Rolando Muniz v. United States of America

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-1028
___________
ROLANDO MUNIZ,
Appellant
v.
UNITED STATES OF AMERICA; FEDERAL BUREAU
OF PRISONS; DR. ABIGAIL LOPEZ-DE LASALLE;
JOHN and JANE DOES
_______________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil No. 1:22-cv-00816
District Judge: Honorable Noel L. Hillman (Ret.)
______________
Argued: February 27, 2025
Before: RESTREPO, MONTGOMERY-REEVES, and
SCIRICA, Circuit Judges.
(Filed: August 13, 2025)

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D. Dangaran [ARGUED]
Samuel Weiss
Rights Behind Bars
1800 M Street NW
Front 1 #33821
Washington, DC 20033
Counsel for Appellant
John T. Stinson, Jr. [ARGUED]
Office of the United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge
In limited contexts, the Supreme Court recognizes a
cause of action against federal officers to redress a violation of
constitutional rights. Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). Ronaldo
Muniz, a federal inmate, challenges the District Court’s denial
of a Bivens remedy for his Eighth Amendment deliberate
indifference claim, arguing that his case is sufficiently
analogous to the Supreme Court’s decision in Carlson v.
Green, 446 U.S. 14 (1980), that his claim should proceed.
Because this Court’s opinion in Kalu v. Spaulding, 113 F.4th

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311 (3d Cir. 2024), held the availability of an alternative
remedy creates a new context from Carlson and cautions
against implying a new Bivens cause of action, we disagree.
Muniz’s Bivens claim cannot proceed because he had access to
the Bureau of Prisons (“BOP”) administrative remedial
mechanism (“ARP”).
Muniz also challenges the dismissal of his claim under
the Rehabilitation Act, 29 U.S.C. § 794. But he concedes on
appeal that his claim is barred by federal sovereign immunity.
Accordingly, we will affirm.
I. BACKGROUND1
Muniz is a federal inmate who, upon incarceration, was
diagnosed with diabetes, treated with the drug Metformin, and
offered soft-shoe and lower-bunk accommodations. In
September 2018, Muniz was placed in Special Housing for a
period exceeding ten months, where he alleges his food intake
was substantially reduced. By June 2019, Muniz’s A1C test
indicated his blood sugar fell from highly diabetic to pre-
diabetic, but he continued to be prescribed Metformin at a
lower dosage.
In July 2019, Muniz was transferred to FCI Fairton,
where Defendant Dr. Lopez de Lasalle, Muniz’s new
healthcare provider and the Medical Director of FCI Fairton,
discontinued his Metformin prescription and diabetic
1 Because this is an appeal of a motion to dismiss, we
presume Plaintiff’s non-conclusory allegations are true and
recite them. See Henry v. Essex Cnty., 113 F.4th 355, 359 (3d
Cir. 2024).

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accommodations based on the earlier, pre-diabetic reading.
Muniz contested this action, contending the reading was an
outlier based on his reduced food intake in Special Housing
and that he still needed diabetic treatment. But Defendant
Lopez refused Muniz’s request to await a new blood report
before denying him medication and accommodations.
In November 2019, Muniz’s condition worsened—he
developed diabetic blisters on his toe and began suppurating
puss. Prison medical staff prescribed antibiotics and wound
care, but Muniz did not consistently receive wound care due to
staff shortages. Muniz’s “wound got worse[,] suppurating 24
hours a day” and causing “extreme pain.” AA 44.
On November 16, 2019, in “extreme agony,” Muniz
showed his unit officer his wounds and requested wound care.
Id. Medical officials “refused to see [Muniz]” and told him to
“come the next day.” Id. The following day Muniz again
sought treatment and was told to “come the next day.” Id.
Muniz alleges that “on both of these days . . . the medical
[officer] falsely stated that [Muniz] had denied his scheduled
wound care.” Id.
Muniz was eventually seen by medical staff on
November 18, 2019, and was taken to the emergency room,
where he was prescribed antibiotics. On November 20, 2019,
an MRI was taken which “revealed that [Muniz’s] diabetic
ulcers and infection had spread to the bone and that his toe had
to be amputated.” AA 45.
Muniz’s toe was amputated on November 22, 2019. A
blood test “later revealed” that Muniz’s A1C “had incre[a]sed
. . . and that he was fully diabetic.” Id. Defendant Lopez

