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Suing Prison & Jail Officials for Violations of the Constitution Under Bivens and Ziglar v. Abbasi

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Suing Prison & Jail Officials for Violations of the Constitution Under Bivens and Ziglar v. Abbasi

When a State officer violates someone’s constitutional rights, 42 USC § 1983 allows suit for money damages. But no such law allows claims against federal officials. Instead, since Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court has implied a private cause of action for damages against federal officers for some types of Constitutional violations. In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court substantially narrowed this doctrine, limiting the rights of people in prison or federal detention centers to sue for money damages when they have been beaten, placed in dangerous conditions of confinement, discriminated against or otherwise mistreated. This course will survey the current state of prison Bivens claims.


Rachel Meeropol
Senior Staff Attorney and the Associate Director of Legal Training and Education
Center for Constitutional Rights (“CCR”)


Rachel Meeropol - Hello, my name is Rachel Meeropol, and I'm a senior staff attorney at the Center for Constitutional Rights. I will be speaking with you today about limitations and opportunities for people in Federal jail or prison, to sue officials from money damages for violations of their constitutional rights.
42 USC, Section 1983, allows for an individual to sue a state official for money damages, when that individual has violated the constitution. There's no statutory counterpart for people who are harmed by actions by federal officials, and yet there are thousands of people on any given day, held in bureau of prisons facilities, in federal immigration detention and in federal jails. These people face all the same problems as state prisoners. They may face abusive guards, inadequate health care, violence and restrictive conditions. So litigation is just as essential, a tool for these individuals. 
There are three main ways to address abuse in these federal contexts. The first is a claim for injunctive relief. Here there is very little difference between the usual injunctive cases brought on behalf of state prisoners and individuals who are in federal custody. If you are dealing with immigration detention however, you need to be aware that the Eighth Amendment does not apply to detainees. So conditions claims brought on behalf of immigration detainees or other federal detainees, will be brought under substantive due process. Based on the standard, the Supreme Court explained in Bell v. Wolfish in 1979, which is that detainees may not be punished, and courts may infer punishment from punitive or restrictive conditions that are not reasonably related to a legitimate goal if they are arbitrary or purposeless. 
The second main mechanism is a claim under the Federal Tort Claims Act or the FTCA. This is a Federal statute that waives US sovereign immunity for certain torts by law enforcement officers. It's extremely useful for incarcerated people, with the limitation that it can only be used to address torts, not necessarily constitutional violations. And it does not result in damages from the offending individual, but rather from the United States, which means that it may not deter continuing illegal action. 
Third is what's known as a Bivens action. And this is an area of the law that has changed significantly in the past 10 years, and it is where we will focus today. The Bivens doctrine started with the Bivens case itself, where the Supreme Court implied a private cause of action for damages under the Fourth Amendment, based on an unreasonable search and seizure. Two more Bivens cases followed. Davis v. Passman in 1979, allowed damage claims for gender discrimination under the fifth amendment, and most important for prison practitioners, Carlson v. Green in 1980, allowed the family of a deceased prisoner to seek damages from bureau of prisons officials, including the head of the bureau of prisons, for deliberate indifference to a serious medical need under the Eighth Amendment. 
During the '80s and the '90s, it seemed like the Bivens doctrine would expand to basically become a counterpart to section 1983 cases. Over the next few decades, almost no federal courts considered whether they were expanding Bivens, and whether such expansion was appropriate. When they allowed prisoner constitutional claims under the Eighth Amendment, the First Amendment, and the fifth amendment. Now one exception was prison cases involving private prisons. In Correctional Services Corporation v. Malesko in 2001, the Supreme Court declined to extend a Bivens remedy to a prisoner who was seeking damages from the corporation who was running a private prison. And in Minneci v. Pollard in 2012, the court denied a Biden's action to a prisoner who sought damages from an individual private prison employee. Now these two cases are frequently talked about as a narrowing of the Bivens doctrine. But it might not be fair to really consider these cases a narrowing, because in some ways, a ruling allowing either of the two claims to go forward could be seen as a major expansion of Bivens. From the first time it was created, Bivens was meant to provide a cause of action against an individual federal officer to disincentivize future constitutional violations. And as the court has repeated, it is not meant to change an entity's policy. Malesko allowing a claim against a private prison itself, could have been seen as a pretty big change. And Minneci, while maybe could be more easily seen as a narrowing, truly did not involve an individual federal officer the way other successful Bivens claims did. 
