Tony Fisher v. Jordan Hollingsworth

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 22-2846

___________

TONY FISHER, a/k/a Kellie Rehanna,

Appellant

v.

WARDEN JORDAN HOLLINGSWORTH; WARDEN

DOE; UNIT DOE, Unit Manager, MS. FISCHER; MR.

WILLIAMS; N. WATKINS WARD; ANNA MORFE;

STACIE D. MARANTZ-TATTERSDI; FEDERAL

BUREAU OF PRISONS

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-18-cv-16793)

District Judge: Honorable Karen M. Williams

____________

Argued on February 8, 2024

Before: HARDIMAN, SCIRICA, and RENDELL, Circuit

Judges.

(Filed: August 15, 2024)

Gregory Cui

Devi M. Rao

Roderick & Solange MacArthur Justice Center

501 H Street NE

Suite 275

Washington, DC 20002

Elena S. Meth [Argued]

Roderick & Solange MacArthur Justice Center

Supreme Court and Appellate Program

160 E Grand Avenue

6th Floor

Chicago, IL 60611

Counsel for Appellant

Christina S. Paek

Lambda Legal

800 S Figueroa Street

Suite 1260

Los Angeles, CA 90017

Richard Saenz

Lambda Legal

120 Wall Street

19th Floor

New York, NY 10005

Counsel for Amici Curiae Lamda Legal Defense &

Education Fund, Inc., Black and Pink National, Center for

Constitutional Rights, and Just Detention International in

Support of Appellant

2

Jessica R. Amunson

Elizabeth B. Deutsch

Jenner & Block

1099 New York Avenue NW

Suite 900

Washington, DC 20001

Counsel for Amicus Curiae New Jersey Coalition

Against Sexual Assault in Support of Appellant

Philip R. Sellinger

Angela Juneau [Argued]

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

J. Andrew Ruymann

Office of United States Attorney

402 E State Street

Suite 430

Trenton, NJ 08608

Counsel for Appellee

3

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal involves an inmate seeking to recover

damages from federal prison officials because of sexual

assaults committed by another inmate. Consistent with the

Supreme Court’s opinion in Egbert v. Boule, 596 U.S. 482

(2022), we hold that no federal constitutional claim lies to

redress such injury. And even if it did, the complaint filed in

this case was untimely. For these reasons, we will affirm the

District Court’s order dismissing the suit.

I

A

Plaintiff-Appellant Tony Fisher 1 entered federal prison

in summer 2013 after pleading guilty to charges of producing

child pornography and enticing a minor for child

1

As the District Court noted, “Plaintiff is a biological male

who now identifies as transgender.” Fisher v. Worth, 2022 WL

3500432, at *1 (D.N.J. Aug. 18, 2022). “At the time of the

events that give rise to this matter, Plaintiff did not identify as

transgender.” Id. Plaintiff signed the pro se complaint and the

notice of appeal as “Tony Fisher.” But Plaintiff now also goes

by “Kellie Rehanna.” Consistent with the prison records,

complaint, notice of appeal, and caption, we refer to Plaintiff

as Fisher.

4

pornography. 2 After an initial interview, the Bureau of Prisons

(BOP) did not identify Fisher as at risk for sexual assault.

In July 2013, Fisher was transported to Fort Dix, a

federal prison in New Jersey. There Fisher reported having

been sexually assaulted at age 13, but that was Fisher’s only

listed risk factor for sexual assault. A week after arriving,

Fisher complained to the unit counselor about being verbally

harassed and catcalled by other prisoners—especially by a

prisoner known only as “C.” Fisher then met with the prison’s

staff psychologist, Dr. Anna Morfe. Morfe found that Fisher

had five risk factors for sexual assault: status as victim of

sexual assault, fear of the general prison population, sexual

orientation, status as a first-time prisoner, and criminal history

of sex offenses. Yet Morfe wrote: “Based upon a discussion

with the Inmate, he shows no indications that would require his

‘at risk’ level to be raised significantly above any other

inmate’s.” 3

Within days of this meeting, the inmate known as “C”

raped Fisher. Three times over the course of three days, “C”

performed unwanted sex acts on Fisher and forced Fisher to

perform sex acts on him.

Prison staff learned about the rapes a week and a half

later, when they overheard Fisher discussing them on a phone

2

See 18 U.S.C. § 2251(a); id. § 2422(b). At this stage of the

proceedings, we accept as true the facts pleaded in the

complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We

also consider exhibits attached to the complaint and matters of

public record. See Mayer v. Belichick, 605 F.3d 223, 230 (3d

Cir. 2010).

3

App. 54.

5

call. The prison promptly intervened. Dr. Morfe re-evaluated

Fisher, this time concluding that Fisher was at risk of assault.

So Fisher was moved to a segregated housing unit.

While in the Fort Dix prison’s segregated housing unit

that summer, Fisher was taken to speak with Captain Janet

Fitzgerald. According to Fisher’s declaration, Fitzgerald

warned Fisher “never [to] talk about the rapes” because “C”

could find Fisher through the BOP database even after Fisher’s

transfer to another prison, and prison staff would not protect a

snitch. 4 Fitzgerald likewise instructed that Fisher “must wait

until the BOP conducted an internal investigation” and the

agency’s attorneys reached out, rather than contacting an

attorney about the rapes. 5 As Fisher’s declaration explains:

77. Capt. Fitzgerald said I should not “cause

problems” for the BOP or they would make

problems for me, including by keeping me from

getting help from attorneys on the outside, and

through “diesel therapy”—which she explained

meant shipping an inmate from prison to prison

until the inmate stopped complaining.

78. Captain Fitzgerald’s words literally

frightened me for my life to take any legal action,

because I genuinely feared “C” would hunt me

down wherever I was.

79. I believed Captain Fitzgerald completely that

I needed to just let the BOP handle all legal

aspects and that I should wait until the BOP and

4

App. 77.

5

Id.

6

FBI finished their investigation. I did not know

enough about how the legal system or the prison

hierarchy work to doubt her. 6

After the assaults of summer 2013, Fisher underwent a

psychological evaluation at Fort Dix. According to the

psychological report, Fisher “denied the presence of any

current mental health complaints and declined the use of

psychology services at this time.” 7

In September 2013, the BOP transferred Fisher from

Fort Dix to a federal prison in Arkansas. Fisher underwent a

psychological evaluation there in early 2014. According to the

psychologist, “Fisher stated he is currently feeling ‘good’ and

that he is prescribed [three different drugs] to alleviate mental

health symptoms.” 8 Fisher’s “[m]ental status was [Within

Normal Limits].” 9 But in December 2014, the mental health

report was mixed. Fisher “struggl[ed] with an increase in

anxiety,” experienced “loss of appetite,” and “presented as

fatigued.” 10 At the same time, Fisher “appeared alert and

oriented,” demonstrated “no behavioral abnormalities,” and

had “organized, coherent, and goal-directed” thought

processes. 11

While seeking psychological records in 2017, Fisher

learned that the BOP had substantiated the rape allegations.

Fisher immediately filed a request for administrative remedies

6

Id.

7

Supp. App. 57.

8

Supp. App. 58.

9

Id.

10

Supp. App. 59.

11

Id.

7

in connection with the rapes, seeking $20 million in

compensatory damages and $20 million in punitive damages

from the BOP. Later that month, the Fort Dix Warden denied

the request. And on appeal, the BOP clarified that “the

Administrative Remedy Program does not ordinarily provide

for monetary relief.” 12

By fall 2018, Fisher’s mental health had worsened.

Fisher wrote in an email to a prison psychologist:

[A]ll of my PTSD symptoms have been quite

severe for quite a while as you know, I know that

it’s not my fault, but they’re getting worse. I try

to cope, calm myself, etc…, but nothing helps.

