Steve Marquez v. C. Rodriguez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE MARQUEZ, No. 21-55981

Plaintiff-Appellee, D.C. No.

3:18-cv-00434-

v. CAB-NLS

C. RODRIGUEZ, Correctional Officer

at M.C.C. Federal Prison; L. KELLY, OPINION

Correctional Officer at M.C.C. Federal

Prison,

Defendants-Appellants,

and

UNITED STATES OF AMERICA;

FEDERAL BUREAU OF PRISONS;

DAVID L. YOUNG, Warden of

M.C.C. Federal Prison; DOES, John

Doe #1 Classification Official; Jane

Doe #1 Classification Officer;

Supervisor John Doe #2 Prison

Guard,

Defendants.

2 MARQUEZ V. RODRIGUEZ

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted April 12, 2023

Pasadena, California

Filed September 6, 2023

Before: William A. Fletcher, Kenneth K. Lee, and

Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Lee;

Concurrence by Judge W. Fletcher

SUMMARY *

Prisoner Civil Rights/Bivens

In an action brought pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S.

388 (1971), alleging that federal correctional officials failed

to protect plaintiff from other detainees at a jail, the panel

reversed the district court’s denial of defendants’ motion to

dismiss and declined to extend a Bivens action to include a

Fifth Amendment failure-to-protect claim.

When a party seeks to bring a Bivens action, courts apply

a two-step test: whether the case presents a new Bivens

*

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

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

MARQUEZ V. RODRIGUEZ 3

context, and, if so, whether there “special factors” that

counsel against extending Bivens.

Applying the first step, the panel held that this case

presents a new Bivens context that the Supreme Court has

not recognized in its Bivens jurisprudence. The panel

declined to recognize an implied Bivens context arising from

Farmer v. Brennan, 511 U.S. 825 (1994), which involved an

Eighth Amendment failure-to-protect claim by a female-

presenting transsexual individual who was assaulted by

other inmates. The panel noted that nearly thirty years have

passed since the Supreme Court decided Farmer and if the

Court were inclined to recognize it as one of the few

acceptable Bivens contexts, it would have done so. The

panel further determined that plaintiff’s claim was

meaningfully distinguishable from Farmer, which involved

an Eighth Amendment rather than a Fifth Amendment claim,

alleged a different category of harm, and arose in a different

factual setting.

Applying the second step, the panel held that special

factors counsel against extending Bivens to this case. The

legislature and executive were best positioned to address

plaintiff’s interest, and have, in fact, provided alternative

remedies through administrative review procedures offered

by the Board of Prisons. Accordingly, the panel declined to

overstep its constitutional role to create a new damages

action.

Concurring in the judgment, Judge W. Fletcher

explained that a state prisoner making the same factual

allegations as plaintiff states a cause of action for

damages. Denying a damages remedy to a federal prisoner

while granting it to a state prisoner in the same circumstance

is a miscarriage of justice.

4 MARQUEZ V. RODRIGUEZ

COUNSEL

Colin M. McDonald (argued) and George V. Manahan,

Assistant United States Attorneys; Katherine L. Parker,

Assistant United States Attorney, Civil Division Chief;

Randy S. Grossman, United States Attorney; United States

Department of Justice, Southern District of California, San

Diego, California; for Defendants-Appellants.

D. Dangaran (argued), Oren Nimni and Samuel Weiss,

Rights Behind Bars, Washington, D.C.; Hope Bentley and

Ronak Patel, Certified Law Students; Aaron Littman,

Supervising Attorney; UCLA School of Law Prisoners’

Rights Clinic, Los Angeles, California; for Plaintiff-

Appellee.

OPINION

LEE, Circuit Judge:

We address whether a plaintiff—who alleges that federal

correctional officers failed to protect him from other

detainees in a jail—can seek damages against them based on

the Fifth Amendment’s due process clause. See generally

Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971). We hold that he cannot

and decline to extend a Bivens action to include a Fifth

Amendment failure-to-protect claim.

Invoking separation-of-powers principles, the Supreme

Court has repeatedly held that Congress, not the courts,

should typically decide whether to extend an implied

damages action against federal officials. This case is no

MARQUEZ V. RODRIGUEZ 5

different, as it presents a factual and legal context that the

Supreme Court has not recognized in its Bivens

jurisprudence. And under this new context, Congress is

better suited than the judiciary to assess policy judgments

involved in expanding an implied cause of action against

federal officials. For example, this case implicates the

Bureau of Prisons’ policy of deciding which detainees

should be placed in protective custody, given strapped

resources and limited space. We thus reverse the district

court’s denial of the correctional officers’ motion to dismiss.