Now that said, the tide didn't really start to turn against Bivens cases until Ziglar v. Abbasi. Ziglar v. Abbasi started as Turkmen v. Ashcroft, and before I get into the details, I should share that Turkmen was the very first case I worked on after I graduated from law school in 2002, and I've been lead counsel on the case since 2004. So of course I have a personal connection to this story. Ziglar involved Bivens claims brought on behalf of 9/11 detainee, Muslim and Arab of non-citizens who were swept up after 9/11 and held in connection to the terrorism investigation, in extremely restrictive conditions of solitary confinement, not based on any actual evidence to connect them to terrorism, but rather based on the fact that they fit the same profile as the 9/11 hijackers and had violated the immigration law. So they were subject to arrest and detention. Around 100 of the 9/11 detainees were held in the Metropolitan Detention Center in Brooklyn, a federal jail, where they were placed in solitary confinement in the administrative maximum special housing unit, kept from sleeping, denied any property in their cell, including even toilet paper, soap, transported in handcuffs, shackles in a waist chain whenever they were taken from their cell, strip searched repeatedly, kept from practicing their religion and subjected to systemic physical and verbal abuse, including severe beatings by correctional officers who had been told the men were connected to 9/11. 
Their detentions lasted between three and 10 months. The period of time it took for the FBI and the CIA to clear them of any connection to terrorism and then remove them from the country. The Center for Constitutional Rights sued the high level architects of this policy, Ashcroft, Mueller and Ziglar, former attorney general of the United States, former director of the FBI and the former commissioner what was then known as the INS. And we also sued warden's and guards at the metropolitan detention center. 
Now to give you some understanding of how much the Bivens doctrine has changed in the 20 years since we filed Turkmen, in the very first set of motions to dismiss, which were filed in 2002, not a single defendant argued that the conditions of confinement, equal protection or abuse claims brought by the detainees required an extension of Bivens, or should not be heard under Bivens. And when Ashcroft to the Apple which was a companion case to Turkmen, went up to the Supreme Court in 2009. The Supreme Court called into question Apple's First Amendment religious discrimination Bivens claim, but clearly assumed that a fifth amendment discrimination claim against the attorney general of the United States would be appropriate under Bivens. For reasons not worth getting into, Turkmen which became known as Ziglar in the Supreme Court, bounced about in the courts for around 15 years, until 2017 when the Supreme Court granted cert to decide whether the detainees could bring Bivens claims, challenging their conditions of confinement, abuse and equal protection violations. 
A six justice Supreme Court heard the case three days before Trump's inauguration. As Sotomayor and Justice Kagan recused themselves from the case. And Justice Gorsuch had not yet replaced Justice Scalia. This six justice court reversed the Second Circuit in a four-two decision. Under Ziglar, the Supreme Court set up a two part test for deciding if a plaintiff can sue federal officials for money damages. First, a court must ask, is this a new context, which requires an extension of the Bivens doctrine? If so, the court must ask whether special factors counsel against extending Bivens in this situation. Now the lower courts had been doing this for a while, but Ziglar was the first time that the Supreme Court made the new context factor explicit and explained that there's really a two part test for determining whether a Bivens extension is appropriate. So under Ziglar, how do we know if a case presents a new context? According to the Supreme Court, it does if the case is different in a meaningful way from previous Bivens cases decided by this court. The Supreme Court also provided a non-exhaustive list of examples of potential things that might create a new context including the rank of the officers who are defendants, the constitutional right issue, et cetera, et cetera, along with if the case presents any new special factor that has not been previously considered. If a claim does not present a new context, then no special factors inquiry is required and the claim can proceed. However if a claim does present a new Bivens context, the court must ask whether special factors counsel against extending Bivens. And at the heart of this question, is whether the judiciary is well-suited absent congressional action to weigh the costs and benefits of allowing a damages action to proceed. If there is an alternative remedial scheme, that two may amount to a convincing reason for the judiciary to stay its hand. 
Now in Ziglar, the Supreme Court drew a distinction between two different types of claims presented by the case. The Supreme Court considered the policy claims first. These were allegations that cabinet level officials created a national policy to detain Muslim, Arab and South Asian non-citizens, in unusually restrictive conditions of confinement, including solitary confinement. Not because of evidence that they were dangerous or connected to 9/11, but rather based on their religion, race, ethnicity and immigration status. The Ziglar Court held that this claim presents a new context and multiple special factors counseled against extending Bivens for such a claim. The factors that made the case a new context are identical to the special factors found in the case. And they included that the claim was against executive officials setting government policy in the arena of national security where Congress seemed to have been paying attention to the issue but failed to create a cause of action and were other remedies like injunctive relief are available to protect the right at issue.
