Marcellas Hoffman v. Preston

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCELLAS HOFFMAN, No. 20-15396

Plaintiff-Appellant,

D.C. No.

v. 1:16-cv-01617-

LJO-SAB

PRESTON,

Defendant-Appellee,

OPINION

and

D. COYLE; MATEVOISAIN, Warden;

L. T. HAYES; FIELDS, SIA

Investigator,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted February 8, 2021

San Francisco, California

Filed February 28, 2022

2 HOFFMAN V. PRESTON

Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit

Judges, and Lee H. Rosenthal, * District Judge.

Opinion by Chief District Judge Rosenthal;

Dissent by Judge Bea

SUMMARY **

Prisoner Civil Rights

The panel reversed the district court’s dismissal of an

action brought by federal prisoner Marcellas Hoffman

alleging that correctional officer Timothy Preston labeled

him a snitch to other prisoners, offered them a bounty to

assault Hoffman, and failed to protect him from the

predictable assault by another prisoner.

Hoffman sued Preston for violating his Eighth

Amendment rights and sought damages under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). The district court dismissed the action

on the grounds that Hoffman’s claim presented a new Bivens

context, and that special factors cautioned against extending

the Bivens remedy to Hoffman’s claim.

Construing the pro se complaint liberally, the panel held

that Hoffman’s complaint alleged conduct beyond deliberate

*

The Honorable Lee H. Rosenthal, Chief United States District

Judge for the Southern District of Texas, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HOFFMAN V. PRESTON 3

indifference. Preston did not merely know of a risk of

substantial harm; he intentionally and knowingly created the

risk. Although this claim of intentional harm was not

squarely presented in the Supreme Court’s Bivens opinions,

Hoffman’s allegations taken as true were only a modest

extension of Bivens. Citing Carlson v. Green, 446 U.S. 14

(1980), the panel reasoned that if the Supreme Court allowed

a guard who is aware of and deliberately indifferent to a

substantial risk that a prisoner will suffer medical harm from

an asthma attack to be sued under Bivens, it was but a modest

extension to allow a suit against a guard who creates the

substantial risk of harm and then allows it to occur.

While Hoffman’s Eighth Amendment claim was

different in some respects from the Eighth Amendment

claim presented in Carlson, no special factors counselled

hesitation against what was a very modest expansion of the

Bivens remedy to this context. The panel noted that

Hoffman would likely not be able to obtain damages from

Preston in a state-law tort suit given that the Westfall Act

accords federal employees absolute immunity from

common-law tort claims arising out of acts they undertake in

the course of their official duties. Here, the Department of

Justice had represented that if Hoffman were to bring a state-

law tort suit against Preston, it was likely the United States

would certify that Preston acted within the scope of

employment. Even if the question did reach a state court, it

would be unclear at best whether that court would find that

Preston acted within the scope of his employment.

If Preston was immune under the Westfall Act, Hoffman

would instead be able to bring a claim against the United

States under the Federal Tort Claims Act. The availability

of a remedy under that Act would not foreclose a parallel

Bivens suit, because the threat of suit against the United

4 HOFFMAN V. PRESTON

States was insufficient to deter the unconstitutional acts of

individuals.

The panel further held that an injunction, a habeas grant,

or other prospective relief was also inadequate to cure the

harm Hoffman already suffered. Hoffman’s claim did not

seek to reform prison management; he did not bring a claim

against an entity, and he did not seek to enjoin or require a

particular prison policy. Hoffman sought damages for the

harm caused to him by the targeted actions of one rogue

prison official.

The panel agreed with the Third Circuit “that

congressional silence in the PLRA about the availability of

Bivens remedies” did not suggest that Congress intended to

make such remedies unavailable. Bistrian v. Levi, 912 F.3d

79, 92-93 (3d Cir. 2018). Finally, allowing this Bivens claim

to proceed did not risk an undue impact on governmental

operations systemwide.

Dissenting, Judge Bea stated that the Supreme Court has

made crystal clear that the days of freely implying damages

remedies against individual federal officials under Bivens

are at an end. This should have been a straightforward

affirmance of the district court’s judgment. The Supreme

Court has never recognized a remedy for such actions under

Bivens, and multiple “special factors” demonstrated that

Congress, and not the judicial branch, is vested with the

authority to decide whether to extend a damages remedy

against federal officials for the Eighth Amendment

intentional harm claim presented here. And, to date,

Congress has affirmatively decided not to extend the specific

damages remedy requested in this case.

HOFFMAN V. PRESTON 5

COUNSEL

Laura E. Dolbow (argued) and David M. Zionts, Covington

& Burling LLP, Washington, D.C.; Samuel Weiss, Rights

Behind Bars, Washington, D.C.; for Plaintiff-Appellant.

Philip A. Scarborough (argued), Assistant United States

Attorney; McGregor W. Scott, United States Attorney;

United States Attorney’s Office, Sacramento, California; for

Defendant-Appellee.

OPINION

ROSENTHAL, Chief District Judge:

Marcellas Hoffman, a federal prisoner, alleges that a

correctional officer, Timothy Preston, labeled him a snitch

to other prisoners, offered them a bounty to assault Hoffman,

and failed to protect him from the predictable assault by

another prisoner. Hoffman sued Preston for violating his

Eighth Amendment rights and sought damages under Bivens

v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Although we recognize that

the Supreme Court has “made clear that expanding the

Bivens remedy is now a ‘disfavored’ judicial activity,” the

Court has also made clear that a remedy may be available for

a case arising in a new Bivens context, so long as “special

factors [do not] counsel[] hesitation.” Ziglar v. Abbasi,

137 S. Ct. 1843, 1857, 1859, 1865 (2017) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 675 (2009)). In Carlson v. Green,

446 U.S. 14, 18–20 (1980), the Court recognized a Bivens

remedy for a violation of the Eighth Amendment prohibition

on cruel and unusual punishment. While Hoffman’s Eighth

Amendment claim is different in some respects from the

6 HOFFMAN V. PRESTON

Eighth Amendment claim presented in Carlson, no special

factors counsel hesitation against what is a very modest

expansion of the Bivens remedy to this context. We

therefore reverse the district court’s Rule 12(b)(6) dismissal

of Hoffman’s pro se complaint for failure to state a claim

under Bivens, and remand for further proceedings.

I.

This appeal comes to us on a motion to dismiss, so we

recount the facts as set out in the complaint. See Dougherty

v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011) (on a

Rule 12(b)(6) motion, “[t]he facts alleged in a complaint are

to be taken as true” (citing Iqbal, 556 U.S. at 679)).

A.

Marcellas Hoffman was housed at U.S. Penitentiary

Atwater, where he worked as a cook. The prison’s warden,

food administrator, and food service assistant approved

Hoffman’s proposal to reduce waste in the food-service

department. Hoffman alleges that Timothy Preston, a

Bureau of Prisons correctional officer at Atwater, was upset

by the proposal and wanted Hoffman removed from the

kitchens. In February 2016, Preston told another

correctional officer, in front of Hoffman and other prisoners,

that “inmates are snitching in the staff dining hall and writing

officers[’] names down who are not paying for meals.”

Hoffman responded, “I am not snitching on no one, if you

are talking about me.” A heated verbal exchange between

Hoffman and Preston ended when Preston put Hoffman in a

HOFFMAN V. PRESTON 7

holding cell. Preston later moved Hoffman to the Special

Housing Unit. 1

According to Hoffman’s complaint, over the following

months, Preston repeatedly and publicly labeled Hoffman a

snitch. Preston told other prisoners that Hoffman was

reporting both staff and prisoners for not paying for meals;

made it clear that he wanted Hoffman kicked out of the

kitchens; and offered a bounty to specific prisoners to harm

him. These actions worked their intended, predictable result:

on May 16, 2016, another prisoner, Emmanuel Ward,

assaulted Hoffman in his cell. Ward punched Hoffman in

the face, kicked him in the stomach, and smashed his head

into a locker. Hoffman alleges that Ward attacked him “as a

direct result” of Preston labeling Hoffman a snitch. Hoffman

has since been transferred to a different prison, but he

continues to receive threats from prisoners and staff because

of the reputation as a snitch that Preston started and

continued.

B.

This case has a complicated procedural history.

Hoffman filed his first complaint pro se on October 27,

2016. With leave of court and still proceeding pro se, he

amended the complaint on April 11, 2019. The amended

complaint states claims against Preston for retaliation and

cruel and unusual punishment, in violation of the First and

1

Preston also filed an incident report about the verbal exchange

accusing Hoffman of threatening to “whoop [Preston’s] ass.” At the

disciplinary hearing, Hoffman admitted swearing at Preston but denied

threatening him. Officer DeCarie, who witnessed the incident, testified

that Hoffman did not make a threat. The disciplinary charge was

changed from “Threatening Bodily Harm” to the lesser charge of

“Insolence Towards a Staff Member.”

8 HOFFMAN V. PRESTON

Eighth Amendments. Only the Eighth Amendment claim

survived the screening required under the Prison Litigation

Reform Act (“PLRA”). 28 U.S.C. § 1915A(a). On July 18,

2019, Preston moved to dismiss the amended complaint

under Federal Rule of Civil Procedure 12(b)(6), arguing that

Hoffman had failed to state a valid Eighth Amendment claim

under Bivens. 2

On October 11, 2019, the magistrate judge

recommended granting the motion to dismiss, explaining

that under the Supreme Court’s decision in Abbasi, there

were only three cases “in which the Court has approved of

an implied damages remedy under the Constitution itself”:

Bivens, Carlson, and Davis v. Passman, 442 U.S. 228

(1979). Abbasi, 137 S. Ct. at 1854–55. Of those cases, only

Carlson involved a claim under the Eighth Amendment’s

cruel and unusual punishment clause. Because that claim

was “for failure to provide medical care,” id. at 1864, the

judge concluded that it “differ[ed] meaningfully” from

Hoffman’s claim. The judge framed Hoffman’s claim as

deliberate indifference to the risk of, or failure to protect

from, an attack by another prisoner.

The magistrate judge rejected Hoffman’s argument that

the Court recognized a Bivens remedy for failure-to-protect

claims in Farmer v. Brennan, 511 U.S. 825 (1994), because

Farmer was not one of the three cases listed in Abbasi. See

Abbasi, 137 S. Ct. at 1854–55. After deciding that

Hoffman’s claim presented “a new Bivens context,” id.

at 1859, the judge concluded that special factors—the

availability of other remedies, legislative action by

Congress, and the impact on government regulation—

2

Preston did not claim qualified immunity or dispute that the facts

alleged stated an Eighth Amendment violation.

