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Fourth Circuit Rebuffs Federal Prisoner’s Attempt to Expand Bivens in North Carolina

by David M. Reutter

On May 3, 2023, the U.S. Court of Appeals for the Fourth Circuit affirmed dismissal of a federal prisoner’s civil rights suit, finding his Fifth Amendment claim did not fit within the precise confines authorized by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

That ruling by the Supreme Court of the U.S. (SCOTUS) recognized the federal government’s liability for a Fourth Amendment search-and-seizure violation, and subsequent SCOTUS decisions extended that liability to include a Fifth Amendment due-process violation for gender discrimination by a member of Congress and an Eighth Amendment violation for failure to provide a prisoner adequate medical care. But as PLN has reported, the high court’s current majority is in no mood to grant any further extension, a position made clear in Egbert v. Boule, 142 S. Ct. 1793 (2022).

That is the background against which the Fourth Circuit took up an appeal by federal prisoner Joseph Mays. While at the Federal Correctional Institution in Butner, North Carolina, Mays was employed as the lead mechanic in the optics factory operated by UNICOR, the prison industry of the federal Bureau of Prisons (BOP). On June 20, 2016, Mays filed a grievance with the BOP Regional Director alleging that his UNICOR manager, Jamie Hoskins, engaged in racial discrimination and gave preferential treatment to other prisoners who worked in the factory. Five days later, he filed a second grievance with the Regional Director complaining that two prison officials retaliated against him for the first grievance by falsely claiming he was malingering and using abusive language at his job. The Regional Director instructed Mays to attempt to resolve his complaints informally at the prison level, which he did.

Such an effort was made on August 11, 2016, when Hoskins and Associate Warden S. Ma’at met with Mays, but he was accused of trying to disrupt the optics factory. Mays was fired for allegedly making threatening statements and threatening to cause a work stoppage. He was also placed into administrative detention, where he remained until he was transferred to another BOP prison on October 21, 2016.

In September 2016 and June 2017, Mays filed two more grievances that complained he was denied due process via his detention, his firing from UNICOR and his transfer. He filed his pro se civil rights complaint in federal court for the Eastern District of North Carolina in July 2018. An amended complaint asserted claims for (1) First Amendment retaliation; (2) Fifth Amendment due process violations related to the administrative detention, firing, and transfer; and (3) a Fifth Amendment equal protection violation for racial discrimination.

The district court granted Defendants’ motion to dismiss for failure to state cognizable Bivens claims. Mays appealed, and the Fourth Circuit appointed him counsel from attorneys with Jones Day, Rights Behind Bars and the Roderick and Solange MacArthur Justice Center, all in Washington ,D.C.

Mays’ First Amendment claim was abandoned on appeal, since SCOTUS in Egbert specifically declined to recognize a Bivens claim from an alleged First Amendment violation stemming from retaliation for filing grievances.The only issue left was whether Bivens could be extended to include Mays’ Fifth Amendment claims.

The Fourth Circuit began its analysis by pointing out that 42 U.S.C. §1983 gives plaintiffs statutory authority to sue state officials for constitutional violations, but there is no statutory counterpart to sue federal officials. Citing its decision in Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022), the Court reiterated that SCOTUS has on 12 occasions rebuffed requests to extend Bivens “to find implied causes of actions against federal officials for money damages under the Constitution.”

Unsurprisingly, the Court then declined Mays’ invitation to recognize a Bivens claim for Fifth Amendment procedural due process and racial discrimination claims that he alleged. SCOTUS has never recognized such claims and has counseled against doing so absent “special factors.” Finding none here, the Court ruled that Mays sought to expand Bivens in a new context that was impermissible. The district court’s order was thus affirmed. See: Mays v. Smith, 70 F.4th 198 (4th Cir. 2023).  

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Related legal case

Mays v. Smith