Petition for Writ of Certiorari — Max Ray Butler, Petitioner v. S. Porter, et al.

No. 21-___

IN THE

Supreme Court of the United States

MAX RAY BUTLER,

Petitioner,

v.

S. PORTER, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

THOMAS S. LEATHERBURY

VINSON & ELKINS LLP

2001 Ross Avenue

Suite 3900

Dallas, TX 75201

MICHAEL W. SHAPIRO

SMU DEDMAN SCHOOL OF

LAW FIRST AMENDMENT

LITIGATION CLINIC

P.O. Box 750116

Dallas, TX 75275

J. BENJAMIN AGUIÑAGA

Counsel of Record

JONES DAY

2727 N. Harwood Street

Dallas, TX 75201

(214) 969-3939

jbaguinaga@jonesday.com

AMANDA K. RICE

JONES DAY

150 W. Jefferson

Suite 2100

Detroit, MI 48226

Counsel for Petitioner

(additional counsel listed on inside cover)

(continued from front cover)

JAMES T. DAWSON

VINSON & ELKINS LLP

2200 Pennsylvania

Avenue NW

Washington, DC 20037

PARKER J. CRAGG

VINSON & ELKINS LLP

1001 Fannin Street

Suite 2500

Houston, TX 77002

Counsel for Petitioner

i

QUESTION PRESENTED

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

recognized a remedy under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), for violations of a federal prisoner’s

Eighth Amendment right to adequate medical care.

The question presented is whether Bivens remedies

are categorically unavailable to federal prisoners in

any other context.

ii

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 DISCLOSURE STATEMENT

Petitioner Max Ray Butler was the plaintiff in the

district court and the appellant in the Fifth Circuit.

Respondents S. Porter, K. Morgan, Calvin Johnson,

Captain Rex, Caleb Gotreaux, Kaci Maxey, A. White,

Christopher Gore, John Does, SHU Staff, SIA

Lieutenant S. Brown, SIS Technician R. Rodriguez, J.

Ledoux, F. Coker, C. Robinson, C. Wilson, and

Unknown Officer were the defendants in the district

court and the appellees in the Fifth Circuit.

There are no publicly held corporations involved in

this proceeding.

RELATED PROCEEDINGS

Butler v. Porter, No. 17-CV-230, U.S. District Court

for the Western District of Louisiana. Judgment

entered January 2, 2019.

Butler v. Porter, No. 19-30029, U.S. Court of Appeals

for the Fifth Circuit. Judgment entered June 2, 2021.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 DISCLOSURE STATEMENT ........... ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ....................................... v

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

PROVISIONS INVOLVED ........................................ 4

STATEMENT OF THE CASE ................................... 5

A.

Factual Background ................................... 5

B.

Procedural Background .............................. 6

REASONS FOR GRANTING THE PETITION......... 9

I.

THERE IS A CLEAR CIRCUIT SPLIT ON THE

QUESTION PRESENTED ......................................... 9

II.

THE QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT AND THIS IS

AN IDEAL VEHICLE FOR RESOLVING IT .............. 18

III. THE DECISION BELOW IS WRONG ...................... 23

CONCLUSION ......................................................... 29

iv

TABLE OF CONTENTS

(continued)

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Fifth Circuit

(June 2, 2021) ...................................................... 1a

APPENDIX B: Judgment of the United States

District Court for the Western District of

Louisiana (Jan. 2, 2019) .................................... 20a

APPENDIX C: Judgment of the United States

District Court for the Western District of

Louisiana (Jan. 19, 2018) .................................. 21a

APPENDIX D: Report and Recommendation

of the United States District Court for the

Western District of Louisiana

(Sept. 10, 2018) .................................................. 23a

APPENDIX E: Supplemental Report and

Recommendation of the United States

District Court for the Western District

of Louisiana (Nov. 6, 2017) ............................... 34a

APPENDIX F: Report and Recommendation

of the United States District Court for

the Western District of Louisiana

(Aug. 1, 2017) .................................................... 43a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Awan v. Harmon,

No. 17-CV-130-C, 2021 WL 2690088

(N.D. Tex. June 1, 2021) ...................................... 20

Bagola v. Kindt,

39 F.3d 779 (7th Cir. 1994) .................................. 26

Bistrian v. Levi,

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

Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics,

403 U.S. 388 (1971) .......................................passim

Booth v. Churner,

532 U.S. 731 (2001) .............................. 4, 25, 26, 27

Butts v. Martinez,

No. 12cv114, 2021 WL 1061184

(E.D. Tex. Mar. 18, 2021) ..................................... 20

Cale v. Johnson,

861 F.2d 943 (6th Cir. 1988) ................................ 26

Callahan v. Fed. Bureau of Prisons,

965 F.3d 520 (6th Cir. 2020) ................ 2, 10, 11, 16

Carlson v. Green,

446 U.S. 14 (1980) .........................................passim

Cole v. Carson,

935 F.3d 444 (5th Cir. 2019)

(en banc) ............................................................... 29

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ................................ 1, 24, 28, 29