BACKGROUND 1

I. While Jailed as a Pretrial Detainee, Steve Marquez

Suffers Injuries After Jail Officials Deny His Request

for Protective Custody.

In 2016, Steve Marquez was booked into a federal

corrections center in San Diego for an alleged sex offense.

Given the nature of his charges, Marquez requested

protective custody. Jail officials, however, declined his

request, instead placing him in general population.

According to Marquez, the officials made sarcastic

comments such as “what a great guy” and “what an

upstanding citizen.” And one official allegedly handed

Marquez an emergency contact form—stating, “this is for

when something happens to you in prison”—while another

supposedly advised Marquez to lie to other inmates about the

nature of his charges. Marquez does not allege, however, that

any of the other inmates were in fact aware of the nature of

his charges.

1

Because this appeal comes to us from the denial of a motion to dismiss,

we accept as true all facts alleged in the complaint. Ashcroft v. Iqbal,

556 U.S. 662, 678–79 (2009).

6 MARQUEZ V. RODRIGUEZ

Shortly after entering general population, Marquez

began to have trouble with a group of fellow inmates. One

inmate allegedly told Marquez, “we are going to break you.”

Another told him that if he did not do everything the group

commanded, they would “take care of him.”

It is unclear whether these inmates targeted Marquez

because of his status as an alleged sex offender or as part of

a hazing ritual, as none of the inmates mentioned Marquez’s

charges. Whatever the reason, Marquez’s harassment

continued to escalate. At some point, the inmates forced

Marquez to exercise to the point of collapse, leading to

serious medical complications requiring hospitalization.

Following his hospitalization, officials returned

Marquez to the jail’s general population over his objection.

He remained there for about a month before being

transferred to protective custody in state prison. During this

time, Marquez continued to suffer emotional and physical

distress, but he did not have any further encounters with his

former harassers.

II. The District Court Denies the Officers’ Motion to

Dismiss Marquez’s Complaint Against Them.

Marquez filed suit under Bivens against two jail

classification officers in their individual capacities. His

complaint alleges that the officers were deliberately

indifferent to a substantial risk of serious harm when they

declined Marquez’s requests for protective custody—first

despite knowing the risks tied to the nature of his sex-related

charges and later after knowing that he had suffered harm at

the hands of the other inmates. Because Marquez was a

pretrial detainee—rather than a prisoner—at the time, the

district court construed his claim as arising under the Due

Process Clause of the Fifth Amendment rather than under the

MARQUEZ V. RODRIGUEZ 7

Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535

n.16 (1979).

The officers moved to dismiss the complaint, contending

that Marquez did not state a viable Bivens claim. The district

court denied the motion. Although the district court found

that Marquez’s claim presented a “new Bivens context,” it

concluded that an extension of Bivens could be warranted in

his case.

DISCUSSION

The district court erred in determining that Marquez’s

Bivens claim could proceed. In Bivens, the Supreme Court

recognized an implied cause of action against federal

officials for Fourth Amendment violations. Since then, the

Supreme Court has extended Bivens exactly twice: In Davis

v. Passman, 442 U.S. 228 (1979), the Court permitted an

administrative assistant to seek a damages remedy against

her former employer, a congressman, for alleged sex

discrimination in violation of the Fifth Amendment. And in

Carlson v. Green, 446 U.S. 14 (1980), the Court recognized

a Bivens remedy in an action brought by a federal prisoner’s

estate contending that prison officials infringed the Eighth

Amendment’s Cruel and Unusual Punishment Clause by

failing to provide adequate medical treatment.

Apart from those cases, however, the Supreme Court has

repeatedly and expressly confined Bivens claims, holding

that an extension of implied causes of action is recognized

today as “a ‘disfavored’ judicial activity.” Ziglar v. Abbasi,

582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 675 (2009)). Now, when a party seeks to bring a

Bivens action, we proceed in two steps. “First, we ask

whether the case presents ‘a new Bivens context’—i.e., is it

‘meaningful[ly]’ different from the three cases in which the

8 MARQUEZ V. RODRIGUEZ

Court has implied a damages action.” Egbert, 142 S. Ct. at

1803 (quoting Abbasi, 137 S. Ct. at 1859–60). If a case

presents a new Bivens context, then we examine whether

“there are ‘special factors’ indicating that the Judiciary is at

least arguably less equipped than Congress to ‘weigh the

costs and benefits of allowing a damages action to proceed.’”

