On July 25, 2024, the U.S. Court of Appeals for the Fourth Circuit agreed that the constitutional tort first recognized in Bivens v. Six Unknown Named Agents of Fed. Narcotics Bur., 403 U.S. 388 (1971), extended to a federal prisoner’s civil rights action alleging that guards repeatedly entered the solitary confinement cell where he was shackled and beat him at the U.S. Penitentiary (USP) Lee in Petersburg, Virginia.

In Bivens, the Supreme Court of the U.S. (SCOTUS) first recognized an implied cause of action for money damages against federal officials for violating a citizen’s constitutional rights. But to date, SCOTUS has recognized such actions in only three circumstances: (1) for Fourth Amendment violations committed by federal law enforcement officials; (2) for Fifth Amendment violations in the federal employment context; and (3) for Eighth Amendment violations by medical staff for deliberate indifference to a prisoner’s serious medical needs. The high Court has refused further extension of Bivens, warning lower federal courts that doing so is “a disfavored judicial activity.” See: Egbert v. Boule, 596 U.S. 482 (2022) [quoting Ziglar v. Abbasi, 582 U.S. 120 (2017)].

Andrew Fields was confined by the federal Bureau of Prisons (BOP) at USP Lee in November 2021 when he got into a scuffle with guards for not having a “movement pass” while outside his housing unit. He was placed in a special housing unit (SHU) observation cell with his hands and feet cuffed, and guards allegedly used their regular safety checks to enter his cell and slam his head against the concrete wall or hit him with a fiberglass security shield.

Once released from the SHU, Fields attempted to file grievances, but BOP staff refused to give him necessary forms. He eventually filed suit pro se in federal court for the Western District of Virginia, accusing guards of violating his Eighth Amendment rights with the excessive force used on him. The district court dismissed the case, noting that an excessive force claim is not recognized under Bivens. Fields appealed to the Fourth Circuit, which appointed pro bono counsel from attorney Daniel Zemel of the Krudys Law Firm in Richmond.

The sole question before the Court was whether Fields’ case presented the rare situation when Bivens should extend to a new factual scenario. SCOTUS had set out a two-part test for this in Egbert, asking first if a case indeed represents a new Bivens context and second whether courts are “less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.”

Since Egbert, the Fourth Circuit had refused extensions to claims involving deplorable conditions of confinement in the SHU at USP Lee, failure to protect a prisoner from assault by other prisoners, and racial discrimination against a prisoner in a BOP employment program. See: Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022); Bulger v. Hurwitz, 62 F.4th 127 (4th Cir. 2023); and Mays v. Smith, 70 F.4th 198 (4th Cir. 2023). In these, the Court said first that the principle of separation of powers left it to Congress to add “an individual-capacity damages remedy” that currently doesn’t exist in the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. Second, Congress had already authorized BOP to create and implement the Administrative Remedies Program (ARP) to addressing wrongdoing by BOP staff—though that doesn’t provide the same type of relief available under Bivens. Nevertheless, finally, the potential for “systemwide consequences” affecting the scope of prison officials’ responsibilities and administrative or economic decisions made extension inappropriate.

However, the Court continued, “these factors do not apply with equal force to Fields’s case, and thus they do not bar his claim” because it involved “egregious physical abuse with no imaginable penological benefit.” Thus, “no special factors counsel against providing a judicial remedy” for what amounted to a “clear-cut constitutional violation” that would be cognizable under 42 U.S.C. § 1983, were Fields held in a state prison rather than a federal one.

Moreover, Fields’ constitutional claims implicated only “individual front-line officers who subjected him to excessive force,” so any claims against BOP or administrative employees must be dismissed, the Court said. After that, the suit no longer “implicated prison policies and broader systemic concerns” but “narrow and discrete” claims against individual guards who failed to follow BOP policy prohibiting excessive force—just as staff failed to follow prison policy by ignoring a prisoner’s medical needs in Carlson v. Green, 446 U.S. 14 (1980), an earlier case where SCOTUS recognized a Bivens claim; doing the same in the limited context of Fields’ case meant that the “impact on prison officials’ discharge of their duties will be minimal,” the Court decided.

As for availability of remedies under ARP, the Court noted that they were unavailable to Fields because “prison officials deliberately thwarted his access to them.” So Fields wasn’t asking for additional remedies, and the Court was not “trampling on Congress’s or the Executive’s authority” by “stepping in” to “secure[] the objectives of the wrongfully displaced remedial scheme.” PLRA does not prohibit an implied cause of action for damages by federal prisoners in all cases because, if it did, Congress would have abrogated the Carlson decision when enacting it. Rather, permitting claims like Fields’—ones that involve isolated instances of abuse by individual officers—who then deny a federal prisoner access to administrative remedies—is “entirely in line with the PLRA,” the Court declared.

Accordingly, the district court’s order was partially reversed and the case remanded to hear those claims related “to the individual officers who personally subjected Fields to excessive force.” A request for rehearing before the entire Fourth Circuit en banc was denied on October 22, 2024. See: Fields v. Fed. Bureau of Prisons, 109 F.4th 264 (4th Cir. 2024); and 2024 U.S. App. LEXIS 26660 (4th Cir.). It is important to note that the Court did not recognize a Bivens claim for every federal prisoner subjected to excessive force by guards; the decision rather was narrowed to “egregious physical abuse with no imaginable penological benefit,” after which access was denied to all administrative remedies. As the Eleventh Circuit recognized in a decision on October 3, 2024, Fields was also decided over a “vigorous and cogent dissent” by a majority whose opinion it called “a far-afield outlier.”