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Dissler v. Zook,

No. 20-cv-00942-D, 2021 WL 2598689

(N.D. Tex. May 7, 2021) ....................................... 20

Earle v. Shreves,

990 F.3d 774 (4th Cir. 2021) .........................passim

Edwards v. Vannoy,

141 S. Ct. 1547 (2021) ...................................... 3, 21

Farmer v. Brennan,

511 U.S. 825 (1994) .............................................. 13

Garrett v. Hawk,

127 F.3d 1263 (10th Cir. 1997) ............................ 27

Harris v. Fed. Bureau of Prisons,

No. 19-3585, 2020 WL 7586968

(6th Cir. Sept. 22, 2020) ....................................... 12

Hui v. Castaneda,

559 U.S. 799 (2010) .............................................. 22

Lavista v. Beeler,

195 F.3d 254 (6th Cir. 1999) ................................ 27

Mack v. Yost,

968 F.3d 311 (3d Cir. 2020)................ 14, 15, 16, 22

Malley v. Briggs,

475 U.S. 335 (1986) .............................................. 29

McCarthy v. Madigan,

503 U.S. 140 (1992) .......................................passim

McQuiggin v. Perkins,

569 U.S. 383 (2013) .............................................. 26

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Morrison v. Wilson,

No. 20-cv-00222-O, 2021 WL 2716596

(N.D. Tex. June 30, 2021) .................................... 20

Nabaya v. Zook,

No. 21-cv-438-X-BN, 2021 WL

1918781 (N.D. Tex. Mar. 4, 2021)........................ 20

Parker Drilling Mgmt. Servs.,

Ltd. v. Newton,

139 S. Ct. 1881 (2019) .......................................... 26

Pontefract v. United States,

No. 20-3064, 2020 WL 8513590

(6th Cir. Nov. 6, 2020) .................................... 12, 19

Porter v. Nussle,

534 U.S. 516 (2002) .............................................. 25

Reid v. Ryan,

No. 17cv184, 2021 WL 4549728

(E.D. Tex. Oct. 5, 2021) ........................................ 19

Simpson v. McCabe,

No. 19-CV-217, 2021 WL 4469645

(N.D. W. Va. June 2, 2021) .................................. 17

Simpson v. McCabe,

No. 19-CV-217, 2021 WL 3598540

(N.D. W. Va. Aug. 13, 2021) ................................. 17

Springer v. United States,

No. 20-CV-3088-B, 2021 WL 4552239

(N.D. Tex. Aug. 24, 2021) ..................................... 20

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Stone v. Wilson,

No. 20-cv-406-O, 2021 WL 2936055

(N.D. Tex. July 13, 2021) ..................................... 20

Turner v. Safley,

482 U.S. 78 (1987) .........................................passim

Watkins v. Three Admin. Remedy

Coordinators of Bureau of Prisons,

998 F.3d 682 (5th Cir. 2021) .........................passim

Watkins v. Weston,

No. 11cv651, 2021 WL 3645876

(E.D. Tex. June 22, 2021) ..................................... 20

Williams v. Meese,

926 F.2d 994 (10th Cir. 1991) .............................. 26

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ...................................passim

STATUTES

28 U.S.C. § 1254 .......................................................... 4

42 U.S.C. § 1983 .......................................... 4, 5, 25, 27

42 U.S.C. § 1997e ........................................... 1, 4, 5, 25

OTHER AUTHORITIES

Fed. Bureau of Prisons,

Population Statistics ............................................ 18

1

INTRODUCTION

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), this Court

recognized a cause of action for damages against

federal officers who violate the Fourth Amendment.

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

that the same cause of action extends to claims against

federal officials who violate the Eighth Amendment by

failing to provide prisoners adequate medical

treatment. In so holding, Carlson reaffirmed the core

premise of Bivens: “that the victims of a constitutional

violation by a federal agent have a right to recover

damages against the official in federal court” in the

absence of “‘special factors counselling hesitation’” or

an “alternative remedy.” Id. at 18.

As this Court has repeatedly recognized, prison

officials are not exempt from Bivens liability. “[P]rison

officials do not enjoy an independent status in our

constitutional scheme, nor are they likely to be unduly

inhibited in the performance of their duties by the

assertion of a Bivens claim.” McCarthy v. Madigan,

503 U.S. 140, 151 (1992), abrogated on other grounds

by 42 U.S.C. § 1997e(a) (citing Carlson, 446 U.S. at

19). Accordingly, “[i]f a federal prisoner in a [Bureau

of Prisons] facility alleges a constitutional deprivation,

he may bring a Bivens claim against the offending

individual officer[.]” Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 72 (2001).

Dicta in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017),

however, has cast doubt on that longstanding rule.

There, the Court stated that “legislative action

suggesting that Congress does not want a damages

remedy is itself a factor counseling hesitation” in

2

extending Bivens to new contexts. Id. at 1865. It

further suggested that the Prison Litigation Reform

Act of 1995 (“PLRA”) might fit that bill, because “the

Act itself does not provide for a standalone damages

remedy against federal jailers.” Id. As a result, “[i]t

could be argued that … Congress chose not to extend

the Carlson damages remedy to cases involving other

types of prisoner mistreatment.” Id.

After Abbasi, the courts of appeals have split over

whether Carlson articulates the only fact pattern in

which a Bivens remedy is available to federal

prisoners. On one side, citing the absence of a

damages remedy in the PLRA and concerns about

prison administration, the Fifth and Sixth Circuits

categorically have rejected the possibility of

recognizing any “new causes of action in this area.”

Callahan v. Fed. Bureau of Prisons, 965 F.3d 520, 524

(6th Cir. 2020); see also Watkins v. Three Admin.

Remedy Coordinators of Bureau of Prisons, 998 F.3d

682, 685 (5th Cir. 2021); Pet.App.10a–11a. On the

other side, the Third and Fourth Circuits take a caseby-case approach, asking in each case whether specific

prison-administration concerns foreclose a new Bivens

remedy. See, e.g., Bistrian v. Levi, 912 F.3d 79, 93 (3d

Cir. 2018); Earle v. Shreves, 990 F.3d 774, 780–81 (4th

Cir. 2021). Indeed, the Third Circuit repeatedly has

held that the absence of a damages remedy in the

PLRA “cannot rightly be seen as dictating that a

Bivens cause of action should not exist at all.”

Bistrian, 912 F.3d at 93 (emphasis added). And it has

recognized a Bivens remedy for a prisoner’s Fifth

Amendment failure-to-protect claim, even though this

Court has never recognized such a remedy. Id. at 90–

94.

3

This circuit split is consequential for prisoners and

the judicial system alike. For the more than 39,000

federal prisoners in the Fifth and Sixth Circuits,

Bivens effectively is a dead letter. They have no

redress for “individual” constitutional violations,

“which due to their very nature are difficult to address

except by way of damages actions after the fact.”

Abbasi, 137 S. Ct. at 1862. Prison officials may thus

violate

prisoners’

constitutional

rights

with

impunity—even, for example, by punishing prisoners

who exercise their First Amendment rights with

starvation and food “contaminated with feces and

urine[.]” Watkins, 998 F.3d at 684. Meanwhile,

prisoners, counsel, and judges in other circuits are

expending significant time and resources litigating on

an ad hoc basis the availability of Bivens claims. Cf.

Edwards v. Vannoy, 141 S. Ct. 1547, 1560 (2021).

This case is an ideal vehicle to resolve this division

of authority. In two brief paragraphs—one for the

PLRA and one for “prison administration”—the Fifth

Circuit rejected a Bivens remedy on grounds

applicable to any claim brought by a federal prisoner.

Indeed, the Fifth Circuit expressly preserved for

federal prisoners only “the one” remedy recognized in

Carlson for inadequate medical care in violation of the

Eighth Amendment. Pet.App.10a n.2.

That summary rejection, illustrative of the reality

faced by thousands of federal prisoners in the Fifth

and Sixth Circuits, was wrong. It ignores this Court’s

holding that “‘special factors’ do not free prison

officials from Bivens liability, because prison officials

do not enjoy an independent status in our

constitutional scheme, nor are they likely to be unduly

inhibited in the performance of their duties by the

4

assertion of a Bivens claim.” McCarthy, 503 U.S. at

151. And it gets congressional intent in the PLRA

exactly backwards: As this Court (and numerous

federal courts of appeals) recognized long before

Abbasi, the PLRA was designed to regulate prisoner

Bivens claims, not categorically foreclose them. See,

e.g., Booth v. Churner, 532 U.S. 731, 740 (2001).

This Court’s immediate review is warranted.

OPINIONS BELOW

The court of appeals’ opinion is reported at 999 F.3d

287 and reproduced in Appendix A. Pet.App.1a–19a.