The flashbacks, debilitating stress, etc. I relive

the rapes daily. I’m no better now than years

ago. 13

B

In late 2018—more than five years after the 2013

assaults—Fisher filed this suit under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics. 14 The operative

complaint named eight federal prison officials as defendants in

their individual capacities. Fisher claimed Defendants violated

the Eighth Amendment’s prohibition on “cruel and unusual

punishments” through their deliberate indifference to the risk

of inmate-on-inmate sexual assault. Fisher sought $10 million

12

Supp. App. 288.

13

Supp. App. 63.

14

403 U.S. 388 (1971).

8

in compensatory damages and $10 million in punitive damages

for each rape.

Defendants moved to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure. They argued: (1) Fisher’s

suit was time-barred; and (2) Fisher had no Bivens cause of

action at all.

The District Court granted Defendants’ motion and

dismissed Fisher’s operative complaint. Applying New

Jersey’s two-year statute of limitations for personal injury

actions, the Court concluded that Fisher’s Bivens suit was time-

barred. 15 Fisher filed this timely appeal. 16

II

Although the District Court did not address whether

Fisher’s complaint was cognizable under Bivens, that issue

logically precedes the timeliness question. So we first ask

whether Fisher pleaded a cognizable Bivens claim. The answer

is no.

A

In 1871, Congress enacted 42 U.S.C. § 1983, which

created a private cause of action to redress violations of federal

rights committed by state actors. But Congress has yet to create

a similar cause of action to vindicate violations of federal rights

15

See Fisher, 2022 WL 3500432, at *4–5.

16

The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the District Court’s order of dismissal. Ocean Cnty. Bd.

of Comm’rs v. Att’y Gen., 8 F.4th 176, 180 (3d Cir. 2021).

9

by federal officers. In its 1971 Bivens decision, 17 the Supreme

Court implied a cause of action against federal drug agents

whose warrantless search of a home violated the Fourth

Amendment. The Court extended Bivens eight years later in

Davis v. Passman, 18 which created a Fifth Amendment

damages action against a Congressman who fired a staffer

because she was a woman. 19 A year later, Bivens was extended

again in Carlson v. Green, 20 which implied an Eighth

Amendment damages action against federal prison officials

who failed to provide medical care to an asthmatic prisoner. 21

“Since these cases, the Court has not implied additional causes

of action under the Constitution.” 22

With the new millennium, the Supreme Court took a

new approach to implied causes of action. The Court noted that

“private rights of action to enforce federal law must be created

by Congress.” 23 And failing that, “a cause of action does not

exist and courts may not create one, no matter how desirable

that might be as a policy matter.” 24 Consistent with that

approach, the Court’s 2017 decision in Ziglar v. Abbasi 25

established a restrictive test for extending Bivens. The Ziglar

17

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

18

442 U.S. 228 (1979).

19

See id. at 229–34.

20

446 U.S. 14 (1980).

21

See id. at 16–18, 16 n.1.

22

Egbert, 596 U.S. at 491.

23

Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

24

Id. at 286–87.

25

582 U.S. 120 (2017).

10

test first asked if the case presented a new Bivens context. 26 “If

the case is different in a meaningful way from previous Bivens

cases decided by this Court, then the context is new.” 27 If the

context was new, a court then asked whether any “special

factors” showed that Congress, rather than the courts, should

decide whether to extend Bivens. 28 This test counseled against

extending Bivens, since “expanding the Bivens remedy [wa]s

now a disfavored judicial activity.” 29

Yet even under the Ziglar test, the Third Circuit

extended Bivens. In Bistrian v. Levi, 30 we held that a federal

prisoner stated a “cognizable Bivens cause of action for the

alleged failure of the defendants to protect him from a

substantial risk of serious injury at the hands of other

inmates.” 31 At Ziglar’s first step, we concluded that an

inmate’s claim against federal prison officials for failure to

protect “d[id] not present a new Bivens context.” 32 In doing so,

we relied on the Supreme Court’s 1994 opinion in Farmer v.

Brennan, 33 which had assumed a Bivens cause of action was

available for failure to prevent inmate-on-inmate assault. 34 We

26

See id. at 139–40.

27

Id. at 139.

28

See id. at 140.

29

Id. at 135 (cleaned up).

30

912 F.3d 79 (3d Cir. 2018).

31

Id. at 88.

32

Id. at 90.

33

511 U.S. 825 (1994).

34

Farmer involved an Eighth Amendment claim against

federal prison officials who were indifferent to the risk that a

prisoner would be sexually assaulted. See id. at 828–32. The

Court granted certiorari to resolve a circuit split about the

11

stated that the Farmer Court “ha[d], pursuant to Bivens,

recognized a failure-to-protect claim under the Eighth

Amendment.” 35 Although we determined that the plaintiff’s

failure-to-protect claim presented no new context vis-à-vis

Farmer, we held in the alternative that the defendants’

proposed special factors were not persuasive enough to

foreclose a Bivens remedy. 36

This Court stood by Bistrian in Shorter v. United

States, 37 another case about inmate-on-inmate assault. The

federal prisoner in Shorter alleged an Eighth Amendment

Bivens claim: prison officials who had allowed the plaintiff to

be raped by a fellow inmate were liable for deliberate

indifference. 38 Applying Bistrian, we held that “Farmer

remains good law. Our case therefore does not present a new

Bivens context.” 39 Fisher argues that our decisions in Bistrian

and Shorter mean a Bivens claim is available here.

Defendants respond that Bistrian and Shorter have been

abrogated by the Supreme Court’s later decision in Egbert v.

Boule. 40 We agree. Egbert tightened the Ziglar test and, in

doing so, made a strong statement that lower courts should not

applicable Eighth Amendment standard. See id. at 832. Farmer

adopted “subjective recklessness” as the standard, see id. at

839–40—and assumed, without deciding, that the plaintiff had

a cause of action, see id. at 832–34.

35

Bistrian, 912 F.3d at 91.

36

See id. at 91–92.

37

12 F.4th 366 (3d Cir. 2021).

38

See Shorter, 12 F.4th at 369.

39

Id. at 373.

40

596 U.S. 482 (2022).

12

extend Bivens beyond the contexts recognized in Bivens,

Davis, and Carlson.

At the first step, Ziglar had asked, somewhat vaguely,

whether that case was meaningfully different “from previous

Bivens cases decided by [the Supreme] Court.” 41 When it

formulated the first step, Ziglar did not specify which cases

counted, 42 although it elsewhere discussed Bivens, Davis, and

Carlson as the relevant cases. 43 Egbert’s new articulation of

this step is clearer—and unequivocally narrows the universe of

relevant cases to just three. Egbert requires us to ask whether

Fisher’s case meaningfully differs “from the three cases in

which the Court has implied a damages action.” 44 And Egbert

clarifies that all cases since those three—including cases that

“assumed . . . a [Bivens] action might be available”—are

inapplicable. 45 Under this rubric, the only relevant cases are

Bivens, Davis, and Carlson. So Farmer is out. Because they

relied on Farmer at the first step, our decisions in Bistrian and

Shorter deviate from Egbert.

Egbert also modified Ziglar’s second step, the special-

factors analysis. Ziglar had asked “whether the Judiciary is

well suited, absent congressional action or instruction, to

consider and weigh the costs and benefits of allowing a

damages action to proceed.” 46 Egbert now requires us to ask

whether “the Judiciary is at least arguably less equipped than

Congress” to weigh the costs and benefits of a damages

41

Ziglar, 582 U.S. at 139.

42

See id.

43

See id. at 131.

