potter, 670 

F. Supp. 2d 400, 407 (E.D. Pa. 2009). 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 8 of 27
- 9 -

2. Count III - Rehabilitation Act Retaliation

Plaintiff alleges that he engaged in a Rehabilitation Act protected 

activity by requesting reasonable accommodations. He also alleges that his 

employer took an adverse action by reassigning him shortly after this 

request. This short interval suggests a causal connection between the 

protected activity and the adverse action. Plaintiff has thus not failed to state 

a Rehabilitation Act retaliation claim. See Lauren W. v. DeFlaminis, 480 F.3d 

259, 267 (3d Cir. 2007). 

3. Count IV - Rehabilitation Act Interference

Plaintiff alleges that Defendant violated Section 503 of the ADA, which 

is incorporated by Section 501 of the Rehabilitation Act. 29 U.S.C. §791(f). 

Section 503 of the ADA provides that: 

It shall be unlawful to coerce, intimidate, threaten, or interfere 

with any individual in the exercise or enjoyment of, or on account 

of his or her having exercised or enjoyed, or on account of his or 

her having aided or encouraged any other individual in the 

exercise or enjoyment of, any right granted or protected by this

Act.

42 U.S.C. §12203(b). 

The court concludes that Plaintiff has alleged that Defendant interfered 

with his ADA right to reasonable accommodations by denying his request for 

accommodations.

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 9 of 27
- 10 -

D. Count V - Title VII Disparate Treatment

A prima facie Title VII disparate treatment claim requires that a plaintiff 

“show that (1) []he is a member of a protected class; (2) []he was qualified 

for the position []he sought to retain; (3) []he suffered an adverse employment 

action, and (4) the action occurred under circumstances that could give rise 

to an inference of intentional discrimination.” Smith v. RB Distribution, Inc., 

498 F. Supp. 3d 645, 654 (E.D. Pa. 2020) (citing Makky v. Chertoff, 541 F.3d 

205, 214 (3d Cir. 2008)). 

1. Adverse employment action

Defendant contends that Plaintiff has not alleged that he suffered an 

adverse employment action. (Doc. 16 at 15). An “adverse employment 

action” in the Title VII context is “an action by an employer that is serious and 

tangible enough to alter an employee’s compensation, terms, conditions, or 

privileges of employment.” Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 

326 (3d Cir. 2015). 

Plaintiff alleges that because of the investigation he was indefinitely 

reassigned to a position in the administrative building. (Id. ¶79). He alleges 

that due to this reassignment, he “lost significant income in the form of 

differential pay, holiday pay, overtime, and other additional income staff 

would otherwise be entitled to earn on their normal duty assignment.” (Id. 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 10 of 27
- 11 -

¶163). Additionally, with regard to his request for an accommodation, Plaintiff 

alleges that he was not permitted to return to work with temporary physical 

restrictions as ordered by his physician. This denial of Plaintiff’s request 

altered the conditions of his employment. He has thus alleged that he 

suffered an adverse employment action. 

2. Inference of intentional discrimination

Defendant also contends that Plaintiff has not plead facts sufficient to 

show a discriminatory intent. (Doc. 16 at 16). Plaintiff alleges that the basis 

for placing him under investigation and reassigning him was his interactions 

with Spanish-speaking or Hispanic, Latino, or Puerto Rican inmates, which 

interactions were “being evaluated or scrutinized differently because of 

Plaintiff’s race/color and national origin.” (Doc. 1 ¶99). He also alleges that 

supervisors “have made taunting comments about Plaintiff’s accent and the 

way Plaintiff pronounces certain words in English,” and “about Plaintiff’s 

Puerto Rican heritage.” (Doc. 1 ¶¶101–02). 

