UNITED STATES DISTRICT COURT                            
                   DISTRICT OF MINNESOTA                                


PATRICK RANDELL MCINTOSH,          Case No. 23-cv-3149 (JRT/ECW)        

              Plaintiff,                                                

v.                              REPORT AND RECOMMENDATION               

LT. GALLION, CAPTAIN HESS,                                              
WARDEN JARED RARDIN, and DR.                                            
DIONNE HART,                                                            

              Defendants.                                               


   This action comes before the Court on Defendants’ Motion to Dismiss (Dkt. 18). 
This case has been referred to the undersigned United States Magistrate Judge for a report 
and recommendation pursuant to 

 and Local Rule 72.1.       
        I.   FACTUAL AND PROCEDURAL BACKGROUND                          
   This action arises out of Patrick Randell McIntosh’s ( “McIntosh”) claims that 
while incarcerated at Federal Medical Center Rochester (“FMC Rochester”),1 Defendants 
violated his rights under the American with Disabilities Act (“ADA”); the Rehabilitation 
Act; the Health Insurance Portability and Accountability Act (“HIPAA”); and his rights 

1    According to the last Notice of Change of Address from McIntosh (Dkt. 13), and 
the BOP’s inmate locator, McIntosh is presently designated at the Federal Medical Center 
Institute in Butner (“FMC Butner”), North Carolina.  BOP inmate Locator,  
www.bop.gov/inmateloc// (last visited August 29, 2024).  The Court received McIntosh’s 
new address on or about January 29, 2024.  (Dkt. 13.)                     
pursuant to the First, Fourth, Fifth, and Eighth Amendments to the Constitution.  (Dkt. 1 
at 4.)  In particular, the Complaint alleges as follows:                  

   On or about October 21, 2022, Defendant Dr. Dionne Hart (“Dr. Hart”), a 
psychiatrist at FMC Rochester, came to McIntosh’s cell and called him a racist for 
standing up to another inmate for being threatening.  (Dkt. 1 at 7 ¶ 11.)  Dr. Hart than 
wrote up both McIntosh and the other inmate on a “Code 203” incident report for 
threatening bodily harm.  (Id.)                                           
   On or about October 22, 2022, Defendants Lieutenant Anthony Gallion and 

Captain Jeremy Hess placed McIntosh in handcuff restraints and escorted him to the 
medical office within the secure housing unit.  (Id. at 7-8 ¶ 12.)  Once he was in the 
medical office, they had McIntosh sit down without taking off his handcuff restraints.  
(Id. at 8 ¶ 13.)  Caption Hess repeated a threat made by Defendant Warden Jared Rardin 
at McIntosh’s orientation, that “if you put your hands on my staff we will do everything 

we can to restrain you.  I am not threatening you or anything.”  (Id.)  Lieutenant Gallion 
then told McIntosh, “I will put a black man in your cell and you are all either going to 
fight, fuck, or become friends.”  (Id. at 8 ¶ 14.)  This was a threat to set up a rape or 
beating between two inmates.  (Id.)  After this intimidation and harassment used by 
Captain Hess, he told McIntosh that he did not have a disorder, but that he was just an 

“asshole.”  (Id. at 8-9 ¶ 15.)  McIntosh was also ordered to write Dr. Hart an apology, 
even though she instigated the Code 203 and violated his confidentiality by giving his 
diagnosis to law enforcement without his consent.  (Id. at 9 ¶ 16.)       
   McIntosh was escorted back to his cell by Lieutenant Gallion.  (Id. at 9 ¶ 17.)  On 
his way back, a nurse asked McIntosh if he needed anything from nursing.  (Id.)  

McIntosh responded, “yes, please,” and then Lieutenant Gallion yelled into his ear “yes, 
ma’am.”  (Id.)                                                            
   FMC Rochester is an institution run of on fear, retaliation, intimidation, and 
manipulation.  (Id. at 9 ¶ 18.)  While Warden Rardin could not be everywhere, he set the 
tone of ethics for the prison and is ultimately responsible for creating a hostile 
environment.  (Id. at 9-10 ¶ 18.)                                         

   McIntosh wrote an “insincere apology” to Dr. Hart out of fear of retaliation, 
physical harm, and rape.  (Id. at 10 ¶ 19.)                               
   On or about April 6, 2023, Captain Hess came to McIntosh’s cell and threatened to 
put him in four-point restraints for requesting a “black box” from an FMC Rochester 
officer after being denied the right to a shower a day earlier by an Officer Schumacher 

and being given an incident report by Officer Gilbertson for standing up to a staff 
member’s deliberate indifference.  (Id. at 10 ¶ 20.)                      
   According to McIntosh, Captain Hess possibly suffers from a mental disorder and 
seeks enjoyment by continually violating the rights of staff and inmates.  (Id. at 10-11 
¶ 21.)                                                                    

   In his request for relief, McIntosh seeks actual, compensatory, and punitive 
damages, as well as all costs and attorney’s fees.  (Id. at 6.)           
   On November 8, 2023, this Court issued an Order requiring McIntosh to file an 
addendum clarifying the capacity in which he is suing each individual Defendant: 
   For that part of the Complaint, it is unclear whether McIntosh means to sue 
   this  action’s  Defendants  in  their  individual  capacities,  their  official 
   capacities, or both capacities. This determination may affect both the relief 
   to which McIntosh may be entitled, as well as the manner in which service 
   of process is effected. See 

(d). The Court therefore orders 
   McIntosh  to  submit—within  14  days  of  this  Order’s  date—a  one-page 
   addendum specifying the capacity or capacities in which he is suing each 
   defendant, failing which this Court will construe the Complaint’s relevant 
   claims as being official-capacity claims only.                       

(Dkt. 6.)  On November 20, 2023, McIntosh filed an Addendum, clarifying that he was 
suing all of the individual defendants in this case in both their personal and official 
capacities.  (Dkt. 8.)                                                    
   On April 8, 2024, Defendants filed the present Motion to Dismiss.  (Dkt. 18.)  
They also filed a Certificate of Service stating they served the Motion and supporting 
documents on McIntosh by mailing them to FMC Butner, where he was located at that 
time.  (Dkt. 23; see Dkt. 13.)  On April 9, 2024, the Court issued a Briefing Order (Dkt. 
24), giving McIntosh until May 7, 2024 to file a response to the Motion to Dismiss.  (Dkt. 
24.)  McIntosh has not filed an opposition to the Motion to Dismiss as of the date of this 
Report and Recommendation.                                                
                   II.  LEGAL STANDARD                                  
   Defendants bring the Motion to Dismiss pursuant to Federal Rule of Civil 
Procedure 12(b)—and specifically, under 12(b)(1) and 12(b)(6).  (Dkt. 18.)  Rule 
12(b)(1) concerns claims that a court lacks subject matter jurisdiction over part or all of 
an action.  Johnson v. United States, 

 (8th Cir. 2008).  “Federal courts 
are courts of limited jurisdiction, possessing only that power authorized by Constitution 
and statute.”  Gunn v. Minton, 

 (2013) (quotation marks and citations 
omitted).  As a result, subject matter jurisdiction “is a threshold requirement” that courts 
must assure themselves of “in every federal case.”  Turner v. Armontrout, 

 (8th Cir. 1991) (citing Kronholm v. F.D.I.C., 

 (8th Cir. 1990)).   
   When considering a Rule 12(b)(1) motion, “‘the Plaintiff will have the burden of 
proof that jurisdiction does in fact exist.’”  Osborn v. United States, 

 
(8th Cir. 1990) (quoting Mortenson v. First Fed. Sav. & Loan Ass’n, 

 
(3rd Cir. 1977)).                                                         
   A court considering a Rule 12(b)(1) motion must first determine whether the 

motion presents a “facial attack” or a “factual attack.”  

 at 729 n.6 (quoting Menchaca 
v. Chrysler Credit Corp., 

 (5th Cir. 1980)).  “In a facial challenge to 
jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true 
and the motion is successful if the Plaintiff fails to allege an element necessary for 
subject matter jurisdiction.”  Titus v. Sullivan, 

 (8th Cir. 1993) (citing 

Eaton v. Dorchester Dev., Inc., 

, 731-32 (11th Cir. 1982)).  For a factual 
attack, in contrast, a court “considers matters outside the pleadings, and the non-moving 
party does not have the benefit of 12(b)(6) safeguards.”  Davis v. Anthony, Inc., 

 (8th Cir. 2018) (quoting Osborn, 

 n.6)).  “If the asserted basis of 
federal jurisdiction is patently meritless, then dismissal for lack of jurisdiction is 

appropriate.”  Biscanin v. Merrill Lynch & Co., Inc., 

 (8th Cir. 2005) 
(citing cases).                                                           
   Motions to dismiss under Rule 12(b)(6) do not concern jurisdiction; instead, they 
assert that a plaintiff’s pleadings “fail[] to state a claim upon which relief can be 
granted.”  Fed. R. Civ. P. 12(b)(6).  Certain safeguards apply to a Rule 12(b)(6) motion.  
First, when considering a Rule 12(b)(6) motion, a court construes pleadings in the light 

most favorable to the nonmoving party, and the court must take a pleading’s factual 
allegations to be true.  See, e.g., Ashley County v. Pfizer, Inc., 

 (8th Cir. 
2009) (quoting Wishnatsky v. Rovner, 

 (8th Cir. 2006)).  Second, a 
court must afford the nonmoving party all reasonable inferences from a pleading’s 
allegations.  See, e.g., Blankenship v. USA Truck, Inc., 

 (8th Cir. 2010) 
(citing Crooks v. Lynch, 

 (8th Cir. 2009)).              

   Notwithstanding these points, to withstand a Rule 12(b)(6) motion, litigants must 
properly plead their claims under Federal Rule of Civil Procedure 8 and meet the 
principles articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 

 (2007), and Ashcroft v. Iqbal, 

 (2009).  Under Rule 8(a)(2), a 
pleading must contain a “short and plain statement of the claim showing that the pleader 

is entitled to relief.”  Fed. R. Civ. P. 8(a)(2).  This standard “does not require detailed 
factual allegations, but [does demand] more than an unadorned, the-defendant-
unlawfully-harmed-me-accusation.”  Iqbal, 

 (internal quotation marks and 
citation omitted).  “A pleading that offers ‘labels and conclusions’ or ‘a formulaic 
recitation of the elements of a cause of action will not do.’”  

