Nebraska Law Review
Volume 96 | Issue 4

Article 5

2018

Holding Federal Prison Officials Accountable: The
Case for Recognizing a Damages Remedy for
Federal Prisoners’ Free Exercise Claims
Nicole B. Godfrey
University of Denver Sturm College of Law, ngodfrey@law.du.edu

Follow this and additional works at: https://digitalcommons.unl.edu/nlr
Recommended Citation
Nicole B. Godfrey, Holding Federal Prison Officials Accountable: The Case for Recognizing a Damages Remedy for Federal Prisoners’ Free
Exercise Claims, 96 Neb. L. Rev. 924 (2017)
Available at: https://digitalcommons.unl.edu/nlr/vol96/iss4/5

This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been
accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln.

Electronic copy available at: https://ssrn.com/abstract=3897753

Nicole B. Godfrey*

Holding Federal Prison Officials
Accountable: The Case for
Recognizing a Damages Remedy
for Federal Prisoners’ Free
Exercise Claims
TABLE OF CONTENTS
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. Development of Damages Remedy Against Government
Officials for Constitutional Violations . . . . . . . . . . . . . . . . . .
A. Damages Against State and Local Officials Under
42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Damages Against Federal Officials Under Bivens v.
Six Unknown Named Agents of Federal Bureau of
Narcotics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. The Future of Bivens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. Extending Bivens to Free Exercise Claims Brought by
Federal Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Is a Bivens Remedy for Free Exercise Claims Truly
an Extension of Bivens? . . . . . . . . . . . . . . . . . . . . . . . . . . .

925
930
931
932
939
947
948

© Copyright held by the NEBRASKA LAW REVIEW. If you would like to submit a response to this Article in the Nebraska Law Review Bulletin, contact our Online
Editor at lawrev@unl.edu.
* Clinical Teaching Fellow, Civil Rights Clinic, University of Denver Sturm College
of Law. For comments, insight, and discussion on an earlier draft during the University of Denver’s Constitutional Rights & Remedies Summer Scholarship Series 2016, I am grateful to Nancy Leong, Alan Chen, Courtney Cross, Ian Farrell,
Danielle Jefferis, Sam Kamin, Tammy Kuennen, Rachel Moran, Laura Rovner,
and Lindsey Webb. For additional comments and insight on later drafts, I thank
Cara Godfrey, Kevin Lynch, Danielle Jefferis, Tammy Kuennen, and Laura
Rovner and my fellow fellows, Tim Estep, Casey Faucon, Rachel Moran, and Jennifer Wadhwa. Finally, a special thanks to two generations of student attorneys
who litigated a case on behalf of a Muslim man in federal prison seeking to vindicate his religious rights through damages claims—Haley DiRenzo, Ellen Giarratana, Aurora Randolph, and Sarah Roisman. I am also forever grateful to the
many clients who have inspired me to do this work and write this piece. All errors
are my own.

924

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE
B. Do Special Factors Exist that Would Counsel
Hesitation in Expanding the Availability of a Bivens
Remedy for Free Exercise Claims Brought by
Federal Prisoners? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Has Congress Created an Adequate Alternative
Remedy to Address the Violation of Federal
Prisoners’ Free Exercise Rights? . . . . . . . . . . . . . . . . . . .
IV. Importance of a Damages Remedy for Substantial
Burdens on the Free Exercise of Religion in Prisons . . .
A. The Stanford Prison Experiment and the “Lucifer
Effect”: How Prisons Create an Environment Ripe
for Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Importance of Religious Rights in Prison . . . . . .
C. The Historical Purpose of Punitive Damages . . . . . . .
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

925

952
956
965
966
969
971
972

“But a right implies a remedy . . . .”
—James Madison1
I.

INTRODUCTION

In January 2000, three New York state prison officials refused to
provide Wayne Ford, a Muslim prisoner, one religious meal: the Eid ul
Fitr feast that marks the completion of Ramadan.2 Mr. Ford sued the
prison officials for damages, claiming this refusal placed a substantial
burden on his religious practice without legitimate penological justification in violation of the First Amendment’s Free Exercise Clause.3
After the district court granted summary judgment in favor of the
prison officials, Mr. Ford appealed, and the Second Circuit vacated the
decision of the district court.4 On remand, Mr. Ford settled his claims
against the individual state prison officers for an undisclosed
amount.5
If Mr. Ford had been in a federal prison instead of a state prison,
the federal courts would have afforded him no relief for this violation
of his religious rights.6 This is because federal courts have steadfastly
1.
2.
3.
4.
5.

THE FEDERALIST NO. 43, at 237 (James Madison) (J.R. Role ed., 2005).
Ford v. McGinnis, 352 F.3d 582, 584 (2d Cir. 2003).
Id.
Id. at 598.
Stipulation of Settlement and Order of Dismissal, Ford v. McGinnis, 230 F. Supp.
2d 338 (S.D.N.Y. 2002) (No. 00 Civ. 03437).
6. See, e.g., Turkmen v. Hasty, 789 F.3d 218, 236 (2d Cir. 2015) (holding that no
damages remedy was available for violations of the First Amendment’s Free Exercise Clause where federal detainees were denied access to Koran and religious
meals); Ajaj v. United States, No. 15-cv-00992-RBJ-KLM, 2016 WL 6212518, at
*3 (D. Colo. Oct. 25, 2016); Brown v. Prisons, No. 3:14-cv-681 (RNC), 2016 WL