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“finally agreed to restart [Muniz’s] Metformin” on December
2, 2019. Id.
In October 2021, Muniz filed an administrative
remedial claim for inadequate medical care with the BOP,
which was denied for failure to sign. Muniz filed a corrected
administrative claim with the BOP on December 28, 2021, and
filed his Complaint in this action on February 15, 2022.
In his Complaint, Muniz brought an Eighth Amendment
deliberate indifference Bivens claim against Defendants—Dr.
Lopez De Lasalle and unnamed medical officials who denied
him medical care. Muniz also brought statutory claims against
Defendants, including a claim under the Rehabilitation Act.
The District Court screened Muniz’s Complaint
pursuant to 28 U.S.C. § 1915 and dismissed the Rehabilitation
Act claim. Defendants then moved to dismiss Muniz’s Bivens
suit for failure to state a claim. The District Court granted the
motion and dismissed the claim. In doing so, the District Court
recognized Muniz’s “allegations are very similar to Carlson.”
AA 15. But, under the first step of the Bivens analysis, the
District Court reasoned that the case presented a new context
because Muniz’s injuries, unlike those in Carlson, were not
fatal. Under the second step, the District Court reasoned that
the BOP administrative remedial process was a special factor
counseling against extending Bivens to this new context.
Muniz timely appeals.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction under 28 U.S.C. § 1291. We

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conduct plenary review of a district court’s grant of a motion
to dismiss. Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir.
2013) (en banc). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “We affirm a district
court’s dismissal only if, accepting all factual allegations as
true and construing the complaint in the light most favorable to
the plaintiff, we determine that the plaintiff is not entitled to
relief under any reasonable reading of the complaint.” Kalu,
113 F.4th at 325 (quotation omitted).
III. DISCUSSION
A. Context
American jurisprudence long recognized “every right,
when withheld, must have a remedy, and every injury its
proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,
147 (1803). The doctrine is well-established in the common
law. 3 William Blackstone, Commentaries *23 (1768) (“[I]t is
a general and indisputable rule, that where there is a legal right,
there is also a legal remedy, by suit or action at law, whenever
that right is invaded.”). It is a fundamental maxim of equity.
30A C.J.S. Equity § 132 (2024) (“Equity will not suffer a
wrong to be without a remedy.”). And it is deeply rooted.2
2 See Mass. Const. and Declaration of Rights Art. XI
(1780) (“Every subject of the commonwealth ought to find a
certain remedy, by having recourse to the laws, for all injuries
or wrongs, which he may receive, in his person, property, or