44

Egbert, 596 U.S. at 492 (emphasis added).

45

Id. at 498; see id. at 491.

46

Ziglar, 582 U.S. at 136 (emphasis added).

13

action. 47 If there is “any reason” to think this “might” be so, we

cannot imply a Bivens remedy. 48 By contrast, Bistrian asked

whether the special factors that the defendants cited were

“[]persuasive,” whether there were “true alternative remedies,”

and whether there was “good reason to fear that allowing

[plaintiff’s] claim w[ould] unduly affect the independence of

the executive branch.” 49 The standard that Bistrian applied

cannot be squared with Egbert’s articulation of the second step.

And Bistrian’s holding about which alternative remedies count

as special factors has likewise been superseded by Egbert. In

Bistrian, we concluded that “[t]he administrative grievance

process [wa]s not an alternative [remedy].” 50 But Egbert holds

that an administrative grievance procedure is an alternative

remedy that forecloses a Bivens action. 51

Finally, Egbert instructs that the two-step framework

established in Ziglar largely reduces to just one question:

“whether there is any reason to think that Congress might be

better equipped to create a damages remedy.” 52 By itself, the

“uncertainty” that results from extending Bivens to a new

context “forecloses relief.” 53 And “[t]he newness of [a] ‘new

context’ . . . alone require[s] dismissal.” 54 To sum up, we read

Egbert to require the following: unless a case is

indistinguishable from Bivens, Davis, or Carlson, a damages

47

Egbert, 596 U.S. at 492 (emphasis added).

48

Id. (emphasis added).

49

Bistrian, 912 F.3d at 92–93 (emphasis added).

50

Id. at 92.

51

See Egbert, 596 U.S. at 497–98.

52

Id. at 492 (emphasis added).

53

Id. at 493.

54

Id. (cleaned up).

14

remedy may be created by Congress, but not by the courts.

Because Bistrian and Shorter took a more lenient approach

than Egbert, we now recognize their abrogation.

Respect for our own precedents “must succumb when a

prior holding of our Court . . . conflicts with a subsequent

Supreme Court holding.” 55 And we have also recognized the

abrogation of Circuit precedent by more recent Supreme Court

precedent that has “undermined [our Circuit’s] rationale.” 56

Egbert seriously undermines the rationale of Bistrian and

Shorter. For that reason, the Fourth Circuit rejected our

decision in Bistrian, explaining that “the Third Circuit did not

have the benefit of the Court’s more recent Bivens guidance.” 57

We agree with our sister court. Accordingly, we now align

Third Circuit law with the Supreme Court’s recent teachings in

Egbert. 58

55

Karns v. Shanahan, 879 F.3d 504, 515 (3d Cir. 2018).

Indeed, “[a] panel of our Court may decline to follow a prior

decision of our Court . . . whether the conflicting Supreme

Court decision was rendered before or after our prior decision.”

United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009). Here,

Bistrian and Shorter conflict with the Supreme Court’s

subsequent decision in Egbert.

56

United States v. Stevens, 70 F.4th 653, 659 (3d Cir. 2023).

57

Bulger v. Hurwitz, 62 F.4th 127, 139 (4th Cir. 2023).

58

In Xi v. Huagen, 68 F.4th 824 (3d Cir. 2023), our Court

applied Egbert and declined to extend Bivens. See id. at 837.

So we had no occasion there to consider the continued vitality

of Bistrian and Shorter.

15

B

Applying Egbert to the facts of this appeal, we hold that

there is no implied constitutional damages action against

federal officials who fail to protect prisoners from the criminal

acts of their fellow inmates. So Fisher has no Bivens cause of

action.

1

We begin by asking whether Fisher’s case differs

meaningfully from Bivens, Davis, and Carlson. 59 It does.

Fisher’s case is about prison officials who allegedly violated

the Eighth Amendment by failing to prevent inmate-on-inmate

violence. Bivens was about narcotics agents who allegedly

violated the Fourth Amendment by searching a home without

a warrant. And Davis was about a Congressman who allegedly

violated the Fifth Amendment by firing a staffer because of her

sex. Carlson comes closer to this appeal: it involved a claim

against prison officials who allegedly violated a prisoner’s

Eighth Amendment rights when they failed to provide medical

treatment.

But Carlson is not close enough to satisfy Egbert. The

Supreme Court has instructed that a case can differ

meaningfully from Bivens, Davis, and Carlson even when it

involves the same constitutional right as one of those cases. 60

So the fact that Carlson and this case both involve Eighth

Amendment claims is insufficient. The relevant question is

whether an Eighth Amendment claim for failure to provide

medical treatment differs meaningfully from an Eighth

59

See Egbert, 596 U.S. at 483.

60

See Hernandez v. Mesa, 589 U.S. 93, 103 (2020).

16

Amendment claim for failure to prevent inmate-on-inmate

assault.

The difference is clear. Unlike a failure-to-treat claim, a

failure-to-protect claim seeks to impose liability on prison

officials who fail to control the behavior of third parties.

Preventing inmate-on-inmate assault requires keeping

dangerous inmates apart from the targets of their violence.

Decisions about the placement and transfer of inmates involve

different concerns than decisions about the treatment of

diseases like asthma. And a cause of action for failure to protect

from inmate-on-inmate violence is likely to have different

“systemwide consequences” than Carlson’s cause of action for

failure to provide medical treatment. 61 So this case differs from

Carlson in meaningful ways.

Our sister courts support our decision here. Applying

Egbert, the Fourth, Seventh, and Ninth Circuits have held that

recognizing a damages action for failure to protect would

require an impermissible extension of Bivens. 62 The Fourth

Circuit reasoned, as we now do, that “organizational policies,

administrative decisions, and economic concerns inextricably

tied to inmate transfer and placement determinations” make

failure-to-protect claims different from failure-to-treat

claims. 63 And the Ninth Circuit correctly concluded that the

“mechanism of injury” differs as between a failure-to-treat

61

Egbert, 596 U.S. at 493 (cleaned up).

62

See Bulger, 62 F.4th at 137–42; Sargeant v. Barfield, 87

F.4th 358, 364–69 (7th Cir. 2023); Chambers v. Herrera, 78

F.4th 1100, 1105–07 (9th Cir. 2023).

63

Bulger, 62 F.4th at 138.

17

claim and a failure-to-protect claim: the latter seeks to hold

prison officials liable for harm caused by “other[s].” 64

Our sister courts also agree that plaintiffs cannot invoke

Bivens by analogizing their cases to Farmer. Such “reliance on

Farmer is misplaced” 65 because “the Supreme Court has never

recognized Farmer as a Bivens action.” 66 Although it might not

have seemed so before, the Egbert Court has now made it clear

that Bivens, Davis, and Carlson are the only three cases in

which the Supreme Court has recognized a constitutional

damages action against federal officials. 67 “Since these

cases”—the last of which was decided in 1980—“the Court has

not implied additional causes of action under the

Constitution.” 68 The theory that the 1994 Farmer decision

counts as a Bivens case is “contrary to” this teaching. 69 And

“neither Bivens, Davis, nor Carlson involved an official’s

alleged failure to . . . protect an inmate from prisoner-on-

prisoner violence.” 70 So Fisher’s failure-to-protect claim

differs meaningfully from the Court’s three Bivens contexts.

2

Having concluded that Fisher’s case differs from the

three relevant Supreme Court cases, we next ask whether any

64

Chambers, 78 F.4th at 1106.

65

Bulger, 62 F.4th at 138.

66

Chambers, 78 F.4th at 1105 n.2; see also Sargeant, 87 F.4th

at 365 (Farmer “never held—just assumed—that a Bivens

remedy was available to the plaintiff.”).

