Roy Sargeant v. Aracelie Barfield ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2287
ROY SARGEANT,
Plaintiff-Appellant,
v.
ARACELIE BARFIELD,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 19 C 50187 — Iain D. Johnston, Judge.
____________________
ARGUED MARCH 27, 2023 — DECIDED NOVEMBER 28, 2023
____________________
Before HAMILTON, SCUDDER and PRYOR, Circuit Judges.
PRYOR, Circuit Judge. The question before us is whether a
federal prisoner can bring a Bivens action alleging that a
prison official failed to protect him from violent attacks by his
cellmates. After the Supreme Court’s recent decisions in this
area, the answer is no.
2 No. 21-2287
I. BACKGROUND
A. Factual History
We recount the facts as alleged in the complaint. See Schil-
linger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020). Roy Sargeant
is a federal prisoner, and this case arises from retaliatory acts
taken against him by Aracelie Barfield, who was Sargeant’s
case manager, responsible for evaluating his progress in
prison.
The dispute between Sargeant and Barfield began with
grievances. Sargeant filed a grievance against another prison
official, Nicole Cruze, after she commented on his sexual pref-
erences and refused to give him some books that he had or-
dered. When Barfield showed Sargeant the prison’s response
to one of those grievances, he noticed that it was signed by
Cruze and pointed out that, under the prison’s rules, Cruze
should not have seen a grievance lodged against her. Appar-
ently unhappy with Sargeant’s remarks, Barfield “angrily”
told others about the grievance. This led Sargeant to file a sep-
arate grievance against Barfield.
In retaliation, Barfield “repeatedly” put Sargeant in cells
with prisoners that she knew were violent. As a “program-
ming” prisoner with a “non-active protected custody” status,
Sargeant alleged that Barfield violated policy by housing him
with “active” prisoners on several occasions. At oral argu-
ment, Sargeant’s attorney explained that programming status
means a prisoner has cooperated with the government, while
active status means that a prisoner has not cooperated. Pre-
dictably, this led to “some fights” between Sargeant and his
cellmates, before he was transferred to another prison.
No. 21-2287 3
B. Procedural History
Proceeding without an attorney, Sargeant sued Barfield
seeking monetary damages. He alleged that Barfield retali-
ated against him for filing grievances. He did not, however,
identify in his complaint which of his constitutional rights she
had allegedly violated.
Because Sargeant is a prisoner, the district judge initially
assigned to his case, Judge Durkin, had to screen his com-
plaint pursuant to 28 U.S.C. § 1915A. In doing so, Judge
Durkin decided that Sargeant could proceed only on a First
Amendment retaliation claim and dismissed “any other in-
tended claims.” Judge Durkin did not discuss whether the al-
legations in the complaint stated an Eighth Amendment cause
of action.
Barfield moved to dismiss the complaint on grounds that,
under the Bivens doctrine, a federal prisoner cannot recover
damages for a violation of First Amendment rights. Because
of the complexity of that issue, Magistrate Judge Jensen ap-
pointed counsel for Sargeant. The case was then transferred
from Judge Durkin to Judge Johnston who, after briefing,
agreed with Barfield and dismissed the complaint with prej-
udice.
II. DISCUSSION
On appeal, Sargeant abandons his First Amendment the-
ory in favor of another argument. He contends 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. This claim,
Sargeant argues, should have been allowed to proceed under
the Bivens doctrine.
4 No. 21-2287
We take a fresh look at a screening dismissal, accepting the
allegations in the complaint as true and drawing all reasona-
ble inferences in the plaintiff’s favor. Schillinger, 954 F.3d at
994.
A. Waiver
We first address whether Sargeant preserved this argu-
ment. Barfield does not think so. As she sees it, because
Sargeant never amended the complaint or contested the
screening dismissal, he is raising the Eighth Amendment
claim for the first time on appeal.
We disagree. The Federal Rules of Civil Procedure do not
require a plaintiff to allege legal theories or even facts corre-
sponding to each element of a claim. Zall v. Standard Ins. Co.,
58 F.4th 284, 295 (7th Cir. 2023); Zimmerman v. Bornick, 25 F.4th
491, 493 (7th Cir. 2022). This is especially true for litigants pro-
ceeding without an attorney. See Ortiz v. Downey, 561 F.3d 664,
670 (7th Cir. 2009) (concluding that a plaintiff’s failure to men-
tion a legal theory was “not an obstacle to his claim, particu-
larly in light of his status as a pro se litigant”); Perez v. Fenoglio,
792 F.3d 768, 776 (7th Cir. 2015) (explaining that we construe
pro se complaints liberally).
What matters is whether the raw materials of Sargeant’s
complaint—the facts—plausibly suggested that Barfield vio-
lated his Eighth Amendment rights. Johnson v. City of Shelby,
574 U.S. 10, 12 (2014). Looking to the facts in Sargeant’s com-
plaint, we see that they did so. A prison official is liable under
the Eighth Amendment for failing to protect a prisoner if she
knows of and disregards an excessive risk to the prisoner’s
health or safety. Hunter v. Mueske, 73 F.4th 561, 565 (7th Cir.
2023). Sargeant alleged in the complaint that, after Barfield
No. 21-2287 5
placed him with cellmates she knew were violent and had
more stringent classifications, the cellmates attacked him.
These are the sorts of facts that commonly underpin Eighth
Amendment failure-to-protect claims. See e.g., LaBrec v.
Walker, 948 F.3d 836, 839–41 (7th Cir. 2020); Gevas v. McLaugh-
lin, 798 F.3d 475, 478–81 (7th Cir. 2015).
When the district court screened out the Eighth Amend-
ment claim—by dismissing “any other intended claims” aside
from the First Amendment claim—Sargeant was free to save
his rebuttal for appeal. A screening dismissal dispensing with
only part of a complaint is an interlocutory order. See Luevano
v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1018–20 (7th Cir. 2013)
(concluding the same with respect to a complaint screened
under 28 U.S.C. § 1915(e)(2)—the statute allowing courts to
screen the complaints of litigants who cannot pay the filing
fee). And interlocutory orders may be “stored up” by a liti-
gant and raised on appeal as part of a challenge to the final
judgment. Kurowski v. Krajewski, 848 F.2d 767, 772 (7th Cir.
1988). In other words, a litigant need not contest an interlocu-
tory ruling as it comes down to preserve an appellate chal-
lenge to it. Walker v. Abbott Labs., 340 F.3d 471, 475 (7th Cir.
2003); see Cesal v. Moats, 851 F.3d 714, 720–21 (7th Cir. 2017)
(considering a challenge to a screening dismissal even though
other claims had been resolved at the summary judgment
stage).
