Christopher Shorter v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 20-2554

____________

CHRISTOPHER “CHRISSY” SHORTER,

Appellant

v.

UNITED STATES OF AMERICA; JORDAN

HOLLINGSWORTH, Warden; CHRISTINE DYNAN,

Associate Warden; ROBERT HAZZLEWOOD, Associate

Warden; DR. MARANTZ, Chief of Psychology;

UNKNOWN PENA, Captain; OFFICER BITTNER,

Lieutenant, Special Investigative Supervisor; UNKNOWN

HAMEL, Counselor; CARL SCEUSA, MD/CCHP;

UNKNOWN BYRD, Unit Manager; UNKNOWN, PREA

Compliance Manager

________________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 1-19-cv-16627)

District Judge: Honorable Renee M. Bumb

________________

Argued on April 22, 2021

Before: AMBRO, RESTREPO, and RENDELL, Circuit

Judges

(Opinion filed September 1, 2021)

Kelly J. Popkin (Argued)

Rights Behind Bars

276 Stratford Road

Brooklyn, NY 11218

Samuel Weiss

Rights Behind Bars

416 Florida Avenue NW, #26152

Washington, DC 20001

Counsel for Appellant

J. Andrew Ruymann

United States Attorney’s Office

970 Broad Street, Room 700

Newark, NJ 07102

John T. Stinson, Jr. (Argued)

United States Attorney’s Office

402 East State Street, Room 430

Trenton, NJ 08608

Counsel for Appellees

2

Kevin M. Costello

Harvard Law School

Center for Health Law & Policy Innovation

1585 Massachusetts Avenue

Cambridge, MA 02138

Counsel for Amici Appellants Civil Rights

Advocacy and Public Interest Organizations

Alexander L. Chen

T. Keith Fogg

Legal Services Center of Harvard Law School

122 Boylston Street

Jamaica Plain, MA 02130

Counsel for Amici Appellants Former

Corrections Officials

_______________

OPINION OF THE COURT

_______________

AMBRO, Circuit Judge

Chrissy Shorter is a transgender woman who alleges she

was stabbed and raped by a fellow inmate while in federal

prison despite having warned prison officials repeatedly that

she was concerned about being assaulted. She brought a pro

se suit under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), claiming officials

violated her Eighth Amendment rights by displaying deliberate

indifference to the substantial risk that another inmate would

3

assault her. Invoking its authority under 28 U.S.C. §§ 1915

and 1915A, the District Court dismissed her complaint sua

sponte before allowing her to serve the defendants.

Shorter argues on appeal that a Bivens remedy is

available and that the District Court erred by ignoring relevant

factual allegations and imposing a needlessly demanding

standard on her pro se complaint. The Government responds

that we should not recognize a Bivens remedy in this context.

Shorter has the better argument. Her case falls

comfortably within one of the few contexts in which the

Supreme Court has recognized a Bivens remedy. And because

Shorter adequately pleaded a violation of the Eighth

Amendment, the District Court erred in dismissing that claim

so early in the proceeding. We therefore reverse the dismissal

of the Eighth Amendment claim and remand.

I. Background

Shorter is a transgender woman who has undergone

hormone replacement therapy, meaning her body is “openly

female.”1 J.A. at 81. In June 2015, she entered the Federal

Correctional Institution, Fort Dix to begin a 96-month sentence

for creating a fraudulent “tax services” firm. J.A. at 69; Gov.

Br. at 3. Although prison officials were aware that Shorter was

1

Because we assume the complaint’s factual allegations are

true at this stage, see Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000),

we describe the facts as Shorter reports them. We take no

position on whether she will be able to prove they are true after

discovery.

4

transgender, they opted to house her in a room without a lock

with 11 men. Prison officials screened her risk for sexual

assault under the Prison Rape Elimination Act of 2003

(“PREA”) regulations, and they concluded she was at

“significantly” higher risk than other inmates because, among

other reasons, she presented as transgender, was small in

stature, and had previously been sexually assaulted at another

prison facility. J.A. at 137–38. The screening report stated that

Shorter “should not be housed with anyone perceived to be ‘at

risk’ for sexual abuse perpetration” and would be monitored.

Id. at 138.

Despite these concerns, officials continued to house

Shorter in a room without a lock with 11 men. Worried this

living situation put her at risk for sexual assault, she asked to

move to a two-person cell instead, citing policies of the Bureau

of Prisons (“BOP”) that supported her position. After initially

objecting to this request, the prison reversed course and moved

her to a two-person cell.

But the move did not fix the problem: the new cell also

had no lock and was the furthest cell from the officer’s station.

