Ojo v. United States
364 F. Supp. 3d 163
E.D.N.Y2019Background
- Ojo, a pretrial detainee at the BOP Metropolitan Detention Center (MDC), was diagnosed with a periapical dental abscess in October 2011 and prescribed antibiotics; follow‑up dental care did not occur until December 2012 (≈14 months later).
- Ojo alleges MDC/BOP policy required pretrial detainees to wait 12 months for routine dental care and that he was denied emergency care, causing severe pain, bone loss, and loss of two front teeth; BOP had Program Statement 6400.02 governing dental triage, emergency care, and a 12‑month routine‑care rule for inmates in jail units under 12 months.
- Ojo sued the United States and MDC officials asserting multiple claims; earlier order dismissed most claims but left an FTCA negligence claim and a Bivens equal protection claim based on alleged discriminatory dental policy.
- Defendants moved for renewed summary judgment arguing Ziglar v. Abbasi forecloses implying a new Bivens remedy for Ojo’s equal protection claim; they alternatively argued the policy satisfies rational‑basis review and individual defendants lacked policymaking responsibility.
- The court held Ojo’s equal protection Bivens claim arises in a new context and dismissed it under Ziglar because special factors counsel hesitation: (1) the claim challenges a broad institutional policy (better addressed by injunctive relief), and (2) it implicates prison resource allocation and executive branch expertise; also Ojo did not allege the individual defendants drafted the challenged policy.
- Plaintiff’s motion for reconsideration of qualified immunity rulings was denied; the FTCA negligence claim remains and may proceed separately.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens damages remedy is available for an alleged Fifth Amendment equal protection violation based on BOP/MDC dental policy | Ojo contends the policy discriminated against pretrial detainees and he is entitled to money damages under Bivens | Defendants assert Ziglar forecloses implying a new Bivens remedy in this context and special factors counsel against extension | Court: No Bivens remedy; claim dismissed because it arises in a new context and special factors (policy challenge & prison resource allocation) preclude implying damages |
| Whether alternative remedies (injunctive, habeas, FTCA, admin grievance) make a Bivens remedy unnecessary | Ojo: alternatives would not compensate past damages and administrative remedies were ineffective | Defendants: alternatives (injunctive/habeas/FTCA/admin) exist and weigh against creating Bivens | Court: Alternatives exist but analysis unnecessary because other special factors independently bar Bivens |
| Whether the written BOP policy survives rational‑basis equal protection review | Ojo: policy denied necessary care to pretrial detainees | Defendants: the policy is rationally related to legitimate penological/resource allocation interests | Court: Written policy likely passes rational basis; but alleged unwritten denial of emergency care raises genuine factual dispute and cannot be resolved on merits here |
| Whether defendants are personally liable under Bivens for adopting/enforcing the policy | Ojo: defendants knew of and acquiesced to the policy | Defendants: Ojo does not allege they created the policy; knowledge/acquiescence insufficient after Iqbal | Court: Personal involvement insufficiently pleaded; inability to show defendants drafted policy supports declining Bivens relief |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy for Fourth Amendment violation)
- Davis v. Passman, 442 U.S. 228 (1979) (recognized Bivens‑style remedy for Fifth Amendment gender discrimination in employment)
- Carlson v. Green, 446 U.S. 14 (1980) (allowed Bivens damages for Eighth Amendment denial of medical care to prisoner)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (refined and narrowed Bivens expansion; new‑context and special‑factors analysis)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (requires showing each defendant’s personal involvement and discriminatory purpose)
- Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (Bivens is not a vehicle to impose damages liability on entities or to alter entity policy)
- Bell v. Wolfish, 441 U.S. 520 (1979) (courts should give deference to prison administrators on conditions and policies)