HOFFMAN V. PRESTON 9

cautioned against extending the Bivens remedy to Hoffman’s

claim. See id. at 1860.

On January 6, 2020, the district court adopted the

magistrate judge’s findings and recommendations in full and

dismissed the action with prejudice. Hoffman timely

appealed.

II.

The district court had jurisdiction over Hoffman’s Bivens

claims under 28 U.S.C. § 1331. We have jurisdiction over

Hoffman’s appeal of the district court’s dismissal under

28 U.S.C. § 1291.

We review the district court’s dismissal for failure to

state a claim de novo. Dougherty, 654 F.3d at 897. We take

all allegations of material fact in the complaint as true and

ask if they “plausibly give rise to an entitlement to relief.”

Id. (quoting Iqbal, 556 U.S. at 679). Pro se complaints are

construed liberally and “held to less stringent standards than

formal pleadings drafted by lawyers.” Hebbe v. Pliler,

627 F.3d 338, 342 (9th Cir. 2010) (citation omitted).

III.

Before determining whether a Bivens remedy is available

for Hoffman’s Eighth Amendment claim, we address the

precise nature of that claim. The district court examined

whether a Bivens remedy was available for Hoffman’s claim

that Preston violated the Eighth Amendment through his

alleged deliberate indifference to Hoffman’s health and

safety as a prison inmate. Hoffman alleged in his complaint

that “Defendant Preston was deliberate in difference [sic]

when [Preston] offered to pay other inmates to harm

[Hoffman] for writing and submitting a Food Service

10 HOFFMAN V. PRESTON

Proposal and for claiming that [Hoffman was] reporting that

staff were not paying for meals,” and that “Defendant

Preston was deliberate indifference [sic] to the potential

harm that Plaintiff would receive by offering other inmates

a reward to harm [Hoffman] and have [Hoffman] removed

from the kitchen.” District Dkt. 42, at 5–6.

Hoffman’s complaint, however, does not allege that

Preston was merely indifferent to his harm. Instead,

Hoffman alleges that Preston took affirmative steps to target

Hoffman for harm by repeatedly and publicly labeling him a

snitch and offering a reward to other inmates to harm him.

Hoffman alleges that “Preston was supposed to protect

[Hoffman] from inmate assaults, but he instead encouraged

the inmates to harm Plaintiff and offered to pay them to doit

[sic].” District Dkt. 42, at 6 (emphasis added). Hoffman

also alleges that “Preston violated [his] right to be free from

intentional harm caused by [Preston].” Id. at 5.

We construe pro se complaints liberally and “afford the

petitioner the benefit of any doubt.” Hebbe, 627 F.3d at 342.

A generous approach is not required to read Hoffman’s

complaint as alleging conduct beyond “deliberate

indifference.” “Deliberate indifference” would mean that

Preston failed to protect Hoffman from a known risk of

substantial harm. Preston did not merely know of a risk of

substantial harm; he intentionally and knowingly created the

risk. Although this claim of intentional harm is not squarely

presented in the Supreme Court’s Bivens opinions,

Hoffman’s allegations taken as true are only a modest

extension of Bivens. If the Supreme Court has allowed a

guard who is aware of and deliberately indifferent to a

substantial risk that a prisoner will suffer medical harm from

an asthma attack to be sued under Bivens, it is but a modest

extension to allow a suit against a guard who creates the

HOFFMAN V. PRESTON 11

substantial risk of harm and then allows it to occur. We find

no special factors that counsel against allowing a Bivens

remedy in this context. We reverse. 3

A.

In Bivens, the Supreme Court recognized, for the first

time, an implied cause of action arising directly under the

Constitution for damages against federal officers alleged to

have violated a plaintiff’s constitutional rights. 403 U.S.

at 389. The Bivens Court specifically held that damages

were recoverable against federal officers who violated the

Fourth Amendment’s prohibition against unreasonable

searches and seizures. Id. In the following decade, the Court

explicitly extended the Bivens remedy in two other cases:

Davis recognized an implied damages claim under the Fifth

Amendment’s due process clause for gender discrimination

by a member of the United States Congress, 442 U.S. at 230;

and Carlson recognized an implied claim under the Eighth

Amendment’s cruel and unusual punishment clause for

prison officials’ failure to provide adequate medical care,

446 U.S. at 16–18 & n.1.

In Abbasi, the Court instructed lower courts first to

determine whether the case presents “a new Bivens context”

by asking whether “the case is different in a meaningful way

from previous Bivens cases decided by [the Supreme]

3

Preston also urges us to affirm on the ground that Hoffman did not

administratively exhaust his claim. However, Preston did not present

this nonexhaustion theory in his motion to dismiss the current operative

complaint, and at no point in the litigation did he previously raise a

nonexhaustion defense as to Hoffman’s “snitch” claim. Because

nonexhaustion was not properly raised before the district court, we do

not reach it here. See Mansourian v. Regents of Univ. of Cal., 602 F.3d

957, 974 (9th Cir. 2010).

12 HOFFMAN V. PRESTON

Court.” 137 S. Ct. at 1859. While not an exhaustive list,

some meaningful differences creating a new context 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. A new Bivens context is defined broadly, see

Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)

(“Hernandez II”), but “trivial” differences do not “suffice to

create a new Bivens context,” Abbasi 37 S. Ct. at 1865. If

the case falls within a previously established context, the

Bivens remedy is available. Id. at 1859–60; see also

Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018).

If the case presents a new Bivens context, the next step is

to ask whether “special factors counsel[] hesitation” against

allowing the remedy in that context. Abbasi, 137 S. Ct.

at 1857 (quoting Carlson, 446 U.S. at 18). The Court has

not specified factors to consider, but instead generally

instructed lower courts to “concentrate on 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.” Id. at 1857–58.

“Thus, to be a ‘special factor counselling hesitation,’ a factor

must cause a court to hesitate before answering that question

HOFFMAN V. PRESTON 13

in the affirmative.” Id. at 1858. This analysis varies

depending on the facts, but it often includes considering the

availability of alternative remedies, the impact on

government operations, and whether “Congress has

designed its regulatory authority in a guarded way.” Id.; see

also Lanuza, 899 F.3d at 1028.

B.

The facts Hoffman alleges in his Eighth Amendment

Bivens claim are different than the factual basis of the

Carlson claim. In Carlson, the Supreme Court recognized a

Bivens remedy against individual prison officials for their

“violation of the Eighth Amendment’s proscription against

infliction of cruel and unusual punishment.” 446 U.S. at 17.

Carlson involved prison officials’ failure to provide a

severely asthmatic prisoner with adequate medical care. Id.

at 16 n.1. The prisoner’s mother alleged that the officials

were “fully apprised” of his condition and yet kept him at a

grossly inadequate medical facility, gave him the wrong

treatments, and failed to provide competent medical

attention for hours after an asthma attack. Id. The prisoner

died as a result of these acts and omissions. Id. The lower

courts held that the plaintiff had successfully pleaded an

Eighth Amendment violation under Estelle v. Gamble,

429 U.S. 97 (1976) and a cause of action for damages under

Bivens, and the Supreme Court affirmed. Carlson, 446 U.S.

at 17–18.

Recently, this circuit considered whether Carlson

created a blanket rule that applied to all Eighth Amendment

claims or whether certain Eighth Amendment claims might

still present new Bivens contexts. In Martinez v. U.S. Bureau

of Prisons, 830 F. App’x 234, 235 (9th Cir. 2020), a

previously incarcerated plaintiff sought a Bivens remedy

under Carlson for an Eighth Amendment claim for

14 HOFFMAN V. PRESTON

inadequate exercise. Martinez, 830 F. App’x at 235.

Although both the claims in Martinez and those in Carlson

arose under the Eighth Amendment, the court affirmed in an

unpublished disposition the district court’s finding that the

Martinez claim was a “new context,” because the inadequate

exercise claim was “demonstrably different in kind . . . from

that of Carlson.” Martinez v. Bureau of Prisons, 5:15-cv-

02160, 2019 WL 5432052, at *8 (C.D.C. Aug. 20, 2019); see

also Quintero Perez v. U.S., No. 17-56610, 2021 WL

3612108 (9th Cir. 2021) (case involving an officer fatally

shooting a Mexican national at the border was “‘different in

a meaningful way’” from Bivens, which involved an officer

arresting the plaintiff in, and searching, his home) (quoting

Abassi, 137 S. Ct. at 1859)).

Hoffman’s claim arises in a new context because it is

different in a modest way from that of the plaintiff in

Carlson. Hoffman alleges that Preston labeled him a

“snitch” and offered to pay other inmates to beat him. The

Carlson defendants kept the prisoner in an inadequate

medical facility, gave him the wrong treatments, and failed

to provide competent medical attention for hours after an

asthma attack. 446 U.S. at 16 n.1. The actions of the

defendants in both Carlson and in the present case caused

serious harm to each of the prisoners. 446 U.S. at 16 n.1.

The actions are, however, sufficiently different to treat

Hoffman’s claims as a modest extension beyond Carlson.

Martinez, 830 F. App’x at 235.

IV.

Having recognized that this claim presents a new Bivens

context because it involves a factually different Eighth

Amendment claim than Carlson, we hold that special factors

do not counsel hesitation against allowing a Bivens remedy

for a federal prison inmate alleging that a prison guard

HOFFMAN V. PRESTON 15

intentionally targeted him for harm and failed to protect him

from the predictable harm that resulted. 4 See Lanuza,

899 F.3d at 1028 (“Abbasi makes clear that, though

disfavored, Bivens may still be available in a case against an

individual federal officer who violates a person’s

constitutional rights while acting in his official capacity.”).

A.

A primary special factor counseling hesitation in

extending Bivens to a new context is the availability of

alternative remedies that sufficiently “protect[] the [injured

party’s] interest.” Abbasi, 137 S. Ct. at 1858 (second

alteration in original) (quoting Wilkie v. Robbins, 551 U.S.

537, 550 (2007)). Other remedies potentially available to

Hoffman do not adequately “redress [Hoffman’s] alleged

harm,” and therefore do not caution against expansion. See

Bistrian, 912 F.3d at 92; see also Carlson, 446 U.S. at 18–

19 (Bivens remedy is available unless Congress has provided

“equally effective” alternative relief).

1.