67

See Egbert, 596 U.S. at 492.

68

Id. at 491.

69

Bulger, 62 F.4th at 139.

70

Id.

18

special factor indicates that the judiciary may be less suited

than Congress to weigh the costs and benefits of a damages

remedy. 71 Any special factor—even one—suffices to foreclose

a new Bivens cause of action. 72 If there is a single reason to

pause, then we may not recognize a Bivens remedy. 73

This appeal presents many reasons to pause before

implying a Bivens remedy for failure to prevent inmate-on-

inmate assault. To start, the “impact on governmental

operations systemwide” is a reason why Congress, rather than

the judiciary, may be better suited to authorize a damages

remedy for failure to prevent assault. 74 Defendants argue, as

they did in the District Court, that Fisher’s novel Bivens claim

would impose systemwide costs on the BOP: liability here

would deprive the BOP and its employees of the wide-ranging

deference they need to preserve order and maintain security.

We agree. Fisher’s claim “seeks to impose liability on prison

officials on a systemic level,” and this “new category of prison

litigation” would place “a substantial burden . . . on

government operations.” 75

If the systemwide impact weren’t enough, another

quintessential special factor is also present: “an alternative

remedial structure.” 76 The BOP’s Administrative Remedy

Program is available to Fisher. That Program “allow[s] an

inmate to seek formal review of an issue relating to any aspect

71

Egbert, 596 U.S. at 492.

72

Id. at 493, 496.

73

Id. at 492.

74

Egbert, 596 U.S. at 491 (cleaned up).

75

Bulger, 62 F.4th at 141 (cleaned up); see also Chambers, 78

F.4th at 1106 (same).

76

Egbert, 596 U.S. at 493.

19

of his/her own confinement.” 77 “Although the [Program] does

not include a money damages remedy, inmates may file an

administrative grievance with the BOP or seek an injunction in

federal court to stop a pending transfer to a new facility.” 78 An

alternative remedy need not be “as effective as an individual

damages remedy” to foreclose a Bivens extension. 79 “So long

as Congress or the Executive has created a remedial process

that it finds sufficient to secure an adequate level of deterrence,

the courts cannot second-guess that calibration by

superimposing a Bivens remedy.” 80

Accordingly, we join our sister courts and hold that the

BOP’s Administrative Remedy Program precludes a Bivens

remedy. 81 In doing so, we track the Supreme Court’s holding

in Egbert that an agency’s grievance process is a special factor

foreclosing Bivens relief. 82 And we recognize the abrogation

of Bistrian’s contrary holding that “[t]he administrative

grievance process is not an alternative [remedy].” 83

* * *

Fisher cannot rely on our previous decisions that

recognized a Bivens action for failure to prevent inmate-on-

inmate violence. The Supreme Court’s decision in Egbert has

77

28 C.F.R. § 542.10(a).

78

Bulger, 62 F.4th at 140 (cleaned up).

79

Egbert, 596 U.S. at 498 (cleaned up).

80

Id. (emphasis added).

81

See Silva v. United States, 45 F.4th 1134, 1141 (10th Cir.

2022) (citing Egbert, 596 U.S. at 498); Bulger, 62 F.4th at 140–

41; Chambers, 78 F.4th at 1106–07.

82

See Egbert, 596 U.S. at 497–98.

83

Bistrian, 912 F.3d at 92.

20

abrogated those precedents. Applying Egbert, we hold that no

constitutional claim lies against federal officials who fail to

protect a prisoner from the violence of other inmates. So Fisher

has no cause of action under Bivens.

III

Even if Fisher had a cognizable Bivens claim, we agree

with the District Court that such a claim would be untimely

under New Jersey’s two-year statute of limitations for personal

injury actions. 84 Because timeliness was raised by the parties

and ruled on by the District Court, we hold in the alternative

that this action is time-barred. 85

A

Though Fisher’s action arises under federal law, that

“does not preclude the application of the statute of limitations

of the state.” 86 Where, as here, Congress has enacted no statute

of limitations for a federal tort, we ordinarily borrow the statute

of limitations from state law. 87

But what happens when a state provides multiple

statutes of limitations, each of which plausibly “govern[s] an

84

See N.J. Stat. Ann. § 2A:14-2.

85

See United States v. Adams, 36 F.4th 137, 147 (3d Cir. 2022)

(“[A]n alternate holding has the same force as a single holding;

it is binding precedent.”) (cleaned up), cert. denied, 143 S. Ct.

238 (2022).

86

O’Sullivan v. Felix, 233 U.S. 318, 322 (1914).

87

See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 462

(1975); Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446

U.S. 478, 483–84 (1980).

21

analogous cause of action?” 88 The Supreme Court has held that

claims brought under 42 U.S.C. § 1983 “are best characterized

as personal injury actions,” so a state’s statute of limitations for

injury to person applies. 89 And “where state law provides

multiple statutes of limitations for personal injury actions,

courts considering § 1983 claims should borrow the general or

residual statute for personal injury actions.” 90 Because every

state has exactly one general or residual statute of limitations

for personal injury actions, this rule limits confusion and

promotes predictability for plaintiffs and defendants alike. 91

The seminal case in this area is Owens v. Okure. 92 There

the Supreme Court clarified the rule for § 1983 claims, but did

not speak to the limitations period for Bivens claims. Yet

almost all our sister courts have held that the general or residual

personal injury statute of limitations applies to Bivens claims

too. 93 And with good reason. Though a judicially created

88

Tomanio, 446 U.S. at 483–84.

89

Wilson v. Garcia, 471 U.S. 261, 280 (1985), abrogation on

other grounds recognized, Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369, 377–78 (2004).

90

Owens v. Okure, 488 U.S. 235, 249–50 (1989).

91

See id. 245–48.

92

488 U.S. 235 (1989).

93

See Gonzalez v. Hasty, 802 F.3d 212, 219–20 (2d Cir. 2015);

Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999);

Spotts v. United States, 613 F.3d 559, 573–74 (5th Cir. 2010);

Zappone v. United States, 870 F.3d 551, 559 (6th Cir. 2017);

King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913

(7th Cir. 2000); Sanchez v. United States, 49 F.3d 1329, 1330

(8th Cir. 1995); Van Strum v. Lawn, 940 F.2d 406, 409–10 (9th

Cir. 1991); Young v. Davis, 554 F.3d 1254, 1256 (10th Cir.

22

damages action, Bivens functions analogously to § 1983, the

statutory damages action that Congress has authorized for

“deprivation of . . . rights, privileges, or immunities secured by

the Constitution.” 94 The difference is that Bivens implies a

damages remedy for unconstitutional action taken under color

of federal law, while § 1983 expressly provides a damages

remedy for unconstitutional action taken under color of state

law. 95 According to the Supreme Court, it would be “untenable

to draw a distinction” between Bivens and § 1983 in terms of

the immunities that apply. 96 The Court thus views Bivens as

indistinguishable from § 1983 in important respects—and

appears to have created Bivens on the model of § 1983. So we

see no reason to establish different timeliness principles to

govern Bivens actions.

We therefore join the chorus and hold that Bivens and

§ 1983 actions operate under identical timeliness rules. As with

§ 1983, the residual or general personal injury statute of

limitations applies to Bivens. 97 Both causes of action are best

served by this “uniform, easily applicable limitations

period.” 98

2009); Iriele v. Griffin, 65 F.4th 1280, 1282 n.1 (11th Cir.

2023). But see Barrett ex rel. Est. of Barrett v. United States,

462 F.3d 28, 38 (1st Cir. 2006) (declining to decide the issue).

94

42 U.S.C. § 1983.

95

See Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996).