The district court appointed Sargeant’s attorney to re-
spond to Barfield’s motion to dismiss. 1 In her response,
Sargeant’s attorney naturally focused on the claim she was
1 The First Amendment claim was the only one remaining after screening
and thus the only one at issue in the motion to dismiss.
6 No. 21-2287
appointed to brief. True, she could have amended the com-
plaint or asked the court to reconsider its screening order, but
no authority required her to do either to preserve Sargeant’s
Eighth Amendment argument for appeal.
B. Merits
We turn now to the merits. On appeal, Sargeant argues
that he is able to bring an Eighth Amendment failure-to-pro-
tect claim against Barfield under the Bivens doctrine. The gov-
ernment responds that a failure-to-protect claim is not one of
the limited suits allowed under Bivens.
1. Bivens Background
The Constitution does not explain when a plaintiff can
seek damages from a federal officer who has violated its pro-
visions. That’s where the Bivens doctrine comes in. Its story
plays out in three acts: “creation, expansion, and restriction.”
Silva v. United States, 45 F.4th 1134, 1138 (10th Cir. 2022).
For simplicity, we begin the story with Bivens itself, alt-
hough we recognize that the roots of the doctrine stretch far
earlier. In Bivens, the Supreme Court concluded that the “very
essence” of civil liberties implied a right to sue a person who
violates those liberties. Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (quoting Mar-
bury v. Madison, 1 Cranch 137, 163 (1803)). From that premise,
the Court reasoned that an individual could seek damages
from Federal Bureau of Narcotics agents who unreasonably
searched and seized him in violation of the Fourth Amend-
ment. Id.Over the next ten or so years, the Supreme Court recog-
nized an implied constitutional right to damages two more
times. In Davis v. Passman, the Court extended Bivens to a
No. 21-2287 7
claim that a Congressman discriminated against a staffer be-
cause of her sex in violation of the Fifth Amendment. 442 U.S.
228 (1979). Then in Carlson v. Green—a case lying at the heart
of this appeal—the Court recognized a Bivens remedy for a
claim alleging that prison officials violated the Eighth
Amendment by giving inadequate medical care to an asth-
matic prisoner. 446 U.S. 14 (1980).
Soon after, the Supreme Court changed course and started
to chisel away at the Bivens doctrine. The modern Court views
Bivens, Davis, and Carlson as mistakes of an “ancien[t] regime”
and cautions against implying new causes of action because
creating remedies is a job for the legislature, not the judiciary.
Ziglar v. Abbasi, 582 U.S. 120, 131–32, 135 (2017) (emphasis
omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
As a result, since those original three Bivens cases, the Su-
preme Court has consistently declined to imply new damages
remedies. See id. at 135 (collecting cases). We can see the mod-
ern contours of Bivens most clearly in three recent cases, start-
ing with Ziglar v. Abbasi. That case explained that a two-step
framework applies when determining whether a plaintiff
may bring a claim under Bivens. First, a court must ask
whether the claim presents a “new Bivens context.” Id. at 139.
A context is new if the claim is “different in a meaningful way
from previous Bivens cases decided by [the Supreme] Court.”
Id. The Court offered some reasons why a claim might differ
in a meaningful way from an earlier Bivens case:
[T]he rank of the officers involved; the constitu-
tional right at issue; the generality or specificity
of the official action; the extent of judicial guid-
ance as to how an officer should respond to the
problem or emergency to be confronted; the
8 No. 21-2287
statutory or other legal mandate under which
the officer was operating; the risk of disruptive
intrusion by the Judiciary into the functioning
of other branches; or the presence of potential
special factors that previous Bivens cases did not
consider.
Id. at 139–40.
If the context is new, a court moves to the second question
and ask whether “special factors counsel[] hesitation” against
implying a remedy. Id. at 136, 140. This inquiry “concen-
trate[s] on whether the Judiciary is well suited, absent con-
gressional action or instruction, to consider and weigh the
costs and benefits of allowing a damages action to proceed.”
Id. at 136. If so, a court may imply a Bivens remedy. Id. at 139–
40.
Next came Hernandez v. Mesa, 140 S. Ct. 735 (2020). In this
case, the Supreme Court clarified that the same constitutional
amendment does not necessarily mean the same context, ex-
plaining that “[a] claim may arise in a new context even if it is
based on the same constitutional provision as a claim in a case
in which a damages remedy was previously recognized.” Id.
at 743.
Last, and most significant to this appeal, is Egbert v. Boule,
596 U.S. 482 (2022). In this case, the Supreme Court modified
the Abbasi approach in a couple of ways.
Initially, the Court cast doubt on whether the Abbasi
framework for analyzing Bivens claims always contains two
steps. The Court explained that “[w]hile our cases describe
two steps, those steps often resolve to a single question:
whether there is any reason to think that Congress might be
No. 21-2287 9
better equipped to create a damages remedy.” Id. at 492. This
is because the final two step-one considerations—the risk of
disrupting other branches and the presence of special factors
that prior cases did not consider—are similar to the second
step. Id.; Hernandez, 140 S. Ct. at 756 n.3 (Ginsburg, J., dissent-
ing) (acknowledging that these considerations overlap with
step two).
Egbert next explained that, before authorizing damages, a
court must ask “whether there is any rational reason (even
one) to think that Congress is better suited to ‘weigh the costs
and benefits of allowing a damages action to proceed.’” Eg-
bert, 596 U.S. at 496 (quoting Abbasi, 582 U.S. at 136). If the an-
swer is yes, or “arguably” yes, a court cannot provide a Bivens
cause of action. Id. at 492. For example, if “Congress or the
Executive has created a remedial process that it finds suffi-
cient to secure an adequate level of deterrence, the courts can-
not second-guess that calibration by superimposing a Bivens
remedy.” Id. at 498.
2. Identifying the Context of Sargeant’s Claim
Under the modern Bivens framework, the initial question
is whether Sargeant’s Eighth Amendment claim against Bar-
field for failure to protect arises in an existing Bivens context.
Sargeant contends that the Supreme Court has already ap-
proved of a Bivens action in the failure-to-protect context—not
in one of the three original cases, but in Farmer v. Brennan, 511
U.S. 825 (1994). A circuit split exists on this point, with the
Third and Fourth Circuits disagreeing over whether Farmer
created a new context. Compare Bistrian v. Levi, 912 F.3d 79,
90–91 (3d Cir. 2018), with Bulger v. Hurwitz, 62 F.4th 127, 139
(4th Cir. 2023).
