3. Analysis
A. Bivens: Constitutional Rights and the Availability of Damages
The three recognized settings
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), recognized an implied damages action against federal agents for an alleged Fourth Amendment violation involving entry into a home, restraint, and threats. The opinion identifies only two subsequent Supreme Court decisions recognizing additional constitutional damages actions:
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Davis v. Passman, 442 U.S. 228 (1979), involving a congressional employee’s Fifth Amendment sex-discrimination claim.
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Carlson v. Green, 446 U.S. 14 (1980), involving a federal prisoner’s Eighth Amendment claim arising from gravely deficient medical treatment.
That history matters because the modern inquiry does not simply ask whether officials allegedly violated a constitutional right. It separately asks whether courts may recognize a damages action for that particular setting.
Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001), and Egbert v. Boule, 596 U.S. 482 (2022), support the proposition that Bivens liability concerns federal officers in their individual capacities. The remedy imposes personal liability; it is not an action against the federal agency itself.
The modern framework
Drawing principally on Egbert v. Boule and Ziglar v. Abbasi, 582 U.S. 120 (2017), the court applied a two-stage inquiry:
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New context: Is the claim meaningfully different from one of the three settings in which the Supreme Court has recognized an implied damages remedy?
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Special factors: If so, is there a reason to conclude that Congress, rather than the judiciary, should decide whether damages liability should exist?
The second inquiry reflects separation-of-powers concerns. Courts must consider institutional authority to create remedies, not merely whether a remedy would appear fair or useful in an individual case.
Hernandez v. Mesa, 589 U.S. 93 (2020), establishes that invoking the same constitutional provision as an earlier successful Bivens plaintiff does not establish the same context. Similarly, Ziglar v. Abbasi cautions that even substantial factual parallels can leave a case outside the previously recognized settings. Those decisions defeated the proposition that an Eighth Amendment medical-care label, standing alone, brought Mostafa’s claim within Carlson v. Green.
Why Rowland controlled the comparison with Carlson
The decisive circuit precedent was Rowland v. Matevousian, 121 F.4th 1237 (10th Cir. 2024). That decision held that a prisoner’s medical-indifference allegations presented a new context despite their reliance on the same constitutional protection recognized in Carlson v. Green.
The court emphasized the specific allegations in Carlson v. Green: officials allegedly kept the prisoner in a grossly inadequate facility contrary to medical advice, delayed competent treatment during an asthma attack, administered contraindicated drugs, and attempted to use a respirator known to be inoperative. The prisoner died.
By contrast, the hernia-treatment allegations in Rowland v. Matevousian did not involve those forms of interference with medical recommendations or affirmative medical mistreatment. The differences were sufficiently substantial to require an extension of Bivens.
Applying that reasoning, the court characterized Mostafa’s allegations as involving inadequate, delayed, or infrequent treatment rather than the combination of medical defiance and harmful intervention present in Carlson v. Green. Although the district court had described the allegations as concerning “health maintenance,” the appellate court expressly acknowledged that the conditions were “serious and concerning.”
That acknowledgment is important. The court’s conclusion was not that dental loss, unsuitable prosthetics, or prolonged untreated infections are necessarily minor. It was that the allegations differed meaningfully from the previously recognized damages context.
There is nevertheless a significant analytical tension: Mostafa alleged deterioration and injury resulting from inadequate assistance, while the court distinguished his case from treatment that affirmatively worsened the prisoner’s condition in Carlson v. Green. The opinion therefore makes the nature of the alleged medical conduct—not simply the existence of serious injury—central to the comparison.
The decision does not announce a categorical requirement that a prisoner die before invoking Carlson v. Green. Death was one feature of the earlier case’s overall factual setting, alongside medical orders, contraindicated medication, and defective equipment.
The court also cited Spivey v. Breckon, 173 F.4th 174 (4th Cir. 2026), as persuasive support. That case treated claims involving delayed dental treatment, rectal bleeding, and denial of a psychology class as materially different from the medical conduct alleged in Carlson v. Green. It reinforced the distinction between sharing a general category of constitutional injury and sharing an established Bivens context.
The independently sufficient alternative-remedy ground
Even after finding a new context, the court supplied a separate reason to reject the damages action: the BOP’s Administrative Remedy Program (“ARP”).
In Silva v. United States, 45 F.4th 1134 (10th Cir. 2022), the circuit held that the ARP provides a means of bringing allegedly unconstitutional conduct to the BOP’s attention and preventing recurrence. Under the reasoning of Egbert v. Boule, an alternative remedial structure can itself justify declining to create a new damages action.
Rowland v. Matevousian applied that principle to medical-care allegations. Together, those decisions foreclosed Mostafa’s effort to obtain a new damages remedy.
