Petition for Writ of Certiorari — Howard Goldey, Associate Warden, et al., Petitioners v. Andrew Fields, III, et al.

Supreme Court briefJan 21, 2025

Ask Donna

What actually matters in this document.

Text

No. 24In the

Supreme Court of the United States

HOWARD GOLDEY, ASSOCIATE WARDEN, et al.,

Petitioners,

ANDREW FIELDS, III, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

William M. Jay

Goodwin Procter LLP

1900 N Street, NW

Washington, DC 20036

James J. O’Keeffe IV

Counsel Of Record

MichieHamlett, PLLC

109 Norfolk Avenue, SW

Roanoke, VA 24011

(540) 491-0634

jokeeffe@michiehamlett.com

Counsel for Petitioners

120216

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

In Bivens v. Six Unknown Named Agents of

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

Court recognized an implied cause of action under the

Constitution for damages against federal officers for

allegedly violating the Fourth Amendment. More

recently, however, the Court has cautioned that “if [a]

claim arises in a new context, a Bivens remedy is

unavailable if there are special factors”—“even a

single reason to pause”—“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.” Egbert v. Boule, 596 U.S.

482, 492 (2022) (internal quotation marks omitted).

All parties have agreed that this case presents a new

context—a claim of excessive force under the Eighth

Amendment. A divided panel of the Fourth Circuit

held that the plaintiff’s allegations justified implying

a new damages cause of action under that

constitutional provision.

The questions presented are:

1. Whether an implied cause of action exists for

Eighth Amendment excessive force claims.

2. Whether the Court should reconsider the

premise that the Judiciary may imply causes of action

for damages under the federal Constitution that

Congress did not enact.

PARTIES TO THE PROCEEDING

Petitioners Howard Goldey, William Fields,

Neullan Naff, Joshua Robbins, Jimmy Baker, Jackie

Mitchell, Joshua Ewing, Brandon Gayheart, Michael

Sloan, Stuart Scott, Jonathan Bolling, Michael

Garrett, Denver Scholl, Dustin Farmer, Jerel

Dickenson, Jonathan Nichols, Michael Hamilton,

Phillip Mullins, Delores Hughes, and James Gilbert

were defendants in the district court and appellees in

the Fourth Circuit.

Respondent Andrew Fields, III was the plaintiff in

the district court and the appellant in the Fourth

Circuit.

Respondent Federal Bureau of Prisons was a

defendant in the district court and an appellee in the

Fourth Circuit.

Respondent Jason Streeval was a defendant in the

district court and an appellee in the Fourth Circuit.

RELATED PROCEEDINGS

United States District Court (W.D. Va.):

Fields v. Federal Bureau of Prisons, No. 7:22-cv00021 (Jan. 31, 2023)

United States Court of Appeals (4th Cir.):

Fields v. Federal Bureau of Prisons, No. 23-6246

(July 25, 2024)

III

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

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

TABLE OF CONTENTS ........................................... iii

TABLE OF APPENDICES ....................................... iv

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

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

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

STATEMENT ............................................................. 4

REASONS FOR GRANTING THE PETITION ...... 12

The Fourth Circuit’s decision creates a circuit

split ...................................................................... 13

II. The decision below is contrary to this Court’s

precedent ............................................................. 18

III. The questions presented are exceptionally

important and squarely presented ..................... 27

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

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED JULY 25, 2024 ..... 1a

APPENDIX B — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF VIRGINIA, ROANOKE DIVISION,

FILED JANUARY 31, 2023 ............................... 38a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED OCTOBER 22,

2024 ................................................................... 56a

TABLE OF CITED AUTHORITIES

Cases:

Ajaj v. Fozzard,

No. 23-2219, 2024 WL 4002912

(7th Cir. Aug. 30, 2024)......................................... 28

Alsop v. Fed. Bureau of Prisons,

No. 22-1933, 2022 WL 16734497

(3d Cir. Nov. 7, 2022) ............................................ 28

Anderson v. Fuson,

No. 23-5342, 2024 WL 1697766

(6th Cir. Feb. 1, 2024) ........................................... 28

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics,

403 U.S. 388 (1971) ....................................... 1, 4, 22

Callahan v. Fed. Bureau of Prisons,

965 F.3d 520 (6th Cir. 2020) ................................. 26

Carlson v. Green,

446 U.S. 14 (1980) ....................................... 4, 22, 26

Chambers v. C. Herrera,

78 F.4th 1100 (9th Cir. 2023) ......................... 15, 16

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ................................................. 18

Cross v. Buschman,

No. 22-3194, 2024 WL 3292756

(3d Cir. July 3, 2024) ............................................ 24

Davis v. Passman,

442 U.S. 228 (1979) ........................................... 4, 22

Edwards v. Gizzi,

107 F.4th 81 (2d Cir. 2024) ....................... 14, 15, 26

Egbert v. Boule, 596 U.S. 482

(2022) ................. 2, 5, 6, 7, 17, 18, 19, 22, 23, 25, 26

Farrington v. Diah,

No. 22-13281, 2023 WL 7220003

(11th Cir. Nov. 2, 2023)......................................... 28

Greene v. United States,

No. 21-5398, 2022 WL 13638916

(6th Cir. Sept. 13, 2022) ........................................ 28

Hernandez v. Mesa,

589 U.S. 93 (2020) ................... 5, 6, 7, 22, 23, 25, 26

Johnson v. Terry,

119 F.4th 840 (11th Cir. 2024) . 3, 16, 17, 19, 20, 26

Landis v. Moyer,

No. 22-2421, 2024 WL 937070

(3d Cir. Mar. 5, 2024) ............................................ 28

K.O. by and through E.O. v. Sessions,

41 F.4th 664 (D.C. Cir. 2022)................................ 26

Patton v. Blackburn,

No. 21-5995, 2023 WL 7183139

(6th Cir. May 2, 2023) ........................................... 28

Silva v. United States,

45 F.4th 1134 (10th Cir. 2022) ....................... 16, 25

Turner v. Safley,

482 U.S. 78 (1987) ................................................. 22

Wilkie v. Robbins,

551 U.S. 537 (2007) ............................................... 25

Ziglar v. Abbasi,

582 U.S. 120 (2017) ............. 4, 5, 6, 7, 18, 20, 23, 25

VII

Constitution, Statutes, and Regulations:

U.S. Const., art. II, § 1, cl. 8...................................... 24

U.S. Const., art. II, § 3 .............................................. 24

18 U.S.C. § 4001(b)(1) ............................................... 24

18 U.S.C. § 4042 ........................................................ 24

28 U.S.C. § 1254(1) ...................................................... 1

Prison Litigation Reform Act of 1995 (PLRA),

28 U.S.C. § 1915A(b) ............................................... 8

42 U.S.C. § 1983 .......................................................... 4

28 C.F.R. § 542.10 ..................................................... 18

28 C.F.R. §§ 542.10-19 .............................................. 24

Other Authorities:

Fed. Bureau of Prisons, About Our Agency,

https://www.bop.gov/about/agency/

(last visited Jan. 13, 2025) .................................... 27

Fed. Bureau of Prisons, About Our Facilities,

https://www.bop.gov/about/facilities/

federal_prisons.jsp (last visited Jan. 13, 2025) .... 27

Federal Prison Oversight Act,

Public Law No. 118-71, 138 Stat. 1492

(July 25, 2024) ................................................. 20, 21

Sen. Jon Ossoff, Press Releases,

SIGNED INTO LAW: Sens. Ossoff,

Braun, & Durbin, Reps. McBath & Armstrong’s

Bipartisan Federal Prison Oversight Act,

https://www.ossoff.senate.gov/press-releases/

signed-into-law-sens-ossoff-braun-durbin-repsmcbath-armstrongs-bipartisan-federal-prisonoversight-act/ (last visited Jan. 14, 2025) ............ 20

Petitioners Howard Goldey, William Fields,

Neullan Naff, Joshua Robbins, Jimmy Baker, Jackie

Mitchell, Joshua Ewing, Brandon Gayheart, Michael

Sloan, Stuart Scott, Jonathan Bolling, Michael

Garrett, Denver Scholl, Dustin Farmer, Jerel

Dickenson, Jonathan Nichols, Michael Hamilton,

Phillip Mullins, Delores Hughes, and James Gilbert

respectfully petition for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a37a) is reported at 109 F.4th 264. The opinion of the

United States District Court for the Western District

of Virginia (Pet. App. 38a-55a) is unreported, but is

available at 2023 WL 1219334.

JURISDICTION

The Fourth Circuit issued its opinion on July 25,

2024. A timely petition for rehearing was denied on

October 22, 2024 (Pet. App. 56a-57a). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

INTRODUCTION

This petition raises fundamental questions about

the federal courts’ power to fashion new causes of

action against federal officials, for money damages,

based on alleged violations of the Constitution. In

Bivens v. Six Unknown Named Agents of Federal

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

created an implied cause of action against federal

officials for violating the Fourth Amendment. Over

the next decade, the Court expanded Bivens twice,

recognizing implied remedies for a Fifth Amendment

due process claim and an Eighth Amendment

deliberate indifference claim.

But then the tide turned. Over the last four and a

half decades, the Court has refused to expand the

narrow set of recognized Bivens claims 12 times. See

Egbert v. Boule, 596 U.S. 482, 491 (2022). It has

disavowed the original trilogy, warning that, if it were

asked to decide Bivens today, it would not find any

implied causes of action in the Constitution. Id. at

502. That was no exaggeration: In Egbert, the Court

declined to extend Bivens to a fact pattern that four

Justices found to be materially indistinguishable from

Bivens itself. 596 U.S. at 503 (Gorsuch, J., concurring

in the judgment); id. at 505, 513 (Sotomayor, J.,

dissenting).

The Court’s unwillingness to infer new Bivens

claims accords with its broader repudiation of the

whole project of judicially inferring causes of action

that Congress did not create. Reflecting this

evolution, the Court has cautioned lower courts

against expanding Bivens in the strongest possible

terms, calling it “a disfavored judicial activity,” to be

avoided “in all but the most unusual circumstances.”

E.g., id. at 486, 491. To put it bluntly, inferring Bivens

claims offends the modern understanding of the

Constitution’s separation of powers.

But while the Court has spent decades barricading

the law against new Bivens claims, a divided panel of

the Fourth Circuit held below that federal corrections

officers may be liable under Bivens for allegedly using

excessive force against an inmate in violation of the

Eighth Amendment.

The importance of this ruling is indisputable. The

question of whether to extend Bivens to prisoner

excessive force claims recurs with stunning frequency.

Since this Court decided Egbert in June 2022, the

question has reached the courts of appeals at least a

dozen times, yielding five published opinions. Only

the Fourth Circuit’s opinion below recognized the

novel claim. It did so on the basis of reasoning that its

sister circuits had explicitly rejected and that—as the

United States explained in supporting rehearing en

banc—“drastically depart[ed]” from this Court’s

precedent. U.S. Amicus Br. 2-3. So when it created a

new cause of action, the Fourth Circuit also created a

sharp 3-1 circuit split. And the divide widened within

a few months: The Eleventh Circuit published a

blistering critique of the Fourth Circuit’s opinion,

calling it “a far-afield outlier” that may finally lead

this Court to overrule Bivens once and for all.

Johnson v. Terry, 119 F.4th 840, 850-51 (11th Cir.

2024).

The practical problems with the decision below are

as obvious as they are far-reaching. Correctional

officers have to place their hands on inmates in the

ordinary course of their work, whether they are

engaged in prisoner transport, discipline, or care. At

the thirteen federal correctional institutions in the

Fourth Circuit, including two high-security

penitentiaries housing thousands of the most

dangerous offenders, they now face a unique risk of

lawsuits without a statutory foundation that could

affect their on-the-job decision making. That is why

the United States identified the threat of “significant

harm to the government and its employees” resulting

from this decision. U.S. Amicus Br. 1.

What is more, Congress has comprehensively

legislated in the area of prison litigation, but decided

not to create a private damages remedy—probably

due to the availability of other remedial schemes, like

the Federal Tort Claims Act (FTCA) and the Bureau

of Prisons’ Administrative Remedy Program. And in

all events, running a prison is an inherently

challenging task, far better suited to the Executive

Branch than the Judicial.

STATEMENT

1. In 1871, Congress passed a statute letting

plaintiffs sue state officials for money damages if the

officials violated their constitutional rights, which

was eventually codified at 42 U.S.C. § 1983. Ziglar v.

Abbasi, 582 U.S. 120, 130 (2017). Congress never

passed a coordinate statute allowing plaintiffs to sue

federal officials for constitutional violations. Id.

A century later, in Bivens, this Court held that

even though Congress had not provided any statutory

authority for such actions, the plaintiff had an implied

cause of action under the Fourth Amendment

entitling him to sue federal officials for money

damages. 403 U.S. at 397. Over the next decade, the

Court created two more implied causes of action for

money damages under the Fifth and Eighth

Amendments in Davis v. Passman, 442 U.S. 228

(1979) (recognizing a Fifth Amendment gender

discrimination claim), and Carlson v. Green, 446 U.S.

14 (1980) (recognizing an Eighth Amendment

deliberate indifference claim).

But things dried up after Carlson. In the forty-five

years since, this Court has rejected every request—

12 of them now—to create a new implied cause of

action against a federal official for money damages

under the Constitution. See Egbert, 596 U.S. at 491;

Hernandez v. Mesa, 589 U.S. 93, 102 (2020). In the

last eight years alone, the Court has handed down a

trilogy of opinions warning against expanding Bivens,

all but admitting that the case was a mistake. Egbert,

596 U.S. at 491 (“Now long past the heady days in

which this Court assumed common-law powers to

create causes of action [as in Bivens], we have come to

appreciate more fully the tension between judicially

created causes of action and the Constitution’s

separation of legislative and judicial power.”)

(internal quotation marks and citations omitted);

Hernandez, 589 U.S. at 101 (noting that if “the Court’s

three Bivens cases [had] been ... decided today, it is

doubtful that we would have reached the same

result”) (alterations in original) (internal quotation

marks omitted); Ziglar, 582 U.S. 135 (warning that

“expanding the Bivens remedy is now a disfavored

judicial activity”) (internal quotation marks

omitted).

This course correction results from the Court’s

increased appreciation of “the tension between

judicially created causes of action and the

Constitution’s separation of legislative and judicial

power.” Egbert, 596 U.S. at 491 (quotation marks and

citation omitted). Unlike freewheeling midcentury

courts, which were quick to spot implied causes of

action, the Court now recognizes that “it is a

significant step under separation-of-powers principles

for a court to determine that it has the authority,

under the judicial power, to create and enforce a cause

of action for damages against federal officials in order

to remedy a constitutional violation.” Ziglar, 582 U.S.

at 133. And because the power to create causes of

action is legislative, “[i]n most instances … the

Legislature is in the better position to consider if the

public interest would be served by imposing a new

substantive legal liability.” Id. at 136 (quotation

marks omitted).

After all, creating new causes of action involves

complex policy calculations, weighing “economic and

governmental concerns, administrative costs, and the

impact on governmental operations systemwide.”

Egbert, 596 U.S. at 491 (quotation marks omitted). A

court’s ability to weigh those considerations is “at

best, uncertain.” Id. Thus, under modern practice,

“recognizing a cause of action under Bivens” outside of

the three contexts already recognized has become “a

disfavored judicial activity,” to be avoided “in all but

the most unusual circumstances.” Id. at 486, 491

(quotation marks omitted).

The Court has gone so far as to indicate “that if we

were called to decide Bivens today, we would decline

to discover any implied causes of action in the

Constitution.” Id. at 502.

So when faced with a Bivens claim, courts today

undertake a restrictive two-step inquiry. First, they

check to see if the claim arises in a “new context,” one

meaningfully different from those to which the Court

has already extended Bivens. Egbert, 596 U.S. at 492.

If so, they ask whether any “special factors” counsel

hesitation. Hernandez, 589 U.S. at 102 (quoting

Ziglar, 582 U.S. at 136). The special-factors inquiry

focuses on separation-of-powers principles, requiring

the courts to consider whether judicial intrusion into

a given field is appropriate. Id. at 102. Courts must

show the utmost deference to Congress, which enjoys

the principal—and probably the sole—authority to

create new causes of action for constitutional

violations. See Egbert, 596 U.S. at 491-92. Otherwise,

they risk “arrogating legislative power.” Id. at 492

(cleaned up). The presence of a single special factor is

enough to require a court to refrain from creating a

remedy. Id. at 491.