Although in some circumstances, “[d]eragatory or negative remarks” 

can give rise to an inference of intentional discrimination, May v. PNC Bank, 

434 F. Supp. 3d 284, 296 (E.D. Pa. 2020) (citing Rossi v. Wyoming Valley 

Health Care Sys., 2010 WL 2766343, at *4 (M.D. Pa. 2010)), “[s]tray remarks 

by non-decisionmakers or by decisionmakers unrelated to the decision 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 11 of 27
- 12 -

process are rarely given great weight, particularly if they were made 

temporally remote from the date of decision.” Pivirotto v. Innovative Sys., 191 

F.3d 344, 359 (3d Cir. 1999). Plaintiff alleges that it was “Management” who 

made the decisions not to allow him to return to work with temporary physical 

limitations, (Doc. 1 ¶¶59, 64) and Defendant Finley’s decision to have him 

removed from his Recreation Specialist position. (Id. ¶87). Plaintiff does not 

allege that the derogatory comments toward him were made by the 

decisionmakers who allegedly caused him to suffer adverse employment 

actions. These comments are insufficient to support an inference of 

intentional discrimination. 

Such an inference can also be supported by “showing that similarly 

situated individuals who were not members of the protected class were more 

favorably treated than the plaintiff.” Mitchell v. City of Pittsburgh, 995 F. 

Supp. 2d 420, 430 (W.D. Pa. 2014). Plaintiff does allege that in 2019, 

Recreation Specialist Adam Ducayne (who, in construing the complaint’s 

factual allegations in the light most favorable to Plaintiff, the court assumes

is not a member of the same protected class), was permitted to work in a 

“light duty” position for several weeks after breaking his foot. (Doc. 1 ¶¶52–

54). Although Plaintiff has not alleged that Ducayne worked for the same 

supervisor, he alleged that the decision to allow Ducayne to work in a “light 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 12 of 27
- 13 -

duty” position was made by “Management.” Because they held the same 

position, were subject to decisions by the same “Management,” and suffered 

similarly severe injuries, Ducayne and Plaintiff were similarly situated for 

purposes of the Complaint’s allegation of disparate treatment.

The more favorable treatment of Ducayne is sufficient for an inference 

of intentional discrimination, but only with respect to Management’s refusal 

to permit Plaintiff to work with temporary physical restrictions. Because 

Plaintiff has not alleged circumstances that could give rise to an inference of 

intentional discrimination in connection with his reassignment, he has failed 

to state a claim of disparate treatment with respect to that reassignment. 

Thus, Defendant’s motion will be granted to the extent that Plaintiff claims 

disparate treatment with respect to his reassignment, but denied to the extent 

that Plaintiff claims disparate treatment with respect to Management’s 

refusal to permit him to work with temporary restrictions. 

E. Count VI – Title VII Retaliation

A Title VII retaliation plaintiff must plead “sufficient factual allegations 

to raise a reasonable expectation that discovery will reveal evidence of the 

following elements: (1) she engaged in conduct protected by Title VII; (2) the 

employer took adverse action against her; and (3) a causal link exists 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 13 of 27
- 14 -

between her protected conduct and the employer’s adverse action.” Connelly 

v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016). 

Defendant asserts that Plaintiff has not alleged a causal link between 

protected conduct and an adverse action. (Doc. 16 at 18). Title VII prohibits 

discrimination against an employee for the reason that “he opposed ... an 

unlawful employment practice ... or because he has made a charge, testified, 

assisted, or participated in any manner in an investigation, proceeding, or 

hearing under this subchapter.” 42 U.S.C. §2000e-3(a). Thus, “the antiretaliation provision of Title VII protects those who participate in certain Title 

VII proceedings (‘the participation clause’) and those who oppose 

discrimination made unlawful by Title VII (‘the opposition clause’).” Moore v. 

City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006).

First, Plaintiff’s allegation that “Management had knowledge of 

Plaintiff’s prior EEO activity,” specifically, a 2018–2019 EEO complaint 

against the United States Attorney’s Office in Newark, New Jersey, (Doc. 1 

¶¶32, 34), is insufficient to raise a reasonable expectation that discovery will 

reveal evidence of a causal link between that activity and subsequent 

adverse employment actions. Plaintiff’s complaints against a different 

agency, in a different state, are too far removed from the present allegations 

for the court to consider a causal link plausible. In addition, although Plaintiff 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 14 of 27
- 15 -

alleges that during his FCI Schuylkill employment he participated in an EEO 

informal counseling interview, (Doc. 1 ¶108), that interview came after 

Management’s refusal to permit him to work with temporary physical 

restrictions and his reassignment.