 Now, importantly, the Supreme Court took all of these factors together. No single factor was identified as sufficient to counsel hesitation on its own. The Supreme Court contextualized its holding, by stating that extension is now a disfavor judicial exercise. And Bivens, Davis and Carlson, the three Supreme Court Bivens cases, might have been decided differently if they were considered today. However, the court also went on to write that Bivens cases do have an important role to play, especially in the settled arena of law enforcement overreach. The court separately considered the claim against the warden of the Metropolitan Detention Center. Now this was a claim that the warden was deliberately indifferent or even encouraged physical abuse of the detainees by the guards under his supervision, and that this abuse was not part of any official policy set at a cabinet level. The Supreme Court acknowledged significant parallels between this claim and Carlson, but found that it required a modest extension of Bivens anyway, because the individuals who were plaintiffs were detainees, not convicted prisoners, meaning that their claims would be brought under the fifth amendment not the eighth. And because the legal standard for a deliberate indifference claim against warden, is less clear than the legal standard for deliberate indifference to a serious medical need. 
The court remanded this claim to the lower courts, to undertake a special factors inquiry and provided some thoughts on possible arguments. The court stated, that there might have been alternative remedies available like injunctive relief and alternative remedies usually preclude a court from authorizing Bivens action. The Supreme Court also noted that when Congress passed the Prison Litigation Reform Act it made comprehensive changes to the way prisoner abuse claims must be brought in the Federal Court. But it did not provide for a standalone damages remedy against jailers. And it could be argued that this suggests Congress chose not to extend the Carlson damages remedy, to cases involving other types of prisoner mistreatment. Now, this is the Supreme of court's latest word on prison Bivens claims, that said the court has issued one more Bivens decision since then in Hernandez as which is described in the written materials. In that case, the court declined to extend Bivens, to allow for a cause of action to challenge a cross border shooting case. And the court took up a near border search case in the 2021 term. So we are still seeing lots of Supreme Court attention to the issue and more is sure to come. In prison and detention cases, we see a lot of confusion about the availability of Bivens remedy in the District Courts and in the circuits. 
Now with any prison Bivens claim, the first question is, does the claim present a new context? Is it different from Carlson in a meaningful way? Over the last three years, courts are somewhat all over the place on this question, but we can see a few trends. Eighth amendment, deliberate indifference to serious medical need cases, generally have not been seen as presenting a new context, because these claims are so similar to Carlson. For other Eighth Amendment claims, court decisions go either way. Most courts are finding claims outside the Eighth Amendment to present a new context with some important exceptions. Now the most interesting doctrinal question here, is the question of what's the relevant court when deciding if a case presents a new context? In Ziglar, the Supreme Court said that a new context exists if the case is different in a meaningful way from a previous Bivens case decided by this court. Now does that mean that a case presents a new context if there's no Supreme Court case on point? What if a circuit has already decided to extend Bivens? Does a second panel have to reengage in the special factor analysis, considering any new factor the defendant can think of not considered by the first panel? Courts are split on this, but Bistro and the Levy is one example of a court reply, relying on its own prior special factors analysis. District courts in the Seventh Circuit have been out front on this approach. One recent example is Nunez v. Durango, in which the court held that a First Amendment claim is not a new context, because the Seventh Circuit had already recognized other First Amendment claims. My opinion is that it's fair to read the Ziglar language in question, as a description of what the Supreme Court had to consider when the new context question was before it. That that doesn't necessarily mean that a circuit court wouldn't look to its own precedent when it engages in the same inquiry. 
Also interesting are a few cases and Garraway out of the Eastern District of California as an example, which count Farmer v. Brennan as part of the Supreme Court's lexicon of recognized Bivens claims. Now this is a really interesting theory. Farmer v. Brennan was not a case about the availability of Bivens cause of action. Instead, it was about the deliberate indifferent standard for a failure to protect claim. That said it is a Bivens case, which was recognized by the Supreme Court, along with lower courts, at a time when the courts considered Bivens expansively, as it's worth reading the court's reasoning when considering a claim similar to Farmer. Now there are some courts finding that there's not a new context, even when there's no previous Supreme Court or circuit decision directly on point. Tony v. Williams is a recent decision in line with cases from a few other districts like Lorant v. Baraki finding that due process medical care cases by detainees are so similar to Eighth Amendment medical care cases by convicted prisoners, that they don't present a new context. Here, one might think when bringing one of these cases, that it's worthwhile to, even if you're arguing that the context is not new, one might wanna urge the District Court to address the special factors question regardless. Otherwise there tends to be a lot of back and forth, up to the circuit and back down again on this question. Now at the opposite end of the spectrum, some courts are finding even Eighth Amendment medical care cases to present a new context. Lovett v. Ruda is one example. The plaintiff in that case described his claim as failure to provide a medically necessary diet. However the court recast the claim as a conditions of confinement claim, saying that it presents a new context. 