The district court’s judgment adopting the magistrate

judge’s third report and recommendation is not

reported but is available at 2019 WL 81677 and

reproduced in Appendix B.

Pet.App.20a.

The

magistrate judge’s third report and recommendation

is not reported but is available at 2018 WL 6920355

and reproduced in Appendix D. Pet.App.23a–33a.

JURISDICTION

The court of appeals affirmed the district court’s

judgment on June 2, 2021. Pet.App.1a. This petition

was timely filed, consistent with the Supreme Court’s

March 19, 2020 Order, within 150 days of that

judgment. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

PROVISIONS INVOLVED

42 U.S.C. § 1997e(a) provides as follows:

No action shall be 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 until

5

such administrative remedies as are available are

exhausted.

42 U.S.C. § 1997e(c) provides as follows:

(1) 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.

(2) In the event that a claim is, on its face,

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, the court may dismiss the underlying claim

without first requiring the exhaustion of

administrative remedies.

STATEMENT OF THE CASE

A. Factual Background1

Mr. Butler formerly was a federal prisoner housed

at the Oakdale Federal Correctional Complex in

Oakdale, Louisiana. Pet.App.23a. While at Oakdale,

Mr. Butler was placed in the Special Housing Unit

(“SHU”) for an extended period of time beginning on

April 25, 2016. Id. at 24a. This was not a disciplinary

Because the district court granted Respondents’ motion to

dismiss, the facts below are drawn from Mr. Butler’s pleadings as

reflected in the magistrate judge’s reports and recommendations

and the Fifth Circuit’s opinion.

1

6

placement. Id. at 44a. Instead, prison officials

initially told Mr. Butler that he had been the subject

of “anonymous copouts”—threats by other prisoners—

over the previous weekend. Id. Mr. Butler remained

in the SHU for more than 400 days. Id. at 46a.

Mr. Butler filed a number of administrative

grievances challenging his SHU placement. Id. at 24a,

44a. Those grievances, and eventually his filing of this

lawsuit, led to a campaign of retaliation by

Respondents (various prison officials) that forms the

basis of this case. Specifically, Respondents retaliated

by, among other things, unjustifiably prolonging Mr.

Butler’s SHU placement; targeting him for cell

searches; reclassifying him as a higher security risk

and coordinating his transfer to a “more dangerous”

facility; arranging for him to be confined in the SHU

at the new facility; destroying his commissary

requests; preventing him from obtaining paper and

stamps; delaying his mail; and depriving him of

medical care, medication, and eyeglasses. Id. at 2a–

3a, 24a, 44a–46a.

As a result of Respondents’

unlawful retaliation and his prolonged SHU

placement, Mr. Butler suffered chest pains and

sleeping problems, and ultimately lost nearly 50

pounds. Id. at 46a. He also ceased filing grievances

“out of fear of further retaliation.” Id. at 24a.

B. Procedural Background

Mr. Butler filed this lawsuit in February 2017. His

complaint raised a number of constitutional claims

including, as relevant here, that Respondents

unconstitutionally retaliated against him for

exercising his First Amendment rights. Id. at 50a.

Following the district court’s referral of the matter to

7

a magistrate judge, the magistrate judge

recommended dismissal of “all claims but the one for

retaliation[.]” Id. at 53a. As for Mr. Butler’s

retaliation claim, the magistrate judge concluded that

he had “set[] forth sufficient allegations under each

element required for a retaliation claim[,]” but ordered

him to amend his complaint to “identify the

defendants responsible under this claim alone[.]” Id.

at 51a. Mr. Butler did so, naming Respondents. Id. at

35a–36a.

The magistrate judge then issued a

“supplemental”

report

and

recommendation,

recommending dismissal of “all of Butler’s claims, with

the exception of the retaliation claims” against

Respondents. Id. at 34a, 41a (capitalization altered).

In January 2018, the district court adopted the

magistrate judge’s recommendation and dismissed “all

of Butler’s claims, with the exception of the retaliation

claims[.]” Id. at 22a.

Respondents thereafter filed a motion to dismiss

Mr. Butler’s First Amendment retaliation claim. Id.

at 23a. Respondents argued that Mr. Butler lacks a

Bivens remedy and, in any event, that they are

entitled to qualified immunity. Id. at 24a.

The magistrate judge recommended that the district

court grant Respondents’ motion. The magistrate

judge reasoned that Mr. Butler’s claim presents “a new

Bivens context” “because it involves a different

constitutional right—the First Amendment—than the

ones approved for Bivens remedies under the Court’s

prior decisions.” Id. at 29a–30a. The magistrate judge

also believed that two “special factors” counseled

hesitation in recognizing a Bivens remedy. Id. at 31a–

32a. First, the magistrate judge cited “concerns of

institutional security,” suggesting a Bivens remedy

8

would “unduly limit officers in their use of disciplinary

segregation as a security measure at the prisons.” Id.

Second, the magistrate judge reasoned, relying on

Abbasi’s dicta, that “Congress’s efforts to limit

prisoner suits through the [PLRA], and failure therein

to provide a standalone remedy against federal jailers,

likewise weighs against the extension of Bivens in

[t]his case.” Id. The magistrate judge did not address

qualified immunity and expressly declined to address

any other potentially relevant “special factors,”

including the availability of alternative remedies. Id.

at 32a–33a. The district court adopted the report and

recommendation and entered judgment without

further comment. Id. at 20a.

The Fifth Circuit affirmed. Like the magistrate

judge, the Fifth Circuit concluded that Mr. Butler’s

“First Amendment retaliation claim presents a new

Bivens context.” Id. at 9a. And “[a]t least two special

factors,” the Fifth Circuit continued, “counsel

hesitation [in recognizing a Bivens remedy] here.” Id.

at 10a. First, pointing to Abbasi’s discussion of the

PLRA, the Fifth Circuit said that “congressional

legislation already exists in this area.” Id. And the

absence of a damages remedy in the PLRA “suggest[s]

that Congress did not intend for a standalone damages

remedy against federal jailers, apart from the one

previously established [in Carlson] before the PLRA’s

enactment.”

Id. at 10a n.2.

Second, “‘[p]rison

administration … has been committed to the

responsibility of [the political] branches, and

separation of powers concerns counsel a policy of

judicial restraint.’” Id. at 11a (quoting Turner v.

Safley, 482 U.S. 78, 85 (1987)). Thus, given “the very

complex nature of managing federal prisons,”

9

recognizing a Bivens remedy “would be a paradigmatic

violation of separation-of-powers principles.” Id.

Like the magistrate judge, the Fifth Circuit did not

address any other potentially relevant special factors.

Unlike the magistrate judge, however, the Fifth

Circuit cited a number of recent court of appeals

decisions declining to recognize Bivens remedies in

similar contexts and suggested in a single sentence

that qualified immunity would apply in any event in

light of those decisions. Id. at 11a–12a.

REASONS FOR GRANTING THE PETITION

I.