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Applying this principle, courts long “assumed common-
law powers” to grant damages remedies in suits against federal
officers. Egbert v. Boule, 596 U.S. 482, 491 (2022) (quotation
omitted).3 But the landmark decision of Erie R.R. Co. v.
Tompkins transformed our legal landscape—concluding
character.”). The American colonists relied on common-law
damages suits to challenge government officers who exceeded
their authority. See, e.g., Erving v. Cradock, Quincy Rep. 553
(Mass. 1761). When the Sugar and Stamp Acts restricted these
causes of action and provided an alternative remedy in the
Courts of Admiralty, the American Revolutionaries protested.
See Braintree Instructions (1765), in 3 The Works of John
Adams 465, 466–67 (Charles Francis Adams ed., Boston,
Little, Brown & Co. 1851). And, after declaring independence,
Revolutionaries asserted the availability of a legal remedy as a
fundamental right. See Mass. Const. and Declaration of Rights
Art. XI (1780); cf. Roger W. Kirst, Administrative Penalties
and the Civil Jury: The Supreme Court’s Assault on the
Seventh Amendment, 126 U. Pa. L. Rev. 1281, 1325–29 (1978)
(noting, during the Virginia and North Carolina ratification
debates, John Marshall and James Iredell, among others,
presumed common-law remedies against federal officers
would supplement impeachment as a means to hold officers
accountable under the U.S. Constitution).
3 Cf. Little v. Barreme, 6 U.S. (2 Cranch) 170, 178
(1804); Murray v. Schooner Charming Betsy 6 U.S. (2 Cranch)
64, 125 (1804); Wise v. Withers, 7 U.S. (3 Cranch) 331, 337
(1806); The Apollon, 22 U.S. (9 Wheat.) 362, 367 (1824);
Elliott v. Swartwout, 35 U.S. (10 Pet.) 137, 159 (1836); Buck
v. Colbath, 70 U.S. (3 Wall.) 334, 347 (1866); Belknap v.
Schild, 161 U.S. 10, 18 (1896).

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“[t]here is no federal general common law.” 304 U.S. 64, 78
(1938). “With the demise of federal general common law, a
federal court’s authority to recognize a damages remedy,”
Hernandez v. Mesa, 589 U.S. 93, 101 (2020), was “at best,
uncertain,” Egbert, 596 U.S. at 491. Nevertheless, in Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, the
Supreme Court permitted a damages claim to proceed against
federal agents for an unreasonable search and seizure in
violation of the Fourth Amendment. 403 U.S. at 397. And at
least one Justice suggested the continued authority to grant
such restitutionary remedies rests upon the Court’s “inherent
equitable powers.” Id. at 404 (Harlan, J., concurring)
(quotation omitted); see also id. at 408 n.8.
The Bivens doctrine—the ability of the Court to imply
a damages cause of action for a constitutional wrong—was
later extended by the Supreme Court to two other contexts. See
Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446
U.S. 14 (1980). But, in 1981, Congress passed the Westfall
Act, 28 U.S.C. § 2679, limiting common-law suits against
federal officers and making “the Federal Tort Claims Act
(FTCA) the exclusive remedy for most claims against
Government employees arising out of their official conduct.”
Hernandez, 589 U.S. at 111 (quotation omitted). The Act still
permitted claims “brought for a violation of the Constitution.”
28 U.S.C. § 2679(b)(2)(A). And, by implicitly recognizing
actions for constitutional violations, “Congress accepted the []
private cause of action as then defined but chose to extend it
no further.” Stoneridge Inv. Partners, LLC v. Sci.-Atlanta, 552
U.S. 148, 166 (2008) (discussing implied remedies in a
different context). Thus, the Westfall Act “left Bivens where
it found it” but granted no “license to create a new Bivens
remedy.” Hernandez, 589 U.S. at 111 n.9.

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Since then, we recognize a “tension between judicially
created causes of action and the Constitution’s separation of
legislative and judicial power.” Egbert, 596 U.S. at 491
(quotation omitted). The Court now views “creating a cause of
action [a]s a legislative endeavor.” Id. And it has discarded
implied actions as relics of an “ancien regime,” Ziglar v.
Abbasi, 582 U.S. 120, 131 (2017) (quotation omitted),
suggesting “if [it] were called to decide Bivens today, [it]
would decline to discover any implied causes of action,”
Egbert, 596 U.S. at 502. But the Court has not “dispense[d]
with Bivens altogether.” Id. at 491.
B. Legal Standard
Today, “the Supreme Court has set forth a two-step
inquiry to determine the availability of Bivens remedies in a
particular case.” Kalu, 113 F.4th at 326. “First, we ask
whether the case presents a new Bivens context—i.e., whether
the case is different in a meaningful way from previous Bivens
cases decided by the Supreme Court.” Id. (cleaned up). There
are only three such cases: Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
(federal law enforcement officer violated the Fourth
Amendment through an unreasonable search and seizure in a
person’s home); Davis v. Passman, 442 U.S. 228 (1979)
(congressman terminated staffer on the basis of sex unlawfully
discriminating under the Fifth Amendment); Carlson v. Green,
446 U.S. 14 (1980) (prison officials fail to provide medical
attention in response to prisoner’s asthma attack leading to
death and constituting deliberate indifference to medical needs
in contravention of the Eighth Amendment). “If a case does
not present a new Bivens context, the inquiry ends there, and a
Bivens remedy is available.” Kalu, 113 F.4th at 326 (quotation