 (quoting Twombly, 

).                                                             
   As a result, 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.’”  

 (quoting Twombly, 

).  “A claim has facial plausibility when the 
Plaintiff pleads factual content that allows the court to draw the reasonable inference that 
the defendant is liable for the misconduct alleged.”  

 (citing Twombly, 

).  “[T]he plausibility standard, which requires a federal court complaint ‘to state a 
claim for relief that is plausible on its face, . . . asks for more than a sheer possibility that 
a defendant has acted unlawfully.’”  Ritchie v. St. Louis Jewish Light, 

 
(8th Cir. 2011) (quoting Iqbal, 

 (ellipses in Ritchie)).  “Determining 
whether a complaint states a plausible claim for relief [is] a context-specific task that 
requires the reviewing court to draw on its judicial experience and common sense.”  

Iqbal, 

 (citation omitted).                                
   Following Twombly (and proving consistent with Iqbal), the Eighth Circuit has 
provided further guidance on Rule 8’s pleading standard:                  
   While a Plaintiff need not set forth “detailed factual allegations,” Twombly, 
   [

],  or  “specific  facts”  that  describe  the  evidence  to  be 
   presented, Erickson v. Pardus, [

 (2007)] (per curiam), the 
   complaint must include sufficient factual allegations to provide the grounds 
   on which the claim rests. Twombly, [

 n.3].  A district court, 
   therefore, is not required “to divine the litigant’s intent and create claims that 
   are not clearly raised,” [Bediako v. Stein Mart, Inc., 

 (8th 
   Cir.  2004)],  and  it  need  not  “conjure  up  unpled  allegations”  to  save  a 
   complaint.  Rios v. City of Del Rio, 

 (5th Cir. 2006) 
   (internal quotation omitted).                                        

Gregory v. Dillard’s, Inc., 

 (8th Cir. 2009).            
   For Rule 12(b)(6) purposes, the Eighth Circuit has interpreted a complaint’s “face” 
to include public records and materials that the complaint embraces, as well as materials 
attached to the complaint.  See, e.g., C.H. Robinson Worldwide, Inc. v. Lobrano, 

 (8th Cir. 2012) (quoting cases); Stahl v. U.S. Dep’t of Agric., 

, 700 
(8th Cir. 2003) (citing Faibisch v. Univ. of Minn., 

, 802-03 (8th Cir. 2002)). 

             III.  ANALYSIS—MOTION TO DISMISS                           
   Defendants argue that the Court should dismiss the Complaint.  Specifically, 
Defendants argue that the claims for violation of McIntosh’s rights pursuant to the First, 
Fourth, Fifth, and Eighth Amendments to the Constitution, which they construe as claims 
under Bivens v. Six Unknown Federal Narcotics Agents, 

 (1971), should be 
dismissed for failure to state a claim, as Bivens has not been and should not be extended 

to the violations alleged under the Complaint.  (Dkt. 19 at 1, 3-11.)2  Defendants also 
argue that the Bivens claim against Warden Rardin should be dismissed on the additional 
basis that Bivens does not recognize respondeat superior liability in Bivens actions.  (Id. 
at 11 (citing Iqbal, 

 (“Government officials may not be held liable for the 
unconstitutional conduct of their subordinates under a theory of respondeat superior.”)).)  

As to McIntosh’s ADA, Rehabilitation Act, and HIPAA claims, the Defendants argue 
that the ADA does not apply to the federal government, McIntosh has not alleged that he 
is a qualified individual with a disability or explained how he was denied access to a 
program receiving federal funds for the purposes of the Rehabilitation Act, and that 
HIPAA does not create a private right of action.  (Id at 11-12.)  Finally, Defendants argue 

that McIntosh’s claims for injunctive and declaratory relief against Defendants in their 


2    Unless stated otherwise, page citations in this Report and Recommendation refer 
to the page numbers assigned by CM/ECF.                                   
official capacities and against the United States are moot as he no longer resides at FMC 
Rochester.  (Id. at 13.)                                                  

A.   Declaratory and Injunctive Relief                                    
   As noted above, Defendants argue that because McIntosh is no longer an inmate at 
FMC Rochester, his requests for injunctive and declaratory relief related to Defendants’ 
alleged conduct at the facility are moot under Rule 12(b)(1).  (Id. at 13.)  McIntosh does 
not appear to dispute this argument, and in fact had filed a notice of address change with 
the Court before Defendants filed their Motion stating that he is presently at FMC Butner.  

(See Dkt. 13.)                                                            
   There is no direct request for declaratory or injunctive relief in the Complaint, 
only an assertion in the Addendum that McIntosh is suing Defendants in their official and 
individual capacities.  (Dkt. 6.)  A suit against a federal officer in his official capacity is 
treated as a suit against the United States.  See Buford v. Runyon, 

 

(8th Cir. 1998).  At least some courts have found that while official capacities claims are 
not cognizable under Bivens, they may extend to prospective relief, such as injunctive 
and declaratory relief, under the general federal question jurisdiction statute, 

  See Simmat v. U.S. Bureau of Prisons, 

 (10th Cir. 2005) 
(citation omitted); see also Mohammed S. v. Tritten, No. 20-CV-783 (NEB/ECW), 

, at *2 n.5 (D. Minn. May 27, 2020); but see Staszak v. United States, 

    The Court notes that McIntosh did not specify § 1331 in his pleadings except for 
the purposes of this Court’s jurisdiction over this matter, in which he declared that the 
Court had federal question jurisdiction over this case under the statute.  (Dkt. 1 at 4.) 
App’x 365, 366 (8th Cir.), cert. denied, 

 (2021) (“We also agree that the 
Bivens claims failed.  Sovereign immunity barred the Bivens claims against the United 

States, and against Gallardo in her official capacity.”); Fiorito v. Drummy, No. 22-CV-
0923, -0925, -0927 (PJS/TNL), 

, at *2 (D. Minn. June 16, 2023) 
(noting that “a litigant cannot seek injunctive relief under Bivens”); Hill v. Holinka, No. 
06-CV-4720 (PJS/JJG), 

, at *2 (D. Minn. Feb. 27, 2008) (“[A] litigant 
cannot seek injunctive relief under Bivens, because injunctive relief directing an agent of 
the federal government to act in a specific way in his or her capacity as a federal agent 

would amount to relief against the United States itself.”).               
   Regardless, the Court need not decide whether the Complaint and Addendum have 
adequality stated a claim for prospective relief against Defendants in their official 
capacities, as any such relief would be moot.  “Article III of the United States 
Constitution limits the jurisdiction of the federal courts to actual, ongoing cases and 

controversies.”  Ali v. Cangemi, 

 (8th Cir. 2005) (quoting Haden v. 
Pelofsky, 

, 469 (8th Cir. 2000)).  “Article III mootness divests the Court of 
subject matter jurisdiction.”  Ahmed v. Sessions, Case No. 16-cv-02124 (DSD/HB), 

, at *2 (D. Minn. July 11, 2017).  A court may consider matters outside the 
pleadings in a factual attack on subject matter jurisdiction when deciding whether a live 

controversy exists.  See Davis, 

.  The Eighth Circuit has held that 
“[p]laintiffs seeking prospective relief based on past actions must show ‘a real and 
immediate threat that they would again suffer similar injury in the future.’”  Mitchell v. 
Dakota Cty. Soc. Servs., 

 (8th Cir. 2020)) (quoting Mosby v. Ligon, 

 (8th Cir. 2005)) (cleaned up); see also Lambros v. United States, No. 19-
CV-1870 (MJD/ECW), 

, at *8 (D. Minn. July 20, 2020), R. & R. 

adopted, No. 19-CV-1870 MJD/ECW, 

 (D. Minn. Sept. 11, 2020), 
aff’d, 

 (8th Cir. 2021) (applying the same to a Bivens action).  
Declaratory relief is also a form of prospective relief.  See Los Angeles Cty., Cal. v. 
Humphries, 

, 31 (2010).                                        
   There is no dispute that McIntosh is no longer at FMC Rochester and thus no 
longer subject to the alleged illegal policies and conduct by Defendants.  As such, the 

Court finds that any request for declaratory relief or injunctive relief is moot4 and any 
such request for relief or judgment should be dismissed without prejudice.5  See Senty-
Haugen v. Goodno, 

 (8th Cir. 2006) (holding that a prisoner’s claims 
for injunctive and declaratory relief related to the conditions of his imprisonment while in 
isolation were moot after the prisoner’s period of isolation ended); see also Reichling v. 



4    The Court notes that none of the exceptions to the mootness doctrine apply here.  
See Ahmed, 

, at *2-3 (listing four exceptions to the mootness doctrine, 
including that (1) secondary or “collateral” injuries survive after resolution of the primary 
injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the 
defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any 
time; or (4) it is a properly certified class action suit.); see also Ireland v. Anderson, No. 
3:13-CV-3, 

, at *2 (D.N.D. July 5, 2016) (citation omitted).  

5    Because the Court recommends dismissal of this case based on a lack of subject 
matter jurisdiction, the Court recommends that the claim be dismissed without prejudice.  
See Jenkins v. Bowker, No. 19-cv-1051 (NEB/LIB), 

, at *2 (D. Minn. 
June 4, 2019), R. & R. adopted, 

 (D. Minn. July 8, 2019); see also 
Romero v. Pinnacle Equities, LLC, 

 (8th Cir. 2008) (citation 
omitted) (modifying dismissal for lack of subject matter jurisdiction to be without 
prejudice).                                                               
Best, No. 22-2366, 

, at *1 (8th Cir. Oct. 21, 2022) (“Because, as 
Reichling concedes in his pro se brief, his transfer to another prison during the pendency 

of his action mooted his request for injunctive relief, we lack jurisdiction.”); Scher v. 
Chief Postal Inspector, 

 (8th Cir. 1992) (per curium) (citations omitted) 
(holding that a former inmate’s request for declaratory and injunctive relief under Bivens 
with respect to the handling of mail was moot because the inmate was no longer in 
prison); Lambros, 

, at *8.                                 