These two steps often boil down to a single

question: Is there any reason to think that Congress

might be better equipped to create a new damages

remedy? Id. at 492. And by “any reason,” the Court

means “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.’” Id.

at 496 (quoting Ziglar, 582 U.S. at 136). “Put another

way, ‘the most important question is who should

decide whether to provide for a damages remedy,

Congress or the courts?’” Id. at 491-92 (quoting

Hernandez, 589 U.S. at 114).

2. This case arises from the dismissal of inmate

Andrew Fields’s complaint seeking damages for

alleged excessive force under the Eighth Amendment.

Fields says that while he was an inmate at the highsecurity U.S. Penitentiary Lee in southwestern

Virginia, he was sent to the special housing unit and

placed on administrative segregation. Pet. App. 3a-4a.

When a scuffle erupted on the way, corrections officers

placed him in ambulatory restraints and put him in a

wheelchair for the rest of the trip. Pet. App. 4a. Upon

arrival at the special housing unit, Fields was placed

in an observation cell. Pet. App. 4a. Because he was

still restrained, he says, prison staff had to check on

him at regular intervals. Pet. App. 4a. Fields alleges

that they used each check as a chance to physically

abuse him while he was restrained, “including by

ramming his head into the concrete wall and hitting

[him] with a fiberglass shield.” Pet. App. 4a. Fields

claims that the whole series of events was retaliation

for an unrelated incident at another prison. Pet. App.

4a.

Fields also alleges that he tried to use the Bureau

of Prisons’ administrative grievance procedure, but

that staff denied him the necessary forms. Pet. App.

4a.

3. Fields filed a pro se complaint in the Western

District of Virginia against the Bureau of Prisons and

individual Bureau employees. Pet. App. 1a, 5a. He

alleged various violations of the Constitution,

including a claim for excessive force in violation of the

Eighth Amendment. Under the Prison Litigation

Reform Act of 1995 (PLRA), 28 U.S.C. § 1915A(b), the

district court prescreened the complaint before it was

served on the defendants. Pet. App. 5a.

The district court dismissed the complaint for

failure to state a claim, finding that most of its

allegations did not assert a constitutional violation.

Pet. App. 5a. Even those that did failed because

Bivens did not provide a damages remedy for them.

Pet. App. 5a. Relevant here, the district court held

that it had “no difficulty in concluding that” Fields’s

claims for excessive force “arise in a new context, as

the Supreme Court has never ruled that a damages

remedy exists for claims of excessive force by BOP

officers against an inmate.” Pet. App. 49a. The court

found multiple “rational reason[s]” why “Congress

would be better equipped than the courts to

determine whether to allow such claims.” Pet. App.

51a.

Because the case was dismissed at the

prescreening stage, petitioners were never served.

4. Fields appealed and retained counsel,

challenging only the dismissal of his Eighth

Amendment excessive force claims. Pet. App. 5a.

a. A split panel of the Fourth Circuit affirmed in

part, reversed in part, and remanded. Pet. App. 21a22a. The court recognized that to determine whether

a Bivens claim can proceed, it should conduct the

two-step analysis described above, first checking to

see if the claim arose in a new context, and then

looking for special factors counselling hesitation. Pet.

App. 7a-8a.

As to the first prong, Fields conceded that his claim

arose in a new Bivens context, as the district court had

concluded. The court of appeals accepted that

concession. Pet. App. 8a & n.1.

As to the second, however, the court of appeals

concluded that “where an inmate brings a claim

against individual, front-line officers who personally

subjected the plaintiff to excessive force in clear

violation of prison policy, and where rogue officers

subsequently thwarted the inmate’s access to

alternative remedies,” Bivens provides a remedy. Pet.

App. 12a. It reasoned that the risk of systemwide

consequences was “negligible” because Fields

challenged only the individual conduct of “rogue

prison officers,” not a systemwide policy. Pet. App.

13a-16a.

The court acknowledged the existence of

alternative

remedies,

notably

the

Bureau’s

Administrative Remedy Program. It determined that

those alternative remedies did not preclude a Bivens

remedy because Fields alleged that he was denied

access to them. Pet. App. 16a-19a.

Finally, the Fourth Circuit recognized that

Congress had legislated in this area by enacting the

PLRA, but decided not to provide a remedy for

plaintiffs like Fields. Pet. App. 19a. Even so, the

court reasoned that this was not dispositive, because

Congress had not prohibited all inmate Bivens

claims, either. Pet. App. 19a-21a. The Fourth Circuit

concluded that Congress wanted to preserve some

Eighth Amendment Bivens claims. Pet. App. 19a20a.

The court of appeals acknowledged that its

reasoning did not apply to the claims against the

Bureau, the warden, and “the other supervisory

officials named in the complaint,” and it affirmed the

dismissal of the claims against those defendants.1 Pet.

App. 12a-13a, 22a.

b. Judge Richardson lodged a forceful dissent. He

noted that this case presents not just one special

factor counselling hesitation, but three. Pet. App.

25a. First, while Congress has actively legislated in

this area—most notably through the PLRA—it has

not enacted a statutory cause of action for damages.

Pet. App. 26a-29a. The dissent pointed out that this

Court has specifically rejected the majority’s

argument that Congress’s failure to statutorily

overrule Bivens licensed courts to create new Bivens

remedies. Pet. App. 27a. In all events, the dissent

argued, the relevant inquiry was not whether

Congress meant to bar all Bivens remedies, but simply

whether there was any special factor counselling

hesitation. Pet. App. 28a. “That Congress looked

intently and specifically at prisoner litigation and

The Fourth Circuit did not specify which defendants

received the benefit of this affirmance. Some petitioners in

addition to Warden Streeval must fall within this supervisory

category, but identifying them may require a hearing in the

district court.

offered no private damages remedy should give us a

reason to think that Congress might not want us to

usurp its authority and create one ourselves.” Pet.

App. 28a.

Second, the dissent noted that the existence of an

alternative

remedial

scheme—the

Bureau’s

Administrative Remedy Program—also counselled

hesitation. Pet. App. 30a-32a. It was no answer to say

that Fields alleged that prison officials thwarted his

access to this remedy. The question was simply

whether the alternative remedy existed, not whether

the court deemed it adequate. Pet. App. 30a-32a.

Third, the consequences of implying a new

damages remedy cut against extending Bivens. Pet.

App. 32a-37a. Authorizing a Bivens action for

excessive force under the Eighth Amendment would

open the door to a multitude of such cases. Pet. App.

33a. Allowing suits alleging that individual officers

“went rogue” could have systemic consequences

because every prisoner would be able to sue alleging

that officers used excessive force, and every officer

would have to constantly calibrate their behavior to

account for this litigation risk. Pet. App. 33a-35a.

The dissent closed by observing that the Court has

chosen to leave its three existing Bivens actions in

place “while effectively directing that lower courts

should not create new ones.” Pet. App. 37a. Even so,

given just this slight crack in the door, “inferior courts

continue to ignore the directive to stop expanding

Bivens.” Pet. App. 37a. The dissent found that the

governing decisional law forbade expanding Bivens.

Pet. App. 37a. “But perhaps the majority’s holding to

the contrary shows it’s time to shut the Bivens door

completely.” Pet. App. 37a.

5. Because the court of appeals had dismissed the

Bureau of Prisons and left the case to proceed only

against individual defendants (who had never been

served with process), the Department of Justice

authorized petitioners to retain private counsel for

purposes of seeking further review. Petitioners sought

rehearing or rehearing en banc, and the United States

filed an amicus brief supporting that petition. As the

rehearing petition and the United States’ brief

explained, the court of appeals’ decision created a

lopsided circuit split; “drastically depart[ed]” from

this Court’s precedent; and “threaten[ed] significant

harm to the government and its employees.” U.S.

Amicus Br. 1-3.

The Fourth Circuit denied rehearing. Pet. App.

57a.

REASONS FOR GRANTING THE PETITION

The Court should grant certiorari to resolve the

circuit conflict about whether an implied remedy is

available under Bivens for an Eighth Amendment

excessive force violation. That issue is vitally

important. It recurs frequently, as the five published

appellate opinions issued in the past three years

show. The Fourth Circuit’s pathbreaking decision

parted ways with every other circuit to consider the

issue since Egbert. In doing so, it also departed from

this Court’s highly restrictive criteria for recognizing

new Bivens actions. Only this Court can restore

uniformity and ensure that correctional officers in

this circuit can do their job without risking

burdensome lawsuits that no other circuit would

allow.

The Fourth Circuit’s decision also shows why the

Court should reject not just this type of Bivens action,

but the entire concept of a judicially inferred cause of

action to enforce the Constitution. This Court’s

precedents have increasingly dialed Bivens back while

undermining its foundations. But so long as the Court

leaves the Bivens door even slightly ajar, litigants will

keep bringing suits—and at least some federal courts

will keep accepting them. Bivens and the other

decisions following its now-closed path should be

overruled.

This case is an ideal vehicle to resolve the circuit

split and reconsider Bivens. The case below turned

on the availability of Bivens in an admittedly novel

Eighth Amendment context. It was dismissed on

prescreening review, so Fields’s allegations are taken

as true and no further fact findings are necessary.

The Fourth Circuit panel produced a lengthy opinion

and a thorough dissent. The Court should grant

this petition to bring this important area into line

with the Court’s modern separation-of-powers

jurisprudence.

The Fourth Circuit’s decision creates a

circuit split.

Until this case, every circuit to consider the issue

since Egbert has concluded that Bivens cannot be

expanded to imply a damages remedy for Eighth

Amendment excessive force claims. They have based

their decisions on factors equally present here, like

the existence of an alternative remedial structure and

Congress’s decision not to create a damages remedy in

the PLRA.

1. Start with the Second Circuit, which affirmed a

district court’s dismissal of a plaintiff’s claim that U.S.

Marshals and court security officers violated his

Eighth Amendment rights by using excessive force to

restrain him. Edwards v. Gizzi, 107 F.4th 81 (2d Cir.

2024) (per curiam). In a separate opinion concurring

in the judgment, Judge Park explained that

Edwards’s claim arose in a new context, because an

Eighth Amendment excessive force claim is distinct

from the Eighth Amendment deliberate indifference

claim recognized in Carlson. Id. at 84-85. And at least

one special factor counselled hesitation before

expanding Bivens: An alternative remedial structure

was already in place under the FTCA. Id. at 84-86.

The concurrence noted that “[t]o be fair, the Supreme

Court’s reluctance to confront the constitutional

infirmity of Bivens and its mixed messages about

Bivens’s remaining vitality continue to confuse lower

courts,” id. at 86 n.6, implicitly inviting this Court to

clarify matters and put an end to that confusion.

Judge Robinson also concurred in the judgment,

agreeing that the claim arose in a new context under

Bivens. Id. at 87. She wrote separately to stress that

this Court has never overruled Bivens, which by her

lights “remains alive and well,” at least “in the

heartland cases … .” Id. at 87.

Judge Parker dissented. He did not believe that

Edwards’s Eighth Amendment excessive force claim

“differ[ed] in a meaningful way from previous Bivens

cases decided by the Supreme Court.” Id. at 89. Even

if it did, he saw no special factors counselling

hesitation. Id. at 91. The FTCA was not an alternative

remedial structure, he reasoned, because it imposed

liability against the United States, while a Bivens

remedy would be “centered entirely [on] individual

officer deterrence.” Id. The dissent closed by all but

daring this Court to overrule Bivens:

In sum, the fact that the Supreme Court

continues to express serious doubts

about Bivens’ future does not, in my

view, grant a license to sub silentio do for

the Supreme Court what it has thus far

been unwilling to do itself. If the

Supreme Court plans to take away

important

protections

against

constitutional violations and allow

federal officials to act unconstitutionally

without consequence unless and until

Congress acts, then it should face the

nation and say as much. It should not

delegate that work to us.

Id.

2. The Ninth Circuit likewise held that a plaintiff

“has no Eighth Amendment excessive force claim

under Bivens.” Chambers v. C. Herrera, 78 F.4th

1100, 1107 (9th Cir. 2023). It agreed with the district

court that the plaintiff’s allegations were “too

threadbare” to survive a motion to dismiss. Id. Before

this Court’s decision in Egbert, the district court had

assumed without deciding that a Bivens remedy was

available, and had dismissed the claim without

prejudice for failure to allege a plausible claim. Id.

The Ninth Circuit affirmed on the alternative basis

that under Egbert, not even plausible allegations

could state a Bivens claim, so amendment would be

futile. Id. It thus affirmed the dismissal, but ordered

it converted to dismissal with prejudice. Id.

The Ninth Circuit explained that Chambers’s

claim arose in a new context because while this

Court recognized an Eighth Amendment deliberate

indifference claim in Carlson, an Eighth Amendment

excessive force claim was “entirely different.” Id. at

1107-08. Because Chambers was aware of the

Bureau’s grievance procedures but chose not to use

them, expanding Bivens would risk precisely the

“disruptive intrusion by the Judiciary” that Ziglar

forbids. Id. at 1108. Beyond that, when Congress

enacted the PLRA, it authorized the Bureau to

establish grievance procedures for prisoner

complaints but stopped short of creating a damages

remedy for Eighth Amendment excessive force

claims. Id.

3. The Tenth Circuit came to the same

conclusion in Silva v. United States, 45 F.4th 1134

(10th Cir. 2022), focusing on the alternative

remedial schemes available to the plaintiff. It held

that Silva’s Eighth Amendment excessive force

claim was “foreclosed by the availability of the BOP

Administrative Remedy Program to address his

complaint.” Id. at 1142.

4. Finally, in Johnson v. Terry, 119 F.4th 840,

852 (11th Cir. 2024), the Eleventh Circuit held

that the plaintiff had abandoned his Eighth

Amendment excessive force claim. Even so, it took

the opportunity to launch a broadside at the Fourth

Circuit’s opinion in this case, blasting it as a “farafield outlier.” Id. at 850-51. The Eleventh Circuit

predicted that if the majority’s opinion “manage[d]

to duck en banc correction,” then it might require

this Court to finally overrule Bivens. Id. at 851.

Also relevant here, the Eleventh Circuit

specifically rejected the notion that a prisoner

plaintiff can plead around this Court’s restraints on

new Bivens causes of action. The plaintiff “contend[ed]

that the BOP’s administrative remedy program

should not be considered a sufficient alternative

remedy for him, and hence not a special factor,

because the district court found that he was denied

access to the program.” Id. at 860 (emphases added).

The Eleventh Circuit made clear that “[t]he

alternative remedy question is a general one, not a

specific one; a macro focus, not a micro focus.” Id.

Whether the plaintiff himself was denied access to the

remedy was not the issue. Rather, the question was

“whether the Government has put in place safeguards

to prevent constitutional violations from recurring.”

Id. (quoting Egbert, 596 U.S. at 498).

Thus, the Fourth Circuit’s decision creates a

methodological split about the analysis of alternative

remedies in addition to the specific split on whether

courts should fashion a new Eighth Amendment cause

of action. And because the Fourth Circuit’s noalternative-remedy reasoning appears to apply to any

case in which a federal prisoner contends that the

defendants didn’t give him the right forms to access

the Administrative Remedy Program, it may well

affect Bivens litigation by federal prisoners in the

Fourth Circuit on theories beyond the Eighth

Amendment. The Fourth Circuit’s willingness to

disregard this alternative remedy, and give a Bivens

cause of action to any plaintiff who alleges that he

personally was frustrated in his attempt to bring a

grievance, heightens the significance of this case and

the need for this Court’s resolution.

II.

The decision below is contrary to this

Court’s precedent.

The Fourth Circuit’s decision to part company with

its sister circuits was mistaken for two reasons. First,

as the dissent pointed out, the majority’s reasoning is

inconsistent with this Court’s instructions in the

Egbert trilogy, as it expanded Bivens to a new context

despite the presence of at least three special factors

counselling

hesitation.

Second,

and

fundamentally, in the 50 years since Bivens was

handed down, the law has moved in a direction that

has fatally undermined the case.

1. This Court’s precedents teach that the presence

of even one special factor is reason enough not to

expand Bivens. E.g., Egbert, 596 U.S. at 492. Here,

three special factors present themselves.

a. First, an alternative remedial structure

already exists for prisoners like Fields. U.S. Amicus

Br. 2-3, 7-8. This Court has explained that a “court

may not fashion a Bivens remedy if Congress already

has provided, or has authorized the Executive to

provide, ‘an alternative remedial structure.’” Egbert,

596 U.S. at 493 (quoting Ziglar, 582 U.S. at 137).

Here, several remedial mechanisms are already in

place, “including suits in federal court for injunctive

relief and grievances filed through the BOP’s

Administrative Remedy Program.” Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 74 (2001) (citing 28 C.F.R. §

542.10). The Administrative Remedy Program offers a

“means through which allegedly unconstitutional

actions and policies can be brought to the attention of

the BOP and prevented from recurring.” Id.