10 No. 21-2287
In Farmer, federal officials moved a transgender prisoner
to a facility with a history of assaults despite allegedly know-
ing that she would be susceptible to violence. 511 U.S. at 830–
31. After the prisoner was attacked by her cellmate, she
sought money damages under Bivens, alleging that the offi-
cials failed to protect her in violation of the Eighth Amend-
ment. Id. Presupposing that the prisoner could seek damages,
the Supreme Court clarified the now-familiar “deliberate in-
difference” standard for Eighth Amendment claims, vacated
the grant of summary judgment in favor of the federal offi-
cials, and remanded for further proceedings. Id. at 835–40,
851.
In all this, the opinion mentioned Bivens twice. The first
time to acknowledge—in the procedural history section—that
the plaintiff “filed a Bivens complaint.” Id. at 830. The second
time as an aside: to explain that although “Bivens actions
against federal prison officials (and their 42 U.S.C. § 1983counterparts against state officials) are civil in character,” it
still makes sense to base the deliberate-indifference standard
on criminal law’s standard of subjective recklessness. Id. at
839–40. The Court never held—just assumed—that a Bivens
remedy was available to the plaintiff.
In interpreting Farmer, Sargeant invokes the Third Cir-
cuit’s reasoning. He believes that Farmer impliedly estab-
lished a new context—or at least stretched the bounds of Carl-
son’s context. See Bistrian, 912 F.3d at 90–91 (concluding the
same before Egbert). The Fourth Circuit, with the benefit of
Egbert’s guidance, disagreed with that reasoning and ques-
tioned whether the Supreme Court would establish a new
Bivens context in such a secretive way. Bulger, 62 F.4th at 139.
No. 21-2287 11
We now join the Fourth Circuit. A silent assumption in an
opinion cannot generate binding precedent. 2 United States v.
Rodriguez-Rodriguez, 453 F.3d 458, 460 (7th Cir. 2006)
(“[A]ssumptions are not holdings.”). That’s especially true in
the realm of Bivens, where the Supreme Court has repeatedly
cautioned against implying new remedies. Indeed, in Egbert
itself, the Court held that the plaintiff’s First Amendment
claims could not be brought under Bivens even though an ear-
lier Supreme Court opinion had assumed, but not decided,
otherwise. 596 U.S. at 498–99 (citing Hartman v. Moore, 547
U.S. 250, 252 (2006) (assuming that the case presented a valid
“Bivens action against criminal investigators for inducing
prosecution in retaliation for speech”)). Any other approach
would invite chaos because litigants could uncover and rely
on unspoken assumptions in every opinion.
The Supreme Court’s three most recent opinions in the
Bivens space align with our conclusion. Each recognized only
three times that a constitutional damages remedy has been
implied against federal officers: in Bivens, in Davis, and in
Carlson. Egbert, 596 U.S. at 490–91; Hernandez, 140 S. Ct. at 741;
Abbasi, 582 U.S. at 131. Not once has the Supreme Court men-
tioned Farmer alongside those cases, and we think it would
have if Farmer created a new context or clarified the scope of
an existing one.
The dissent maintains that we are anticipating the Su-
preme Court’s next move. Given that the Court has not over-
ruled Farmer, the dissent argues, we should recognize Farmer
as an existing Bivens context. We respectfully believe,
2 We note as well that, in Farmer, the parties neither briefed nor discussed
at oral argument whether the case was properly a Bivens case.
12 No. 21-2287
however, that this line of reasoning misses an important de-
tail. To be sure, we fully agree that the Supreme Court “does
not overrule itself silently.” Censke v. United States, 947 F.3d
488, 492 (7th Cir. 2020). But, as discussed above, the Supreme
Court also does not make holdings silently. Rodriguez-Rodri-
guez, 453 F.3d at 460. Because Farmer never said anything
about the scope of the Bivens doctrine, there is no Bivens hold-
ing in Farmer for today’s Supreme Court to overrule.
Against this backdrop, we decline to rule that another
Bivens context lurks in the shadows.
3. Evaluating Sargeant’s Claim Against Carlson
This means we must put Sargeant’s claim up against one
of the three recognized Bivens precedents to see if it arises in
a new context. Naturally, Sargeant selects Carlson—also an
Eighth Amendment case—as the comparator. His argument
is that Carlson’s context covers all Eighth Amendment claims
alleging deliberate indifference to a substantial risk of serious
harm, not just claims alleging inadequate medical care.
Recall that recognizing new causes of actions under Bivens
is disfavored, and the Supreme Court has instructed that even
a “modest extension” of an existing context is all but forbid-
den. Abbasi, 582 U.S. 120 at 135, 147 (quoting Iqbal, 556 U.S. at
675); compare Carlson, 446 U.S. at 16–18 (implying a Bivens
remedy for an Eighth Amendment inadequate-medical-care
claim), with Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001)
(declining to imply a Bivens remedy for an Eighth Amend-
ment claim based on the care of a prisoner because the plain-
tiff sued a private prison facility, not federal officials).
The other thing to remember is that “special factors” play
a special role in the analysis. As discussed earlier, both steps
No. 21-2287 13
of the Bivens inquiry take special factors into account. At the
first step, we ask whether the claim arises in a new context—
one that is meaningfully different from the cases in the Bivens
trilogy—while searching for special factors that earlier Bivens
cases did not consider and giving “special solicitude to … sep-
aration-of-powers concerns.” Snowden v. Henning, 72 F.4th
237, 244 (7th Cir. 2023).
The second step is similar. At this step, we ask “whether
‘special factors’ indicate that Congress is better equipped in
the specific context to assess the costs and benefits of a dam-
ages remedy.” Id. If there is any reason—“even one”—that
Congress is arguably better equipped than us to determine
whether to create a new remedy, then we may not create one
ourselves. Egbert, 596 U.S. at 492, 496.
This is why the Supreme Court remarked in Egbert that the
two-step inquiry sometimes melds into a single step. Id. at
492. The reason that a distinction might alter the cost-benefit
balance struck in an original Bivens case (step one) can also be
the reason why Congress might be better positioned to create
a remedy in the hope of deterring unconstitutional conduct
(step two). See id. at 492–93; Abbasi, 582 U.S. at 146. Special
factors will of course not always dominate the analysis. But
when special factors are relevant, they play a part in both
steps of the inquiry.
Under these guiding principles, we see no way forward
for Sargeant’s claim. No matter how we decipher the test—as
one step or two—the special factors and separation-of-powers
concerns implicated by Sargeant’s suit ultimately lead to its
dismissal.
