• The Eighth Amendment Cruel and Unusual Punishment
• A Bivens Remedy for Federal Prison Inmates

A “Bivens remedy” is available to a prison inmate who alleges an Eighth Amendment cruel and unusual civil suit against a federal law enforcement corrections officer.

Marcellas Hoffman was a federal prison inmate, housed at the U.S. Atwater Penitentiary.  His prison job was as a cook; assigned to the kitchen detail.  In this capacity, he proposed an improved procedure to reduce waste in the food-service department; his proposal being approved all the way up the line to the prison’s warden.  For reasons not discussed in this case decision, this pissed off a corrections officer by the name of Timothy Preston.  Hoping to get Hoffman removed from the kitchen detail, Preston is alleged to have told another correctional officer, in front of Hoffman and other prisoners, that “inmates are snitching in the staff dining hall and writing the (staff members’) names down who are not paying for meals.”  Suspecting that Preston was talking about him, Hoffman denied that he was snitching on anyone.  A heated argument between the two resulted in Preston putting Hoffman in a holding cell, and then later moving him to what the Court referred to as “the Special Housing Unit.”  It was also alleged that following this incident, Preston “repeatedly and publicly labeled Hoffman as a snitch, telling other prisoners that Hoffman was reporting staff . . . for not paying for their meals.”  Preston made it clear that he wanted Hoffman kicked off the kitchen detail.  He was also alleged to have offered a bounty to specific prisoners, offering to pay them to harm Hoffman.  As result, another prisoner did in fact physically assault Hoffman, causing significant injuries.  Hoffman alleged in a later-filed administrative complaint that this attack was “as a direct result” of Preston’s actions.  As a result, Hoffman was eventually transferred to a different prison.  However, with his reputation as a snitch firmly established and following him wherever he went, the threats from other prisoners and staff continued nonetheless. Hoffman eventually filed a complaint against Preston pursuant to the prison’s administrative procedures—pursuant to the Prison Litigation Reform Act (“PLRA”); 28 U.S.C. § 1915A(a)—alleging “cruel and unusual punishment,” as prohibited under the Eighth Amendment.  Hoffman’s complaints eventually wormed its way up to the federal district court (following what the Court here referred to as a “complicated procedural history”) pursuant to authority under the U.S. Supreme Court decision of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) 403 U.S. 388 (see below).  The federal district court granted Preston’s motion to dismiss, finding that Bivens did not provide Hoffman with a remedy for his complaints.  Hoffman appealed.