Shorter reported these issues to prison officials, along with

other concerns about sexual harassment and assault, but they

took no immediate steps to protect her. Instead, her counselor

compounded the problem by assigning a sex offender as her

cellmate. The sex offender was later removed from her cell,

and Shorter followed up with a grievance to the warden.

A few days later, Shorter again expressed concerns

about sexual assault and submitted a request to transfer to a

different prison, along with a BOP Program Statement

supporting her request. Demonstrating the depth of her

5

concern, Shorter requested a transfer from the low-security

Fort Dix to a higher security facility, as she believed the latter

would provide more protection against assault. The transfer

request asserted that Fort Dix was a particularly dangerous

facility for her because it holds an unusually large number of

sex offenders and does not permit locks on cell doors.

Although the prison’s psychology department agreed Shorter

should be transferred, she remained in the cell furthest from the

officer’s station while her request was pending.

Prison leadership took 17 days to act on Shorter’s

transfer request. On September 4, 2015, the BOP’s Gender

Identity Dysphoria Committee decided Shorter should be

transferred because there were “security concerns due to” her

gender dysphoria and “the physical layout” of Fort Dix could

not “provide the same type of supervision as in other

institutions.” Id. at 106. Despite the apparent urgency of the

situation, the warden took yet another 17 days before acting on

the Committee’s recommendation and submitting a transfer

request to the central BOP office.2

Conditions in the prison only worsened as Shorter

awaited transfer. She continued to submit written materials to

prison officials detailing her concerns. And on October 5 and

8, 2015, the associate warden distributed two memoranda

suspending certain inmate privileges due in part to the recent

“significant increase in security issues involving staff and

inmate assaults.” Id. at 71, 108–109.

2

The documents attached to Shorter’s complaint suggest at

least some portion of the delay may have been attributable to

amendments she made to her transfer request.

6

On October 14, 2015, Shorter’s fears became real. In

the middle of the night, an inmate entered her cell, raped her,

and cut her seven times. After Shorter reported the incident,

she was placed in involuntary protective custody. The prison

conducted what Shorter characterizes as a cursory

investigation of the assault but did not substantiate her claims.

On November 3, 2015, approximately two and a half months

after her initial transfer request and four months after she first

complained to prison officials about her living arrangement,

officials finally transferred Shorter from Fort Dix. She

completed her sentence in 2019 and was released from

custody.

After exhausting administrative remedies, Shorter filed

this pro se lawsuit alleging, among other claims, that prison

officials (collectively, “Defendants”) were deliberately

indifferent to the risk she would be seriously harmed in

violation of the Eighth Amendment. The District Court

screened her complaint under 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b), which provide that courts shall dismiss cases filed

by prisoners proceeding in forma pauperis that fail to state a

claim on which relief can be granted. The Court concluded

Shorter had not stated an Eighth Amendment claim because

she merely expressed “generalized fears of being at risk of

sexual assault[,] . . . . but there were no specific threats against

her that required the defendants to take measures to protect

her.” J.A. at 10. The Court therefore dismissed her claim sua

sponte before defendants were served.3 Shorter filed a pro se

appeal and later obtained legal counsel.

3

The District Court later dismissed Shorter’s other claims

under the Fifth Amendment and the Federal Tort Claims Act.

She does not press those claims on appeal.

7

II. Jurisdiction and Standard of Review

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

§ 1331. We have jurisdiction under 28 U.S.C. § 1291. “Our

review of the District Court’s sua sponte dismissal for failure

to state a claim, . . . like that for dismissal under [Federal Rule

of Civil Procedure] 12(b)(6), is plenary.” Allah v. Seiverling,

229 F.3d 220, 223 (3d Cir. 2000). We accept the factual

allegations in the complaint as true and construe them in the

light most favorable to the plaintiff. Warren Gen. Hosp. v.

Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011). And because

Shorter’s complaint was filed pro se, we construe it liberally

and hold it to “less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (internal quotation marks and citation

omitted).

III. Analysis

We analyze the viability of Shorter’s complaint in two

steps. First, we consider whether a Bivens remedy exists at all

in the context of deliberate indifference to prison rape.

Concluding that it does, we next consider whether Shorter’s

complaint, in particular, was sufficiently pled to survive

dismissal at this early stage. See Bistrian v. Levi, 912 F.3d 79,

88 (3d Cir. 2018) (“Bistrian II”) (“Whether a Bivens claim

exists in a particular context is antecedent to the other questions

presented.”) (internal quotation marks and citation omitted).

8

A. Availability of a Bivens Remedy in This Context

“Bivens is the short-hand name given to causes of action

against federal officials for alleged constitutional violations.”