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omitted).
“[I]f the case presents a new context, we proceed to the
second step of the inquiry and ask whether there are ‘special
factors counselling hesitation’ in extending Bivens.” Id.
(quoting Abbasi, 582 U.S. at 136). We decline to infer a cause
of action when these factors “indicat[e] that the Judiciary is at
least arguably less equipped than Congress to weigh the costs
and benefits of allowing a damages action to proceed.” Goldey
v. Fields, 145 S. Ct. 2613, 2615 (2025) (quotation omitted).
But, in Egbert v. Boule, the Supreme Court clarified that
“a new context arises” even under the first step when “potential
special factors that previous Bivens cases did not consider” are
presented and those factors “counsel hesitation”—extending a
step-two-like special factors analysis to the first step. 596 U.S.
at 492–93 (cleaned up). There, the Court declined to extend
Bivens in a case where a “federal law enforcement officer
violated the Fourth Amendment in searching the curtilage of
[an individual’s] home,” much like in Bivens, on the grounds
that search in Egbert was proximate to the border, raising
immigration and national security concerns as special factors
not previously considered in Bivens. Id. at 503 (Gorsuch, J.,
concurring); see id. at 495–96 (majority opinion). In holding a
Bivens remedy is unavailable in cases which “present ‘almost
parallel circumstances’ or a similar ‘mechanism of injury’” to
an existing context, id. at 495 (citation omitted), the Court
explained “[w]hile our cases describe two steps, those steps
often resolve to a single question: whether there is any reason
to think that Congress might be better equipped to create a
damages remedy,” id. at 492.

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“Egbert tightened the [pre-existing] Ziglar test and, in
doing so, made a strong statement that lower courts should not
extend Bivens beyond the contexts recognized in Bivens,
Davis, and Carlson.” Fisher v. Hollingsworth, 115 F.4th 197,
204 (3d Cir. 2024).
C. The Availability of an Alternative Remedy
Forecloses Bivens Relief Here
a. Only the Seventh Abbasi Factor Presents
a New Context
Under the first step, if a claim is “sufficiently similar”
to Carlson, then “the inquiry ends there, and a Bivens remedy
is available.” Kalu, 113 F.4th at 326–27. We use the Supreme
Court’s Abbasi factors to determine “differences that are
meaningful enough to make a given context a new one.” Id. at
326 (quoting Abbasi, 582 U.S. at 139–40). Here, the first six
enumerated factors do not proffer meaningful differences from
Carlson. But the Supreme Court and this Circuit have stressed
that these factors are non-exhaustive. Id. And, therefore, the
final factor—“the presence of potential special factors that
previous Bivens cases did not consider”—is relevant. Abbasi,
582 U.S. at 140. As for the other six factors, they are not
dispositive:
i. The Rank of the Officers Involved
Muniz brings his claim against the chief medical officer
and treating medical practitioners at FCI Fairton. This is the
same rank/titles of the defendants in Carlson. See Green v.
Carlson, 581 F.2d 669, 671 (7th Cir. 1978).