Electronic copy available at: https://ssrn.com/abstract=3897753

926

NEBRASKA LAW REVIEW

[Vol. 96:924

refused to extend the holding of Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics7 to Free Exercise claims brought
against federal agents, thereby leaving federal prisoners without a
remedy at law for violations of their religious rights. This result—
whereby state prisoners are afforded remedial protections for their religious rights that are denied to federal prisoners—allows federal
prison officials to act with impunity while their state counterparts are
held liable for the same unconstitutional conduct. Such an outcome is
arbitrary and contrary to constitutional design.8
This Article argues the federal courts should extend Bivens to recognize the availability of a damages remedy against federal prison officials who violate a prisoner’s Free Exercise rights. After examining
the development of the damages remedy for constitutional violations,
including the Supreme Court’s retraction of Bivens over the last two
decades and the Court’s most recent Bivens decisions from last term,
the Article first argues lower courts have wrongly applied the current
Bivens framework to determine a damages remedy remains unavailable to federal prisoners with Free Exercise claims. Using the Court’s
most recent Bivens decision as a guidepost, the Article systematically
describes the challenges of recognizing a damages remedy in this context, providing a blueprint that may be transferrable to other constitutional contexts. Then the Article argues that allowing for damages—
particularly punitive damages—for violations of a federal prisoner’s
religious rights serves a dual purpose. First, allowing federal prisoners to assert damages claims protects the inherent dignity and redemptive value of prisoners’ spiritual lives—a protection that serves
the rehabilitative purposes of imprisonment. Second, the availability
of monetary relief to federal prisoners furthers the earliest purposes of
1305102, at *1 (D. Conn. Mar. 31, 2016) (holding that no damages remedy was
available where federal prisoner was subject to a cross-gender pat down in violation of her sincerely held religious beliefs); Rezaq v. Fed. Bureau of Prisons, No.
13-cv-00990-MJR-SCW, 2016 WL 97763, at *9 (S.D. Ill. Jan. 8, 2016) (holding
that no damages remedy was available under the First Amendment Free Exercise clause where a federal prison official refused to accommodate a Muslim prisoner’s observance of Ramadan); Saleh v. United States, No. 09-cv-02563-PABKLM, 2011 WL 2682803, at *16 (D. Colo. Mar. 8, 2011), overruled in part on other
grounds, 2011 WL 2682728, at *5 (July 8, 2011).
7. 403 U.S. 388 (1971).
8. See, e.g., Carlson v. Green, 446 U.S. 14, 22 (1980) (“[T]he ‘constitutional design’
would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same constitutional transgression.” (quoting
Butz v. Economou, 438 U.S. 478, 504 (1978))); Butz, 438 U.S. at 506 (“In situations of abuse, an action for damages against the responsible official can be an
important means of vindicating constitutional guarantees.”); United States v.
Lee, 106 U.S. 196, 220 (1882) (“No man in this country is so high that he is above
the law. No officer of the law may set that law at defiance with impunity. All the
officers of the government, from the highest to the lowest, are creatures of the law
and are bound to obey it.”).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

927

punitive or exemplary damages: to compensate individuals for dignitary harms suffered as a result of government misconduct. Finally,
the Article argues that by allowing federal prison officials to remain
free from liability for violations of the Free Exercise Clause, the federal courts are abdicating their responsibility “to review the constitutionality of executive actions affecting individual rights”9 and
effectively overruling Bivens.
Part II provides a brief overview of the parallel development and
recognition of a damages remedy for constitutional violations by local,10 state,11 and federal actors.12 Part II then discusses the implications of the Supreme Court’s most recent Bivens cases: Ziglar v.
Abbasi13 and Hernandez v. Mesa.14 Part II concludes by providing a
historical overview of Bivens scholarship, tracing each wave of scholarship following each set of new Bivens decisions and commenting on
the future of Bivens in light of Abbasi.
Part III argues that the lower court decisions declining to extend a
damages remedy to federal prisoners’ Free Exercise claims were
wrongly decided under the existing Bivens framework, even with the
new guidance offered by Abbasi. Part III first examines whether the
context presented here—federal prisoners’ Free Exercise claims—is
truly a new context under existing Bivens precedent. The Article goes
on to examine the two-part analysis in every Bivens case: (1) whether
special factors counsel hesitation in expanding the Bivens remedy to
the new context and (2) whether adequate alternative remedies exist
to protect the constitutional right at issue.
In this analysis, the court must first consider whether special factors counsel hesitation from expansion of the Bivens remedy.15 In
prior cases, special factors included cases involving military affairs;16
cases against private corporations acting under color of law;17 cases
against federal agencies, rather than individuals;18 and cases where it
is too difficult to ascertain a workable cause of action.19 The rationale
provided in each of these cases is that the purpose of Bivens liability is
to deter individual government actors from unconstitutional conduct,
9. George Bach, Answering the “Serious Constitutional Question”: Ensuring Meaningful Review of All Constitutional Claims, 117 W. VA. L. REV. 177, 181 (2014).
10. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 (1986).
11. Smith v. Wade, 461 U.S. 30 (1983); Carey v. Piphus, 435 U.S. 247 (1978).
12. Bivens, 403 U.S. 388.
13. 137 S. Ct. 1843 (2017).
14. 137 S. Ct. 2003 (2017).
15. Carlson v. Green, 446 U.S. 14, 18 (1980); Davis v. Passman, 442 U.S. 228, 245
(1979).
16. United States v. Stanley, 483 U.S. 669, 683 (1987); Chappell v. Wallace, 462 U.S.
296, 300 (1983).
17. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001).
18. FDIC v. Meyer, 510 U.S. 471, 484–86 (1994).
19. Wilkie v. Robbins, 551 U.S. 537, 560–61 (2007).

Electronic copy available at: https://ssrn.com/abstract=3897753

928

NEBRASKA LAW REVIEW

[Vol. 96:924

and that purpose would not be fulfilled in these instances.20 None of
these special factors are present where a federal prisoner challenges
the unconstitutional conduct of a federal prison official. Moreover, the
special factor most often identified by the lower courts declining to
extend Bivens in the First Amendment context is the so-called deference to be afforded prison officials in constitutional litigation.21 But
this concern conflates the limited way in which the First Amendment
already applies in a prison setting with a “special factor” counseling
hesitation in the Bivens context. To the extent there are concerns
about judicial intervention in the management of prisons, those concerns are fully addressed by the substantive limitations placed on the
reach of the First Amendment in the prison context.22
Part III then examines the second prong of the Bivens standard,
whether “Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.”23 The Supreme Court has
found congressionally created civil service and Social Security remedies24 and state tort claims25 to be adequate alternative remedies.
Here, the Article examines the one close call to whether an alternative
remedy exists, the Religious Freedom Restoration Act (RFRA),26 concluding there is no congressionally provided alternative remedy that
would substitute for Bivens recovery. The other adequate alternative
remedies often identified by the lower courts addressing a Free Exercise claim seeking relief under Bivens are the federal prison system’s
20. See, e.g., Malesko, 534 U.S. at 70–71.
21. See Ajaj v. United States, No. 15-cv-00992-RBJ-KLM, 2016 WL 6212518, at *3
(D. Colo. Oct. 25, 2016); Shepard v. Rangel, No. 12-cv-01108-RM-KLM, 2014 WL
7366662, at *11 (D. Colo. Dec. 24, 2014).
22. See Turner v. Safley, 482 U.S. 78, 89–91 (1987).
23. Carlson v. Green, 446 U.S. 14, 18–19 (1980) (citing Davis v. Passman, 442 U.S.
228, 245–47 (1979)).
24. Schweiker v. Chilicky, 487 U.S. 412, 421–22 (1988) (Social Security benefits);
Bush v. Lucas, 462 U.S. 367, 381–89 (1983) (civil service system).
25. Malesko, 534 U.S. at 72–73.
26. A potential avenue of alternative relief could be the availability of monetary relief
under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to bb4 (2012). Passed by Congress in 1993, the Supreme Court held RFRA unconstitutional as applied to the states, but the statute remains in effect as applied to the
federal government. See City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997);
O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003). Courts are split
on whether RFRA created a cause of action for damages against individuals for
substantial burdens on religious rights. Compare Patel v. Bureau of Prisons, 125
F. Supp. 3d 44, 53 (D.D.C. 2015) (damages claims recognized), with Tanvir v.
Lynch, 128 F. Supp. 3d 756, 780–81 (S.D.N.Y. 2015). Whether and how the availability of monetary relief under RFRA might impact the analysis provided in this
Article is briefly discussed infra section III.C. A more robust discussion would be
worthwhile, but it is beyond the scope of this piece.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