14 No. 21-2287
At the outset, we point out that Sargeant’s claim is far from
a repeat of the one in Carlson. In Carlson, officials allegedly
kept a prisoner in a subpar medical facility against the advice
of doctors, failed to give him competent care for eight hours
after an asthma attack, administered the wrong drugs, used a
faulty respirator, and delayed his transfer to a hospital. 446
U.S. at 16 n.1. In this case, Barfield allegedly retaliated against
Sargeant by housing him with violent prisoners. Of course,
these factual differences alone do not foreclose Sargeant’s
claim, but the fact that Sargeant’s claim arose in a different
prison setting is highly relevant. This detail indicates that
Sargeant’s suit might implicate policy determinations that the
Supreme Court did not consider in Carlson.
Turning to Abbasi’s list of potentially meaningful differ-
ences confirms this suspicion. 582 U.S. at 139–40. To be sure,
Barfield’s rank is similar to or lower than the rank of the de-
fendants in Carlson, both cases involve the same constitutional
right, 3 and there is substantial judicial guidance on both inad-
equate-medical-care and failure-to-protect claims. Two other
considerations—the generality or specificity of the action and
the legal mandate under which the official was operating—
present closer calls. But we need not discuss them because the
last two Abbasi considerations cut against Sargeant in a way
that dissolves his claim after Egbert.
We start with the risk that the claim would interfere with
the functioning of another branch. Sargeant insists that no
such risk exists because his claim challenges the rogue actions
of a rank-and-file official, not the Bureau of Prisons’ policies.
3 As we’ve explained, though, the same amendment does not necessarily
mean the same context. Hernandez, 140 S. Ct. at 743.
No. 21-2287 15
In the abstract, he may have a point. The problem for Sargeant
is that, after Egbert, the field is tilted toward Barfield. Recog-
nizing failure-to-protect claims against prison officials re-
sponsible for cell assignments under Bivens will invariably
implicate housing policies, which factor in a sensitive mixture
of things we are ill-positioned to assess—a prison’s determi-
nations about safety, discipline, and resources. Even if we
think the risk of intrusion is low here, the Supreme Court has
warned that we “likely cannot predict the ‘systemwide’ con-
sequences of recognizing a cause of action under Bivens”—
and that the resulting uncertainty alone forecloses relief. Eg-
bert, 596 U.S. at 493 (quoting Abbasi, 582 U.S. at 136). Mindful
of these words, we must conclude—as the Fourth Circuit did
in Bulger—that recognizing a failure-to-protect claim in this
context would bring about at least some risk of intrusion. 62
F.4th at 140–42.
In reaching this conclusion, we recognize that Carlson al-
ready approved of some intrusion into the functioning of fed-
eral prisons. See Snowden, 72 F.4th at 246 (concluding that the
intrusion in that case was “no more disruptive than what
Bivens itself already approved”). The important detail here is
that Sargeant’s claim would interfere with a vastly different
part of prison operations—housing assignments instead of
medical care—meaning that his claim threatens to intrude in
ways Carlson did not contemplate.
We turn lastly to other special factors counseling hesita-
tion. The Supreme Court has instructed that if Congress has
crafted a relevant alternative remedial structure since the
original Bivens cases, that is “reason enough” not to imply a
new cause of action. Egbert, 596 U.S. at 493. It does not matter
whether a judicially created damages remedy could work in
16 No. 21-2287
conjunction with an existing remedial scheme or whether the
existing scheme completely remedies the injury. Id. If the leg-
islative or the executive branch has forged a remedy that “it
finds” adequate to deter misconduct by individual officials,
we cannot “second-guess that calibration by superimposing a
Bivens remedy.” Id. at 498. The only thing that matters is
whether we are in a better position to decide if existing reme-
dies provide adequate deterrence. Id.
Around fifteen years after Carlson, Congress passed the
Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C.
§ 1997e. 4 The Act made “comprehensive changes” to the way
prisoners may bring claims in federal court—for example, by
requiring them to exhaust any relevant prison grievance pro-
cedures before filing suit. Abbasi, 582 U.S. at 148; 42 U.S.C
§ 1997e(a). In federal prisons, a prisoner may seek “formal re-
view” of issues relating to “any aspect of” his “confinement.”
28 C.F.R. § 542.10(a). Although the PLRA did not preclude
Bivens actions, it did not provide for damages remedies in
new contexts either. Because of this, Abbasi opined that “it
could be argued that … Congress chose not to extend the Carl-
son damages remedy to cases involving other types of pris-
oner mistreatment.” 582 U.S. at 149; Snowden, 72 F.4th at 244
(recognizing the same). Similarly, in Malesko, the Supreme
Court declined to recognize a Bivens action in part because
prisoners “have full access to remedial mechanisms estab-
lished by the [Bureau of Prisons],” including “grievances filed
4 The dissent would use Farmer v. Brennan as its yardstick for the special
factors inquiry. 511 U.S. 825 (1994). We note that Farmer also predated the
PLRA.
No. 21-2287 17
through [its] Administrative Remedy Program.” 534 U.S. at
74.
Sargeant does not think that the PLRA cuts against him.
He contends that because Congress tacked on an exhaustion
requirement to prisoner lawsuits but said nothing about
Bivens, it evidently had no problem with Bivens actions. He
also maintains that the grievance process was functionally un-
available to him: Barfield retaliated against him because he
filed a grievance. In a similar vein, Sargeant says that the
grievance process would not redress his harm because he now
resides at another prison. The dissent echoes these points.
We might not have disagreed with Sargeant in another
era. In fact, before Egbert, the Ninth Circuit agreed with simi-
lar arguments in a failure-to-protect case. Hoffman v. Preston,
26 F.4th 1059, 1069–71 (9th Cir. 2022). After Egbert, however,
the Ninth Circuit amended its opinion in Hoffman to come out
the other way, determining that the existence of the Bureau of
Prisons’ internal grievance process is a rational reason why
Congress might not want to authorize a damages remedy in
that context. Hoffman v. Preston, No. 20-15396, 2022 WL
6685254, at *1 (9th Cir. Oct. 11, 2022) (unpublished). The
Fourth Circuit reached the same conclusion. Bulger, 62 F.4th
at 140–41. Like these courts, we think this outcome is una-
voidable after Egbert. The arguments made by Sargeant and
the dissent run headfirst into the Supreme Court’s instruc-
tions telling us not to consider whether a Bivens action could
work alongside an existing scheme or whether the alternative
remedy completely compensates the victim. We must instead
ask only whether a single reason suggests that Congress is
better positioned to assess the need for a remedy or that
18 No. 21-2287
Congress might not desire a new remedy. The PLRA and the
Bureau of Prisons’ grievance program satisfy that low bar. 5
To put this all together, Sargeant’s suit implicates separa-
tion-of-powers concerns and other special factors that war-
rant hesitation. This means that, at step one, his claim arises
in a new context. It also means that, at step two, we have rea-
son to think that Congress is arguably better equipped than
us to determine whether to imply a novel damages remedy
for 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. Egbert, 596 U.S. at 493. So
Sargeant’s claim does not satisfy the Bivens framework no
matter how we apply that framework.