Some of the cases finding that non-medical Eighth Amendment deliberate indifference claims, do present a new context, are interesting in their reasoning. In Dongarra v. Smith, for example, the Third Circuit based its finding of a new context on the fact that no injury to the plaintiff occurred, and this seems in line with Oliva v. Nivar where the fifth circuit acknowledged that virtually anything is a new context. This begs the question, what work is this first prong actually doing? As this is being recorded, the Supreme Court is considering Egbert v. Boule, a near border Fourth Amendment search and seizure case. Now there, the lack of utility of the new context inquiry was a highlight of the Supreme Court argument, with Justice Breyer asking if maybe a case presents a new context when a search takes place in April, because the search at issue in Bivens did not take place in April. And Justice Gorsuch went even further calling the new context question a mess and stating that normally when we have a two part test, it's actually two parts. Here the test is more like one and a half parts, with each part bleeding into the other. So we may see more guidance from the Supreme Court on step one, the new context inquiry shortly. Now if the court holds that a case does present a new context, that means an extension of Bivens is required to allow the individual to sue a Federal official for money damages. The first aspect of the special factors inquiry, is whether an alternative available remedy exists, which can itself counsel against extending Bivens. This language dates back to two Supreme Court cases from the 1980s. Bush v. Lucas and Schweiker v. Chilicky, suggested that the alternative remedy question is really about congressionally designed schemes. If Congress has designed a scheme that includes damages or doesn't and that's purposeful, it's not the court's role to create an additional remedy. 
Then in Minneci v. Pollard in 2012, it became clear that alternative remedies are not just about congressional schemes. Minneci involved a prisoner's claim against a private prison guard. And the Supreme Court really seemed to hold that a Bivens claim wasn't necessary in the case, because state tort law adequately protected the right at issue. Now, importantly, the court held that for Mr. Minecci state tort law provided roughly similar incentives for potential defendants to comply with the constitution, while also providing roughly similar compensation to victims of violations. These three cases taken together, suggest a few questions the judiciary should ask when considering whether an alternative remedial scheme means there should not be a Bivens claim. First, a court must ask, did Congress already create a remedy? If the remedy is incomplete, does the design of this scheme indicate that Congress provided what it thought was enough? And purposefully did not allow for a complete remedy. Aside from congressional action, is there some other remedy with roughly similar incentives and roughly similar compensation that makes a Bivens remedy unnecessary? Now this question has become even more complicated since Ziglar. Because in Ziglar, the Supreme Court relied on the availability of injunctive relief as one of the special factors precluding Bivens damage claims for challenges to unconstitutional policies. And when the court remanded the claim against the warden, it suggested that a writ of habeas Corpus or injunctive relief might have been available to the plaintiffs and might be the kind of alternative remedy that counsels against Bivens. It's hard to figure out why this would be, since injunctions are not congressionally designed and certainly don't provide any compensation or any deterrent to individual misconduct. Still, injunctive relief and the availability of habeas actions, are some of the most common alternative remedies that we see where courts decide that Bivens claims should not be allowed.
 Other common alternative remedies to encounter, include prison's own administrative remedy process, as well as potential availability of a Federal Tort Claims Act claim. Now, lots of courts are finding that these alternative remedies preclude implying Bivens cause of action. The Schwartz case is typical of such analysis, and that there's no focus in the decision on whether the alternative remedies involved could possibly lead to relief for the plaintiff. In fact, the ninth circuit said that the plaintiff could have sought a remedy under the Prison Litigation Reform Act, which objectively makes no sense at all, as the prison litigation reform act doesn't provide remedies. Rather it's a procedural doctrine, which requires exhaustion before seeking a remedy. Badley is another interesting case, in that it suggests that a different Bivens claim about a different constitutional violation could itself be an alternative remedy counseling against allowing a Bivens action. This shows that courts ruling this way are really asking, is there any avenue for the plaintiff to challenge anything, even if the actual harm or the actual injury the individual wants compensation for is not subject to that avenue? We also have courts holding that the Federal Tort Claims Act supplant Bivens. 
This is remarkable because the central question of Carlson, the Supreme Court case from 1980 was, does the FTCA displaced Bivens? And the Supreme Court squarely held that it does not for two reasons. First, because Congress intended Bivens and the FTCA to act as parallel complement causes of action. And second, because the FTCA is inferior to Bivens, in terms of compensating and deterring constitutional violations. And yet, lots of courts, including our District Court in Ziglar, when considering the claim remanded by the Supreme Court, are holding that the FTCA is an alternative available remedy which precludes Bivens. Courts ruling this way seem to be relying on the Supreme Court's statement that Carlson might have been decided differently if it were decided today. And then the unavoidable truth that the inquiry the Supreme Court took in Carlson, is very different than how the special factors analysis goes today.