B.   Bivens Claims                                                        
   “A Bivens claim is a cause of action brought directly under the United States 
Constitution against a federal official acting in his or her individual capacity for 
violations of constitutionally protected rights.”  Buford v. Runyon, 

, 1203 
n.6 (8th Cir. 1998) (emphasis added) (citing Bivens, 

). “‘Bivens established 
that the victims of a constitutional violation by a federal agent have a right to recover 

damages against the official in federal court despite the absence of any statute conferring 
such a right.’”  Hartman v. Moore, 

, 255 n.2 (2006) (quoting Carlson v. 
Green, 

 (1980)); see also Buford, 

 n.6 (citation omitted) 
(“A Bivens claim is a cause of action brought directly under the United States 
Constitution against a federal official acting in his or her individual capacity for 

violations of constitutionally protected rights.”).                       
   The Supreme Court has made it clear that expansion of Bivens is “a disfavored 
judicial activity and [has] gone so far as to observe that if the Court’s three Bivens cases 
had been decided today, it is doubtful that we would have reached the same result.  And 
for almost 40 years, we have consistently rebuffed requests to add to the claims allowed 
under Bivens.”  Hernandez v. Mesa, 

 (2020) (cleaned up); see also 

Egbert v. Boule, 

 (2022) (“In Bivens [], this Court authorized a 
damages action against federal officials for alleged violations of the Fourth Amendment.  
Over the past 42 years, however, we have declined 11 times to imply a similar cause of 
action for other alleged constitutional violations.”).                    
   The Supreme Court has previously recognized Bivens claims brought for excessive 
force in violation of the Fourth Amendment dealing with a warrantless search and illegal 

arrest, see Bivens, 

; workplace discrimination on the basis of sex in 
violation of the procedural due process of the Fifth Amendment, see Davis v. Passman, 

 (1979); and deliberate indifference to a serious medical need in violation of 
the prohibition against cruel and unusual punishment under the Eighth Amendment, see 
Carlson, 

.  See also Ahmed v. Weyker, 

 (8th Cir. 2020) 

(“On only three occasions has the Supreme Court recognized a cause of action under 
Bivens.”) (cleaned up).                                                   
   Given the presumption against extending the reach of Bivens, the Supreme Court 
and Eighth Circuit have adopted a two-part test with respect to whether an implied cause 
of action is available under Bivens:                                      

   First, we ask whether the case presents “a new Bivens context”—i.e., is it 
   “meaningful[ly]”  different  from  the three cases  in  which the  Court  has 
   implied a damages action. Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1859-
   1860.  Second,  if  a  claim  arises  in  a  new  context,  a  Bivens  remedy  is 
   unavailable 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.” Ziglar, 582 U. S., at ––––, 137 
   S.Ct., at 1858 (internal quotation marks omitted). If there is even a single 
   “reason to pause before applying Bivens in a new context,” a court may not 
   recognize a Bivens remedy.                                           

Egbert, 

 (citation omitted); see also Ahmed, 

 (citations 
omitted) (quoting Farah v. Weyker, 

 (8th Cir. 2019)) (citation omitted).  
The Supreme Court went on to further explain this analysis:               
   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.  For example, we have explained that 
   a new context arises when there are potential special factors that previous 
   Bivens cases did not consider.                                       

 (cleaned up).                                                         
   As to the first step, in looking at whether the present case “is different in a 
meaningful way,” the “relevant differences can include, among other things, ‘the sorts of 
actions being challenged, the mechanism of injury, and the kinds of proof those injuries 
would require.’”  Ahmed, 

 (quoting Farah, 925 F.3d at 500).  Even small 
differences can be “meaningful.”  Id. (citations omitted).                
   The Court finds that the actions and mechanism of injury alleged here are different 
than those recognized by the Supreme Court.  Multiple courts within this District have 
concluded that the Supreme Court has not recognized an implied cause of action for a 
violation of the First Amendment.  See, generally, Gregg v. Basile, No. 21-CV-2767 
(WMW/TNL), 

, at *2 (D. Minn. Jan. 11, 2023) (collecting cases), R. & 
R. adopted, 

 (D. Minn. Feb. 6, 2023).  Indeed, the Supreme Court has 
recently reiterated that “[w]e have never held that Bivens extends to First Amendment 
claims.”  Egbert, 598 U.S. at 498 (quoting Reichle v. Howards, 

 
(2012)); see also Debenedetto v. Ford, No. 24-CV-636 (JRT/DTS), 

, 
at *2 (D. Minn. Mar. 27, 2024) (“[T]he remedy made available by Bivens does not extend 

to claims of alleged retaliation in violation of a litigant’s First Amendment rights.”) 
(citation omitted), R. & R. adopted, 

 (D. Minn. Apr. 25, 2024). 
   The only Bivens action under the Fifth Amendment recognized by the Supreme 
Court was in Davis, supra.  In Davis, the Court held that the Fifth Amendment provided a 
damages remedy for a claim of gender discrimination, allowing the administrative 
assistant of a Congressman to sue her former employer after she was fired because she 

was a woman.  See 

.  The Davis Court noted that the Congressman’s 
recent electoral defeat meant that “equitable relief in the form of reinstatement would be 
unavailing,” and that the federal courts were well-equipped to evaluate Davis’s gender 
discrimination claim.  

.  However, with respect to the Due Process Clause, the 
Court considered an implied cause of action under the Fifth Amendment as the “Due 

Process Clause of the Fifth Amendment forbids the Federal Government to deny equal 
protection of the laws.”  

.  Here, not only is McIntosh not asserting gender 
discrimination, but his claims with respect to due process do not involve equal protection.  
Given that the Supreme Court has not recognized a Bivens action dealing with a prisoner 
on procedural or substantive due process grounds, McIntosh’s claims would require 

extending Bivens to a new context.  See Brown v. Cooper, No. CV 18-219 (DSD/BRT), 

, at *12 (D. Minn. Dec. 11, 2018) (“In Davis, the Supreme Court 
recognized a Bivens remedy for a Fifth Amendment equal protection claim, but that case 
involved discrimination in an employment setting, not a correctional setting.  While the 
claims may have some parallels, ‘even a modest extension is still an extension.’”) 
(quoting Ziglar v. Abbasi, 

 (2017)), R. & R. adopted, 

 

(D. Minn. Jan. 7, 2019), aff’d in relevant part as modified, 

 (8th Cir. 
2019).                                                                    
   The only Bivens action under the Fourth Amendment recognized by the Supreme 
Court was an excessive force claim against FBI agents for handcuffing a man in his own 
home without a warrant under the Fourth Amendment.  See Bivens, 

.  
Handcuffing a convicted federal inmate while incarcerated during transport within the 

prison is on its face distinguishable from the warrantless seizure of an individual in his 
own home.  See Bruno v. United States, No. 3:18CV1390-MCR-HTC, 

, at *3 (N.D. Fla. May 30, 2019) (“Defendant Boston correctly notes, the Fourth 
Amendment violation in Bivens arose out of FBI agents handcuffing a man in his own 
home without a warrant, an event completely distinguishable from correctional officers 

detaining, searching, and seizing a convicted federal inmate.”) (cleaned up), R. & R. 
adopted, 

 (N.D. Fla. June 28, 2019).                       
   The Court acknowledges that the Supreme Court has recognized a claim against 
prison officials for failure to treat an inmate’s asthma under the Eighth Amendment.  See 
Carlson v. Green, 

 (1980).  To survive a Rule 12(b)(6) motion to dismiss 

a medical deliberate indifference claim under the Eighth Amendment, McIntosh must 
allege facts that show: “(1) he suffered from objectively serious medical needs, and 
(2) the defendants actually knew of, but deliberately disregarded, those needs.”  Mead v. 
Palmer, 

 (8th Cir. 2015) (citation omitted).  However, there are no facts 
alleged in the Complaint that McIntosh suffered from any serious medical needs or how 
any of the Defendants knew of, but deliberately disregarded, those needs.  As such, the 

Complaint fails to plausibly allege any failure-to-treat claim under Bivens and it should 
be dismissed.  To the extent that McIntosh is asserting an excessive force claim under the 
Eighth Amendment, Courts have held that excessive force claims arising from the Eighth 
Amendment present new Bivens contexts.  See Clutts v. Lester, 

, 707 
(N.D. Iowa 2023) (“Courts have consistently found that excessive force cases arising 
under either the Fifth or Eighth Amendment to present new Bivens contexts.”) (marks and 

citation omitted); see also Oneil v. Rodriguez, Civ. A. No. 18-3287, 

, 
at *3-5 (E.D.N.Y. Sept. 30, 2020) (declining to extend Bivens to an Eighth Amendment 
excessive force claim).                                                   
   As to the second step, “[t]he focus is on whether there are any special factors that 
cause us to pause before acting without express congressional authorization.  It does not 

take much, because Congress is usually in the better position to weigh the costs and 
benefits of creating a new substantive legal liability.”  Ahmed, 

 (cleaned 
up); see also Egbert, 

.  Here, special factors counsel against extending 
Bivens to McIntosh’s First Amendment claims in the prison context; Fourth Amendment 
due process claims under the Fifth Amendment, and possible Eighth Amendment claims 

relating to his restraint and threats made against him.  First, Congress has already 
legislated extensively with respect to prisoners’ rights under the Prison Litigation Reform 
Act, and “legislative action suggesting that Congress does not want a damages remedy is 
itself a factor counseling hesitation.” Ziglar, 

; see also Brown, 

, at *12 (citation omitted) (“Prisoner civil rights litigation, moreover, is heavily 
regulated by Congress, counseling hesitation in the expansion of remedies available to 

prisoners.”).                                                             
   These factors also include whether a Bivens claim would interfere with the 
functioning of the executive branch and whether other remedies exist to deal with the 
injures alleged by McIntosh.  Ahmed, 

; see also Ziglar, 

 (“[A]n alternative remedial structure . . . alone may limit the power of the Judiciary 
to infer a new Bivens cause of action.”).  Courts in this district have concluded that if 

Bivens claims were permitted to be extended in the context of the BOP’s actions, then 
“BOP officials faced with the expanded possibility of personal liability may act 
differently . . . when dealing with [individuals] in BOP custody.”  Biron v. Sawyer, No. 
19-CV-2938 (SRN/LIB), 

, at *15 (D. Minn. Aug. 21, 2020) (citation 
omitted), R. & R. adopted sub nom., 

 (D. Minn. Sept. 30, 2020).   