96

Harlow v. Fitzgerald, 457 U.S. 800, 809 (1982) (cleaned up);

see also McSurely v. Hutchison, 823 F.2d 1002, 1005 (6th Cir.

1987).

97

See Owens, 488 U.S. at 236.

98

Van Strum, 940 F.2d at 409.

23

Because Fisher suffered injury in New Jersey on

account of Defendants’ allegedly unconstitutional conduct in

New Jersey, we apply that state’s general personal injury

statute. That law provides: “every action at law for an injury to

the person caused by the wrongful act, neglect or default of any

person within this State shall be commenced within two years

next after the cause of any such action shall have accrued.” 99

In the § 1983 context, we apply this two-year limitation when

New Jersey is the applicable state. 100 So too in this Bivens case.

Fisher was sexually assaulted in 2013 and filed suit in

2018. Fisher’s suit is untimely absent some exception.

B

Fisher claims an exception applies. According to Fisher,

New Jersey’s revival statute for sexual assault claims, N.J. Stat.

Ann. § 2A:14-2b (“2b”), renders timely this Bivens suit

alleging failure to prevent sexual assault. We are unpersuaded.

In determining whether a constitutional tort claim is timely, we

borrow only state-law timeliness rules that apply across the

board to personal injury torts. We do not borrow a state’s tort-

specific tolling and revival rules. And because New Jersey’s

“2b” revival statute is specific to tort claims for sexual assault,

it cannot revive an untimely Bivens claim.

New Jersey’s “2b” statute provides that,

notwithstanding any contrary statute of limitations:

99

N.J. Stat. Ann. § 2A:14-2.

100

See Dique v. New Jersey State Police, 603 F.3d 181, 185

(3d Cir. 2010).

24

an action at law for an injury resulting from the

commission of sexual assault, any other crime of

a sexual nature, a prohibited sexual act . . . , or

sexual abuse . . . , that occurred prior to

[December 1, 2019], and which action would

otherwise be barred through application of the

statute of limitations, may be commenced within

two years immediately following [December 1,

2019]. 101

This provision created a window—from December 2019 to

December 2021—for plaintiffs to bring sexual assault claims

that were otherwise time-barred. Fisher filed this suit in

December 2018, and it was pending before the District Court

within this window. According to Fisher, this makes the suit

timely.

Fisher cites Hardin v. Straub, 102 where the Supreme

Court clarified that “[l]imitations periods in § 1983 suits are to

be determined by reference to the appropriate state statute of

limitations and the coordinate tolling rules.” 103 At issue was a

Michigan statute that gave anyone “under 18 years of age,

insane, or imprisoned at the time the claim accrues” an

additional “1 year after the disability is removed” to bring a

cause of action, “although the period of limitations has run.” 104

101

N.J. Stat. Ann. § 2A:14-2b.

102

490 U.S. 536 (1989).

103

Id. at 539 (cleaned up).

104

Id. at 540 (quoting Mich. Comp. Laws Ann. § 600.5851(1)

(1987)).

25

The Supreme Court held that Michigan’s tolling provision

rendered the plaintiff’s § 1983 suit timely. 105

Fisher likens New Jersey’s “2b” statute to the Michigan

statute. We see it differently. The tolling statute in Hardin

applied to all personal injury torts: anyone suffering from a

legal disability received extra time to file suit for any tort. New

Jersey’s “2b” statute, by contrast, is tort-specific: it applies

only to torts that involve sexual assault, crimes of a sexual

nature, prohibited sex acts, or sexual abuse. 106 Adopting tort-

specific tolling and revival rules would conflict with the

“general or residual personal injury approach” to timeliness

that the Supreme Court in Owens instructed us to follow. 107

As Owens explains, there are strong “[f]ederal interests

in uniformity, certainty, and the minimization of unnecessary

litigation.” 108 These interests require federal courts to “borrow

the general or residual statute for personal injury actions.”109

And, as Hardin holds, when we borrow that general personal

injury statute of limitations, we likewise borrow “coordinate”

or “interrelated . . . provisions regarding tolling, revival, and

questions of application.” 110

We need to harmonize Owens’s command to borrow the

general limitations period with Hardin’s requirement to

borrow “coordinate” tolling and revival provisions. In doing

so, we conclude that tolling and revival provisions are

105

See id. at 542–44.

106

See N.J. Stat. Ann. § 2A:14-2b.

107

Owens, 488 U.S. at 242.

108

Id. at 240.

109

Id. at 250.

110

Hardin, 490 U.S. at 539 (cleaned up).

26

“coordinate” with the general limitations period only when

they apply generally to personal injury torts. In other words, a

federal court deciding a constitutional tort case borrows state

tolling and revival rules that apply to all personal injury torts.

But it does not borrow specialized tolling and revival rules—

those which apply only to a subset of personal injury torts.

At least three of our sister courts have synthesized the

Supreme Court’s teachings in Owens and Hardin as we do

here. 111 In constitutional tort cases, they borrow state tolling

and revival rules that apply across the board to personal injury

torts, but do not borrow tort-specific tolling and revival rules.

Accordingly, “[o]nly generally applicable tolling provisions—

such as those based on minority, incapacity, and equitable

grounds—should be incorporated” in § 1983 and Bivens

cases. 112

The point of our rule is to avoid doubt and dispute about

which state-law tort is most analogous to the federal

constitutional tort. It would “frustrate ‘the federal interest in

uniformity and the interest in having firmly defined, easily

applied rules’” if we “appl[ied] the residual statute of

limitations” but then “adopt[ed] a tort-specific tolling

provision.” 113 By borrowing only those tolling rules that apply

111

See Kane v. Mount Pleasant Cent. Sch. Dist., 80 F.4th 101,

108–11 (2d Cir. 2023); Bonneau v. Centennial Sch. Dist., 666

F.3d 577, 580 (9th Cir. 2012); Varnell v. Dora Consol. Sch.

Dist., 756 F.3d 1208, 1212–13 (10th Cir. 2014).

112

Varnell, 756 F.3d at 1213.

113

Bonneau, 666 F.3d at 580 (quoting Wilson, 471 U.S. at 270).

27

generally to personal injury torts, we avoid making “a choice

among multiple tolling provisions.” 114

Under our approach, the applicable tolling and revival

rules never depend on the “precise legal theory of the claim.” 115

There is “no need to analyze the nature of the underlying

claims,” 116 because the same state timeliness rules apply to

every federal constitutional tort claim—no matter which

constitutional right is at issue and no matter which common-

law right it resembles. For example, we never ask whether an

alleged Fourth Amendment violation is more like trespass or

false imprisonment. And we never ask whether an alleged

Eighth Amendment violation is more like a sexual assault tort

or a medical malpractice tort. A trespass-specific tolling rule

or sexual-assault-specific revival rule can never apply, which

rules out the need for such inquiries.

New Jersey’s “2b” statute is a specialized revival

provision that applies only to sexual assault torts. So “2b” is

not “coordinate” or “interrelated” with the general personal

injury statute of limitations, 117 and we cannot apply “2b” to

render Fisher’s constitutional tort claims timely. 118

114

Id. (cleaned up).

115

Wilson, 471 U.S. at 274.

116

Kane, 80 F.4th at 109.

117

Hardin, 490 U.S. at 539.

118

Fisher also cites a New Jersey tolling provision: “Nothing

in [the seven-year statute of limitations for sexual assault

claims] is intended to preclude the court from finding that the

statute of limitations was tolled in an action because of the

plaintiff’s mental state, physical or mental disability, duress by

the defendant, or any other equitable grounds.” N.J. Stat. Ann.