Id. (quoting Abbasi, 582 U.S. at 136). These steps will

“often resolve to a single question: whether there is any

reason to think that Congress might be better equipped to

create a damages remedy.” Id. If so, then we may not allow

the Bivens claim to proceed.

In practice, the Supreme Court’s stringent test will

foreclose relief in all but the most extraordinary cases. See

id. at 1800, 1803; see also id. at 1809–1810 (Gorsuch, J.,

concurring). And while the Court has thus far “stop[ped]

short of overruling Bivens and its progeny,” id. at 1823

(Sotomayor, J., concurring), it has cabined the doctrine to the

facts of three decades-old cases. See Hernández v. Mesa,

140 S. Ct. 735, 751–53 (2020) (Thomas, J., concurring)

(citing Abbasi, 582 U.S. at 135–36).

Because Marquez’s claim fails to surmount this strict

standard, we conclude that he does not have a viable Bivens

action. We thus reverse the district court.

I. This Case Presents a New Bivens Context.

The district court correctly concluded that Marquez’s

claim arises in a new Bivens context. As we noted above,

“three cases—Bivens, Davis, and Carlson—represent the

only instances in which the Court has approved of an implied

damages remedy under the Constitution itself.” Abbasi, 582

U.S. at 131. Marquez cannot show that his Fifth

Amendment failure-to-protect claim fits within the context

of one of these three cases.

MARQUEZ V. RODRIGUEZ 9

Marquez argues that Carlson allows a pretrial detainee

to bring a failure-to-protect claim under Bivens. He does not

argue that Carlson itself provides that remedy, however.

Nor could he, as Carlson addressed a withholding medical

care claim, not a failure-to-protect claim as in here. 446 U.S.

at 16–17 & n.1; see also Bulger v. Hurwitz, 62 F.4th 127,

138 (4th Cir. 2023). Instead, he leans on Farmer v. Brennan,

511 U.S. 825 (1994).

In Farmer, the Supreme Court considered an Eighth

Amendment failure-to-protect claim brought under Carlson

by a female-presenting, “transsexual” individual who was

assaulted by other inmates after being transferred to general

population. Although Farmer centered on the definition of

“the term ‘deliberate indifference,’” id. at 829, Marquez

argues that the case impliedly recognized that failure-to-

protect claims are an acceptable application of Carlson. We

disagree: Farmer is not a cognizable Bivens context. And

if it were, Marquez’s claim would still present a new Bivens

context, as there are meaningful differences between his

claim and the one at issue in Farmer.

A. Farmer is not a recognized Bivens context.

The Supreme Court’s Bivens jurisprudence squarely

forecloses Marquez’s argument that Farmer established a

cognizable Bivens context. As we have already stated, in

Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court held that

Bivens, Davis, and Carlson “represent the only instances in

which the Court has approved of an implied damages

remedy under the Constitution itself.” Id. at 131 (emphasis

added). More recently, the Court in Egbert v. Boule, 142 S.

Ct. 1793 (2022), suggested that a “new Bivens context”

arises anywhere that the Court has not affirmatively stated

that Bivens applies—which it did in only those three cases.

10 MARQUEZ V. RODRIGUEZ

We thus decline Marquez’s invitation to recognize an

implied fourth Bivens context arising from Farmer. Nearly

thirty years have passed since the Supreme Court decided

Farmer. If the Court were inclined to recognize it as one of

the few acceptable Bivens contexts, it would have done so.

Instead, the Court continues to reaffirm that there are but

three of these cases, and Farmer is not one of them. See

Abbasi, 582 U.S. at 131; Hernández v. Mesa, 140 S. Ct. 735,

743 (2020); Egbert, 142 S. Ct. at 1803. 2

B. Marquez’s claim is meaningfully distinguishable

from Farmer.