   Further cautioning against an extension of Bivens to the claims in the Complaint is 
the fact that other remedies exist to deal with the harms alleged by McIntosh.6  As set 
forth above, the Supreme Court commands consideration of whether alternative remedies 
are available.  See Egbert, 

. .  Inmates whose First Amendment, due 
process interests, and rights against excessive force are harmed in federal prison may 

seek relief under the BOP Administrative Remedy Program.  See 

-
542.19.  Indeed, “[t]he purpose of the [BOP] Administrative Remedy Program is to allow 

6    The Court also notes that this is not a case where McIntosh alleges he suffered a 
physical injury as the result of Defendants’ actions.                     
an inmate to seek formal review of an issue relating to any aspect of his/her own 
confinement.”  See 

(a); see also Corr. Servs. Corp. v. Malesko, 

 (2001) (“Inmates in respondent’s position also have full access to remedial 
mechanisms established by the BOP, including suits in federal court for injunctive 
relief—long recognized as the proper means for preventing entities from acting 
unconstitutionally—and grievances filed through the BOP’s Administrative Remedy 
Program.”).  The availability of such remedies is a “convincing reason for the Judicial 
Branch to refrain from providing a new and freestanding remedy in damages.”  Hardy v. 

Bureau of Prisons, No. CV 18-794 (DSD/BRT), 

, at *3 (D. Minn. June 
10, 2019) (quoting Wilkie v. Robbins, 

 (2007)), R. & R. adopted, 

 (D. Minn. July 15, 2019).                                      
   Moreover, McIntosh admits in his Complaint that he properly used the prison 
grievance process.  (See Dkt. 1-1.)  In other words, McIntosh availed himself of the BOP 

Administrative Remedy Program under 

.  The fact that 
McIntosh’s administrative remedies were not successful does not mean that such a 
process does not exist as an alternative remedy.  See Malesko, 

 (noting that 
“[s]o long as the Plaintiff had an avenue for some redress, bedrock principles of 
separation of powers foreclosed judicial imposition of a new substantive liability”).  The 

Court finds that alternative remedies in the form of the grievance process and the ability 
to seek injunctive relief counsels against expanding Bivens to McIntosh’s claims.  See 
Hardy, 

, at *3 (First Amendment claim); see also Dockery v. Baltazar, 
No. 4:20-CV-01676, 

, at *3 (M.D. Pa. May 19, 2021) (“I join other 
courts that considered the issue in concluding the BOP’s Administrative Remedy 
Program provides an alternative process.  Significantly, the fact that Dockery was 

unsuccessful in utilizing the administrative process does not mean that such a process 
does not exist as an alternative remedy.”).                               
                            * * *                                       
   For all of the reasons stated above, the Court finds that Bivens should not be 
extended to McIntosh’s First Amendment claims, Fourth Amendment claims, due process 
claims under the Fifth Amendment, and possible Eighth Amendment (related to excessive 

force) claims against Defendants, and that these claims against Defendants in their 
individual capacities should be dismissed with prejudice.                 
C.   Respondeat Superior                                                  
   Defendants argue that the Bivens claims against Warden Rardin should be 
dismissed, as the Complaint does not allege that Warden Rardin took specific action 

against McIntosh.  (Dkt. 19 at 11.)                                       
   “Because vicarious liability is inapplicable to Bivens . . . suits, a Plaintiff must 
plead that each Government-official defendant, through the official’s own individual 
action, has violated the Constitution.”  Iqbal, 

; Webb v. Hedrick, 

 (8th Cir. 2010) (“Bivens liability cannot be established solely on a theory of 

respondeat superior.”); Buford, 

 n.7 (citing Estate of Rosenberg v. 
Crandell, 

 (8th Cir. 1995)).                                
   Here, the only allegations with respect to Warden Radin are that he was not 
necessarily around when the actions against McIntosh occurred, he set the tone of ethics 
for the prison, he has ordered restraints be placed on other inmates, and that he is 
ultimately responsible for creating a hostile environment at FMC Rochester.  (Dkt. 1 at 9-

10 ¶ 18.)                                                                 
   Given that McIntosh has not alleged that Warden Rardin took specific action 
towards him, the Court finds that his Bivens claims based on a theory of respondeat 
superior should be dismissed, on this additional basis, with prejudice.   
D.   ADA Claims                                                           
   McIntosh’s ADA claims fail to state a claim for relief.  The ADA defines public 

entitles covered by the ADA as any state or local government entity.  See 

(1)(A)-(B) (defining public entities covered by the ADA).  Under the plain 
language of the statute, the Federal Government is not a covered public entity and there is 
no explicit waiver of sovereign immunity contained in the statue.  Therefore, relief 
against federal BOP employees under the ADA is unavailable to McIntosh in this 

context.  See County of St. Louis v. Thomas, 

 (D. Minn. 1997) 
(citing 

(1)(A)-(B)) (“[T]he ADA does not provide a cause of action 
against the federal government”); see also Jackson v. Fed. Bureau of Prisons, No. CIV. 
06-1347 MJD/RLE, 

, at *19 (D. Minn. Mar. 16, 2007) (same).   
   As such, McIntosh’s ADA claims against Defendants should be dismissed with 

prejudice.                                                                
E.   Rehabilitation Act Claims                                            
   The Rehabilitation Act, 

(a), provides in relevant part that “[n]o 
otherwise qualified individual with a disability . . . shall, solely by reason of her or his 
disability, be excluded from the participation in, be denied the benefits of, or be subjected 
to discrimination under any program or activity receiving Federal financial assistance.”  

The elements of a claim under Rehabilitation Act include that: (1) the claimant is a 
qualified individual with a disability; (2) the individual was denied the benefits of a 
program or activity of a public entity which receives federal funds; and (3) he was 
discriminated against based on his disability.  See Wojewski v. Rapid City Reg'l Hosp., 
Inc., 

 (8th Cir. 2006) (citation omitted).               
   McIntosh’s claim fails to state a claim for relief as he has not alleged pursuant to 

Rule 8’s notice requirements any facts supporting that he is a qualified individual with a 
disability or how he was denied access to a program receiving federal funds based on his 
disability.  Therefore, the claim should be dismissed without prejudice for failure to state 
a claim for relief.                                                       
F.   HIPAA Claims                                                         

   As best as this Court can discern, McIntosh asserts a claim for relief under the 
HIPAA on the basis that Dr. Hart violated McIntosh’s confidentiality by giving his 
diagnosis to law enforcement without his consent.  (Dkt. 1 at 9 ¶ 16.)  Even assuming that 
this is true, “HIPAA does not create a private right of action.”  Dodd v. Jones, 

 (8th Cir. 2010) (citing cases); see also Nahal v. Allina Health Sys., No. 18-cv-

631 (DWF/KMM), 

, at *5-6 (D. Minn. Oct. 4, 2018) (“HIPAA does 
not create a private right of action for any violations of the Act . . . .”) (citing Mason v. 
Minn. Dep’t of Human Servs., No. 16-cv-2340 (JRT/LIB)), 

, at *4 (D. 
Minn. Apr. 3, 2017)), R. & R. adopted, 

 (D. Minn. Dec. 21, 2018).  As 
a result, whatever HIPAA claims McIntosh means to assert, he cannot pursue them 
through a private lawsuit.  The Court thus recommends dismissing McIntosh’s HIPAA 

claims with prejudice.                                                    
                   V.   RECOMMENDATION                                  
   Based on the above, and on the files, records, and proceedings herein, IT IS 
RECOMMENDED that:                                                         
   1.   Defendants’ Motion to Dismiss (Dkt. 18) be GRANTED;             
   2.   The Complaint be dismissed WITHOUT PREJUDICE as to Plaintiff’s  

requests for declaratory relief and injunctive relief against Defendants in their official 
capacities;                                                               
   3.   This Action be dismissed WITH PREJUDICE as to the claims under  
Bivens for monetary relief against Defendants in their individual capacities with respect 
to Plaintiff’s allegations of First Amendment, Fourth Amendment, Fifth Amendment, and 

possible Eighth Amendment (related to excessive force) violations, as well as all 
respondeat superior claims against Defendant Warden Jared Rardin;         
   4.   Plaintiff’s claim under Bivens for deliberate indifference to a serious 
medical need under the Eighth Amendment, and claim under the Rehabilitation Act be 
dismissed WITHOUT PREJUDICE; and                                          

   5.   This Action be dismissed WITH PREJUDICE as to Plaintiff’s claims 
under the Americans with Disability Act and the Health Insurance Portability and 
Accountability Act.                                                       
DATED: August 29, 2024             s/ Elizabeth Cowan Wright              
                                 ELIZABETH COWAN WRIGHT                 
                                 United States Magistrate Judge         

                           NOTICE                                       
This Report and Recommendation is not an order or judgment of the District Court and is 
therefore not appealable directly to the Eighth Circuit Court of Appeals. 

Under District of Minnesota Local Rule 72.2(b)(1), “a party may file and serve specific 
written objections to a magistrate judge’s proposed finding and recommendations within 
14 days after being served a copy” of the Report and Recommendation.  A party may 
respond to those objections within 14 days after being served a copy of the objections. D. 
Minn. LR 72.2(b)(2).  All objections and responses must comply with the word or line 
limits set for in D. Minn. LR 72.2(c).                                    