The Ninth Circuit Court of Appeal, in a split (2-to-1) decision, reversed.  The issue on appeal was whether Hoffman had available to him what is referred to as a “Bivens remedy” when, as here, it was alleged that he suffered an Eighth Amendment “cruel and unusual” violation at the hands of a federal officer.  The cruel and unusual violation alleged here was perpetrated by the civil defendant (i.e., Timothy Preston), a federal officer, exhibiting a “deliberate indifference to Hoffman’s health and safety as a prison inmate.”  The “deliberate indifference” in this case, as alleged by Hoffman, was exhibited by Preston telling others that Hoffman had reported prison staff members for not paying for their meals and in retaliation for him writing and submitting a Food Service Proposal, allegedly resulting in an attempt to get him (Hoffman) removed from the kitchen detail.  It was also alleged that in retaliation for the above actions on Hoffman’s part, “Preston took affirmative steps to target Hoffman for harm by repeatedly and publicly labeling him as a ‘snitch,’ and offering a reward to other inmates to harm him.”  It was further alleged that “Preston did not merely know of a risk of substantial harm; he intentionally and knowingly created the risk.”  The problem in this case is that in order to litigate this issue in a federal court, Hoffman must have available to him a legal vehicle by which to do this.  Title 42 U.S.C. § 1983 is the statutory authority (i.e., “legal vehicle”) used by a plaintiff when suing a state officer.  Preston, however, is a federal officer, eliminating section 1983 as an appropriate tool to use in this case.  To fill this void, the U.S. Supreme Court, in 1971, recognized “an implied right of action” for damages against federal officers, “arising directly under the Constitution.” The case authority describing this theory is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, supra.  The Supreme Court also, however, has cautioned against applying the so-called “Bivens remedy” too broadly.  Per the High Court; “special factors . . . counsel hesitation” in over-using a Bivens theory of liability, telling lower courts to consider whether the judiciary is well suited, absent congressional action or instruction, to use this theory, while weighing the costs and benefits of allowing a damages action to proceed.   (Ziglar v. Abbasi (2017) __ U.S. __ [137 S.Ct. 1843].)  The Supreme Court made it clear in Ziglar v. Abbasi that “expanding the Bivens remedy is now a disfavored judicial activity,” although a Bivens remedy is still available in appropriate cases where there are “powerful reasons” to retain it in its “common and recurrent sphere of law enforcement.”  (Id., at 137 S.Ct. at p. 1857.)  The entire decision here—and the issue about which the dissenting opinion disagreed—dealt with whether Hoffman’s complaints against Preston constituted an appropriate case in which to use the Bivens remedy.  So far, The Supreme Court has approved the use of the Bivens remedy in three areas of the law. (1) The Bivens case itself specifically held that damages were recoverable against federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.  (2) The Court later explicitly extended the Bivens remedy to an implied damages claim under the Fifth Amendment’s due process clause for gender discrimination by a member of the United States Congress. (Davis v. Passman (1979) 442 U.S. 228, 230.) (3) Lastly, Bivens was held to be appropriate when litigating an implied claim under the Eighth Amendment’s cruel and unusual punishment clause for prison officials’ failure to provide adequate medical care.  (Carlson v. Green (1980) 446 U.S. 14, 16-18, & fn. 1.)  In reversing the trial court’s dismissal of Hoffman’s case, the majority of this Ninth Circuit panel held here that “it is but a modest extension (of Bivens) to allow a suit against a guard who creates the substantial risk of harm and then allows it to occur.”  The majority also ruled that they found “no special factors that counsel against allowing a Bivens remedy in this context.”  The problem is, the Supreme Court has not told us what constitutes such “special factors” and when they might apply in the Bivens context, leaving it to the lower courts to figure this out on a case-by-case basis and without any higher court guidance. In a long and convoluted discussion, the majority of the Court ruled here that although the factual circumstances in this case are different from any prior case decision where Bivens was found to be appropriate, they could find no special factors that would prevent Hoffman from using Bivens in his attempt to prove Preston civilly liable for the issues he allegedly caused.  Quoting from one of this Court’s prior cases (See Lanuza v. Love (9th Cir. 2018) 899 F.3rd 1019, at p. 1028.), the Court noted that the Supreme Court in “Abbasi makes clear that, though disfavored, Bivens may still be available in a case against an individual federal officer who violates a person’s constitutional rights while acting in his official capacity.”  This is what Hoffman alleges that Preston did.  Finally, the Court held that Hoffman really had no other viable state or federal means to by which to litigate his complaints in seeking damages from Preston.  The majority of this Court, therefore, approved the use of Bivens in this context, allowing Hoffman’s allegations against Preston to proceed in federal court.

This is a long 35-page decision, with a 25-page dissent, discussing in excruciatingly painful detail the ins and outs of when Bivens applies and when it does not.  This, of course, is of little interest to local street cops and prosecutors.  But it is of immense importance to federal law enforcement officers and civil litigators who really need to read the entire case decision should he or she ever get involved in a federal-level Bivens-authorized civil suit.  I’ve briefed the Bivens issue before (see Boule v. Egbert (9th Cir. Nov. 20, 2020) 980 F.3rd 1309; California Legal Update, Vol. 26, #5, April 18, 2021.)  As I noted then, Bivens is really nothing more than judicial legislating necessitated by the failure of the U.S. Congress to act.  Title 42 U.S.C. § 1983, dealing with civil suits against state and local officers, could easily be expanded to include lawsuits against federal officers. Or, a whole new statute could be written that accomplishes the same thing, while spelling out the appropriate and (presumably) clearer boundaries of such a lawsuit.  It would certainly save a lot of ink for the courts in not having to publish such long and complicated decisions.