Seventh Circuit Affirms Dismissal of Retaliation Claim By Federal Prisoner Against Guard in Illinois Lockup Who Saw Grievance Against Him
by Matt Clarke
On November 28, 2023, the U.S. Court of Appeals for the Seventh Circuit declined to let a federal prisoner sue officials with the federal Bureau of Prisons (BOP) who allegedly put him in harm’s way at an Illinois lockup. The decision was predictable, given the adamant refusal by the current Supreme Court of the U.S. (SCOTUS) to extend earlier rulings allowing money damages against the federal government for violating a prisoner’s civil rights in Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
However, the Seventh Circuit’s decision also demonstrates that other rulings favoring prisoners’ rights are vulnerable, as well, to the reactionary predations of the current SCOTUS—including the right to be protected from foreseeable dangers, as laid out in Farmer v. Brennan, 511 U.S. 825 (1994).
BOP held Roy Sargeant at the U.S. Penitentiary in Thomson, Illinois, when he filed a grievance against Nicole Cruz, a prison official who allegedly “commented on his sexual preferences and refused to give him some books that he had ordered,” as the Seventh Circuit recalled. When Sargeant was shown the response to his grievance by case manager Aracelie Barfield, he noticed that Cruz had signed it and objected that she shouldn’t have seen it all, under BOP policy.
Barfield then allegedly—and spitefully—spread the story even farther, for which Sargeant filed a grievance against her, too. In retaliation, he said, she took him out of cells with other government informants and confined him with prisoners who were not, but knew he was by his classification. “Predictably, this led to ‘some fights’ between Sargeant and his cellmates,” the Court noted.
Sargeant filed suit pro se against Barfield in federal court for the Northern District of Illinois, proceeding under 42 U.S.C. § 1983 to accuse her of retaliation. The district court screened his complaint, deciding this was a First Amendment retaliation claim. But under Bivens as currently extended, that is not a recognized claim, the district court said. It dismissed the complaint, and Sargeant appealed.
His appointed counsel then sought to abandon any First Amendment claim and assert an Eighth Amendment failure-to-protect claim. The Seventh Circuit permitted this, saying the facts clearly raised an Eighth Amendment claim that the district court should not have dismissed. But that victory was short-lived; the Court went on to decide that a failure-to-protect claim cannot be raisedunder Bivens.
The story of that decision, the Court said, “plays out in three acts: ‘creation, expansion, and restriction.’” Bivens created a federal civil rights action for unreasonable search and seizure in violation of the Fourth Amendment. Davis v. Passman, 442 U.S. 228 (1978), expanded it to include sexual discrimination by a federal employer, in violation of the Fifth Amendment’s Due Process protections. Coleman v. Greene, 446 U.S. 228 (1980), expanded it again to include inadequate medical care in violation of the Eighth Amendment’s guarantee of freedom from cruel and unusual punishment.
But as the Court noted, SCOTUS has restricted further expansion of Bivens, declaring in Ziglar v. Abbasi, 582 U.S. 120 (2017), that “creating remedies is a job for the legislature, not the judiciary,” Moreover, it said in Hernandez v. Mesa, 140 S.Ct. 745 (2020), claims under the Fourth, Fifth or Eighth Amendments may not proceed outside the context of those already recognized. Most recently, in Egbert v. Boule, 596 U.S. 482 (2022), SCOTUS simply advised against granting Bivens recognition “if there is any reason to think that Congress might be better equipped to create a damages remedy.”
Sargeant argued that SCOTUS had already extended the Bivens doctrine to failure-to-protect claims in Farmer; in that case, BOP guards could be found deliberately indifferent to a transgender prisoner’s risk of harm when they housed her with male prisoners who assaulted her. But the Seventh Circuit disagreed, saying that case never definitively addressed the issue of money damages. It thus joined the Fourth Circuit in holding that Farmer did not expand Bivens. It also said that this left “no way forward for Sargeant’s claim.” Instead, Congress was in a better position to craft a remedy for prisoners like him. Thus dismissal of his case was affirmed.
In his dissent, Judge David F. Hamilton called out the majority for “see[ing] some writing on the wall and anticipat[ing] that Sargeant’s case could no longer survive” review by the current SCOTUS. “That prediction may turn out to be correct,” he said, “but I do not view that outcome as inevitable.” Rather, he agreed with the Third Circuit that Bivens has long recognized claims like Sargeant’s “for deliberately putting a prisoner in danger of violence from other prisoners.” Performing legal gymnastics to find otherwise, he chided the majority, has “the practical effect of limiting Bivens, Carlson, and Davis strictly to their facts, thereby implicitly overruling Farmer v. Brennan”—which, he acknowledged, “may be the intent of the Supreme Court's most recent cases.” See: Sargeant v. Barfield, 87 F.4th 358 (7th Cir. 2023).
A request for rehearing before the entire Seventh Circuit en banc was denied on March 19, 2024. Before the Court, Sargeant was represented by attorneys with Arnold & Porter Kaye Scholer LLP in Washington, D.C. See: Sargeant v. Barfield, 2024 U.S. App. LEXIS 6551 (7th Cir.).
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Related legal case
Sargeant v. Barfield
| Year | 2024 |
|---|---|
| Cite | 2024 U.S. App. LEXIS 6551 (7th Cir.) |
| Level | Court of Appeals |
| Appeals Court Edition | F.4th |