Francisco Masias v. Warden Hodges, sued in official

UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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