But Plaintiff also alleges he received a negative performance entry, 

which was ordered by Defendant Finley, after he submitted complaints about 

Finley. (Id. ¶¶119–22) The court concludes that these allegations are 

sufficient to suggest a causal link between protected activity and adverse 

action. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 

67–68 (2006) (“The [Title VII] antiretaliation provision protects an individual 

not from all retaliation, but from retaliation that produces an injury or harm 

.... a plaintiff must show that a reasonable employee would have found the 

challenged action materially adverse, which in this context means it well 

might have dissuaded a reasonable worker from making or supporting a 

charge of discrimination.” (internal quotations omitted)). 

Therefore, Defendant’s motion to dismiss Count VI will be denied. 

F. Count VII – Retaliatory Hostile Work Environment (Title 

VII & Rehabilitation Act)

Defendant argues that Plaintiff’s retaliatory hostile work environment 

claim should be dismissed (1) because he failed to exhaust his administrative 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 15 of 27
- 16 -

remedies for this claim, (Doc. 16 at 12), and (2) because he did not 

sufficiently plead severe or pervasive conduct. (Id. at 19). 

1. Exhaustion of Administrative Remedies

Before bringing suit for retaliation under Title VII or the Rehabilitation 

Act, a plaintiff must exhaust Title VII administrative remedies. Robinson v. 

Dalton, 107 F.3d 1018, 1020–21 (3d Cir. 1997); Spence v. Straw, 54 F.3d 

196, 201 (3d Cir. 1995). In general, “exhaustion requires both consultation 

with a counselor and filing a formal EEOC complaint within the required 

times.” Robinson, 107 F.3d at 1021. Once the EEOC has dismissed the 

charge, or 180 days have passed since its filing, a civil action may be filed. 

42 U.S.C. §2000e-5(f)(1); 29 C.F.R. §1614.107. 

Where, like here, a plaintiff brings several claims, disagreement may 

arise as to which ones have actually been exhausted. “The ‘relevant test’ for 

determining whether a later claim needs to be exhausted despite the filing of 

a previous charge is a two-pronged inquiry into whether ‘the acts alleged in 

the subsequent suit are fairly within the scope of [1] the prior EEOC 

complaint, or [2] the investigation arising therefrom.” Simko v. United States 

Steel Corp., 992 F.3d 198, 207 (3d Cir. 2021) (quoting Waiters v. Parsons, 

729 F.2d 233, 237 (3d Cir. 1984)). With regard to the second prong, the court 

“must only look at the scope of the EEOC investigation that would reasonably 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 16 of 27
- 17 -

grow out of, or arise from, the initial charge filed with the EEOC, ‘irrespectve 

of the actual content of the Commission’s investigation.’” Id. at 209. In 

“determining whether a claim fairly or reasonably falls within the investigation 

arising from a charge, courts consider (1) whether the claim arises from the 

same set of facts that support the original charge and (2) whether the claim 

advances the same theory of discrimination as the original charge.” Id. 

Defendant asserts that Plaintiff did not raise a hostile work environment 

claim in his EEOC complaint. (Doc. 16 at 12). Defendant has attached the 

Report of Investigation concerning Plaintiff’s EEOC complaint. (Doc. 16-1).3

In that complaint, Plaintiff alleged that from January 28, 2020 through 

February 7, 2020, he was (1) denied a reasonable accommodation by 

management’s refusal to permit him to work with restrictions, (2) subjected 

to disparate treatment by that refusal, (3) and subjected to discrimination 

when he was reassigned to a different job and placed under investigation for 

misconduct. (Id. at 2). He also alleges that on March 18, 2020, he was 

subjected to retaliation after participating in an EEO counseling interview 

when he was warned about watching too much TV during work. (Id. at 3). 