That should be the end of the analysis. “So long as

Congress or the Executive has created a remedial

process that it finds sufficient to secure an adequate

level of deterrence, the courts cannot second-guess

that calibration by superimposing a Bivens remedy.”

Egbert, 596 U.S. at 498. This is true even if the lower

court concludes that the political branches’ preferred

alternative remedy is less effective than an

individual damages remedy. Id.

The Fourth Circuit dismissed this factor because

Fields alleged that prison officials blocked his access

to these remedies. Pet. App. 16a-18a. That

misunderstood the relevant inquiry. The court was

undertaking a separation-of-powers analysis. It

should not have asked whether Bivens relief was

appropriate under the facts of a particular case;

instead, it should have asked broadly whether there

was any reason to think that judicial intrusion into a

given field might be inappropriate. Egbert, 596 U.S.

at 496.

The majority countered that “no court (in this

Circuit or otherwise) has ever before been presented

with a case in which one of the allegations was that

the grievance process was intentionally withheld

from the inmate.” Pet. App. 18a. But that was

exactly the scenario in Johnson: The prisoner

alleged—and the district court found after

discovery—that he was denied access to the

Administrative Remedy Program. 119 F.4th at 846,

860. Even so, the Eleventh Circuit declined to extend

Bivens because the Government had already

provided an alternative remedy. Id. at 859-62. That

the plaintiff himself was denied access to the remedy

did not matter. Id. at 860. “The only consideration is

whether there is a remedial process in place that is

intended to redress the kind of harm faced by those

like the plaintiff.” Id.; see also U.S. Amicus Br. 2-3,

b. Second, Congress has actively legislated in this

area but has chosen not to create a cause of action for

money damages. See Ziglar, 582 U.S. at 148-49. The

Legislature has been anything but silent about

prisoner litigation. The prime example is the PLRA,

“which made comprehensive changes to the way

prisoner abuse claims must be brought in federal

court.” Id. at 148. Yet despite having “specific occasion

to consider the matter of prisoner abuse and ...

remed[ies for] those wrongs,” Congress has not—in

the PLRA or elsewhere—“provide[d] for a standalone

damages remedy against federal jailers.” Id. at 14849.

And just last year, Congress passed the Federal

Prison Oversight Act, bipartisan legislation

specifically aimed at remedying “corruption, abuse,

and misconduct within the Federal prison system

… .” E.g., Sen. Jon Ossoff, Press Releases, SIGNED

INTO LAW: Sens. Ossoff, Braun, & Durbin, Reps.

McBath & Armstrong’s Bipartisan Federal Prison

Oversight Act, available at https://www.ossoff.

senate.gov/press-releases/signed-into-law-sens-ossoffbraun-durbin-reps-mcbath-armstrongs-bipartisanfederal-prison-oversight-act/ (last visited Jan. 14,

2025). The Act focuses on establishing oversight

mechanisms and improving transparency in the

system. Federal Prison Oversight Act, Public Law

No. 118-71, 138 Stat. 1492 (July 25, 2024). While it

creates a new Ombudsman to receive prisoner

complaints, the Act provides no private damages

remedy for allegations of constitutional violations. Id.

President Biden signed the Act into law on the same

day that the Fourth Circuit issued the opinion below.

Id.

It is reasonable to infer from Congress’s silence in

this area where it has otherwise been active that it did

not want to create a damages remedy.

c. Finally, the consequences of granting Fields’s

requested relief cut against extending Bivens. By

creating a Bivens action for prisoner excessive force

claims, the Fourth Circuit invited a flood of those

cases. Line correctional officers must employ force

and restrain prisoners in the ordinary course of their

work. Even if they are not actually sued, the prospect

of individual liability will change the way they do

their jobs on a daily basis. It may cause them to

hesitate when the situation calls for action—to

protect themselves, their colleagues, or other

prisoners. See U.S. Amicus Br. 10. And those federal

employees, like petitioners, unlucky enough to find

themselves sued will face years of disruptive

litigation.

The Fourth Circuit minimized this concern,

insisting that the officers Fields alleges to have

violated his constitutional rights did so by going

“rogue” in violation of Bureau policies. Pet. App. 13a16a. Because no prison policy was directly

implicated, it reasoned, expanding Bivens would

have no systemic repercussions. Pet. App. 13a-16a.

But allegations of individual misconduct do not

foreclose the possibility of systemic consequences. A

court looking to extend Bivens is charged with

considering not just the consequences of creating a

remedy in the present case, but also the consequences

that its new remedy will have across the broad run of

future cases. So the relevant inquiry is not whether a

court is competent to authorize a damages remedy

against particular defendants, but against all

similarly situated officials. See U.S. Amicus Br. 910.

In the context of line officers in a prison, the

answer must be no. As the Court has recognized,

“[r]unning a prison is an inordinately difficult

undertaking that requires expertise, planning, and

the commitment of resources, all of which are

peculiarly within the province of the legislative and

executive branches of government.” Turner v. Safley,

482 U.S. 78, 84-85 (1987). Creating a new Bivens

remedy for prisoner excessive force claims would

invite litigation over myriad decisions made every day

about safety and discipline throughout the prison

system. Uncertainty about those consequences alone

is enough to foreclose expanding Bivens, because it

provides a rational reason to think that Congress is

better suited to weigh the costs and benefits of

allowing a damages action to proceed. See Egbert, 596

U.S. at 493.

2. The decision below was also wrong because the

entire concept of a judicially inferred cause of action

under the Constitution is relic from an earlier era,

incompatible with modern precedent. This case

presents an ideal vehicle for reconsidering Bivens and

avoiding future litigation over incessant attempts to

expand it.

The Court decided Bivens in 1971, when it was

common for courts to create new causes of action to

protect the policies that they perceived to underlie the

Constitution or statutes. Id. at 131-32. The Court

extended Bivens just twice, in 1979 and 1980. Carlson

v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442

U.S. 228 (1979). “After those decisions, however, the

Court changed course,” Hernandez, 589 U.S. at 99,

rejecting every effort to extend Bivens in the past 45

years, Egbert, 596 U.S. at 491. Its foundations

eroded, Bivens’s holding lingers on today as a curious

artifact from an “ancien regime.” Ziglar, 582 U.S. at

131.

That erosion results from a paradigm shift in the

Court’s overall approach to implied rights of action—

whether based on a constitutional provision or a

statute for which Congress has not granted an

express right of action. The Court has come “to

appreciate more fully the tension between this

practice and the Constitution’s separation of

legislative and judicial power.” Hernandez, 589 U.S.

at 100. Congress, not the courts, has the authority to

create new causes of action. Bivens violates this

separation of powers because it allows courts to

usurp legislative authority by crafting their own new

causes of action.

Today, the Court has repeatedly “expressed doubt

about [its] authority to recognize any causes of action

not expressly created by Congress.” Hernandez, 589

U.S. at 101. In “constitutional cases,” that principle

warrants even further caution, because “Congress is

best positioned to evaluate ‘whether, and the extent

to which, monetary and other liabilities should be

imposed on [federal officers]’ based on constitutional

torts.” Id. (quoting Ziglar, 582 U.S. at 134). This is

why the Egbert Court explained “that if we were

called to decide Bivens today, we would decline to

discover any implied causes of action in the

Constitution.” 596 U.S. at 502.

Less remarked but no less problematic is the

challenge that Bivens poses to the Executive’s

authority. The President is sworn to “preserve,

protect and defend the Constitution of the United

States.” U.S. Const., art. II, § 1, cl. 8. He is entrusted

with a duty “to take Care that the Laws be faithfully

executed … .” U.S. Const., art. II, § 3. This includes

implementing constitutional guarantees like the

Eighth Amendment—for example, by supervising the

conduct of Executive Branch employees and

addressing mistakes and misconduct.

When a federal court creates a new cause of action

against an Executive employee, which Congress

never presented to the President for signature, it

impinges upon the executive power. Cross v.

Buschman, No. 22-3194, 2024 WL 3292756, at *5 (3d

Cir. July 3, 2024) (Matey, J., concurring). The

President’s Faithful Execution duty is why courts

consider administrative remedies when determining

whether to extend Bivens. Id. “Remedial programs

reflect the Executive’s judgment about how wrongful

acts should be addressed, alleviated, and

compensated.” Id.

Congress sensibly charged the Executive—that is,

the President and the Attorney General—with

implementing federal prison programs. Id. (citing 18

U.S.C. §§ 4001(b)(1), 4042). In carrying out that duty,

the President has an independent duty to protect the

Constitution’s guarantees in federal prisons. Id. “The

President has answered that call in the BOP’s

administrative remedy program.” Id. (citing 28

C.F.R. §§ 542.10-19). When it comes to the specific

means of implementing the Eighth Amendment, “the

Constitution leaves it to the states, Congress, and the

Executive.” Id.

Moving from the conceptual level to the practical,

Bivens has proven unworkable, requiring repeated

overhauls. At first, courts essentially presumed that

new Bivens actions were valid, unless special factors

or an explicit Congressional declaration indicated

otherwise. Silva v. United States, 45 F.4th 1134, 1139

(10th Cir. 2022). Later, the Court “flipped” the

presumption, explaining that courts should decline to

recognize new Bivens claims in the face of any special

factors counselling hesitation or alternative remedies.

Id.; Wilkie v. Robbins, 551 U.S. 537, 550 (2007). Ziglar

raised the bar, making “separation-of-powers

principles … central to the analysis,” and indicating

that “[i]n most instances … the Legislature is in the

better position” to decide the advisability of new

causes of action. 582 U.S. at 136. Hernandez

heightened the standard again, stressing that the

Court’s “watchword is caution,” and listing numerous

non-exhaustive factors weighing against extending

Bivens to new contexts. 589 U.S. at 101-02. And just

three years ago, Egbert tightened things up even

further, explaining that “[w]hile our cases describe

two steps, those steps often resolve to a single

question: whether there is any reason to think that

Congress might be better equipped to create a

damages remedy.” 596 U.S. at 492.

Yet the Court’s current, exacting criteria still

demand judgment calls that judges are poorly

positioned to make. For example, lower courts are told

to weigh the impact of recognizing a Bivens action “on

governmental operations systemwide.” Ziglar, 582

U.S. at 136. But courts are not set up to study such

far-reaching policy issues, and parties are even less

equipped to brief them. And as Justice Gorsuch

pointed out, “if the only question is whether a court is

‘better equipped’ than Congress to weigh the value of

a new cause of action, surely the right answer will

always be no.” Egbert, 596 U.S. at 504 (Gorsuch, J.,

concurring in the judgment).

Meanwhile, the calls to reconsider Bivens mount.

They start at the top, as multiple Justices have urged

overruling Bivens. E.g., Egbert, 596 U.S. at 504

(Gorsuch, J., concurring in the judgment);

Hernandez, 589 U.S. at 119 (Thomas, J., concurring);

Carlson, 446 U.S. at 31-32 (Rehnquist, J.,

dissenting). Circuit Judges have joined the chorus.

There is, of course, Judge Richardson’s dissent below,

Pet. App. 23a-37a, which the Eleventh Circuit

endorsed in Johnson, 119 F.4th at 851. And then

there are the separate opinions out of the Second

Circuit in Edwards. 107 F.4th at 86 n.6 (Park, J.,

concurring in the judgment); id. at 91 (Parker, J.,

dissenting). Judge Silberman repeatedly urged this

Court to overrule Bivens, which he saw as “another

egregious example” of the Court “acting like a

common law court rather than an Article III court.”

K.O. by and through E.O. v. Sessions, 41 F.4th 664,

665 (D.C. Cir. 2022) (Silberman, J., concurring)

(collecting cases). And Judge Sutton, writing for a

Sixth Circuit majority, noted: “There’s something to

be said for … pointing out that the best idea for

[plaintiffs] is to urge Congress to create a cause of

action.” Callahan v. Fed. Bureau of Prisons, 965 F.3d

520, 523 (6th Cir. 2020).

“[T]he time has come to consider discarding the

Bivens doctrine altogether.” Hernandez, 589 U.S. at

114 (Thomas, J., concurring). And this is an optimal

case to do so. The Fourth Circuit extended Bivens to

a new context despite this Court’s strong

reservations against the whole project of implying

remedies. If Bivens has not survived into the twentyfirst century, the Court should say so, in fairness to

litigants and lower courts alike. That would provide

clarity, cut litigation costs, and end decades of

incremental interventions.

III.

The questions presented are

exceptionally important and squarely

presented.

1. Recognizing an implied right of action

implicates separation-of-powers questions that go to

the core of our constitutional framework. These

questions are inherently important. Here, they arise

in a setting raising sensitive concerns about whether

recognizing new inmate Bivens actions will undercut

the ability of correctional officers to maintain safety

and discipline in the prison system.

The stakes are daunting. The Bureau of Prisons

employs more than 36,000 people overseeing more

than 155,000 inmates in 122 prisons across the

nation. Fed. Bureau of Prisons, About Our Agency,

https://www.bop.gov/about/agency/ (last visited Jan.

13, 2025); Fed. Bureau of Prisons, About Our

Facilities,

https://www.bop.gov/about/facilities/

federal_prisons.jsp (last visited Jan. 13, 2025). If the

prospect of Bivens suits limits federal officers’ ability

to safely manage those institutions, the consequences

could be catastrophic. And because the prisons are

located in different circuits, only this Court can

ensure uniformity.

The question of Bivens remedies for Eighth

Amendment excessive force claims recurs frequently.

Since Egbert came down in June 2022, it has reached

the circuit courts at least a dozen times, yielding five

published decisions and seven unpublished ones. In

the former category are the decision below and the

four cases discussed in Part I, above. In the latter

category are Greene v. United States, No. 21-5398, 2022

WL 13638916, at *3 (6th Cir. Sept. 13, 2022) (order)

(plaintiff’s Eighth Amendment excessive force claim

“was not cognizable under Bivens.”); Alsop v. Fed.

Bureau of Prisons, No. 22-1933, 2022 WL 16734497, at

*3 (3d Cir. Nov. 7, 2022) (per curiam order) (plaintiff’s

allegations that correctional officer used excessive

force were “not a basis for relief under Bivens.”); Patton

v. Blackburn, No. 21-5995, 2023 WL 7183139 (6th Cir.

May 2, 2023) (plaintiff’s Eighth Amendment excessive

force claim arose in a new context and failed in light of

special factors); Farrington v. Diah, No. 22-13281, 2023

WL 7220003 (11th Cir. Nov. 2, 2023) (per curiam)

(plaintiff’s Eighth Amendment excessive force claim

was properly dismissed, as it arose in a new context

and alternative remedies were available); Anderson

v. Fuson, No. 23-5342, 2024 WL 1697766 (6th Cir.

Feb. 1, 2024) (order) (plaintiff’s Eighth Amendment

excessive force claim arose in a new context and

failed in light of special factors); Landis v. Moyer, No.

22-2421, 2024 WL 937070, at *3 (3d Cir. Mar. 5,

2024) (“Because the BOP provides an alternative

remedy, a Bivens action for use of excessive force in

violation of the Eighth Amendment is unavailable.”);

Ajaj v. Fozzard, No. 23-2219, 2024 WL 4002912, at *2

(7th Cir. Aug. 30, 2024) (order) (because Congress has

provided for an alternative remedial structure in the

Bureau’s Administrative Remedy Program, “a Bivens

remedy cannot apply.”).

2. This case is an ideal vehicle for resolving the

questions

presented,

which

were

outcomedeterminative below. The district court dismissed

Fields’s Bivens claim on prescreening review. No

additional factual development is needed. The Fourth

Circuit reversed because it considered extensions of

Bivens warranted in the Eighth Amendment context,

applying a methodology at odds with both this Court’s

teaching and its sister circuits’ reasoning. The

majority triggered a cogent and forceful dissent,

which joined battle not only on the advisability of

extending Bivens to a novel Eighth Amendment

context, but also on the continuing vitality of Bivens

itself.

Further percolation is unnecessary. These cases

keep working their way up through the court system,

and the courts of appeals keep batting them down—

with the occasional outlier like the decision below, or

Judge Parker’s dissent in Edwards. Circuit Judges

are openly pleading for this Court’s help in either

clarifying Bivens or finally putting it to rest. This

Court should intervene now both to restore uniformity

and stem a tide of further unnecessary litigation.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WILLIAM M. JAY

GOODWIN PROCTER LLP

1900 N Street NW

Washington, D.C.