Hoffman would likely not be able to obtain damages

from Preston in a state-law tort suit. The Supreme Court has

4

In Boule v. Egbert, 998 F.3d 370, 387 (9th Cir. 2021), we similarly

held that special factors did not counsel against the “modest extension”

of the remedy to a Fourth Amendment excessive-force claim against a

border control agent. The Supreme Court recently granted certiorari in

that case on “whether a cause of action exists under Bivens for First

Amendment retaliation claims,” and “whether a cause of action exists

under Bivens for claims against federal officers engaged in immigration-

related functions for allegedly violating a plaintiff’s Fourth Amendment

rights.” The border context of that case distinguishes it from the facts

alleged here. The Court notably did not grant certiorari on Egbert’s third

proposed question: “Whether the Court should reconsider Bivens.”

16 HOFFMAN V. PRESTON

already recognized that in suits against federal officers,

state-law tort actions do not generally provide an alternative

remedy, because under the Westfall Act, “[p]risoners

ordinarily cannot bring state-law tort actions against

employees of the Federal Government.” Minneci v. Pollard,

565 U.S. 118, 126 (2012) (emphasis in original) (citing

28 U.S.C. §§ 2671, 2679(b)(1)). The dissent argues that

despite this general rule, Hoffman can bring a state-law tort

suit because Preston was not acting within the “scope of his

employment” during the alleged incidents. This argument is

inconsistent with the Westfall Act, California state law, and

the representations the Department of Justice made in this

case on Preston’s behalf.

The Westfall Act “accords federal employees absolute

immunity from common-law tort claims arising out of acts

they undertake in the course of their official duties.” Osborn

v. Haley, 549 U.S. 225, 229 (2007). When a state-law tort

suit is brought against a federal employee for actions taken

within the “scope of his office or employment,” the United

States is substituted as the defendant and the claim must

proceed in federal court under the Federal Tort Claims Act.

Id. at 230; see 28 U.S.C. § 2679(d)(4). There are two ways

to establish that an employee was acting within the scope of

his employment: (a) the Attorney General can so certify,

8 U.S.C. § 2679(d)(1), (2); or (b) if the Attorney General

refuses, the employee can petition the trial court for

certification, id. § 2679(d)(3). The Attorney General’s

certification is conclusive for removal purposes, id.

§ 2679(d)(2), while a state court’s certification can be

challenged after the case is removed to federal court, id.

§ 2679(d)(3).

The Department of Justice has represented that if

Hoffman were to bring a state-law tort suit against Preston,

HOFFMAN V. PRESTON 17

“it is likely the United States would . . . certify that Preston

acted within the scope of employment.” The Attorney

General determines that certification is proper based “on an

understanding of the facts that differs from the plaintiff’s

allegations” in the complaint—including a defendant’s

denial of the underlying incidents. Osborn, 549 U.S. at 231.

Preston has denied the allegations, and the Attorney General,

through his designee, has approved Hoffman’s direct

representation by the Department of Justice, according to the

government’s letter brief filed on April 13, 2021. Such a

representation is approved only “when the actions for which

[Department of Justice] representation is requested

reasonably appear to have been performed within the scope

of the employee’s employment.” 28 C.F.R. § 50.15(a).

The Assistant U.S. Attorney has also repeatedly asserted

that Hoffman could obtain a remedy under the Federal Tort

Claims Act, which would be true only if Preston acted within

the scope of his employment during the alleged acts. See

28 U.S.C. § 1346(b)(1). As Preston acknowledges, in these

circumstances it would be quite odd if the Attorney General

did not certify that Preston was acting within the scope of his

employment for Westfall Act purposes, should the question

arise.

Even if the question did reach a state court, it would be

unclear at best whether that court would find that Preston

acted within the scope of his employment. An officer’s

scope of employment for Westfall Act purposes is

determined by applying “the principles of respondeat

superior of the state in which the alleged tort occurred”—

here, California. Saleh v. Bush, 848 F.3d 880, 889 (9th Cir.

2017) (citation omitted). Under California law, it is “well

established” that “an employee’s willful, malicious and even

criminal torts may fall within the scope of his or her

18 HOFFMAN V. PRESTON

employment for purposes of respondeat superior,” Lisa M.

v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 291, 296

(1995) (citations omitted), so long as there is a causal

“nexus” between the tortious conduct and the employment,

Xue Lu v. Powell, 621 F.3d 944, 948 (9th Cir. 2010).

California courts, and federal courts applying California

law, have often found that employees were—or could have

been—acting within the scope of their employment when

they committed intentional torts. See, e.g., Doe v. Bridges

to Recovery, LLC, No. 2:20-CV-00348-SVW, 2021 WL

1321652, at *3–4 (C.D. Cal. Mar. 8, 2021) (a reasonable

juror could find that a medical technician who sexually

assaulted a patient was acting within the scope of

employment); Heidari-Mojaz v. Arreguin, No. CV 20-154-

CBM-SHK(X), 2020 WL 6541991, at *2 (C.D. Cal.

Sept. 18, 2020) (an employee who punched a customer was

acting within the scope of employment); Xue Lu, 621 F.3d

at 948–49 (an immigration officer who solicited bribes from

an asylum applicant and sexually assaulted her acted within

the scope of employment); Mary M. v. City of Los Angeles,

814 P.2d 1341, 1347–52 (Cal. 1991) (en banc) (finding

factual disputes material to determining whether a police

officer who sexually assaulted the plaintiff acted within the

scope of employment).

If Hoffman were to bring a state-law tort suit, and the

Attorney General chose not to certify, the state court might

conclude that Preston was acting outside the scope of his

employment. But this remote possibility is too flimsy a basis

to conclude that a state tort remedy is so obviously

“available” to Hoffman that we should hesitate in extending

a Bivens remedy. Cf. Pollard, 565 U.S. at 125–26 (no Bivens

remedy was available against a privately employed guard

working in a federal prison, because a state-law tort claim

HOFFMAN V. PRESTON 19

was clearly available against the guard, in contrast to a

federally employed prison employee).

2.

If Preston is immune under the Westfall Act, Hoffman

would instead be able to bring a claim against the United

States under the Federal Tort Claims Act. 28 U.S.C.

§ 2679(d)(4). The availability of a remedy under that Act

does not foreclose a parallel Bivens suit, because “the threat

of suit against the United States [is] insufficient to deter the

unconstitutional acts of individuals.” Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 67–68 (2012) (citing Carlson,

446 U.S. at 21). In Carlson, the Court noted that it is “crystal

clear that Congress views FTCA and Bivens as parallel,

complementary causes of action.” 446 U.S. at 20; see also

id. at 23 (“Plainly [the] FTCA is not a sufficient protector of

the citizens’ constitutional rights, and without a clear

congressional mandate we cannot hold that Congress

relegated respondent exclusively to the FTCA remedy.”).

The intervening years have not changed that conclusion. See

Hernandez II, 140 S. Ct. at 748 n.9 (“Congress made clear

that it was not attempting to abrogate Bivens” by enacting

the Federal Tort Claims Act.); see also Williams v. Baker,

487 F. Supp. 3d 918, 929 (E.D. Cal. 2020) (“The Supreme

Court has not repudiated its holding that the FTCA ‘is not a

sufficient protector of the citizens’ constitutional rights,’ and

this court remains bound by it.”) (quoting Carlson, 446 U.S.

at 23).

3.

An injunction, a habeas grant, or other prospective relief

is also inadequate to cure the harm Hoffman already

suffered. See, e.g., Abbasi, 137 S. Ct. at 1862 (“[I]ndividual

instances of discrimination or law enforcement overreach,

20 HOFFMAN V. PRESTON

. . . due to their very nature are difficult to address except by

way of damages actions after the fact.”); Bistrian, 912 F.3d

at 92 (remedies that “give[] no retrospective relief” do not

properly address the harm once a prisoner has been

assaulted); Reid, 825 F. App’x at 445 (injunctive relief “does

nothing to cure the damage [a plaintiff] already suffered”).

Injunctive relief would be ineffective for, and unavailable to,

Hoffman, as he has been moved to a different facility and is

no longer in contact with Preston. See, e.g., Dilley v. Gunn,

64 F.3d 1365, 1368 (9th Cir. 1995).

The dissent argues that the Supreme Court has precluded

extending a Bivens remedy when any administrative or

injunctive relief is, or was, available to the plaintiff—no

matter how meaningless that relief would be to address the

harm suffered. But the Supreme Court has not taken the

approach that the dissent suggests. Instead, the Court has

laid out a fact-specific inquiry, recognizing that when the

relief sought affects important aspects of prison

management, or when the relief is sought to deter entities,

rather than individuals, from acting unconstitutionally, the

plaintiff should seek an injunction. When the relief is sought

to deter individuals from inflicting harm and that relief does

not implicate prison policy or management, damages are

appropriate. See Malesko, 534 U.S. at 74.

In Malesko, the Court explained that the availability of

administrative and injunctive relief was a factor counseling

against extending Bivens to an Eighth Amendment claim

brought against a private prison operator. A Bivens remedy

was not a proper vehicle for deterring the acts of an entity,

as opposed to the acts of an individual federal officer.

Unlike the damages sought against individual federal

officers, as in Carlson and Boule and here, “injunctive relief

HOFFMAN V. PRESTON 21

has long been recognized as the proper means for preventing

entities from acting unconstitutionally.” Id.

In Abbasi, the respondents were former detainees at the

Metropolitan Detention Center in Brooklyn, New York

under a “hold-until-cleared” policy. 137 S. Ct. at 1852–53.

Under the policy, the FBI would hold undocumented persons

indefinitely while completing investigations to determine

whether the detainees were connected to terrorists. Id. After

suffering alleged abuse and harsh confinement conditions,

the respondents brought two sets of Bivens claims against

executive officials and wardens at the Detention Center. The

Abbasi Court’s rejection of the Bivens claims against the

executive officials turned in part on recognizing that

injunctive relief, not damages, is the right relief to reform an

entity’s policies. 137 S. Ct. at 1860. The Abbasi remand of

the claims against the warden also raised this concern, noting

that “an injunction requiring the prison warden to bring his

prison into compliance with [the prison] regulations” may

have been available. 137 S. Ct. at 1865.