929

grievance program and the availability of injunctive relief.27 Neither
of these options, however, provides the type of meaningful and alternative relief contemplated by the Supreme Court in Bivens.
Part IV provides a three-fold argument on the importance of a
damages remedy for substantial burdens on prisoners’ Free Exercise
rights. First, the Article discusses the particular vulnerability of the
prison population and argues this vulnerability makes the protection
of religious rights all the more important. Prisoners are a particularly
vulnerable population because they are subject to the arbitrary whims
of their captors at all times. When these arbitrary whims rise to the
level of constitutional violations, particularly when those affected are
members of unpopular or particularly targeted religious group, the resultant harms are dignitary in nature and target a prisoner’s very notion of self. The second piece of the argument in Part IV asserts that
such harms deserve the utmost constitutional protection. With these
ideas in mind, Part IV argues that affording prisoners the opportunity
to recover damages for violation of their religious rights perfectly
aligns with the historical purpose of punitive damages.28 The earliest
English common law cases allowing for exemplary damages “did so
only in instances where some sort of dignitary harm to the plaintiff
had been established, but remained otherwise uncompensated.”29 Allowing prisoners to seek punitive damages for the dignitary harms associated with Free Exercise violations affords the socially powerless—
those unable to protect themselves—the opportunity to vindicate their
constitutionally protected rights when they are violated by the much
more powerful individual prison guards, a purpose consistent with the
historical role of punitive damages in our legal system.30
Finally, Part V concludes by discussing how creating a system
whereby state prisoners are allowed to seek damages for the dignitary
harms associated with Free Exercise violations but in which federal
prisoners are not afforded the same remedy for the same violation of
rights, the federal courts are sanctioning “a system that arbitrarily
27. See, e.g., Ajaj v. Fed. Bureau of Prisons, No. 15-cv-00992-RBJ-KLM, 2017 WL
219343, at *2–5 (D. Colo. Jan. 17, 2017).
28. Because the Prisoner Litigation Reform Act (PLRA) would most likely bar recovery of compensatory damages, my focus here is on punitive damages. See 42
U.S.C. § 1997e(e) (2012). But see Wilcox v. Brown, 877 F.3d 161, 169–70 (4th Cir.
2017) (recognizing the availability of recovery for some compensable harms under
the First Amendment).
29. Martin H. Redish & Andrew L. Mathews, Why Punitive Damages Are Unconstitutional, 53 EMORY L.J. 1, 14 (2004).
30. Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’ Individual Liability Under Bivens, 88 GEO. L.J. 65, 71 (1999); Michael
Rustad & Thomas Koenig, The Historical Continuity of Punitive Damages
Awards: Reforming the Tort Reformers, 42 AM. U. L. REV. 1269, 1285 (1993) (“The
history of the rise of the doctrine of punitive damages is a part of the struggle of
individuals to preserve their rights against the mighty.”).

Electronic copy available at: https://ssrn.com/abstract=3897753

930

NEBRASKA LAW REVIEW

[Vol. 96:924

punish[es] some people’s illegal conduct while systematically—or haphazardly—leaving others’ misconduct untouched.”31 Such a system,
whereby the rights of state prisoners are protected but the rights of
federal prisoners are not, is inconsistent with even the most recent
Bivens decisions from the Supreme Court.32
II. DEVELOPMENT OF DAMAGES REMEDY AGAINST
GOVERNMENT OFFICIALS FOR CONSTITUTIONAL
VIOLATIONS
While the founders likely envisioned the availability of a damages
remedy for the violation of constitutional rights,33 the federal courts
remained largely unreceptive to claims for damages for constitutional
violations until the second half of the twentieth century.34 Since then,
the availability of a damages remedy for constitutional violations committed by state officials is clear and nearly universal, absent successful assertion of an immunity defense.35 In stark contrast, the
31. Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate
Sanction, 94 CORNELL L. REV. 239, 271 (2009).
32. Cf. Minneci v. Pollard, 565 U.S. 118 (2012).
33. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425,
1488 (1987) (“Even in the absence of today’s more expansive vision of affirmative
rights, the framers recognized that affirmative relief would often be essential to
protect negative rights—especially where the government violation could not be
prevented ex ante, and where the government would enjoy the fruits of its past
violations.”); Anthony DiSarro, When a Jury Can’t Say No: Presumed Damages
for Constitutional Torts, 64 RUTGERS L. REV. 333, 337 (2012) (“[D]amages were
intended to play a central, if not preeminent, role in remedying infringements of
constitutional rights.”).
34. See, e.g., Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 (1986) (recognizing
that compensatory damages are only available for constitutional violations resulting in actual injury and that absent actual injury, only nominal damages are
available); Carey v. Piphus, 435 U.S. 247 (1978) (same); Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing a
damages remedy for Fourth Amendment violations against federal officials);
Monroe v. Pape, 365 U.S. 167 (1961) (first recognizing the availability of a damages remedy for actions brought against state and local officials under 42 U.S.C.
§ 1983).
35. Government actors sued in their individual (or personal) capacities are often entitled to assert a defense of absolute immunity. See, e.g., Bogan v. Scott-Harris, 523
U.S. 44, 49 (1998) (recognizing absolute immunity for state and local legislators
engaging in legislative acts); Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (recognizing absolute judicial immunity); Briscoe v. LaHue, 460 U.S. 325 (1983) (recognizing absolute immunity for police officer witnesses who testify in judicial
proceedings); Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976) (recognizing absolute prosecutorial immunity). Even when no absolute immunity protections apply, government officials can avail themselves of the protections of qualified
immunity so long as the law was not yet clearly established at the time the official committed the unconstitutional act. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982); see also Thomas A. Eaton & Michael L. Wells, Attorney’s Fees, Nominal Damages, and Section 1983 Litigation, 24 WM. & MARY BILL RTS. J. 829, 836

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

931

availability of damages to persons whose rights are violated by federal
officials is increasingly uncertain.36 The divergence in the availability
of a damages remedy is discussed in detail in the following sections.
A.

Damages Against State and Local Officials Under 42
U.S.C. § 1983

Congress passed 42 U.S.C. § 1983 as part of the Civil Rights Act of
1871, at the height of the tumultuous Reconstruction era that followed
the Civil War.37 Through this statute, Congress sought “to provide a
federal forum for civil rights claims”38 in large part “because, by reason of prejudice, passion, neglect, intolerance or otherwise,” state
courts were failing to enforce the rights, privileges, and immunities
guaranteed by the newly enacted Fourteenth Amendment.39 While
§ 1983 lay largely dormant for just under a century, the legislative
history makes clear Congress intended the law provide monetary relief to victims of constitutional rights violations by state and local
authorities.40
It authorizes any person who is deprived of any right, privilege, or immunity
secured to him by the Constitution of the United States, to bring an action
against the wrongdoer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man
may not be five dollars or even five cents; they may be what lawyers call
merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal Courts . . . .41

Relying heavily on this legislative history, the U.S. Supreme Court
first expressly recognized a cause of action under § 1983 in Monroe v.