20036

JAMES J. O’KEEFFE IV

Counsel of Record

MICHIEHAMLETT, PLLC

109 Norfolk Avenue SW

Roanoke, Virginia 24011

540-491-0634

jokeeffe@michiehamlett.com

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED JULY 25, 2024 . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF V IRGINI A , ROA NOK E DI V ISION,

FILED JANUARY 31, 2023 . . . . . . . . . . . . . . . . . . 38a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

OCTOBER 22, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . 56a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT, FILED JULY 25, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6246

ANDREW FIELDS, III,

Plaintiff-Appellant,

FEDERAL BUREAU OF PRISONS; WARDEN

STREEVAL; A. W. GOLDEY; CAPTAIN BAKER;

MITCHELL; MULLINS; NEFF; EWING;

GAYHEART; SESSONS; FIELDS; SLOAN;

NURSE SCOTT; J. ROBBINS; BOLLING;

GARRETT; SCHOLL; GILBERT; BAKER;

BARKER; FARMER; DICKENSON;

LIEUTENANT LAFFIN; LIEUTENANT

NICHOLOUS; LIEUTENANT HAMILTON;

LIEUTENANT MULLINS; HUGHES; LASTER,

Defendants-Appellees.

Argued: January 26, 2024

Decided: July 25, 2024

Appeal from the United States District Court for the

Western District of Virginia, at Roanoke. Elizabeth Kay

Dillon, District Judge. (7:22-cv-00021-EKD-JCH)

Appendix A

Before GREGORY, THACKER, and RICHARDSON,

Circuit Judges.

Affirmed in part, reversed in part, and remanded by

published opinion. Judge Gregory wrote the opinion, in

which Judge Thacker joined. Judge Richardson wrote a

dissenting opinion.

GREGORY, Circuit Judge:

While incarcerated at U.S. Penitentiary (USP) Lee,

Andrew Fields was the target of egregious physical abuse.

There is little doubt that Fields would have a viable § 1983

claim against prison officials if he had been incarcerated

at a state prison. But Fields was at a federal facility, and

claims against federal officials for constitutional violations

are severely limited under established precedent. Thus,

the district court concluded that Fields cannot obtain

relief and that his claim must be dismissed pursuant to the

Prison Litigation Reform Act’s prescreening procedure.

Though we acknowledge the limited availability of claims

under Bivens v. Six Unknown Named Agents of Federal

Narcotics Bureau against federal officials, including

officers in federal prisons, we conclude that Fields can

overcome those limitations and successfully state a claim

against the officers. Accordingly, we reverse.

We review de novo a district court’s dismissal through

PLRA prescreening for failure to state a claim. Moore v.

Bennette, 517 F.3d 717, 728 (4th Cir. 2008). In so doing, we

Appendix A

apply the same standard as under Rule 12(b)(6). Veney v.

Wyche, 293 F.3d 726, 730 (4th Cir. 2002). We accept all facts

pled in the Complaint as true and “draw all reasonable

inferences in favor of the plaintiff.” Nemet Chevrolet, Ltd.

v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.

2009). Because the complaint in this case was filed pro se,

we construe the allegations “liberally” in the plaintiff’s

favor. Shaw v. Foreman, 59 F.4th 121, 126 (4th Cir. 2023).

II.

Fields alleges that he was the victim of excessive

force, inflicted by several prison officials at USP Lee in

violation of the Eighth Amendment. Specifically, he alleges

that on November 10, 2021, he went to lunch without his

inmate movement pass, which he was required to carry

with him whenever he left his housing unit. J.A. 9. Upon

his return, he was escorted to USP Lee’s lieutenants’

office, where he was berated for failing to carry his

inmate movement pass with him at all times. J.A. 10-11.

He was then ordered to be taken to the special housing

unit (SHU), colloquially known as “the hole,” and placed in

administrative segregation. J.A. 11. Before he was taken

to the SHU, an officer conducted a pat down search and

seized several legal documents Fields had on his person

and Fields’s prescription eyeglasses. J.A. 12. To date,

neither the documents nor the eyeglasses have been

returned. Id.

On the way to the SHU, a scuffle erupted. J.A. 13.

According to an incident report appended to the complaint,

Fields allegedly tried to assault the officers escorting him.

Appendix A

J.A. 29. As a result of this incident, Fields was placed in

ambulatory restraints and taken the rest of the way to

the SHU in a wheelchair. J.A. 13. This is the first alleged

incident of excessive force, though Appellees argue that

the officers’ actions were justified because Fields initiated

the scuffle.

Once at the SHU, Fields was placed in an observation

cell. J.A. 14. At regular intervals, prison staff were

required to check on Fields. Despite the fact that Fields

was still in restraints with both his hands and feet cuffed,

the officers used each check as another opportunity to

physically abuse Fields, including by ramming his head

into the concrete cell wall and hitting Fields with a

fiberglass security shield. J.A. 14. There is no allegation

that Fields posed a physical threat to the officers during

any of these checks. J.A. 14-23. Fields alleges that

this entire sequence of events was retaliation for his

involvement in an unrelated proceeding concerning events

that occurred at a different federal prison. J.A. 9.

Following his time in the SHU, Fields attempted to

utilize the Bureau of Prisons’ (BOP’s) administrative

grievance procedure, but prison staff denied him

access to the necessary forms. J.A. 24, 26. He was thus

unable to pursue any alternative remedies. J.A. 26.

After unsuccessfully attempting to access the available

administrative remedies, Fields filed a pro se civil rights

complaint in the United States District Court for the

Western District of Virginia. The suit named the BOP,

the prison warden, and several other officers, both

supervisory and those who directly interacted with Fields

during the events giving rise to this case.

Appendix A

The district court prescreened the complaint pursuant

to 28 U.S.C. § 1915A(b). That provision of the Prison

Litigation Reform Act (PLRA) requires courts “as soon as

practicable after docketing” to review civil cases “in which

a prisoner seeks redress from a governmental entity or

officer” and “dismiss the complaint, or any portion of the

complaint” that “is frivolous, malicious, or fails to state a

claim upon which relief may be granted.” § 1915A(b). The

district court dismissed the complaint in full because, it

said, many of its allegations failed to state a constitutional

violation and even those that did were not cognizable

because “there is no damages remedy under Bivens” for

those claims. J.A. 96.

Fields appealed the dismissal and has since retained

counsel. On appeal, he challenges only the dismissal of his

Eighth Amendment excessive force claim. He concedes

that this case arises in a new context under our Bivens

analysis but argues that Bivens should nonetheless be

extended to permit him to pursue this claim. He does

not challenge the dismissal of any of the other claims

originally brought in his complaint.

III.

“Although § 1983 gives plaintiffs the statutory

authority to sue state officials for money damages for

constitutional violations, there is no statutory counterpart

to sue federal officials.” Mays v. Smith, 70 F.4th 198, 201

(4th Cir. 2023). If they are to proceed at all, plaintiffs suing

federal-officer defendants must proceed under an implied

cause of action first established by the Supreme Court in

Bivens v. Six Unknown Named Agents of Federal Bureau

Appendix A

of Narcotics. 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d

619 (1971). To date, the Supreme Court has recognized

a Bivens cause of action in only three circumstances. In

Bivens itself, the Supreme Court recognized an implied

cause of action against six Federal Bureau of Narcotics

agents in their individual capacities. See generally id.

The agents had shackled the defendant in front of his

family, threatened to arrest his entire family, searched

his apartment without a search warrant, and arrested

him for alleged narcotics violations without a warrant

or probable cause. Id. at 389. The Supreme Court found

an implied cause of action for damages for the alleged

Fourth Amendment violation. Id. at 390–98. In Davis v.

Passman, the Supreme Court extended Bivens to create

an implied cause of action under the Fifth Amendment’s

Due Process Clause, which prohibits the federal

government from denying anyone the equal protection

of the law. 442 U.S. 228, 236, 99 S. Ct. 2264, 60 L. Ed. 2d

846 (1979). Specifically, it found a cause of action against

a congressman for firing his female secretary. Id. at 234.

Finally, in Carlson v. Green, the Supreme Court allowed

a prisoner’s estate to sue BOP officials for violating the

inmate’s Eighth Amendment rights by failing to treat the

prisoner’s asthma. 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed.

2d 15 (1980). The latter is akin to a § 1983 claim for Eighth

Amendment deliberate indifference to medical needs.

Since these decisions were handed down, the tide has

turned against Bivens. “The [Supreme] Court has made

clear that expanding the Bivens remedy to a new context

is an extraordinary act that will be unavailable in most

every case.” Mays, 70 F.4th at 202. And in the Supreme

Appendix A

Court’s most recent Bivens decision, Egbert v. Boule,

596 U.S. 482, 142 S. Ct. 1793, 213 L. Ed. 2d 54 (2022),

“the Supreme Court all but closed the door on Bivens

remedies.” Dyer v. Smith, 56 F.4th 271, 277 (4th Cir.

2022). It emphasized that “we have come ‘to appreciate

more fully the tension between’ judicially created causes

of action and ‘the Constitution’s separation of legislative

and judicial power.’” Egbert, 596 U.S. at 491 (quoting

Hernandez v. Mesa, 589 U.S. 93, 140 S. Ct. 735, 741, 206

L. Ed. 2d 29 (2020)). Thus, the Egbert court asserted that

“recognizing a cause of action under Bivens is ‘a disfavored

judicial activity,’” but chose not to dispense with Bivens

altogether. Id. (quoting Ziglar v. Abbasi, 582 U.S. 120,

121, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017)).

To determine whether a plaintiff’s claim may proceed

under Bivens, we conduct a two-step analysis:

First, we ask whether the case presents a

new Bivens context—i.e., is it meaningfully

different from the three cases in which the

Court has implied a damages action. Second,

if the claim arises in a new context, a Bivens

remedy is unavailable if 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. If there is even a

single reason to pause before applying Bivens

Appendix A

in a new context, a court may not recognize a

Bivens remedy.

Egbert, 596 U.S. at 492 (internal quotations omitted).

With respect to the first step, the Supreme Court

has counseled that “[a] claim may arise in a new context

even if it is based on the same constitutional provision

as a claim in a case in which a damages remedy was

previously recognized.” Hernandez v. Mesa, 589 U.S.

93, 140 S. Ct. 735, 743, 206 L. Ed. 2d 29 (2020). “A case

might differ in a meaningful way because of the rank of

the officers involved; the constitutional right at issue; the

generality or specificity of the official action; the extent

of judicial guidance as to how an officer should respond to

the problem or emergency to be confronted; the statutory

or other legal mandate under which the officer was

operating; the risk of disruptive intrusion by the Judiciary

into the functioning of other branches; or the presence of

potential special factors that previous Bivens cases did

not consider.” Ziglar v. Abbasi, 582 U.S. 120, 139–40, 137

S. Ct. 1843, 198 L. Ed. 2d 290 (2017).

Fields concedes that this case arises in a new context.1

We are thus faced solely with step two and must determine

1. It is perhaps arguable that this case arises in the same

context as Carlson. Like this case, Carlson was a suit against

prison officials whose individual conduct threatened the health

of an inmate. But because Fields concedes that his case arises in

a new context, he has waived that argument. See Grayson O Co.

v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party

waives an argument by failing to present it in its opening brief or

by failing to develop its argument—even if its brief takes a passing

shot at the issue.” (cleaned up)).

Appendix A

“whether there is any reason to think that Congress

might be better equipped to create a damages remedy”

for Fields’s excessive force claim. “Put another way, the

most important question is who should decide whether to

provide for a damages remedy, Congress or the courts?”

Egbert, 596 U.S. at 491–92 (internal quotation omitted).

Since Egbert, this Court has declined to extend Bivens

in a number of cases brought by federal prison inmates

against BOP officials. In these cases, we concluded that

many of the same special factors counseled against

extending Bivens: (1) Congress’s decision to omit an

individual capacity damages remedy from the Prison

Litigation Reform Act (PLRA); (2) the existence of

alternative remedies; and (3) the potential for systemwide

consequences.

We have given great weight to Congress’s decision

to omit an individual-capacity damages remedy from the

PLRA because separation of powers is a central concern in

deciding whether to extend Bivens. That decision, we said,

“speaks volumes and counsels strongly against judicial

usurpation of the legislative function.” Bulger v. Hurwitz,

62 F.4th 127, 141 (4th Cir. 2023) (declining to extend

Bivens to an inmate’s Eighth Amendment claims that

BOP officials failed to protect him against attack by fellow

inmates and transferred him to a “violent” facility); Mays,

70 F.4th at 206 (declining to extend Bivens to an inmate’s

Fifth Amendment equal protection and due process claims

stemming from alleged racial discrimination by the

10a

Appendix A

inmate’s supervisor in the BOP’s employment program).

Relatedly, because courts “may not fashion a

Bivens remedy if Congress has already provided, or

has authorized the Executive to provide, ‘an alternative

remedial structure,’” Egbert, 596 U.S. at 493 (quoting

Ziglar, 582 U.S. at 137), our prior cases pointed to the

BOP’s Administrative Remedy Program (ARP) as

another factor counseling against extending Bivens. We

have said that the existence of an alternative remedial

scheme prevents us from extending Bivens, even when

that scheme does “not provide complete relief.” Tate v.

Harmon, 54 F.4th 839, 847 (4th Cir. 2022) (quoting Egbert,

596 U.S. at 493). That is true even when the alternate

remedies cannot provide a form of relief that would be

available in court. See Earle v. Shreves, 990 F.3d 774, 777

(4th Cir. 2021) (“While these alternate remedies do not

permit an award of money damages, they nonetheless

offer the possibility of meaningful relief and therefore

remain relevant to our analysis.”); Schweiker v. Chilicky,

487 U.S. 412, 425, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988)

(declining to imply a Bivens remedy for due process

claims arising from the denial of Social Security benefits

despite the unavailability of compensatory damages

under an alternate remedial scheme). Finally, we have

noted that “[t]he potential unavailability of a remedy in a

particular circumstance does not warrant supplementing

that scheme.” Bulger, 62 F.4th at 141 (declining to extend

Bivens in part because of the ARP despite the fact that

the inmate “did not have enough time to avail himself of

the remedies offered by the ARP before his transfer to

[a different facility] or before he was killed”).

11a

Appendix A

Our precedents also point to the potential for

systemwide consequences that may result from extending

Bivens. A llow ing “broad-based, systemic claim[s]

against an array of federal officials,” we said, would risk

“expand[ing] prison officials’ liability from previous Bivens

actions to systemic levels, potentially affecting not only

the scope of their responsibilities and duties but also their

administrative and economic decisions.” Tate, 54 F.4th at

846. In contrast to the claims in Carlson (that the prison

officials were deliberately indifferent when they failed

to treat the inmate’s asthma), which were “narrow and

discrete,” and thus “implicat[ed] well-established criteria

for liability and damages,” id., claims based on conditions

of confinement, see Tate, 54 F.4th at 841, failure to protect

by moving an inmate to a “violent facility,” see Bulger,

62 F.4th at 133, or discrimination in BOP employment

programs, see Mays, 70 F.4th at 200, implicate “‘not only

the scope of [each official’s] responsibilities and duties’ but

also the organizational policies, administrative decisions,

and economic concerns inextricably tied to inmate transfer

and placement determinations.” Bulger, 62 F.4th at 138

(quoting Tate, 54 F.4th at 846).

What’s more, recognizing these claims “could open

the door for increased litigation over the myriad decisions

made every day regarding inmate discipline, transfer,

and employment across the entire BOP system.” Mays,

70 F.4th at 206. The uncertainty about the extent of these

systemwide consequences foreclosed relief. Id. Thus, in

Tate, Bulger, and Mays, our conclusion that the claims

risked a cascade of systemwide consequences hinged on

the fact that those claims implicated systemic decision-

12a

Appendix A

making and a broad swath of legitimate every-day BOP

decisions.

But these factors do not apply with equal force to

Fields’s case, and thus they do not bar his claim.

IV.

Fields alleges that while he was being held in the

Special Housing Unit, he was subject to egregious physical

abuse with no imaginable penological benefit. The officers’

alleged conduct amounts to a clear-cut constitutional

violation that would easily withstand a motion to dismiss in

a § 1983 case. Then, adding insult to injury, rogue officers

intentionally withheld the administrative remedies that

the executive branch has implemented to redress such

violations. This must be a rare case. See Oral Arg. at

26:17–27:00 (the government conceding that the egregious

abuse alleged here is rare and cannot be condoned). If the

officers’ conduct alleged here is a frequent occurrence in

prisons across the country, it would be a telling indictment

of the American carceral system. In such a case, where an

inmate brings a claim against individual, front-line officers

who personally subjected the plaintiff to excessive force in

clear violation of prison policy, and where rogue officers

subsequently thwarted the inmate’s access to alternative

remedies, no special factors counsel against providing a

judicial remedy.