This reasoning does not require the administrative process to provide the same compensation a successful damages suit would offer. The question is whether an existing remedial structure supplies a reason for judicial restraint. Nor did the court make a detailed finding that the grievance program had actually resolved Mostafa’s medical problems.
Finally, Goldey v. Fields, 606 U.S. 942 (2025), entered the analysis through Mostafa’s concession that it foreclosed his excessive-force claim. The court therefore focused on medical indifference. To the extent the excessive-force count also alleged delayed medical assistance, the court considered those allegations within the medical-care analysis.
B. APA Review Requires More Than Repackaging Constitutional Allegations
The limited issues properly before the court
Mostafa argued that six constitutional claims should have been considered under the APA. The court confined the operative dispute to medical-care Claim 8 and APA Claim 10.
His other constitutional claims had either not been meaningfully challenged on appeal or had failed on grounds that an APA characterization would not cure. Three precedents explained why changing the asserted legal vehicle would not remove those defects:
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Adams v. Fed. Aviation Admin., 168 F.4th 1271 (10th Cir. 2026), supplied the proposition that exhaustion is generally required for APA claims.
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Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868 (10th Cir. 2019), established that an APA claim based on the same allegations as moot constitutional claims can likewise be moot.
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Robertson v. United States, 145 F.3d 1346 (10th Cir. 1998), an unpublished table decision, illustrated that a constitutionally based APA claim fails when the allegations do not establish the asserted constitutional violation.
These authorities prevented the APA argument from functioning as a universal answer to exhaustion, mootness, or insufficient constitutional allegations.
Identifying a final agency action
APA § 704 authorizes review of final agency action for which there is no other adequate judicial remedy. The opinion relied on Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799 (2024), and Citizens for Const. Integrity v. United States, 70 F.4th 1289 (10th Cir. 2023), to establish the need for finality in the APA claim presented.
Darby v. Cisneros, 509 U.S. 137 (1993), describes finality in terms of a definitive agency position causing concrete injury. The governing two-part formulation came from Bennett v. Spear, 520 U.S. 154 (1997):
- The action must mark the consummation of the agency’s decisionmaking process, rather than a tentative or intermediate step.
- It must determine rights or obligations, or produce legal consequences.
Custodia Bank, Inc. v. Fed. Rsrv. Bd. of Governors, 157 F.4th 1235 (10th Cir. 2025), reinforced that framework. Colo. Farm Bureau Fed'n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000), placed the burden on the plaintiff to identify specific federal conduct and explain why it qualifies as final agency action.
Mostafa’s allegations that requests and letters went unanswered did not, as pleaded, identify the completion of an agency decisionmaking process. Describing a continuing medical problem and identifying a reviewable agency decision are different pleading tasks.
The opinion should not be read as a comprehensive ruling that every failure to respond is immune from APA review. Its holding concerned the allegations actually presented: they did not identify the final agency action necessary for the theory Mostafa advanced.
The mismatch between personal liability and APA relief
Claim 8 expressly sued specified officials “in their individual capacities.” That formulation sought to hold them personally liable. The APA did not supply that remedy.
Section 702 waives sovereign immunity for qualifying actions seeking relief other than money damages involving agency conduct or official action. It does not create a substitute route to personal damages liability merely because the defendant works for the federal government.
The court used several precedents to explain the distinction:
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Hanson v. Wyatt, 552 F.3d 1148 (10th Cir. 2008), held that an official acting in a state capacity was not a federal agency subject to APA suit. The opinion used that reasoning by analogy; the earlier case was not itself an identical individual-capacity prison suit.
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Stafford v. Briggs, 444 U.S. 527 (1980), distinguished personal-capacity litigation from actions essentially against the United States.
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Pahls v. Thomas, 718 F.3d 1210 (10th Cir. 2013), identified Bivens and § 1983 as vehicles for imposing personal liability on government officials.
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Elkins v. Elenz, 516 F. App'x 825 (11th Cir. 2013), an unpublished decision, provided additional support where a plaintiff neither named an agency nor identified harmful agency action.
The resulting holding is claim-specific. The court did not establish that naming an agency itself is always indispensable; it expressly recognized official-capacity defendants as another relevant route. Claim 8, however, named neither an agency nor an official-capacity defendant.
Why requesting an injunction was insufficient
Mostafa’s general prayer for injunctive relief did not cure either defect. It did not identify final agency action, and it did not tell defendants which constitutional claims supposedly proceeded under the APA.
Moreover, other statutes pleaded in the complaint also supported requests for injunctions. The opinion cited Alexander v. Sandoval, 532 U.S. 275 (2001), in connection with Rehabilitation Act relief, and Ajaj v. Fed. Bureau of Prisons, 25 F.4th 805 (10th Cir. 2022), concerning RFRA. Accordingly, an injunction request did not uniquely signal an APA theory. Rule 8(a)(2)’s fair-notice function still required an intelligible connection between the asserted claim, challenged conduct, and requested remedy.
