Rocky L. Freeman v. Unit Manager J. Lincalis

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 23-1566
________________
ROCKY L. FREEMAN,
Appellant
v.
UNIT MANAGER J. LINCALIS; PROBATION
OFFICER JOHN D. MCCARTHY;
SUPERVISING U.S. PROBATION OFFICER
STEPHEN L. BRIGHTON;
CHIEF PROBATION OFFICER JAMES M. FOX;
UNITED STATES OF AMERICA
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:16-cv-02422)
District Judge: Honorable Christopher C. Conner
________________
Argued on March 4, 2025
Before: MATEY, FREEMAN and ROTH, Circuit Judges
(Opinion filed: October 29, 2025)

-- 1 of 33 --

2
Sanketh Bhaskar
Henry Drembus
Brianna Jordan
Madeline Meth (Argued)
Boston University
School of Law Appellate Clinic
765 Commonwealth Avenue
Suite 1304
Boston, MA 02215
Counsel for Appellant
Patrick J. Bannon (Argued)
Office of United States Attorney
235 N Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellees
________________
OPINION OF THE COURT
________________

-- 2 of 33 --

3
ROTH, Circuit Judge
Rocky Freeman was tried for two murders but was
acquitted of one. His presentence report mistakenly stated that
he had committed both murders. A judge ordered that the
mistake be corrected. It was not. Eighteen years later,
Freeman learned of this error. He sued, alleging that he had
been subjected to heightened prison security conditions
because of the error. He contends that the government is liable
under the Federal Tort Claims Act (FTCA) for negligent
transmission of his PSR and failure to correct it and that the
federal officials responsible are individually liable under
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics1 for a denial of due process. Freeman now appeals
an order dismissing those claims. We agree with him that the
dismissal of his FTCA claim was improper. We will, however,
affirm the dismissal of his Bivens claim (albeit on an alternative
ground).
I.2
Rocky Freeman was part of a large Brooklyn drug ring
run by Roberto Mateo-Feliz. In June of 1993, Mateo-Feliz
hired Freeman to kill Freddie Gonzalez, a dealer who owed
Mateo-Feliz money. At 11:30 p.m. on June 23, 1993, Freeman
drove to Gonzalez’s building and was told he was not home.
He returned four hours later and convinced Gonzalez to come
outside. Following a short conversation, Freeman shot
1 403 U.S. 388 (1971).
2 Because of the procedural posture with which this appeal
finds us, we recite the facts in the light most favorable to
Freeman unless otherwise noted.

-- 3 of 33 --

4
Gonzalez repeatedly and then drove him to the hospital where
he ultimately died.
Freeman was arrested in late 1996.3 He was charged in
the United States District Court for the Eastern District of New
York with drug conspiracy, plus two counts for the Gonzalez
murder and two counts for the unrelated murder of Augustin
Sosa, a Mateo-Feliz rival.4 At trial, he was convicted of the
drug and Gonzalez murder counts. He was acquitted of the
Sosa murder counts.5
Freeman’s presentence report (PSR) wrongly asserted
that the jury hung on the Sosa charges and that Freeman
murdered Sosa. It also stated that Freeman “was known by co-
conspirators, drug customers, and several residents of the New
Lots neighborhood as a dangerous individual who had
committed murders” (in plural).6 On October 16, 1998,
Freeman objected to these errors.7 The U.S. Probation Office
(USPO) responded five days later, acknowledging that it had
erred in attributing the Sosa murder to Freeman and noting that
3 At the time of his arrest, Freeman was incarcerated on a state
robbery charge.
4 For each murder, Freeman was charged with (1) murder in
the furtherance of a drug conspiracy, in violation of 21 U.S.C.
§ 848(e)(1)(A), and (2) use of a firearm while carrying out
murder, in violation of 18 U.S.C. § 924(c)(1).
5 Freeman was found not guilty of Sosa’s murder, making it
unnecessary to reach the § 924(c)(1) firearm charge stemming
from that murder.
6 Appx. 155 ¶ 70 (emphasis added).
7 Freeman’s objections also noted several other minor
inaccuracies.

-- 4 of 33 --

5
the corresponding paragraphs of the PSR “are hereby
stricken.”8
Freeman was sentenced on October 23, 1998, to two
consecutive life terms followed by five years.9 At sentencing,
Freeman’s counsel raised his objections to the PSR. It is not
clear from the record how the District Court ruled,10 but
Freeman has provided sworn (and unchallenged) testimony
that the objections were sustained, the offending passages were
ordered removed, and a corresponding addendum was ordered
attached to the PSR. None of that happened. Instead, the
USPO provided the Bureau of Prisons (BOP) with just the
initial, inaccurate PSR. The only indication anything might
have been wrong was an apparently overlooked notation
referring to an addendum that had not been attached. The
information in the inaccurate PSR was input by the BOP into
its inmate management system (SENTRY).
During his time in custody, Freeman was subject to high
security restrictions, some of which confused him. He was
initially assigned to USP Florence, allegedly the “worst and
most dangerous Penitentray [sic] at that time,” located over
8 Appx. 204–05.
9 Freeman was later granted compassionate release on October
5, 2023, and was released during December of 2024.
10 The sentencing judge reviewed the objections, and the
government did not challenge them, but the available record
does not appear to contain an explicit ruling.