3 The Report details Plaintiff’s allegations, but the memorandum 

describing them submitted by Plaintiff with his EEOC complaint has not been 

provided. 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 17 of 27
- 18 -

In sum, he alleged that he faced retaliation at work for engaging in 

protected activities. Although he does not specifically allege a “hostile work 

environment,” his claim that he was subjected to a retaliatory hostile work 

environment advances a closely related theory of discrimination. Given that 

he alleged a pattern of discrimination and retaliation by his supervisors, it is 

reasonable to expect that investigation of further instances of a hostile work 

environment would grow out of his charge. By these allegations, Plaintiff’s 

supervisors can fairly be said to have been “put on notice” of a retaliatory 

hostile work environment claim. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 

1996). 

Defendant further contends that some of the instances of retaliation 

alleged by Plaintiff occurred after the investigation of his EEOC complaint 

concluded. (Doc. 16 at 12). But the exhaustion inquiry does not depend on 

what investigation actually took place. See Simko, 992 F.3d at 207. Because 

Plaintiff’s retaliatory hostile work environment claims are within the scope of 

the investigation that would have reasonably grown out of his EEOC 

complaint, the court concludes that they have been administratively 

exhausted. 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 18 of 27
- 19 -

2. Failure to state a claim

A retaliatory hostile work environment claim requires a plaintiff to prove 

that “(1) [he] he suffered intentional discrimination because of [his] protected 

activity; (2) the discrimination was severe or pervasive; (3) the discrimination 

detrimentally affected [him]; (4) it would have detrimentally affected a 

reasonable person in like circumstances; and (5) a basis for employer liability 

is present.” Komis v. Sec. of U.S. Dep’t Lab., 918 F.3d 289, 293 (3d Cir. 

2019). Defendant argues that Plaintiff “cannot show [that] management’s 

actions were tied to any of his prior alleged protected activity” and has not 

alleged severe or pervasive discrimination. (Doc. 16 at 20). 

As to Plaintiff’s Title VII claim: He alleges that after Defendant Finley 

received a copy of the report of investigation, he “berated” Plaintiff for not 

wearing a mask. (Doc. 1 ¶119–20). He also alleges that after he complained 

about this incident, he received a negative performance entry ordered by 

Defendant Finley, (Id. ¶121–22), and that Defendant Finley “went out of his 

way to come to Plaintiff’s office to check on Plaintiff every single day.” (Id. 

¶124). The court concludes that Plaintiff has alleged pervasive discrimination 

by prison management which would have detrimentally affected a 

reasonable person in like circumstances.

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 19 of 27
- 20 -

As to Plaintiff’s Rehabilitation Act claim: a request for an 

accommodation for a disability is a protected activity under the Rehabilitation 

Act. See Minter v. Dist. of Columbia, 809 F.3d 66, 70 (D.C. Cir. 2015); Coons 

v. Sec. of U.S. Dep’t Treasury, 383 F.3d 879, 887 (9th Cir. 2004). Plaintiff 

alleges that, following his knee injury, he asked to return to work with 

temporary physical restrictions. (Doc. 1 ¶47). His request was denied, and 

shortly thereafter, he was reassigned to an administrative position. (Id. ¶76). 

He alleges that this reassignment, which lasted more than two years, 

resulted in lost income. (Id. ¶163). The court concludes that Plaintiff has 

alleged protected activity and sufficiently severe or pervasive discrimination, 

and that the close temporal proximity between these two provides a plausible 

causal link. 

For these reasons, Defendant’s motion to dismiss Count VII will be 

denied.

G. Count VIII and IX - Fourth Amendment - Seizure / 

Investigatory Detention / Search

Plaintiff’s next two counts are against Defendant Finley. Defendant 

argues that these should be dismissed for insufficient service of process, 

(Doc. 16 at 6), and failure to state a claim. (Doc. 16 at 6–12). 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 20 of 27
- 21 -

1. Service of Process on Defendant Finley

A defendant must be served within 90 days after the complaint is filed. 

Fed. R. Civ. P. 4(m). Service may be effected by “(A) delivering a copy of the 

summons and of the complaint to the individual personally; [or] (B) leaving a 

copy of each at the individual’s dwelling or usual place of abode with 

someone of suitable age and discretion who resides there.” Fed. R. Civ. P. 