Carlson is the one Supreme Court Bivens case that has

involved claims against individual federal prison guards for

their mistreatment of an inmate. The Carlson Court did not

hold that the availability of some form of injunctive relief

counseled against a Bivens remedy. The dissent asserts that

“it must be emphasized that no injunctive relief was possible

in Carlson, given that there, the prisoner died, whereas here,

Hoffman lives on.” Dissent at 43. In Carlson, the plaintiff

inmate had died from the medical problems that the federal

officers had failed to respond to, so the suit was brought by

the estate. Hoffman survived the attack by inmates that the

federal officer had instigated. But the twin purposes of a

damages remedy—to deter the offender and to make the

victim whole—are even more effective while the victim

22 HOFFMAN V. PRESTON

lives. See Malesko, 534 U.S. at 70 (“The purpose of Bivens

is to deter individual federal officers from committing

constitutional violations.”). The Dissent implies Carlson

may have had a different outcome had the plaintiff inmate

survived, but failure-to-provide-medical-care Bivens claims

modeled after the claim in Carlson are routinely brought and

maintained by current and former inmates who are still alive.

See, e.g., Jiau v. Tews, No. 13-cv-04231-YGR (PR), 2021

WL 2913549, at *8 (N.D. Cal. July 12, 2021); Van Gessel v.

Moore, 1:18-cv-01478-DAD-GSA-PC, 2020 WL 905216, at

*8–9 (E.D. Cal. Feb. 25, 2020); Lewis v. Ives, No. 3:18-cv-

00184-MK, 2020 WL 2761024, at *5 (D. Or. Feb. 12, 2020);

Harris v. Lappin, No. EDCV 06–00664 VBF (AJW), 2009

WL 789756, at *1, 10–11 (C.D. Cal. Mar. 19, 2009);

Lictenberg v. United States, No. 10–00353 SOM–BMK,

2011 WL 322552, at *2 (D. Hawaii Jan. 27, 2011). 5

Hoffman’s claim does not seek to reform prison

management. Hoffman does not bring a claim against an

entity, and he does not seek to enjoin or require a particular

prison policy. Hoffman seeks damages for the harm caused

to him by the targeted actions of one rogue prison official.

Finally, the internal BOP grievance process is not a

sufficient alternative to a damages remedy under Bivens. On

its face, the grievance process is not intended as a substitute

for a federal suit: the PLRA makes clear that a prisoner may

bring a federal action after he exhausts the grievance

process. 42 U.S.C. § 1997e(a). The Supreme Court has

5

See also Chapman v. Santini, 805 Fed. App’x. 548, 551, 554 (10th

Cir. Feb. 13, 2020); Koprowski v. Baker, 822 F.3d 248, 249–50, 257 (6th

Cir. 2016); Scinto v. Stansberry, 841 F.3d 219, 224, 236–37 (4th Cir.

2016); Whitley v. Hunt, 158 F.3d 882, 887–88 (5th Cir. 1998), abrogated

on other grounds, Booth v. Churner, 532 U.S. 731 (2001).

HOFFMAN V. PRESTON 23

acknowledged as much, explaining that “federal prisoners

suing under [Bivens] must first exhaust inmate grievance

procedures.” Porter v. Nussle, 534 U.S. 516, 524 (2002).

The purpose of this exhaustion requirement is to “promote

administrative redress, filter out groundless claims, and

foster better prepared litigation of claims aired in court,” id.

at 528 (citation omitted)—not to exclude from federal court

meritorious claims that cannot be resolved by the grievance

process. This makes sense: when a prisoner is physically

injured due to an officer’s unconstitutional actions, the harm

can “only be remedied by money damages,” which are not

available through the BOP grievance process. Bistrian,

912 F.3d at 92 (citation omitted); see also Bivens, 403 U.S.

at 410 (Harlan, J., concurring) (the remedy is available for

cases in which “it is damages or nothing”).

B.

Courts should hesitate to extend the Bivens remedy into

a new context when “legislative action suggest[s] that

Congress does not want a damages remedy.” Abbasi, 137 S.

Ct. at 1865; see, e.g., Hernandez II, 140 S. Ct. at 739

(“Congress has been notably hesitant to create claims based

on allegedly tortious conduct abroad.”). We agree with the

Third Circuit “that congressional silence in the PLRA about

the availability of Bivens remedies” does not suggest that

Congress intended to make such remedies unavailable.

Bistrian, 912 F.3d at 92–93.

The touchstone is whether “there are sound reasons to

think Congress might doubt the efficacy or necessity of a

damages remedy as part of the system for enforcing the law

and correcting a wrong.” Abbasi, 137 S. Ct. at 1858.

Congress passed the PLRA in 1996, 16 years after the

Supreme Court decided Carlson. The law did not explicitly

create a stand-alone monetary damages remedy against

24 HOFFMAN V. PRESTON

federal correctional officers, but it did not explicitly disallow

one either. See 42 U.S.C. § 1997e; Abbasi, 137 S. Ct.

at 1865. The district court, Preston, and the dissent rely on

Abbasi’s discussion of the PLRA to conclude that

Congress’s failure to explicitly provide a damages remedy

“precludes an implied remedy.” Dissent at 46. But Abbasi

says only that “[i]t could be argued” that the PLRA’s failure

to provide a stand-alone damages remedy “suggests” that

“Congress chose not to extend the Carlson damages remedy

to cases involving other types of prisoner mistreatment.”

137 S. Ct. at 1865 (emphasis added). We do not dispute that

this argument can be made, but we find it unpersuasive.

The PLRA “attempts to eliminate unwarranted federal-

court interference with the administration of prisons” by

“affor[ding] corrections officials time and opportunity to

address complaints internally before allowing the initiation

of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006)

(emphasis added) (quoting Nussle, 534 U.S. at 525).

Congress would have been aware when drafting the PLRA

that prisoners were bringing failure-to-protect claims under

Bivens. See, e.g., Gillespie, 629 F.2d 637 (decided 16 years

before PLRA enactment); Farmer, 511 U.S. 825 (decided

two years before PLRA enactment). Congress did not and

has not disallowed additional Bivens remedies. See Brown

v. Gardner, 513 U.S. 115, 121 (1994) (“Congressional

silence ‘lacks persuasive significance.’” (citations omitted)).

Given its general purpose, the PLRA is best read as

reflecting congressional “intent to make more rigorous the

process prisoners must follow” before bringing a federal

damages lawsuit, rather than a desire to prevent prisoners

from seeking damages in federal court altogether. Bistrian,

912 F.3d at 93. The text supports this conclusion. The

PLRA states that “[n]o action shall be brought with respect

HOFFMAN V. PRESTON 25

to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison,

or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). The PLRA slows down the processing of claims

until administrative remedies are exhausted; it does not

foreclose available remedies after exhaustion is complete,

nor is it plausibly read as suggesting that possibility.

The PLRA also provided courts with explicit authority

to act without motion to dismiss frivolous and meritless

motions:

The court shall on its own motion or on the

motion of a party dismiss any action brought

with respect to prison conditions under

section 1983 of this title, or any other Federal

law, by a prisoner confined in any jail, prison,

or other correctional facility if the court is

satisfied that the action is frivolous,

malicious, fails to state a claim upon which

relief can be granted, or seeks monetary relief

from a defendant who is immune from such

relief.

42 U.S.C. § 1997e(c)(1). Congress recognized that in some

instances, defendants may be immune from monetary relief

in suits relating to prison conditions, but Congress did not

define when this immunity applies. Other parts of the PLRA

specify when attorneys’ fees are appropriate, the conditions

for recovering mental or emotional damages, the types of

hearings required for pretrial proceedings, and when the

defendant has waived a reply. 42 U.S.C. § 1997e(d)–(g).

The PLRA’s purpose and text lead to the conclusion that

it is a statute about process, not the substantive requirements

26 HOFFMAN V. PRESTON

for relief. See Nussle, 534 U.S. at 524 (requiring PLRA

exhaustion for federal prisoners’ Bivens actions). The PLRA

does not overhaul the remedies available to incarcerated

plaintiffs after they satisfy process requirements to seek

those remedies. Cf. Chappell v. Wallace, 462 U.S. 296, 304

(1983) (rejecting a Bivens claim brought by military

personnel when Congress had already enacted a

comprehensive scheme for grievances, governing both

process and remedies). No significant meaning can be

attributed to the fact that Congress said nothing about the

availability or unavailability of monetary damages to

incarcerated plaintiffs. Cf. AMG Capital Mgmt., LLC v.

FTC, 141 S. Ct. 1341, 1351 (2021) (“[W]hen ‘Congress has

not comprehensively revised a statutory scheme but has

made only isolated amendments . . . [i]t is impossible to

assert with any degree of assurance that congressional failure

to act represents affirmative congressional approval of [a

court’s] statutory interpretation.’”); Midlantic Nat’l Bank v.

N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986) (“The

normal rule of statutory construction is that if Congress

intends for legislation to change the interpretation of a

judicially created concept, it makes that intent specific.”).

The PLRA does not provide “sound reasons to think

Congress might doubt the efficacy or necessity of a damages

remedy” here. Abbasi, 137 S. Ct. at 1858 (citation omitted).

Preston suggests no other legislative action that would cause

us to hesitate.

C.

Finally, we agree with the district court that allowing this

Bivens claim to proceed does not risk an undue “impact on

governmental operations systemwide.” Abbasi, 137 S. Ct.

at 1858. Generally, “a Bivens claim is brought against the

individual official for his or her own acts,” with the purpose

HOFFMAN V. PRESTON 27

“to deter the officer” from further unconstitutional actions.

Id. (emphasis in original) (quoting F.D.I.C. v. Meyer,

510 U.S. 471, 485 (1994)). As discussed, this case falls

squarely within that central Bivens purpose and does not

threaten judicial overreach into the operation of another

branch.

Preston’s arguments to the contrary are unavailing. He

asserts that Hoffman’s claim interferes with internal prison

disciplinary proceedings because the alleged constitutional

violation is “intertwined” with the disciplinary citation

Preston issued to Hoffman. This argument is clearly

incompatible with the purpose and history of Bivens actions.

By Preston’s logic, any time a corrections officer initiated a

disciplinary matter, no matter how unfounded or retaliatory,

a Bivens claim would be precluded. This is simply not the

kind of interference with other branches that concerned the

Supreme Court in Abbasi.

This case does not impact national security or raise

cross-border concerns that clearly counsel against a Bivens

remedy. See Hernandez II, 140 S.Ct. at 749 (“We have

declined to extend Bivens where doing so would interfere

with the system of military discipline created by statute and

regulation, and a similar consideration is applicable here.