-- 5 of 33 --

6
1,500 miles from his family.11 There, he was deprived of “all
contact visiting with family and friends,”12 and attacked by a
fellow inmate with a razor (causing permanent facial scarring).
Freeman was later transferred to USP Big-Sandy, where he
was held in solitary confinement for a year due to unidentified
“unique circumstances surrounding” his case.13 Then, in
January 2015 he was transferred to FCI Allenwood, where he
made two trips to an outside medical facility. On the Escorted
Trip Authorization (ETA) forms approving those trips,
Freeman’s unit manager noted, “Life Term Use Caution!
Contract killer killed two victims.”14 During those transfers,
Freeman was bound and shackled for hours, and was denied
facilities access, forcing him to defecate and urinate on
himself.
On December 5, 2015, Freeman, while reviewing his
prison records, discovered the inaccurate ETAs, and realized
the BOP had the wrong PSR. He informed a BOP staff
member on December 10 and was told to file an informal
complaint. Freeman did so, and was told that the ETAs had
been removed from his file. Freeman then pursued
administrative remedies to remove the inaccurate PSR from his
file. He filed for injunctive relief in the District Court for the
Eastern District of New York, leading to a March 30, 2016,
11 Appx. 96 ¶ 19. Freeman argues that this conflicted with the
BOP’s policy of “normally” placing inmates “within 500 miles
of the inmate’s release residence.” U.S. Dept. of Justice,
Change Notice chapter 3, page 3 (Sept. 3, 1999).
12 Appx. 96 ¶ 19.
13 Appx. 96–97, 445.
14 Appx. 129 (January 21, 2015 ETA); Appx. 127 (April 8,
2015 ETA).

-- 6 of 33 --

7
order directing the government to “hand-deliver the
addendum” to his PSR to the BOP by 5:00 p.m. the next day.15
However, as late as January 27, 2017, Freeman’s SENTRY file
still listed him as a double-murderer.
II.
On April 1, 2016, Freeman filled out an SF-95 alleging
that the submission of and failure to correct his inaccurate PSR
amounted to an FTCA violation.16 Following the instructions
of BOP staff, he mailed the SF-95 to USPO’s Brooklyn
Heights office. After receiving no response, Freeman
proceeded on December 7, 2016, to file a civil complaint in the
United States District Court for the Middle District of
Pennsylvania,17 against the BOP, the USPO, his unit manager,
and the three probation officers involved in preparing and
submitting his PSR. He alleged violations of the FTCA and
Privacy Act. Because Freeman was granted leave to proceed
in forma pauperis (IFP), U.S. Marshals served process on the
BOP, the USPO, and the unit manager, but they were unable to
serve the probation officers because the addresses Freeman had
provided were no longer accurate.
Freeman moved for court-appointed counsel on April 4,
2017, and then again on September 14, 2017. Both motions
were denied. On January 30, 2018, he received permission to
file his First Amended Complaint, which dropped his Privacy
15 United States v. Mateo-Feliz, Dkt. 1:96-cr-00527-PKC-8
(E.D.N.Y. Mar. 30, 2016), ECF No. 81.
16 The SF-95 is a standard form for presenting FTCA claims.
17 Freeman was imprisoned in Pennsylvania at the time.

-- 7 of 33 --

8
Act claim and added a Bivens claim.18 The properly served
defendants then moved for dismissal and/or summary
judgment. On July 17, 2018, while that motion was pending,
the District Court ordered Freeman to show cause why his
complaint against the probation officers should not be
dismissed for failure to serve process. Freeman noted that he
was incarcerated, and again asked for counsel to assist him
with service.19
On September 19, 2018, the District Court granted the
dispositive motions. It found that the BOP had not acted
negligently, that Freeman had failed to plead a constitutional
violation, and that he had failed to serve process on the
probation officers. On appeal, we instructed the parties to brief
whether the District Court had erred by (1) focusing on the
BOP’s (as opposed to the USPO’s) conduct, and (2) failing to
assist Freeman in locating the probation officers.20 In lieu of
briefing those points, the government acknowledged the court
had erred and moved for a voluntary remand.21 We granted the
motion.
On January 28, 2022, following our remand, Freeman
18 The amended complaint was filed in response to the
government’s June 2, 2017 motion to dismiss, which
challenged Freeman’s Privacy Act claims.
19 Freeman had previously sent unsuccessful requests for pro
bono assistance to four attorneys.
20 Freeman did not appeal the dismissal of his Bivens claim
against the unit manager.
21 The government explicitly acknowledged error only
regarding the non-analysis of the USPO’s conduct, but
requested remand on all claims.

-- 8 of 33 --

9
made his third request for counsel. On March 10, (without
responding to that motion), the District Court issued a
scheduling order giving the parties sixty days to complete
discovery. Freeman received that order on March 15, and filed
a fourth motion for counsel the next day—arguing that as “a
pro se plaintiff prisoner and lay-man of law, [he did] not have
any idea on how to conduct a disposition [sic] or discovery.”22
On March 23, 2022, Freeman asked the District Court to stay
discovery until it ruled on the pending motions.
On April 22, the District Court denied Freeman’s
motions.23 The day he received the order, Freeman sent a
series of requests for production (RFPs) seeking, inter alia, the
probation officers’ addresses and information concerning
BOP’s rationale for his conditions of confinement. The
government replied that Freeman had served his request too
close to the deadline and that it would therefore not be
producing anything.24
On May 23, Freeman moved to reopen and compel
discovery. While conceding his RFPs were untimely, he noted
that he (1) was trying to litigate pro se during a prison
lockdown, (2) was experiencing medical difficulties, and (3)
had moved immediately for counsel after receiving the
discovery schedule, promptly requested a stay, and served his
RFPs the day after he learned those requests were denied.
The parties then filed cross-motions for summary
judgment. The government moved to stay discovery pending
22 Appx. 234–35.
23 Freeman unsuccessfully moved for reconsideration.
24 See Fed. R. Civ. P. 34(b)(2)(A).