Id. In the case giving the doctrine its name, the Supreme Court

held there is a cause of action for damages when a federal

agent, acting under color of his authority, conducts an

unreasonable search and seizure in violation of the Fourth

Amendment. Bivens, 403 U.S. at 389, 397. The Supreme

Court subsequently recognized a Bivens remedy in two other

contexts: gender discrimination in the employment context in

violation of the Fifth Amendment’s Due Process Clause, see

Davis v. Passman, 442 U.S. 228, 249 (1979), and certain types

of prisoner mistreatment in violation of the Eighth

Amendment’s prohibition of cruel and unusual punishment,

see Carlson v. Green, 446 U.S. 14, 16 n.1 (1980) (addressing

a claim of deliberate indifference to a prisoner’s serious

medical needs).

In Farmer v. Brennan, 511 U.S. 825, 830 (1994), the

Supreme Court applied Carlson in recognizing an Eighth

Amendment damages claim nearly identical to the one at issue

here, involving prison officials who failed to keep a

transgender prisoner safe from sexual assault. The Farmer

Court explained that the Eighth Amendment “imposes duties

on [prison] officials, who must provide humane conditions of

confinement; prison officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must

take reasonable measures to guarantee the safety of the

inmates.” Farmer, 511 U.S. at 832 (internal quotation marks

and citation omitted). Accordingly, the Court held “a prison

official can[] be found liable under the Eighth Amendment for

denying an inmate humane conditions of confinement [if he or

9

she] knows of and disregards an excessive risk to inmate health

or safety.” Id. at 837. This includes liability for displaying

deliberate indifference to a substantial risk that a prisoner will

be attacked by other prisoners, because “[b]eing violently

assaulted in prison is simply not part of the penalty that

criminal offenders pay for their offenses against society.” Id.

at 834 (internal quotation marks and citation omitted).4

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme

Court summarized the status of Bivens jurisprudence. The

Court emphasized that, although the doctrine is a “settled,”

“fixed principle in the law” in certain spheres, “expanding the

Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at

1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).

The Court then prescribed a two-pronged inquiry for courts to

follow in deciding whether to recognize a Bivens remedy.

First, they must evaluate whether a case presents “a

new Bivens context,” meaning that it “is different in a

meaningful way from previous Bivens cases decided by [the

Supreme] Court.” Id. at 1859. The Abbasi Court named three

previous cases in which a Bivens remedy has been recognized:

Bivens itself, in addition to the above-referenced Davis and

4

As we observed in Bistrian II, “[a]lthough the Farmer Court

did not explicitly state that it was recognizing a Bivens claim,

it not only vacated the grant of summary judgment in favor of

the prison officials but also discussed at length ‘deliberate

indifference’ as the legal standard to assess a Bivens claim, the

standard by which all subsequent prisoner safety claims have

been assessed.” Bistrian II, 912 F.3d at 90–91 (citing Farmer,

511 U.S. at 832–49). We therefore concluded that the Farmer

Court had “recognized” a Bivens damages remedy. Id. at 91.

10

Carlson. Id. at 1854–55. “[M]eaningful” differences from

those recognized contexts may include

the rank of the officers involved; the constitutional right

at issue; the generality or specificity of the official

action; the extent of judicial guidance as to how an

officer should respond to the problem or emergency to

be confronted; the 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 1860. If a case does not present a new Bivens context,

the inquiry ends there, and a Bivens remedy is available.

Bistrian II, 912 F.3d at 91–92. If, however, the case does

present a new Bivens context, a court proceeds to the second

step of the analysis and asks whether any “special factors

counsel[] hesitation” in extending a Bivens remedy to that

context. Abbasi, 137 S. Ct. at 1857–58 (internal quotation

marks and citation omitted).

Defendants assert this case presents a new Bivens

context and that special factors counsel hesitation before

allowing a Bivens remedy here. Our Court’s precedent in

Bistrian II covers this argument. 912 F.3d at 89–94. In that

case, we considered a Bivens claim from a prisoner who was

beaten by fellow inmates after they learned he was cooperating

with a prison surveillance operation. Like Shorter, Bistrian

claimed prison officials had failed “to protect him from a

substantial risk of serious injury at the hands of other inmates.”

Id. at 88. There, as here, the defendants contended Bistrian’s

claim presented a new Bivens context. We disagreed,

11

reiterating that under our case law and the Supreme Court’s

longstanding precedent in Farmer, a federal prisoner “ha[s] a

clearly established constitutional right to have prison officials

protect him from inmate violence” and has a damages remedy

when officials violate that right. Id. at 90 (internal quotation

marks omitted) (alteration in original).