Why Claim 10 did not absorb every other count
Claim 10 specifically alleged that placement at ADX was arbitrary, capricious, unlawful, and contrary to constitutional rights. Its recitation of § 706 review standards focused on that placement decision.
The court agreed with the district court that general incorporation of “all” other claims did not identify additional final agency actions. Incorporation can bring factual allegations into a count, but it does not automatically establish every legal element of a distinct theory.
Consequently, Claim 10 remained a challenge to ADX placement, which the district court had held barred by the six-year limitations period in 28 U.S.C. § 2401(a). The appellate analysis concerned the count’s scope, not a developed reconsideration of when that placement challenge accrued.
The opinion also noted a citation error: Mostafa relied on Thomas v. United States at a reporter location identifying Frey v. Town of Jackson. Neither supplied substantive support for his proposed APA reconstruction.
C. Leave to Amend: Liberal Amendment Does Not Eliminate Notice Requirements
Rule 15(a)(2) directs courts to give leave to amend freely when justice requires. But Mostafa did not submit a motion explaining the proposed amendment. He included only a sentence in his reconsideration reply suggesting that granting leave could remedy the court’s supposed misreading of the complaint.
Calderon v. Kan. Dep't of Soc. & Rehab. Servs., 181 F.3d 1180 (10th Cir. 1999), was directly controlling. It requires adequate notice to the court and opposing party of the proposed amendment’s basis. An isolated sentence without supporting grounds does not necessarily constitute a motion requiring adjudication.
Lichfield v. Kubler, 183 F.4th 1258 (10th Cir. 2026), and Glenn v. First Nat'l Bank in Grand Junction, 868 F.2d 368 (10th Cir. 1989), reinforced the conclusion that a district court does not abuse its discretion by failing to address amendment when no adequate request has been presented.
The holding is not an absolute requirement that every amendment request take one particular form. Its emphasis is adequate presentation and notice. Nor did the court determine that a specifically proposed amendment would necessarily have been futile; it held that the request before it was procedurally insufficient.
D. Transcript Charges: Preservation, Not a Decision on Permissible Rates
A district-court administrative order, issued under 28 U.S.C. § 753(f), established a maximum transcript rate of $1 per page. After defendants deposed Mostafa’s expert, a private reporting service charged Mostafa $3.35 per page for a copy, plus administrative fees.
Mostafa asked the district court to apply the administrative order to privately retained deposition reporters. The magistrate judge rejected that interpretation, reasoning that the order governed official court reporters rather than private deposition services. Mostafa did not object.
Morales-Fernandez v. Immigr. & Naturalization Serv., 418 F.3d 1116 (10th Cir. 2005), supplied the firm-waiver rule: failure to object timely to a magistrate judge’s ruling ordinarily forfeits appellate review of factual and legal issues. The identified exceptions concern an uninformed self-represented litigant or circumstances in which the interests of justice require review.
Mostafa had counsel. Under Key Energy Res., Inc. v. Merrill (In re Key Energy, Inc.), 230 F.3d 1197 (10th Cir. 2000), the interests-of-justice exception in counseled cases is narrow and reserved for rare circumstances. The court found none.
Tilton v. Cap. Cities/ABC, Inc., 115 F.3d 1471 (10th Cir. 1997), provided an analogous application: a challenge to deposition-related costs was waived because it had not been raised before the district court.
Accordingly, the Tenth Circuit did not decide whether the private reporter’s charges were reasonable or whether the administrative order legally governed such charges. The affirmance should not be treated as appellate approval of either proposition.
E. Other Precedents Framing the Court’s Review
Several additional authorities defined the procedural lens or explained portions of the underlying disposition:
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Waller v. City & County of Denver, 932 F.3d 1277 (10th Cir. 2019), required acceptance of well-pleaded allegations as true when reviewing dismissal for failure to state a claim.
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Henderson v. Glanz, 813 F.3d 938 (10th Cir. 2015), required viewing the summary-judgment record favorably to the nonmoving party. The distinction matters because allegations and evidentiary findings are not interchangeable.
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Cuervo v. Sorenson, 112 F.4th 1307 (10th Cir. 2024), and Cillo v. City of Greenwood Village, 739 F.3d 451 (10th Cir. 2013), supported de novo review of dismissal and summary judgment.
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Castanon v. Cathey, 976 F.3d 1136 (10th Cir. 2020), supplied abuse-of-discretion review for amendment issues.
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In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144 (10th Cir. 2009), supplied that same deferential standard for cost awards, although waiver prevented merits review here.
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Tenison v. Byrd, 826 F. App'x 682 (10th Cir. 2020), an unpublished decision, appeared in the account of the district court’s equal-protection ruling. It supported requiring allegations that similarly situated persons received different treatment. It did not drive the principal appellate holdings.