4(e)(2). “[T]he party asserting the validity of service bears the burden of proof 

on that issue.” Grand Ent. Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 

488 (3d Cir. 1993). 

Defendant asserts that “Warden Finley reported he has not received 

service of the Complaint in this matter.” (Doc. 16 at 6). An affidavit filed by 

Plaintiff, sworn by process server Frank Smith, avers that the summons and 

the complaint was left with an adult at Defendant Finley’s address. (Doc. 5; 

Doc. 22-2 at 5:20–22). The court concludes that Plaintiff has satisfied his 

burden of proof regarding effective service of process. See J & J Sports 

Prods., Inc. v. Graham, 2014 WL 1340622, at *3 (E.D. Pa. 2014) (“[C]ourts 

in this district have concluded that return of service by a private process 

server creates a rebuttable presumption that proper service was 

effectuated.”). 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 21 of 27
- 22 -

2. Failure to state a claim

The Fourth Amendment guards “[t]he right of the people to be secure 

in their persons, houses, papers and effects, against unreasonable searches 

and seizures.” U.S. Const. amend. IV. Plaintiff claims that Defendant Finley 

violated the Fourth Amendment by subjecting him to a warrantless (Count 

VIII) seizure (by “reassing[ing] Plaintiff to a different position and restrict[ing] 

his access to the secure perimeter of FCI Schuylkill solely because of his 

status as the uncharged target of a criminal investigation”), and (Count IX) 

search (by ordering that he be physically searched at the security entrance 

to the prison.) (Doc. 1 ¶¶71, 242, 251). He brings these Fourth Amendment 

claims through Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 

(1971), which allowed a claim for damages against federal officers for 

violating the Fourth Amendment. 

Recently, the Supreme Court has “emphasized that recognizing a 

cause of action under Bivens is a ‘disfavored judicial activity.’” Egbert v. 

Boule, 596 U.S. 482, 491 (2022) (quoting Ziglar v. Abassi, 582 U.S. 120, 135 

(2017)). It has “framed the inquiry as proceeding in two steps.” Id. at 492. 

“First,” the court asks “whether the case presents ‘a new Bivens context’—

i.e., is it ‘meaningfully’ different from the three cases in which the Court has 

implied a damages action.” Id. (quoting Ziglar, 582 U.S. at 139). “Second, if 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 22 of 27
- 23 -

a claim arises in a new context, a Bivens remedy is unavailable if there are 

‘special factors’ indicating that the Judiciary is at least arguably less 

equipped than Congress to ‘weigh the costs and benefits of allowing a 

damages action to proceed.’” Id. (quoting Ziglar, 582 U.S. at 136). “If there 

is even a single ‘reason to pause before applying Bivens in a new context,’ 

a court may not recognize a Bivens remedy.” Id. (quoting Hernandez v. 

Mesa, 140 S. Ct. 735, 743 (2020)). 

The court agrees with Defendant both that this case presents a new 

Bivens context and that special factors weigh against recognizing a Bivens 

remedy here. 

First, unlike Bivens, in which federal agents entered the plaintiff’s 

residence, arrested him, “manacled” him “in front of his wife and children, 

and threatened to arrest the entire family,” 403 U.S. at 189, the alleged 

search and seizure here occurred at Plaintiff’s place of employment, in the 

form of a security search and reassignment to a position in another building. 

That is a new context. The Bivens search and seizure occurred within the 

home, which, “when it comes to the Fourth Amendment, ... is first among 

equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). And the agents there

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 23 of 27
- 24 -

allegedly used excessive force. The court concludes that these facts 

meaningfully distinguish this case from Bivens.

4

The fact that Plaintiff’s claims are based on the Fourth Amendment is 

not enough to bring them within the scope of Bivens, for “[a] claim may arise 

in a new context even if it is based on the same constitutional provision as a 

claim in a case in which a damages remedy was previously recognized.” 

Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). Indeed, courts have found 

new Bivens contexts where a Fourth Amendment violation has been alleged. 