Because Bistrian’s claim was not meaningfully

different from the claim at issue in Farmer, we concluded the

latter case “practically dictate[d] our ruling” in the former. Id.

at 91. So too here.5 Farmer made clear, in circumstances

virtually indistinguishable from our case, that an Eighth

Amendment Bivens remedy is available to a transgender

prisoner who has been assaulted by a fellow inmate. As

5

After Abbasi, “lower courts c[an] no longer rely on their own

prior precedents to recognize a Bivens remedy.” Mack v. Yost,

968 F.3d 311, 319 (3d Cir. 2020) (citing Bistrian II, 912 F.3d

at 95). “Unless the Supreme Court has recognized the context

before, the context is ‘new.’” Id. Our holding today does not

run afoul of this precedent. We do not rely on Bistrian II to

recognize a Bivens context the Supreme Court has not

recognized. Instead, we rely on it solely for its holding that

Farmer, which supplies the relevant Bivens context for our

case, remains good law. And Bistrian II was undisturbed by

the Supreme Court’s subsequent decision in Hernandez v.

Mesa, 140 S. Ct. 735 (2020), where the Court again referenced

only Bivens, Davis, and Carlson as the cases in which a Bivens

remedy has been recognized. Hernandez, 140 S. Ct. at 741–

43. However, the reasoning in Bistrian II—that the Supreme

Court in Abbasi neglected to name Farmer because it saw that

case as falling under the umbrella of Carlson—applies equally

to Hernandez. See Bistrian II, 912 F.3d at 91.

12

Shorter points out, her case and Farmer’s both involved (1)

transitioning transgender women on estrogen who had

developed female physical characteristics, (2) who were

housed in allegedly unsafe cells in the general population of

all-male prisons where assaults were frequent, (3) who were

physically and sexually assaulted by fellow inmates, even after

(4) prison officials admitted “a high probability” that they

“could not safely function” in the prison due to their

transgender status, and (5) who alleged that prison officials had

therefore been deliberately indifferent to their safety.6 Farmer,

511 U.S. at 830–31, 848; Shorter Br. at 3–10. Defendants have

pointed to no meaningful differences between the two cases.7

And as we held in Bistrian II, Farmer remains good law. Our

case therefore does not present a new Bivens context.

B. Sufficiency of Shorter’s Pleading

Defendants argue that even if a Bivens remedy is

theoretically available in Shorter’s case, it was nonetheless

appropriate for the District Court to dismiss her complaint sua

sponte at the screening stage under 28 U.S.C. §§ 1915(e)(2)(B)

and 1915A(b) because she failed to plead a claim under the

Eighth Amendment. We disagree.

6

We do not suggest that this degree of factual similarity is

required to conclude a case does not present a new Bivens

context. But the extent of the factual overlap between

Shorter’s case and Farmer is indeed remarkable.

7

Defendants cite the PREA as a potential distinguishing

factor, but that statute, which cites Farmer favorably in its

preamble, see 34 U.S.C. § 30301(13), does not make this a

new Bivens context.

13

“At this early stage of the litigation,” “[w]e accept the

facts alleged in [Shorter’s pro se] complaint as true,” “draw[]

all reasonable inferences in [her] favor,” and “ask only whether

[that] complaint, liberally construed, . . . contains facts

sufficient to state a plausible Eighth Amendment claim.”

Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015).

While it is proper for district courts to dismiss facially

inadequate complaints sua sponte under 28 U.S.C.

§§ 1915A(b) and 1915(e)(2)(B), premature dismissal under

those statutes “deprives us of the benefit of defendant’s

answering papers” and may result in the “wasteful . . . shuttling

of the lawsuit between the district court and appellate courts.”

Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (internal

quotation marks and citation omitted).

It was premature to dismiss Shorter’s complaint at the

screening stage. Construing her complaint liberally, accepting

her factual allegations as true, and drawing all reasonable

inferences in her favor, as we must, Shorter has stated an

Eighth Amendment deliberate indifference claim. That type of

claim has three components: “an inmate must plead facts that

show (1) [s]he was incarcerated under conditions posing a

substantial risk of serious harm, (2) the official was

deliberately indifferent to that substantial risk to h[er] health

and safety, and (3) the official’s deliberate indifference caused

h[er] harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012)

(“Bistrian I”). Neither the District Court nor Defendants argue

that Shorter failed to satisfy the first and third prongs; being

sexually assaulted and stabbed indisputably pose a substantial

risk of serious harm, and Shorter has alleged she was indeed

harmed when she was assaulted.

