Waylen Block v. United States Government
CourtCourt of Appeals for the Eighth Circuit
Date FiledNovember 4, 2026
Docket25-3371
StatusUnpublished
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Full Opinion
United States Court of Appeals
For the Eighth Circuit
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No. 25-3371
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Waylen Sherman Block
lllllllllllllllllllllPlaintiff - Appellant
v.
United States Government, et al.
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 30, 2026
Filed: November 4, 2026
[Unpublished]
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Before STRAS, KOBES, and JUSTIN D. SMITH, Circuit Judges.
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PER CURIAM.
Waylen Block appeals the district court’s1 orders dismissing his pro se action
raising Eighth Amendment claims under Bivens v. Six Unknown Named Agents of
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable John F.
Docherty, United States Magistrate Judge for the District of Minnesota.
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and tort claims under the Federal Tort
Claims Act (FTCA). Upon de novo review, we affirm. See Montin v. Moore, 846
F.3d 289, 292 (8th Cir. 2017) (standard of review).
We agree with the district court that Block’s Eighth Amendment claims were
not cognizable under Bivens, particularly because his deliberate indifference claim
alleged a different mechanism of injury than that in Carlson v. Green, 446 U.S. 14
(1980), and thus presented a new context, with multiple factors--including the
availability of an alternative remedy--counseling hesitation in extending the Bivens
remedy. See Goldey v. Fields, 606 U.S. 942, 944 (2025) (per curiam) (no Bivens
remedy for Eighth Amendment excessive force violations); Ziglar v. Abbasi, 582 U.S.
120, 141-49 (2017) (factors including existence of alternative remedy counseled
against extending Bivens); Farah v. Weyker, 926 F.3d 492, 498-99 (8th Cir. 2019) (to
determine whether Bivens claim exists, court must determine whether it requires
extending Bivens to new context and, if so, whether special factors counsel hesitation
before implying new cause of action; new context existed when same constitutional
right was at issue but officer’s conduct and mechanism of injury differed).
We also agree that the district court lacked subject matter jurisdiction over
Block’s FTCA claims under the discretionary function exception. See 28 U.S.C.
§ 2680(a) (discretionary function exception). The captain’s decision to use black box
restraints during Block’s escorted trips was discretionary, as the pertinent regulation
and Bureau of Prisons policy permitted the use of heightened restraints at officers’
discretion, and the decision was based on or susceptible to policy considerations. See
Herden v. United States, 726 F.3d 1042, 1046-47 (8th Cir. 2013) (en banc)
(discretionary function exception requires considering whether challenged conduct
involved element of choice instead of being controlled by mandatory statutes or
regulations, and whether that choice was based on or susceptible to policy
considerations); Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 796 (8th Cir. 1998)
(prison officials supervise inmates based upon multiple factors, which are inherently
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grounded in policy considerations); 28 C.F.R. § 570.44 (restraints may be applied to
inmate on escorted trip after considering purpose of trip and degree of supervision
required). Accordingly, we agree that the district court lacked jurisdiction over the
FTCA claims, and modify the dismissal of these claims to be without prejudice. See
Hart v. United States, 630 F.3d 1085, 1091 (8th Cir. 2011).
The judgment is affirmed as modified. See 8th Cir. R. 47B. We deny Block’s
pending motion.
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