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August 22, 2024
Notable Third Circuit panel ruling rejects extending Bivens to address inmate abuse in federal prison
A lengthy new opinion by a Third Circuit panel in Kalu v. Spaulding, No. 23-1103 (3d Cir. Aug. 21, 2024) (available here), covers a lot of notable federal prison law and federal prison realities. Here is how the opinion for the Court begins:
Five decades ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court first authorized an implied damages remedy for constitutional claims brought against federal officials. Since then, in recognition of the Constitution’s separation of legislative and judicial power, the Court has greatly narrowed the availability of new Bivens actions. “At bottom, creating a cause of action is a legislative endeavor.” Egbert v. Boule, 596 U.S. 482, 491 (2022).
Here, appellant John O. Kalu, a federal inmate, seeks to bring Eighth Amendment claims against federal prison officials. He alleges a prison guard sexually assaulted him on three separate occasions, prison officers subjected him to inhumane conditions of confinement, and the prison’s Warden failed to protect him from the abuse through deliberate indifference. He seeks damages under Bivens to redress those harms. Heeding the Supreme Court’s recent and repeated warning that we must exercise “caution” before implying a damages remedy under the Constitution, see id.; Hernandez v. Mesa, 589 U.S. 93, 100–01 (2020), we decline to extend the Bivens remedy to Kalu’s claims. For the following reasons, we will affirm.
This panel opinion especially caught my eye because of a relatively short concurrence by Judge Restrepo, who is a Vice Chair on the US Sentencing Commission. Here is how his opinion gets started:
Although I agree with the Majority that this case presents a new Bivens context, I write separately to highlight the alarming reports of pervasive staff-on-inmate sexual abuse within the Bureau of Prisons and corresponding flaws in the administrative remedy process, and to note recent actions the Department of Justice, the United States Sentencing Commission, and Congress have taken since those findings were disclosed.
August 22, 2024 at 09:12 AM | Permalink
Comments
It is appalling that the SCOTUS majority is willing to invent a new immunity to protect the presidency against the weight of very strong textual and historical evidence, because they feel the presidency cannot function without it, but refuses to recognize implied causes of action and damage remedies when constitution rights cannot be vindicated without them. The very existence of the right, as a protection against an elected or appointed official, cannot depend on the willingness of the same people to legislatively agree to a remedy. At the very least the Westfall Act needs to be held unconstitutional as applied to these situations.
Posted by: Respondent | Aug 22, 2024 11:25:30 AM
No “new immunity” was created by SCOTUS for Trump.
I know what a “Bivens Action” is, but wonder why Congress doesn’t just act by adding to 42 USC 1983 language including federal officials in 1983 lawsuits.
I also wonder why Doug killed his own blog by creating a boring echo chamber where no one comments anymore.
Posted by: TarlsQtr | Aug 22, 2024 1:26:03 PM
Tarls: there have been dozens of comments in just the last few days on mulitple posts, nearly all of which have been on-point, productive and polite. I also waste far less time reading/responding to off-topic discourses and pishers venting, giving me more time to work on new posts. That's a win win for those who care about sentencing law and policy matters, as I see it, especially since there are plenty of other places for off-topic discourses and pishers venting.
Posted by: Doug B | Aug 22, 2024 2:16:03 PM
TarlsQtr: I agree with you on points 2 and 3: Section 1983 should definitely be amended to cover the federal government, and this blog was much better when you could engage in a vibrant, real time dialogue, with no concerns about cross-posting. And some of the nominally off-topic comments were still very much related to SL&P themes. All ad-hominems and partisan hackery was easy enough to ignore.
Posted by: Respondent | Aug 22, 2024 2:22:02 PM
I would eagerly link to any different comments spaces that other folks want to create. Indeed, I would find it quite interesting to see what might develop on a different comment space using other software and perhaps attracting a distinct set of commentators.
Posted by: Doug B | Aug 22, 2024 2:31:29 PM
Well, one thing that would be a deal-breaker for me would requiring registered accounts. I don't like them for my own reasons and would quit commenting altogether if I ever had to log in to comment. That's one of things I love about commenting on your blog—the ability to quickly comment without logging in.
Posted by: Respondent | Aug 22, 2024 2:39:51 PM
Thanks again for the feedback, Respondent. I surmise lots of folks have lots of views about comment spaces, and that's one of many reasons I would be eager to see how others might create and develop another such space on SL&P topics. But I am busy creating other content (and doing my day job), and it has proved a great timesaver of late to have less off-topic and pisher distractions.
Posted by: Doug B | Aug 22, 2024 3:04:14 PM
Respondent,
One of many issues with 1983 comes from “task forces.” Local police get deputized by the Feds and claim everything they are doing is a federal issue, even when working on a local case with little or no federal involvement.
It makes even local PD officers impossible to sue.
Posted by: TarlsQtr | Aug 22, 2024 4:13:46 PM
Is there no such thing as a rape kit for men?
If the prison quickly gathers forensic evidence, surely in many cases this will result in a quick determination that the inmate is or is not telling the truth. Demonstrably false reports can and should result in harsh punishment for the inmate. Demonstrably true reports can and should result in harsh punishment for the guard. And a demonstrable failure to investigate can and should result in the Warden losing his job.
Posted by: William Jockusch | Aug 23, 2024 9:39:53 AM