Even if we accepted Marquez’s assertion that Farmer

presents an acceptable Bivens claim, Marquez’s claim would

still require extending Bivens to a new context. A context is

“new” if the case differs “in a meaningful way from previous

Bivens cases.” Abbasi, 582 U.S. at 139. Examples of a

meaningful difference might 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

2

In so holding, we depart from the Third Circuit, whose decision to the

contrary predates Egbert, and instead join the Fourth Circuit. See

Bistrian v. Levi, 912 F.3d 79, 90–91 (3d Cir. 2018); Bulger v. Hurwitz,

62 F.4th 127, 139 (4th Cir. 2023); see also Snowden v. Henning, 72 F.4th

237, 241–42 (7th Cir. 2023) (emphasizing that the “Bivens trilogy” is a

closed group).

MARQUEZ V. RODRIGUEZ 11

branches; or the presence of potential special

factors that previous Bivens cases did not

consider.

Id. at 140; see also Snowden v. Henning, 72 F.4th 237, 244

(7th Cir. 2023) (distilling “meaningful differences” as

“factual distinctions and legal issues that might alter the

cost–benefit balance that justified an implied damages

remedy in those cases”).

At the outset, we observe that “the constitutional right at

issue” is different here than in Farmer. See Abbasi, 582 U.S.

at 140. While both cases involve an alleged failure to

protect, Farmer concerned an Eighth Amendment claim,

while Marquez lodges his complaint under the Fifth

Amendment. See Egbert, 142 S. Ct. at 1807 (quoting

Abbasi, 582 U.S. at 139). Marquez contends that this is not

a meaningful difference, arguing that the Fifth Amendment

standard for a failure-to-protect claim is the same as, if not

lower than, the Eighth Amendment standard. Marquez’s

argument has some merit. Indeed, Justice Breyer echoed

that same point in Abbasi. Unfortunately for Marquez,

Justice Breyer was not in the majority in that case. Abbasi,

582 U.S. at 170 (Breyer, J., dissenting) (arguing that there is

no substantive difference in the scope of rights protected by

the Fifth and Eighth Amendments). The majority opinion in

Abbasi rejected the argument being advanced by Marquez.

In that case, the Supreme Court considered whether Carlson

permitted an implied cause of action in a lawsuit brought by

non-citizens detained in the wake of the 9/11 attacks and

who alleged that the warden violated the Fifth Amendment

by allowing guards to abuse detainees. Id. at 137–38

(majority opinion). The Court held that—despite the

“significant parallels” to Carlson—the case presented a new

12 MARQUEZ V. RODRIGUEZ

Bivens context. 3 It relied in part on the fact that “Carlson

was predicated on the Eighth Amendment and this claim is

predicated on the Fifth.” Abbasi, 582 U.S. at 147.

Besides this legal distinction, there are also meaningful

factual differences between this case and Farmer. To start,

the plaintiff in Farmer was a transgendered individual who

“projects feminine characteristics,” while Marquez was an

accused sex offender who requested segregation based

solely on a charged crime that was unknown to others. Thus,

the Farmer plaintiff presumably faced a higher risk of harm

because the other inmates would notice the physical

characteristics that put the plaintiff at risk.

Another difference is that the Farmer plaintiff (a

convicted criminal) resided in a prison, while Marquez (a

pretrial detainee) was temporarily held in jail. This

difference in setting is significant. Jails are typically smaller

than prisons, they are not intended for long-term detention,

and they house a different class of inmates. Prisons and jails

also may involve different levels of risk to inmate safety.

Because of these differences, jails and prisons are operated

differently. For example, a jail may have less space for

protective custody than a larger prison designed to hold

inmates long-term.

Thus, when compared to Carlson and Farmer,

Marquez’s claim arises under a different constitutional

amendment, it alleges a different category of harm, and it

arises in a different factual setting. As the Supreme Court

emphasized that even minor differences can satisfy the new-

3

Because the lower court did not advance past this question, the Court

vacated the judgment and remanded the case with instruction to conduct

the special-factors analysis. Abbasi, 582 U.S. at 149.

MARQUEZ V. RODRIGUEZ 13

context inquiry, see Abbasi, 582 U.S. at 149, we conclude

that the differences identified here are more than enough to

establish that Marquez’s claim involves a new Bivens

context.

II. Special Factors Counsel Against Extending Bivens to

This Case.

The district court erred in finding that the record did not

support that “special factors” require dismissing Marquez’s

claim. Before extending Bivens to a new context, we must

consider whether there are “special factors counseling

hesitation in the absence of affirmative action by Congress.”