-- 9 of 33 --

10
the resolution of the motions. On June 29, the District Court
denied Freeman’s motion to compel without prejudice, and
granted the government’s motion to stay, but noted that this
should not “be construed as precluding additional time for
discovery if [it] den[ied] defendants’ [summary judgment]
motion.”25
On January 5, 2023, the District Court ordered the
government to provide any information it could reasonably
locate concerning the probation officers’ whereabouts. The
government responded with a short affidavit saying they had
retired and their records had been sent to the National
Personnel Records Center (NPRC) in St. Louis, Missouri. On
February 16, ten days after receiving that affidavit, Freeman
asked the court to (1) require the government to investigate
further, (2) appoint pro bono counsel to help him investigate,
or (3) ask U.S. Marshals Service (USMS) to retrieve the
records from the NPRC. On February 22, the District Court
asked the Federal Bar Association’s pro bono committee for a
volunteer to help Freeman, but told Freeman that, if no
volunteer was located within a week, he would need to perfect
service himself. The committee informed the court when it did
not find a volunteer.
On March 17, the District Court ruled on the dispositive
motions. It dismissed Freeman’s FTCA claim under Federal
Rule of Civil Procedure 12(b)(1) because Freeman sent his SF-
95 to the wrong address. Alternatively, the court also found
that his claim failed on the merits, and granted summary
judgment to the government under Rule 56(a). It dismissed his
Bivens claim under Rule 4(m) for failure to serve the probation
25 Add. 6.

-- 10 of 33 --

11
officers. On June 26, 2023, the court denied Freeman’s motion
for reconsideration.26 Freeman appealed.27
III.
The District Court had jurisdiction over Freeman’s
Bivens claims under 28 U.S.C. § 1331. It had putative
jurisdiction over his FTCA claim under 28 U.S.C. § 1346(b).
We have jurisdiction to review its decisions regarding both
claims under 28 U.S.C. § 1291.
We review de novo the District Court’s orders
dismissing Freeman’s claims under Rules 12(b)(1)28 and
26 Freeman argued the District Court had never provided him
with a final deadline, asserted that he had never received the
committee’s letter saying no counsel had been located, and said
his son had begun working with a process server.
27 Freeman is represented, at our request, by the Boston
University School of Law Appellate Clinic. We thank them
for their excellent representation. Lawyers (and law students)
who agree to act pro bono represent the legal community at its
finest.
28 Erie Ins. Exch. by Stephenson v. Erie Indem. Co., 68 F.4th
815, 818–19 (3d Cir. 2023). The burden of demonstrating
subject matter jurisdiction rests with the party asserting it. See
Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009);
but see S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329,
333 n.2 (3d Cir. 2012) (recognizing a limited exception to this
burden-allocation for requirements which, although
“jurisdictional on [their] face,” operate as de facto affirmative
defenses).

-- 11 of 33 --

12
56(a),29 applying the same standards as the District Court. We
review for abuse of discretion the District Court’s orders
concerning court-appointed counsel, service of process,
discovery, and reconsideration.30 Because Freeman proceeded
before the District Court pro se, we construe his filings before
that court “liberally” and hold him to “less stringent standards
than formal pleadings drafted by lawyers.”31 But pro se parties
must still ultimately “abide by the same rules that apply to all
other litigants.”32 We may affirm on any ground supported by
the record.33
IV.
Under the FTCA, the United States is liable for most
29 Qin v. Vertex, Inc., 100 F.4th 458, 469 (3d Cir. 2024).
Summary judgment under Rule 56(a) is appropriate where
“construed in the light most favorable to the non-moving party,
the record shows that there is no genuine dispute of material
fact and that the moving party is entitled to judgment as a
matter of law.” Id.
30 See Powell v. Symons, 680 F.3d 301, 306, 310 n.8 (3d Cir.
2012); Crosbie v. Highmark Inc., 47 F.4th 140, 146 (3d Cir.
2022); McDowell v. Phila. Hous. Auth., 423 F.3d 233, 238 (3d
Cir. 2005).
31 Kalu v. Spaulding, 113 F.4th 311, 325 (3d Cir. 2024)
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam)).
32 Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013).
33 See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).

-- 12 of 33 --

13
torts to the same extent as any other litigant.34 Here, Freeman
alleges the government acted negligently in its transmission of,
and failure to correct, his PSR. In dismissing his claim, the
District Court held that Freeman (1) failed to present this claim
to the appropriate agency, (2) did not satisfy the Prison
Litigation Reform Act (PLRA), and (3) lacked an actionable
claim on the merits.
A.
28 U.S.C. § 1346(b)(1) provides that “[s]ubject to the
provisions of chapter 171 of this title, the district courts . . .
shall have exclusive jurisdiction of civil actions on claims
against the United States” under the FTCA.35 One such
provision is 28 U.S.C. § 2675(a), which states that an “action
shall not be instituted” under the FTCA “unless the claimant
shall have first presented the claim to the appropriate Federal
agency.”36
Here, the government argues that Freeman failed to
satisfy § 2675(a) because (at the BOP’s instruction) he
presented his SF-95 to the Brooklyn Heights Office of the
USPO, rather than to general counsel of the USPO’s
organizational parent. But nothing in the FTCA “indicates that
notice of a tort claim must be presented to any particular
34 28 U.S.C. § 1346(b)(1). Although Freeman’s complaint
alleges that the USPO and the BOP are individually liable, the
District Court correctly held that the only proper FTCA
defendant is the United States as a whole. See id.
35 Emphasis added.
36 By regulation, the “appropriate Federal agency” is “the
Federal agency whose activities gave rise to the claim” being
asserted. 28 C.F.R. § 14.2(b)(1).