THERE IS A CLEAR CIRCUIT SPLIT ON THE

QUESTION PRESENTED.

The courts of appeals are divided about whether

federal prisoners categorically lack any Bivens

remedies other than the specific remedy recognized in

Carlson.

A. The Fifth and Sixth Circuits hold that no new

Bivens remedies are available to federal prisoners.

1. The Fifth Circuit first did so in Watkins v. Three

Administrative Remedy Coordinators of Bureau of

Prisons, 998 F.3d 682 (5th Cir. 2021). In that case, a

federal prisoner alleged that prison officials violated

his First Amendment rights when they retaliated

against him for filing grievances.

Id. at 685.

Recognizing that the claim presented a new Bivens

context, the Fifth Circuit affirmed dismissal based on

a cursory citation of Abbasi. The PLRA, the Fifth

Circuit said, “governs lawsuits brought by prisoners”

but “‘does not provide for a standalone damages

remedy against federal jailers.’” Id. (quoting Abbasi,

137 S. Ct. at 1865). Thus, “out of respect for Congress

and the longstanding principle of separation-of-

10

powers, we cannot imply such a remedy in this case.”

Id.

The Fifth Circuit took the same approach in the

decision below. As in Watkins, the Fifth Circuit

parroted Abbasi’s observation that “congressional

legislation”—that is, the PLRA—“already exists in

this area.” Pet.App.10a. This suggests, according to

the Fifth Circuit, “that Congress did not intend for a

standalone damages remedy against federal jailers,

apart from the one previously established [in Carlson]

before the PLRA’s enactment.” Id. at 10a n.2. And

“[s]uch” legislative intent “‘is itself a factor counseling

hesitation.’” Id. at 10a (quoting Abbasi, 137 S. Ct. at

1865).

The Fifth Circuit also identified a second “special

factor[] counsel[ing] hesitation”—namely, “separationof-powers concerns” around prison administration. Id.

“‘Prison administration,’” the Fifth Circuit reasoned,

“‘has been committed to the responsibility of [the

political] branches.’” Id. at 11a (quoting Turner, 482

U.S. at 85). And so, the Fifth Circuit continued,

recognizing a Bivens remedy “would run afoul of [a

policy of judicial] restraint and risk improperly

entangling courts in matters committed to other

branches.” Id.

As in Watkins, the Fifth Circuit did not base its

decision on the facts of this case. Instead, the Fifth

Circuit rested on two rationales that categorically

foreclose new Bivens remedies in the prison context.

2. The Sixth Circuit holds the same view. In

Callahan v. Federal Bureau of Prisons, 965 F.3d 520

(6th Cir. 2020), the Sixth Circuit confronted a federal

prisoner’s allegation that prison officials violated his

11

First Amendment free speech rights when they seized

his sexually explicit paintings and mail-order photos.

Id. at 522. The Sixth Circuit affirmed the district

court’s dismissal of the prisoner’s complaint on the

ground that he lacked a Bivens remedy. In so doing,

the Sixth Circuit offered two principal justifications—

the same two justifications on which the decision

below rests.

First, like the Fifth Circuit, the Sixth Circuit

reproduced the dicta in Abbasi stating that

“‘legislative action suggesting that Congress does not

want a damages remedy’ counsels against judicial doit-yourself projects.” Id. at 524 (quoting Abbasi, 137

S. Ct. at 1865). Congress, the Sixth Circuit continued,

“paid close attention to inmate constitutional claims

when it enacted the [PLRA],” yet “[t]he Act ‘does not

provide for a standalone damages remedy against

federal jailers.’” Id. (quoting Abbasi, 137 S. Ct. at

1865). “That suggests,” the Sixth Circuit concluded, “a

considered decision not to extend a damages remedy

to First Amendment violations.” Id.

Second, the Sixth Circuit held that “[p]rison-based

claims also present a risk of interference with prison

administration.” Id. Like the Fifth Circuit, the Sixth

Circuit relied heavily on Turner to emphasize that the

task of “‘[r]unning a prison’” falls “‘peculiarly within

the province of the legislative and executive

branches.’” Id. (quoting Turner, 482 U.S. at 84–85).

The Sixth Circuit thus concluded that, “[g]iven the

array of challenges facing prison administration and

the complexity of those problems, ‘separation of

powers concerns’ … counsel in favor … of the judiciary

not creating new causes of action in this area.” Id.

(quoting Turner, 482 U.S. at 85).

12

True to its vow not to create “new causes of action

in this area,” id., the Sixth Circuit subsequently has

declined to recognize any new Bivens remedies for

federal prisoners. In Pontefract v. United States, No.

20-3064, 2020 WL 8513590, at *1 (6th Cir. Nov. 6,

2020) (order), a federal prisoner alleged violations of

his Eighth Amendment rights. Rather than assess the

facts of the case, the Sixth Circuit held that “prison

expertise … counsels against recognizing [an]

extension” of Bivens. Id. at *2. Similarly, in Harris v.

Federal Bureau of Prisons, No. 19-3585, 2020 WL

7586968 (6th Cir. Sept. 22, 2020) (order), a federal

prisoner alleged First, Fifth, and Fourteenth

Amendment violations, involving his right to marry,

his filing of grievances, and his religion. Id. at *1.

Again, ignoring the facts of the case, the Sixth Circuit

reasoned that the district court “did not err by

declining to extend the Bivens remedy in this new

context,” because “the running of a prison is

traditionally left to the legislative and executive

branches of government.” Id. at *2.

In short, the Fifth and Sixth Circuits categorically

have foreclosed recognition of any new Bivens

remedies for federal prisoners. In their view, the lack

of a damages remedy in the PLRA (a justification

inspired by Abbasi) and concerns about interference

with prison administration justify that bar.

B. The Third and Fourth Circuits, however, have

rejected a categorical bar on recognizing new Bivens

remedies for federal prisoners. The Third Circuit has

expressly dismissed the notion that the lack of a

damages remedy in the PLRA suggests Congress

intended to foreclose new Bivens remedies. And both

the Third and Fourth Circuits have taken a case-by-

13

case approach to determining whether prisonadministration concerns weigh against recognizing

new Bivens remedies for federal prisoners.

1. In Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018),

the Third Circuit considered a federal prisoner’s First

Amendment retaliation claim alongside his Fifth

Amendment failure-to-protect and punitive-detention

claims. In addressing the availability of Bivens

remedies for these claims, the Third Circuit expressly

rejected Abbasi’s suggestion that “congressional

silence in the PLRA about the availability of Bivens

remedies is evidence of an intent that there be none.”

Id. at 92. The Third Circuit noted that the PLRA

“govern[s] the process by which federal prisoners bring

Bivens claims.” Id. at 93. Accordingly, “[t]he very

statute that regulates how Bivens actions are brought

cannot rightly be seen as dictating that a Bivens cause

of action should not exist at all.” Id. And addressing

the Abbasi dicta head on, the Third Circuit reasoned

that “[i]t is equally, if not more, likely … that Congress

simply wanted to reduce the volume of prisoner suits

by imposing exhaustion requirements, rather [than]

eliminate whole categories of claims through silence

and implication.” Id. at 93 n.22.