 No, I would argue that this doesn't matter. The Supreme Court has not only not overruled Carlson's FTCA holding, but it refers to it again and again in every Bivens case, including in Ziglar. Carlson remains good law until the Supreme Court overrules it, and that means a decision that the FTCA forecloses Bivens is simply wrong. Ziglar, by the way, back under the name Turkmen the Ashcroft is currently on appeal in the Second Circuit. Now before I move off from the FTCA, I should say that in reading all of these cases over the years since Ziglar has been decided, it does seem to me that courts are moving away from relying on the FTCA as an alternative remedial scheme, that displaces Bivens. Now the relevance of a prison's grievance procedures, and within the bureau of prisons, the administrative remedy program specifically is also a confusing issue. Lots of courts are finding that the prison grievance program supplant Bivens. Even though prison grievances don't really come close to fitting the model that we discussed earlier, as they're not created by Congress and they don't provide any compensation, they don't really seem to provide any deterrents either. 
Even more importantly, the Supreme Court explicitly held that the administrative remedy program does not supplant Bivens in a case called McCarthy v. Madigan. Now McCarthy involved an Eighth Amendment Bivens claim, based on inadequate medical care. The case arose before Congress passed the Prison Litigation Reform Act. And the question before the court was whether the plaintiff's claim should be dismissed for failure to exhaust administrative remedies. The Supreme Court held that it should not. Defendants in that case had argued that a prisoner should not be able to bring an unexhausted Bivens claim under Supreme Court precedent about when a Bivens claim lies. This backdoored in the question of the availability of a Bivens cause of action. Flipping the analysis from, is exhaustion required for a Bivens claim to, can you have a Bivens claim when the prisoner didn't exhaust? The Supreme Court answered the question by engaging in the familiar Bivens inquiry, are there alternative remedies or special factors, and explicitly held that the administrative remedy program available in the Bureau of Prisons presents neither, because Congress has not created that program, and because it does not provide meaningful relief in the context of a claim for damages. Now, what I would argue that this precedent is so on point that one might be obligated to disclose it to a court in briefing the question of whether the availability of administrative remedies preclude Bivens. Yet for some reason, I don't see it being cited in any of these District Court cases. 
The strangest example of the relevance of the administrative remedy program is a case called Dongarra v. Smith out of the Third Circuit. There, an individual incarcerated in a prison, was mistakenly given a sex offender t-shirt, which was quite likely to cause him to be attacked by other prisoners. However, he was not attacked. The Third Circuit ruled that he had an Eighth Amendment claim of deliberate indifference to his safety, but no Bivens remedy because he was not injured. So this individual actually succeeded in getting a new shirt, an appropriate one, through the prison grievance system. And the Third Circuit found that because of this, the prison grievance system was an alternative remedy counseling against implying Bivens cause of action. The court went on to say that if the prison grievance hadn't worked, the individual could have sought injunctive relief to get a new appropriate shirt. Well, first of all, this is literally the only time I have ever heard of a prison grievance system actually solving a problem for someone in prison. But leaving that aside, it seems like the fundamental issue here is how the court looks at the nature of the alleged harm. This individual's safety was at risk, but the prison addressed that issue quickly before he was physically injured. Now that doesn't mean that the individual was not harmed in some kind of constitutionally cognizable way. One could assume that this individual was living in legitimate fear of being attacked for the period of time that he was forced to wear the sex offender t-shirt. So if his only injury is sort of the mental and emotional harm, that comes from that period of fear, which by the way is barred by a different section of the Prison Litigation Reform Act, that's not the topic of today's presentation. How can an alternative remedy, the alternative remedy he received address that harm? It can at all. Basically this is a decision that the kind of harm the plaintiff in Dongarra claimed, is not addressable by the court, couched as an analysis of the existence of a cause of action. 
The Earl case is also notable here. Now in Earl, the court held that the prison's administrative remedy program provides meaningful relief for the individual with no discussion of why or how, even though the plaintiff's claim was about being retaliated against for filing administrative remedies, which seems very counter intuitive. Read and Heimorech find exactly the opposite in similar situations, finding that the administrative remedy program provides no relief especially when the individuals claiming retaliation. And if this issue arises in a case you are litigating, I'd highly recommend giving Heimorech a close read as there's a very thorough analysis in that opinion. The other cases also go this way, finding no alternative remedy, especially in challenges to one time actions where of course injunctive relief is not available. Now this distinction comes from Ziglar itself. In Ziglar, the Supreme Court distinguished between challenging a policy, which is not properly subject to a Bivens action according to the court, versus individual instances of law enforcement overreach, which due to their very nature are difficult to address except by way of damages actions after the fact. 