Id. at 136 (quoting Carlson, 446 U.S. at 18). This means that

“[i]f there is even a single ‘reason to pause before applying

Bivens in a new context,’ a court may not recognize a Bivens

remedy.” Egbert, 142 S. Ct. at 1803 (quoting Hernández,

140 S. Ct. at 743); see also id. at 1805 (“A court faces only

one question: whether there is any rational reason (even one)

to think that Congress is better suited to ‘weigh the costs and

benefits of allowing a damages action to proceed.’”

(emphasis in original) (quoting Abbasi, 582 U.S. at 136)).

In setting this low bar, the Supreme Court has declined

to “‘create an exhaustive list’ of factors that may provide a

reason not to extend Bivens.” Hernández, 140 S. Ct. at 743.

Instead, guided by “separation-of-powers principles,” we

must “consider the risk of interfering with the authority of

the other branches”—asking “whether ‘there are sound

reasons to think Congress might doubt the efficacy or

necessity of a damages remedy’ and ‘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. (citations omitted) (quoting

Abbasi, 582 U.S. at 135–37). Applying that standard here,

14 MARQUEZ V. RODRIGUEZ

we hold that Marquez does not have a cognizable Bivens

claim.

Marquez has remedies available other than a Bivens

claim. If “Congress has created ‘any alternative, existing

process for protecting the [injured party’s] interest’ that itself

may ‘amoun[t] to a convincing reason for the Judicial

Branch to refrain from providing a new and freestanding

remedy in damages.’” Abbasi, 582 U.S. at 137 (alterations

in original) (quoting Wilkie v. Robbins, 551 U.S. 537, 550

(2007)). We find that there are such remedies here. For

example, Marquez could have challenged his placement in

general population through administrative review

procedures offered by the Board of Prisons. 28 CFR

§ 542.13–15; see also Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 74 (2001). Marquez also could have filed for

declaratory or injunctive relief, rather than for damages

under Bivens. See Abbasi, 582 U.S. at 148.

Although the district court recognized these alternative

remedies, it found that these procedures might not have been

enough to address Marquez’s injuries. This was error.

Because our inquiry is limited by separation-of-powers

principles, we do not consider the adequacy of the alternative

remedy. That is “a legislative determination that must be left

to Congress, not the federal courts.” Egbert, 142 S. Ct. at

1807; see also Pettibone v. Russell, 59 F.4th 449, 456–57

(9th Cir. 2023). The availability of these alternative

remedies is enough for us to find that Congress—not the

judiciary—is best suited to address Marquez’s interests.

Egbert, 142 S. Ct. at 1804, 1806–07 (“So long as Congress

or the Executive has created a remedial process that it finds

sufficient to secure an adequate level of deterrence, the

courts cannot second-guess that calibration by

MARQUEZ V. RODRIGUEZ 15

superimposing a Bivens remedy.”); Bulger, 62 F.4th at 140–

41.

Our hesitation to extend Bivens is also counseled by the

fact that Congress has already legislated on prison

administration without providing a damages remedy against

jail officials. See 42 U.S.C. § 1997e; Abbasi, 582 U.S. at

148 (“[L]egislative action suggesting that Congress does not

want a damages remedy is itself a factor counseling

hesitation. . . . [I]t seems clear that Congress had specific

occasion to consider the matter of prisoner abuse and to

consider the proper way to remedy those wrongs.”).

We thus conclude that the district court erred in finding

that Marquez alleged a viable Bivens claim.

CONCLUSION

In the fifty years since Bivens was decided, the Supreme

Court has permitted only two other implied-damages actions

arising under the Constitution. Outside of these cases, the

Court has repeatedly declined to extend Bivens remedies.

This hesitancy is informed by the basic structure of our

government—the separation of powers that vests the

authority to create new federal causes of action in Congress,

not the courts. We may not allow a Bivens claim to proceed

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

better equipped to create a damages remedy.” Egbert, 142

S. Ct. at 1803.

Here, this mandate forecloses Marquez’s requested

remedy. Marquez’s Fifth Amendment failure-to-protect

claim differs meaningfully from any of the three accepted

Bivens contexts. Because the legislature and executive are

best positioned to address Marquez’s interests—and have, in

fact, provided alternative remedies to do so—we decline to

16 MARQUEZ V. RODRIGUEZ

overstep our constitutional role to create a new damages

action. We thus REVERSE the district court’s order

denying the officers’ motion to dismiss.