Having rejected the lack of a damages remedy in the

PLRA as a special factor counseling hesitation, the

Third Circuit went on to recognize one Bivens remedy

and reject two others based on an ad hoc consideration

of prison-administration concerns. As to the Fifth

Amendment failure-to-protect claim, the Third Circuit

believed that the claim did not present a new context

in light of Farmer v. Brennan, 511 U.S. 825 (1994)—

even though Farmer, an Eighth Amendment case, “did

not explicitly state that it was recognizing a Bivens

14

claim[.]” Bistrian, 912 F.3d at 90. But the Third

Circuit went on to hold, in the alternative, that the

claim survived a “special factors” analysis because it

would not “unduly affect the independence of the

executive branch in setting and administering prison

policies.” Id. at 93. Indeed, the Third Circuit rejected

overbroad prison-administration arguments that

would apply to (and bar) Bivens remedies for

“practically all claims arising in a prison.” Id.

By contrast, the Third Circuit declined to recognize

a remedy for the same prisoner’s Fifth Amendment

punitive-detention and First Amendment retaliation

claims, on the ground that “[r]uling on administrative

detention policy matters would unduly encroach on

the executive’s domain.” Id. at 95–96. According to

the Third Circuit, “[u]nlike [the] failure-to-protect

claim, which relates to a specific and isolated event, a

punitive-detention claim [and a retaliation claim

related to punitive detention] more fully call[] in[to]

question broad policies pertaining to the reasoning,

manner, and extent of prison discipline.” Id. at 94.

The Third Circuit later reaffirmed its view of the

PLRA and its ad hoc approach to prisonadministration concerns in Mack v. Yost, 968 F.3d 311

(3d Cir. 2020). In Mack, the Third Circuit considered

a federal prisoner’s First Amendment retaliation

claim involving his termination from a work

assignment.

Notwithstanding Bistrian, the

government relied on Abbasi to argue that the PLRA

“suggests that Congress had specific occasion to create

a damages remedy for constitutional violations

against federal officials and chose not to do so.” Id. at

323. But the Third Circuit “again reject[ed] the

argument that Congressional silence within the PLRA

15

suggests that Congress did not want a damages

remedy against prison officials for constitutional

violations.” Id. at 324. Indeed, the Third Circuit

called the argument “untenable” because “it would

arguably foreclose all Bivens claims brought in the

prison context, which would run counter to the

Supreme Court’s ruling in Carlson and our recent

ruling in Bistrian … regarding the inmate’s Fifth

Amendment duty-to-protect claim.” Id.

The Third Circuit nonetheless cited prisonadministration concerns to reject a Bivens remedy for

that particular First Amendment retaliation claim.

The Third Circuit acknowledged that the decisions

surrounding prisoner work assignments “are not as

weighty as” the punitive-detention decisions

addressed in Bistrian. Id. at 322. But the Third

Circuit observed that, by regulation, “the BOP, not the

judiciary, is responsible for delegating prison work

assignments and overseeing the operational needs of

the prison.” Id. at 323. And because cases like Turner

“have recognized that such day-to-day administrative

decisions have been committed solely to the province

of the BOP,” the Third Circuit declined to recognize a

Bivens remedy that “would improperly encroach upon

the executive’s domain.” Id.

As Bistrian and Mack reflect, the Third Circuit

unequivocally rejects the PLRA dicta in Abbasi that

the Fifth and Sixth Circuits have adopted. They also

illustrate that, unlike the Fifth and Sixth Circuits, the

Third Circuit is willing to recognize—and has

recognized—new Bivens remedies in the prison

context on a case-by-case basis so long as those

remedies do not “unduly affect” prison administration.

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

16

2. The Fourth Circuit has followed the Third

Circuit’s case-by-case approach to assessing the

viability of new Bivens remedies for federal prisoners.

In Earle v. Shreves, 990 F.3d 774 (4th Cir. 2021), the

Fourth Circuit considered a federal prisoner’s claims

that a prison official placed him in the SHU in

retaliation for grievances that the prisoner had filed.

In declining to recognize a Bivens remedy, the Fourth

Circuit relied on Bistrian and asked whether

recognizing a remedy in this context “would work a

significant intrusion into an area of prison

management that demands quick response and

flexibility[.]”

Id. at 781.

Concluding that the

retaliation claim at issue would “raise[] serious

questions relating ‘to the reasoning, manner, and

extent of prison discipline[,]’” the Fourth Circuit

declined to allow the prisoner’s claim regarding

“retaliatory detention” to proceed. Id. at 780 (quoting

Bistrian, 912 F.3d at 94).

In the process, however, the Fourth Circuit left open

the possibility that other new Bivens remedies for

federal prisoners may be available. Even though it

cited Callahan, Bistrian, and Mack, see id. at 780–81,

Earle nowhere mentioned the PLRA, let alone

suggested that the PLRA operates as a categorical bar

on new Bivens remedies for federal prisoners. Instead,

by focusing precisely on “retaliatory detention” claims

that, in the Fourth Circuit’s view, “raise[] serious

questions relating ‘to the reasoning, manner, and

extent of prison discipline[,]’” id. at 780 (quoting

Bistrian, 912 F.3d at 94), Earle necessarily cabined its

reasoning to the unique context presented by those

claims. And as a result, Earle left ample room for

17

prisoners to distinguish different claims that do not

raise the same prison-administration concerns.

Notably, although Earle was only recently decided,

at least one magistrate judge within the Fourth

Circuit has already taken the case-by-case approach

endorsed in Earle. In Simpson v. McCabe, No. 19-CV217, 2021 WL 4469645, at *1 (N.D. W. Va. June 2,

2021), report and recommendation adopted 2021 WL

3598540 (N.D. W. Va. Aug. 13, 2021), a prisoner

asserted various Bivens claims, including a First

Amendment retaliation claim based on the filing of

grievances.

The magistrate judge summarily

dismissed that claim because “the Fourth Circuit has

held that actions under Bivens do not extend ‘to

include a federal inmate’s claim that prison officials

violated his First Amendment rights by retaliating

against him for filing grievances.’” Id. at *13 (quoting

Earle, 990 F.3d at 776). The magistrate judge also

summarily rejected—again quoting Earle—a due

process claim regarding the prisoner’s SHU

placement. Id. at *17.

But the magistrate judge took a different tack as to

the prisoner’s Eighth Amendment claim that a prison

official had “sexually assaulted [the prisoner] by

groping him and digital penetration.” Id. at *16.

Instead of rejecting the claim out of hand—as it would

have done under the Fifth and Sixth Circuit’s

categorical rule—the magistrate judge permitted the

claim to proceed. Id. And the district court agreed

that the claim “should go forward.” 2021 WL 3598540,

at *2.

