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Federal Judge Holds Bivens Not Applicable to Prison Workplace Discrimination Claims

by Dale Chappell

Refusing to extend Bivens to cover a prison workplace discrimination claim, last year the U.S. District Court for the District of New Jersey held that a remedy for such a claim would have to come from Congress, not the judiciary. 

While the decision was a defeat for federal prisoner Kendell Charles Alexander, Sr., it was instructive on when Bivens could be applied to claims arising outside the limited scope the Supreme Court has placed on Bivens remedies.

The claim filed by Alexander alleged racial discrimination by staff at the UNICOR factory at FCI Fort Dix, which he said violated his rights under the Equal Protection Clause of the Fifth Amendment. He also claimed retaliation by UNICOR staff in violation of his First Amendment rights for filing grievances. 

Specifically, Alexander said he was employed in a UNICOR textile program, fixing sewing machines for $0.46 per hour. Although he should have received pay raises, he said the factory manager, Robert Ortiz, refused to increase his pay grade while giving promotions to white and Hispanic workers. After Alexander filed a grievance, Ortiz allegedly refused to pay him overtime, and other black workers received very little overtime. Ortiz denied any racial bias. 

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that, while no statute supplied a remedy, the plaintiff, Webster Bivens, could sue federal agents for violating his constitutional rights when they used excessive force during an arrest. 

Since Bivens, the Supreme Court has extended the right announced in its decision to not only Fourth Amendment violations, but also Fifth Amendment claims for federal workplace gender discrimination, in Davis v. Passman, 442 U.S. 228 (1979), and to Eighth Amendment claims for failure to treat a prisoner’s serious medical needs, in Carlson v. Green, 446 U.S. 14 (1980). 

However, in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the high court wrote that “expanding the Bivens remedy is now a disfavored judicial activity,” and that courts should exercise caution before extending Bivens to claims which are meaningfully different from the three types noted above. 

Instead, a test should be applied to see whether Bivens can extend to a new claim. First, the court must determine whether the claim presents a “new context” under Bivens, apart from the three types already found acceptable. Next, the court has to consider whether an alternative remedy exists, such as the Federal Tort Claims Act or the Inmate Accident Compensation Act (IACA). Finally, the court has to consider if there are “special factors counseling hesitation” before extending Bivens to a new context. 

While Alexander’s claim constituted a “new context” for a Bivens claim and no other remedy existed, the district court found the prison workplace was a “special factor” precluding Bivens relief. 

Citing statutes and regulations that a prisoner is not an “employee” in the prison context, and that Congress created a remedy for workplace injuries for prisoners under the IACA that did not extend to discrimination claims, the district court concluded any other remedy must come from Congress. That was a “special factor” that barred extending Bivens to Alexander’s racial discrimination claim.

Since Alexander was not considered an employee under the legal definition of that term, he also was not entitled to employee protections under Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Equal Pay Act and the National Labor Relations Act.

“Because the prison workplace is an area that is heavily regulated by the legislative and executive branches, and because it is not regarded as an employer/employee relationship, the Court finds that it should be left to those branches to determine whether an action for damages for claims of racial discrimination and retaliation exists,” the district court concluded when dismissing Alexander’s Bivens action.

Attorney Sharon King, who represents Alexander, called the ruling “unfortunate,” adding, “I think it says, moving forward, that federal officials within a prison context can essentially discriminate without giving an account.”

Her client was more blunt. “If we are not employees, then what are we?” Alexander asked. “Slaves,” he concluded. He has since appealed the dismissal of his suit. See: Alexander v. Ortiz, U.S.D.C. (D. NJ), Case No. 1:15-cv-06981-JBS-AMD; 2018 U.S. Dist. LEXIS 45329. 


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Related legal case

Alexander v. Ortiz