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ii. The Constitutional Right at Issue
Muniz’s claim raises the same constitutional right as
that in Carlson: “a federal prisoner’s Eighth Amendment claim
for failure to provide adequate medical treatment.”
Hernandez, 589 U.S. at 99 (characterizing Carlson v. Green,
446 U.S. 14 (1980)).
iii. The Generality or Specificity of the
Official Action
Defendants suggest the official action here differs from
Carlson because Muniz’s injuries did not arise from emergent
circumstances and were unlikely to be fatal. But the medical
circumstances causing the injuries to Muniz are “sufficiently
similar” to those experienced in Carlson. Kalu, 113 F.4th at
327. There, the inmate’s alleged his injuries arose, in part,
because “he was not given proper medication,” “did not
receive the steroid treatments,” and was not granted facility-
transfer accommodations for his asthmatic condition. Green,
581 F.2d at 671. Similarly, here, Muniz alleges his injuries
arose because he was denied medications, treatments, and
accommodations necessary to address his diabetic condition.
Furthermore, both the Carlson plaintiff and Muniz allege these
denials of adequate care resulted in flare-ups of their medical
conditions, necessitating a hospital visit and emergency
medical treatment. Green, 581 F.2d at 671. Accordingly, the
medical circumstances leading to Muniz’s harm do not provide
any meaningful difference to suggest this case arises in a new
context from Carlson.
It is true that the injuries in Carlson were fatal,
meanwhile those faced by Muniz were not. But, when looking
at special factors, we ask whether “the case is different in a

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meaningful way from previous Bivens cases decided by [the
Supreme] Court.” Abbasi, 582 U.S. at 139. It is unclear why
the difference between amputation and death is “meaningful,”
i.e., provides a “reason to think Congress might doubt the
efficacy or necessity of a damages remedy” in this context.
Egbert, 596 U.S. at 491 (quotation omitted). Indeed, this
difference neither provides insight into congressional intent
nor meaningfully changes the remedial analysis the Supreme
Court already undertook in Carlson.
On the issue of fatality, we find our sister circuit
persuasive that this “difference in degree is not a meaningful
difference giving rise to a new context,” Stanard v. Dy, 88
F.4th 811, 817 (9th Cir. 2023), and therefore, “plaintiff need
not suffer death or a life-threatening injury for his claim to be
sufficiently analogous to Carlson,” Watanabe v. Derr, 115
F.4th 1034, 1041 (9th Cir. 2024).
iv. The Extent of Judicial Guidance as to
How an Officer Should Respond to the
Problem or Emergency to Be
Confronted
Here, Defendants were put on notice by Carlson v.
Green, 446 U.S. 14 (1980), and Estelle v. Gamble, 429 U.S. 97
(1976), that the Eighth Amendment’s prohibition against cruel
and unusual punishment requires prison officials to provide
medical treatment to incarcerated inmates. And this Circuit
has recognized that failure to provide blood-sugar-regulating
medication to an inmate can, in certain circumstances,
constitute deliberate indifference to medical needs. See Natale
v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582–83 (3d Cir.
2003). At the very least, “judicial guidance as to how a [BOP]

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officer should respond to an inmate’s serious medical
condition is significantly more developed than it was in
Carlson.” Watanabe, 115 F.4th at 1039.
v. The Statutory or Other Legal Mandate
Under Which the Officer was Operating
“[T]he statutory or other legal mandate under which the
officer was operating is the same here as in Carlson, as both
sets of defendants were operating as BOP medical staff.”
Watanabe, 115 F.4th at 1040 (cleaned up); see also Carlson,
446 U.S. at 16 n.1.
vi. The Risk of Disruptive Intrusion by the
Judiciary into the Functioning of Other
Branches
Except as to alternative remedies, which is better
discussed under the seventh factor, this “case does not present
a risk of intrusion by the judiciary into the operations of the
BOP any more than what Carlson already permits.”
Watanabe, 115 F.4th at 1040.
b. This Case Presents a New Context Because
the BOP ARP Is a Special Factor Not
Considered in Carlson
The seventh Abbasi factor is “the presence of potential
special factors that previous Bivens cases did not consider.”
Abbasi, 582 U.S. at 140; see also Egbert, 596 U.S. at 492–93
(reaffirming “a new context arises” under the first step when
“potential special factors that previous Bivens cases did not
consider” are presented and those factors “counsel hesitation”).
“[The] Court has not defined the phrase ‘special factors