Cuevas, the United States, which is also in your materials is a nice example of the court laying out why injunctive relief is not an adequate alternative remedy. Cuevas involved a claim that prison officials informed other people in the prison about sensitive information about the plaintiff, which was likely to result in him being attacked. The court explained that nothing other than money damages would remedy Mr. Cuevas situation. He stated an intention to seek some form of unspecified injunctive relief as well as money damages. But the court said it was difficult to conceive of how injunctive relief of any kind could be effective in the situation. One can't direct defendants to stop disclosing the sensitive information in a way that would undo what the past dissemination of sensitive information had already done. The damage to Mr. Cuevas' name and reputation had already happened. The bell could not be unrung. In Ziglar parlance, this is like the Bivens case itself. Where the remedy is damages or nothing. Now in this area, I think the hardest doctrinal issue involves cases where an injunction is theoretically available because the plaintiff is not challenging a one time occurrence. The Hoffman case has an excellent analysis on this, holding that an injunction only supplants Bivens when a plaintiff challenges prison policy. 
Now this decision pulls on language for Malesko and Ziglar. And under the court's theory, the question is not just if an injunction is available, but whether an injunction is better suited to address the issue, because what the individual is really seeking is a change to prison policy. What's appealing about this analysis is that it addresses those cases where an injunction might be available because of a continuing pattern of abuse, but allowing it to displace Bivens would be anomalous as it would mean for example that when a prisoner is subjected to one beating in a prison by a prison guard, that prisoner would have access to a Bivens claim for damages. But if the individuals repeatedly beaten, maybe by the same guard, maybe by different guards over and over, over a period of time, such that one could imagine an injunction issuing, then that individual would not have a claim to damages under Bivens. Just makes no sense sort of, as a matter of logic. Under Hoffman's reasoning, injunctions wouldn't displace Bivens when guards act unlawfully again and again, even though an injunction might be available. The major problem I see with this approach, and this may be a problem that is unsolvable, is it seems to resume that policies which violate the constitution don't injure people in the same way that guard abuse which violates policy does, and that it's okay to allow for compensation for one of these types of claims and not the other. And this could really seem to translate into a kind of immunity for policy makers. When of course there are incredibly harmful policies that individuals can impose on people in prison and of course in all other situations, and if one is subject to one of these unconstitutional policies and is injured, why shouldn't they too have a claim for damages? What is it about a policy violating someone's constitutional rights that is somehow less harmful than something that is not policy violating one's constitutional rights. 
Now the Jara case is interesting here, because it takes a much more straightforward and far reaching approach. Here the court hold holds that if someone is seeking compensation, an injunction is simply never adequate to displace Bivens because one can't get compensation under an injunction. In Turkmen on remand, there's sort of an interesting version of this argument. In Turkmen, the District Court held that an injunction wasn't available to the specific plaintiffs at issue. And this is because the 9/11 detainees were basically held incommunicado for a period of time. They were denied access to attorneys and their loved ones to such a level that when individuals actually went to the facility looking for these men, trying to determine if they were being held, the prison lied to lawyers and loved ones of the detainees told them that they weren't being held at the Metropolitan Detention Center. And this resulted in the men being completely isolated without access to lawyers or the court. Now this was only for a period of time, but that period of time lasted long enough that by the time 9/11 detainee was actually able to get into court filing a habeas petition, his claim was he was released and his claim was mooded out before a court could rule in the legality of his detention. So what the District Court held in Turkmen is that injunctive relief wasn't an available alternative remedy because it wasn't available to the individual plaintiffs. Because they were denied access to the court. Now, this makes sense as a matter of logic, but it also raises a question of whether it's desirable to have the existence of a cause of action vary with every factual distinction in a case. And how do we avoid that kind of outcome? Given the way the Supreme Court has set up the special factors inquiry. 
Now aside from alternative remedies, courts continue to find a variety of special factors to counsel against the recognition of the Bivens remedy. At the Alexander case out of the Third Circuit involves claims arising from the prison work workplace, which that court described as heavily regulated in a place where Congress has provided for certain remedies and not others. So this hearkens back to sort of the earlier Bivens analysis from back in the '80s and the '90s of when Congress has created a remedial scheme and seems to have purposefully not included at damages remedy. Cheddar, which is also in the materials, talks about the discretion due prison administrators as a special factor counseling hesitation. Now this is an interesting approach in that, like some of the cases we've discussed earlier, there sort of seems to be some merging of the substance of the claim with the question of whether a cause of action should be available. Those of you who practice prison litigation are no doubt aware that so the deference do prison administrators and prison administrators is a factor that courts consider when determining whether the constitution has been violated at all. It's built into the legal standards that apply to the rights of people in prison. So in some ways courts like Cheddar are double counting that deference. Saying, it's not only that we will apply deference when we are determining if you violated someone's rights, but also when determining whether a cause of action exists in the first place. 