Preliminarily, because Fields’s allegations are

exclusively against the individual front-line officers who

subjected him to excessive force, the BOP, the warden,

13a

Appendix A

and the other supervisory officials named in the complaint

must be dismissed. Fields himself concedes the BOP is not

subject to suit under Bivens and he frames the allegations

and claim as being only “against individual officers who

commit[ed] isolated acts of abuse.” Reply Br. at 1. While

Fields contends that he can join supervisory officers as

defendants pursuant to Federal Rule of Civil Procedure

20 even if his claim is against the front-line officers, that is

true only if he has a cause of action against the supervisory

officers. See Fed. R. Civ. P. 20 (permitting joinder of

defendants against whom “a right to relief is asserted”).

Because the allegations and Fields’s arguments on appeal

clearly present his claim as being against the front-line

officers only, he cannot join supervisory officers under

Rule 20. Accordingly, we affirm the district court’s opinion

in so far as it dismissed the claims against the BOP and

supervisory officers, and we proceed with our Bivens

analysis only with respect to the individual front-line

officers who personally subjected Fields to excessive force.

Under the circumstances presented here, the risk of

systemwide consequences identified in our prior cases is

negligible. In Tate, Bulger, Mays, and Earle, our concern

about systemwide consequences stemmed from the fact

that the claims in those cases implicated prison policies

and broader systemic concerns. See Tate, 54 F.4th at 846;

Bulger, 62 F.4th at 141–42; Mays, 70 F.4th at 206; Earle,

990 F.3d at 780. That concern was heightened because

those claims implicated issues of prison administration

over which the BOP has broad discretion, requiring

deference from the judiciary. See Bulger, 62 F.4th at 140–

41 (noting Congress’s choice to give the BOP discretion

14a

Appendix A

over inmate placement, inmate transfer, and housing

decisions); Mays, 70 F.4th at 205 (stating that the BOP

must be given deference concerning prison discipline and

inmate employment); Earle, 990 F.3d at 781 (stating that

extending Bivens for retaliation claims “could lead to an

intolerable level of judicial intrusion into an issue best left

to correctional experts”).

By contrast, Fields challenges only the individual

conduct of rogue prison officers. His claim implicates no

prison policy. 2 In fact, part of his argument rests on the

2. The dissent asserts that the “individual instances of

discrimination” challenged in Mays likewise concern only

improper conduct by individual prison officials. The dissent’s

characterization of Mays ignores the fact that Mays also involved

a procedural due process claim for the inmate’s administrative

detention and transfer to another institution without “notice or

an opportunity to rebut the allegations.” Mays, 70 F.4th at 201.

That allegation certainly concerns systemic decision-making, not

just individual discriminatory action. In accusing us of “cleverly

reframe[ing] Mays,” Dissent Op. at 31 n.10, it is the dissent itself

that misconstrues our precedent. But even if the dissent were

correct that Mays concerned only an allegation of discrimination,

determining whether such an allegation is viable requires probing

the entire system within which the discrimination occurred, not

just the individual officer’s conduct toward the plaintiff. By way

of illustration, in Title VII cases, it is not enough for plaintiffs to

allege how they were treated; to prove their claims, plaintiffs must

additionally point to comparators who were treated differently.

See, e.g., Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir.

2019). But determining whether force was excessive is a much

narrower inquiry, which can be resolved with reference only to

the facts of the incident of alleged excessive force. Consequently,

this claim, unlike a discrimination claim like the one presented in

15a

Appendix A

fact that the officers acted in violation of the relevant

prison policy. See Opening Br. at 16; see also Younger v.

Crowder, 79 F.4th 373, 384 (4th Cir. 2023) (concluding that

prison official’s violation of prison policy was evidence of

Eighth Amendment violation in § 1983 case). Thus, his

claim does not masquerade as a “vehicle for altering an

entity’s policy,” Ziglar v. Abbasi, 582 U.S. 120, 140, 137

S. Ct. 1843, 198 L. Ed. 2d 290 (2017) (internal quotations

omitted), but rather constitutes an appropriate attempt

to ensure compliance with the entity’s policy.

Similarly, because the defendant officers are alleged

to have violated prison policy, they lacked the discretion

to act as they did. Because Fields’s claim is “narrow and

discrete” in that it concerns only the conduct of individual

prison officers who acted in violation of prison policy, it

more closely resembles Carlson than this Court’s recent

precedents. See Tate, 54 F.4th at 847 (distinguishing

Tate’s claims from those in Carlson on the basis that

Tate’s claims were not “narrow and discrete”). In light

of the body of excessive force precedent that has been

developed in the § 1983 context, Fields’s claim, like that

in Carlson, also implicates “well-established criteria for

liability and damages,” further limiting the potential for

systemic consequences presented when the judiciary

involves itself in an area where murky standards indicate

broad BOP discretion. See id. As such, claims like the

one presented in this case do not present the risk of

systemwide consequences that our prior cases highlighted

Mays, is unique among our precedents in that it is “narrow and

discrete.” See Tate, 54 F.4th at 847.

16a

Appendix A

because they do not implicate systemic policies or unduly

impose judicial oversight in areas over which the BOP has

discretion.

To the extent that extending scrutiny to new

categories of conduct or defendants implicates the

potential for systemwide consequences, see Bulger, 62

F.4th at 140, this case’s similarity to Carlson alleviates

those concerns. Carlson already provides a cause of action

against individual officers who fail to act to respond to an

inmate’s medical needs. Requiring individual officers to

refrain from acting affirmatively to endanger an inmate’s

health implicates the same principles and affects the same

defendants.

Relatedly, the impact on prison officials’ discharge

of their duties will be minimal. Because Fields’s claim

is brought only against front-line officers and does not

implicate any systemic policies, by its very nature it

cannot impact the discharge of supervisory officers’

duties. And though the government raises the specter

of frivolous litigation that could have a chilling effect on

front-line officers’ discharge of their duties, that concern is

overstated. This case itself demonstrates why. The PLRA

directs courts to prescreen cases brought by inmates

“before docketing, if feasible.” 28 U.S.C. § 1915A(a). As

happened here, that means many cases will be dismissed

before officers are even served. If officers never learn of

cases filed against them, that litigation cannot have an

impact on the discharge of their duties.

Next, though this Court has declined to extend Bivens

17a

Appendix A

to cases brought by federal inmates in the past, it has done

so on the theory that inmates have access to alternative

remedies. But that reasoning does not apply here—Fields

lacked access to alternative remedies because prison

officials deliberately thwarted his access to them. The

government argues that Bulger squarely forecloses any

reliance on the unavailability of an administrative remedy

in determining whether to extend Bivens. But Bulger

does not properly apply. In Bulger, the inmate could not

avail himself of the ARP because he died before he had a

chance to file a formal grievance. Bulger, 62 F.4th at 141.

We said that this special factor still counseled against a

Bivens extension, despite the fact that the inmate’s estate

could not itself file a grievance through the ARP process

and the inmate had not had time to do so. Id. But that

holding concerned the inadequacy of the ARP itself, which

was not broad enough in that case to provide the desired

relief. Bulger, 62 F.4th at 141.

By contrast, here, the ARP is not the problem. The

system put in place by the executive has the capacity to

provide relief to Fields. Instead, the problem was the

intentional improper conduct of the individual officers,

which deprived Fields of access to the ARP. Unlike in

Bulger, what is at issue here is not the ARP’s adequacy or

whether Fields can obtain the remedy he seeks through

the ARP. Rather, the question is whether the ARP is

operational, such that it can provide any remedy to any

prisoner at all. And because Fields has alleged that

officers intentionally subverted the operation of the ARP,

its technical existence does not bar Fields’s Bivens claim.

Permitting a Bivens claim to proceed where rogue

18a

Appendix A

officers intentionally subverted alternative remedies

does not improperly arrogate power to the judiciary. “So

long as Congress or the Executive has created a remedial

process that it finds sufficient to secure an adequate

level of deterrence, the courts cannot second-guess that

calibration by superimposing a Bivens remedy.” Egbert,

596 U.S. at 498. But when rogue officers thwart the

inmate’s access to alternative remedies, it is the officers’

conduct that interferes with the balance struck by the

existing remedial scheme. As the government conceded

at oral argument, no court (in this Circuit or otherwise)

has ever before been presented with a case in which

one of the allegations was that the grievance process

was intentionally withheld from the inmate. Oral Arg.

at 30:52–32:04. But in the unfortunate circumstance,

such as this, where that scenario does arise, providing a

judicial remedy is not a matter of “second-guess[ing the]

calibration” effected by the coordinate branches because

that calibration has already been disrupted. See id. Far

from trampling on Congress’s or the Executive’s authority,

the judiciary secures the objectives of the wrongfully

displaced remedial scheme by stepping in.

The government also contends that the complaint

indicates that Fields may have had access to and in fact

did access some administrative remedies. Therefore, it

argues, whatever may be true of purported excessive force

claims without access to administrative remedies more

broadly, Fields himself had access. But because Fields’s

complaint was filed pro se, we are required to construe it

liberally and make all possible inferences in Fields’s favor.

See Shaw, 59 F.4th at 126. Viewing the complaint through

19a

Appendix A

that lens, it adequately alleges that all administrative

remedies were withheld. 3

Finally, though the PLRA may counsel against

extending Bivens in cases brought by inmates in federal

prisons as a general matter, it cannot be true that it bars

such claims in every case. It certainly does not counsel

against extending Bivens in this case. When the PLRA

was enacted in 1996, Carlson was already on the books.

This Court has rightly noted that the PLRA’s silence

concerning an individual damages remedy for federal

inmates “speaks volumes and counsels strongly against

usurpation of the legislative function.” Bulger, 62 F.4th

at 141. But had Congress intended to bar all Bivens

claims brought by federal inmates, it could easily have

done so by statutorily overruling Carlson. Congress’s

decision to leave Carlson intact also “speaks volumes.”

3. The government also argues that, even putting aside

administrative remedies, the Federal Tort Claims Act provides an

alternative remedy that bars a Bivens claim. But that argument

is foreclosed by the Supreme Court’s decision in Carlson, where

it stated that the FTCA “contemplates that victims of the kind

of intentional wrongdoing alleged in this complaint shall have

an action under FTCA against the United States as well as a

Bivens action against the individual officers.” Carlson, 446 U.S.

at 20 (emphasis added). Though this pronouncement is in tension

with more recent Supreme Court precedent, it has never been

directly overruled. Supreme Court’s decisions “remain binding

precedent until [the Supreme Court] see[s] fit to reconsider them,

regardless of whether subsequent cases have raised doubts about

their vitality,” Bosse v. Oklahoma, 580 U.S. 1, 3, 137 S. Ct. 1, 196

L. Ed. 2d 1 (2016) (internal quotation omitted), so we are bound

by this ruling.

20a

Appendix A

See id. Carlson’s continued existence thus belies the claim

that the PLRA bars Bivens actions by federal inmates

wholesale.4

The question then is whether the PLRA prohibits an

implied cause of action in this case. As we explain below,

because Fields alleged that no alternative remedy was in

fact available, the theoretical existence of administrative

remedies cannot bar his recourse to the judiciary to

obtain a remedy. This balance between the preference for

administrative remedies and the recognition that rogue

actors can make administrative remedies functionally

inoperable is entirely in line with the PLRA. As a

general matter, the PLRA requires inmates to exhaust

administrative remedies that “are available” before filing

4. Contrary to the dissent’s assertion, see Dissent Op. at

24–25, we do not take Congress’s decision not to overrule Carlson

as a green light for implying new Bivens causes of action in the

prison context. We recognize, as the dissent also points out, that

the Supreme Court has rejected that approach. See Dissent Op.

at 25 (citing Hernandez, 589 U.S. at 111 n.9). The dissent takes

the Supreme Court’s admonition that Congress’s decision to leave

Carlson intact is “not a license to create a new Bivens remedy in

a context we have never before addressed,” Hernandez, 589 U.S.

at 111 n.9, as an affirmative instruction not to extend Bivens. But

that takes it too far. Rather, Congress’s decision to leave Carlson

intact is a neutral fact, telling us only what we already knew: that

Bivens extensions are “disfavored,” Ziglar, 582 U.S. at 121, but

that the proverbial door to a Bivens extension remains slightly

ajar. Cf. Egbert, 596 U.S. at 504 (Gorsuch, J., concurring). Because

Congressional silence on this question does not resolve the issue

one way or the other, we must look elsewhere to determine whether

Fields’s claim is one that can proceed through that proverbial door.

21a

Appendix A

a lawsuit. See 42 U.S.C. § 1997e(a). But while an inmate

“must exhaust available remedies,” they “need not exhaust

unavailable ones.” Ross v. Blake, 578 U.S. 632, 642,

136 S. Ct. 1850, 195 L. Ed. 2d 117 (2016). Crucially, the

Supreme Court has stated that an administrative remedy

is “unavailable” for purposes of the PLRA where, as

here, “prison administrators thwart inmates from taking

advantage of a grievance process through machination,

misrepresentation, or intimidation.” Id. at 644.

The PLRA permits prisoners to bring lawsuits

for physical injuries, see 42 U.S.C. § 1997e(e) (limiting

recovery only for “mental or emotional injury”), and

because the PLRA was enacted in an era where Bivens

extensions were more readily available than they are

today, the omission of an individual-capacity damages

remedy is not necessarily indicative of intent to prohibit

such a remedy. The purpose of the PLRA is to reduce

prisoner litigation, not do away with it entirely, and most

of its provisions are procedural, rather than substantive,

bars. Because the PLRA grants inmates access to the

courts where prison officials thwarted their ability to

utilize administrative procedures, permitting cases such

as this to proceed under Bivens does not “conflict with

Congress’s choice,” as expressed in the PLRA, concerning

the remedies and procedures available to aggrieved

inmates. See Bulger, 62 F.4th at 141.

For the foregoing reasons, we affirm in part and

reverse in part the district court’s dismissal of Fields’s

22a

Appendix A

claims. We affirm the dismissal of Fields’s excessive

force claim as to the BOP, USP Lee’s warden, and other

supervisory prison officials who were not personally

involved in the conduct alleged in the complaint. We

reverse and remand Fields’s excessive force claim as to

the individual officers who personally subjected Fields to

excessive force.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED

23a

Appendix A

RICHARDSON, Circuit Judge, dissenting:

My colleagues readily admit that “the tide has turned

against Bivens.” Majority Op. at 7. And before today’s

holding, one could well have believed that the Supreme

Court had effectively ended lower courts’ efforts to

recognize novel implied money-damages actions for

deprivations of constitutional rights. But my good friends

in the majority claim to see a bit of wiggle room in the

Supreme Court’s repeated admonitions. The wiggle room

they purport to detect, however, has been foreclosed by

both that Court and this one. Yet the majority charges

ahead. I must respectfully dissent.

In the forty-four years since the Supreme Court

decided Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64

L. Ed. 2d 15 (1980), it “has ‘consistently rebuffed’ every

request—12 of them now—to find implied causes of action

against federal officials for money damages under the

Constitution.”1 Tate v. Harmon, 54 F.4th 839, 843 (4th

1. See Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76

L. Ed. 2d 586 (1983); Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404,

76 L. Ed. 2d 648 (1983); United States v. Stanley, 483 U.S. 669,

107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987); Schweiker v. Chilicky,

487 U.S. 412, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988); FDIC v.

Meyer, 510 U.S. 471, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994); Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515, 151 L. Ed.

2d 456 (2001); Wilkie v. Robbins, 551 U.S. 537, 127 S. Ct. 2588,

168 L. Ed. 2d 389 (2007); Hui v. Castaneda, 559 U.S. 799, 130 S.

Ct. 1845, 176 L. Ed. 2d 703 (2010); Minneci v. Pollard, 565 U.S.

118, 132 S. Ct. 617, 181 L. Ed. 2d 606 (2012); Ziglar v. Abbasi, 582

U.S. 120, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017); Hernandez v.

Mesa, 589 U.S. 93, 140 S. Ct. 735, 206 L. Ed. 2d 29 (2020); Egbert

v. Boule, 596 U.S. 482, 142 S. Ct. 1793, 213 L. Ed. 2d 54 (2022).