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counselling hesitation.’ The necessary inference, though, is
that the inquiry must concentrate on whether the Judiciary is
well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a
damages action to proceed.” Abbasi, 582 U.S. at 136 (citation
omitted). Thus, the Supreme Court explains: “While our cases
describe two steps, those steps often resolve to a single
question: whether there is any reason to think that Congress
might be better equipped to create a damages remedy.” Egbert,
596 U.S. at 492.
One special factor is “[i]f there are alternative remedial
structures in place, ‘that alone,’ like any special factor, is
reason enough to ‘limit the power of the Judiciary to infer a
new Bivens cause of action.’” Egbert, 596 U.S. at 493 (citation
omitted). Thus, “Bivens relief [i]s unavailable” when “federal
prisoners c[an], among other options, file grievances through
an ‘Administrative Remedy Program.’” Id. at 497
(characterizing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74
(2001)). And this special factor creates a new context even
when “the right at issue [i]s the same” and “the mechanism of
injury [i]s the same: failure to provide adequate medical
treatment.” Abbasi, 582 U.S. at 139 (characterizing Malesko,
534 U.S. at 64); see also id. at 148 (noting “the existence of
alternative remedies” can constitute “features that were not
considered in the Court’s previous Bivens cases”).
Here, Muniz was able to take advantage of an
alternative remedial mechanism, the BOP ARP. As this Court
noted in Kalu, the BOP ARP creates a new context at step one
of the Bivens inquiry:

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Kalu’s claim presents “features that were not
considered” by the Supreme Court when
deciding Carlson. . . . [A]t the time, the BOP’s
remedy program was not in existence. Thus, in
Carlson, there was no explicit congressional
declaration that persons injured by federal
officers’ violations of the Eighth Amendment
could not recover money damages from the
agents but had to be remitted to another remedy,
equally effective in the view of Congress. That
situation bears little resemblance to Kalu’s case
where Congress, through the PLRA, has enacted
legislation to address prisoners’ lawsuits, and
where the BOP’s ARP provides inmates with an
alternative avenue for relief. Because the PLRA
and the BOP’s remedy program are “features that
were not considered” by the Supreme Court
when it decided Carlson, they present an
additional reason to conclude that Kalu’s claim
arises in a new context.
Kalu, 113 F.4th at 327–28 (cleaned up). Since the BOP ARP
did not factor into the Supreme Court’s remedial analysis in
Carlson, the availability of that mechanism to Muniz creates a
new context at the first step.4
4 Since our decision in Kalu, a circuit split has arisen on
this issue. At least one circuit agrees with our first-step
analysis. See Johnson v. Terry, 119 F.4th 840, 858–59 (11th
Cir. 2024). But others have come to differing conclusions. See
Watanabe, 115 F.4th at 1042; cf. Brooks v. Richardson, 131
F.4th 613, 616 (7th Cir. 2025).