                UNITED STATES DISTRICT COURT                            
                   DISTRICT OF MINNESOTA                                


PATRICK RANDELL MCINTOSH,          Case No. 23-cv-3149 (JRT/ECW)        

              Plaintiff,                                                

v.                              REPORT AND RECOMMENDATION               

LT. GALLION, CAPTAIN HESS,                                              
WARDEN JARED RARDIN, and DR.                                            
DIONNE HART,                                                            

              Defendants.                                               


   This action comes before the Court on Defendants’ Motion to Dismiss (Dkt. 18). 
This case has been referred to the undersigned United States Magistrate Judge for a report 
and recommendation pursuant to 

 and Local Rule 72.1.       
        I.   FACTUAL AND PROCEDURAL BACKGROUND                          
   This action arises out of Patrick Randell McIntosh’s ( “McIntosh”) claims that 
while incarcerated at Federal Medical Center Rochester (“FMC Rochester”),1 Defendants 
violated his rights under the American with Disabilities Act (“ADA”); the Rehabilitation 
Act; the Health Insurance Portability and Accountability Act (“HIPAA”); and his rights 

1    According to the last Notice of Change of Address from McIntosh (Dkt. 13), and 
the BOP’s inmate locator, McIntosh is presently designated at the Federal Medical Center 
Institute in Butner (“FMC Butner”), North Carolina.  BOP inmate Locator,  
www.bop.gov/inmateloc// (last visited August 29, 2024).  The Court received McIntosh’s 
new address on or about January 29, 2024.  (Dkt. 13.)                     
pursuant to the First, Fourth, Fifth, and Eighth Amendments to the Constitution.  (Dkt. 1 
at 4.)  In particular, the Complaint alleges as follows:                  

   On or about October 21, 2022, Defendant Dr. Dionne Hart (“Dr. Hart”), a 
psychiatrist at FMC Rochester, came to McIntosh’s cell and called him a racist for 
standing up to another inmate for being threatening.  (Dkt. 1 at 7 ¶ 11.)  Dr. Hart than 
wrote up both McIntosh and the other inmate on a “Code 203” incident report for 
threatening bodily harm.  (Id.)                                           
   On or about October 22, 2022, Defendants Lieutenant Anthony Gallion and 

Captain Jeremy Hess placed McIntosh in handcuff restraints and escorted him to the 
medical office within the secure housing unit.  (Id. at 7-8 ¶ 12.)  Once he was in the 
medical office, they had McIntosh sit down without taking off his handcuff restraints.  
(Id. at 8 ¶ 13.)  Caption Hess repeated a threat made by Defendant Warden Jared Rardin 
at McIntosh’s orientation, that “if you put your hands on my staff we will do everything 

we can to restrain you.  I am not threatening you or anything.”  (Id.)  Lieutenant Gallion 
then told McIntosh, “I will put a black man in your cell and you are all either going to 
fight, fuck, or become friends.”  (Id. at 8 ¶ 14.)  This was a threat to set up a rape or 
beating between two inmates.  (Id.)  After this intimidation and harassment used by 
Captain Hess, he told McIntosh that he did not have a disorder, but that he was just an 

“asshole.”  (Id. at 8-9 ¶ 15.)  McIntosh was also ordered to write Dr. Hart an apology, 
even though she instigated the Code 203 and violated his confidentiality by giving his 
diagnosis to law enforcement without his consent.  (Id. at 9 ¶ 16.)       
   McIntosh was escorted back to his cell by Lieutenant Gallion.  (Id. at 9 ¶ 17.)  On 
his way back, a nurse asked McIntosh if he needed anything from nursing.  (Id.)  

McIntosh responded, “yes, please,” and then Lieutenant Gallion yelled into his ear “yes, 
ma’am.”  (Id.)                                                            
   FMC Rochester is an institution run of on fear, retaliation, intimidation, and 
manipulation.  (Id. at 9 ¶ 18.)  While Warden Rardin could not be everywhere, he set the 
tone of ethics for the prison and is ultimately responsible for creating a hostile 
environment.  (Id. at 9-10 ¶ 18.)                                         

   McIntosh wrote an “insincere apology” to Dr. Hart out of fear of retaliation, 
physical harm, and rape.  (Id. at 10 ¶ 19.)                               
   On or about April 6, 2023, Captain Hess came to McIntosh’s cell and threatened to 
put him in four-point restraints for requesting a “black box” from an FMC Rochester 
officer after being denied the right to a shower a day earlier by an Officer Schumacher 

and being given an incident report by Officer Gilbertson for standing up to a staff 
member’s deliberate indifference.  (Id. at 10 ¶ 20.)                      
   According to McIntosh, Captain Hess possibly suffers from a mental disorder and 
seeks enjoyment by continually violating the rights of staff and inmates.  (Id. at 10-11 
¶ 21.)                                                                    

   In his request for relief, McIntosh seeks actual, compensatory, and punitive 
damages, as well as all costs and attorney’s fees.  (Id. at 6.)           
   On November 8, 2023, this Court issued an Order requiring McIntosh to file an 
addendum clarifying the capacity in which he is suing each individual Defendant: 
   For that part of the Complaint, it is unclear whether McIntosh means to sue 
   this  action’s  Defendants  in  their  individual  capacities,  their  official 
   capacities, or both capacities. This determination may affect both the relief 
   to which McIntosh may be entitled, as well as the manner in which service 
   of process is effected. See 

(d). The Court therefore orders 
   McIntosh  to  submit—within  14  days  of  this  Order’s  date—a  one-page 
   addendum specifying the capacity or capacities in which he is suing each 
   defendant, failing which this Court will construe the Complaint’s relevant 
   claims as being official-capacity claims only.                       

(Dkt. 6.)  On November 20, 2023, McIntosh filed an Addendum, clarifying that he was 
suing all of the individual defendants in this case in both their personal and official 
capacities.  (Dkt. 8.)                                                    
   On April 8, 2024, Defendants filed the present Motion to Dismiss.  (Dkt. 18.)  
They also filed a Certificate of Service stating they served the Motion and supporting 
documents on McIntosh by mailing them to FMC Butner, where he was located at that 
time.  (Dkt. 23; see Dkt. 13.)  On April 9, 2024, the Court issued a Briefing Order (Dkt. 
24), giving McIntosh until May 7, 2024 to file a response to the Motion to Dismiss.  (Dkt. 
24.)  McIntosh has not filed an opposition to the Motion to Dismiss as of the date of this 
Report and Recommendation.                                                
                   II.  LEGAL STANDARD                                  
   Defendants bring the Motion to Dismiss pursuant to Federal Rule of Civil 
Procedure 12(b)—and specifically, under 12(b)(1) and 12(b)(6).  (Dkt. 18.)  Rule 
12(b)(1) concerns claims that a court lacks subject matter jurisdiction over part or all of 
an action.  Johnson v. United States, 

 (8th Cir. 2008).  “Federal courts 
are courts of limited jurisdiction, possessing only that power authorized by Constitution 
and statute.”  Gunn v. Minton, 

 (2013) (quotation marks and citations 
omitted).  As a result, subject matter jurisdiction “is a threshold requirement” that courts 
must assure themselves of “in every federal case.”  Turner v. Armontrout, 

 (8th Cir. 1991) (citing Kronholm v. F.D.I.C., 

 (8th Cir. 1990)).   
   When considering a Rule 12(b)(1) motion, “‘the Plaintiff will have the burden of 
proof that jurisdiction does in fact exist.’”  Osborn v. United States, 

 
(8th Cir. 1990) (quoting Mortenson v. First Fed. Sav. & Loan Ass’n, 

 
(3rd Cir. 1977)).                                                         
   A court considering a Rule 12(b)(1) motion must first determine whether the 

motion presents a “facial attack” or a “factual attack.”  

 at 729 n.6 (quoting Menchaca 
v. Chrysler Credit Corp., 

 (5th Cir. 1980)).  “In a facial challenge to 
jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true 
and the motion is successful if the Plaintiff fails to allege an element necessary for 
subject matter jurisdiction.”  Titus v. Sullivan, 

 (8th Cir. 1993) (citing 

Eaton v. Dorchester Dev., Inc., 

, 731-32 (11th Cir. 1982)).  For a factual 
attack, in contrast, a court “considers matters outside the pleadings, and the non-moving 
party does not have the benefit of 12(b)(6) safeguards.”  Davis v. Anthony, Inc., 

 (8th Cir. 2018) (quoting Osborn, 

 n.6)).  “If the asserted basis of 
federal jurisdiction is patently meritless, then dismissal for lack of jurisdiction is 

appropriate.”  Biscanin v. Merrill Lynch & Co., Inc., 

 (8th Cir. 2005) 
(citing cases).                                                           
   Motions to dismiss under Rule 12(b)(6) do not concern jurisdiction; instead, they 
assert that a plaintiff’s pleadings “fail[] to state a claim upon which relief can be 
granted.”  Fed. R. Civ. P. 12(b)(6).  Certain safeguards apply to a Rule 12(b)(6) motion.  
First, when considering a Rule 12(b)(6) motion, a court construes pleadings in the light 

most favorable to the nonmoving party, and the court must take a pleading’s factual 
allegations to be true.  See, e.g., Ashley County v. Pfizer, Inc., 

 (8th Cir. 
2009) (quoting Wishnatsky v. Rovner, 

 (8th Cir. 2006)).  Second, a 
court must afford the nonmoving party all reasonable inferences from a pleading’s 
allegations.  See, e.g., Blankenship v. USA Truck, Inc., 

 (8th Cir. 2010) 
(citing Crooks v. Lynch, 

 (8th Cir. 2009)).              

   Notwithstanding these points, to withstand a Rule 12(b)(6) motion, litigants must 
properly plead their claims under Federal Rule of Civil Procedure 8 and meet the 
principles articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 

 (2007), and Ashcroft v. Iqbal, 

 (2009).  Under Rule 8(a)(2), a 
pleading must contain a “short and plain statement of the claim showing that the pleader 

is entitled to relief.”  Fed. R. Civ. P. 8(a)(2).  This standard “does not require detailed 
factual allegations, but [does demand] more than an unadorned, the-defendant-
unlawfully-harmed-me-accusation.”  Iqbal, 

 (internal quotation marks and 
citation omitted).  “A pleading that offers ‘labels and conclusions’ or ‘a formulaic 
recitation of the elements of a cause of action will not do.’”  