24a

Appendix A

Cir. 2022) (quoting Hernández, 589 U.S. at 102). And this

Court has repeatedly observed that, while stopping short

of overturning Bivens itself, “[t]he [Supreme] Court has

made clear that expanding the Bivens remedy to a new

context is an ‘extraordinary act’ . . . that will be unavailable

‘in most every case.’” Mays v. Smith, 70 F.4th 198, 202 (4th

Cir. 2023) (quoting Egbert, 596 U.S. at 492, 497 n.3); see

Bulger v. Hurwitz, 62 F.4th 127, 136–37 (4th Cir. 2023);

Earle v. Shreves, 990 F.3d 774, 778 (4th Cir. 2021); Tate,

54 F.4th at 843–45.

When faced with a Bivens claim, therefore, we conduct

a “highly restrictive” twostep inquiry. Bulger, 62 F.4th

at 137. We first ask whether the claim arises in a “new

context,” that is, one different from those to which the

Supreme Court has already extended Bivens. Egbert,

596 U.S. at 492. This step need not detain us long because

Fields rightly concedes that his case arises in a new

context; the Supreme Court has never approved an implied

damages action for prisoners’ Eighth Amendment claims

for excessive force. See Ziglar, 582 U.S. at 149 (“[T]he

new-context inquiry is easily satisfied.”); Hernández, 589

U.S. at 102 (“[O]ur understanding of a ‘new context’ is

broad.”); id. at 103 (“A claim may arise in a new context

even if it is based on the same constitutional provision as a

claim in a case in which a damages remedy was previously

recognized.”).

So “we proceed to the second step and ask whether

there are any ‘special factors that counsel hesitation’ about

granting the extension.” Hernández, 589 U.S. at 102 (quoting

Ziglar, 582 U.S. at 136 (cleaned up)). There is no “exhaustive

list” of factors that counsel hesitation. Id. (quoting Ziglar, 582

U.S. at 139). Yet we are not without guidance. The Court has

25a

Appendix A

told us that “separation-of-powers principles” should anchor

our analysis. Id. (quoting Ziglar, 582 U.S. at 135). Courts

must cautiously defer to the nation’s lawmakers, who enjoy

the principal—perhaps sole—authority to invent new legal

causes of action for constitutional violations. See Egbert, 596

U.S. at 491–92 (“[A]bsent the utmost deference to Congress’

preeminent authority in this area, the courts ‘arrogat[e]

legislative power.’” (quoting Hernández, 589 U.S. at 100

(second alteration in original))); id. at 502–03 (Gorsuch, J.,

concurring in the judgment); Hernández, 589 U.S. at 100–01;

id. at 117–18 (Thomas, J., concurring); Ziglar, 582 U.S. at

135–36; Carlson, 446 U.S. at 27–28 (Powell, J., concurring);

id. at 36–44, 51–53 (Rehnquist, J., dissenting); Bivens, 403

U.S. at 427–30 (Black, J., dissenting). Accordingly, if “there is

any reason to think that Congress might be better equipped

to create a damages remedy” than the judiciary is, then

sanctioning a new Bivens action is inappropriate. Egbert,

596 U.S. at 492. And by “any reason,” the Court means “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.’” Id. at 496 (quoting Ziglar, 582 U.S. at

136). 2 Here, we have not just one reason, but three.

2. Congress will almost always be better equipped to create

a damages remedy than courts are. Egbert, 596 U.S. at 491

(“Congress is ‘far more competent than the Judiciary’ to weigh

[relevant] policy considerations.” (quoting Schweiker, 487 U.S. at

423)); id. at 504 (Gorsuch, J., concurring) (“[I]f the only question

is whether a court is ‘better equipped’ than Congress to weigh

the value of a new cause of action, surely the right answer will

always be no.”); Hernández, 589 U.S. at 101; Bivens, 403 U.S.

at 429 (Black, J., dissenting); see also Bush, 462 U.S. at 389

(“Not only has Congress developed considerable familiarity with

balancing governmental efficiency and the rights of employees, but

it also may inform itself through factfinding procedures such as

hearings that are not available to the courts.”). But a court need

26a

Appendix A

Congressional inaction notwithstanding congressional

attention. The first factor counseling hesitation is that

Congress has actively legislated in this area but has not

enacted a statutory cause of action for money damages. See

Ziglar, 582 U.S. at 148–49. Congress has been anything

but absent from, and anything but silent on, the subject

of prisoner litigation. See Mays, 70 F.4th at 206. The most

obvious example is the Prison Litigation Reform Act of

1995 (“PLRA”), “which made comprehensive changes to

the way prisoner abuse claims must be brought in federal

court.” Ziglar, 582 U.S. at 148. Despite having “specific

occasion to consider the matter of prisoner abuse and

. . . remed[ies for] those wrongs,” Congress has not—in

the PLRA or otherwise3 —“provide[d] for a standalone

not actually determine that Congress is better equipped in order

to refuse to recognize a new Bivens action. Given the deference

to the legislature’s primacy in this domain, a court need only find

a single reason to “think that Congress might be better equipped

to create a damages remedy.” Egbert, 596 U.S. at 492 (emphasis

added); see also id. at 496 (“[E]ven if there is the ‘potential’ [that

judicial intrusion is inappropriate], a court cannot afford a Bivens

remedy.” (quoting Ziglar, 582 U.S. at 140, 148)).

3. Congress evidently still has its eye on this issue. In early

July 2024, it passed and sent to the President’s desk for approval

the Federal Prison Oversight Act, H.R. 3019, 118th Cong. § 2(a)

(2024). The bill, which will presumably be signed any day now,

focuses on establishing independent oversight mechanisms and

improving transparency in the federal prison system. While it

creates a new Ombudsman position to receive prisoner complaints,

it conspicuously lacks a private money-damages action for

prisoners’ allegations of any constitutional violations.

27a

Appendix A

damages remedy against federal jailers.” Id. at 148–49.

The logical takeaway from Congress’s silence in an area

where it has otherwise been active is “that Congress did

not want a money damages remedy against” corrections

officers. Tun-Cos v. Perrotte, 922 F.3d 514, 527 (4th Cir.

2019); Schweiker, 487 U.S. at 423 (explaining the need

for “appropriate judicial deference to indications that

congressional inaction has not been inadvertent”). Thus

courts must not supply a damages remedy in its stead. See

Ziglar, 582 U.S. at 148–49; Mays, 70 F.4th at 206; Bulger,

62 F.4th at 141.

My colleagues acknowledge the PLRA’s silence with

respect to damages remedies. See Majority Op. at 9. But

they suggest that another form of congressional silence

negates that “special factor counseling hesitation”—the

fact that Congress did not statutorily overrule Carlson.

See Majority Op. at 18. The Supreme Court, however,

has expressly rejected that argument, holding that such

congressional inaction “certainly does not suggest” a

desire for “robust enforcement of Bivens remedies,” let

alone give “license to create a new Bivens remedy in a

context we have never before addressed.” Hernández,

589 U.S. at 111 n.9 (citation omitted).4

4. We do not know, of course, why Congress has failed to

overrule Carlson (or Bivens, or Davis v. Passman, 442 U.S.

228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979)). But Hernández

tells us that courts cannot use that failure as a reason to expand

Bivens. 589 U.S. at 111 n.9. Chief Justice Rehnquist provided

one possible reason for Congress’s passivity: It might “reflect

Congress’ understanding (albeit erroneous) that Bivens was a

constitutionally required decision.” Carlson, 446 U.S. at 33 n.2

(Rehnquist, J., dissenting).

28a

Appendix A

Moreover, in emphasizing congressional silence

following Carlson, the majority distorts the applicable

test and the precedent applying it. The question is not

whether “Congress intended to bar all Bivens claims” in a

particular area. Majority Op. at 18. Rather, the question is

whether “there are special factors counselling hesitation”

about creating a new money-damages action “in the

absence of affirmative action by Congress.” Ziglar, 582

U.S. at 136 (quoting Carlson, 446 U.S. at 18 (emphasis

added) (internal quotation marks omitted)). 5 In other

words, we do not presume the power to create a damages

remedy and then ask whether Congress explicitly forbade

us from doing so; we instead presume that courts should

not fashion legal remedies for constitutional violations

and do not find that presumption overcome so long as

“there is even a single reason to pause.” Mays, 70 F.4th

at 205 (quoting Egbert, 596 U.S. at 492). That Congress

looked intently and specifically at prisoner litigation and

offered no private damages remedy should give us a

reason to think that Congress might not want us to usurp

its authority and create one ourselves. Thus we should

not imply Fields’s requested cause of action. See John C.

5. Indeed, my colleagues’ asserted standard bears a

remarkable resemblance to the one the Court in Egbert expressly

repudiated. See 596 U.S. at 501 (“Passman indicated that a

damages remedy is appropriate unless Congress ‘explicit[ly]’

declares that a claimant ‘may not recover damages.’ . . . Now,

though, we defer to ‘congressional inaction’ if ‘the design of a

Government program suggests that Congress has provided

what it considers adequate remedial mechanisms.’” (first quoting

Passman, 442 U.S. at 246–47; and then quoting Schweiker, 487

U.S. at 423)).

29a

Appendix A

Jeffries, Jr., et al., Civil Rights Actions: Enforcing the

Constitution 34 (5th ed. 2022) (“The fact that Congress

ha[s] legislated in the area without providing a damages

remedy [i]s enough.” (citing Tun-Cos, 922 F.3d 514)).

This is not just my view. It’s what the Supreme Court

has told us, see Ziglar, 582 U.S. at 148–49, and what prior

panels of this Court have held, see Bulger, 62 F.4th at 141;

Mays, 70 F.4th at 206. Whether we consider the Supreme

Court’s precedent or our own, therefore, the law is clear:

The PLRA’s lack of a damages remedy is a special factor

counseling hesitation, even though Congress has not

overruled Carlson.6

6. In resisting the conclusion that the PLRA counsels against

recognizing a Bivens action, my colleagues also assert:

The PLRA permits prisoners to bring lawsuits for

physical injuries, see 42 U.S.C. § 1997e(e) (limiting

recovery only for “mental or emotional injury”),

and because the PLRA was enacted in an era where

Bivens extensions were more readily available than

they are today, the omission of an individual-capacity

damages remedy is not necessarily indicative of intent

to prohibit such a remedy.

Majority Op. at 19. But rather than grant prisoners a cause of

action or say what suits prisoners can bring, § 1997e(e) merely

specifies one class of suits that prisoners cannot bring: Prisoners

can’t bring a claim based only on mental or emotional injuries,

even if they have an express cause of action for damages under

some other law. And since the PLRA was designed to limit, not

promote, prisoner lawsuits, see Jones v. Bock, 549 U.S. 199,

203–04, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007), the majority’s

use of a negative inference here is particularly ill-conceived, see

N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 302, 137 S. Ct. 929, 197

30a

Appendix A

Existence of an alternative remedial scheme. The

second factor counseling hesitation is that an alternative

remedial scheme exists for aggrieved federal prisoners

like Fields. A “court may not fashion a Bivens remedy

if Congress has already provided, or has authorized

the Executive to provide, ‘an alternative remedial

structure.’” Egbert, 596 U.S. at 493 (quoting Ziglar, 582

U.S. at 137). Several remedial mechanisms are already

in place for inmates, “including suits in federal court for

injunctive relief and grievances filed through the BOP’s

Administrative Remedy Program.” Malesko, 534 U.S.

at 74. “This program provides . . . a[] means through

which allegedly unconstitutional actions and policies can

be brought to the attention of the BOP and prevented

from recurring.” Id. True, such forward-looking relief

differs from backward-facing money damages. But “it is

for Congress,” not us, “to decide whether to ‘augment[]’

any existing remedial scheme with a damages remedy.”

Mays, 70 F.4th at 206 (quoting Tun-Cos, 922 F.3d at 527

(alteration in original)); see Egbert, 596 U.S. at 498.

My colleagues dismiss this as a special factor

counseling hesitation on the grounds that “Fields lacked

access to alternative remedies because prison officials

L. Ed. 2d 263 (2017) (“The force of any negative implication . . .

depends on context.” (citation omitted)). Furthermore, the notion

that “Bivens extensions were more readily available than they are

today” is questionable. See Cornelia T.L. Pillard, Taking Fiction

Seriously: The Strange Results of Public Officials’ Individual

Liability Under Bivens, 88 Geo. L.J. 65, 66–68 (1999).

31a

Appendix A

deliberately thwarted his access to them.” Majority Op.

at 15. Yet that is “the wrong level of specificity” when

deciding whether to imply a Bivens action. Mays, 70

F.4th at 206; see Harper v. Nedd, 71 F.4th 1181, 1188

(9th Cir. 2023); cf. Stanley, 483 U.S. at 681. We cannot

myopically ask “whether Bivens relief is appropriate

in light of the balance of circumstances in a ‘particular

case’”; instead, we must “ask ‘[m]ore broadly’ whether

there is any reason to think that ‘judicial intrusion’ into a

given field might be ‘harmful’ or ‘inappropriate.’” Egbert,

596 U.S. at 496 (quoting Stanley, 483 U.S. at 681, 683

(alteration in original)); see Bush, 462 U.S. at 388. For

instance, the appellant in Bulger argued that the BOP’s

administrative remedies did not militate against finding

a Bivens remedy because he did not have time to avail

himself of them. 62 F.4th at 141.7 We declined to recognize

a Bivens remedy even though the specific circumstances

precluded Bulger’s access to the administrative remedial

7. I cannot agree with my colleagues’ depiction of Bulger as

simply raising the issues of whether the administrative remedy

program was “broad enough . . . to provide the desired relief”

or “whether [Bulger] c[ould] obtain the remedy he s[ought]

through the” program. Majority Op. at 16. Bulger did not argue,

for example, that the administrative remedy program was

“inadequate” because he wanted money damages, as opposed to

the other forms of relief the program provided. Instead, he argued

that he “had no real opportunity to initiate any sort of formal

grievance process.” Bulger, 62 F.4th at 141 (emphasis added). In

other words, Bulger asserted that the administrative remedy

program was insufficient because it was not “operational, such

that it c[ould] provide any remedy” for him. Majority Op. at 16.

Fields’s contention is not meaningfully different from Bulger’s.

32a

Appendix A

scheme. As we explained, the BOP’s “elaborate remedial

system” counseled against “the creation of a new judicial

remedy,” and “[t]he potential unavailability of a remedy in

a particular circumstance does not warrant supplementing

that scheme” ourselves. Id. (quoting Tun-Cos, 922 F.3d

at 527); see also Harper, 71 F.4th at 1188; Sargeant v.

Barfield, 87 F.4th 358, 368 (7th Cir. 2023)8; Pinson v. U.S.

Dep’t of Just., 514 F. Supp. 3d 232, 243–44 (D.D.C. 2021).9

Consequences of implying the Bivens remedy. Finally,

the consequences of allowing Fields’s requested relief cut

against extending Bivens. We avoid permitting a Bivens

remedy when doing so would “‘impose liability on prison

officials on a systemic level’ and amount to a ‘substantial

burden’ on government officials.” Mays, 70 F.4th at 206

8. Compare Majority Op. at 17 (“[N]o court (in this Circuit

or otherwise) has ever before been presented with a case in

which one of the allegations was that the grievance process was

intentionally withheld from the inmate.”), with Sargeant, 87 F.4th

at 368 (“[Sargeant] also maintains that the grievance process was

functionally unavailable to him: Barfield retaliated against him

because he filed a grievance.”), and Pinson, 514 F. Supp. 3d at

243 (“Pinson argues that the [administrative remedy program]

was effectively unavailable to her because BOP officials refused

to investigate her complaints.”).

9. As a last argument, my colleagues note that an inmate

need not exhaust unavailable remedies under the PLRA. Majority

Op. at 19. I fail to see how an excuse for failure to exhaust, which

allows a prisoner to sue under a statutory scheme that does not

provide a cause of action for money damages, somehow greenlights

the creation of such a remedy here.

33a

Appendix A

(quoting Bulger, 62 F.4th at 141); see Ziglar, 582 U.S. at

136. By authorizing a Bivens action for excessive force

under the Eighth Amendment, our Court opens the door

for a multitude of cases each year wherein prisoners claim

excessive force in hopes of securing monetary damages.

And even if we were not confident in that forecast,

uncertainty about the broader ramifications of devising

a Bivens remedy alone is a special factor counseling

hesitation. Egbert, 596 U.S. at 493; Mays, 70 F.4th at 206.