28

C

Fisher’s fallback position is that the complaint qualifies

for equitable tolling. New Jersey’s general tolling principles

apply because we borrow them together with the state’s general

personal injury statute of limitations. 119 We have characterized

New Jersey’s doctrine of equitable tolling as “narrowly

limited.” 120 More importantly, the New Jersey Supreme Court

teaches that “the doctrine of equitable tolling of limitations

periods has been applied only in narrowly-defined

circumstances.” 121 Those “very limited circumstances” are:

(1) if the defendant has actively misled the

plaintiff,

(2) if the plaintiff has in some extraordinary way

been prevented from asserting his or her rights,

or

§ 2A:14-2a(b)(2). This provision may establish a specialized

tolling rule for sexual assault cases. Cf. R.L. v. Voytac, 971

A.2d 1074, 1083–84 (N.J. 2009) (interpreting an analogous

statute as a specialized tolling provision). If so, it cannot apply

to render this Bivens suit timely. And if it does not create a tort-

specific rule for sexual assaults, then it merely restates the

generally applicable state law of equitable tolling.

119

See Dique, 603 F.3d at 185.

120

Knight v. Brown Transp. Corp., 806 F.2d 479, 484 (3d Cir.

1986).

121

R.A.C. v. P.J.S., Jr., 927 A.2d 97, 107 (N.J. 2007).

29

(3) if the plaintiff has timely asserted his or her

rights mistakenly in the wrong forum. 122

And equitable tolling “does not excuse claimants from

exercising the reasonable insight and diligence required to

pursue their claims.” 123 New Jersey law—which allows

equitable tolling in these three circumstances only if the

plaintiff also exercises diligence—is essentially the same as

our test for equitable tolling. 124 And our precedent on the

federal law of tolling can be relevant because “[w]here state

tolling principles contradict federal law or policy, federal

tolling principles may apply.” 125

There is no suggestion that Fisher timely filed in the

wrong forum, so Fisher is entitled to equitable tolling only if a

Defendant actively misled Fisher or if Fisher was prevented in

some extraordinary way from filing. Fisher makes two

arguments on this score, which we address in turn.

1

Fisher first claims that Captain Fitzgerald tricked Fisher

into allowing the two-year filing deadline to pass. According

to Fisher’s declaration:

Captain Fitzgerald said I should never talk about

the rapes for my own safety, because [the rapist]

122

Barron v. Gersten, 277 A.3d 502, 504 (N.J. App. Div. 2022)

(cleaned up), cert. denied, 286 A.3d 187 (N.J. 2022).

123

Id. at 505.

124

See D.J.S.-W. by Stewart v. United States, 962 F.3d 745,

750 (3d Cir. 2020).

125

Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009).

30

could still find me even . . . after I transferred to

the other prison, and the prison staff would not

protect me from violence if I “snitched.” . . .

Captain Fitzgerald told me I must wait until the

BOP conducted an internal investigation and

until BOP attorneys contacted me, and she

strongly urged me not to contact any attorney

regarding the rapes. 126

As the District Court noted, Fisher “was transferred out of state

and far beyond the reach of Captain Fitzgerald”—and, we may

add, beyond the reach of Fisher’s assailant—“a mere two

months after the assaults.” 127 So Fisher “had the vast majority

of the two-year limitation period within which to file a

complaint where the captain had no ability to deter or

interfere.” 128

The District Court’s conclusion—that Fisher was not

entitled to equitable tolling—aligns with our precedent. In

Kach v. Hose, 129 we applied the federal law of equitable tolling,

assuming arguendo it might be more plaintiff-friendly than

state law. 130 There, a high school student ran away with a

public-school employee and lived with him from age 14 to age

24. 131 After escaping, she sued school officials, including her

captor, under § 1983. 132 She argued that equity tolled the

126

App. 77.

127

Fisher, 2022 WL 3500432, at *5.

128

Id.

129

589 F.3d 626 (3d Cir. 2009).

130

See id. at 645.

131

See id. at 630–31.

132

See id.

31

limitations period until she was freed at age 24. 133 We

disagreed, holding that equitable tolling did not render timely

the claims of a young woman who was still under the control

of a man who had abducted her as a minor. 134 It follows that

Fisher, who was soon transferred far from Fitzgerald’s control,

cannot qualify for equitable tolling here.

Moreover, as Defendants argue and as the District Court

found, Fisher has not shown the diligence required for

equitable tolling. 135 Once transferred away from Fitzgerald,

Fisher could have asked staff at the new prison whether it was

necessary to await the results of an internal investigation before

filing suit. Instead, Fisher “believed Captain Fitzgerald

completely.” 136 That lack of diligence rules out equitable

tolling.

2

Fisher next cites mental health—and unique

vulnerability—as justifications for equitable tolling here.

Recall that the two-year limitations period began running in

summer 2013 and expired in summer 2015. Well within that

period, in January 2014, “Fisher stated he is currently feeling

‘good.’” 137 And in a December 2014 report, Fisher was

characterized as “alert and oriented on all domains” with “no

133

See id. at 635.

134

See id. at 645.

135

See Fisher, 2022 WL 3500432, at *5.

136

App. 77.

137

Supp. App. 58.

32

behavioral abnormalities.” 138 Fisher’s “[t]hought-processes

were organized, coherent, and goal-directed.” 139

If anything, these psychological records show that

Fisher’s mental health was worse by December 2018, when

suit was filed. In October 2018, for instance, Fisher wrote:

“[M]y PTSD symptoms . . . [are] getting worse. I try to cope,

calm myself, etc…, but nothing helps. The flashbacks,

debilitating stress, etc., I relive the rapes daily. I’m no better

now than years ago.” 140 Despite all that, Fisher managed to file

suit. So Fisher’s delay in filing suit was not attributable to

issues of mental health or unique vulnerability.

We conclude by noting that “[c]ourts that have allowed

equitable tolling based on mental illness have done so only in

exceptional circumstances, such as where the complainant is

institutionalized or adjudged mentally incompetent.” 141 And

New Jersey law, which requires “mental disability” for the

tolling of general personal injury torts, 142 comports with

federal caselaw on this point. 143 After reviewing Fisher’s

allegations and the records attached to the complaint, we agree

with the District Court that this case does not warrant equitable

138

Supp. App. 59.

139

Id.

140

Supp. App. 63.

141

Lyons v. Potter, 521 F.3d 981, 983 (8th Cir. 2008), quoted

in Kach, 589 F.3d at 64.

142

N.J. Stat. Ann. § 2A:14-21.

143

See Kelsey v. Cohen, 2012 WL 1672889, at *2 (N.J. App.

Div. May 15, 2012).

33

tolling. 144 We hold that Fisher’s putative Bivens action is time-

barred.

* * *

There is no Bivens cause of action for failure to prevent

inmate-on-inmate assault. And even if Fisher had a cause of

action, any Bivens claim would be time-barred by New

Jersey’s two-year statute of limitations for personal injury

claims. New Jersey’s revival provision for sexual assault

claims does not apply to a Bivens suit, and Fisher is not entitled

to equitable tolling. For these reasons, we will affirm the

District Court’s order.

144

See Fisher, 2022 WL 3500432, at *6.

34

RENDELL, Circuit Judge, concurring in part and dissenting in part:

Though the majority dismisses Appellant’s claims

because they are not cognizable under Bivens, it then goes on

to determine that because the revival provision is tort-specific,

it cannot apply under our precedent. To the extent any

discussion of the application of the New Jersey statute is

relevant and not dicta,1 I respectfully dissent from my

colleagues and would find that the application of New Jersey’s

revival provision not only comports with, but is compelled by,

precedent.