-- 13 of 33 --

14
recipient at the federal agency.” 37 Nor is there any basis, under
§ 2675(a)’s “minimal notice” requirement, for requiring
claimants to thoroughly familiarize themselves with the
organizational intricacies of their tortfeasor.38 Here, the
government acknowledges that the Brooklyn Heights USPO
office was a component of the appropriate agency (and, in fact,
that it was obligated to forward all administrative complaints it
received to the organizational parent’s general counsel).
Indeed, things could hardly be otherwise, as it was the USPO’s
employees “whose activities gave rise to the claim” that
Freeman was asserting.39 As such, by presenting the USPO
with his SF-95, Freeman did present his claim to the
appropriate agency.
The government did not contest at any point in its
multiple rounds of briefing that Freeman’s SF-95 was received
by the Brooklyn Heights Office. At oral argument, however,
it suggested that that office may not have received his claim
either. While we have held that a plaintiff must generally
provide affirmative evidence of receipt, we have heretofore
done so only where the government brought a factual
jurisdictional challenge, proffering at least some affirmative
evidence of non-receipt.40 We therefore decline the
37 See Ortiz-Rivera v. United States, 891 F.3d 20, 27 (1st Cir.
2018).
38 See Tucker v. U.S. Postal Service, 676 F.2d 954, 958 (3d
Cir. 1982).
39 See 28 C.F.R. § 14.2(b)(1).
40 See Lightfoot, 564 F.3d at 626, 628; accord. Drazan v.
United States, 762 F.2d 56, 58 (7th Cir. 1985); Bailey v. United
States, 642 F.2d 344, 346 (9th Cir. 1981); Moya v. United
States, 35 F.3d 501, 503–04 (10th Cir. 1994).

-- 14 of 33 --

15
government’s invitation to disclaim jurisdiction at this juncture
based on this belated, unevidenced, and unexamined argument
(to which Freeman has had no opportunity to respond or seek
discovery).41
In short, the District Court erred in dismissing
41 We note that, apart from the above analysis, the
government’s arguments would not justify dismissal given its
concession at oral argument that Freeman did properly present
his claim insofar as it related to the BOP. FTCA suits are
brought against the United States, not individual agencies, and
§ 2675 does not require injured parties to present their claim to
every potentially liable agency. See 18 C.F.R. § 14.2(b)(2).
Instead, where multiple agencies are implicated, a party may
exhaust his claim by presenting it to any of them. See id.
(noting that, where this is so, the recipient agency “shall
contact all other affected agencies” to coordinate a response).

-- 15 of 33 --

16
Freeman’s complaint for lack of jurisdiction.42
B.
The PLRA provides that “[n]o Federal civil action may
be brought by a prisoner . . . for mental or emotional injury
suffered while in custody without a prior showing of physical
injury or the commission of a sexual act[.]”43 To satisfy this
requirement, a prisoner must show a “less-than-significant-
but-more-than-de minimis physical injury.”44 While mere
deprivations like the “[l]oss of food, water, and sleep are not
themselves physical injuries,” the consequences of such
deprivations can be.45
42 Because we find dismissal was in any event unwarranted, we
need not address Freeman’s argument that the government has
forfeited its exhaustion argument due to its delay of six years
in raising it. Nor do we need to address Freman’s related
argument that our precedents holding § 2675 to be
jurisdictional, see e.g., White-Squire v. U.S. Postal Serv., 592
F.3d 453, 457–58 (3d Cir. 2010), have been abrogated by more
recent Supreme Court decisions. Compare, e.g., ECC Int’l
Constructors, LLC v. Sec’y of Army, 79 F.4th 1364, 1376–77
(Fed. Cir. 2023) (determining that § 2675(b) “fits comfortably
within the class of mandatory, nonjurisdictional claim-
processing rules,” and noting that White-Squire “predate[s] the
Supreme Court’s most recent efforts to rein in use of the
jurisdictional label”), with Van Emburgh ex rel. Est. of Van
Emburgh v. United States, 95 F.4th 795, 801 n.3 (4th Cir. 2024)
(determining that that § 2675 remains jurisdictional
notwithstanding recent Supreme Court precedent).
43 42 U.S.C. § 1997e(e).
44 Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003).
45 Id. at 534.

-- 16 of 33 --

17
The District Court held that this recovery-bar required
Freeman to describe his physical injuries in his pre-suit
administrative complaint.46 It further found that he failed to do
so because his SF-95 contained only a generic reference to
“actual damage’s [sic] of pain, suffering, and additional
punishment.”47 It concluded that, even if Freeman had
properly submitted his SF-95, he still would not have satisfied
the FTCA’s exhaustion requirement.48
Freeman argues that the District Court improperly
grafted the PLRA’s physical injury standard onto the FTCA’s
presentment requirement. We agree. To exhaust a claim under
the FTCA, a plaintiff need only provide “minimal notice”
which is “sufficient to enable the agency to investigate” their
claim.49 This is not a high bar. An administrative complaint
may be adequately presented even where it does not specify the
46 Add. 24 (noting that “the inclusion of any physical injuries
[Freeman] sustained would place the agency on notice and
would be relevant for purposes of potential settlement”).
47 Appx. 458.
48 The government argues that Freeman failed to challenge this
holding in his opening brief, and has therefore forfeited any
argument to the contrary. That is incorrect. Freeman did
challenge this holding in his opening brief, albeit in a different
section from his broader discussion of FTCA presentment.
49 Tucker, 676 F.2d at 958–59 (emphasis added); see also
Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir.
1999) (noting that § 2675(a) was enacted “not to place
procedural hurdles before potential litigants, but to facilitate
early disposition of claims”).