Since regulating the conduct of agents at the border

unquestionably has national security implications, the risk of

undermining border security provides reason to hesitate

before extending Bivens in this field.” (internal citations

omitted)); see also Abbasi, 137 S.Ct. at 186; cf. Lanuza,

899 F.3d at 1028–29 (allowing the extension of Bivens for a

plaintiff whose claim “d[id] not challenge high-level

executive action” or “seek to alter the policy of the political

branches”).

28 HOFFMAN V. PRESTON

Nor does Hoffman challenge prison administration or

policies. Prisoners generally bring three categories of Bivens

claims: 1) challenges to the conditions of their confinement;

2) challenges to the use of force by prison guards; and

3) claims that officers were deliberately indifferent to the

health and safety of inmates. Each of these Eighth

Amendment claims can pose separation of powers concerns

when the harm caused is the result of broader prison policies

and administration, or when a Bivens remedy might lead to

the alteration of prison policies and administration. As the

Supreme Court has emphasized, “[p]rison administration” is

“a task that has been committed to the responsibility of [the

legislative and executive] branches, and separation of

powers concerns counsel a policy of judicial restraint.”

Turner v. Safley, 482 U.S. 78, 84–85 (1987).

The allegations and claim in this case are similar to the

second category—alleging excessive force by prison

guards—but the allegations are not that a corrections officer

used excessive force against an inmate in an attempt to

maintain discipline or prison security. The Bivens claim here

is based on allegations that a corrections officer intentionally

harmed the plaintiff by bribing and inciting other prisoners

to use force against him. The allegations and claim in this

case are also similar to the third category—deliberate

indifference—but the allegations are not that the corrections

officer failed to protect an inmate from a known harm that

the officer himself did not create (like a prisoner’s proneness

to asthma attacks). The Bivens claim here is based on

allegations that a corrections officer created the risk of harm

and then failed to protect the plaintiff from that harm. The

claim, if it were to succeed, would punish the officer for acts

certainly prohibited by the prison administration’s rules

(bribing inmates to inflict harm on other inmates), and it

would not insert the court into broad or sensitive areas of

HOFFMAN V. PRESTON 29

prison administration, such as the way the prison permits

officers to use force against inmates or the way the prison

houses inmates.

The propriety of this Bivens claim is made even clearer

when compared to claims by inmates for which courts have

permitted a Bivens remedy. Recently, the Third Circuit

upheld a Bivens remedy for an officer’s failure to protect a

prisoner from a substantial risk of harm at the hands of

another prisoner. In Bistrian v. Levi, 912 F.3d 79 (3d Cir.

2018), an inmate, Peter Bistrian, cooperated with two prison

officials in a “surveillance operation in which Bistrian

secretly passed inmate notes to prison officials.” Id. at 84.

Eventually, due to a slip-up by Bistrian, inmates learned of

Bistrian’s cooperation. Bistrian “received multiple threats

and made prison officials aware of them.” Id. “Despite [the

defendants’] knowledge of the threats against Bistrian, . . .

prison officials placed him in the recreation yard where” the

inmates whom Bistrian had been surveilling were waiting.

Those inmates “proceeded to brutally beat Bistrian,” while

the officers watched and did not intervene until “the damage

was done.” Id. “Bistrian suffered severe physical and

psychological injuries.” Id. 6

The defendants argued that separation of powers

principles counseled against a Bivens remedy, but the court

disagreed. Id. at 93. The court noted that “Bistrian’s claim

fits squarely within Bivens’ purpose of deterring misconduct

by prison officials,” because “Bistrian’s claim challenges

6

In Bistrian, the Third Circuit found that a claim for failure to

protect an inmate from a known risk of substantial harm does not arise

in a new Bivens context even when brought by pretrial detainees under

the Fifth Amendment. 912 F.3d at 88. This case does not present that

question, and we do not reach it.

30 HOFFMAN V. PRESTON

particular individuals’ actions or inaction in a particular

incident—the specific decision to place him in the yard with

Northington and other prisoners and then to not intervene

when he was being savagely beaten.” Id.

In Bistrian, the defendant officers did not provoke the

inmates to attack Bistrian, but they knowingly placed him in

a situation that they knew would result in harm, and they

then failed to protect him from that harm. Hoffman’s claim

goes one step further, alleging that Preston not only failed to

protect Hoffman from a known risk of harm, but also

provoked inmates to harm him in the first place. A Bivens

remedy would do more than ensure that officials do not forgo

their responsibility “to protect prisoners from violence at the

hands of other prisoners.” Farmer v. Brennan, 511 U.S 825,

833 (1994). It would ensure that officials also do not

instigate that violence.

The dissent’s worry that allowing a Bivens remedy in this

case will open a floodgate of claims against “countless

decisions taken by prison officials,” is misplaced. We write

far more narrowly. A Bivens claim may proceed on

allegations that an individual officer intentionally targeted

an inmate for harm by spreading malicious rumors about and

offering bribes to attack him, the inmate was attacked

because of the officer’s conduct, and the officer failed to

protect the inmate against the known risk of harm that the

officer himself created. 7 We take no further, and certainly

7

If, after discovery, there is no evidence supporting that Hoffman’s

attacker acted because of Preston’s conduct, then Hoffman would not

have an available Bivens claim. There are no allegations that Preston

had knowledge of a risk of harm to Hoffman that arose independent of

Preston’s conduct. See Farmer, 511 U.S. at 844 (“[P]rison officials who

lack[] knowledge of a risk cannot be said to have inflicted punishment.”).

HOFFMAN V. PRESTON 31

no broader, position on the scope of claims against prison

officials that might otherwise warrant a Bivens remedy.

In sum, although this case represents a modest extension

of Bivens, no special factors caution against extending the

remedy to encompass this well-established claim, brought

against a single rogue officer under the same constitutional

provision applied in a well-recognized Supreme Court

Bivens case. Simply put, “if the principles animating Bivens

stand at all, they must provide a remedy” here. Lanuza,

899 F.3d at 1021.

V.

For the reasons stated above, the district court’s

dismissal is REVERSED and REMANDED for further

proceedings consistent with this opinion.

BEA, Circuit Judge, dissenting:

The Supreme Court has made crystal clear that the days

of freely implying damages remedies against individual

federal officials under Bivens are at an end. “The

Constitution grants legislative power to Congress,” and so “a

federal court’s authority to recognize a damages remedy

must rest at bottom on a statute enacted by Congress.”

Hernandez v. Mesa, 140 S. Ct. 735, 741–42 (2020). The

Court has recognized only three exceptions to this general

rule: damages remedies may be implied for the specific

claims at issue in Bivens, Davis, and Carlson. But these

exceptions are limited to the factual contexts in which they

arose, and the lower courts cannot extend them if any

“special factors counsel[] hesitation” before intruding on the

32 HOFFMAN V. PRESTON

separation of powers and acting in the absence of statutory

authority. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).

This should have been a straightforward affirmance of

the district court’s judgment. We are asked to decide

whether a prisoner (Hoffman) may seek damages against a

federal prison guard (Preston) who, the prisoner claims,

intentionally and deliberately instigated other prisoners to

beat him in retaliation for the prisoner’s suspected snitching

out of the prison guards’ theft of prison food by offering to

pay other prisoners to beat him. Is that a Bivens eligible

violation of the Eighth Amendment’s prohibition of cruel

and unusual punishment? The answer is no. Congress has

never enacted a damages remedy against federal prison

officials who act as in the allegations in this case, which

amount to an Eighth Amendment excessive force claim; the

Supreme Court has never recognized a remedy for such

actions under Bivens, and at least three special factors bar the

narrow gate towards extending the Bivens remedy to this

new context. Unfortunately, my colleagues dismiss the

Supreme Court’s clear instructions by permitting this case to

move forward as a Bivens cause of action. The majority

prunes partial quotes from Hernandez and Abbasi to present

a veneer of faithfulness to binding precedent. But do not be

fooled: their reasoning and conclusions cannot be squared

with modern Bivens jurisprudence. 1

While the majority recognizes this case arises in a new

Bivens context, they err in holding that no “special factors”

counsel against implying a new remedy for this Eighth

Amendment claim, an Eighth Amendment intentional harm

claim that is more than just a “modest extension” of Carlson.

1

See Hernandez v. Mesa, 140 S. Ct. 735 (2020); Ziglar v. Abbasi,

137 S. Ct. 1843 (2017).

HOFFMAN V. PRESTON 33

Congress has determined that a judicially administered

damages regime against federal officials in their individual

capacity is not the best way to protect the constitutional

rights of federal prisoners. The existence of alternative

remedies, repeated refusal to extend a damages remedy, and

the complex regulatory regime governing prison

administration all counsel against extending Bivens here.

Because I fear the majority oversteps the constitutional

separation of powers and puts our circuit in danger of yet

another reversal, I respectfully dissent.

I. Factual Background

Marcellus Hoffman is a federal prison inmate formerly

housed at the U.S. Penitentiary in Atwater, California.

Hoffman sued Officer Timothy Preston of the Federal

Bureau of Prisons (“BOP”) in the U.S. District Court for the

Eastern District of California for intentionally instigating

other prisoners to attack him. According to the complaint, 2

Preston accused Hoffman in front of other inmates of

“snitching” on BOP officers for stealing lunches from the

prison cafeteria and offered to pay inmates to beat Hoffman

in retaliation for Hoffman’s opposition to the thefts. This

intentional conduct, motivated by specific intent to harm

Hoffman, allegedly caused another inmate to beat Hoffman

in his prison cell. The complaint further alleged that

Hoffman has continued to receive threats from prisoners and

prison officials since transferring to a new prison in

Pennington Gap, Virginia, because of Preston’s actions.

2

Officer Preston has denied the allegations, but their truth must be

assumed because this appeal arises from a ruling on a motion to dismiss.

Moss v. U.S. Secret Serv., 572 F.3d 962, 967–68 (9th Cir. 2009).

34 HOFFMAN V. PRESTON

Hoffman claimed that Officer Preston’s actions

constituted retaliation in violation of the First Amendment

and cruel and unusual punishment in violation of the Eighth

Amendment. To remedy these alleged violations of his

constitutional rights, Hoffman sought a declaratory

judgment as well as $100,000 in compensatory and punitive

damages and attorneys’ fees and costs from Officer Preston

in his individual capacity. Only the Eighth Amendment

claim is at issue on this appeal because Hoffman did not

appeal the dismissal of his First Amendment retaliation

claim.