That’s because federal courts “are ill-suited to ‘predict

the systemwide consequences of recognizing a cause of

action under Bivens.’” Bulger, 62 F.4th at 142 (quoting

Egbert, 596 U.S. at 493). Such a cost-benefit analysis is

for Congress to make. Id.; supra n.2.

My colleagues—who seem to think they, unlike other

federal judges, are well-equipped for this inquiry—give

several reasons why their holding will not lead to systemic

consequences. To start, they say we can rest assured

because the officers who Fields alleges violated his

constitutional rights did so by going “rogue.” See Majority

Op. at 13–15. They explain that the officers who beat

Fields on November 10 did so in clear violation of BOP

policies about the treatment of prisoners. Id. at 13–14.

And because no prison policy is directly implicated, they

conclude, expanding Bivens here won’t have systemic

repercussions. Id.

But this conclusion rests on a misreading of precedent

and another misconception of the appropriate level of

34a

Appendix A

generality for our inquiry. Contrary to the majority’s

representations, we have not found systemic consequences

that caution against expanding Bivens only in those cases

involving challenges to prison policies or the actions of

officials acting in compliance with those policies. In fact,

the prisoner in Mays argued that a Bivens remedy for his

Fifth Amendment claims wouldn’t substantially burden

prison officials on a systemic scale because he sought only

to redress “individual instances of discrimination and

law enforcement overreach.” 70 F.4th at 206. It’s hard to

imagine that the corrections officers who Mays alleged

placed him in administrative detention, fired him from

a prison job, and transferred him to a different prison

because of his race acted pursuant to prison policy. See

id. at 201. Still, we rejected Mays’s argument and declined

to expand Bivens, in part because doing so “would almost

certainly ‘impose liability on prison officials on a systemic

level’ and amount to a ‘substantial burden’ on government

officials.” Id. at 206 (quoting Bulger, 62 F.4th at 141).10

10. The majority cleverly reframes Mays as being about

prison policies rather than rogue officers by noting that Mays

said the BOP is granted discretion over “inmate discipline and

employment.” Majority Op. at 13 (citing Mays, 70 F.4th at 205).

What my colleagues seem to miss (aside from the actual allegations

in Mays, of course) is that Fields’s allegations also involve matters

of inmate discipline over which prison officials have discretion—

his treatment followed his failure to carry his movement pass

as required and his alleged battery of a corrections officer. See

id. at 4 (“Appellees argue that the officers’ actions were justified

because Fields initiated the scuffle.”). [J.A. 10-11.] So if Mays

indeed “implicated prison policies and broader systemic concerns,”

id. at 13, so too does this case.

35a

Appendix A

The upshot is that we have recognized that even

prisoners’ suits alleging individual officers “went

rogue”—i.e., acted arguably or even clearly in violation of

applicable BOP policy—can have systemic ramifications

that warn against implying a legal remedy. The reason

we have recognized as much is that we aren’t concerned

with the consequences of the case before us, but rather

the consequences of creating a new damages remedy.

See id. Sure, allowing Fields’s claim to go forward may

only directly affect several “rogue” corrections officers.

But expanding Bivens to afford a remedy for Eighth

Amendment excessive-force claims will impact virtually

every prisoner and every prison official in our Circuit.

The former will now be able to bring cognizable damages

actions alleging the latter used excessive force; and the

latter will constantly have to assess the risk of a lawsuit,

possibly keeping them from “taking urgent and lawful

action” when necessary to ensure prison security and

prisoner safety. Ziglar, 582 U.S. at 145; see Carlson, 446

U.S. at 47 (Rehnquist, J., dissenting).

This brings us to the majority’s second attempt

to dismiss the systemic effects its holding will have.

According to it, “[t]he PLRA directs courts to prescreen

cases brought by inmates ‘before docketing, if feasible,’”

so “many cases will be dismissed before officers are even

served”; thus, there will be no burden on those officers.

Majority Op. at 15 (quoting 28 U.S.C. § 1915A(a)). This

ignores the facts that: (1) as just explained, the risk of

suit alone places a substantial burden on prison officials

36a

Appendix A

that weighs against implying a Bivens remedy; and (2) the

PLRA’s screening procedure would by no means prevent

the docketing of a deluge of suits against prison officials.

When evaluating whether a prisoner’s complaint fails to

state a claim under the PLRA’s screening provision, the

court accepts his factual allegations as true. See, e.g.,

De’Lonta v. Fulmore, 745 F. Supp. 2d 687, 690 (E.D. Va.

2010). All a prisoner must do to state a claim under today’s

holding, therefore, is allege that corrections officers used

excessive force against him and later denied him access

to administrative remedies (even if the latter allegations

are contradictory and vague).11 Cf. Egbert, 596 U.S. at 500

(“It is easy to allege that federal employees acted beyond

the scope of their authority when claiming a constitutional

violation.”). Suits will be docketed—and prison officials

subjected to the costs of actual litigation—as long as those

two allegations are present.

11. I do not mean to suggest that prisoners will simply

fabricate allegations, though of course some of that misbehavior

is inevitable. But they could (like Fields) augment their excessiveforce claims with vague allegations about obstruction and omit

crucial context. For example, “my unit supervisors prevented

me from accessing the administrative remedy program”—

temporarily, because I was in solitary confinement for harming

another inmate or a corrections officer. Or, “my unit supervisors

prevented me from accessing the administrative remedy

program”—because I previously filed fifty frivolous grievances

and triggered a restriction. Or, “my unit supervisors prevented

me from accessing the administrative remedy program”—because

they had already addressed my grievances in response to my

verbal complaints.

37a

Appendix A

Finally, my colleagues say, “[t]o the extent that

extending scrutiny to new categories of conduct or

defendants implicates the potential for systemwide

consequences, . . . Carlson already provides a cause

of action against individual officers who fail to act to

respond to an inmate’s medical needs.” Majority Op. at

15. This is baffling. The entire point of our analysis is to

closely evaluate the propriety of extending Bivens to a

new context, i.e., one that “is different in a meaningful

way from previous Bivens cases decided by th[e] Court.”

Ziglar, 582 U.S. at 139. The majority turns the inquiry on

its head, finding that Fields’s “new context” is a benefit,

not a hinderance, to his claim.

***

As of now, the Supreme Court has chosen to leave its

three approved Bivens causes of actions in place while

effectively directing that lower courts should not create

new ones. But given even the slightest crack in the door

that the Court’s beleaguered precedents leave, inferior

courts continue to ignore the directive to stop extending

Bivens. A faithful application of our precedent and the

Supreme Court’s leads squarely to the conclusion that

we cannot create a new Bivens action here. But perhaps

the majority’s holding to the contrary shows it’s time to

simply shut the Bivens door completely. In any event, I

respectfully dissent.

38a

APPENDIX B — Appendix

MEMORANDUM

OPINION

OF THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA,

ROANOKE DIVISION, FILED JANUARY 31, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

Civil Action No. 7:22-cv-00021

ANDREW FIELDS, III,

Plaintiff,

FEDERAL BUREAU OF PRISONS, et al.,

Defendants.

Filed January 31, 2023

MEMORANDUM OPINION

By: Elizabeth K. Dillon

United States District Judge

Plaintiff Andrew Fields, III, an inmate in the custody

of the Bureau of Prisons (BOP) and proceeding pro se,

filed this civil rights complaint, presumably relying on

Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). He has paid the full

filing fee and thus is responsible for effecting service. But

39a

Appendix B

Fields has filed a motion requesting that the United States

Marshal Service execute service of process for him, which

is pending. (Dkt. No. 33.)

Additionally, and despite Fields’s payment of the full

filing fee, his complaint is subject to screening under 28

U.S.C. § 1915A(a). Under that statute, the court must

conduct an initial review of a “complaint in a civil action

in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28

U.S.C. § 1915A(a). The court must “dismiss the complaint,

or any portion of the complaint,” if it is frivolous, fails to

state a claim on which relief may be granted, or “seeks

monetary relief from a defendant who is immune from

such relief.” 28 U.S.C. § 1915A(b)(1)-(2).

In conducting its review, the court must give the

pleadings a liberal construction and hold them to a less

stringent standard than formal pleadings drafted by

lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam). Liberal construction does not mean, however, that

the court can ignore a clear failure in pleadings to allege

facts setting forth a claim cognizable in a federal district

court. See Weller v. Dep’t of Social Servs., 901 F.2d 387,

391 (4th Cir. 1990).

Applying these standards to Fields’s complaint, the

court determines that it fails to state a claim for which

relief can be granted. Many of his allegations fail to state

a constitutional violation, but the court also concludes that

there is no damages remedy under Bivens for his claims.

Accordingly, this case will be dismissed, and Fields’s

40a

Appendix B

motion requesting service (Dkt. No. 33) will be denied

as moot.

FACTUAL BACKGROUND

Fields names as defendants the Bureau of Prisons

(BOP), the Warden of USP Lee, and more than two dozen

other officers or personnel at USP Lee. In an introductory

paragraph to his complaint, he explains that he is alleging

a conspiracy by defendants to deprive him of his rights by

committing unlaw ful cr uel and unusual

punishment acts such as: denying plaintiff

access to his legal materials, mail tampering,

retaliatory excessive force for engaging in

protected conduct of accessing the courts and

other outside prison agencies, torture while

in ambulatory restraints, [and] malicious

prosecution. [A]nd he was placed in punitive

segregation where he received falsified incident

reports and [was] subjected to staged gladiator

fights in the Special Housing Unit.

(Compl. 2, Dkt. No. 1.)1

Fields lists two legal claims, the first of which appears

to have sub-parts. He describes his first claim as “Cruel

and Unusual Punishment-Retaliatory Acts of Excessive

Force for Engaging in Protected Conduct.” (Id. at 21.) He

1. The court has corrected spelling and grammatical errors

when quoting from the complaint.

41a

Appendix B

describes his second claim as “Denying One the Right to

Seek Redress via the U.S.P.-Lee Grievance Procedure,

Denying Plaintiff Access to His Legal Materials and

Legal Forms.” (Id.) As to both claims, he alleges that

defendants violated his rights under the “First, Second,

Fourth, Fifth, and Fourteenth Amendments.” (Id.)

In terms of specific facts, Fields alleges first that

he was falsely accused of misconduct, apparently in

retaliation for sending a letter complaining about another

institution. Then, based on the false charge, he was

taken to the Special Housing Unit (SHU), also known as

“the hole.” As officers handcuffed him, they confiscated

property, including legal documents, prescription glasses,

and shoes, which he never received back. He claims that,

while he was being escorted, a group of officers began

punching him in the face with closed fists repeatedly until

he fell to the floor. They then stomped on him with steel-toe

boots and kicked and punched him in the face repeatedly,

until he was semi-conscious. (Id. at 3-7.)

According to Fields, officers also used excessive force

when placing him in the SHU cell and later when placing

him in restraints, after a female officer falsely told other

officers Fields was in his observation cell masturbating.

Then, each time officers came into his cell to check on his

ambulatory restraints, they used excessive force again,

including one incident where his face was slammed into the

wall and his tooth was knocked loose. After the incident

was over, he claims in conclusory fashion that he was

denied medical treatment for the results of the “torture,”

which included severe headaches with swelling around his

head and overall body pain. (Id. at 18.)

42a

Appendix B

In his second claim, Fields asserts that he was

denied the right to seek redress via USP Lee’s grievance

procedure, was denied access to his legal materials and

legal forms, and that certain defendants engaged in mail

mishandling and “delayed transferring.” (Id.) He also has

not received back some of the other property that was

taken from him, such as his prescription eye glasses. (Id.

at 19.)

II. DISCUSSION

Many of Fields’s Allegations Fail to State Any

Cognizable Constitutional Claim.

Many of Fields’s allegations are insufficient to state

a violation of any constitutional rights. 2 For example,

he claims that defendants interfered with his ability to

file grievances. While allegations of such inference may

be relevant to whether he appropriately exhausted his

administrative remedies, they fail to state a violation of

his constitutional rights. Booker v. S.C. Dep’t of Corr.,

855 F.3d 533, 542 (4th Cir. 2017) (explaining that inmates

do not have a “constitutional entitlement to and/or due

process interest in accessing a grievance procedure”).

Fields also alleges that his legal property was taken

or legal mail was tampered with, and he asserts that his

access to court was hampered, presumably in violation

of his First Amendment rights. But because he does not

2. Regardless, and as discussed in the text with regard to

his excessive force and retaliation claims, the court concludes that

there is no Bivens-type remedy for these other claims, either.

Thus, they are subject to dismissal on this ground, as well.

43a

Appendix B

allege that any particular lawsuit or case was affected by

the interference with his mail or by the loss of his legal

papers, he fails to state a First Amendment violation

based on a denial of access to courts. See Lewis v. Casey,

518 U.S. 343, 351 (1996) (noting that to state a claim, a

plaintiff must allege facts to show that defendants actually

“hindered his efforts to pursue” a nonfrivolous legal

claim); Christopher v. Harbury, 536 U.S. 403, 415 (2002)

(holding that the plaintiff must identify the lost legal claim

in his complaint, along with the potential remedy that

claim sought to recover).

Lastly, Fields’s brief allegations that he was denied

medical treatment fail to state a claim because he has

not set forth sufficient details to show that any particular

defendant acted with deliberate indifference to a serious

medical need, as required to state an Eighth Amendment

claim of deliberate indifference. See Gordon v. Schilling,

937 F.3d 348, 356 (4th Cir. 2019) (describing elements of

claim). Fields names a nurse (Nurse Scott) in his complaint,

but he alleges only that Scott conducted a temperature

check of him while he was restrained and bent Fields’s

fingers backward “as if he was trying to break them.” (Id.

at 12.) Scott also told Fields that because Fields lied when

he told Scott the bruise on his right arm was a new bruise

from the recent incident, Fields would not be getting his

pills. (Id.) Fields does not state what “pills” or medications

Scott was talking about, what conditions those pills were

treating, or whether he was, in fact, denied any of his

medications.

Fields also states, in two different places in the

complaint, that he sought medical help and was denied it,

44a

Appendix B

but he does not identify any person from whom he sought

that help, what he said, or what was done in response.

In the first instance, he simply says that as unidentified

staff left his cell, his “attempt to report severe trauma[,]

headaches[,] and swelling around his head [was] to no

avail.” (Id.) In the second, he similarly states that he had

injuries from the incidents, including severe headaches

with swelling around his head and overall body pain from

head to toe and that “he was denied medical treatment.”

(Id. at 18.) These summary statements do not implicate

any individual in the denial of treatment, and they do not

state an Eighth Amendment claim. 3

3. As to any deliberate indifference claim, the court

recognizes that the Supreme Court has found an implied damages

remedy for such an Eighth Amendment claim in Carlson v. Green,

446 U.S. 14 (1980). Thus, it is possible that such medical claims

do not arise in a new context and could be cognizable. There are,

however, differences between Carlson and this case, including

that the prisoner in Carlson died as a result of the failure to treat

his asthma, was given the wrong treatment, and alleged that he

was kept in an inadequate medical facility. These differences may

be enough to show a new context. See, e.g., Washington v. Fed.

Bureau of Prisons, No. CV 5:16-3913-BHH, 2022 WL 3701577, at

*8 (D.S.C. Aug. 26, 2022) (holding that federal prisoner’s Eighth

Amendment claims of deliberate indifference to ongoing, non-lifethreatening medical issues did not state a cause of action after

Egbert); McNeal v. Hutchinson, No. 2:21-cv-3431-JFA-MGB,

2022 WL 16631042, at *9 (D.S.C. Nov. 2, 2022) (agreeing with

the reasoning of Washington and applying it to a case where the

plaintiff did not allege a medical emergency, but instead involved

“chronic, non-fatal condition”), appeal docketed (4th Cir. Nov. 15,

2022). At this juncture, the court need not resolve whether Fields’s

medical claims arise in a new context because—as discussed

in the text—Fields’s allegations fail to identify any particular

defendant who violated his Eighth Amendment rights by denying

him medical care.

45a

Appendix B

Aside from the claims just addressed in this section,

Fields’s claims are either excessive force claims under

the Eighth Amendment or First Amendment retaliation

claims. As the court discusses next, neither type of claim

entitles him to a damages remedy.

B. There Is No Implied Damages Remedy for

Fields’s Excessive Force and Retaliation

Claims.