At the end of the day, our holding is narrow: the particular
claim in front of us cannot go forward because it presents sep-
aration-of-powers concerns and special factors not accounted
for by any of the Supreme Court’s three Bivens precedents. We
caution against reading more into our opinion. Egbert left
open the possibility that future claims will satisfy its demand-
ing standard, and we take the Supreme Court at its word. In
fact, we recently ruled in Snowden that a Fourth Amendment
claim alleging excessive force met that standard. 72 F.4th at
5 Barfield also argues that the Federal Tort Claims Act of 1946 (FTCA), 28
U.S.C. § 2674, is a reason to hesitate. We disagree because Carlson acknowl-
edged the FTCA and concluded that a Bivens remedy was still necessary.
446 U.S. at 19–23. The FTCA, therefore, cannot have “alter[ed] the policy
balance that initially justified the cause[] of action recognized in … Carl-
son.” Snowden, 72 F.4th at 244.
No. 21-2287 19
239. Unfortunately for Sargeant, his claim falls outside of the
narrow category of suits allowed under today’s doctrine.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district
court.
20 No. 21-2887
HAMILTON, Circuit Judge, dissenting. With threats to
“weaponize” federal agencies and agents against political op-
ponents a part of the American political debate, the stakes in
the Supreme Court’s campaign to cut back on Bivens actions
have never been higher. The ultimate fate of Bivens is likely to
be resolved in the Supreme Court itself, or perhaps across the
street in the United States Capitol. But until that happens,
there are still issues and choices for lower courts to address
when faced with Bivens claims. E.g., Snowden v. Henning, 72
F.4th 237 (7th Cir. 2023) (reversing dismissal of claims that
paralleled those in Bivens itself).
Eighth Amendment claims like that asserted by plaintiff
Sargeant—for deliberately putting a prisoner in danger of vi-
olence from other prisoners—have long been recognized by
the Supreme Court, this circuit, and other courts as entirely
suitable for a Bivens claim. E.g., Farmer v. Brennan, 511 U.S. 825(1994); Herron v. Meyer, 820 F.3d 860 (7th Cir. 2016).
The majority opinion, however, focuses on the Supreme
Court’s most recent Bivens cases. The majority sees some writ-
ing on the wall and anticipates that Sargeant’s case could no
longer survive. That prediction may turn out to be correct, but
I do not view that outcome as inevitable just yet. Unless and
until the Supreme Court itself announces the complete aban-
donment of Bivens and overrules Farmer v. Brennan—and the
host of lower-court cases based upon it—I would follow our
colleagues in the Third Circuit. We should reverse the district
court’s dismissal and allow Sargeant to pursue the familiar
Bivens route for relief under the Eighth Amendment, as rec-
ognized in Carlson v. Green, 446 U.S. 14 (1980), and Farmer v.
Brennan. See Shorter v. United States, 12 F.4th 366 (3d Cir. 2021)
(reversing dismissal of failure-to-protect claim under Bivens);
No. 21-2287 21
Bistrian v. Levi, 912 F.3d 79, 90–91 (3d Cir. 2018) (affirming de-
nial of summary judgment on failure-to-protect claim under
Bivens); contra, Bulger v. Hurwitz, 62 F.4th 127, 139 (4th Cir.
2023) (affirming dismissal of failure-to-protect claim as pre-
senting Bivens claim in new context). As the Supreme Court
and we have often said, the Supreme Court “does not over-
rule itself silently.” Censke v. United States, 947 F.3d 488, 492
(7th Cir. 2020), citing Rodriguez de Quijas v. Shearson, 490 U.S.
477, 484 (1990).
The story here does not begin with Bivens itself. From the
earliest days of the Republic, federal courts awarded damages
against federal officers for violating the legal rights of United
States citizens and others. Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388, 395–96 (1971). Con-
sistent with those longstanding practices and centuries of ju-
dicial experience crafting and fine-tuning remedies for
wrongs, Bivens recognized a right of action for damages di-
rectly under the Constitution for violations of individual
rights.
In Bivens, the rights violated were Fourth Amendment
rights against unreasonable searches and the use of unreason-
able force. Yet nothing about the reasoning of Bivens was lim-
ited to the Fourth Amendment. Lower federal courts began
applying Bivens to other individual rights. A few years after
Bivens, the Supreme Court applied it to the implied equal pro-
tection branch of the Fifth Amendment’s Due Process Clause
and to the Eighth Amendment prohibition on cruel and
22 No. 21-2287
unusual punishment of prisoners. Davis v. Passman, 442 U.S.
228 (1979); Carlson, 446 U.S. 14. 1
In this case, Sargeant alleges that defendant Barfield delib-
erately put him at risk by assigning him to share cells with
other prisoners known to be especially aggressive and vio-
lent. Farmer v. Brennan presented a nearly identical claim: that
federal prison officials had deliberately assigned a
transgender prisoner housing where she was likely to be as-
saulted, and she was in fact assaulted. 511 U.S. at 830–31.
Such failure-to-protect claims have been recognized by
this court and others for decades. E.g., Herron, 820 F.3d at 862–
63 (reversing summary judgment for defendant); Dale v.
Poston, 548 F.3d 563, 569 (7th Cir. 2008) (recognizing failure-
to-protect theory but affirming summary judgment for failure
to offer evidence of defendant’s actual knowledge of threat);
Bagola v. Kindt, 131 F.3d 632, 646 (7th Cir. 1997) (also recogniz-
ing theory but affirming summary judgment where defend-
ants took reasonable actions in response to danger); see also
Doe v. Robertson, 751 F.3d 383, 393–94 (5th Cir. 2014) (recog-
nizing theory but reversing denial of dismissal based on qual-
ified immunity); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980) (reversing dismissal); Smith v. United States, 561 F.3d
1090, 1104–06 (10th Cir. 2009) (reversing dismissal); Caldwell
v. Warden, 748 F.3d 1090, 1099–1102 (11th Cir. 2014) (reversing
summary judgment for defendants); Risley v. Hawk, 108 F.3d
1 In the wake of Davis and Carlson, debates in courts over the scope of
Bivens focused on whether Congress had enacted other remedies that
should suffice as substitutes for the Bivens damages remedy. The most
prominent examples were constitutional claims arising out of the Social
Security system and federal employment. See Schweiker v. Chilicky, 487
U.S. 412 (1988); Bush v. Lucas, 462 U.S. 367 (1983).