 (quoting Twombly, 

).                                                             
   As a result, 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.’”  

 (quoting Twombly, 

).  “A claim has facial plausibility when the 
Plaintiff pleads factual content that allows the court to draw the reasonable inference that 
the defendant is liable for the misconduct alleged.”  

 (citing Twombly, 

).  “[T]he plausibility standard, which requires a federal court complaint ‘to state a 
claim for relief that is plausible on its face, . . . asks for more than a sheer possibility that 
a defendant has acted unlawfully.’”  Ritchie v. St. Louis Jewish Light, 

 
(8th Cir. 2011) (quoting Iqbal, 

 (ellipses in Ritchie)).  “Determining 
whether a complaint states a plausible claim for relief [is] a context-specific task that 
requires the reviewing court to draw on its judicial experience and common sense.”  

Iqbal, 

 (citation omitted).                                
   Following Twombly (and proving consistent with Iqbal), the Eighth Circuit has 
provided further guidance on Rule 8’s pleading standard:                  
   While a Plaintiff need not set forth “detailed factual allegations,” Twombly, 
   [

],  or  “specific  facts”  that  describe  the  evidence  to  be 
   presented, Erickson v. Pardus, [

 (2007)] (per curiam), the 
   complaint must include sufficient factual allegations to provide the grounds 
   on which the claim rests. Twombly, [

 n.3].  A district court, 
   therefore, is not required “to divine the litigant’s intent and create claims that 
   are not clearly raised,” [Bediako v. Stein Mart, Inc., 

 (8th 
   Cir.  2004)],  and  it  need  not  “conjure  up  unpled  allegations”  to  save  a 
   complaint.  Rios v. City of Del Rio, 

 (5th Cir. 2006) 
   (internal quotation omitted).                                        

Gregory v. Dillard’s, Inc., 

 (8th Cir. 2009).            
   For Rule 12(b)(6) purposes, the Eighth Circuit has interpreted a complaint’s “face” 
to include public records and materials that the complaint embraces, as well as materials 
attached to the complaint.  See, e.g., C.H. Robinson Worldwide, Inc. v. Lobrano, 

 (8th Cir. 2012) (quoting cases); Stahl v. U.S. Dep’t of Agric., 

, 700 
(8th Cir. 2003) (citing Faibisch v. Univ. of Minn., 

, 802-03 (8th Cir. 2002)). 

             III.  ANALYSIS—MOTION TO DISMISS                           
   Defendants argue that the Court should dismiss the Complaint.  Specifically, 
Defendants argue that the claims for violation of McIntosh’s rights pursuant to the First, 
Fourth, Fifth, and Eighth Amendments to the Constitution, which they construe as claims 
under Bivens v. Six Unknown Federal Narcotics Agents, 

 (1971), should be 
dismissed for failure to state a claim, as Bivens has not been and should not be extended 

to the violations alleged under the Complaint.  (Dkt. 19 at 1, 3-11.)2  Defendants also 
argue that the Bivens claim against Warden Rardin should be dismissed on the additional 
basis that Bivens does not recognize respondeat superior liability in Bivens actions.  (Id. 
at 11 (citing Iqbal, 

 (“Government officials may not be held liable for the 
unconstitutional conduct of their subordinates under a theory of respondeat superior.”)).)  

As to McIntosh’s ADA, Rehabilitation Act, and HIPAA claims, the Defendants argue 
that the ADA does not apply to the federal government, McIntosh has not alleged that he 
is a qualified individual with a disability or explained how he was denied access to a 
program receiving federal funds for the purposes of the Rehabilitation Act, and that 
HIPAA does not create a private right of action.  (Id at 11-12.)  Finally, Defendants argue 

that McIntosh’s claims for injunctive and declaratory relief against Defendants in their 


2    Unless stated otherwise, page citations in this Report and Recommendation refer 
to the page numbers assigned by CM/ECF.                                   
official capacities and against the United States are moot as he no longer resides at FMC 
Rochester.  (Id. at 13.)                                                  

A.   Declaratory and Injunctive Relief                                    
   As noted above, Defendants argue that because McIntosh is no longer an inmate at 
FMC Rochester, his requests for injunctive and declaratory relief related to Defendants’ 
alleged conduct at the facility are moot under Rule 12(b)(1).  (Id. at 13.)  McIntosh does 
not appear to dispute this argument, and in fact had filed a notice of address change with 
the Court before Defendants filed their Motion stating that he is presently at FMC Butner.  

(See Dkt. 13.)                                                            
   There is no direct request for declaratory or injunctive relief in the Complaint, 
only an assertion in the Addendum that McIntosh is suing Defendants in their official and 
individual capacities.  (Dkt. 6.)  A suit against a federal officer in his official capacity is 
treated as a suit against the United States.  See Buford v. Runyon, 

 

(8th Cir. 1998).  At least some courts have found that while official capacities claims are 
not cognizable under Bivens, they may extend to prospective relief, such as injunctive 
and declaratory relief, under the general federal question jurisdiction statute, 

  See Simmat v. U.S. Bureau of Prisons, 

 (10th Cir. 2005) 
(citation omitted); see also Mohammed S. v. Tritten, No. 20-CV-783 (NEB/ECW), 

, at *2 n.5 (D. Minn. May 27, 2020); but see Staszak v. United States, 

    The Court notes that McIntosh did not specify § 1331 in his pleadings except for 
the purposes of this Court’s jurisdiction over this matter, in which he declared that the 
Court had federal question jurisdiction over this case under the statute.  (Dkt. 1 at 4.) 
App’x 365, 366 (8th Cir.), cert. denied, 

 (2021) (“We also agree that the 
Bivens claims failed.  Sovereign immunity barred the Bivens claims against the United 

States, and against Gallardo in her official capacity.”); Fiorito v. Drummy, No. 22-CV-
0923, -0925, -0927 (PJS/TNL), 

, at *2 (D. Minn. June 16, 2023) 
(noting that “a litigant cannot seek injunctive relief under Bivens”); Hill v. Holinka, No. 
06-CV-4720 (PJS/JJG), 

, at *2 (D. Minn. Feb. 27, 2008) (“[A] litigant 
cannot seek injunctive relief under Bivens, because injunctive relief directing an agent of 
the federal government to act in a specific way in his or her capacity as a federal agent 

would amount to relief against the United States itself.”).               
   Regardless, the Court need not decide whether the Complaint and Addendum have 
adequality stated a claim for prospective relief against Defendants in their official 
capacities, as any such relief would be moot.  “Article III of the United States 
Constitution limits the jurisdiction of the federal courts to actual, ongoing cases and 

controversies.”  Ali v. Cangemi, 

 (8th Cir. 2005) (quoting Haden v. 
Pelofsky, 

, 469 (8th Cir. 2000)).  “Article III mootness divests the Court of 
subject matter jurisdiction.”  Ahmed v. Sessions, Case No. 16-cv-02124 (DSD/HB), 

, at *2 (D. Minn. July 11, 2017).  A court may consider matters outside the 
pleadings in a factual attack on subject matter jurisdiction when deciding whether a live 

controversy exists.  See Davis, 

.  The Eighth Circuit has held that 
“[p]laintiffs seeking prospective relief based on past actions must show ‘a real and 
immediate threat that they would again suffer similar injury in the future.’”  Mitchell v. 
Dakota Cty. Soc. Servs., 

 (8th Cir. 2020)) (quoting Mosby v. Ligon, 

 (8th Cir. 2005)) (cleaned up); see also Lambros v. United States, No. 19-
CV-1870 (MJD/ECW), 

, at *8 (D. Minn. July 20, 2020), R. & R. 

adopted, No. 19-CV-1870 MJD/ECW, 

 (D. Minn. Sept. 11, 2020), 
aff’d, 

 (8th Cir. 2021) (applying the same to a Bivens action).  
Declaratory relief is also a form of prospective relief.  See Los Angeles Cty., Cal. v. 
Humphries, 

, 31 (2010).                                        
   There is no dispute that McIntosh is no longer at FMC Rochester and thus no 
longer subject to the alleged illegal policies and conduct by Defendants.  As such, the 

Court finds that any request for declaratory relief or injunctive relief is moot4 and any 
such request for relief or judgment should be dismissed without prejudice.5  See Senty-
Haugen v. Goodno, 

 (8th Cir. 2006) (holding that a prisoner’s claims 
for injunctive and declaratory relief related to the conditions of his imprisonment while in 
isolation were moot after the prisoner’s period of isolation ended); see also Reichling v. 



4    The Court notes that none of the exceptions to the mootness doctrine apply here.  
See Ahmed, 

, at *2-3 (listing four exceptions to the mootness doctrine, 
including that (1) secondary or “collateral” injuries survive after resolution of the primary 
injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the 
defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any 
time; or (4) it is a properly certified class action suit.); see also Ireland v. Anderson, No. 
3:13-CV-3, 

, at *2 (D.N.D. July 5, 2016) (citation omitted).  

5    Because the Court recommends dismissal of this case based on a lack of subject 
matter jurisdiction, the Court recommends that the claim be dismissed without prejudice.  
See Jenkins v. Bowker, No. 19-cv-1051 (NEB/LIB), 

, at *2 (D. Minn. 
June 4, 2019), R. & R. adopted, 

 (D. Minn. July 8, 2019); see also 
Romero v. Pinnacle Equities, LLC, 

 (8th Cir. 2008) (citation 
omitted) (modifying dismissal for lack of subject matter jurisdiction to be without 
prejudice).                                                               
Best, No. 22-2366, 

, at *1 (8th Cir. Oct. 21, 2022) (“Because, as 
Reichling concedes in his pro se brief, his transfer to another prison during the pendency 

of his action mooted his request for injunctive relief, we lack jurisdiction.”); Scher v. 
Chief Postal Inspector, 

 (8th Cir. 1992) (per curium) (citations omitted) 
(holding that a former inmate’s request for declaratory and injunctive relief under Bivens 
with respect to the handling of mail was moot because the inmate was no longer in 
prison); Lambros, 

, at *8.                                 