14

Accordingly, only the second prong—whether the

Defendants demonstrated “deliberate indifference to

[Shorter’s] health or safety”—is at issue. Farmer, 511 U.S. at

834 (internal quotation marks omitted). “Deliberate

indifference” is evaluated under a subjective standard; “the

prison official-defendant must actually have known or been

aware of the excessive risk to inmate safety” and disregarded

that risk. Beers-Capitol v. Whetzel, 256 F.3d 120, 125, 132 (3d

Cir. 2001). “Whether a prison official had the requisite

knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from

circumstantial evidence, and a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that

the risk was obvious.” Farmer, 511 U.S. at 842 (internal

citation omitted).

Shorter has adequately alleged that the Defendants were

deliberately indifferent to the substantial risk she would be

sexually assaulted. First, her complaint alleges that she

repeatedly told prison officials about the risks she faced at Fort

Dix, campaigned to transfer facilities due to the unique threats

posed by the layout and inmate population at Fort Dix coupled

with her transgender status, and supplemented her grievances

with specific references to supporting BOP policies. It is

difficult to imagine what more an unrepresented inmate could

do to make prison officials aware of her risk of sexual assault.

The District Court faulted Shorter for making “generalized”

complaints that did not memorialize any particular threats of

sexual assault by a specific inmate. J.A. at 10. But construed

in the light most favorable to Shorter, the complaint plausibly

alleges her grievances were not “generalized”; she gave many

specific reasons why she was at high risk for becoming a sexual

assault victim. Further, a prisoner’s “failure to give advance

15

notice [of the risk to her safety] is not dispositive,” and a prison

official may not “escape liability for deliberate indifference by

showing that, while he was aware of an obvious, substantial

risk to inmate safety, he did not know that the complainant was

especially likely to be assaulted by the specific prisoner who

eventually committed the assault.” Farmer, 511 U.S. at 843,

848.

Moreover, Shorter also alleged that the Defendants

explicitly acknowledged her risk of sexual assault. Prison

officials evaluated that risk when she first entered Fort Dix, and

they concluded she was at “significantly” higher risk than other

inmates due to a variety of particular factors that included her

transgender status. J.A. at 69, 137–38. Officials later

recognized that she needed to be transferred to a different

facility because there were “security concerns due to” her

gender dysphoria, and “the physical layout” of Fort Dix could

not “provide the same type of supervision as in other

institutions.” Id. at 106. And in the days leading up to the

attack on Shorter, prison officials posted notices throughout the

prison warning about an increase in assaults. Yet Shorter

alleges the prison did little to mitigate these concerns, keeping

her in a dangerous cell far from the officers’ station and even

going so far as to place a known sex offender as her cellmate.8

To be sure, Shorter’s claim may yet fail if the

Defendants acted reasonably in response to the risk to her

safety. See Farmer, 511 U.S. at 844 (“[P]rison officials who

8

In holding otherwise, the District Court relied primarily on

distinguishable, non-precedential, or out-of-circuit cases, most

of which were decided much later in the litigation process at

the summary judgment stage. See J.A. at 7–10.

16

actually knew of a substantial risk to inmate health or safety

may be found free from liability if they responded reasonably

to the risk, even if the harm ultimately was not averted.”). We

express no opinion on that fact-intensive question. But Shorter

has provided sufficient allegations of the Defendants’

deliberate indifference to proceed to the next stage in the

litigation.9 Cf. Hamilton v. Leavy, 117 F.3d 742, 748 (3d Cir.

1997) (concluding that it was inappropriate to decide the

reasonableness of the defendants’ actions even at the summary

judgment stage because there were genuine disputes of

material fact). Dismissing Shorter’s Eighth Amendment claim

at the screening stage—before discovery and before Shorter

even had the chance to serve process—requires a remand.

* * * * *

Extending a Bivens remedy to a new context is a

disfavored judicial activity. But Shorter’s case does not

require any extension of Bivens. Instead, her claim falls

squarely within one of the Bivens contexts long recognized by

the Supreme Court as discussed explicitly in our precedent.

And Shorter’s pro se complaint, liberally construed, has

plausibly alleged a violation of the Eighth Amendment. We

9

Defendants also argue we should affirm the dismissal of the

complaint on qualified immunity grounds, an issue the District

Court never reached. It is not obvious from the face of the

complaint that qualified immunity applies, and we decline to

reach this affirmative defense in the first instance. See Plains

All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 545 (3d Cir. 2017)

(“Generally, in the absence of exceptional circumstances, we

decline to consider an issue not passed upon below.”) (internal

quotation marks, citation, and alteration omitted).

17

therefore reverse the dismissal of the Eighth Amendment claim

and remand.

18