ALD-023 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1954 ___________

MARK GOLDBERG, Appellant

v.

DAVID E. ORTIZ, Warden; CARYN FLOWERS, Executive Assistant; JAMES REISER, Case Manager; MR. N. MULLINS, Case Manager; MS. M. FISCHER, Correctional Counselor; MS. CENTANO, Correctional Counselor; MR. T. VOGT, Camp Secretary; JORDAN HOLLINGSWORTH ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1:17-cv-06024) District Judge: Honorable Karen M. Williams ____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 November 9, 2023 Before: HARDIMAN, MONTGOMERY-REEVES, and NYGAARD, Circuit Judges

(Opinion filed: November 21, 2023) _________

OPINION* _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

In his counseled, amended complaint, Mark Goldberg explained that while he was

a federal prisoner at FCI Fort Dix, the organization that had foster custody of his son

sought to terminate his parental rights. He alleged that the defendants, prison officials

and employees, interfered with his (but not his counsel’s) ability to telephonically attend

hearings and conferences in the proceedings, which resulted in the loss of his parental

rights. He sued the defendants under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics,

(1971), asserting that they had denied him access to

the courts under the First Amendment and had violated his right to due process under the

Fifth Amendment. He also claimed that the defendants had engaged in a conspiracy to

deprive him of those constitutional rights. On the defendants’ motion, the District Court

dismissed the amended complaint. Goldberg appeals.1

We have jurisdiction under

. Our review is plenary. See

Chavarriaga v. N.J. Dep’t of Corr.,

(3d Cir. 2015). Upon review, we

will affirm because no substantial question is presented on appeal. See 3d Cir. L.A.R.

27.4; 3d Cir. I.O.P. 10.6.

As the District Court concluded, a Bivens remedy is not available for the wrongs

that Goldberg alleged. As the Supreme Court recently explained, the scope of Bivens is

1 We previously denied his motion for appointment of counsel. See Order entered Oct. 11, 2023. 2 narrow. See Egbert v. Boule,

(2022) (listing (1) the violation of an

arrestee’s Fourth Amendment right to be free from unreasonable searches and seizures,

see Bivens,

; (2) the violation of due process under the Fifth Amendment

based on sex discrimination, see Davis v. Passman,

(1979); and (3)

a prison official’s failure to provide adequate medical care in violation of the Eighth

Amendment, see Carlson v. Green,

(1980)).

Because “[t]he Supreme Court has never recognized a Bivens remedy under the

First Amendment,” Goldberg’s access-to-the-courts claim is “novel.” See Bistrian v.

Levi,

(3d Cir. 2018) (explaining also that earlier precedent expanding

the Bivens remedy, including to a claim related to the denial of the right of access to the

courts, can no longer guide the Court after the Supreme Court instructed that expanding

Bivens beyond the recognized categories is disfavored, see Ziglar v. Abbasi,

(2017)). Similarly, his Fifth Amendment claim is a different type of due

process claim than the Fifth Amendment sex discrimination claim that the Supreme Court

has recognized, so it, too, is a “new context” for a Bivens action. See Bistrian,

; see also Egbert,

.

When a claim is “meaningfully different” from the recognized categories of cases,

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.” Egbert,

(cleaned up) (citation

3 omitted) (explaining further that a court may not recognize a Bivens remedy if there is

even a “single reason to pause” and suggesting that Congress will be better equipped to

do the weighing “in most every case”). In both new contexts that Goldberg proposes,

Congress seems better suited to weighing concerns regarding, inter alia, the “substantial

costs” related to the potential imposition of liability on federal prison officials and

employees, the “administrative costs” relating to the related discovery and trials

processes, and the “impact on governmental operations systemwide” of prisons. Ziglar,

; see also Egbert,

(stating that “a special factor

that forecloses relief” on its own is the fact that a court “likely cannot predict the

‘systemwide’ consequences of recognizing a cause of actions under Bivens”); Mack v.

Yost,

(3d Cir. 2020) (discussing how the availability of an

administrative remedy through the Bureau of Prisons is a factor that can counsel

hesitation in allowing a new Bivens context). For these reasons, the District Court

correctly concluded that Goldberg’s First and Fifth Amendment claims could not

proceed. And his related conspiracy claim fell with them. See Black v. Montgomery

County,

, 372 n.14 (3d Cir. 2016) (“Because the District Court reasoned that

[the appellant] could not succeed on her underlying Fourth Amendment malicious

prosecution or Fourteenth Amendment due process claims, it correctly determined that

she could not succeed on her conspiracy claims.”).

For these reasons, the District Court properly dismissed Goldberg’s complaint, and

4 we will affirm the District Court’s judgment.

5