36.
37.

38.
39.
40.

41.

(2016) (stating that defendants not already given absolute immunity have qualified immunity and “can be held liable for money damages only if their conduct
violated clearly established constitutional law”).
The contracting availability of a damages remedy against agents of the federal
government is discussed in detail infra section II.B.
The Civil Rights Act of 1871 was also known as the “Ku Klux Klan Act” and was
undoubtedly meant to redress “the failure of certain states to enforce their laws
with an even hand.” Mitchell J. Edlund, In the Heat of the Chase: Determining
Substantive Due Process Violations Within the Framework of Police Pursuits
When an Innocent Bystander Is Injured, 30 VAL. U. L. REV. 161, 169, 170 n.41
(1995).
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989).
Monroe, 365 U.S. at 180; see also Eaton & Wells, supra note 35, at 835 (stating
that the statute was enacted in order to enforce the Fourteenth Amendment).
While the Supreme Court initially declined to recognize a cause of action against
local officials under 42 U.S.C. § 1983, see Monroe, 365 U.S. at 190–92, it has since
held municipal entities can be held liable under § 1983 when an official’s unconstitutional action carried out a municipal policy or practice. See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690–91 (1978).
Monroe, 365 U.S. at 179–80 (quoting CONG. GLOBE, 42d Cong., 1st Sess. 216
(1871)).

Electronic copy available at: https://ssrn.com/abstract=3897753

932

NEBRASKA LAW REVIEW

[Vol. 96:924

Pape,42 decided in 1961. Notably, the Monroe Court unambiguously
found the federal remedy under § 1983 is “supplementary to the state
remedy.”43 In other words, the existence of concurrent state remedies
is not a bar to a cause of action under § 1983.44
Since Monroe, § 1983 litigation steadily expanded.45 The Supreme
Court has recognized that nominal, punitive, and compensatory damages are available under the statute, and even where compensatory
damages cannot be established due to lack of an actual injury, nominal and punitive damages remain available to redress a constitutional
violation.46 While the remedies available to victims of constitutional
violations by state and local actors continued to grow, the same could
not be said for the redressability of the very same violations by federal
actors.
B.

Damages Against Federal Officials Under Bivens v. Six
Unknown Named Agents of Federal Bureau of
Narcotics47

As the Supreme Court gradually acknowledged the full scope of
remedies available under § 1983, it also began recognizing the availability of monetary relief for constitutional violations perpetrated by
agents of the federal government.48 The first case to recognize a cause
of action for damages against individual federal officials for violations
of constitutional rights was Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics.49 Prior to Bivens, victims of constitutional violations by federal officers could seek relief only in state
courts through common law suits for trespass against the federal
agents.50 Yet, by the time Bivens reached the Court, “several flaws in
42.
43.
44.
45.
46.

47.
48.
49.
50.

Id. at 167.
Id. at 183.
Zinermon v. Burch, 494 U.S. 113, 124 (1990).
See Hudson v. Michigan, 457 U.S. 586 (2006).
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 (1986) (recognizing that
compensatory damages are only available for constitutional violations resulting
in actual injury and that absent actual injury only nominal damages are available); Smith v. Wade, 461 U.S. 30 (1983) (establishing punitive damages are available for § 1983 claims where a government official acted with evil motive or
intent or in callous disregard to federally protected rights); Carey v. Piphus, 435
U.S. 247 (1978) (recognizing that compensatory damages are only available for
constitutional violations resulting in actual injury and that absent actual injury
only nominal damages are available).
403 U.S. 388 (1971).
See, e.g., Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442 U.S. 228
(1979); Bivens, 403 U.S. 388.
403 U.S. 388.
James E. Pfander, The Story of Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, in FEDERAL COURTS STORIES 275, 280 (Vicki C. Jackson & Judith Resnik eds., 2010); see also STEPHEN I. VLADECK, AM. CONSTITUTION
SOC’Y FOR LAW & POLICY, THE BIVENS TERM: WHY THE SUPREME COURT SHOULD

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

933

the original model had crystallized.”51 First, not all constitutional
rights have close analogues in state tort law.52
Second, the same period saw federal courts more routinely asserting the
power to enjoin unconstitutional conduct by the federal government—even
though, as with damages, no statute expressly authorized them to provide
such relief—creating both a strange jurisdictional asymmetry between prospective and retrospective relief against federal officers and a precedent for a
more aggressive federal judicial role.53

Finally, the development of the federal common law provided an analytic framework through which the federal judiciary could assess
whether a judicially created, rather than statutory, remedy might be
available in a certain context.54 “These developments came to a head
in Bivens.”55
The Bivens case began the day after Thanksgiving 1965 when a
group of federal agents from the Drug Enforcement Agency, then
known as the Federal Bureau of Narcotics, without a warrant
“knocked on the door of the apartment of Webster Bivens, arrested
him on narcotics charges, and searched the premises.”56 The agents
not only arrested Mr. Bivens without a warrant, but they used unreasonable force when doing so, shackling him in front of his wife and
children and subjecting him to a humiliating strip search.57 The officers never charged the innocent Mr. Bivens with a crime, and Mr.
Bivens challenged the violation of his Fourth Amendment rights by
filing suit in federal court, requesting fifteen thousand dollars in damages from each of the federal officers.58

51.
52.
53.
54.
55.
56.
57.
58.

REINVIGORATE DAMAGES SUITS AGAINST FEDERAL OFFICERS 2 (2017), https://www
.acslaw.org/sites/default/files/The_Bivens_Term.pdf [https://perma.unl.edu/L2B3Q4LQ] (“When it comes to suits for damages for abuse of power, federal officials
are usually governed by local law.”).
VLADECK, supra note 50.
Id.
Id.
Id. (quoting Henry J. Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N.Y.U. L. REV. 383, 389–91 (1964)).
Id.
Pfander, supra note 50, at 280.
Id.
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
390 (1971). Mr. Bivens filed his lawsuit in the Eastern District of New York, invoking jurisdiction under 42 U.S.C. § 1983; 28 U.S.C. § 1343(3)–(4); and 28
U.S.C. § 1331, the federal question statute, which, at the time, required that the
amount in controversy exceed ten thousand dollars. Pfander, supra note 50, at
281. The government moved to dismiss Mr. Bivens’s pro se action, arguing that
Mr. Bivens could not bring suit under § 1983 against federal agents and that the
agents enjoyed absolute immunity under § 1331. Id. at 282. The district court
granted the government’s motion, finding that the federal officers enjoyed absolute immunity. Id. Mr. Bivens sought leave to appeal in forma pauperis, and in
response, the district court issued a new opinion holding that Mr. Bivens’ complaint presented no federal question because no implied right of action for damages against federal officers existed. Id. at 282–83. In the Second Circuit, after