1

“[I]f it is not necessary to decide more, it is necessary not to

decide more[.]” Anariba v. Dir., Hudson Cnty. Corr. Ctr., 17

F.4th 434, 449 (Nov. 3, 2021) (cleaned up). The majority views

the statute of limitations discussion as an alternative holding.

Supra at Section III.A, n. 85. But having concluded that there

is no cause of action, can the statute of limitations discussion

be anything but dicta? Moreover, what basis do we have to

discuss the statute of limitations for a cause of action we agree

is nonexistent? The Supreme Court has cautioned that we

should “confine the opinion only to the very questions

necessary to decision of the case.” Dames & Moore v. Regan,

453 U.S. 654, 661 (1981); Trump v. United States, 603

U.S. ____ (2024), 144 S. Ct. 2312, 2369 (2024) (Sotomayor,

J., dissenting); see also Morse v. Frederick, 551 U.S. 393, 431

(2007) (Breyer, J., concurring in part and dissenting in part)

(chastising the majority for going further than necessary, when

deciding the case solely on the qualified immunity issue before

the Court would have produced a unanimous decision).

1

I

The applicable precedent that both sides wrestle with is

the Supreme Court’s opinion in Wilson, and its follow-up

opinion in Owens, that clarified the relevant statute of

limitations for Section 1983 actions. Read together, these

opinions dictate that one specific state statute of limitations—

the general or residual personal injury statute—should apply.

Wilson v. Garcia, 471 U.S. 261 (1985); Owens v. Okure, 488

U.S. 235 (1989). The backdrop of these opinions is key to

understanding my dissenting view.

For years, federal courts had been presented with

preliminary issues regarding the applicable statute of

limitations in Section 1983 cases.2 An ALR annotation

recounted that this was previously a “difficult issue for the

courts,” replete with “uncertainty, confusion, and lack of

uniformity in selecting the applicable statute of limitations in §

1983 suits.” Annot., 45 A.L.R. Fed. 548, 554 (1979). Cases

were stymied at the outset with the need for the court to decide

this pivotal issue. See Wilson, 471 U.S. at 272-75 & n. 25.

Litigants were uncertain as to the deadline for filing their

claims. See id. at 273-74 (“If the choice of the statute of

limitations were to depend upon the particular facts or the

precise legal theory of each claim, counsel could almost always

argue, with considerable force, that two or more periods of

limitations should apply to each § 1983 claim.”). For example,

one court would apply the statute of limitations for actions

based upon liability created by federal statute, while another

would permit a plaintiff to proceed based upon a more

2

I agree with the majority that “Bivens and § 1983 actions

operate under identical timeliness rules.” Supra at III.A.

2

generous catch-all statute of limitations. See Lai v. City & Cnty.

of Honolulu, 749 F.2d 588, 589-90 (9th Cir. 1984). As the

Court in Wilson noted, there was a crying need for “uniformity,

certainty, and a minimization of unnecessary litigation.” 471

U.S. at 275. Litigation, that is, regarding which statute of

limitations should apply. Thus, the Supreme Court came up

with a practical solution: it adopted a rule. Section 1983 claims

are best characterized as personal injury actions, and hence a

state’s statute of limitations for personal injury actions should

apply.3 Reading the opinion, one gets the sense that the Court

felt compelled to resolve the untenable situation in these cases.

In Owens, the Supreme Court next considered what

state statute of limitations should apply when a state has

multiple personal injury statutes. Owens, 488 U.S. at 236. The

Court continued the “practical inquiry” it had adapted in

Wilson and directed courts to apply the “statute that can be

applied with ease and predictability in all 50 states,” id. at 242,

namely, “the general or residual statute for personal injury

actions,” id. at 249-50. The Court explained that to apply a tort-

specific statute of limitations depending on the nature of the

claim would just further “the present confusion” and would be

inconsistent with Section 1983’s broad scope. Id. at 244, 248.

3

Notably, Justice O’Connor dissented. She accused the Court

of legislating, due to Congress’s failure at the time to pass any

number of proposed bills to standardize the limitations period

for Section 1983 claims. Wilson, 471 U.S. at 284 (O’Connor,

J., dissenting). She cautioned that the majority’s decision both

co-opted federal legislation and “effectively foreclose[d]

legislative creativity on the part of the States.” Id.

3

Shortly after the Supreme Court decided Owens, it

issued its opinion in Hardin, which bears specifically on the

issue before us: whether state revival and tolling provisions

should apply to Section 1983 and Bivens claims. Hardin v.

Straub, 490 U.S. 536 (1989). I believe Hardin is not only

relevant but controlling here. In Hardin, the Sixth Circuit was

presented with the question of whether the court should apply

a Michigan tolling provision that suspends limitations periods

for prisoners and others with legal disabilities until one year

after the disability has been removed. Id. at 537. The Sixth

Circuit refused to apply the tolling provision, reasoning that

applying the tolling period was “counterproductive to sound

federal policy in attempting to deal with § 1983 claims as

promptly as practicable.” Id. at 542 (quoting Higley v.

Michigan Dep’t of Corrections, 835 F.2d 623, 626-27 (1987)).

The Supreme Court reversed the Sixth Circuit and made

the critical statement that should be our guide: “Courts thus

should not unravel state limitations rules unless their full

application would defeat the goals of the federal statute at

issue.” Id. at 539. The Court determined that the state’s

decision to toll the statute of limitations did not frustrate the

goals of Section 1983. Id. at 543. Instead, the Court explained

that the “tolling statute reflects a legislative decision to lessen

any such difficulties by extending the time in which prisoners

may seek recovery for constitutional injuries. Such a statute is

consistent with § 1983’s remedial purpose.” Id. at 544. In a

footnote, the Court specifically rejected the notion that

Wilson’s concerns for uniformity, certainty, and the

minimization of unnecessary litigation applied here to “weigh

against application of Michigan’s tolling provision.” Id. at 544,

n. 14.

4

It is undisputed that Wilson and Owens dictate that, for

the sake of uniformity and consistency, and to avoid

unnecessary litigation, courts in Section 1983 actions should

apply the forum state’s general or residual personal injury

statute of limitations for Bivens actions. But these cases go no

further than that, either explicitly or implicitly. And Hardin

reinforced that we should respect state legislative

determinations unless they undermine federal policy.

II

The Federal Defendants urge—and the majority

agrees—that Wilson and Owens should operate to foreclose the

application of the revival statute here. The majority states: “In

determining whether a constitutional tort claim is timely, we

borrow only state-law timeliness rules that apply across the

board to personal injury torts. We do not borrow a state’s tort-

specific tolling and revival rules.” Supra at Section III.B. But

we must wonder why not. Wilson and Owens do not say this

and Hardin says the opposite. Neither party contends that there

is any confusion regarding its application or any need for

uniformity. Nor is there any unnecessary litigation that would

accompany the application of this revival statute or others like

it. There is simply no predicament here that is analogous to that

which caused the Supreme Court to take the unusual course

that it did in Wilson and Owens. And no one has urged a

countervailing federal policy that should cause us to disregard

the state prerogative. Moreover, here we are not asked to

choose one of several statutes that states have enacted that

could arguably apply. Instead, we are asked to nullify New

Jersey’s legislative decision that plaintiffs who have

experienced this type of very specific harm should be entitled

5

to more time to bring their claims. We should apply the revival

provision, as the Court did in Hardin. 490 U.S. at 544.

The Federal Defendants’ argument that because the

revival provision at issue here is not “closely related” to the

statute of limitations it should be nullified lacks foundation.