The framework for determining whether

the court should find an implied cause of

action

This court recently addressed, in an opinion entered

after full briefing by the parties—that there is no Bivenslike remedy for excessive force claims brought against BOP

Officers. Jean v. Smallwood, No. 7:20-CV-00415, 2022 WL

17969091 (W.D. Va. Dec. 27, 2022). As discussed in Jean,

the Supreme Court first recognized an implied cause of

action for a constitutional violation by federal officers in

Bivens, where it held that there was an implied claim for

money damages available under the Fourth Amendment

where the plaintiff alleged that federal officers had

searched his apartment and arrested him without a

warrant or probable cause and used unreasonable force in

doing so. Tun-Cos v. Perrotte, 922 F.3d 514, 520 (4th Cir.

2019) (describing Bivens). Since then, the Court extended

Bivens to other factual situations only in two cases:

In the first, Davis v. Passman, 442 U.S. 228

(1979), the Court held that the equal protection

46a

Appendix B

component of the Fifth Amendment’s Due

Process Clause provided a damages remedy

for an administrative assistant who alleged

that a Congressman fired her because she was

a woman. See id. at 248-49. And in the second,

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

held that the Eighth Amendment’s Cruel

and Unusual Punishments Clause provided a

damages remedy for the estate of a prisoner

who died due to the alleged failure of federal

jailers to treat his asthma. See id. at 19.

Tun-Cos, 922 F.3d at 521. The Supreme Court has

not recognized a Bivens-type remedy outside of those

contexts, however, and has repeatedly declined to do so

“in any additional context.” Id. (collecting authority).

Accordingly, the Supreme Court “has made clear that

expanding the Bivens remedy is now a ‘disfavored’ judicial

activity.” Id. at 522 (quoting Ashcroft v. Iqbal, 556 U.S.

662, 675 (2009)).

Most recently, the Supreme Court refused to recognize

a Bivens-type remedy in a case that was factually very

similar to Bivens. Egbert v. Boule, 142 S. Ct. 1793, 1803-04,

1807-09 (2022); id. at 1815 (Sotomayor, J., concurring in

the judgment in part and dissenting in part) (“At bottom,

Boule’s claim is materially indistinguishable from the claim

brought in Bivens.”); id. at 1810 (Gorsuch, J., concurring)

(“Candidly, I struggle to see how this set of facts differs

meaningfully from those in Bivens itself.”). In doing so,

the Supreme Court made clear that the types of claims

for which there are a Bivens-type remedy is extremely

47a

Appendix B

limited. See Silva v. United States, 45 F.4th 1134, 1136

(10th Cir. 2022) (“The Supreme Court’s message could not

be clearer—lower courts expand Bivens claims at their

own peril.”). Indeed, in his concurrence, Justice Gorsuch

suggested there could be no further cases recognizing

a cause of action under the Court’s reasoning and test.

Egbert, 142 S. Ct. at 1810 (Gorsuch, J., concurring) (stating

that “it’s hard to see how” any case “ever could” satisfy

the standard set forth by the Court and that “sometimes,

it seems, ‘this Court leaves a door ajar and holds out the

possibility that someone, someday might walk through

it’ even as it devises a rule that ensures ‘no one . . . ever

will.’”) (citation omitted).

The Fourth Circuit recently relied on Egbert and

other authority in ruling that a BOP inmate’s Eighth

Amendment claims based on the conditions of his

confinement were different from any of the prior Supreme

Court decisions “finding a Bivens cause of action and that

the relief he seeks in this new context should be provided

by Congress, if at all.” Tate v. Harmon, 54 F.4th 839,

841 (4th Cir. 2022). The Tate court discussed at length

the Supreme Court’s emphasis on separation-of-powers

principles in this context. Id. at 843-44. As the Supreme

Court has stated, in the years since Bivens, the Court

has “come to appreciate more fully the tension between

judicially created causes of action and the Constitution’s

separation of legislative and judicial power.” Id. at 844

(citing Egbert, 142 S. Ct. at 1802). Indeed, the Egbert Court

observed that “creating a cause of action is a legislative

endeavor” and “the Judiciary’s authority to do so at all is,

at best, uncertain.” Id. (citing Egbert, 142 S. Ct. at 1802-03

(emphasis added by Tate)).

48a

Appendix B

The Tate court followed the two-step analysis

discussed by the Supreme Court and in the Fourth

Circuit’s prior cases, including Tun-Cos. At the first step,

the court should decide whether the claims arise in a “new

Bivens context.” Tun-Cos, 922 F.3d at 522 (citing Ziglar

v. Abbasi, 137 S. Ct. 1843, 1857-60 (2017)). A context is

new when “different in a meaningful way” from the three

previous Bivens cases. Tate, 54 F.4th at 844 (quoting

Ziglar, 137 S. Ct. at 1859)). The Tate court emphasized

that “‘new context’ must be understood broadly [and]

that a new context may arise if even one distinguishing

fact has the potential to implicate separation-of-powers

considerations.” Id. at 846 (citing Egbert, 142 S. Ct. at

1805).

“If the context is not new . . . then a Bivens remedy”

is available. Tun-Cos, 922 F.3d at 522-23 (emphasis in

original). If the context is new, then the court turns to

the second step, which requires it to determine whether

“special factors counsel[ ] hesitation” in recognizing an

implied cause of action. Ziglar, 137 S. Ct. at 1857 (citations

omitted).

In Egbert, the court observed that “those [two] steps

often resolve to a single question: whether there is any

reason to think that Congress might be better equipped

to create a damages remedy.” 142 S. Ct. at 1803. Indeed,

if “there is any rational reason (even one) to think that

Congress is better suited” to resolve the cost-benefit

analysis of letting a damages action lie, an implied action

is precluded. Id. at 1805. The Tate court recognized this

conflation of the two steps, as well, explaining that “in

49a

Appendix B

Egbert, . . . the Court recognized a substantial overlap

between the factors relevant to” the two steps, “often

leading to an analysis that addresses just [that] single

question.” Tate, 54 F.4th at 847-48.

Fields’s excessive force claims arise in a

new context.

Applying this analysis to Fields’s excessive force

claims, the court has no difficulty in concluding that

these claims arise in a new context, as the Supreme

Court has never ruled that a damages remedy exists

for claims of excessive force by BOP officers against an

inmate. As noted above, the context could be “new” for a

reason as simple as “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; [and] the risk of disruptive

intrusion by the Judiciary into the functioning of other

branches. . . .” Tun-Cos, 922 F.3d at 523 (quoting Ziglar,

137 S. Ct. at 1859-60)). Put differently, “the new-context

inquiry is easily satisfied.” Ziglar, 137 S. Ct. at 1865. As

the Tate court cautioned, “courts are clearly warned to

act with utmost hesitation when faced with actions that

do not fall precisely under Bivens, Davis, or Carlson.” 54

F.4th at 845.

None of the three cases—Bivens, Davis, or Carlson—

involved Eighth Amendment claims alleging an improper

use of force by BOP officers (or related bystander liability

50a

Appendix B

claims). Moreover, the last distinction referenced above—

”the risk of disruptive intrusion by the Judiciary into the

functioning of other branches”—is particularly important

here. Although he alleges that the disciplinary charges

against him were false, Fields’s complaint makes clear

that at least the reason given for his being restrained

was his own behavior and that the restraints were used

as a disciplinary measure. If the court were to create a

judicial remedy here, it would be interjecting the judiciary

into decisions about when and under what circumstances

restraints may be used. It also would be creating potential

liability for assaults by BOP officers, especially as related

to the use of restraints. These are issues that could have

far-reaching consequences to the daily operation of BOP

facilities. Cf. Egbert, 142 S. Ct. at 1803 (noting that “a court

likely cannot predict the systemwide consequences of

recognizing a cause of action under Bivens”); see also Jean

v. Smallwood, No. 7:20-CV-00415, 2022 WL 17969091, at

*5 (W.D. Va. Dec. 27, 2022) (noting same).

Fields’s retaliation claims arise in a new

context.

Similarly, Fields’s claims that the excessive force

was the result of retaliation and that he was given false

disciplinary charges in retaliation for “accessing the

courts and other outside prison agencies” also arise in a

“new context.” Indeed, in Egbert, the court also addressed

a retaliation claim, although it arose in a different factual

scenario. The Egbert court squarely held that “there is

no Bivens action for First Amendment retaliation.” 142

S. Ct. at 1807. Similarly, the Fourth Circuit has recently

51a

Appendix B

declined to extend Bivens to a First Amendment claim.

See Dyer v. Smith, — F.4th —, 2022 WL 17982796, at *3

(4th Cir. Dec. 29, 2022) (agreeing with district court that

a First Amendment claim arose in a new context, in part

because “[t]he Supreme Court has ‘never held that Bivens

extends to First Amendment claims’”) (citations omitted).

Special factors counsel against

recognizing an implied cause of action

because Congress is better suited to

make the determination of whether one

is appropriate and desirable.

As previously explained, once a claim is determined to

arise in a new context, then the court should not imply a

cause of action if “there is any rational reason (even one)

to think that Congress is better suited to weight the costs

and benefits of allowing a damages action to proceed.”

Egbert, 142 S. Ct. at 1805 (cleaned up). And as in Egbert

and Tate, the court concludes that there is certainly at

least one “rational reason” why Congress would be better

equipped than the courts to determine whether to allow

such claims.

First of all, as in Tate, “[t]he political branches are

indeed ‘better equipped to decide whether existing

remedies should be augmented by the creation of a new

judicial remedy.’” 54 F.4th at 848 (quoting Egbert, 142

S. Ct. at 1804). Indeed, Congress’s inaction and failure

to provide a damages remedy, particularly where it has

enacted sweeping reforms of prisoner litigation, suggest

that an extension of a damages remedy for other types of

mistreatment should not be judicially created. See Ziglar,

52a

Appendix B

137 S. Ct. at 1865 (“[I]t seems clear that Congress had

specific occasion to consider the matter of prisoner abuse

and consider the proper way to remedy those wrongs”

and Congress’s declining to provide a “damages remedy

against federal jailers . . . suggests [that] Congress chose

not to extend the Carlson damages remedy to cases

involving other types of prisoner mistreatment.”).

Additionally, courts have long been committed to

avoiding judicial intervention in the running of prisons or

in matters of security within prisons. As noted, allowing

liability for these types of claims opens up BOP officers

to significant potential liability for the BOP’s decisions

about how to discipline inmates and when and under what

circumstances it is appropriate to restrain them. This

fact, too, counsels against recognizing an implied cause

of action for Fields’s claims, which—at least according

to them—stem from the officials’ response to his alleged

misconduct. See Landis v. Moyer, No. 1:19-CV-470,

2022 WL 2677472, at *7 & n.5 (M.D. Pa. July 11, 2022),

appeal docketed, No. 22-2421 (3d Cir. Aug. 5, 2022) As

explained by the Landis court, “excessive-force claims

against federal prison officials [ ] squarely implicate

BOP policy and are inextricably tied to the preservation

of institutional rules and order. Adjudicating prisoner

excessive-force claims would also entangle the federal

judiciary in byzantine issues of prison administration and

institutional security and would impact BOP operations

systemwide.” Id.

There are other factors, as well, that caution against

finding an implied cause of action here. For example, the

53a

Appendix B

existence of alternative remedies available to federal

prisoners like Fields strongly cautions against an

expansion of Bivens into a new context. Ziglar, 137 S. Ct.

at 1858 (“[I]f there is an alternative remedial structure

present in a certain case, that alone may limit the power

of the Judiciary to infer a new Bivens cause of action.”).

As explained in Correctional Services Corp. v. Malesko,

a federal prisoner claiming negligence or deliberate

indifference has access to “remedial mechanisms

established by” the BOP. 534 U.S. 61, 74 (2001). Indeed,

“many courts have explicitly recognized that the BOP’s

administrative remedy program is an alternative process

that precludes a Bivens remedy.” Scates v. Craddock, No.

1:17CV22, 2019 WL 6462846, at *8 (N.D.W. Va. July 26,

2019) (collecting authority), report and recommendation

adopted, No. 1:17-CV-22, 2019 WL 4200862 (N.D.W. Va.

Sept. 5, 2019); see also Silva, 45 F.4th at 1141 (“[W]e find

the availability of the BOP’s Administrative Remedy

Program offers an independently sufficient ground to

foreclose Plaintiff ’s Bivens claim.”) The possibility of

relief under the Federal Tort Claims Act (FTCA) also

serves as an alternative remedy that counsels against

recognizing an implied damages remedy, even if the FTCA

does not “provide the exact same kind of relief Bivens

would.” Oliva v. Nivar, 973 F.3d 438, 443-44 (5th Cir. 2020).

As for any retaliation claims, the Supreme Court

stated that “[t]here are many reasons to think that

Congress, not the courts, is better suited to authorize” a

damages remedy for First Amendment retaliation. Egbert,

142 S. Ct. at 1807. The Court went on to list the reasons

and rationales, which included the acute risk of increasing

54a

Appendix B

substantial societal costs by causing federal employees to

be deterred from carrying out their duties in the face of

personal liability. Id. at 1807-08. The costs are particularly

likely to increase with allowing retaliation claims, since

such claims rely on retaliatory intent and “may be less

amenable to summary disposition.” Id. (citation omitted).

Thus, if damages are to be allowed for such claims, it

should be Congress that makes that decision.

For the foregoing reasons, the court concludes that

Fields’s excessive force and retaliation claims are not

cognizable. Other courts, employing similar reasons, are

in agreement. As noted, retaliation claims were squarely

rejected by Egbert. Moreover, following Egbert, circuit

courts that have addressed the viability of excessive force

claims have thus far uniformly concluded that there is no

viable Bivens claim for excessive force in this context, as

have many district courts. See, e.g., Silva v. United States,

45 F.4th 1134, 1141-42 (10th Cir. 2022) (holding that the

plaintiff did not have an Eighth Amendment Bivens claim

against a BOP officer for use of excessive force); Greene

v. United States, No. 21-5398, 2022 WL 13638916, at *3-4

(6th Cir. 2022) (unpublished) (same); Alsop v. Fed. Bureau

of Prisons, No. 22-1933, 2022 WL 16734497, at *3 (3d Cir.

2022) (unpublished) (citing to Egbert and concluding that a

claim of excessive force against a BOP correctional officer

was “not a basis for relief under Bivens”); Jean, 2022 WL

17969091, at *6 (same); Baldwin v. Hutson, No. 6:19-CV151-REW-HAI, 2022 WL 4715551, at *4-5 (E.D. Ky. Sept.

30, 2022) (holding that Egbert forecloses a cause of action

based on an excessive use of force by BOP officers against

a prisoner); Morel v. Dep’t of Just., No. CV 7:22-015-DCR,

55a

Appendix B

2022 WL 4125070, at *3 (E.D. Ky. Sept. 9, 2022) (same);

Landis, 2022 WL 2677472, at *7 & n.5 (same and collecting

authority); Bivens v. Blaike, No. 21-CV-00783-PAB-NYW,

2022 WL 2158984, at *6 (D. Colo. June 15, 2022), report

and recommendation adopted, No. 21-CV-00783-PABNYW, 2022 WL 2716533 (D. Colo. July 13, 2022) (same).

III. CONCLUSION

For the foregoing reasons, the court concludes that

Fields’s complaint fails to state a claim for which relief

can be granted and must be dismissed pursuant to 28

U.S.C. § 1915A(b)(1). Thus, his complaint will be dismissed,

and the court will deny his pending motion as moot. An

appropriate order shall be entered.

Entered: January 31, 2023.

/s/

Elizabeth K. Dillon

United States District Judge

56a

C THE UNITED

APPENDIX C —Appendix

ORDER OF

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED OCTOBER 22, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6246

(7:22-cv-00021-EKD-JCH)

ANDREW FIELDS, III,

Plaintiff-Appellant,

FEDERAL BUREAU OF PRISONS; WARDEN

STREEVAL; A. W. GOLDEY; CAPTAIN BAKER;

MITCHELL; MULLINS; NEFF; EWING;

GAYHEART; SESSONS; FIELDS; SLOAN; NURSE

SCOTT; J. ROBBINS; BOLLING; GARRETT;

SCHOLL; GILBERT; BAKER; BARKER;

FARMER; DICKENSON; LIEUTENANT LAFFIN;

LIEUTENANT NICHOLOUS; LIEUTENANT

HAMILTON; LIEUTENANT MULLINS; HUGHES;

LASTER,

Defendants-Appellees.

UNITED STATES OF AMERICA,

Amicus Supporting Rehearing Petition.

Filed October 22, 2024

57a

Appendix C

ORDER

The court denies the petition for rehearing and

rehearing en banc. No judge requested a poll under

Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Gregory,

Judge Thacker, and Judge Richardson.

For the Court

/s/

Nwamaka Anowi, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.