by Casey J. Bastian

On March 1, 2022, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of a federal prisoner’s lawsuit, finding that even though a Bureau of Prisons (BOP) staffer put him at risk of assault, damages were not warranted because the “risk never materialized.”

The prisoner, Jordan Dongarra, pleaded guilty to bank robbery in 2018 and ended up in a BOP prison in Pennsylvania. Upon arrival, Dongarra went through the onboarding process under the supervision of a guard named D. Smith, who provided an ID card that wrongly labeled Dongarra “ROF,” or Registered [Sex] Offender. Smith also issued Dongarra a T-shirt in a color allegedly known to be worn by sex offenders. 

Dongarra immediately complained because he is not a sex offender, demanding a new ID card and t-shirt because “he ‘could be killed’ if prisoners mistook him for one,” as was later noted by the Court. Smith allegedly smiled as he refused Dongarra’s requests and said that he “hop[ed] [Dongarra] kn[ew] how to fight ... and use a knife.”

Dongarra filed a prison grievance but never received an official response. However, a few weeks later, the ID card and shirt were replaced. Dongarra then filed suit pro se in federal court for the Middle District of Pennsylvania against Smith and two other unnamed prison officials, seeking injunctive relief to prevent the problem from recurring. He also asked for damages, alleging that Defendants caused him to be “so scared” of attack from other prisoners that he “skipped all of his meals” and “starved himself,” also sitting out recreation. Smith’s indifference to the risk of attack he caused, the prisoner said, left him to suffer “enormous amount[s] of pain physically, and mentally.”

The federal government enjoys immunity from lawsuits for damages except when its agents knowingly violate a constitutional right, as laid out by the U.S. Supreme Court in Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). But the district court dismissed Dongarra’s claim because Bivens has never been extended to cover damages for a risk that didn’t materialize. The lower court also refused to issue an injunction for a problem that had already been corrected, noting that Dongarra did not sue “anyone who could fire or discipline Smith.”

Aided by Washington, D.C. attorneys David M. Zionts and Megan A. Crowley of Covington & Burley LLP, along with Samuel Weiss of Rights Behind Bars, Dongarra appealed the denial of damages. Taking up the case then, the Third Circuit undertook a de novo review of Dongarra’s claims, noting that he must show both that the prison violated a constitutional right and that he suffered damages that a Bivens suit allows.

As to the first point, the Court said Dongarra actually alleged two Eighth Amendment violations. One related to his conditions of confinement when placed at risk of assault with the wrong ID card and t-shirt color, causing him to suffer stress-related ailments; the other alleged a failure to protect him from that assault.

Under the Eighth Amendment, the Court noted, prisoners need be afforded only “the minimal civilized measures of life’s necessities” sufficient to meet “basic human needs” such as food, sanitation and medical care. So Dongarra’s conditions-of-confinement claim failed because “dubbing him a sex offender did not deprive him of a basic human need.” The failure-to protect claim also failed because the potential assault never happened.

The Court allowed that the Eighth Amendment can be violated when officials act with “deliberate indifference to a substantial risk of serious harm,” and Dongarra’s allegations clearly demonstrated that Smith was both objectively and subjectively aware of the risks imposed by being falsely labeled a sex offender. Furthermore, prison officials must “take reasonable measures to guarantee” prisoner safety, which Smith never did, and “[b]eing violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society,” the Court said, quoting Farmer v. Brennan, 511 U.S. 825 (1994).

But Smith’s constitutional violation caused no harm, the Court said, because Dongarra was never physically assaulted. Had he been, he would have a meritorious claim against Smith and perhaps be allowed damages under Bivens, as the U.S. Supreme Court held in Carlson v. Green, 446 U.S. 14 (1980), when a prisoner’s death resulted. Here, though, the Court said that it could not “compensate [Dongarra] for an assault that never happened.”

Dongarra asked for damages for stress-related emotional injuries. But he accused Smith only of placing him at risk of physical assault, without explicitly connecting the two. “While such a secondary risk was arguably foreseeable, it remains a step removed,” the Court observed.

Following the two-step analysis outlined by the Supreme Court, the Court acknowledged this case is “different in a meaningful way from previous Bivens cases,” quoting Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). But turning then to question whether “special factors counsel [ ] hesitation,” quoting Carlson, the Court decided: “Here there are two.”

First, “alternative remedies are available,” mainly the prison grievance system that Dongarra used. But also “to extend Bivens here, we would need to make rules on whether liability attaches for secondary risks” not specifically alleged. Since it “is not obvious how far a prison official’s liability should extend,” the Court refused to establish a constitutional right that “cannot be undone by the legislature.”

“The stakes are high, and we are poorly suited to the task,” the Court concluded, affirming the district court’s dismissal. See: Dongarra v. Smith, 27 F.4th 174 (3rd Cir. 2022).

One ray of hope for prisoners in the Third Circuit: The Court left open the possibility of extending Bivens protection in cases that result in physical injury short of death.

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