This interpretation misreads Wilson. It seizes on a sentence in

Wilson that merely states the obvious: “Only the length of the

limitations period, and closely related questions of tolling and

application, are to be governed by state law.” 471 U.S. 261,

269 (1985). This observation is followed by a footnote that

makes the unremarkable point that “[i]n virtually all statutes of

limitation the chronological length of the limitation period is

interrelated with provisions regarding tolling, revival, and

questions of application.” Id. at 269, n.17 (citing Johnson v.

Ry. Express Agency, Inc., 421 U.S. 454, 464 (1975)). Wilson

does not instruct that only the “closely related” questions of

tolling and revival can apply to federal claims (and, even if it

did, such instructions would be dicta, as in Wilson the Court

was only asked to determine which statute of limitations

applied). All Wilson does is note that statutes of limitations and

closely related questions of tolling, revival, and application are

governed by state law—a proposition with which I

wholeheartedly agree. That is a far cry from saying that we

should refuse to apply a revival provision provided by state law

when we have chosen a certain state statute of limitations for

Section 1983 claims. And it is important to note that Wilson

and Owens did not choose a federal statute of limitations—

rather they recognized that these provisions are state centric.

Indeed, the Supreme Court in Hardin clarified how we

should approach this issue:

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This tradition of borrowing analogous

limitations statutes is based on a congressional

decision to defer to the State’s judgment on the

proper balance between the policies of repose

and the substantive policies of enforcement

embodied in the state cause of action. In virtually

all statutes of limitations the chronological

length of the limitation period is interrelated with

provisions regarding tolling, revival, and

questions of application. Courts thus should not

unravel state limitations rules unless their full

application would defeat the goals of the federal

statute at issue.

490 U.S. at 538-39 (cleaned up). The majority’s decision to

pick one of the State’s statutes of limitations but then refuse to

apply its tolling and revival provisions ignores the “State’s

judgment on the proper balance” between repose and

enforcement. Id. at 538. It is one thing to cabin or restrict this

judgment when uniformity and consistency require. It is quite

another to do so for no apparent reason, as is the case here.

Following Hardin, we should not unravel rules of revival

where no federal policy requires it. Hardin, 490 U.S. at 539.

Like the provision in Hardin, the revival provision New

Jersey enacted reflects the legislature’s wisdom and decision

to provide victims of sexual assault extra time to bring

previously barred claims does not frustrate Bivens goals of

compensation and deterrence. See Chardon v. Fumero Soto,

462 U.S. 650, 657 (1983) (“[N]o federal policy—deterrence,

compensation, uniformity, or federalism—[is] offended by the

application of state tolling rules.”). “Rather, it enhances the

[victim’s] ability to bring suit and recover damages for

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injuries.” Hardin, 490 U.S. at 543. Indeed, “[t]he State also

may have decided that if the official knows an act is

unconstitutional, the risk that he or she might be haled into

court indefinitely is more likely to check misbehavior than the

knowledge that he or she might escape a challenge to that

conduct within a brief period of time.” Id. On this basis, I

would apply New Jersey’s sexual assault revival provision to

federal Bivens claims.

I acknowledge that the Second, Ninth, and Tenth

Circuits have reached the same conclusion as the majority does

here. While I believe their rhetoric is appealing, I find their

reasoning less so. In Kane v. Mount Pleasant School District,

the Second Circuit, presented with a situation similar to the one

before us today, declined to apply New York’s child sex abuse

revival provision. In doing so, it stated that “[i]t would strain

credulity that the Supreme Court would require federal courts

to abstain from a factual analysis for purposes of determining

the appropriate statute of limitations, only to allow courts to

engage in that same analysis to determine if a revival or tolling

provision applies.” 80 F.4th 101, 109 (2d Cir. 2023). The

majority similarly alludes to some theoretical “doubt and

dispute” that the application of New Jersey’s revival provision

would entail. Supra at Section III.B. But two questions come

to mind in response: where did Wilson concern itself with fact

finding, as such, and what fact finding is actually required? The

unnecessary litigation that Wilson was concerned with had less

to do with a hesitation to engage in a factual inquiry and more

to do with selecting the most appropriate statute under several

potential theories of liability based on known facts. Here, we

are presented with a straightforward revival provision; either it

applies or it does not. What litigation, let alone fact finding,

will occur in order for the court to determine whether the

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plaintiff’s claim is timely? I suggest, none. Furthermore, there

is no “choice” to be made here, as in the case of the statute of

limitations. Rather, we are essentially nullifying something the

New Jersey legislature has enacted. To do so runs counter to

Supreme Court precedent in Hardin. And, to give force to these

tolling provisions furthers, rather than undermines, the broad

remedial purpose of Section 1983 and of Bivens.

Moreover, if we believe that Wilson dictates nullifying

state law that would entail fact finding regarding the time

provided to bring suit, what does it do to equitable tolling

analyses, which are, by their very nature, intensely fact bound?

Why is application of a revival provision any more difficult to

apply than principles of equitable tolling—which neither side

contends should be done away with? In fact, it isn’t. In essence,

there is no basis for nullifying a state’s revival statute any more

than we would do away with principles of equitable tolling.

Wilson and Owens don’t hint at it, let alone require it.

Moreover, Hardin could be said to point in the opposite

direction.

In Bonneau, the Ninth Circuit refused to interpret the

extended 20-year statute of limitations for child abuse victims

as a tolling provision, and thus declined to apply it to a Section

1983 claim. The majority quotes the analysis from Bonneau, in

which the Ninth Circuit posited that it would “no less frustrate

‘the federal interest in uniformity and the interest in having

firmly defined, earlier applied rules’ were we to obediently

apply the residual statute of limitations, only to adopt a tort-

specific tolling provision.” Supra at Section III.B (quoting

Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 580

(9th Cir. 2012). Bonneau then pretends to quote from Owens,

but actually inserts the word “tolling” where it does not appear

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in Owens when it says, “Such a holding ‘would succeed only

in transferring the [ ] confusion over the choice among multiple

[statutes of limitations] to a choice among multiple [tolling]

provisions.’” Id. (citing Owens, 488 U.S. at 244) (alterations in

original). The unaltered language from Owens reads that, “we

would succeed only in transferring the present confusion over

the choice among multiply personal injury provisions to a

choice among multiple intentional tort provisions.” Owens,

488 U.S. at 244. But more to the point, I question the very

premise of this reasoning from Bonneau, which the majority

adopts, supra at Section III.B, which is that there are multiple,

tort-specific tolling provisions just as there are multiple, tort-

specific statutes of limitations.

And, I am unconvinced that we should view the revival

or tolling provisions at issue here as tort-specific. To the

contrary, they are victim-specific. It doesn’t matter whether the

underlying act was technically an assault, a battery, rape, or

murder. It is the victim of a broad category of offenses that is

entitled to take advantage of the revival provision. Why is the

sexual abuse victim any different from the legally disabled

prisoner in Hardin? New Jersey and Michigan have identified

that certain victims deserve special treatment—with no

showing that there is confusion about who can avail themselves

of the provision or any need for uniformity—and as long as

there is no undermining of a federal policy or interest (as there

is with non-uniform statutes of limitation in Section 1983 cases

in general), why should they not be permitted to do so?

We have heard from various amici urging policy

reasons as to why we should reverse this order. While I do not

reason based on policy, I truly regret that victims of sexual

abuse are being denied their day in court, and that New Jersey’s

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policy that they be permitted to do so is being thwarted, based

upon a flawed premise and logic that does not withstand

scrutiny. The nullification of these important tolling and

revival provisions is something that the Supreme Court should

examine and tell the circuits whether Hardin is indeed

distinguishable, as the majority posits, or whether it has the

force that I am reading into it.

III

For the reasons set forth above, I respectfully dissent

from my colleagues as to the applicability of New Jersey’s

revival provision.

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