-- 17 of 33 --

18
correct (or any) cause of action,50 lacks sufficient facts to
prevail at trial,51 or fails to provide the government with
enough information to settle.52 The PLRA’s physical injury
requirement, meanwhile, is a “[l]imitation on recovery” which
speaks only of what a plaintiff must ultimately prove to prevail
at trial.53 There is no basis in either statute for forcing plaintiffs
50 See Goodman v. United States, 298 F.3d 1048, 1055 (9th Cir.
2002) (holding that “the notice requirement under section 2675
is minimal, and a plaintiff’s administrative claims are sufficient
even if a separate basis of liability arising out of the same
incident is pled in federal court”); Burchfield, 168 F.3d at 1255
(holding that an “administrative agency is deemed to be on
notice not only of the theories of recovery stated in the claim,
but of the theories of recovery that its reasonable investigation
of the specific allegations of the claim should reveal”).
51 See Burchfield, 168 F.3d at 1255 (“We do not require the
claimant to provide the agency with a preview of his or her
lawsuit by reciting . . . every factual detail that might be
relevant[.]”).
52 See Tucker, 676 F.2d at 959 (holding that a claimant can
satisfy § 2675 through an administrative complaint which does
not meet 28 U.S.C. § 2672’s requirements for enabling
settlement).
53 42 U.S.C. § 1997e(e); see Mitchell, 318 F.3d at 534–36
(analyzing Section 1997e(e)’s requirement as an element of
proof determining the sufficiency of a prisoner’s complaint);
Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000) (“Under
§ 1997e(e), . . . to bring a claim for mental or emotional injury
suffered while in custody, a prisoner must allege physical
injury[.]”); cf. Hoever v. Marks, 993 F.3d 1353, 1360 (11th Cir.
2021) (en banc) (“The physical injury requirement is not a bar
to filing suit, only a limitation on recovery.”)

-- 18 of 33 --

19
to notify the government of the precise nature of their injuries
(or, for that matter, whether they have suffered a physical
injury at all) in the pre-suit exhaustion phase.
That does not mean, however, that the two requirements
are unrelated. “[A] plaintiff cannot present one claim to the
agency and then maintain suit on the basis of a different set of
facts.”54 If a plaintiff’s physical injuries are so disconnected
from the allegations laid out in their administrative complaint
that they become a wholly new claim, the plaintiff will have no
way of collecting on them at trial. That, in turn, will make it
impossible to recover compensatory damages for
psychological or emotional injuries and, where no other relief
is sought, may justify dismissing the complaint entirely.55
In his administrative complaint, Freeman provided the
minimal notice necessary to present his negligence claim.56
Then, in his civil action, he alleged a physical injury resulting
from the government’s negligence—i.e., the facial injury he
sustained from a fellow high-security inmate.57 On this record,
it was error to dismiss his claim for failure to satisfy the
54 Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003).
55 See Mitchell, 318 F.3d at 533 (holding that complaint failed
to state a claim for physical injury under § 1997e(e)).
56 See Tucker, 676 F.2d at 958–59.
57 As discussed below, Freeman has adequately alleged at this
pre-discovery stage in the proceeding that his facial injuries
were foreseeably and proximately linked to the inaccuracies in
his PSR.

-- 19 of 33 --

20
PLRA.58
C.
The United States’ liability for an FTCA claim is based
on “the law of the place where the act or omission occurred.”59
Although the USPO’s alleged negligence occurred in New
York, while the BOP’s occurred in Colorado, Kentucky, and
Pennsylvania, no party has alleged a relevant conflict-of-law.
Instead, both parties acknowledge that all four states use the
same, familiar, four-part test for negligence: duty, breach,
causation, and injury. Applying this test, the District Court
found that Freeman had failed to present evidence which could
sustain a negligence suit. In the absence of adequate discovery,
we hold that this dismissal was premature.
The government has not contested that the USPO
breached a duty when it transmitted a PSR falsely attributing
the Sosa murder to Freeman. And the government does not
contest that, if Freeman’s conditions of confinement were
58 Moreover, our precedent is clear that plaintiffs who have
been released from incarceration may prospectively exempt
themselves from the PLRA’s strictures, including the PLRA’s
physical-injury requirement, by filing an amended or
supplementary post-release complaint (even one that simply
recapitulates their original complaint). See Garrett v. Wexford
Health, 938 F.3d 69, 84, 91 (3d Cir. 2019); Downey v. Pa.
Dep’t of Corr., 968 F.3d 299, 307–09 (3d Cir. 2020). Upon
remand, the District Court may determine the impact of any
timely requested amendment on Freeman’s claim.
59 28 U.S.C. § 1346(b)(1); see also Molzof v. United States, 502
U.S. 301, 305 (1992).

-- 20 of 33 --

21
heightened as a result of the misstatement in the PSR, this
would constitute an injury. Instead, its sole argument is that he
cannot show causation because he “has not established what
security classification he received, what classification he
should have received, or how classifications impact housing
designations, solitary confinement decisions, or restraint
policies.”60
Freeman argues that he has shown evidence of a causal
link between his false PSR and his damages. We need not
decide that. Even if we grant that Freeman does not currently
have enough evidence of causation to go to trial, that is largely
because the government refused to respond to his discovery
requests seeking evidence about his conditions of confinement.
While the District Court denied Freeman’s motion to compel
discovery, it did so solely because the resolution of Freeman’s
dispositive motions might render discovery unnecessary, not
60 At points in its briefing, the government appears to intimate
that the USPO’s conduct was shielded by quasi-judicial
immunity. That defense is inapposite. It is well-settled that
probation officers are entitled to quasi-judicial immunity when
acting as arms of the court. See Harper v. Jeffries, 808 F.2d
281, 284 (3d Cir. 1986). It follows that the USPO would be
entitled to quasi-judicial immunity for any errors that occurred
in researching and drafting Freeman’s original PSR. See
Dorman v. Higgins, 821 F.2d 133, 138 (2d Cir. 1987). But
Freeman’s suit is predicated on the USPO’s failure to abide by
a court order directing it to amend the PSR, and its subsequent
transmission of an incomplete PSR to the BOP. There is no
reason the USPO should be immunized for its (alleged) failure
to abide by a direct court order, or its ministerial transmission
of the wrong report to the BOP.