Electronic copy available at: https://ssrn.com/abstract=3897753

934

NEBRASKA LAW REVIEW

[Vol. 96:924

Unsuccessful in both the district court and the U.S. Circuit Court
for the Second Circuit, Mr. Bivens filed a petition for certiorari to the
Supreme Court in May 1969.59 The Court ultimately granted certiorari and issued its opinion on June 21, 1971, reversing the holding of
the Second Circuit.60 In a 5–3 opinion, the Court held the Constitution
itself provides a cause of action for damages for violations of the
Fourth Amendment by individual federal agents.61 Specifically, the
Court determined that so long as Congress had not provided an adequate alternative remedy for violation of the right at issue and so long
as there were no special factors counseling the Court to hesitate acting
in an area where Congress had not, “private individuals whose constitutional rights had been violated by federal officers were entitled to
pursue damages remedies in the federal courts.”62
In the period immediately following Bivens, both the Supreme
Court and the lower federal courts extended the Bivens remedy to
other constitutional violations.63 Notably, the federal courts extended
Bivens to First Amendment Free Speech claims,64 First Amendment
Freedom of Association claims,65 Fifth Amendment Equal Protection
claims,66 Fifth Amendment Due Process claims,67 Sixth Amendment
right-to-an-attorney claims,68 and Eighth Amendment prison-conditions claims.69 Of these, the Supreme Court itself expressly expanded

59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.

appointment of counsel, Mr. Bivens lost again. The panel upheld the district
court’s determination that no implied right of action existed. Id. The Second Circuit further found that Congress had not created a cause of action in this area
and that it would be inappropriate for the federal courts “to fill the hiatus left in
this area by Congress . . . since . . . the absence of a federal damage action has not
rendered illusory the right to remain free from unreasonable search and seizure
in view of the other remedies available for its enforcement.” Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 409 F.2d 718, 725 (2d Cir.
1969).
Pfander, supra note 50, at 283.
Bivens, 403 U.S. at 395–97.
Id.
VLADECK, supra note 50, at 3. Importantly, valid defenses remain available to
federal agents sued under Bivens. Id.
Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 STAN. L. REV. 809, 811 (2010).
Howard v. Warden, 348 F. Supp. 1204, 1205 (E.D. Va. 1972) (recognizing Bivens
remedy for First Amendment claim, but ultimately finding plaintiff failed to state
a claim under the First Amendment).
Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975).
Davis v. Passman, 442 U.S. 228, 234–35 (1979); Dry Creek Lodge, Inc. v. United
States, 515 F.2d 926, 931–32 (10th Cir. 1975).
Apton v. Wilson, 506 F.2d 83, 93–94 (D.C. Cir. 1974); States Marine Lines, Inc. v.
Shultz, 498 F.2d 1146, 1157–58 (4th Cir. 1974); U.S. ex rel. Moore v. Koelzer, 457
F.2d 892, 894 (3d Cir. 1972).
Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 161–62 (D.D.C. 1976).
Carlson v. Green, 446 U.S. 14, 19–20 (1980); Patmore v. Carlson, 392 F. Supp.
737, 739–40 (E.D. Ill. 1975); Walker v. McCune, 363 F. Supp. 254, 256 (E.D. Va.
1973).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

935

Bivens to include employment-discrimination claims brought under an
Equal Protection theory encompassed by the Fifth Amendment’s Due
Process Clause70 and cruel-and-unusual-conditions claims brought
under the Eighth Amendment.71 Indeed, after Bivens, courts and commentators understood that the Supreme Court would continue to treat
Bivens actions in the same manner as actions brought under § 1983.72
Carlson v. Green provides a clear picture of how and why this understanding developed.
In Carlson, the estate of Joseph Jones, Jr., through the administrator and decedent’s mother, Marie Green, sued federal prison officials
for personal injuries her son endured while in the custody of said officials at the U.S. Penitentiary-Terre Haute, in Terre Haute, Indiana.73
Mr. Jones, who suffered from asthma, had an asthma attack on August 15, 1975, and went to the prison infirmary where he suffered for
eight hours without seeing a doctor or receiving treatment.74 Eventually, a federal prison official administered two injections of Thorazine
to Mr. Jones, ignoring that the injections were contraindicated for
treatment of an asthma attack.75 After the second injection, Mr. Jones
suffered a heart attack and died.76 Ms. Green sued prison officials for
damages for the violation of her son’s Eighth Amendment rights.77
While the district court determined Indiana’s survival statutes precluded a cause of action by Mr. Jones’s estate,78 the Seventh Circuit
reversed, holding the estate could seek vindication of Mr. Jones’s
rights through Bivens.79
70. Davis, 442 U.S. at 234–35. Davis found that a Congressman could be held liable
for employment discrimination under Bivens. Id. at 230–31. In its most recent
term, the Supreme Court cast doubt on the continued viability of much of the
analysis in Davis. It indicated that because Davis was decided “before the Court’s
cautionary instructions with respect to Bivens suits” were announced, it could not
provide guidance on later employment discrimination claims brought in new contexts. Ziglar v. Abbasi, 137 S. Ct. 1843, 1859 (2017). Abbasi is discussed in detail
infra section III.C.
71. Carlson, 446 U.S. 14.
72. Reinert, supra note 63, at 822; see also George D. Brown, “Counter-Counter-Terrorism via Lawsuit”—The Bivens Impasse, 82 S. CAL. L. REV. 841, 858 (2009)
(noting that during the Davis and Carlson era, courts presumed that constitutional damages actions should go forward); Gary S. Gildin, The Standard of Culpability in Section 1983 and Bivens Actions: The Prima Facie Case, Qualified
Immunity and the Constitution, 11 HOFSTRA L. REV. 557, 614 (1983) (noting that
Bivens relief is not restricted to particular constitutional amendments).
73. Green v. Carlson, 581 F.2d 669, 670–71 (7th Cir. 1978).
74. Id. at 671.
75. Id.
76. Id.
77. Id.
78. Id. at 672.
79. Id. at 674 (stating that holding that the Indiana survival statutes precluded Mr.
Jones’s estate from recovering for the violation of his rights “would not only fail to

Electronic copy available at: https://ssrn.com/abstract=3897753

936

NEBRASKA LAW REVIEW

[Vol. 96:924

The Supreme Court agreed, holding that the violation of Mr.
Jones’s rights could be vindicated under a Bivens theory and that the
estate could pursue vindication of those rights after Mr. Jones’s passing.80 In recognizing the availability of a Bivens remedy, the Supreme
Court found no special factors counseled hesitation and expressly held
that Congress failed to create any adequate alternative remedies.81
First, the Court expressly found federal prison officials “do not enjoy
such independent status in our constitutional scheme as to suggest
that judicially created remedies against them might be inappropriate,” and the defense of qualified immunity could appropriately address any interference in the performance of their official duties.82
Second, the Court extensively examined whether Congress provided the estate, acting on behalf of the federal prisoner, an adequate
alternative remedy through the Federal Tort Claims Act (FTCA).83
The Court provided five reasons why Congress did not intend to supplant Bivens through the FTCA.84 As an initial matter, the Court determined the legislative history of the 1974 amendment to the FTCA
“made it crystal clear that Congress view[ed] FTCA and Bivens as parallel, complementary causes of action.”85 Second, the Court found Bivens is a more effective remedy because it not only compensates victims
of constitutional violations by the federal government but also provides a deterrent effect to correct individual federal officers’ behavior.86 In recognizing the importance of this deterrent effect, the Court

80.
81.
82.