The Rhodes case flips the question on its head entirely. Saying, there are no special factors in this case which urge expanding Bivens. Now, this is not the proper question. The proper question according to the Supreme Court is, do special factors counsel hesitation? But we can excuse the court for being confused, because a test that asks whether something counsels hesitation, suggests that the general outcome is extending Bivens, right? We only don't extend Bivens when there's a special reason not to. And it's no surprise that the test was set up this way because it was set up at a time when expansion of Bivens seemed unproblematic. And as I said earlier, when it appeared that Bivens would really become the counterpart to Section 1983 claims. So the court in changing the way it considers expanding Bivens has left that formulation of the test untouched, which makes for a very confusing situation for lower courts, trying to follow the explicit test while also following the Supreme Court's clear statement that extension of Bivens is now a disfavored activity. We can also take other potential factors directly from Ziglar itself. The Ziglar decision rested primarily on the fact that the plaintiffs in that case were challenging high level executive policy. And that means that any Bivens claim challenging high level policy is vulnerable on that ground. However it's not actually a special factor that I've seen in many prison cases. And I think that makes sense under Ziglar. The policy in question in Ziglar involved national security, and it was set at the very highest levels of government, like cabinet level officials. The Supreme Court found that this counseled hesitation because discovery into executive policy might require the exposure of sensitive executive deliberations. And then it could be argued that Ziglar only forecloses Bivens actions, challenging sensitive high level policy. And challenges to more pedestrian prison policies such as prolonged solitary confinement as a disciplinary measure, should under this theory require a distinct special factors analysis. Now by far the most far reaching special factor that I've seen, is the idea of congressional silence as a special factor counseling against extending Bivens. 
As you'll recall, the Supreme Court suggested when it remanded in Ziglar that when Congress passed the Prison Litigation Reform Act, it didn't create a standalone course of action for Federal prisoners. And this might suggest it didn't want one. This argument is well addressed by the magistrate judge in Turkmen, who explained that when Congress passed the Prison Litigation Reform Act, it assumed the existence of Bivens claims and subjected them to an exhaustion requirement. Indeed, the PRLA was in part a reaction to the McCarthy case discussed earlier, in which the Supreme Court allowed a Bivens claim to go forward despite the individual's failure to exhaust administrative remedies. The PRLA makes it clear that the exhaustion requirement does not only apply to claims by state prisoners, but also Bivens claims by Federal prisoners. Now many courts have gone the other way on this. But they do so generally without any actual analysis. Most of them simply quote the Supreme Court's suggestion that the Prison Litigation Reform Act might indicate congressional disapproval of Bivens remedy, without looking into the nature or the history of that legislation. 
Some courts even mischaracterize the Supreme Court's suggestion in Ziglar, that it could be argued that the PLRA not providing a standalone damages remedy, suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of mistreatment. And instead describes Ziglar as endorsing that argument outright. For example, the Dudley case, out of the Northern District of Texas held that, Ziglar makes it clear that Congress could have extended that Carlson damages remedy to cases involving other types of prisoner mistreatment, but chose not to. Now, of course this is not what the Supreme Court said in Ziglar. Hoffman repressed in is a case that addresses this error explicitly. There the court stated that we do not dispute that the PLRA argument can be made, we simply find it unpersuasive. And that court provides a really thorough analysis about how to think about congressional silence. In Hoffman, the court explained that Congress has not and did not disallow Bivens remedies when it passed the PLRA. And the court looked to the PLRA's general purpose and text to support the conclusion that the PLRA is about slowing down the processing of claims until administrative remedies are exhausted, not for closing available remedies after exhaustion. And can't be plausibly read as suggesting that possibility. Dudley and Butler are some of the only cases I've seen that do anything more than merely parrot the Supreme Court's suggestion and engage in some analysis. But I do not personally find that analysis compelling at all. And you all should read the cases yourself to come to your own conclusion. 
One of the boldest congressional silence holdings I have seen, is in a case called Morgan v. Shivers out of the Southern district of New York in 2018. Now that case involved an incarcerated individuals, excessive force and sexual assault claims. And the court held that among other factors, the passage of the Prison Rape Elimination Act, otherwise known as PREA counsels hesitation in allowing a claim for damages based on sexual assault. Because in PREA Congress addressed the problem of prison rate and did not create a cause of action. And this is a remarkable holding. PREA was passed, and I'm quoting here from the purpose of the act, to protect the Eighth Amendment rights of Federal state and local prisoners. And to increase the accountability of prison officials who fail to detect, prevent, reduce, or punish prison rate. PREA even sites the farmer case. The Supreme Court, Bivens case about prison rape that set that deliberate indifferent standard. So this ignores the purpose of the law. It transforms PREA which was a bipartisan effort to prevent sexual assault in prison by increasing reporting and research requirements, as evidence that Congress wanted to limit the remedies available to victims of sexual assault. 