No. 21-2287 23
1396 (D.C. Cir. 1997) (recognizing theory but affirming sum-
mary judgment where defendant took action); Rodriguez v.
Thomas, 299 F. Supp. 3d 618, 635, 645 (M.D. Pa. 2018) (denying
summary judgment on failure-to-protect Bivens claim);
Browning v. Pennerton, 633 F. Supp. 2d 415, 433 (E.D. Ky. 2009)
(same).
In a series of recent cases, however, the Supreme Court has
resurrected the policy arguments made by the Bivens dissent-
ers. Compare Bivens, 403 U.S. at 411–12 (Burger, C.J., dissent-
ing), id. at 427–30 (Black, J., dissenting); and id. at 430(Blackmun, J., dissenting), with Ziglar v. Abbasi, 582 U.S. 120(2017), Hernandez v. Mesa, 589 U.S. —, 140 S. Ct. 735 (2020),
and Egbert v. Boule, 596 U.S. 482 (2022), where the Court’s
opinions argue against the power and competence of the
Court to provide a damages remedy for constitutional viola-
tions in the absence of express statutory authority. The Su-
preme Court is now instructing lower courts not to recognize
a Bivens claim without applying the two-step test described
by the majority to consider the “context” of the plaintiff’s case
vis-à-vis the Supreme Court’s own precedents.
As applied by the majority here and by some other cir-
cuits, that test has the practical effect of limiting Bivens, Carl-
son, and Davis strictly to their facts, thereby implicitly over-
ruling Farmer v. Brennan. That may be the intent of the Su-
preme Court’s most recent cases. Absent an express declara-
tion from the Supreme Court to that effect, though, it’s not our
job to anticipate that result. I base this conclusion on the long
history of Bivens, its antecedents, and its progeny, including
Farmer, as well as fifty years of congressional acceptance of
Bivens, and the principle that we should follow Supreme
Court precedents the Court itself has not overruled.
24 No. 21-2287
Farmer v. Brennan is squarely on point here. A federal pris-
oner brought a Bivens claim under the Eighth Amendment.
She offered evidence that she had been assigned to a prison in
the general population where she was at high risk of assault
by other prisoners, and she was in fact assaulted. This court
had affirmed summary judgment for defendants. The Su-
preme Court granted certiorari to address a circuit split on the
meaning of “deliberate indifference” in Eighth Amendment
cases. 511 U.S. at 832. The Court adopted in essence the sub-
jective recklessness standard from criminal law, id. at 839–40,
and remanded for further proceedings on Farmer’s Bivens
claim.
The majority’s analysis here is built on the premise that
Farmer is not a true Bivens case because the Supreme Court
did not list Farmer recently as one of its approved “contexts”
for Bivens. It is evident, however, that at least eight Justices in
Farmer had no doubt that, with sufficient proof of deliberate
indifference, Bivens applies to a failure to protect a prisoner. 2
If Bivens and Carlson v. Green did not extend to deliberate
failures to protect prisoners, Farmer would have been an odd
vehicle for the Supreme Court to address the Eighth Amend-
ment standard. The majority’s theory turns Farmer, with hind-
sight, into a misguided waste of everyone’s time. The better
view is that the universal assumption in Farmer that a Bivens
remedy was available shows that the Court was treating fail-
ure-to-protect claims as fitting comfortably within the
2 Justice Thomas concurred in the judgment and explained his disa-
greement with the failure-to-protect theory under the Eighth Amendment
without distinguishing between federal or state prisoners. 511 U.S. at 858–
62 (Thomas, J., concurring in the judgment). His opinion also did not ques-
tion the availability of a Bivens remedy for federal prisoners.
No. 21-2287 25
reasoning of Carlson. That conclusion was so obvious in
Farmer that it did not need to be questioned or explained.
Farmer has not been overruled by the Supreme Court, and we
have no authority to do so.
Sargeant’s claims thus do not present a “new context,” at
least while Carlson and Farmer remain on the books. Yet even
applying the two-step test from Abbasi and Egbert, Sargeant
has stated a valid Bivens claim under the Eighth Amendment
for deliberate failure to protect him from imminent harm.
A Bivens claim may proceed if it arises in an existing Bivens
context that is not “different in a meaningful way from previ-
ous Bivens cases decided by [the Supreme] Court.” Bistrian,
912 F.3d 79, 89–90, quoting Abbasi, 582 U.S. at 139. The Court
has written that meaningful differences to render a context
“new” include: (1) the rank of the officers involved; (2) the
constitutional right at issue; (3) the generality or specificity of
the official action; (4) the extent of judicial guidance for the
officer’s conduct; (5) the statutory or other legal mandate un-
der which the officer was operating; and (6) the risk of disrup-
tive intrusion by the Judiciary into the functioning of the po-
litical branches. See Bistrian, 912 F.3d at 90, quoting Abbasi, 582
U.S. at 140. These possibilities show that Sargeant’s claim fits
comfortably within Carlson and Farmer.
(1) Officers’ Rank. Sargeant has sued a front-line prison of-
ficial. The plaintiffs in both Carlson and Farmer sought relief
from front-line officials and higher-ranking officials, includ-
ing the federal Bureau of Prisons director and the prison war-
den respectively. See Carlson, 446 U.S. at 14; Farmer, 511 U.S.
at 825. That factor weighs in Sargeant’s favor.
26 No. 21-2287
(2) The Constitutional Right. Sargeant has asserted deliber-
ate indifference to a known risk of serious harm claim under
the Eighth Amendment—the same constitutional right alleg-
edly violated in both Carlson and Farmer.
(3) Generality or Specificity of the Official Action. Sargent is
not challenging a broad prison policy. He challenges specific
acts and decisions of an official aimed specifically at him. Carl-
son similarly challenged the specific acts of individual officials
who were indifferent to a prisoner’s serious medical condi-
tion. The specific acts in Farmer were even closer to this case,
dealing with an individual prisoner’s cell assignment.
(4) Extent of Judicial Guidance for Officer’s Conduct. Farmer is
the Supreme Court’s guide on failure-to-protect claims under
the Eighth Amendment. Such claims by federal, state, and lo-
cal prisoners are unfortunately routine in the federal courts.
Judicial guidance is extensive.
(5) Statutory or Other Legal Mandate. The actions at issue
here involve prison policies on prisoner placement and a legal
mandate to try to protect prisoners from violent attacks by
other prisoners. These are not meaningfully different from the
policies or legal mandate in Farmer. This context is similar
enough to the context of Carlson that the Court in Farmer did
not even need to bother addressing the application of Carlson.
