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Fourth Circuit Refuses Bivens Extension to Allow BOP Prisoner’s Damages Claim for “Degenerate Conditions” at Virginia Lockup

by David Reutter

Since the 2022 ruling by the Supreme Court of the United States (SCOTUS) in Egbert v. Boule, 142 S. Ct. 1793 (2022), there has been no expansion of the federal government’s liability for civil rights claims that was first extended by an earlier, less reactionary high court in Bivens v. Six Unknown Federal Narcotics Agents, 488 U.S. 388 (1971). One of the latest examples of this freeze comes from the U.S. Court of Appeals for the Fourth Circuit.

In an opinion issued on December 13, 2022, the Court affirmed dismissal of a federal prisoner’s claim for damages arising from allegedly “degenerate conditions of confinement.” Finding this a new Bivens context, the Court said it “should be provided by Congress, if at all.”

Raymond Tate, a prisoner at U.S. Penitentiary-Lee in Virginia, commenced his pro se action against the federal Bureau of Prisons (BOP) in a “highly detailed 25-page complaint plus 29 exhibits,” the Fourth Circuit recalled, alleging violations of his First, Fifth, and Eighth Amendment rights. Specifically, Tate “alleged that the conditions in the Special Housing Unit [SHU] in which he was held were so degrading and detrimental that they constituted cruel and unusual punishment,” the Court noted.

SHU is the benign-sounding term BOP uses for complete or nearly complete solitary confinement, holding prisoners there 23 hours a day. As the Court recalled from Tate’s claim:

“He alleged that his cell was filthy and covered with mold; that the temperatures in his cell could be extraordinarily cold; that he was given soiled and inadequate bedding; that he was provided undersized toilet paper and a virtually unusable toothbrush; that he was not provided adequate cleaning supplies; that prison guards made it difficult or impossible for him to use the one hour per day that he was supposed to be allowed outside his cell; and that prison guards intentionally endangered him by falsely telling other inmates that he had exposed himself and made sexual overtures to male prison guards.”

Defendants filed a motion to dismiss the claims, arguing they were not recognized under Bivens. The federal court for the Western District of Virginia agreed, declining “to recognize a new remedy in any of the new contexts in which Tate’s claims ar[o]se.” Tate appealed, and the Fourth Circuit appointed him pro bono counsel from attorney Daniel S. Harawa of the Washington University School of Law in St. Louis.

Taking up the case then, the Court noted that plaintiffs before Bivens “had the statutory authority under 42 U.S.C. § 1983 to sue state officials for money damages when the official violated a plaintiff’s constitutional rights under color of state law.”

“But no statutory counterpart existed for plaintiffs to sue federal officials for money damages for violating their constitutional rights,” the Court continued.

SCOTUS found in Bivens an implied cause of action under the Fourth Amendment that entitled the plaintiff to sue federal officials for money damages arising from an unreasonable search and seizure. While the Fourth Amendment provides no such remedy explicitly, SCOTUS said it was implied under general principles of federal jurisdiction to redress wrongs that otherwise would be left unredressed. It subsequently found two more implied causes of action for money damages: in claims alleging a due-process violation under the Fifth Amendment for gender discrimination by a member of the U.S. Congress; and a violation of the Eighth Amendment guarantee of freedom from cruel and unusual punishment by failing to provide a prisoner adequate medical care. See: Davis v. Passman, 442 U.S. 228 (1979); and Carlson v. Greene, 446 U.S. 14 (1980).

Former Pres. Ronald R. Reagan (R) was elected the year that Carlson was decided. In

the decades since then, the Court noted, SCOTUS “consistently rebuffed 12 requests to find implied causes of action against federal officials.” In fact, in the last five years, SCOTUS has issued a trilogy of opinions that expressed regret over Bivens. So to limit its expansion, it prescribed a “two-step inquiry” in the matter.

The first step is to determine whether the cause of action “arises in a ‘new context’ or involves ‘a new category of defendants,’” the Fourth Circuit began. It then found a ‘new context’ in Tate’s claim because it made a “broad-based systemic claim against an array of federal officials . . . potentially affecting not only the scope of their responsibilities and duties but also their administrative and economic decisions.”

The second step is to “ask whether there are any special factors that counsel hesitation about granting the extension,” the Court said. Borrowing from the language of the SCOTUS ruling, the court asked simply: “Is there any reason to think Congress might be better equipped than a court to weigh the costs and benefits of allowing a damages action to proceed?”

With the question put like that, the answer was an unsurprising “no.” Humbly effacing itself, the Fourth Circuit confessed it was ill-suited to predict systemwide consequences of Tate’s claim for BOP. Thus, the ‘new context’ of his claim and the “special factors of consideration” it entailed foreclosed relief, and the district court’s order was affirmed. See: Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022).

Tate asked the full Fourth Circuit for a rehearing en banc, but the answer that came back on February 10, 2023, was another unsurprising “no.” See: Tate v. Harmon, 2023 U.S. App. LEXIS 3344 (4th Cir.).

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