See Egbert, 596 U.S. at 493 (“The Court of Appeals conceded that Boule’s 

Fourth Amendment claim presented a new context for Bivens purposes.”); 

Xi v. Haugen, 68 F.4th 824, 834 (3d Cir. 2023) (“[T]he differences between 

Bivens and this case make clear that Xi’s Fourth Amendment claims arise in 

a context the Supreme Court has not previously countenanced.”); Weir v. 

FBI, 2023 WL 7018415, at *6 (W.D. Pa. 2023); Karkalas v. Marks, 2019 WL 

3492232, at *9 (E.D. Pa. 2019). 

For the second step, the court considers Count VIII and IX separately. 

4 The other two contexts in which the Court has fashioned a private 

cause of action under the Constitution involved alleged violations of the Fifth, 

Davis v. Passman, 442 U.S. 228 (1979), and Eighth, Carlson v. Green, 446 

U.S. 14 (1980), amendments. Egbert, 596 U.S. at 490–91. Because this case 

implicates the Fourth Amendment, Bivens is the only relevant comparator. 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 24 of 27
- 25 -

Count VIII alleges that Defendant Finley’s “actions to reassign Plaintiff 

to a different position and restrict his access to the secure perimeter of FCI 

Schuylkill solely because of his status as the uncharged target of a criminal 

investigation, amounted to a seizure subject to the requirements of the 

Fourth Amendment.” (Doc. 1 ¶242). Special factors indicate that Congress 

is better equipped to weigh the costs and benefits of allowing a damages 

action in a context like this one. For one thing, the alleged violations occurred 

in the context of a supervisor-employee relationship. Congress has enacted 

extensive legislation, like the Rehabilitation Act and Title VII of the Civil 

Rights Act, protecting employees from wrongful treatment by their 

employers. And although Defendant Finley is a law enforcement officer, in

reassigning Defendant to a different position and restricting his access to 

other areas of the facility, he would have been acting as his supervisor. 

Congress’ activity in the area of workplace conduct suggests that it is better 

equipped to assess the wisdom of allowing a damages action for conduct 

alleged in this context.

Next, in Count IX, Plaintiff alleges that Defendant Finley’s actions to 

order a warrantless search of his person violated his rights under the Fourth 

Amendment. (Doc. 1 ¶255). According to the Complaint, on February 7, 

2020, after Plaintiff arrived at work and went through security, he was told to 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 25 of 27
- 26 -

go into a private search area, where he was subjected to “an invasive 

physical search of his person and all of his belongings.” (Id. ¶¶71–72). “This 

was,” he alleges, “the first time Plaintiff had ever been searched coming into 

work in almost 10 years working in the Federal Bureau of Prisons.” (Id. ¶73).

Like most federal buildings, FCI Schuylkill has a security screening 

area. At such areas, like at airports, entrants routinely submit to searches of 

their persons and belongings. And screening at federal prisons, where 

violence and attempts to smuggle contraband are all too common, serves an 

especially important safety purpose. These considerations provide reason to 

hesitate before recognizing a Bivens action in such a context. Given the 

ubiquity of security screening and the important interest in safety it 

implicates, it is at least arguable that Congress is better equipped to weigh 

the costs and benefits of permitting private damages suits for alleged 

searches in this context. 

For these reasons, the court concludes that Plaintiff’s Fourth 

Amendment claims present a new Bivens context and that special factors 

weigh against recognizing a remedy for them under Bivens. Therefore, 

Defendant’s motion to dismiss Counts VIII and IX will be granted. 

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 26 of 27
- 27 - 

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss will be 

denied as to Counts I through IV, Count VI, and Count VII. As to Count V, 

the motion to dismiss will be granted to the extent that Plaintiff claims 

disparate treatment with respect to his reassignment, but denied to the extent 

that Plaintiff claims disparate treatment with respect to Management’s 

refusal to permit him to work with temporary restrictions. Finally, the motion 

to dismiss will be granted as to Counts VIII and IX. An appropriate order will 

follow. 

s/ Malachy E. Mannion MALACHY E. MANNION

 United States District Judge

DATE: January 5, 2024

22-1366-01

Case 3:22-cv-01366-MEM Document 24 Filed 01/05/24 Page 27 of 27