B.   Bivens Claims                                                        
   “A Bivens claim is a cause of action brought directly under the United States 
Constitution against a federal official acting in his or her individual capacity for 
violations of constitutionally protected rights.”  Buford v. Runyon, 

, 1203 
n.6 (8th Cir. 1998) (emphasis added) (citing Bivens, 

). “‘Bivens established 
that the victims of a constitutional violation by a federal agent have a right to recover 

damages against the official in federal court despite the absence of any statute conferring 
such a right.’”  Hartman v. Moore, 

, 255 n.2 (2006) (quoting Carlson v. 
Green, 

 (1980)); see also Buford, 

 n.6 (citation omitted) 
(“A Bivens claim is a cause of action brought directly under the United States 
Constitution against a federal official acting in his or her individual capacity for 

violations of constitutionally protected rights.”).                       
   The Supreme Court has made it clear that expansion of Bivens is “a disfavored 
judicial activity and [has] gone so far as to observe that if the Court’s three Bivens cases 
had been decided today, it is doubtful that we would have reached the same result.  And 
for almost 40 years, we have consistently rebuffed requests to add to the claims allowed 
under Bivens.”  Hernandez v. Mesa, 

 (2020) (cleaned up); see also 

Egbert v. Boule, 

 (2022) (“In Bivens [], this Court authorized a 
damages action against federal officials for alleged violations of the Fourth Amendment.  
Over the past 42 years, however, we have declined 11 times to imply a similar cause of 
action for other alleged constitutional violations.”).                    
   The Supreme Court has previously recognized Bivens claims brought for excessive 
force in violation of the Fourth Amendment dealing with a warrantless search and illegal 

arrest, see Bivens, 

; workplace discrimination on the basis of sex in 
violation of the procedural due process of the Fifth Amendment, see Davis v. Passman, 

 (1979); and deliberate indifference to a serious medical need in violation of 
the prohibition against cruel and unusual punishment under the Eighth Amendment, see 
Carlson, 

.  See also Ahmed v. Weyker, 

 (8th Cir. 2020) 

(“On only three occasions has the Supreme Court recognized a cause of action under 
Bivens.”) (cleaned up).                                                   
   Given the presumption against extending the reach of Bivens, the Supreme Court 
and Eighth Circuit have adopted a two-part test with respect to whether an implied cause 
of action is available under Bivens:                                      

   First, we ask whether the case presents “a new Bivens context”—i.e., is it 
   “meaningful[ly]”  different  from  the three cases  in  which the  Court  has 
   implied a damages action. Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1859-
   1860.  Second,  if  a  claim  arises  in  a  new  context,  a  Bivens  remedy  is 
   unavailable 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.” Ziglar, 582 U. S., at ––––, 137 
   S.Ct., at 1858 (internal quotation marks omitted). If there is even a single 
   “reason to pause before applying Bivens in a new context,” a court may not 
   recognize a Bivens remedy.                                           

Egbert, 

 (citation omitted); see also Ahmed, 

 (citations 
omitted) (quoting Farah v. Weyker, 

 (8th Cir. 2019)) (citation omitted).  
The Supreme Court went on to further explain this analysis:               
   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.  For example, we have explained that 
   a new context arises when there are potential special factors that previous 
   Bivens cases did not consider.                                       

 (cleaned up).                                                         
   As to the first step, in looking at whether the present case “is different in a 
meaningful way,” the “relevant differences can include, among other things, ‘the sorts of 
actions being challenged, the mechanism of injury, and the kinds of proof those injuries 
would require.’”  Ahmed, 

 (quoting Farah, 925 F.3d at 500).  Even small 
differences can be “meaningful.”  Id. (citations omitted).                
   The Court finds that the actions and mechanism of injury alleged here are different 
than those recognized by the Supreme Court.  Multiple courts within this District have 
concluded that the Supreme Court has not recognized an implied cause of action for a 
violation of the First Amendment.  See, generally, Gregg v. Basile, No. 21-CV-2767 
(WMW/TNL), 

, at *2 (D. Minn. Jan. 11, 2023) (collecting cases), R. & 
R. adopted, 

 (D. Minn. Feb. 6, 2023).  Indeed, the Supreme Court has 
recently reiterated that “[w]e have never held that Bivens extends to First Amendment 
claims.”  Egbert, 598 U.S. at 498 (quoting Reichle v. Howards, 

 
(2012)); see also Debenedetto v. Ford, No. 24-CV-636 (JRT/DTS), 

, 
at *2 (D. Minn. Mar. 27, 2024) (“[T]he remedy made available by Bivens does not extend 

to claims of alleged retaliation in violation of a litigant’s First Amendment rights.”) 
(citation omitted), R. & R. adopted, 

 (D. Minn. Apr. 25, 2024). 
   The only Bivens action under the Fifth Amendment recognized by the Supreme 
Court was in Davis, supra.  In Davis, the Court held that the Fifth Amendment provided a 
damages remedy for a claim of gender discrimination, allowing the administrative 
assistant of a Congressman to sue her former employer after she was fired because she 

was a woman.  See 

.  The Davis Court noted that the Congressman’s 
recent electoral defeat meant that “equitable relief in the form of reinstatement would be 
unavailing,” and that the federal courts were well-equipped to evaluate Davis’s gender 
discrimination claim.  

.  However, with respect to the Due Process Clause, the 
Court considered an implied cause of action under the Fifth Amendment as the “Due 

Process Clause of the Fifth Amendment forbids the Federal Government to deny equal 
protection of the laws.”  

.  Here, not only is McIntosh not asserting gender 
discrimination, but his claims with respect to due process do not involve equal protection.  
Given that the Supreme Court has not recognized a Bivens action dealing with a prisoner 
on procedural or substantive due process grounds, McIntosh’s claims would require 

extending Bivens to a new context.  See Brown v. Cooper, No. CV 18-219 (DSD/BRT), 

, at *12 (D. Minn. Dec. 11, 2018) (“In Davis, the Supreme Court 
recognized a Bivens remedy for a Fifth Amendment equal protection claim, but that case 
involved discrimination in an employment setting, not a correctional setting.  While the 
claims may have some parallels, ‘even a modest extension is still an extension.’”) 
(quoting Ziglar v. Abbasi, 

 (2017)), R. & R. adopted, 

 

(D. Minn. Jan. 7, 2019), aff’d in relevant part as modified, 

 (8th Cir. 
2019).                                                                    
   The only Bivens action under the Fourth Amendment recognized by the Supreme 
Court was an excessive force claim against FBI agents for handcuffing a man in his own 
home without a warrant under the Fourth Amendment.  See Bivens, 

.  
Handcuffing a convicted federal inmate while incarcerated during transport within the 

prison is on its face distinguishable from the warrantless seizure of an individual in his 
own home.  See Bruno v. United States, No. 3:18CV1390-MCR-HTC, 

, at *3 (N.D. Fla. May 30, 2019) (“Defendant Boston correctly notes, the Fourth 
Amendment violation in Bivens arose out of FBI agents handcuffing a man in his own 
home without a warrant, an event completely distinguishable from correctional officers 

detaining, searching, and seizing a convicted federal inmate.”) (cleaned up), R. & R. 
adopted, 

 (N.D. Fla. June 28, 2019).                       
   The Court acknowledges that the Supreme Court has recognized a claim against 
prison officials for failure to treat an inmate’s asthma under the Eighth Amendment.  See 
Carlson v. Green, 

 (1980).  To survive a Rule 12(b)(6) motion to dismiss 

a medical deliberate indifference claim under the Eighth Amendment, McIntosh must 
allege facts that show: “(1) he suffered from objectively serious medical needs, and 
(2) the defendants actually knew of, but deliberately disregarded, those needs.”  Mead v. 
Palmer, 

 (8th Cir. 2015) (citation omitted).  However, there are no facts 
alleged in the Complaint that McIntosh suffered from any serious medical needs or how 
any of the Defendants knew of, but deliberately disregarded, those needs.  As such, the 

Complaint fails to plausibly allege any failure-to-treat claim under Bivens and it should 
be dismissed.  To the extent that McIntosh is asserting an excessive force claim under the 
Eighth Amendment, Courts have held that excessive force claims arising from the Eighth 
Amendment present new Bivens contexts.  See Clutts v. Lester, 

, 707 
(N.D. Iowa 2023) (“Courts have consistently found that excessive force cases arising 
under either the Fifth or Eighth Amendment to present new Bivens contexts.”) (marks and 

citation omitted); see also Oneil v. Rodriguez, Civ. A. No. 18-3287, 

, 
at *3-5 (E.D.N.Y. Sept. 30, 2020) (declining to extend Bivens to an Eighth Amendment 
excessive force claim).                                                   
   As to the second step, “[t]he focus is on whether there are any special factors that 
cause us to pause before acting without express congressional authorization.  It does not 

take much, because Congress is usually in the better position to weigh the costs and 
benefits of creating a new substantive legal liability.”  Ahmed, 

 (cleaned 
up); see also Egbert, 

.  Here, special factors counsel against extending 
Bivens to McIntosh’s First Amendment claims in the prison context; Fourth Amendment 
due process claims under the Fifth Amendment, and possible Eighth Amendment claims 

relating to his restraint and threats made against him.  First, Congress has already 
legislated extensively with respect to prisoners’ rights under the Prison Litigation Reform 
Act, and “legislative action suggesting that Congress does not want a damages remedy is 
itself a factor counseling hesitation.” Ziglar, 

; see also Brown, 

, at *12 (citation omitted) (“Prisoner civil rights litigation, moreover, is heavily 
regulated by Congress, counseling hesitation in the expansion of remedies available to 

prisoners.”).                                                             
   These factors also include whether a Bivens claim would interfere with the 
functioning of the executive branch and whether other remedies exist to deal with the 
injures alleged by McIntosh.  Ahmed, 

; see also Ziglar, 

 (“[A]n alternative remedial structure . . . alone may limit the power of the Judiciary 
to infer a new Bivens cause of action.”).  Courts in this district have concluded that if 

Bivens claims were permitted to be extended in the context of the BOP’s actions, then 
“BOP officials faced with the expanded possibility of personal liability may act 
differently . . . when dealing with [individuals] in BOP custody.”  Biron v. Sawyer, No. 
19-CV-2938 (SRN/LIB), 

, at *15 (D. Minn. Aug. 21, 2020) (citation 
omitted), R. & R. adopted sub nom., 

 (D. Minn. Sept. 30, 2020).   