W. Fletcher, J., concurring in the judgment.

Plaintiff Marquez was a pretrial detainee in federal

prison, charged with sex offenses. After the events at issue

in this case, the charges were dismissed, and Marquez was

released from prison.

Marquez brings a civil suit for damages against prison

officials under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging

a failure to protect him from his fellow prisoners in violation

of the Due Process Clause of the Fifth Amendment. The

district court denied a motion to dismiss brought under Rule

12(b)(6). In this procedural posture, we accept as true all

plausible factual allegations in Marquez’s complaint and all

reasonable inferences that may be drawn therefrom.

It is well known that sex offenders in prison are in danger

of severe injury or death at the hands of other prisoners.

Marquez alleges in his pro se complaint:

Due to the nature of the alleged charges

brought against him, it was imperative he be

placed in protective custody to protect him

from unreasonable risk of harm or from being

the subject of attack by other inmates.

During his interview for classification, C.

Rodriguez reviewed his alleged charges and

MARQUEZ V. RODRIGUEZ 17

made comments towards him such as “what a

great guy” and “what an upstanding citizen.”

The official was well aware of

plaintiff[’]s charges and failed in [his] duty to

protect him from unreasonable risk or harm

by refusing requests to place plaintiff into

protective custody.

Instead he placed the plaintiff in general

population and chose to ignore plaintiff[’]s

requests to be placed in protective custody

and acted against prison policy and federal

law. Defendant C. Rodriguez handed

plaintiff an emergency contact form and said

to him, “here, this is for when something

happens to you in prison.”

The plaintiff became fearful and afraid

for his life and asked again to be placed in

protective custody. The official ignored the

plaintiff and instead advised plaintiff to lie to

other inmates about his alleged charges. He

said,”Don’t worry about it, just tell the other

inmates you[’re] here for selling drugs.”

Soon after Marquez was placed in the prison’s general

population, “the inmates moved plaintiff to a back corner of

the dorm[i]tory and the[n] began to physically torture him

by forcing him to perform extreme physical exertion until

plaintiff could no longer move. Out of fear for his life and

safety he complied.” Afterwards, Marquez “began to

experience more severe pain, fever, cold sweats, swelling of

his face and body, vomiting, loss of ap[p]etite, urination of

blood, shortness of breath, complete loss of leg function,

dizziness, headache, and mental and emotional anguish.”

The next day, Marquez notified a jail official and a nurse of

18 MARQUEZ V. RODRIGUEZ

what had happened. Medical staff drew blood for testing.

On the third day, more blood was drawn, and Marquez was

given an IV. He continued to urinate blood. On the fourth

day, Marquez was given another IV. Finally, on the fifth

day, he was taken to a hospital emergency room.

A doctor at the hospital informed Marquez that he had

“severe kidney failure” and that “death is a realistic

possibility.” Fearing imminent death, Marquez asked to

contact family members, but prison officials refused.

Marquez spent a week in the hospital. By the end of the

week, he had lost forty pounds. “[T]he end result of his

injuries included acute rhabdomyalosis [life-threatening

muscle injury], acute renal failure, acute tubular necrosis,

severe dehydration, medical renal disease, pulm[o]nary

congestion, cardiomegaly [enlarged heart], high blood

pressure, severe renal azotemia [excess waste products in the

blood], and other complications.”

Marquez sought the prescribed administrative remedy in

the prison and was denied relief.

The panel majority holds that because he is a federal

prisoner, Marquez has not stated a cause of action for

damages. If a state prisoner makes the same factual

allegations, it is black-letter law that he states a cause of

action for damages. See, e.g., Requena v. Roberts, 893 F.3d

1195 (10th Cir. 2018); Castro v. County of Los Angeles, 833

F.3d 1060 (9th Cir. 2016); Bowen v. Warden Baldwin State

Prison, 826 F.3d 1312 (11th Cir. 2016); Junior v. Anderson,

724 F.3d 812 (7th Cir. 2013); Nelson v. Shuffman, 603 F.3d

439 (8th Cir. 2010); Whitson v. Stone Cnty. Jail, 602 F.3d

920 (8th Cir. 2010); Clem v. Lomeli, 566 F.3d 1177 (9th Cir.