From the outset, Hoffman faced a problem as to the

remedies he sought: Congress has never enacted a damages

remedy against individual federal officials for the violation

of constitutional rights as it has against state officials in

42 U.S.C. § 1983. Hoffman does not seek damages in this

action against the United States under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., by

alleging that Preston acted as an agent of the Government.

Hoffman also did not allege that Preston acted outside the

scope of his employment, and was therefore not protected

from liability under state laws by provisions of the Westfall

Act, id. § 2679. Neither did he attempt to bring California

tort law claims against Preston for assault, battery, or

defamation. Nor did Hoffman seek prospective injunctive

or habeas relief to remedy the reputational harms he

allegedly continues to suffer from being labelled a snitch

since transferring to a new federal prison facility in Virginia,

18 U.S.C. § 3626. Instead, Hoffman solely asked the court

to imply a damages remedy against individual federal

officials from the text of the Constitution itself.

The district court adhered to the clear instructions of the

Supreme Court’s decision in Abbasi by refusing to extend a

HOFFMAN V. PRESTON 35

Bivens remedy and dismissed the case. The court began by

holding that Hoffman’s claim arose in a “new Bivens

context” because the Supreme Court “has approved of only

one Bivens damages remedy under the Eighth

Amendment—specifically for failure to provide medical

care,” and Hoffman’s claim had nothing to do with

inadequate medical care. See Carlson v. Green, 446 U.S. 14,

16 n.1, 18–23 (1980). The court rejected Hoffman’s

argument that the Court had extended Carlson through

Farmer, which “never explicitly stated . . . that it was

recognizing an implied Bivens Eighth Amendment failure to

protect claim.” See Farmer, 511 U.S. 825.

Next, the district court held that “special factors”

counselled against extending a new Bivens remedy for

Hoffman’s intentional instigation claim. First, the court

found that Congress had provided for alternative remedies

aside from a damages action against individual officials:

Hoffman could challenge the conditions of his confinement

through the BOP administrative grievance process, seek

declaratory and injunctive relief, and seek damages against

the Government under the FTCA. Second, Congress had

decided against creating an individual damages remedy

against federal prison officials despite specifically

considering the issue in 1996 when enacting the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

Hoffman appealed with the aid of pro bono appellate

counsel; our review is de novo. Vega v. United States,

881 F.3d 1146, 1152 (9th Cir. 2018).

II. Separation of Powers & Bivens

Our Constitution is exceptional not necessarily because

it enumerates individual rights, but because it divides the

power to remedy their violations among three independent

branches of government. Article I vests Congress with

36 HOFFMAN V. PRESTON

“legislative Powers” to articulate rights and establish

remedies, U.S. CONST. art. I, § 1; Article II renders the

President accountable to the national electorate for the sole

exercise of “the executive Power,” id. art. II, § 1; and

Article III vests the federal courts with the “judicial Power”

to adjudicate rights in “Cases” and “Controversies,” id.

art. III, §§ 1–2. “Without a secure structure of separated

powers, our Bill of Rights would be worthless, as are the

bills of rights of many nations of the world that have

adopted, or even improved upon, the mere words of ours.”

Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J.,

dissenting).

The legislative power “is the power to make law.”

Patchak v. Zinke, 138 S. Ct. 897, 905 (2018). Under our

constitutional system, “the legislature not only commands

the purse, but prescribes the rules by which the duties and

rights of every citizen are to be regulated.” The Federalist

No. 78, at 402 (A. Hamilton) (Cary & McClellan eds. 2001).

Congress enjoys broad authority to create rights and

remedies and may enforce many enumerated rights “by

appropriate legislation.” U.S. CONST. art. I, § 8; id. amends.

XIII, XIV, XV, XXIV, XXVI. The availability of a damages

remedy against federal officials also implicates Congress’s

taxing and spending powers, since such officials may be

indemnified against legal expenses and adverse judgments

for claims arising out of the scope of their employment. Id.

art. I, § 7, cl. 1, § 8, cls. 1–2, 5.

The judicial power is “limited to particular cases and

controversies” assigned to the federal courts by statute or by

the Constitution. Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 223 (1995); see Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994). The constitutional bases for

jurisdiction—federal question, foreign ministers, admiralty,

HOFFMAN V. PRESTON 37

diverse citizenship, and disputes between states, U.S.

CONST. art. III, § 2, cl. 1—cannot serve as a cause of action

for damages against individual officials for the violation of

constitutional rights. Instead, plaintiffs alleging an official

abuse of power must rely on a statutory cause of action to

invoke the aid of the federal courts. Kokkonen, 511 U.S.

at 377; see Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963);

Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 10 (1817).

Unlike the historical courts of England which created the

forms of action, our courts do not create new laws. See, e.g.,

F. Maitland, The Forms of Action at Common Law (1936).

From 1789 until 1971, the Supreme Court held firm to

the indisputable conclusion that the extension of a damages

remedy is an exercise of “legislative power.” Hernandez,

140 S. Ct. at 742. Without a statute permitting “suits for

damages for abuse of power, federal officials [were] usually

governed by local law.” Wheeldin, 373 U.S. at 652.

Congress could have provided for a uniform federal statute

allowing suits for damages against federal officials for

constitutional torts as it had against state and local officials

in 42 U.S.C. § 1983. “[B]ut it ha[d] not done so,” and it was

not up to the federal courts “to fill any hiatus Congress has

left in this area.” Id.

In Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme

Court broke new ground by recognizing a Fourth

Amendment damages remedy for the warrantless search of a

residence. The Court implied a novel authority to craft

constitutional torts from the statutory grant of federal

question jurisdiction, which provided at the time that “[t]he

district courts shall have original jurisdiction of all civil

actions wherein the matter in controversy . . . arises under

the Constitution, laws, or treaties of the United States.”

38 HOFFMAN V. PRESTON

28 U.S.C. § 1331(a); see Hernandez, 140 S. Ct. at 741–42.

The ostensible driving force behind the decision was nothing

more than a general notion of equity, “that where legal rights

have been invaded, and a federal statute provides for a

general right to sue for such invasion, federal courts may use

any available remedy to make good the wrong done.”

Bivens, 403 U.S. at 396 (quoting Bell v. Hood, 327 U.S. 678,

684 (1946)). The Court has extended Bivens only twice in

the intervening fifty years: to intentional sex discrimination

by a congressman in Davis v. Passman, 442 U.S. 228 (1979),

and to the failure to provide, through deliberate indifference,

adequate medical care to a federal prisoner in Carlson.

The Supreme Court has long since returned to the

original understanding that the Constitution empowers

Congress, not the courts, “to evaluate ‘whether, and the

extent to which, monetary and other liabilities should be

imposed upon individual officers and employees of the

Federal Government’ based on constitutional torts.”

Hernandez, 140 S. Ct. at 742 (quoting Abbasi, 137 S. Ct.

at 1856). The jurisprudential foundations on which Bivens

relied—the practice of implying causes of action believed to

further the purpose of a statute—has been soundly

repudiated as a usurpation of the legislative power. See id.

at 741–42; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 67

n.3 (2001) (“[W]e have retreated from our previous

willingness to imply a cause of action where Congress has

not provided one.”); Alexander v. Sandoval, 532 U.S. 275,

287 (2001) (“We abandoned that understanding in [1975]

. . . and have not returned to it since.”). Given these

developments, it seems fair to say “that if ‘the Court’s three

Bivens cases [had] been . . . decided today,’ it is doubtful that

[the Court] would have reached the same result.”

Hernandez, 140 S. Ct. at 742–43 (quoting Abbasi, 137 S. Ct.

at 1856). Only the Court can overrule Bivens, Davis, and

HOFFMAN V. PRESTON 39

Carlson, and the lower courts are bound to apply them until

and unless that decision is made. But the Court has

recognized that every step in the direction of Bivens is a step

away from fidelity to the separation of powers, and has

substantially narrowed the circumstances in which the lower

courts may proceed down that road.

“When asked to extend Bivens, we engage in a two-step

inquiry.” Hernandez, 140 S. Ct. at 743. First, we ask

whether the claim arises in a “new context” or involves a

“new category of defendants.” Id. (quoting Malesko,

534 U.S. at 68). Claims arise in a “new context” when they

are “different in a meaningful way from previous Bivens

cases decided by this Court.” Id. (quoting Abbasi, 137 S. Ct.

at 1859). 3 Second, if the claim does arise in a new context,

we ask whether there are “any ‘special factors [that]

counsel[] hesitation’ about granting the extension.” Id.

(quoting Abbasi, 137 S. Ct. at 1857). Should the requested

extension fail this exacting test, any implied damages

remedy against individual federal officials must be denied.

III. Special Factors Analysis

At the outset, the majority correctly recognizes this case

arises in a new Bivens context. Therefore, the court must

next decide whether an extension of Bivens is permissible in

the absence of congressional action. Abbasi, 137 S. Ct.

3

In characterizing Hoffman’s claim as only a “modest extension” of

Carlson, the majority opinion provides no limiting principles as to what

constitutes a “modest” extension as opposed to a “radical” extension.

But in truth, these distinctions are immaterial, as under Abbasi, any

extension of Bivens demands the same analysis at the second step—are

there special factors counseling hesitation against extending the Bivens

remedy? If any special factors counseling hesitation are present, Abbasi

demands that Bivens should not be extended.

40 HOFFMAN V. PRESTON

at 1857. In doing so, we must ask whether the power to

extend the requested remedy rests with Congress or with the

judicial branch. Because the Constitution vests Congress

with the authority to enact damages remedies against federal

officials, “[t]he answer most often will be Congress.” Id.

Respect for the separation of powers requires the courts to

refuse to imply a new remedy “if there are ‘special factors

counselling hesitation.’” Id. (quoting Carlson, 446 U.S.

at 18).

Without overruling Bivens, the Supreme Court has since

repudiated the rationales on which that case relied and

declared further expansion of Bivens to be a “‘disfavored’

judicial activity.” Id. (quoting Ashcroft v. Iqbal, 556 U.S.

662, 675 (2009)). The decision to imply a new damages

remedy from the Constitution itself is thus no longer guided

by the rationales in Bivens, but by the “special factors”

inquiry commanded at Abbasi’s second step.

Whereas the Bivens Court rejected state law as an

adequate remedy for many constitutional violations,

403 U.S. at 392–95, the Court has since relied on the

availability of damages under state tort law to refuse to

expand Bivens even when the state remedies available are

not “perfectly congruent” with those provided by Bivens.