   Further cautioning against an extension of Bivens to the claims in the Complaint is 
the fact that other remedies exist to deal with the harms alleged by McIntosh.6  As set 
forth above, the Supreme Court commands consideration of whether alternative remedies 
are available.  See Egbert, 

. .  Inmates whose First Amendment, due 
process interests, and rights against excessive force are harmed in federal prison may 

seek relief under the BOP Administrative Remedy Program.  See 

-
542.19.  Indeed, “[t]he purpose of the [BOP] Administrative Remedy Program is to allow 

6    The Court also notes that this is not a case where McIntosh alleges he suffered a 
physical injury as the result of Defendants’ actions.                     
an inmate to seek formal review of an issue relating to any aspect of his/her own 
confinement.”  See 

(a); see also Corr. Servs. Corp. v. Malesko, 

 (2001) (“Inmates in respondent’s position also have full access to remedial 
mechanisms established by the BOP, including suits in federal court for injunctive 
relief—long recognized as the proper means for preventing entities from acting 
unconstitutionally—and grievances filed through the BOP’s Administrative Remedy 
Program.”).  The availability of such remedies is a “convincing reason for the Judicial 
Branch to refrain from providing a new and freestanding remedy in damages.”  Hardy v. 

Bureau of Prisons, No. CV 18-794 (DSD/BRT), 

, at *3 (D. Minn. June 
10, 2019) (quoting Wilkie v. Robbins, 

 (2007)), R. & R. adopted, 

 (D. Minn. July 15, 2019).                                      
   Moreover, McIntosh admits in his Complaint that he properly used the prison 
grievance process.  (See Dkt. 1-1.)  In other words, McIntosh availed himself of the BOP 

Administrative Remedy Program under 

.  The fact that 
McIntosh’s administrative remedies were not successful does not mean that such a 
process does not exist as an alternative remedy.  See Malesko, 

 (noting that 
“[s]o long as the Plaintiff had an avenue for some redress, bedrock principles of 
separation of powers foreclosed judicial imposition of a new substantive liability”).  The 

Court finds that alternative remedies in the form of the grievance process and the ability 
to seek injunctive relief counsels against expanding Bivens to McIntosh’s claims.  See 
Hardy, 

, at *3 (First Amendment claim); see also Dockery v. Baltazar, 
No. 4:20-CV-01676, 

, at *3 (M.D. Pa. May 19, 2021) (“I join other 
courts that considered the issue in concluding the BOP’s Administrative Remedy 
Program provides an alternative process.  Significantly, the fact that Dockery was 

unsuccessful in utilizing the administrative process does not mean that such a process 
does not exist as an alternative remedy.”).                               
                            * * *                                       
   For all of the reasons stated above, the Court finds that Bivens should not be 
extended to McIntosh’s First Amendment claims, Fourth Amendment claims, due process 
claims under the Fifth Amendment, and possible Eighth Amendment (related to excessive 

force) claims against Defendants, and that these claims against Defendants in their 
individual capacities should be dismissed with prejudice.                 
C.   Respondeat Superior                                                  
   Defendants argue that the Bivens claims against Warden Rardin should be 
dismissed, as the Complaint does not allege that Warden Rardin took specific action 

against McIntosh.  (Dkt. 19 at 11.)                                       
   “Because vicarious liability is inapplicable to Bivens . . . suits, a Plaintiff must 
plead that each Government-official defendant, through the official’s own individual 
action, has violated the Constitution.”  Iqbal, 

; Webb v. Hedrick, 

 (8th Cir. 2010) (“Bivens liability cannot be established solely on a theory of 

respondeat superior.”); Buford, 

 n.7 (citing Estate of Rosenberg v. 
Crandell, 

 (8th Cir. 1995)).                                
   Here, the only allegations with respect to Warden Radin are that he was not 
necessarily around when the actions against McIntosh occurred, he set the tone of ethics 
for the prison, he has ordered restraints be placed on other inmates, and that he is 
ultimately responsible for creating a hostile environment at FMC Rochester.  (Dkt. 1 at 9-

10 ¶ 18.)                                                                 
   Given that McIntosh has not alleged that Warden Rardin took specific action 
towards him, the Court finds that his Bivens claims based on a theory of respondeat 
superior should be dismissed, on this additional basis, with prejudice.   
D.   ADA Claims                                                           
   McIntosh’s ADA claims fail to state a claim for relief.  The ADA defines public 

entitles covered by the ADA as any state or local government entity.  See 

(1)(A)-(B) (defining public entities covered by the ADA).  Under the plain 
language of the statute, the Federal Government is not a covered public entity and there is 
no explicit waiver of sovereign immunity contained in the statue.  Therefore, relief 
against federal BOP employees under the ADA is unavailable to McIntosh in this 

context.  See County of St. Louis v. Thomas, 

 (D. Minn. 1997) 
(citing 

(1)(A)-(B)) (“[T]he ADA does not provide a cause of action 
against the federal government”); see also Jackson v. Fed. Bureau of Prisons, No. CIV. 
06-1347 MJD/RLE, 

, at *19 (D. Minn. Mar. 16, 2007) (same).   
   As such, McIntosh’s ADA claims against Defendants should be dismissed with 

prejudice.                                                                
E.   Rehabilitation Act Claims                                            
   The Rehabilitation Act, 

(a), provides in relevant part that “[n]o 
otherwise qualified individual with a disability . . . shall, solely by reason of her or his 
disability, be excluded from the participation in, be denied the benefits of, or be subjected 
to discrimination under any program or activity receiving Federal financial assistance.”  

The elements of a claim under Rehabilitation Act include that: (1) the claimant is a 
qualified individual with a disability; (2) the individual was denied the benefits of a 
program or activity of a public entity which receives federal funds; and (3) he was 
discriminated against based on his disability.  See Wojewski v. Rapid City Reg'l Hosp., 
Inc., 

 (8th Cir. 2006) (citation omitted).               
   McIntosh’s claim fails to state a claim for relief as he has not alleged pursuant to 

Rule 8’s notice requirements any facts supporting that he is a qualified individual with a 
disability or how he was denied access to a program receiving federal funds based on his 
disability.  Therefore, the claim should be dismissed without prejudice for failure to state 
a claim for relief.                                                       
F.   HIPAA Claims                                                         

   As best as this Court can discern, McIntosh asserts a claim for relief under the 
HIPAA on the basis that Dr. Hart violated McIntosh’s confidentiality by giving his 
diagnosis to law enforcement without his consent.  (Dkt. 1 at 9 ¶ 16.)  Even assuming that 
this is true, “HIPAA does not create a private right of action.”  Dodd v. Jones, 

 (8th Cir. 2010) (citing cases); see also Nahal v. Allina Health Sys., No. 18-cv-

631 (DWF/KMM), 

, at *5-6 (D. Minn. Oct. 4, 2018) (“HIPAA does 
not create a private right of action for any violations of the Act . . . .”) (citing Mason v. 
Minn. Dep’t of Human Servs., No. 16-cv-2340 (JRT/LIB)), 

, at *4 (D. 
Minn. Apr. 3, 2017)), R. & R. adopted, 

 (D. Minn. Dec. 21, 2018).  As 
a result, whatever HIPAA claims McIntosh means to assert, he cannot pursue them 
through a private lawsuit.  The Court thus recommends dismissing McIntosh’s HIPAA 

claims with prejudice.                                                    
                   V.   RECOMMENDATION                                  
   Based on the above, and on the files, records, and proceedings herein, IT IS 
RECOMMENDED that:                                                         
   1.   Defendants’ Motion to Dismiss (Dkt. 18) be GRANTED;             
   2.   The Complaint be dismissed WITHOUT PREJUDICE as to Plaintiff’s  

requests for declaratory relief and injunctive relief against Defendants in their official 
capacities;                                                               
   3.   This Action be dismissed WITH PREJUDICE as to the claims under  
Bivens for monetary relief against Defendants in their individual capacities with respect 
to Plaintiff’s allegations of First Amendment, Fourth Amendment, Fifth Amendment, and 

possible Eighth Amendment (related to excessive force) violations, as well as all 
respondeat superior claims against Defendant Warden Jared Rardin;         
   4.   Plaintiff’s claim under Bivens for deliberate indifference to a serious 
medical need under the Eighth Amendment, and claim under the Rehabilitation Act be 
dismissed WITHOUT PREJUDICE; and                                          

   5.   This Action be dismissed WITH PREJUDICE as to Plaintiff’s claims 
under the Americans with Disability Act and the Health Insurance Portability and 
Accountability Act.                                                       
DATED: August 29, 2024             s/ Elizabeth Cowan Wright              
                                 ELIZABETH COWAN WRIGHT                 
                                 United States Magistrate Judge         

                           NOTICE                                       
This Report and Recommendation is not an order or judgment of the District Court and is 
therefore not appealable directly to the Eighth Circuit Court of Appeals. 

Under District of Minnesota Local Rule 72.2(b)(1), “a party may file and serve specific 
written objections to a magistrate judge’s proposed finding and recommendations within 
14 days after being served a copy” of the Report and Recommendation.  A party may 
respond to those objections within 14 days after being served a copy of the objections. D. 
Minn. LR 72.2(b)(2).  All objections and responses must comply with the word or line 
limits set for in D. Minn. LR 72.2(c).