2009); Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008);

Brown v. Budz, 398 F.3d 904 (7th Cir. 2005); Calderon-

MARQUEZ V. RODRIGUEZ 19

Ortiz v. LaBoy-Alvarado, 300 F.3d 60 (1st Cir. 2002); Lopez

v. LeMaster, 172 F.3d 756 (10th Cir. 1999); Hamilton v.

Leavy, 117 F.3d 742 (3d Cir. 1997); Taylor v. Michigan

Dep’t of Corrections, 69 F.3d 76 (6th Cir. 1995); Matzker v.

Herr, 748 F.2d 1142 (7th Cir. 1984). Even if all of his

factual allegations are true, Marquez can recover nothing. A

state prisoner in the same situation would likely recover

substantial damages.

It does not have to be this way. Indeed, it has not always

been this way.

The problem is easy to state. Section 1983, a post-Civil

War statute, provides a cause of action for damages for

violations of constitutional rights under color of state law.

After almost a century of ignoring § 1983, the Supreme

Court held in 1961 that it provides a cause of action for

damages against state and local officials who have violated

the Constitution. See Monroe v. Pape, 365 U.S. 167 (1961).

However, there is no equivalent statute providing a cause of

action for damages against a federal official.

The solution is also easy to state. When a suit is brought

against a federal officer who has violated the Constitution,

the Court can infer a cause of action for damages directly

from the Constitution, analogous to the cause of action under

§ 1983. The Court did this in Bivens, ten years after Monroe

v. Pape. Justice Brennan wrote for the Court that there were

no “special factors counseling hesitation in the absence of

affirmative action by Congress.” Bivens, 403 U.S. at 396

(emphasis added). Nor was there an “explicit congressional

declaration that persons injured by a federal officer’s

violation of the Fourth Amendment may not recover money

damages from the agents but must instead be remitted to

another remedy, equally effective in the view of Congress.”

20 MARQUEZ V. RODRIGUEZ

Id. at 397 (emphasis added). Recognizing that compensatory

damages were the only effective remedy, Justice Harlan

wrote, “For people in Bivens’ shoes, it is damages or

nothing.” Id. at 410 (Harlan, J., concurring) (emphasis

added).

In Butz v. Economou, 438 U.S. 478 (1978), seven years

later, the Court held that qualified immunity for a federal

officer in a Bivens action should match qualified immunity

for a state officer in a § 1983 action. Justice White wrote for

the Court:

[I]n the absence of congressional direction to

the contrary, there is no basis for according to

federal officials a higher degree of immunity

from liability when sued for a constitutional

infringement as authorized by Bivens than is

accorded state officials when sued for the

identical violation under § 1983. . . . That

Congress decided, after the passage of the

Fourteenth Amendment, to enact legislation

specifically requiring state officials to

respond in federal court for their failures to

observe the constitutional limitations on their

powers is hardly a reason for excusing their

federal counterparts for the identical

transgressions. To create a system in which

the Bill of Rights monitors more closely the

conduct of state officials than it does that of

federal officials is to stand the constitutional

design on its head.

Id. at 501, 504 (emphasis added).

MARQUEZ V. RODRIGUEZ 21

The promise to the ear has been broken to the hope. The

vision of the Court that decided Bivens and Economou, a

vision articulated by justices as different as Justices

Brennan, Harlan, and White, has been abandoned. The

words are the same—“special factors counseling hesitation”

and “another remedy, equally effective in the view of

Congress”—but the reality is not.

For a “special factor,” it now suffices that “[i]f there is

even a single ‘reason to pause before applying Bivens in a

new context,’ a court may not recognize a Bivens remedy.”

Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting

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

“another remedy, equally effective in the view of Congress,”

a failed administrative grievance now suffices. Egbert, 142

S. Ct. at 1806 (citing Correctional Services Corp. v.

Malesko, 534 U.S. 61, 74 (2001)).

Denying a damages remedy here is a miscarriage of

justice. There is no other way to characterize our decision

today.

As in Bivens, the reality is that there are no “special

factors” that justify denying Marquez a damages remedy. To

deny a damages remedy to a federal prisoner while granting

it to a state prisoner in the same circumstance “is to stand the

constitutional design on its head.” As in Bivens, the reality

is that a grievance procedure is not an “equally effective

remedy in the view of Congress.” “For people in

[Marquez’s] shoes, it is damages or nothing.”

With deep regret, I concur in the result.