-- 21 of 33 --

22
because Freeman had failed to show good cause. On remand,
that discovery would be appropriate.61
We will therefore reverse the order dismissing the
FTCA claim and remand it to the District Court for further
proceedings.
V.
Turning to Freeman’s Bivens claims against the
probation officers, we hold that the District Court erred in
dismissing them for failure to effectuate process. But that error
was harmless because Freeman’s claims fail on the merits. As
such, we will affirm the District Court’s judgment despite the
error.
61 The parties further dispute whether Freeman has provided
adequate evidence of negligence by the BOP to survive
summary judgment as to that aspect of his claim. Here too, and
particularly given the considerable overlap with Freeman’s
allegations against the USPO, we believe the parties’ factual
disputes are better resolved after adequate discovery has taken
place. Remand will also permit the District Court to determine
in the first instance the relevance, if any, of the FTCA’s
discretionary function exception to Freeman’s BOP-centered
theory of recovery. See 28 U.S.C. § 2680(a); Rinaldi v. United
States, 904 F.3d 257, 273–74 (3d Cir. 2023); see also S.R.P.,
676 F.3d at 333 n.2 (concluding that, although the
discretionary function exception is jurisdictional, the burden of
proving its applicability rests with the government).

-- 22 of 33 --

23
A.
Under Federal Rule of Civil Procedure 4(m), if “a
defendant is not served within 90 days after the complaint is
filed, the court . . . must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time.” Nevertheless, where a “plaintiff shows good
cause for the failure, the court must extend the time for service
for an appropriate period.”62 Under 28 U.S.C. § 1915(d),
USMS is required to serve process for any plaintiff proceeding
IFP.63 Where it fails to do so, even after a plaintiff furnishes
identifying information, the plaintiff has shown per se good
cause under Rule 4, and the court may not dismiss.64
We have never precedentially addressed how much
diligence § 1915(d) requires from USMS in locating a
defendant. Moreover, it is clear that § 1915(d) does not wholly
absolve plaintiffs of their duty to locate the individuals they
62 Fed. R. Civ. P. 4(m); see also Davis v. Samuels, 962 F.3d
105, 116 (3d Cir. 2020).
63 28 U.S.C. 1915(d); see generally Young v. Quinlan, 960 F.2d
351, 359 (3d Cir. 1992), superseded by statute on other
grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d
Cir. 2000).
64 See Welch v. Folsom, 925 F.2d 666, 669–70 (3d Cir. 1991);
see also Antonelli v. Sheahan, 81 F.3d 1422, 1426 (7th Cir.
1996) (“The Marshals Service’s failure to complete service,
once furnished with the necessary identifying information, is
automatically ‘good cause’ requiring an extension of time
under Rule 4(m).”).

-- 23 of 33 --

24
want served.65 But we have emphasized that IFP plaintiffs
“should not be penalized for failure to effect service where it
failed through no fault of [their] own.”66 And our sister-
circuits have overwhelmingly held that, where an IFP plaintiff
can adequately identify a defendant but not locate them,
§ 1915(d) requires USMS to take reasonable steps to assist.67
This is particularly true where a litigant is suing a
current or former government employee who played some role
in his or her incarceration.68 On the one hand, such employees
would like to conceal their home addresses from prisoners (or
former prisoners), and will often be difficult for IFP plaintiffs
to locate.69 On the other hand, those addresses will usually be
readily accessible to USMS.70 In recognition of these twin
realities, our sister-circuits have generally held that, as long as
65 See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993)
(“While in forma pauperis plaintiffs should not be penalized
for a marshal’s failure to obtain proper service, it [is the
plaintiff’s] responsibility to provide proper addresses for
service[.]”).
66 Quinlan, 960 F.2d at 359.
67 See, e.g., Sellers v. United States, 902 F.2d 598, 601–03 (7th
Cir. 1990); Richardson v. Johnson, 598 F.3d 734, 738–40 (11th
Cir. 2010).
68 See Sellers, 902 F.2d at 602.
69 See id.
70 See Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)
(noting that, while a “prison may be justifiably reluctant to
provide employee addresses to a prisoner or ex-prisoner due to
security concerns, it hardly can claim the same reluctance in
providing the information to a federal law enforcement
agency”).

-- 24 of 33 --

25
an IFP plaintiff has identified such an employee with sufficient
particularity to make locating him or her reasonable, they may
pass off the burden of actually doing so to the USMS.71
We now adopt the approach of our sister-circuits.
Freeman was an incarcerated, convicted murderer. We
understand why the probation officers would not want him to
know their addresses. Nevertheless, he provided the most up-
to-date information he had and repeatedly tried to secure
counsel to assist him with service. After four-and-a-half years
of motion practice, he finally convinced the District Court to
order the government to provide their whereabouts—only to be
told that their locations were stored in a government warehouse
in St. Louis. He then asked to have USMS retrieve the
government files at issue or, alternatively, for an attorney to
help him retrieve them himself. In response, the court waited
one week to see if an attorney would volunteer, and then
dismissed his case. Because Freeman provided the information
he had access to, and the government has not shown that
service by USMS was unreasonable, dismissal on this ground
was an abuse of discretion.
B.
The District Court should not have dismissed Freeman’s
Bivens claims for failure to effectuate service. Nevertheless,
we will affirm its decision on the alternative ground that these
claims plainly fail on the merits.
71 Id.

-- 25 of 33 --

26
To call implied constitutional causes of action against
federal officials rare would be an understatement.72 While the
Supreme Court has three times permitted such actions, it has
not done so in over four decades.73 Rather than formally
overruling these cases, the Supreme Court has remained
content to preserve them as the last of the species.74 But it has
made clear that the Bivens line almost certainly goes no
further—and that so long as “there is any rational reason (even
one)” to leave the ball in Congress’s court, an implied cause of
action is off the table.75
In practice, this determination breaks down into two
related steps. First, we ask whether Freeman’s asserted Bivens
claim presents a new context that is meaningfully different
from the three claims the Supreme Court currently
recognizes.76 It plainly does. Freeman’s Bivens claim does not
concern an illegal search of his home,77 sexual discrimination
72 See Xi v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023) (noting
that “the Supreme Court has pulled back the reins” on such
actions “to what appears to be a full stop and no farther”).
73 See Bivens, 403 U.S. at 397; Davis v. Passman, 442 U.S.
228, 234 (1979); Carlson v. Green, 446 U.S. 14, 19 (1980).
74 See Ziglar v. Abbasi, 582 U.S. 120, 134 (2017) (noting that
“it is possible that the analysis in the Court's three Bivens cases
might have been different if they were decided today,” but
declining to overrule them due to stare decisis and
congressional inaction).
75 Egbert v. Boule, 596 U.S. 482, 496 (2022).
76 Ziglar, 582 U.S. at 139–40.
77 See Bivens, 403 U.S. at 389, 397.