Minneci v. Pollard, 565 U.S. 118, 129 (2012) (refusing to

extend the Bivens remedy in Carlson to inadequate medical

care claim against private prison officials); Malesko,

534 U.S. at 72–73 (similar).

Whereas Bivens assumed that every wrong requires a

remedy, 403 U.S. at 395–96, the Court has long since

abandoned the practice of implying judicial remedies from

statutes and constitutional provisions that do not expressly

provide them. Hernandez, 140 S. Ct. at 741–42; Abbasi,

137 S. Ct. at 1855–57; see also Jesner v. Arab Bank, PLC,

HOFFMAN V. PRESTON 41

138 S. Ct. 1386, 1402–07 (2018) (refusing to imply a cause

of action against foreign corporation for terrorist activities

that was not expressly provided for by Congress in the plain

text of the Alien Tort Statute).

Relatedly, whereas the Bivens Court read congressional

silence as to provision of remedies as implicitly permitting

the courts to create their own, 403 U.S. at 397, the Court has

since refused to imply remedies when Congress has

“repeatedly declined to authorize the award of damages”

when enacting “statutes addressing related matters.”

Hernandez, 140 S. Ct. at 747 (citing repeated exclusion of

liability for official conduct abroad to deny extension of

Bivens to cross-border shooting); see also Chappell v.

Wallace, 462 U.S. 296, 300–04 (1983) (citing statutes and

regulations establishing the military justice system to deny

extension of Bivens to suits by military personnel against

superior officers). Indeed, the Court has explicitly refused to

extend Bivens in the prison context in part because Congress

“had specific occasion to consider the matter of prisoner

abuse and to consider the proper way to remedy those

wrongs” when enacting the Prison Litigation Reform Act of

1996 (“PLRA”), 42 U.S.C. § 1997e, and declined to extend

a damages remedy against individual prison officials.

Abbasi, 137 S. Ct. at 1865.

Hoffman’s requested extension of Bivens fails because

multiple “special factors” demonstrate that Congress, and

not the judicial branch, is vested with the authority to decide

whether to extend a damages remedy against federal officials

for the Eighth Amendment intentional harm claim presented

in this case. And, to date, Congress has affirmatively

decided not to extend the specific damages remedy requested

in this case.

42 HOFFMAN V. PRESTON

A. The Existence of Alternate Remedies

The first “special factor” precluding the extension of a

Bivens remedy to Hoffman’s claim is “the existence of

alternative remedies.” Abbasi, 137 S. Ct. at 1865. “For if

Congress has created ‘any alternative, existing process for

protecting the [plaintiff’s] interest,’” then “that alone may

limit the power of the Judiciary to infer a new Bivens cause

of action.” Id. at 1858 (quoting Wilkie v. Robbins, 551 U.S.

537, 550 (2007)). For starters, as explained above, Congress

has provided for injunctive relief in federal court and

administrative relief under BOP’s claims process that would

have allowed Hoffman to avoid injury by obtaining his

transfer beyond Preston’s reach before he was attacked, or

by seeking other forms of prospective relief. See id. at 1863

(noting habeas relief “would have provided a faster and more

direct route to relief than a suit for money damages” by

requiring immediate improvement of the conditions of

confinement). That Hoffman failed to utilize these remedies

between February 26, 2016 (the onset of his dispute with

Preston) and May 16, 2016 (the date of alleged physical

violence against Hoffman) does not permit this court to

conclude that an implied Bivens remedy is therefore

necessarily available. The Supreme Court has repeatedly

found that the availability of administrative and injunctive

relief precluded the requested extension of a Bivens remedy.

See id. at 1865 (concluding injunctive and habeas relief

counseled against extending Bivens to a claim of a warden’s

acquiescence in detainee abuse by prison guards); Malesko,

534 U.S. at 74 (finding the availability of injunctive and

administrative relief, along with state tort claims, eliminated

the need to extend Bivens to Eighth Amendment claims for

deliberate indifference to medical needs asserted against

private prisons as an entity). Moreover, an injunction

against Preston could be argued to have a deterrent effect on

HOFFMAN V. PRESTON 43

such officials by crimping their future ascendency within the

bureaucracy.

Next, Congress provided a damages remedy against the

Government for prisoners in Hoffman’s position under the

Federal Torts Claims Act (“FTCA”), which provides for

damages suits for intentional torts committed by individual

federal officers. 28 U.S.C. §§ 2674, 2680(h). It is true that

the Supreme Court in Carlson treated FTCA suits as an

inadequate substitute “[b]ecause the Bivens remedy is

recoverable against individuals . . . [and] is a more effective

deterrent than the FTCA remedy against the United States.”

446 U.S. at 21. But the Court has since warned that the

coexistence of the FTCA with Bivens remedies in

established contexts (i.e., Bivens, Davis, and Carlson) “is not

a license to create a new Bivens remedy in a context we have

never before addressed.” Hernandez, 140 S. Ct. at 748 n.9.

Because Hoffman’s claim against Preston for intentional

harm arises in a “new Bivens context,” we cannot simply

write off FTCA suits as inadequate and thereby usurp the

authority to craft our own remedy from the text of the

Constitution itself. If nothing else, the oft-cited “damages or

nothing” rationale from Bivens falls flat, given that Hoffman

has a damages remedy available to him under the FTCA,

such that extending the Bivens remedy to this case is not the

only means by which Hoffman can obtain damages. Bivens,

403 U.S. at 410 (Harlan, J., concurring). And moreover,

even taking at face value Carlson’s conclusion that the

FTCA alone was an inadequate remedy given the specific

facts of that case, it must be emphasized that no injunctive

relief was possible in Carlson, given that there, the prisoner

died, whereas here, Hoffman lives on.

Finally, Congress has left open the possibility that

claimants like Hoffman may bring state tort claims against

44 HOFFMAN V. PRESTON

federal officers like Preston who engage in particularly

egregious intentional conduct. The Westfall Act generally

bars state tort claims against “any employee of the

Government while acting within the scope of his office or

employment.” 28 U.S.C. § 2679(b)(1). 4 Under California

law—which controls in this case because the conduct at

issue occurred at a federal prison in California—the scope of

employment inquiry turns on whether the tort was

“foreseeable,” whether the employer’s job requirements

“engendered” the conduct, and whether the conduct was “not

so unusual or startling” that holding the employer liable

would be unfair. Lisa M. v. Henry Mayo Newhall Mem’l

Hosp., 907 P.2d 358, 362–63 (Cal. 1995) (citations and

quotation marks omitted).

Here, Preston allegedly sought to retaliate against

Hoffman for reporting Preston and other prison guards for

stealing lunches through an indirect use of force that violated

BOP regulations. 5 These actions likely amounted to the

common law torts of assault and battery. See, e.g., Arpin v.

Santa Clara Valley Transp. Agency, 261 F.3d 912, 926 (9th

Cir. 2001) (recognizing that California law imposes liability

4

To assert Westfall Act immunity, a federal employee sued in tort

must deliver the pleadings to his supervisor and, ultimately, to the

Attorney General. 28 U.S.C. § 2679(c). If the Attorney General certifies

the employee acted within the scope of his employment at the time of the

incident from which the claim arose, the court substitutes the United

States as defendant. Id. § 2679(d)(1)–(2). The scope of employment

inquiry is governed by the law of the state in which the conduct is alleged

to have occurred. See Saleh v. Bush, 848 F.3d 880, 888 (9th Cir. 2017).

5

See 28 C.F.R. §§ 552.20 (prohibiting the use of force except “as a

last alternative after all other reasonable efforts to resolve a situation

have failed”), 552.22(b) (prohibiting the use of force to “punish an

inmate”), 552.22(j) (requiring that all uses of force “be carefully

documented”).

HOFFMAN V. PRESTON 45

for police officers who “aided, abetted, counseled or

encouraged” battery when such force was unreasonable);

Fluharty v. Fluharty, 59 Cal. App. 4th 484, 497 (Cal. Ct.

App. 1997) (defining battery as “an act which resulted in a

harmful or offensive contact with the plaintiff's person”

(citation omitted)). Hoffman’s allegations would also fit

comfortably within the common law action for the

intentional infliction of emotional distress even if a fellow

inmate had never laid a hand on Hoffman. See, e.g., Potter

v. Firestone Tire & Rubber Co., 863 P.2d 795, 819 (Cal.

1993) (defining intentional infliction of emotional distress as

intentional or reckless “extreme and outrageous conduct”

directed at the plaintiff that proximately causes the plaintiff

“severe or extreme emotional distress”). And because

Preston is alleged to have falsely labeled Hoffman a “snitch”

to damage his reputation among other prisoners and prison

guards, Hoffman’s claim may state a cause of action for

defamation. See, e.g., Shively v. Bozanich, 80 P.3d 676,

682–83 (Cal. 2003) (defining slander as a “false and

unprivileged oral communication attributing to a person . . .

certain unfavorable characteristics or qualities”). While the

scope of employment is necessarily a fact-bound inquiry,

there is authority for the proposition that the conduct alleged

here falls outside the line. See, e.g., Lisa M., 907 P.2d

at 363–67 (holding that although a hospital technician’s

sexual assault of a patient was enabled by his employment,

the tort was not foreseeable and did not arise out of emotions

engendered by the job). 6

6

When asked for additional briefing on the availability of state tort

remedies in this case, the Government explained that the Attorney

General would likely certify that Preston acted within the scope of his

employment pursuant to the Government’s standard practice of

assuming the truth of a federal officer’s denial of the allegations in a

46 HOFFMAN V. PRESTON

B. Legislative Action

The second “special factor” precluding an extension of

Bivens here is “legislative action suggesting that Congress

does not want a [Bivens] damages remedy.” Abbasi, 137 S.

Ct. at 1865. In the PLRA of 1996, Congress sought to

address a backlog in prisoner-initiated litigation by imposing

new exhaustion requirements meant to reduce the quantity

of federal lawsuits. See 42 U.S.C. § 1997e(a), (c). Tellingly,

the PLRA did not include any damages remedies against

federal prison officials although its drafters were well aware

of the limited scope of the Bivens remedy extended in

Carlson for the inadequate provision of medical care.