83.

84.
85.

86.

effectuate the policy of allowing complete vindication of constitutional rights; it
would subvert that policy”).
Carlson v. Green, 446 U.S. 14, 18–23, 25 (1980).
Id. at 19.
Id. Indeed, as I discuss in extensive detail infra section III.B, any special deference to prison officials the federal courts may deem necessary is already extensively built into the substantive test for First Amendment claims brought by
prisoners, and such deference need not keep prisoners’ constitutional claims out
of court.
Id. at 19–23. The Federal Tort Claims Act (FTCA) allows for suit against the
federal government for torts committed by its employees. See 28 U.S.C.
§§ 1346(b), 2671–80 (2012). The “only proper defendant” to an FTCA claim is the
United States; a citizen cannot sue an individual federal officer on an FTCA theory of liability. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008).
Carlson, 446 U.S. at 19–23.
Id. at 19–20; id. at 20 (“[A]fter the date of enactment of this measure, innocent
individuals who are subjected to raids [like that in Bivens] will have a cause of
action against the individual Federal agents and the Federal Government. Furthermore, this provision should be viewed as a counterpart to the Bivens case and
its progenty [sic], in that it waives the defense of sovereign immunity so as to
make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes
liability upon the individual Government officials involved).” (quoting S. REP. NO.
93-588, at 3 (1973))).
Id. at 21 (“It is almost axiomatic that the threat of damages has a deterrent
effect . . . .”).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

937

specifically pointed to the similar constraining purpose of § 1983.87
Third, the Court viewed the deterrent effect created by the availability
of punitive damages under Bivens as far superior to that of the FTCA,
where punitive damages are statutorily prohibited.88 Fourth, the
Court found it significant that a plaintiff can present his Bivens claim
to a jury, while an FTCA claim must be tried to the bench.89 Finally,
because FTCA claims must be plead under state tort theories, an action under the FTCA might not exist in every state, “[y]et it is obvious
that the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules.”90 Each of these
reasons, supplied by the Supreme Court in Carlson, becomes important when considering whether federal prisoners ought to have a Bivens remedy available to them for violations of their First Amendment
Free Exercise rights, discussed in more detail below.
Despite the Court’s unequivocal articulation of the need for a Bivens remedy in Carlson, the three-plus decades since Carlson reveal a
Court reluctant to extend Bivens to new contexts.91 In some instances,
the Court determined special factors exist which preclude an extension of Bivens. Such special factors include congressional deference to
the unique requirements of the military92 and the lack of a workable
cause of action.93 In other instances, the Court conflated the specialfactors exception and the adequate-alternative-remedy exception to
conclude the existence of a congressional statute in a particular area
87. Id. at 21 n.6.
88. Id. at 22. At this point, the Court also expressly noted “that the ‘constitutional
design’ would be stood on its head if federal officials did not face at least the same
liability as state officials guilty of the same constitutional transgression.” Id.
(quoting Butz v. Economou, 438 U.S. 478, 504 (1978)).
89. Id.
90. Id. at 23 (“The question whether respondent’s action for violations by federal officials of federal constitutional rights should be left to the vagaries of the laws of
the several States admits of only a negative answer in the absence of a contrary
congressional resolution.”).
91. Reinert, supra note 63, at 822–23.
92. Following an identical limitation to FTCA claims, the Court in United States v.
Stanley declined to extend Bivens to claims brought by military service members
when the injury arose of activity “incident to service.” 483 U.S. 669, 681, 683
(1987); see also Chappell v. Wallace, 462 U.S. 296, 304 (1983) (declining to extend
Bivens to injuries suffered by members of the military while in service).
93. Wilkie v. Robbins, 551 U.S. 537, 555 (2007). In Wilkie, the Court declined to extend Bivens to a claim that officials from the Bureau of Land Management had
engaged in a pattern of harassment and intimidation to acquire an easement
across private property because a case like this, involving the “hard bargaining”
of federal officials, would “present a delicate line-drawing problem as courts and
juries struggled to say when the government had gone too far in pursuit of its
interest.” Pfander, supra note 50, at 297. At least one commentator has indicated
that Wilkie may signal that the Bivens doctrine is “on life support.” See Laurence
H. Tribe, Death by a Thousand Cuts: Constitutional Wrongs Without Remedies
After Wilkie v. Robbins, 2007 CATO SUP. CT. REV. 23, 26.

Electronic copy available at: https://ssrn.com/abstract=3897753

938

NEBRASKA LAW REVIEW

[Vol. 96:924

is itself a factor “counseling judicial hesitation.”94 For example, in
Bush v. Lucas, the Court declined to extend a Bivens remedy to civil
service employees alleging First Amendment Free Speech violations
because the existence of an “elaborate remedial system” in the form of
the Civil Service Commission’s Federal Employee Appeals Authority
counseled hesitation.95 Similarly, in Schweiker v. Chilicky, the Court
declined to extend a Bivens remedy to actions brought under the Due
Process Clause of the Fifth Amendment for the denial of Social Security benefits, deferring to the existence of a congressional scheme created to address constitutional violations that occur during the course
of the program’s administration.96 Finally, in three instances the
Court declined to extend a Bivens remedy where the constitutional violations are committed by actors who are not individual federal government officials.97 In short, in the thirty-seven years since Carlson,
the Court has not found reason to extend Bivens relief.
The Supreme Court’s last term, which began in October 2016,
brought two cases implicating the availability of a Bivens remedy for
unconstitutional conduct by federal government actors: Ziglar v. Abbasi98 and Hernandez v. Mesa.99 Neither case resulted in an extension
of the Bivens remedy, but both left open the possibility of a Bivens
remedy in two new contexts. The next section will examine these two
cases and their impact on the future of the Bivens doctrine.
94. Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L.
REV. 289, 297 (1995). The existence of a congressional statute governing federal
prisoners’ Free Exercise claims is a potential roadblock to the argument I am
asserting here because the Religious Freedom Restoration Act (RFRA) clearly offers more protections to Free Exercise than current First Amendment jurisprudence. I address this issue more fully infra section III.C.
95. 462 U.S. 367, 387–90 (1983) Ultimately, the Court concluded the existence of the
congressional remedy signaled that Congress was in a better position to fashion
the scope of the type of remedy sought by the plaintiff.
96. Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) (declining to extend Bivens
“[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional
violations”).
97. First, in FDIC v. Meyer, the Court declined to extend a Bivens remedy to claims
against a federal agency, finding that naming the agency rather than a specific
individual as a defendant counselled hesitation. 510 U.S. 471, 486 (1994). Second,
in Correctional Services Corp. v. Malesko, the Court declined to extend a Bivens
remedy to claims against a private prison corporation since the deterrent rationale applied to individuals, not private entities. 534 U.S. 61, 70–71 (2001). Finally, in Minneci v. Pollard, the Court declined to extend a Bivens remedy to
claims against the employees of private prison contractors, concluding that
claims against these contractors could be asserted “within the scope of traditional
state tort law.” 565 U.S. 118, 125 (2012).
98. 137 S. Ct. 1843 (2017).
99. 137 S. Ct. 2003 (2017).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE
C.