Simpson thus underscores that the Fourth Circuit

has not categorically foreclosed new Bivens remedies

18

for federal prisoners and that courts in that Circuit

will address new claims on an ad hoc basis as they

arise.

*

*

*

The upshot of all this is that federal prisoners in the

Fifth and Sixth Circuits categorically lack Bivens

remedies for violations of their constitutional rights

other than the remedy recognized in Carlson for

violations of the Eighth Amendment right to adequate

medical care. By contrast, federal prisoners in the

Third and Fourth Circuits may bring other

constitutional claims, subject to a case-specific

analysis regarding the extent to which recognizing a

new

remedy

would

interfere

with

prison

administration.

II. THE QUESTION PRESENTED IS EXCEPTIONALLY

IMPORTANT AND THIS IS AN IDEAL VEHICLE FOR

RESOLVING IT.

The Court should resolve this circuit split now, both

because the question presented is profoundly

important and because this case is an excellent vehicle

for answering it.

A. Consider first the reality that federal prisoners

within the Fifth and Sixth Circuits currently face. The

Bureau of Prisons’ population statistics indicate that

approximately 39,000 federal prisoners are located in

Kentucky, Louisiana, Michigan, Mississippi, Ohio,

Tennessee, and Texas. Fed. Bureau of Prisons,

Population Statistics, https://tinyurl.com/ywxdpyaf

(last visited Oct. 29, 2021). Under the Fifth and Sixth

Circuits’ categorical rule, none of these federal

prisoners have a Bivens remedy for violations of their

19

constitutional rights—unless

squarely within Carlson.

their

claim

falls

The result is open season on federal prisoners’

constitutional rights. Indeed, the Court recently

recognized that, “due to their very nature,”

“individual” constitutional violations are “difficult to

address except by way of damages actions after the

fact.” Abbasi, 137 S. Ct. at 1862. Without viable

damages actions, therefore, these 39,000 federal

prisoners have virtually no redress for individual

violations of their constitutional rights—no matter

how unspeakable those violations may be.

Take, for example, the prison officials in Watkins,

who starved a prisoner and gave him food

“contaminated with feces and urine” simply because

he exercised his First Amendment rights. 998 F.3d at

684. Or consider the prison officials in Pontefract, who

stole prisoners’ food to sell it to other prisoners. 2020

WL 8513590, at *1. And then there was the prison

official in Reid v. Ryan who—without provocation—

“came from behind [a prisoner] and slammed his head

and face into the wall, knocking him unconscious[,]”

No. 17cv184, 2021 WL 4549728, at *1 (E.D. Tex. Oct.

5, 2021). All of these prison officials got a Bivens pass

under the Fifth and Sixth Circuit’s rule.

And that is only the beginning. Numerous district

courts and magistrate judges have cited the

categorical

PLRA

and

prison-administration

rationales in similar recent decisions to reject all

manner of Bivens claims brought against prison

20

officials.2 This Court’s review is thus urgently needed

to correct course.

But, even if the Fifth and Sixth Circuits’ categorical

bar on prisoner Bivens remedies were correct, the

Court’s immediate review would remain warranted.

Since Abbasi, some 10,000 federal court opinions

mention Bivens; some 7,000 of those opinions also

mention “inmate” or “prisoner.”3 These raw numbers

suggest that prisoner Bivens actions comprise the

lion’s share of Bivens litigation. If Bivens is really a

dead letter for all non-Carlson Bivens claims, that

work was—and continues to be—pointless. It gives

“false hope” to prisoners and “wastes the resources” of

2

See, e.g., Stone v. Wilson, No. 20-cv-406-O, 2021 WL 2936055,

at *6–7 (N.D. Tex. July 13, 2021) (First and Eighth Amendment

claims); Morrison v. Wilson, No. 20-cv-00222-O, 2021 WL

2716596, at *6–7 (N.D. Tex. June 30, 2021) (First and Eighth

Amendment claims); Springer v. United States, No. 20-CV-3088B, 2021 WL 4552239, at *15 (N.D. Tex. Aug. 24, 2021), adopted

2021 WL 4859636 (N.D. Tex. Oct. 19, 2021) (Eighth Amendment

claim); Watkins v. Weston, No. 11cv651, 2021 WL 3645876, at *3–

4 (E.D. Tex. June 22, 2021), adopted 2021 WL 3634526 (N.D. Tex.

Aug. 16, 2021) (Fifth Amendment claim); Awan v. Harmon, No.

17-CV-130-C, 2021 WL 2690088, at *10 (N.D. Tex. June 1, 2021),

adopted 2021 WL 2688598 (N.D. Tex. June 30, 2021) (First and

Eighth Amendment claims); Dissler v. Zook, No. 20-cv-00942-D,

2021 WL 2598689, at *5 (N.D. Tex. May 7, 2021), adopted 2021

WL 2589706 (N.D. Tex. June 23, 2021) (Eighth Amendment

claim); Butts v. Martinez, No. 12cv114, 2021 WL 1061184, at *1

(E.D. Tex. Mar. 18, 2021) (First Amendment claim); Nabaya v.

Zook, No. 21-cv-438-X-BN, 2021 WL 1918781, at *3 (N.D. Tex.

Mar. 4, 2021), adopted 2021 WL 3566344 (N.D. Tex. Aug. 12,

2021) (wrongful incarceration claim).

3

These numbers are the product of Westlaw searches within

each federal court of appeals for “Bivens & DA(aft 06-18-2017 &

bef 10-29-2021)” and “Bivens & DA(aft 06-18-2017 & bef 10-292021) & (inmate OR prisoner).”

21

prisoners, counsel, and courts. Edwards, 141 S. Ct. at

1560.

However the Court views the ultimate answer to

question presented, therefore, it is critical that the

Court provide an answer soon.

B. This case is an ideal vehicle for doing so.

First, it tees up a clean legal question—whether

Carlson establishes the only Bivens remedy for federal

prisoners—with no factual analysis necessary. The

Fifth Circuit did not engage with the merits of Mr.

Butler’s First Amendment retaliation claim, choosing

instead to reject it on two grounds universally

applicable to all federal prisoners’ Bivens claims.

Pet.App.10a–11a. The Court, therefore, need only

address the Fifth Circuit’s categorical reasoning and

remand for further proceedings.

Second, and as a corollary, the decision below

isolates two potentially relevant “special factors,”

thereby avoiding thorny case-specific questions about

whether other special factors may counsel hesitation

in recognizing a Bivens remedy in this context. Most

notably, the magistrate judge expressly declined, id.

at 32a–33a—and the Fifth Circuit implicitly

declined—to address whether Mr. Butler had

available alternative remedies. This Court may thus

address and reverse as to the two categorical special

factors on which the Fifth Circuit based its decision,

and then remand for the lower courts’ consideration in

22

the first instance of any other potentially relevant

special factors.4

Third, Mr. Butler likely would have prevailed in the

Third and Fourth Circuits. In deciding whether to

recognize a Bivens remedy in any particular case,

those courts focus on the extent to which the claim at

issue implicates “day-to-day administrative decisions”

committed to prison officials. Mack, 968 F.3d at 323.