-- 26 of 33 --

27
by his employer,78 or the denial of medical care by his jailers.79
Instead, he asserts that probation officers violated his
procedural due process rights by transmitting (and failing to
correct) an inaccurate PSR. Freeman analogizes this claim to
Bistrian v. Levi, in which we sustained a due-process-based
Bivens claim arising from the failure of prison officials to
protect inmates from “a known risk of substantial harm.”80
However, even assuming that analogy holds, we recently
recognized in Fisher v. Hollingsworth that our decision in
Bistrian has been abrogated and is no longer good law.81
Because Freeman’s asserted claim is not an analogue to
any recognized Bivens claim, we proceed to the second step of
our inquiry, asking 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.’”82 Even one such factor precludes a remedy.83
Following the Supreme Court’s directions, we recently decided
in Kalu v. Spaulding that Congress’s enactment of the PLRA
(and decision not to include a damages remedy) counsels
against expanding Bivens to suits arising from a prisoner’s
78 See Davis, 442 U.S. at 235.
79 See Carlson, 446 U.S. at 16.
80 912 F.3d 79, 90–94 (3d Cir. 2018). Bistrian was predicated
on our pre-Egbert belief that Farmer v. Brennan, 511 U.S. 825
(1994), in which the Supreme Court seemed to have implicitly
recognized the validity of failure-to-protect suits, served as an
additional Bivens-line case. 912 F.3d at 90–91.
81 115 F.4th 197, 203–06 (3d Cir. 2024).
82 Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at 136).
83 Id.

-- 27 of 33 --

28
conditions of confinement.84 That decision (which, like
Fisher, was issued while briefing was ongoing)
straightforwardly bars the relief Freeman seeks.85
To his credit, Freeman acknowledges this, conceding in
his reply brief that “given Fisher and Kalu, it is difficult for
[him] to show that his claims, as currently alleged, are
cognizable under Bivens.”86 Nevertheless, he asks us to
remand on the procedural ground that—since the probation
officers have not been served—there is no pending motion to
dismiss. We see no reason to take this needlessly serpentine
route. While a District Court may not generally dismiss a
complaint before process has been served, IFP suits are an
exception.87 We will therefore affirm the dismissal of
Freeman’s Bivens claims on the alternative ground that he has
84 See Kalu, 113 F.4th at 333 (noting that allowance of such
claims “would conflict with Congress’s stated purpose in
passing the PLRA—namely, to eliminate unwarranted federal-
court interference with the administration of prisons” (cleaned
up)).
85 Freeman does not contest that his suit is an “action . . . with
respect to prison conditions” as defined by the PLRA.
86 Rep. Br. at 5.
87 See 28 U.S.C. § 1915(e)(2)(B) (providing that the court shall
dismiss an IFP action “at any time” if the court determines that
it “fails to state a claim on which relief may be granted”).

-- 28 of 33 --

29
failed to state a viable claim for relief.88
***
For these reasons, we will vacate the District Court’s
order dismissing Freeman’s FTCA claim and remand for
further proceedings consistent with this opinion. We will
affirm the dismissal of Freeman’s Bivens claims.
88 Although Freeman is no longer incarcerated, this cannot cure
the deficiency in his Bivens claim. Our refusal to extend Bivens
to prisoner-confinement claims in Kalu did not turn on whether
those claims were formally constrained by a particular
provision of the PLRA. See 113 F.4th at 333. Instead, our
holding rested on the underlying reality the PLRA reflects:
extensive congressional regulation of conditions-of-
confinement suits, accompanied with no congressional
mandate for a free-standing cause of action. See id. That reality
does not lose its force when a litigant steps outside the prison
gates.

-- 29 of 33 --

1
MATEY, Circuit Judge, concurring in part and dissenting in
part.
Statutes mean what they say. Freeman failed to mail his
claim to the appropriate agency under the Federal Tort Claims
Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680, so I would
affirm the District Court’s dismissal for lack of exhaustion.
And while I join in full the majority’s analysis in Part V.B.
affirming the dismissal of Freeman’s Bivens claims, I write
separately on the role of the FTCA as a factor that counsels this
conclusion.
I.
The FTCA provides “a limited waiver of the federal
government’s sovereign immunity from civil liability for
negligent acts of government employees acting within the
scope of their employment.” Rinaldi v. United States, 904 F.3d
257, 273 (3d Cir. 2018). Before suing, a claimant “shall have
first presented the claim to the appropriate Federal agency.”1
28 U.S.C. § 2675(a). That command controls this case. There
is no dispute that Freeman improperly mailed his claim to the
United States Probation Office for the Eastern District of New
York when he should have sent it to the Administrative Office
of the United States Courts (AOUSC).
The majority reasons that because Freeman presented
his claim to “a component of the appropriate agency,” he “did
present his claim to the appropriate agency.” Majority Op. at
8. But that reads away Congress’s choice to assign Freeman,
and all claimants, the duty to identify the right administrative
recipient. By the majority’s logic, Freeman’s complaint was
self-exhausting because he filed it with the federal district
court’s clerk’s office, another component of the AOUSC.
Section 2675(a) avoids such absurdities by requiring
presentation “to the appropriate Federal agency,” not a
component or subdivision thereof, § 2675(a), because
“Congress thought it preferable that claimants go first to the
relevant agency” before proceeding with their FTCA claims,
1 This exhaustion “requirement is jurisdictional and
cannot be waived.” Shelton v. Bledsoe, 775 F.3d 554, 569 (3d
Cir. 2015).