939

The Future of Bivens

The first of the two Bivens cases the Supreme Court heard last
term, Ziglar v. Abbasi,100 involved claims brought by several Muslim
men who were detained in inhumane conditions after the events of
September 11, 2001.101 Focusing its decision on the special-factors
analysis, the Supreme Court declined to extend Bivens to what it
termed the “detention policy claims,” which stated that federal officials, including prison wardens, violated the plaintiffs’ Fourth and
Fifth Amendment rights to due process and equal protection by holding them in restrictive conditions of confinement102 and subjecting
them to frequent strip searches.103 Ultimately, the Court concluded
that because the detention-policy claims implicated “immigration and
national security, areas particularly within the expertise of Congress
and the executive,” special factors existed to preclude a Bivens remedy
on those claims.104
In reaching this conclusion, the Court attempted to clarify the
“proper test for determining whether a case presents a new Bivens
context”105 and to identify what exactly constitutes “special factors
counselling hesitation.”106 As to the first, the Court stated:
100. 137 S. Ct. 1843.
101. Erwin Chemerinsky, Chemerinsky: Two End-of-Term Decisions Close the Courthouse Doors to Those Who Have Been Injured, ABA J., (July 6, 2017), http://www
.abajournal.com/news/article/chemerinsky_again_closing_the_courthouse_doors
[https://perma.unl.edu/ZFN7-RCAM].
102. While the Supreme Court rather innocuously referred to the plaintiffs’ claims as
simply “detention policy claims” throughout its analysis, the actual conditions of
confinement were rather harsh and torturous:
Conditions . . . were harsh. Pursuant to official Bureau of Prisons policy,
detainees were held in “tiny cells for over 23 hours a day.” Lights in the
cells were left on 24 hours. Detainees had little opportunity for exercise
or recreation. They were forbidden to keep anything in their cells, even
basic hygiene products, such as soap or a toothbrush. When removed
from the cells for any reason, they were shackled and escorted by four
guards. They were denied access to most forms of communication with
the outside world. And they were strip searched often—any time they
were moved, as well as at random in their cells. Some of the harsh conditions . . . were not imposed pursuant to official policy. According to the
complaint, prison guards engaged in a pattern of “physical and verbal
abuse.” Guards allegedly slammed detainees into walls; twisted their
arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating
sexual comments; and insulted their religion.
Abbasi, 137 S. Ct. at 1853 (citations omitted); see also Vance v. Rumsfeld, 701
F.3d 193, 206 (7th Cir. 2012) (Wood, J., concurring) (cataloguing similar treatment to that described in Abbasi and finding it to be torture).
103. Abbasi, 137 S. Ct. at 1853.
104. Chemerinsky, supra note 101.
105. Abbasi, 137 S. Ct. at 1859.
106. Id. at 1857.

Electronic copy available at: https://ssrn.com/abstract=3897753

940

NEBRASKA LAW REVIEW

[Vol. 96:924

If the case is different in a meaningful way from previous Bivens cases decided
by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in
a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or
emergency to be confronted; the statutory or other legal mandate under which
the officer was operating; the risk of disruptive intrusion by the Judiciary into
the functioning of other branches; or the presence of potential special factors
that previous Bivens cases did not consider.107

As to the second, the Court did not expressly define special factors and
instead stated:
The necessary inference . . . is that the inquiry must concentrate on whether
the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a “special factor counselling hesitation,” a factor must cause
a court to hesitate before answering the question in the affirmative.108

Using these guideposts, the Court concluded the Abbasi claimants
sought to extend Bivens to a new context by challenging not just standard law enforcement operations but rather “elements of the Government’s whole response to the September 11 attacks.”109 Because this
would inevitably lead to judicial inquiry into national security issues,
the Court ultimately determined it was for Congress, not the Courts,
to determine if a damages remedy should be available in this context
by striking the balance “between deterring constitutional violations
and freeing high officials to make the lawful decisions necessary to
protect the Nation in times of great peril.”110 What is noteworthy
about this statement is that by declining to exercise its power to hear
constitutional questions when only a damages remedy is at issue, the
Court allowed federal officials the freedom to make not only lawful
decisions but also unlawful ones that are never subject to review. By
refusing to extend the remedy, the Court permitted federal officials,
107. Id. at 1859–60. A cursory glance at this list, particularly the last two “differences”
listed, makes clear that the Court is conflating the questions of whether a case
presents a new context for a Bivens remedy and whether that case presents special factors counseling hesitation to extend the Bivens remedy. It seems the first
question should be whether or not recognizing a damages remedy in a particular
case would be a true extension of Bivens. Then, if it is a new context, the analysis
would turn to whether special factors cautioned against providing the remedy in
a particular case and whether Congress had expressly provided other available
remedies for the constitutional violation.
108. Id. at 1857–58. Discussed in more detail below, in the prison context, this makes
the federal courts doubly deferential to the other branches of government when it
comes to the administration of the federal prison system and ultimately may result in the federal courts abdicating their responsibility to check the abuse of
executive power. See infra section III.B.
109. Abbasi, 137 S. Ct. at 1861.
110. Id. at 1863.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