In Abbasi, the Supreme Court explicitly noted that

“Congress had specific occasion to consider the matter of

prisoner abuse and to consider the proper way to remedy

those wrongs” when enacting the PLRA, but “chose not to

extend the Carlson damages remedy to cases involving other

types of prisoner mistreatment.” 137 S. Ct. at 1865. This

reasoning precludes an implied remedy for Hoffman’s

Eighth Amendment intentional harm claim based on

allegations of prisoner-on-prisoner violence instigated by a

guard. My colleagues cannot escape the fact that Congress

implicitly accepted the limited scope of the remedy in

Carlson (1980) by failing to expand upon it when enacting

the PLRA (1996). The majority’s allusion to the PLRA’s

complaint. (citing Osborn v. Haley, 549 U.S. 225, 247 (2007)). But we

should not be so quick to cast aside a role for state tort law when such

suits are consistent with the Westfall Act. The Attorney General may

withdraw a certification if new evidence comes to light, and contrary to

the majority opinion’s statements suggesting otherwise, the court may

override such a certification if the plaintiff sets out allegations capable,

if true, of proving the employee acted outside the scope of his

employment. See Saleh, 848 F.3d at 889.

HOFFMAN V. PRESTON 47

“general purpose” as merely a procedural statute is

unavailing. As the majority itself recognizes, Congress

unquestionably had damages remedies on their mind in

writing the PLRA, as evinced by 42 U.S.C. 1997e(e), a

provision which expressly limits the scope of claims on

which a prisoner can recover damages on due to “mental or

emotional injury.” And to be sure, the PLRA is not merely

an “isolated amendment” to an otherwise innocuous law,

AMG Capital Mgmt., LLC v. FTC, 141 S. Ct. 1341, 1351

(2021), but instead is precisely the type of comprehensive

statutory scheme courts should look to “for guidance on the

appropriate boundaries of judge-made causes of actions.”

Hernandez, 140 S. Ct. at 747. If the PLRA can be said to

have any “purpose,” that purpose is clearly to limit the scope

of remedies of which a prisoner may avail himself, whether

evidenced through the enhanced procedural requirements a

prisoner must meet before bringing a claim, or in the limited

scope of recovery a prisoner can receive once a claim is

properly brought.

And perhaps most fundamentally of all, even if it wanted

to do so, how could Congress disallow a Bivens remedy, as

the majority opinion seems to demand in order to give any

weight to the PLRA in the context of the special factors

analysis? The majority discounts the relevancy of the PLRA

in the special factors analysis by observing that while the

“law did not explicitly create a stand-alone monetary

damages remedy against federal correctional officers, [] it

did not explicitly disallow one either.” However, as was said

long ago: “It is emphatically the province and duty of the

judicial department to say what the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And here, the

Bivens Court didn’t simply say what a run-of-the-mill statute

meant—it said what the Constitution itself meant. Congress

cannot restrict the Bivens remedy any more than it could

48 HOFFMAN V. PRESTON

restrict the Fourth Amendment, upon which Bivens is based,

or any other constitutional provision. See, e.g., Dickerson v.

United States, 530 U.S. 428, 436–37 (2000) (overruling a

1968 statute designed to abrogate Miranda v. Arizona,

384 U.S. 436 (1966), because “Congress may not

legislatively supersede our decisions interpreting and

applying the Constitution.”). Therefore, the majority errs in

holding that “[n]o significant meaning can be attributed to

the fact that Congress said nothing about the availability or

unavailability of damages under Bivens.” For all these

reasons, legislative action in enacting the PLRA

undoubtedly counsels hesitation against expanding Bivens to

this new context.

C. Disruptive Intrusion

The third “special factor” precluding an extension of

Bivens in this case is the “disruptive intrusion by the

Judiciary into the functioning of other branches” risked by a

damages remedy for intentional harm claims. Abbasi, 137 S.

Ct. at 1860. By extending a novel Bivens remedy for a claim

of such sweeping breadth, my colleagues fail to heed the

Supreme Court’s warning that “a general Bivens cure [could]

be worse than the disease.” Wilkie, 551 U.S. at 560–61

(refusing to recognize Bivens claim for “retaliatory or undue

pressure on a property owner for standing firm on property

rights”). The conduct alleged here is serious, and no doubt

it is tempting to imagine allowing Hoffman’s case to proceed

will not create a substantial or recurring imposition upon

federal officials. But the intentional harm claim the majority

recognizes today will not be limited to these facts in future

cases. Rather, the reasoning underlying the majority’s new

HOFFMAN V. PRESTON 49

remedy logically extends to any conduct that demonstrates

intent to cause any serious harm to an inmate. 7

Examining the majority’s analysis (and approval) of the

Third Circuit’s clearly flawed opinion in Bistrian v. Levi,

912 F.3d 79 (3d Cir. 2018) further enforces this conclusion.

In that case, no new Bivens context was found, and

accordingly, the Bivens remedy was extended to apply to

inmate Peter Bistrian, a prisoner who was brutally assaulted

out on the prison yard by vengeful prisoners after he was

found out to be involved in a surveillance program in

collaboration with prison officials. Bistrian, 912 F.3d at 84.

That Bistrian was allowed to be out on the yard after being

outed as a snitch assuredly meets the “deliberate

indifference” standard of Carlson, and in any event is

reprehensible conduct, just as is the conduct alleged in this

case. However, unlike here, Bistrian did not allege a

Carlson-type Bivens claim. Instead, as a pre-trial detainee,

Bistrian asserted a novel Fifth Amendment “failure to

protect” Bivens claim on the theory that such a Bivens claims

had already been endorsed by the Supreme Court in Farmer,

even though Farmer was decidedly not a Bivens case, and

even though Farmer was an Eighth Amendment case, and

not a Fifth Amendment case. 8 Bistrian, 912 F.3d at 90.

7

The majority opinion implicitly recognizes as much, but instead of

viewing this outcome as problematic, they approvingly cite to a

multitude of district court cases in this circuit which extend the Bivens

remedy to factual situations that are materially distinct from Carlson,

sanctioning what is undoubtedly a massive expansion of Bivens.

Whereas this case should have marked the end of such unrestrained

expansion of Bivens in this circuit, it regrettably signals a new beginning

for the misguided doctrine.

8

By Farmer’s own terms: “This case requires us to define the term

‘deliberate indifference,’ as we do by requiring a showing that the

50 HOFFMAN V. PRESTON

Surprisingly, however, the Third Circuit agreed with

Bistrian, and accordingly found the facts of that case to

present no “new Bivens context,” purely on the strength of

Farmer’s alleged recognition of a “failure to protect” Bivens

claims. Bistrian, 912 F.3d at 90. This notwithstanding

Abbasi’s clear teaching to the contrary, that the universe of

recognized Bivens claims consists of only three cases:

Bivens, Davis, and Carlson. Abbasi, 137 S. Ct. at 1855. By

heartily endorsing Bistrian’s flawed analysis, the majority

offers no principled reasons why a subsequent case in this

circuit should not also recognize Farmer’s alleged “failure

to protect” Bivens claim, thus opening the doors for

seemingly any such Fifth (as in Bistrian) or Eighth (as

alleged to have been recognized in Farmer) Amendment

violation to state a viable Bivens claim. Such a holding

would be unprecedented, yet I fear that today’s majority

opinion will lead to that unfortunate, if not inevitable,

outcome.

IV. Conclusion

“The Framers recognized that, in the long term,

structural protections against abuse of power were critical to

preserving liberty.” Bowsher v. Synar, 478 U.S. 714, 730

(1986). Insisting on respect for the separation of powers is

not formalism for its own sake. Rather, “the Constitution

official was subjectively aware of the risk.” Id. at 829. Farmer offered

nothing at all about remedies for violations of the contested right at issue

in that case. In addition to the district court below, at least three other

district courts have similarly recognized that Farmer did not extend

Bivens to cover “failure to protect” claims. See Vela v. Christian, No.

3:20-CV-0990-C (BH), 2021 WL 5701382, at *8 (N.D. Tex. Nov. 5,

2021); Marquez v. Rodriguez, No. 3:18-CV-0434-CAB-NLS, 2021 WL

2826075, at *7 (S.D. Cal. July 6, 2021); Oden v. True, No. 3:18-CV-600-

GCS, 2020 WL 4049922, at *4 (S.D. Ill. July 20, 2020).

HOFFMAN V. PRESTON 51

protects us from our own best intentions: It divides power

among sovereigns and among branches of government

precisely so that we may resist the temptation to concentrate

power in one location as an expedient solution to the crisis

of the day.” New York v. United States, 505 U.S. 144, 187

(1992). By vesting the legislative power in Congress, the

Constitution provides that elected officials subject to

democratic accountability and enjoying a broader

perspective than the courts will be the ones to balance the

costs and benefits of imposing a damages remedy against

federal officials within the complex regulatory scheme that

governs federal prisons. See Abbasi, 137 S. Ct. at 1856. In

this way, the separation of powers helps to ensure that the

“Bivens cure” will not be “worse than the disease.” Wilkie,

551 U.S. at 561.

Rather than break new ground, the majority should have

followed binding precedents of the Supreme Court and our

court and left the enactment of such a broad and novel

remedy to Congress. We should not extend Bivens to this

new context by judicial ipse dixit in light of the multiple

“special factors” that counsel hesitation. To be sure, the

majority is correct that the alleged conduct here is more

morally culpable than that in Carlson. The deliberate

indifference of Carlson requires only that an “official [be]

subjectively aware of the risk,” Farmer, 511 U.S. at 829,

whereas here, Hoffman’s claim of intentional harm demands

that Preston have acted with specific intent to harm.

However, the Supreme Court does not instruct us to look to

the moral culpability of an act when deciding whether to

extend Bivens. 9 Instead, when a new Bivens context arises,

9

If this were so, the Supreme Court would have decided Hernandez

v. Mesa differently, as there, the asserted Fourth Amendment claim

involved a tragic shooting resulting in death, Hernandez, 140 S. Ct.

52 HOFFMAN V. PRESTON

as here, we are instructed to perform the special factors

analysis commanded by Abbasi to determine whether the

Bivens remedy should be extended. For all the foregoing

reasons, this is surely not such a case. This case, perhaps

more than any other, demonstrates that precisely because

“the principles animating Bivens” no longer stand in any

capacity, Lanuza v. Love, 899 F.3d 1019, 1021 (9th Cir.

2018), a Bivens remedy cannot be extended to Hoffman’s

claim consistent with current Supreme Court jurisprudence.

Because the majority’s decision usurps the legislative

power in direct contradiction of Abbasi, I respectfully

dissent and would affirm the district court.

at 740, whereas the Fourth Amendment claim in Bivens itself alleged no

physical injury whatsoever. Bivens, 403 U.S. at 389–90.