Now with another thing I find interesting about the congressional silence argument, is that it presumes that that Congress is really staying incredibly aware of changes to the Bivens doctrine. For example, one could see that if the courts are going to take any congressional attention to an issue in which Congress legislates on something and does not create a private cause of action as an indication that it does not want a private cause of action, even when one has previously existed. Well then one could imagine Congress coming to terms with that reality and incorporating it into its legislative practice, such that we could imagine seeing the kind of disclaimers in legislation that we now see around other constitutional issues. Disclaimers like this legislation is not intended to displace any Bivens actions that may exist. The way we see some legislation, including a disclaimer that the law is not meant to impose or infringe on First Amendment rights, for example. Yet we've seen none of those thus far. And I find it hard to imagine that many individuals in Congress are actually aware of the way that the Supreme Court might be interpreting their silence. And this brings us to the general question of statutory interpretation. Where it's been, there is a body of law that exists that determines how courts determine what Congress met. Congressional silence, the congressional silence doctrine in the Bivens context exists completely apart from general tenants of statutory interpretation. And really does seem in some instances, especially in the Morgan case looking at, what Congress meant to do when it passed PREA as sort of a statement of following congressional intent when it is hard to plausibly imagine that this is what Congress actually intended. 
Now before I end, I wanna highlight a couple of interesting miscellaneous issues. Heimorech, a case described earlier, is also interesting procedurally in that, in that case, the defendants did not raise a qualified immunity defense, and because of this, when they tried to appeal the District Court's finding of Bivens cause of action, the Sixth Circuit dismissed their appeal, holding that the Bivens question on its own isn't suitable for interlocutory appeal. And this lays there the fact that most of the circuit decisions and indeed the Supreme Court decisions addressing whether there's a Bivens cause of action come where there is an interlocutory appeal based on a denial of qualified immunity, or a grant of qualified immunity. And that uncoupled from jurisdiction provided by qualified immunity, circuit courts may not be willing to consider whether a Bivens cause of action lies. Smarty is another interesting case. It's one of many in which courts have either remanded or in the first instance sought appointment of counsel for prose individuals who are briefing the Bivens question. And I think this is a really important development. Until this area of the law is more settled, it is incredibly complex, and it is unreasonable for courts to require individuals who are not represented by counsel to adequately brief the issues. So we're seeing quite a few cases where counsel is appointed to address the Bivens questions. 
This brings us to key takeaways, regarding availability of Bivens cause of action. 
First, if there is a Federal Tort Claims Act claim available to an individual who seeks money damages from a Federal official, I think it's incredibly important to bring that claim alongside any Bivens claims that may be possible. And that's because in many instances, an FTCA claim will simply be a much simpler and more straightforward way for an individual who's been injured in Federal custody to actually receive compensation for what has been done to them. So if an FTCA claim is available, meaning if there is an underlying tort related to the violation that has occurred, practitioners representing people in prison should absolutely include those claims. The second takeaway is that Bivens claims by individuals who've been denied inadequate medical care are really on relatively solid footing, such that I think it's unlikely that courts will dismiss such claims or that Bivens will become a major litigation issue in the case moving forward. However for all other Bivens claims by people in prison or detention, the availability of a Bivens cause of action is going to vary from circuit to circuit and is likely be going to be a major issue in the litigation. 
Next, when we think about the future of Bivens' claims, it seems clear to me that at some point a legislative fix will be necessary. This whole area of the law could be avoided if Congress were to amend Section 1983 and make it apply to claims against Federal officials as well as state officials. And it seems to me that there is no logical, political, coherent reason to treat the two types of officials differently. Why should there be a clear cut way to seek compensation when a state official has violated one's constitutional rights and not the same way to seek compensation when it's a Federal official who has violated one's constitutional rights. We must call in Congress to address this issue at some point in the future. 
Finally, we can expect the Supreme Court to weigh in more on the scope of the Bivens remedy. As stated earlier in the 2021 term, the Supreme Court took up Egbert v. Boule, that case was argued in March 2nd, 2022, will presumably be decided in shortly. And it's an interesting case involving allegedly illegal search and seizure at a hotel near feet away from the border with Canada. An in called smugglers in interestingly enough, and while it's not a claim by an incarcerated individual, it does seem as though each new decision from the Supreme Court, provides really important guidance on the direction of where Bivens claims are going. So we can expect more on this issue from the Supreme Court shortly. And it does seem given the disagreement in the circuits that it is only a matter of time before another prison or detention center Bivens case also goes up to the Supreme Court. And that of course will be the most relevant guidance. Finally, before I say goodbye, I wanna reiterate what a complex area of the law this is with developments coming every day. 
And make an offer to all of you who may be litigating this issue, that if you need any support in understanding the Bivens question or briefing a Bivens claim on behalf of an incarcerated individual, you can absolutely reach out to me. My email address is [email protected] And I'd love to help you think through these questions. Thank you for listening.
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