UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6591

FRANCISCO MASIAS,

 Plaintiff - Appellant,

v.

WARDEN HODGES, sued in official and individual capacity; CAPTAIN RIFFLE, 

sued in official and individual capacity; S.I.S. ALDRIGE, sued in official and 

individual capacity; DR. WILSON, sued in official and individual capacity; AUSA 

FLOWERS, sued in official and individual capacity; AUSA BAUER, sued in 

official and individual capacity,

 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-00171-JPB-JPM)

Submitted: March 16, 2023 Decided: March 23, 2023

Before NIEMEYER, HARRIS, and HEYTENS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Francisco Masias, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Francisco Masias appeals the district court’s orders dismissing his complaint, which 

raised Fifth and Eighth Amendment claims against several federal prison employees and 

two Assistant United States Attorneys under Bivens v. Six Unknown Named Agents of 

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and denying Masias’ postjudgment 

motion to amend his complaint and vacate the dismissal order under Fed. R. Civ. P. 59(e).

1

 

Masias asserted a Fifth Amendment due process violation based on his placement in the 

segregated housing unit (“SHU”) for over a year and the denial of a hearing regarding the 

conditions in the SHU. He also raised Eighth Amendment claims based on the conditions 

of confinement in the SHU and his medical treatment. Finally, Masias alleged a First 

Amendment retaliation claim. The district court dismissed Masias’ complaint sua sponte, 

determining that a Bivens remedy was unavailable because Masias’ claims presented a new 

context, and special factors counselled against extending a Bivens remedy. We affirm in 

part, vacate in part, and remand for further proceedings. 

Turning first to Masias’ Fifth and Eighth Amendment claims regarding his 

placement in the SHU and the conditions of confinement and his First Amendment 

retaliation claim, we have reviewed the record and find no reversible error in the denial of 

these claims. Accordingly, we affirm these portions of the district court’s judgment. 

1 We construe Masias’ informal brief as the functional equivalent of a notice of 

appeal from the district court’s postjudgment order. See Fed. R. App. P. 4(a)(1)(A); 

Smith v. Barry, 502 U.S. 244, 248-49 (1992).

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Masias v. Hodges, No. 5:20-cv-00171-JPB-JPM (N.D.W. Va. Apr. 8, 2021); see Tate v. 

Harmon, 54 F.4th 839 (4th Cir. 2022). 

Next, we consider Masias’ appeal of the district court’s determination that a Bivens

remedy was unavailable for his Eighth Amendment challenge to his medical treatment. 

“This Court reviews de novo a district court’s dismissal for failure to state a claim under 

28 U.S.C. § 1915A.” Shaw v. Foreman, 59 F.4th 121, 126 (4th Cir. 2023). Dismissal is 

only proper when, “after accepting all well-pleaded allegations in the plaintiff’s complaint 

as true and drawing all reasonable factual inferences from those facts in the plaintiff’s 

favor, it appears certain that the plaintiff cannot prove any set of facts in support of his 

claim entitling him to relief.” Id. (internal quotation marks omitted). 

In his complaint, Masias alleged that he received delayed treatment for a nasal 

infection and had been denied treatment for a hernia, an ankle injury, and issues with his 

toenail. The court reasoned that Masias’ claims presented a new context from Carlson v. 

Green, 446 U.S. 14 (1980)—which recognized a Bivens remedy for a claim of Eighth 

Amendment deliberate indifference to serious medical needs—because Masias’ claims 

were not as severe as those in Carlson and were not likely to cause permanent damage or 

death. 

After the dismissal of his complaint, Masias moved to amend his complaint and to 

vacate the dismissal order under Rule 59. His proposed amended complaint included

allegations that a medical evaluation showed that his ankle injury was due to torn 

ligaments, which would require surgery, and he claimed that he had been unable to properly 

walk on his ankle for several years. Masias also claimed that his nasal infection required 

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surgery. Finally, his asserted that his hernia caused pain for over a year and that he was 

referred to a specialist to determine whether the pain was caused by a hernia or cancer. 

We conclude that the facts alleged in Masias’ complaint and proposed amended 

complaint do not present a new context and that, viewing the facts alleged in the light most 

favorable to Masias, a Bivens remedy was available. See Carlson v. Green, 446 U.S. 14 

(1980); Langford v. Joyner, __ F.4th __, __, No. 21-7737, 2023 WL 2335957, at *3 (4th 

Cir. Mar. 2, 2023) (evaluating sufficiency of Bivens complaint under deliberate 

indifference standard where plaintiff alleged small bowel obstruction and abdominal 

infection, which required surgery and caused abdominal pain, nausea, vomiting, difficulty 

walking, and diarrhea). Accordingly, the district court should have permitted Masias to 

amend his complaint.2

 See Robertson v. Anderson Mill Elementary Sch., 989 F.3d 282, 

291 (4th Cir. 2021); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011).

We therefore vacate the district court’s dismissal of Masias’ Eighth Amendment 

deliberate indifference claim based on his medical treatment and the court’s order denying 

Masias’ postjudgment motions, and we remand for consideration of whether Masias 

alleged a deliberate indifference claim and whether dismissal of Masias’ claim is proper 

on other grounds. We express no opinion on the ultimate disposition of Masias’ deliberate 

indifference claim. We dispense with oral argument because the facts and legal contentions 

2 The district court did not have the benefit of Langford when it dismissed Masias’ 

complaint.

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are adequately presented in the materials before this court and argument would not aid the 

decisional process. 

AFFIRMED IN PART, VACATED IN PART, 

AND REMANDED

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