7th Circuit Declines to Extend Bivens to a Failure-to-Protect Claim Against BOP Officials
This case law update was written by Michael J. Sgarlat an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
Recently, the U.S. Court of Appeals for the 7th Circuit considered the Supreme Court’s recent analyses of Bivens, and declined to extend it to a claim brought by a federal prisoner against a Bureau of Prisons (BOP) official for failing to protect him against attacks by cellmates.
Roy Sargeant is a federal prisoner. He alleged that BOP official Aracelie Barfield retaliated against him for grievances he filed. Specifically, Sargeant claimed that Barfield “repeatedly” placed Sargeant in cells with prisoners that Barfield knew to be violent. Sargeant claimed that this resulted in fights with his new cellmates.
Sargeant sued Barfield and sought monetary damages. Sargeant did not identify which constitutional rights Barfield violated. Due to Sargeant’s status as a prisoner, Sargeant’s complaint was screened by a judge. In screening his complaint, the judge decided that Sargeant’s complaint could only proceed on a First Amendment retaliation claim and dismissed all other constitutional claims. Barfield moved to dismiss the First Amendment claim and the complaint. After briefing, the district court granted Barfield’s motion to dismiss.
On appeal before the 7th Circuit, Sargeant contended that when screening his complaint, the district court missed a cause of action – an Eighth Amendment claim alleging that Barfield failed to protect him from other prisoners. The 7th Circuit determined that Sargeant did not waive his Eighth Amendment claim, finding that the “raw materials” of the Sargeant’s complaint alleged facts that plausibly suggested that Barfield violated his Eighth Amendment rights.
The 7th Circuit then turned to the heart of Sargeant’s appeal – whether Bivens permits Sargeant to bring against Barfield an Eighth Amendment failure-to-protect claim. In short, the 7th Circuit said Bivens does not. But, to get to that determination, the 7th Circuit analyzed the Supreme Court’s evolving jurisprudence under Bivens, and then evaluated Sargeant’s Eighth Amendment under the Supreme Court’s recent construct of the law.
In Bivens, the Supreme Court held that an individual could seek damages from federal agents at the Federal Bureau of Narcotics for a violation of the Fourth Amendment. The Supreme Court later extended the implied right of action it created Bivens just two more times – in Davis v. Passman and Carlson v. Green.
The 7th Circuit entertained Sargeant’s contention that the Supreme Court’s decision in Farmer v. Brennan impliedly approved a Bivens remedy in the failure-to-protect context. The 7th Circuit stated that a circuit split exists on this issue, with the 3rd and 4th Circuits disagreeing whether Farmer created a new context. Here, the 7th Circuit sided with the 4th Circuit, which found that Farmer did not create a new context. On that point, the 7th Circuit explained that the Supreme Court has routinely stated that a Bivens remedy has been recognized in just three cases and that Farmer has not been cited among them.
The 7th Circuit stated that the “modern Court” views the Supreme Court’s earlier line of cases as a series of “mistakes.” The 7th Circuit stated that the “modern contours of Bivens” are demonstrated in three recent cases – Ziglar v. Abbasi, Hernandez v. Mesa, and Egbert v. Boule. The 7th Circuit stated that in Abbasi, the Supreme Court formulated a two-step framework to determine whether a plaintiff may bring a claim under Bivens. Under that framework, a court must first ask whether the claim presents a new Bivens context. If that test is met, a court next asks whether there are any “special factors” counseling hesitation against implying a remedy.
The 7th Circuit then found the Supreme Court’s recent holding in Egbert slightly “modified” the framework formulated in Abbasi. In Egbert, the Supreme Court explained that while Abbasi demanded a two-step framework, 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.” The 7th Circuit crystallized why the two-step framework often melds into a single step or question. It described that the existence of special factors often make their way into both steps under Abbasi. The 7th Circuit went on to note that “[s]pecial factors will of course not always dominate the analysis,” however, when they are, “they play a part in both steps of the inquiry.” For example, the 7th Circuit explained that that the reason for a distinction from an original Bivens case (step one) can also be the reason why Congress might be better suited to create a remedy to deter unconstitutional conduct (step two).
Under Egbert, the 7th Circuit saw “no way forward” on Sargeant’s Eighth Amendment claim, regardless if they looked at it in one step or two. It stated that special factors and separation of powers concerns in the suit would ultimately lead to its dismissal.
The 7th Circuit turned to Carlson, the only implied right of action recognized by the Court under the Eighth Amendment. In Carlson, the Supreme Court recognized an implied remedy for a claim alleging that prison officials violated the Eighth Amendment by giving inadequate medical care to an asthmatic prisoner. It found that Sargeant’s claim is “far from a repeated of the one in Carlson.” The 7th Circuit noted some distinguishing features, including the inclusion of a retaliation component in this case and that this claim arose in a different prison setting. Likewise, it stated that two other factors outlined in Abbasi indicating new contexts were present – the risk of disruptive intrusion by the Judiciary and the presence of special factors that Carlson did not consider. The 7th Circuit stated that these two considerations “cut against Sargeant in a way that dissolves his claim after Egbert.”
The 7th Circuit explained that recognizing a failure-to-protect claim in this context would bring about “at least some risk of intrusion,” as it would interfere with a vastly different part of prison operations as that in Carlson. The 7th Circuit further found that Congress’s passing of the Prison Litigation Reform Act of 1995 and also BOP’s creation of grievance program satisfy the low bar needed to counsel hesitation against extending Bivens.
Ultimately, the 7th Circuit held that Sargeant’s claim did not satisfy the Bivens framework no matter how it is applied – the suit implicates separation of power concerns and other special factors counseling hesitation. Meaning that at step one, the claim arises in a new context, and under step two, there is reason to think that Congress is arguably better suited to determine whether to imply a novel damages remedy or this sort of claim. “Even if we conceptualize the test as a single step, the result would be the same because that step would similarly require us to ask if Congress should make this decision instead of us.”
The 7th Circuit therefore affirmed the judgment of the district court.
Read the full case: Sargeant v. Barfield
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