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c. The BOP ARP Counsels Against
Extending Bivens
In addition to creating a new context at step one, the
BOP ARP “foreclose[s] the need to fashion a new, judicially
crafted cause of action” at the second step as well. Kalu, 113
F.4th at 346 (quoting Malesko, 534 U.S. at 68).
The effectiveness of the BOP ARP is, at best, dubious.
See id. at 347 (Restrepo, J., concurring). But, in the step-two
Bivens analysis, alternative remedies need not “provide
complete relief.” Egbert, 596 U.S. at 493 (quoting Bush v.
Lucas, 462 U.S. 367, 388 (1983)). The Court’s jurisprudence
cautions against the judiciary weighing the adequacy of
alternative relief established by the political branches. See
Goldey, 145 S. Ct. at 2615. Rather, so long as “Congress
already has provided, or has authorized the Executive to
provide, an alternative remedial structure,” Egbert, 596 U.S. at
493 (quotation omitted), then “bedrock principles of separation
of powers foreclose[] judicial imposition of a new substantive
liability,” Malesko, 534 U.S. at 69.
Thus, at the second step, the availability of the BOP
ARP is a “special factor[]” suggesting that a damages remedy
“risk[s] . . . interfering with the authority of the other
branches.” Hernandez, 589 U.S. at 102. And this reason to
hesitate, alone, forecloses Bivens relief. See Egbert, 596 U.S.
at 496. At bottom, Muniz’s Bivens claim fails because an
alternative remedy existed and was made available to him.
d. Denying Muniz’s Bivens Claim Does Not
Preclude All Carlson Relief
Appellant argues applying Egbert’s alternative remedial

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analysis to foreclose Muniz’s action would functionally
overrule Carlson “sub silentio.” But this is not so.
The availability of the BOP ARP is a meaningful
difference that distinguishes this case from Carlson. But,
notwithstanding the BOP ARP’s existence, Carlson relief
remains available to inmates in limited circumstances. For
instance, should “prison administrators thwart inmates from
taking advantage” of the ARP, “such interference . . . renders
the administrative process unavailable” as a remedy. Ross v.
Blake, 578 U.S. 632, 644 (2016).5 Here, unlike those
circumstances, “[P]laintiff had an avenue for some redress”
and availed himself of the BOP ARP. Malesko, 534 U.S. at 69.
And, since Muniz “ha[d] full access to remedial mechanisms
established by the BOP,” his Bivens claim is foreclosed. Id. at
74.
Nevertheless, the first-step inquiry adopted in Egbert
5 The mere existence of the BOP ARP cannot
meaningfully distinguish the remedial analysis here from that
in Carlson if the availability of that administrative remedy is
not also taken into account. When Carlson was decided in
1980, the BOP ARP had already been established the year
prior. See Administrative Remedy Program, 44 Fed. Reg.
62,250 (Oct. 29, 1979). But the inmate in Carlson was injured
in 1975—long before the BOP ARP was in existence. See
Green, 581 F.2d at 671. Thus, because the inmate in Carlson
was unable to avail himself of the BOP ARP, the availability
of this administrative remedy did not factor into the Supreme
Court’s remedial analysis in Carlson but is nevertheless
relevant to our remedial analysis today.

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does limit the availability of some relief previously cognizable
under Carlson. But this is hardly surprising considering the
Supreme Court’s cautionary language. See Egbert, 596 U.S. at
492 (noting Bivens relief will be unavailable “in most every
case”); cf. id. at 504 (Gorsuch, J., concurring) (“[I]f the only
question is whether a court is ‘better equipped’ than Congress
to weigh the value of a new cause of action, surely the right
answer will always be no.”).
D. Muniz’s Rehabilitation Act Claim Is Barred by
Sovereign Immunity
Muniz also brought a Rehabilitation Act claim but
concedes on appeal his claim is barred by sovereign immunity
because Muniz only sought money damages, not injunctive
relief, in his Complaint. Section 504 of the Rehabilitation Act
does not waive sovereign immunity for damages claims against
the federal government. Lane v. Pena, 518 U.S. 187, 192
(1996). Accordingly, the District Court was correct to dismiss
Muniz’s Rehabilitation Act claim. But such a dismissal is
without prejudice. See Aldossari ex rel Aldossari v. Ripp, 49
F.4th 236, 262 (3d Cir. 2022) (noting a dismissal is without
prejudice when the court lacks subject matter jurisdiction).
IV. CONCLUSION
The Supreme Court recently “made clear that, in all but
the most unusual circumstances, prescribing a cause of action
is a job for Congress, not the courts.” Goldey, 145 S. Ct. at
2614 (quoting Egbert, 596 U.S. at 486). This case does not
present that unusual circumstance. For the reasons set forth
above, we will affirm the District Court’s Order of December
7, 2023.