(6) Risk of Disruptive Intrusion by the Judiciary into Function-
ing of Other Branches. Sargeant’s claim threatens no further
“intrusion” than the Supreme Court has long accepted in
cases brought by federal, state, and local prisoners. Again,
such cases are routine. Trying a front-line prison official’s al-
leged actions in putting a particular prisoner deliberately at
No. 21-2287 27
risk poses little if any risk of disruption of executive or legis-
lative power.
So this case does not present a new context. See Shorter v.
United States, 12 F.4th 366 (3d Cir. 2021); Bistrian, 912 F.3d at90–91. For essentially the same reasons, no special factors
counsel against providing Bivens relief.
First, as noted, this case involves not a high-level federal
policy but specific actions of a front-line official aimed at one
prisoner. Sargeant does not seek to reform over-arching
prison management or prison policies. His claims certainly do
not invoke issues of national security or international comity
that were present in Abbasi, Hernandez, and Egbert and help
explain their departures from precedent. Sargeant alleges that
a corrections officer deliberately created the risk of harm and
then failed to protect him from that harm. Deciding this case
would not cause courts to intrude into broad or sensitive
prison policies.
Second, the internal grievance process is clearly inade-
quate in this instance. In fact, according to Sargeant’s com-
plaint, his earlier use of that process triggered Barfield’s retal-
iation that put him at risk.
The Supreme Court has also said that courts should hesi-
tate to extend the Bivens remedy into a new context when
“legislative action suggest[s] that Congress does not want a
damages remedy.” Abbasi, 582 U.S. at 1498. I agree with the
Third Circuit “that congressional silence in the PLRA about
the availability of Bivens remedies” does not suggest that Con-
gress intended to make such remedies unavailable, Bistrian,
912 F.3d at 92–93, and the same is true for other statutes.
28 No. 21-2287
Thus, even the new two-step framework for Bivens claims,
Sargeant’s claim does not present a new context but a routine,
all-too-familiar Eighth Amendment claim already recognized
by the Supreme Court in Carlson and Farmer, and by many
lower-court cases. We should reverse.
Beyond the specifics of Sargeant’s case, the practical stakes
of the Supreme Court’s dismantling of Bivens are high. Bivens
offers an effective remedy where federal agents violate clearly
established constitutional law. It’s not a perfect remedy, nor
is it the only deterrent against abuse of power and authority
by federal agents. Bivens claims can fail for many reasons, in-
cluding the defense of qualified immunity. Also, apart from
Bivens claims, discipline by supervisors and, in egregious
cases, even criminal prosecution can help deter abuses. But
unlike those other deterrents, a Bivens claim is outside the
control of the executive branch, which is comprised of the
very officials that Bivens is designed to check.
Americans are justly proud of our constitutional protec-
tions of individual rights. But the declaration of those rights in
the Bill of Rights and the Thirteenth, Fourteenth, and Fif-
teenth Amendments is not sufficient grounds for satisfaction
or self-congratulation. Many national constitutions announce
similar protections of individual rights. 3
3 For example, Article 29 § 1 of the Constitution of the Russian Feder-
ation provides: “Everyone shall be guaranteed freedom of thought and
speech.” Article 35 of the Constitution of the People’s Republic of China
provides: “Citizens of the People’s Republic of China shall enjoy freedom
of speech, the press, assembly, association, procession, and demonstra-
tion.” Article 67 of the Socialist Constitution of the Democratic People’s
Republic of Korea provides: “Citizens are guaranteed freedom of speech,
of the press, of assembly, demonstration and association.” The Russian
No. 21-2287 29
Those precious rights under the United States Constitu-
tion are meaningful because of our mechanisms to enforce
them. “The very essence of civil liberty certainly consists in
the right of every individual to claim the protection of the
laws, whenever he receives an injury.” Bivens, 403 U.S. at 397,
quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803);
accord, 3 William Blackstone, Commentaries on the Laws of
England *23 (“where there is a legal right[,] there is also a le-
gal remedy”).
An independent judiciary’s power to issue injunctions
against federal (or state and local) agencies and officers to en-
sure compliance is a critical tool in making those declared
constitutional rights real. In many cases, however, an injunc-
tion would come too late to do any good for a victim of gov-
ernment abuse. Doctrines of ripeness and standing also can
prevent prospective injunctions without a clear threat that the
plaintiff herself will again be a victim of the same conduct.
E.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (plaintiff
lacked standing to seek injunctive relief under 42 U.S.C.
§ 1983 absent real and imminent threat of repeated use of
challenged chokehold against plaintiff specifically). Defend-
ants in criminal cases may invoke the exclusionary rule to pre-
vent the use of unconstitutional techniques to obtain their
conviction. But for victims of government abuses who do not
face prosecution or imminent repetition of the abuse, it is, as
and Chinese constitutions even expressly authorize damages remedies for
violations of constitutional rights by government officials. Konstitutsiia
Rossiĭskoĭ Federatsii [Konst. RF] [Constitution] arts. 29 § 1 & 53 (Russ.);
Xianfa arts. 35 & 41 (2018) (China); Joseon Minjujuui Inmin Gonghwaguk
Sahoejuui Heonbeop [Constitution] art. 6 (N. Kor.).
30 No. 21-2287
Justice Harlan wrote in Bivens, “damages or nothing.” 403
U.S. at 410 (Harlan, J., concurring in judgment).
In Egbert, Hernandez, and Abbasi, the Supreme Court opted
for nothing. As those cases are applied by the majority here
and by some other circuits, a federal agent who violates the
Constitution to carry out the policies of the federal executive
branch now has little to fear in terms of direct accountability.
Dissenting opinions in Egbert, Hernandez, and Abbasi have
criticized the dismantling of this vital legal restraint on the
federal government and its agents. There is no need, and it is
not my place, to repeat those criticisms. See Abbasi, 582 U.S. at
160–82 (Breyer, J., dissenting); Hernandez, 140 S. Ct. at 753–60
(Ginsburg, J., dissenting); Egbert, 596 U.S. 482 at 504–27 (So-
tomayor, J., dissenting in relevant part). It may, however, be
useful to make three observations: first, the deeper roots of
Bivens (far deeper than Bivens itself took the time to expound);
second, the history of its acceptance by Congress; and third,
the potential for a statutory solution for those concerned
about losing this important restraint on abuses of federal
power.
The Roots of Bivens. The Supreme Court’s recent criticisms
of Bivens treat it as if it were a judicial creation from whole
cloth in 1971. Framed that way, as a modern innovation by
judges, it seems to lack legitimacy. That’s how the Court’s re-
cent opinions dismantling Bivens have framed the issue.