-- 30 of 33 --

2
Tucker v. U.S. Postal Serv., 676 F.2d 954, 958 (3d Cir. 1982).
We lack the authority to upset that preference.
Nor is Freeman excused from following the statute as a
pro se litigant since Congress created a single standard for
exhaustion under the FTCA, and he must “abide by the same
rules that apply to all other litigants.” Majority Op. at 7
(quoting Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245
(3d Cir. 2013)). Whether the claimant is counseled, pro se, or
prisoner, the FTCA creates one procedure for presentation.2
We must apply that directive evenly, as the District Court did
when it properly dismissed Freeman’s claim for lack of
exhaustion.
II.
While I agree dismissal of Freeman’s Bivens claims is
proper, I write separately to explain why the FTCA is a “special
factor” showing “the judiciary may be less suited than
Congress to weigh the costs and benefits of a damages
remedy.” Fisher v. Hollingsworth, 115 F.4th 197, 207 (3d Cir.
2024); accord Goldey v. Fields, 606 U.S. 942, 944–45 (2025)
(per curiam).
Courts have sometimes shied away from this
commonsense conclusion based on a misunderstanding of
Carlson v. Green, 446 U.S. 14 (1980). There the Supreme
Court examined the “congressional comments accompanying”
the enactment of 28 U.S.C. § 2680(h), which amended the
FTCA to extend liability “for intentional torts committed by
federal law enforcement officers.” Id. at 19. The Court
explained that “nothing in the Federal Torts Claims Act
(FTCA) or its legislative history . . . show[s] that Congress
meant to pre-empt a Bivens remedy or to create an equally
effective remedy for constitutional violations.” Id. So the Court
2 Freeman, and the majority, point to an implementing
regulation providing that “[w]hen a claim is presented to any
other Federal agency, that agency shall transfer it forthwith to
the appropriate agency” or return the claim to the claimant. 28
C.F.R. § 14.2(b)(1). But, of course, a regulation cannot
supersede a statute, and § 2675(a) tasks all claimants with
presentment to the appropriate agency. Freeman did not.

-- 31 of 33 --

3
could not “hold that Congress relegated respondent exclusively
to the FTCA remedy.” Id. at 23. Several circuits read Carlson
as foreclosing the FTCA as a special factor,3 though at least
one has not.4
But we should not be so hasty in considering Carlson
dispositive, as I have explained before.5 The congressional
commentary relied on by the Supreme Court—an interpretive
choice unlikely to remain relevant—only considered how §
2680(h), not the FTCA as a whole, “should be viewed as a
counterpart to the Bivens case and its progenty [sic].” S. Rep.
No. 93-588 (1973), as reprinted in 1974 U.S.C.C.A.N. 2789,
2791. And the Supreme Court accordingly limited its holding,
explaining that Ҥ 2680(h) thus contemplates that victims of
the kind of intentional wrongdoing alleged in this complaint
shall have an action under FTCA against the United States as
well as a Bivens action against the individual officials alleged
to have infringed their constitutional rights.” Carlson, 446 U.S.
at 20. So while Congress “made it crystal clear” that § 2680(h)
and Bivens provide “complementary causes of action” for
intentional torts, it made no such finding for a negligence cause
of action under the FTCA.6 Id. All to say that here, as
3 See Fields v. Fed. Bureau of Prisons, 109 F.4th 264,
275 n.3 (4th Cir. 2024), rev’d, Goldey, 606 U.S. at 945;
Koprowski v. Baker, 822 F.3d 248, 254 (6th Cir. 2016);
Sargeant v. Barfield, 87 F.4th 358, 368 n.5 (7th Cir. 2023);
Arcoren v. Farmers Home Admin., 770 F.2d 137, 140 n.6 (8th
Cir. 1985); Quintero Perez v. United States, 8 F.4th 1095, 1105
(9th Cir. 2021); Robbins v. Wilkie, 300 F.3d 1208, 1213 (10th
Cir. 2002).
4 See Oliva v. Nivar, 973 F.3d 438, 444 (5th Cir. 2020).
5 Cross v. Buschman, No. 22-3194, 2024 WL 3292756,
at *3–5 (3d Cir. July 3, 2024) (Matey, J., concurring) (outlining
the Bureau of Prison’s administrative grievance process as a
special factor weighing against a new Bivens context).
6 The Court also identified four factors “suggesting that
the Bivens remedy is more effective than the FTCA remedy”
to support its “conclusion that Congress did not intend to limit
respondent to an FTCA action.” Carlson, 446 U.S. at 20–21.
But that analysis “was ancillary to the central issue of
Congressional intent.” Jaffee v. United States, 663 F.2d 1226,

-- 32 of 33 --

4
elsewhere, the “judgment in Carlson may survive, but its
reasoning does not.”7
The better view is that “[i]n the absence of a contrary
expression from Congress,” id., a negligence action under the
FTCA is an “alternative remedial structure,” which “alone may
limit the power of the Judiciary to infer a new Bivens cause of
action,” Ziglar v. Abbasi, 582 U.S. 120, 137 (2017). A
negligence claim under the FTCA is a clear “reason to think
that Congress might be better equipped to create a damages
remedy.” Egbert v. Boule, 596 U.S. 482, 492 (2022). Freeman
proved that point by bringing claims under the FTCA and
Bivens in a single complaint. So while it is not necessary to
resolve this case, I would make clear that the FTCA is a special
factor that displaces resort to Bivens.
* * *
Freeman failed to present his FTCA claim to the
appropriate agency, so I would affirm the District Court’s order
in full. For that reason, I respectfully dissent in part.
1244 n.5 (3d Cir. 1981) (en banc) (Adams, J., concurring in
part and dissenting in part).
7 Cross, 2024 WL 3292756, at *3 (Matey, J.,
concurring).

-- 33 of 33 --