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1
RESTREPO, Circuit Judge, concurring:
Because our binding precedent in Kalu v. Spaulding,
113 F.4th 311 (3d Cir. 2024), requires us to consider alternative
remedial structures as a special factor at step one of the test
established by the Supreme Court in Egbert v. Boule, 596 U.S.
482 (2022), I agree with the majority that the District Court’s
opinion must be affirmed. I write separately from the
majority’s well-reasoned opinion, however, to highlight the
different and superior approach taken by the Seventh, Ninth,
and Tenth Circuits in Brooks v. Richardson, 131 F.4th 613 (7th
Cir. 2025), Watanabe v. Derr, 115 F.4th 1034 (9th Cir. 2024),
and Rowland v. Matevousian, 121 F.4th 1237 (10th Cir. 2024).
In Kalu, we determined that “[b]ecause the [Prison
Litigation Reform Act] and the [Bureau of Prisons’] remedy
program are ‘features that were not considered’ by the Supreme
Court when it decided Carlson [v. Green, 446 U.S. 14 (1980)],
they present an additional reason to conclude that [a prisoner’s
Carlson] claim arises in a new context.” Kalu, 113 F.4th at 328
(quoting Ziglar v. Abbasi, 582 U.S. 120, 148 (2017)). This
holding was consistent with the approach taken in Abbasi,
where the Court considered “the existence of alternative
remedies” as a potential “feature[] that w[as] not considered in
the Court’s previous Bivens cases and that might discourage a
court from authorizing a Bivens remedy.” Abbasi, 582 U.S. at
148.
However, as we recognized in Fisher v. Hollingsworth,
115 F.4th 197 (3d Cir. 2024), Egbert “modified,” id. at 205, the
Court’s approach in Abbasi and now controls our analysis of
claims brought pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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2
One way in which Egbert modified Abbasi was in its
consideration of alternative remedial structures. In Egbert, the
Court discussed alternative remedial structures only at step two
of its analysis, in evaluating whether a court should “fashion a
Bivens remedy,” and “infer a new Bivens cause of action.” 596
U.S. at 493 (quoting Abbasi, 582 U.S. at 137). Such
considerations were notably absent from the Court’s extensive
articulation of the first step of its test. The Court again
considered alternative remedial structures at step two in
Goldey v. Fields, but did not discuss or reconsider the step one
analysis featured in Egbert. 606 U.S. __, 2025 WL 1787625,
at *2 (U.S. June 30, 2025).
In Watanabe, the Ninth Circuit followed Egbert and
held that “alternative remedial structures can be one ‘special
factor,’ to be considered at the second step of the Bivens
analysis.” 115 F.4th at 1042 (citing Egbert, 596 U.S. at 493,
498). Accordingly, the Ninth Circuit concluded that “the
existence of alternative remedial structures within the BOP”
did not present a new context at step one of the Egbert test for
a claim brought pursuant to Carlson. Id.
The Tenth Circuit took a similar approach in Rowland,
where it applied the two-step Egbert test in reviewing a
prisoner’s Carlson claim. 121 F.4th at 1243. Despite engaging
in a lengthy analysis at step one, the Tenth Circuit only
considered the availability of “alternative remedial schemes”
at step two of the Egbert test. Id. Likewise, in Brooks, the
Seventh Circuit held that a plaintiff’s Carlson claim did “not
present a new context” at step one of the Egbert test without
any consideration of alternative remedial structures. 131 F.4th
at 616.

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3
The approach taken by the Seventh, Ninth, and Tenth
Circuits is a more accurate interpretation of Egbert than ours
in Kalu. But because Kalu is binding precedent and controls
the outcome of this case, I am compelled to concur with the
judgment.

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