Bivens itself, however, pointed to the long history of United
States courts providing damages remedies against federal of-
ficers who violated the legal rights of civilians, including
Fourth Amendment rights. 403 U.S. at 395–97, citing multiple
sources, including Bell v. Hood, 327 U.S. 678, 684 (1946)
(“where federally protected rights have been invaded, it has
No. 21-2287 31
been the rule from the beginning that courts will be alert to
adjust their remedies so as to grant the necessary relief”), and
West v. Cabell, 153 U.S. 78 (1894) (allowing suit for damages
for false arrest on U.S. marshal’s bond to ensure faithful per-
formance of duties). See also Abbasi, 582 U.S. at 163–65
(Breyer, J., dissenting) (noting historical foundations of
Bivens).
Scholars have pointed out that the roots are far deeper
than Bivens itself explained. Particularly helpful is a book by
Professor James E. Pfander, Constitutional Torts and the War
on Terror (Oxford 2017). Chapter 1, entitled “Government Ac-
countability in the Nineteenth Century,” reviews English law
on the subject and focuses on several cases from the early
years of our Republic in which federal courts awarded dam-
ages against federal officers for wrongs committed in the
course of their official duties. In the usual pattern for such
cases, Congress would then enact special legislation to indem-
nify the officer for the damage award. See, e.g., Little v. Bareme,
6 U.S. (2 Cranch) 170 (1804) (affirming damage award against
Navy captain for wrongful seizure of a ship on high seas); Act
for the Relief of George Little, ch. 4, 6 Stat. 63 (1807); Act of
March 2, 179, ch. 28, 1 Stat. 723, 724 (appropriating money to
cover damages against United States for wrongful seizure of
different ship). 4
4 For additional examples, see the notes in Pfander, Constitutional
Torts and the War on Terror at 182–87, and James E. Pfander and Jonathan
L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Ac-
countability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1932–39 (2010)
(collecting petitions for indemnification for claims against federal military
officers, revenue and customs officials, marshals, and postal officials from
1799 to 1865).
32 No. 21-2287
Officers indemnified through this mechanism included
then General and future President Andrew Jackson, who was
fined $1,000 by a federal judge for having maintained martial
law in New Orleans after word arrived of a peace agreement
ending the War of 1812. See Abraham Sofaer, Emergency Power
and the Hero of New Orleans, 2 Cardozo L. Rev. 233 (1981); Da-
vid J. Barron & Martin S. Lederman, The Commander in Chief
at the Lowest Ebb—Framing the Problem, Doctrine, and Original
Understanding, 121 Harv. L. Rev. 689, 747 n. 181 (2008). (Jack-
son paid the fine and did not seek indemnification, but was
awarded indemnification by Congress decades later.)
Professor Pfander points out that no less an authority on
the United States Constitution than James Madison had en-
dorsed judicial damages awards for wrongs committed by
federal officers. Pfander, Constitutional Torts and the War on
Terror at 9, 16. He summarized:
On Madison’s approach, * * * the federal courts
(and on occasion the state courts) were to pass
on the legality of the officer’s conduct in suits
for damages. * * * Nineteenth century jurists also
assumed that civilian courts were the proper fo-
rum for claims brought against military, reve-
nue, and postal officers who exceeded the
bounds of their authority and inflicted injuries
on innocent third parties. Such victims of fed-
eral official misconduct were entitled to sue in
federal court; their status as foreign nationals
was no bar to recovery. The military or, if you
will, national security context of the litigation
did not trigger any hesitation on the part of the
courts; they proceeded to the merits and
No. 21-2287 33
adjudicated the claim. * * * [I]t was up to Con-
gress to indemnify officers who acted in good
faith, thereby ensuring the provision of com-
pensation and redress to the victims of govern-
ment wrongdoing and immunity for well-
meaning government officials.
Id. at 16.
Congressional Acceptance of Bivens. In the wake of Bivens,
Congress has not tried to resist it as an illegitimate judicial in-
novation. Instead, Congress has legislated to integrate Bivens
actions into a broader web of remedies available for govern-
ment wrongdoing. As for the basic premise of providing a
damages remedy implied under the Constitution, Justice
Breyer wrote in dissent in Abbasi: “our cases have recognized
that Congress’ silence on the subject [of Bivens] indicates a
willingness to leave this matter to the courts.” 582 U.S. at 165
(Breyer, J., dissenting).
Examples of legislation to accommodate Bivens include
amendments to the Federal Tort Claims Act, see 28 U.S.C.
§§ 2679(b) & 2680(h), making clear that tort claims and Bivens
were not mutually exclusive but could co-exist. See Correc-
tional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001) ( “’crystal
clear’ that Congress intended the FTCA and Bivens to serve as
‘parallel’ and ‘complementary’ sources of liability”), quoting
Carlson, 446 U.S. at 19–20.
The Torture Victims Protection Act of 1991, codified as a
note to 28 U.S.C. § 1350, provides civil remedies in United
States courts against officials of foreign governments who en-
gage in torture or extrajudicial killing—so long as adequate
remedies are not available where the torture or killing
34 No. 21-2287
occurred. This statutory remedy limited to foreign officials
would be hard to understand if Congress had not assumed
and accepted that Bivens would already supply a remedy
against United States officials for similar wrongs.
The Prison Litigation Reform Act of 1995 imposed some
important restrictions on the ability of prisoners to obtain re-
lief for constitutional violations, but those provisions assume
that Bivens is available as a substantive remedy. See 42 U.S.C.
§ 1997e(a) & (e). The Detainee Treatment Act of 2005 granted
United States officers a limited good-faith immunity for civil
suits by alien detainees. The Act clearly assumed Bivens
would provide a civil right of action for both aliens and
United States citizens. These legislative actions over decades
signal that Congress has generally been satisfied to leave de-
velopment of Bivens doctrine to the Supreme Court, without
trying to force the Court to dismantle it.
Statutory Solutions. The Supreme Court’s recent decisions
may well aim toward dismantling the Bivens remedy entirely.
Its reasoning makes clear, however, that Congress may act to
provide a damages remedy for people who are injured by fed-
eral officers that commit constitutional violations. Citizens
and members of Congress who are troubled by this disman-
tling can fix it by enacting a federal statute, perhaps one par-
allel to 42 U.S.C. § 1983, or perhaps one with further policy
refinements written into the statute.
To sum up, we do not need to get out in front of the Su-
preme Court itself in dismantling Bivens. We should follow
the Third Circuit in Bistrian and Shorter and reverse the dis-
missal of Sargeant’s Eighth Amendment claim. I respectfully
dissent.