Mr. Butler endured retaliatory acts that cannot

plausibly be recast as the products of “day-to-day

administrative decisions.”

Id.

The intentional

destruction of his commissary requests, the

intentional delay of his mail, and the intentional

deprivation of basic medication and eyeglasses, for

example, are all malicious acts of retaliation that serve

no conceivable prison-administration purpose.

Pet.App.2a–3a. Unlike claims limited to “retaliatory

detention,” Earle, 990 F.3d at 780; Bistrian, 912 F.3d

at 96, or retaliatory employment actions, Mack, 968

F.3d at 314—and similar to intentionally feeding

prisoners food contaminated with urine and feces—

The Fifth Circuit’s single-sentence reference to qualified

immunity is no bar to this Court’s review of the question

presented. Citing recent court of appeals decisions rejecting

Bivens remedies in similar contexts, the Fifth Circuit hinted

that—even absent binding Fifth Circuit precedent—“this case

would be subject to qualified immunity given the lack of ‘clearly

established’ law supporting Butler’s claim.” Pet.App.11a–12a.

But Respondents have never argued that the unsettled nature of

case law regarding the existence of a Bivens remedy for First

Amendment retaliation claims entitles them to qualified

immunity. That is unsurprising, given that such an argument is

foreclosed by this Court’s precedents. See Hui v. Castaneda, 559

U.S. 799, 807 (2010) (whether “the defendant is immune from

suit” and whether “a Bivens remedy is … available” are “two

separate inquiries”).

4

23

these retaliatory acts do not implicate prison officials’

“discretion” or demand a “quick response and

flexibility[.]” Earle, 990 F.3d at 780–81. At the very

least, a Bivens remedy for retaliation based on this

conduct would not “unduly affect the independence of

the executive branch in setting and administering

prison policies.” Bistrian, 912 F.3d at 93 (emphasis

added).

Finally, this case presents an appropriately

targeted question regarding the scope of the Bivens

remedy. In contrast with petitions like Egbert v.

Boule, No. 21-147 (U.S.), which asks the Court to

either foreclose all Bivens First Amendment

retaliation claims or overrule Bivens itself, this case

implicates only those Bivens claims asserted by

federal prisoners. This case thus permits the Court to

address the claims that comprise the vast majority of

post-Abbasi Bivens litigation. But it presents no basis

for recognizing or foreclosing the availability of Bivens

remedies in other contexts.

III. THE DECISION BELOW IS WRONG.

The decision below—which exemplifies the Fifth

and Sixth Circuit’s categorical bar against nonCarlson Bivens remedies for federal prisoners—also

gets the relevant law and history wrong.

A. Start with Carlson itself. In Carlson, the Court

held that federal prison officials “do not enjoy such

independent status in our constitutional scheme as to

suggest that judicially created remedies against them

might be inappropriate.” 446 U.S. at 19. Indeed, the

Court went further and dismissed the suggestion that

Bivens claims “might inhibit their efforts to perform

their official duties,” reasoning that “qualified

24

immunity … provides adequate protection.” Id. And

the Court later expressly reaffirmed this holding in

McCarthy v. Madigan, 503 U.S. 140 (1992). Citing

Carlson, the Court there emphasized that “‘special

factors’ do not free prison officials from Bivens

liability, because prison officials do not enjoy an

independent status in our constitutional scheme, nor

are they likely to be unduly inhibited in the

performance of their duties by the assertion of a

Bivens claim.” Id. at 151.

The decision below, however, does exactly what

Carlson and McCarthy say courts cannot do: It gives

“prison officials … an independent status in our

constitutional scheme.” Id. It shields them from

Bivens liability solely because the claims against them

arise in the prison context—notwithstanding this

Court’s recognition that prison officials are unlikely

“to be unduly inhibited in the performance of their

duties by the assertion of a Bivens claim.” Id.

To be sure, this Court has in recent years said that

the analysis in Carlson “might have been different” if

Carlson “were decided today.” Abbasi, 137 S. Ct. at

1856. But the Court has never overruled Carlson. To

the contrary, the Court has recognized that, “[i]f a

federal prisoner in a [Bureau of Prisons] facility

alleges a constitutional deprivation, he may bring a

Bivens claim against the offending individual

officer[.]” Malesko, 534 U.S. at 72. Carlson’s holding

that prison officials lack “independent status in our

constitutional scheme,” 446 U.S. at 19, thus remains

the law of the land.

25

B. The Fifth Circuit’s invocation of the PLRA to

foreclose new Bivens remedies for federal prisoners

also profoundly misunderstands the PLRA.

Relying on passing dicta in Abbasi, the Fifth Circuit

held that the absence of a damages remedy in the

PLRA “supports a conclusion” that “Congress did not

intend for a standalone damages remedy against

federal jailers, apart from the one previously

established

before

the

PLRA’s

enactment.”

Pet.App.10a & n.2. But as this Court recognized in

Booth v. Churner, 532 U.S. 731 (2001), the PLRA was

intended to regulate prisoner Bivens claims, not

foreclose them.

That is clear first and foremost from the PLRA’s

text. As amended, the statute requires “a prisoner

confined in any jail, prison, or other correctional

facility” to exhaust “such administrative remedies as

are available” before filing any “action … with respect

to prison conditions under … any … Federal law.” 42

U.S.C. § 1997e(a) (emphases added). A prisoner

Bivens action, of course, fits squarely within that

statutory text. See Porter v. Nussle, 534 U.S. 516, 524

(2002) (“[F]ederal prisoners suing under Bivens …

must first exhaust inmate grievance procedures just

as state prisoners must exhaust administrative

processes prior to instituting a § 1983 suit.”). And the

statute says nothing whatsoever about foreclosing

Bivens claims. To the contrary, it assumes that federal

prisoners will bring actions that “seek[] monetary

relief from a defendant.” 42 U.S.C. § 1997e(c)(1), (2).

The only reasonable inference, therefore, is that

Congress effectively incorporated—or, at least, did not

intend to displace—the preexisting Bivens regime. See

26

Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139

S. Ct. 1881, 1890 (2019) (“It is a commonplace of

statutory interpretation that ‘Congress legislates

against the backdrop of existing law.’” (quoting

McQuiggin v. Perkins, 569 U.S. 383, 398 n.3 (2013))).

And that regime involved the ongoing recognition of

numerous Bivens remedies for federal prisoners. See,

e.g., Bagola v. Kindt, 39 F.3d 779 (7th Cir. 1994)

(Eighth Amendment); Williams v. Meese, 926 F.2d 994

(10th Cir. 1991) (First Amendment); Cale v. Johnson,

861 F.2d 943 (6th Cir. 1988) (Fifth Amendment). It is

thus unsurprising that “there is strong evidence that

Congress assumed that Bivens remedies would be

available to prisoners when it enacted the PLRA[.]”

Abbasi, 137 S. Ct. at 1878 (Breyer, J., dissenting).

The history of the PLRA makes that perfectly clear

because the statute was amended in response to this

Court’s decision in McCarthy. See Booth, 532 U.S. at

740 & n.5. In McCarthy, the Court was asked to decide

whether a federal prisoner must exhaust

administrative remedies “before he may initiate a suit,

pursuant to the authority of [Bivens], solely for money

damages.” McCarthy, 503 U.S. at 141. Analyzing

various potentially relevant statutory provisions, the

Court concluded that “Congress ha[d] enacted

nothing” like an exhaustion requirement for prisoner

Bivens claims. Id. at 152. But it went on to say that

“Congress, of course, is free to design or require an

appropriate administrative procedure for a prisoner to

exhaust his claim for money damages.” Id. at 156.

Congress accepted the Court’s invitation in passing

the PLRA. Because the PLRA “removed the very

[statutory] term” key to McCarthy’s holding, “the fair

inference to be drawn is that Congress meant to

27

preclude the McCarthy result.” Booth, 532 U.S. at 740

& n.5; see also, e.g., Lavista v. Beeler, 195 F.3d 254,

256 (6th Cir. 1999) (“[T]he plain language of the new

statute and the legislative history of the [PLRA]

indicate that Congress intended that all prisoners,

including federal prisoners, be required to exhaust

their available administrative remedies before

bringing a Bivens claim in federal court.”); Garrett v.

Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997), abrogated

on other grounds by Booth, 532 U.S. 731 (“The

legislative history behind the revised version § 1977(e)

reveals that Congress specifically amended the statute

to overrule McCarthy by requiring federal prisoners to

exhaust all administrative remedies before bringing a

Bivens claim or a claim under 42 U.S.C. § 1983.”). In

other words, the PLRA required the exact exhaustion

of administrative remedies for Bivens claims that

McCarthy had held was not required.

As the PLRA’s text and history demonstrate, the

very premise of the PLRA was that the federal

judiciary had recognized, and would continue to

recognize, Bivens remedies for violations of prisoners’

constitutional rights. On that premise, Congress

constructed an exhaustion requirement in the PLRA

that “regulates how Bivens actions are brought.”

Bistrian, 912 F.3d at 93.

Rather than “respect” congressional intent in the

PLRA, Watkins, 998 F.3d at 685, therefore, the

decision below does considerable violence to

congressional intent. Indeed, by the Fifth Circuit’s

lights, the PLRA’s exhaustion requirement for Bivens

claims is good for one ride and one ride only: a claim

seeking the specific remedy recognized in Carlson. See

Pet.App.10a n.2 (Congress intended only “the one

28

[remedy] previously established before the PLRA’s

enactment.”). But Bivens had been on the books for a

quarter century leading up to the PLRA’s passage.

And, as noted above, courts around the country had

recognized various Bivens remedies for federal

prisoners prior to the PLRA’s passage—and so, it was

Bivens and that litigation expounding on Bivens that

Congress sought to regulate by enacting an exhaustion

requirement. There is simply no rational basis to

conclude that the PLRA reflects Congress’s intent to

bar virtually all prisoner Bivens remedies.

In short, the absence of a damages remedy in the

PLRA does not “suggest[] that Congress does not want

a damages remedy” for federal prisoners. Abbasi, 137

S. Ct. at 1865. Quite the opposite. The PLRA

unambiguously reflects Congress’s intent to regulate

prisoner Bivens actions.

C. Finally, doing away with all prisoner Bivens

remedies except the one recognized in Carlson is bad

policy. As explained above, Bivens provides the only

viable remedy for individual violations of federal

prisoners’ constitutional rights. Eliminating Bivens

remedies for federal prisoners, therefore, would

effectively transform “[p]rison walls [into] a barrier

separating prison inmates from the protections of the

Constitution.” Turner, 482 U.S. at 84. Indeed, it

would gut the essential “purpose of Bivens [which] is

to deter individual federal officers from committing

constitutional violations.” Malesko, 534 U.S. at 521

(emphasis added); see also Abbasi, 137 S. Ct. at 1863

(acknowledging “a persisting concern … that absent a

Bivens remedy there will be insufficient deterrence to

prevent officers from violating the Constitution”).

29

And for no good reason. The Fifth and Sixth

Circuits have expressed concerns about judicial

interference with prison administration. But this

Court already has said that this is not a serious

concern. See McCarthy, 503 U.S. at 151 (prison

officials are not “likely to be unduly inhibited in the

performance of their duties by the assertion of a

Bivens claim”).

That is unquestionably correct

because “Bivens comes accompanied with a qualifiedimmunity defense.”

Abbasi, 137 S. Ct. at 1883

(Breyer, J., dissenting). Qualified immunity, as this

Court reaffirmed in Abbasi, “protects ‘all but the

plainly incompetent [prison officials] or those who

knowingly violate the law.’” Id. at 1867 (plurality op.)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986));

see also Carlson, 446 U.S. at 19 (“[Q]ualified immunity

… provides adequate protection.”); Malesko, 534 U.S.

at 72 (emphasizing that any Bivens claim against a

prison official is “subject to the defense of qualified

immunity”). Given “[t]he real-world functioning of

modern immunity practice—essentially ‘heads

government wins, tails plaintiff loses,’” Cole v. Carson,

935 F.3d 444, 471 (5th Cir. 2019) (en banc) (Willett, J.,

dissenting), there can be no doubt that qualified

immunity would provide more than sufficient

protection for prison officials if this Court reaffirms

the availability of Bivens remedies for federal

prisoners. “Prison administration,” therefore, cannot

be a talisman that categorically wipes away federal

prisoners’ constitutional rights.

CONCLUSION

The petition for a writ of certiorari should be

granted.

30

November 1, 2021

Respectfully submitted,

THOMAS S. LEATHERBURY

VINSON & ELKINS LLP

2001 Ross Avenue

Suite 3900

Dallas, TX 75201

J. BENJAMIN AGUIÑAGA

Counsel of Record

JONES DAY

2727 N. Harwood Street

Dallas, TX 75201

(214) 969-3939

jbaguinaga@jonesday.com

MICHAEL W. SHAPIRO

SMU DEDMAN SCHOOL OF

LAW FIRST AMENDMENT

LITIGATION CLINIC

P.O. Box 750116

Dallas, TX 75275

JAMES T. DAWSON

VINSON & ELKINS LLP

2200 Pennsylvania

Avenue NW

Washington, DC 20037

AMANDA K. RICE

JONES DAY

150 W. Jefferson

Suite 2100

Detroit, MI 48226

PARKER J. CRAGG

VINSON & ELKINS LLP

1001 Fannin Street

Suite 2500

Houston, TX 77002

Counsel for Petitioner