941

like the petitioners in Abbasi, to act with impunity and complete disregard of fundamental constitutional values.
Nevertheless, while the Supreme Court expressly declined to extend Bivens to the “new context”111 presumably created by the detention-policy claims, the Court took a different approach when
considering whether the “prisoner abuse claim” could proceed.112
While the Court noted the prisoner abuse claim carried significant
parallels to Carlson, it ultimately determined allowing the claim to
move forward would require a “modest extension of Bivens.”113 Concluding the issue had not been adequately briefed, the Court remanded the case to allow the lower courts to grapple with the question
of whether Bivens relief should be extended to this new context.114 In
so doing, the Court provided some guidance to the lower courts faced
with determining whether Bivens relief should extend to the prisoner
abuse claim. Because that guidance is directly relevant to consideration of whether the Bivens remedy should be available for Free Exercise claims brought by federal prisoners, discussion of this aspect of
Abbasi is reserved for section IV.B.
As it did with the prisoner abuse claim in Abbasi, the Court declined to engage in the special-factors analysis in Hernandez—the second case to raise the Bivens question from last term—and instead
remanded the case to the Fifth Circuit for analysis under the framework announced in Abbasi.115 Like those in Abbasi, the facts underlying the petitioners’ claims in Hernandez are horrific. In 2010, fifteenyear-old Sergio Hernández was playing with three friends in a concrete culvert that separates El Paso, Texas, from Juarez, Mexico.116
Playing a common children’s game of running up the culvert to touch
the eighteen-foot fence built by the United States, the unarmed boys
frolicked in plain view of the nearest border crossing at Paso del Norte
Port of Entry.117 While the boys were playing, a U.S. Border Patrol
agent grabbed one of the boys during his bicycle patrol of the culvert,
causing the other boys, including Sergio, to flee back towards Mexico.118 As he ran, the border patrol agent shot Sergio in the head, killing him.119 Sergio’s parents sued the border patrol agent under a
Bivens remedial theory alleging the agent violated the Fourth and
111.
112.
113.
114.
115.
116.

See supra note 70.
Abbasi, 137 S. Ct. at 1863.
Id. at 1864.
Id. at 1865.
Hernandez v. Mesa, 137 S. Ct. 2003, 2006–07 (2017).
Brief for Petitioner, Hernandez, 137 S. Ct. 2003 (No. 15-118), 2016 WL 7156393,
at *2.
117. Id. at *2–3.
118. Id. at *3.
119. Id.

Electronic copy available at: https://ssrn.com/abstract=3897753

942

NEBRASKA LAW REVIEW

[Vol. 96:924

Fifth Amendments of the U.S. Constitution.120 The Fifth Circuit determined Sergio lacked any Fourth Amendment rights in these circumstances and granted the border agent qualified immunity on the
Fifth Amendment claim.121 The Supreme Court reversed and remanded, instructing the lower courts to first decide the question of
whether Bivens provides an available remedy in these circumstances
before turning to the constitutional questions.122 Thus, the Court declined to recognize a Bivens remedy in yet another case.
After Abbasi and Hernandez, practitioners and scholars alike are
left to ponder what, if anything, is left of Bivens. Indeed, after each
significant Bivens decision from the Supreme Court, scholars and commentators provide thorough discussion on the future of Bivens. After
the Court’s first significant retraction of the Bivens doctrine in Bush v.
Lucas and Chappell v. Wallace in 1983, scholars questioned the impact of these decisions on the vindication of First Amendment-rights
violations by the federal government across the board and on the vindication of the violation of the constitutional rights of federal employees by their employer.123 Other commentators noted the special120.
121.
122.
123.

Id. at *8–10.
Hernandez, 137 S. Ct. at 2007.
Id. at 2006–08.
See Patrick W. Kelley, The Right of Federal Employees to Sue Their Supervisors
for Injuries Consequent upon Constitutional Violations, 108 MIL. L. REV. 211, 273
(1985) (questioning whether Bush left open any possibility of suit by federal employees against their employers for constitutional rights violations); Joan Steinman, Backing Off Bivens and the Ramifications of this Retreat for the Vindication
of First Amendment Rights, 83 MICH. L. REV. 269, 297 (1984). Steinman critiqued
not only the narrowing of remedies available for First Amendment rights violations but also specifically faulted the Bush and Chappell Court as failing to ensure the purported alternative remedies were in fact adequate to “meet
constitutional minima.” Steinman, supra, at 339. Steinman suggested the following considerations be made when the federal courts consider whether a congressional scheme should preclude the Bivens remedy:
The courts should decide whether a statutory scheme was intended by
Congress to substitute for a Bivens action. If it was not so intended, then
a Bivens remedy may be afforded, absent special factors counselling hesitation. If it was so intended, the courts must resolve additional questions. Does the legislated remedy speak to the violation suffered: does it
afford retrospective relief for past violations and prospective relief if future violations are sufficiently threatened? Is the legislated remedy adequate for this plaintiff, however useful it may be for persons differently
situated? Has the plaintiff meaningful access to the legislated remedies?
Are the available remedies truly compensatory, not merely symbolic? Is
the Bivens remedy indispensable in the sense that no other remedial
scheme can prevent the substantive constitutional requirements from
becoming a “mere form of words”? [sic] The Supreme Court needs to articulate further standards for determining whether congressional remedies are constitutionally adequate.
Id. Thus far, the Court has provided little additional guidance along the lines
suggested by Steinman for how courts should determine whether alternative

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

943

factors prong of the Bivens analysis appeared to be gradually converged into the alternative-remedial-scheme analysis.124
Similarly, after a second pair of cases further limited the Bivens
doctrine in the late 1980s, commentators were quick to criticize the
Court’s curtailment of constitutional remedies in suits against federal
actors. For example, immediately following the Supreme Court’s 1988
decision in Schweiker v. Chilicky,125 the Harvard Law Review published a compelling critique of the Chilicky Court’s conclusion that
congressional silence on the availability of a damages remedy in a particular area is a special factor counseling hesitation in establishing a
Bivens remedy.126 Other scholars compellingly criticized the Court’s
increasing deference to Congress on issues of remedying constitutional violations and, in particular, how the deference created a constitutional scheme wherein issues of separation of powers trump issues
of federalism.127 Ultimately, by the end of the 1980s, commentators
concluded the Supreme Court greatly limited the availability of “constitutional tort actions against federal officials.”128
While the 1990s only saw one Supreme Court case refusing to extend Bivens—F.D.I.C. v. Meyer129—constitutional scholars continued
to grapple with the failure of Bivens to protect the constitutional

124.

125.
126.

127.

128.
129.

remedies are sufficiently adequate for vindication of the constitutional rights at
issue.
See Joe D. Dillsaver, The Supreme Court and Suits Against Governmental and
Military Superiors, 25 A.F. L. REV. 87, 92–93 (1985); David C. Nutter, Note, Two
Approaches to Determine Whether an Implied Cause of Action Under the Constitution Is Necessary: The Changing Scope of the Bivens Action, 19 GA. L. REV. 683,
714 (1985).
487 U.S. 412 (1988).
The Supreme Court, 1987 Term: Leading Cases, 102 HARV. L. REV. 279, 287–88
(1988) (“It is simple, no doubt, to decide a case by holding that the combination of
congressional action, regardless of its focus, and congressional silence, regardless
of its cause, renders the judiciary powerless to act.”).
George D. Brown, Letting Statutory Tails Wag Constitutional Dogs—Have the
Bivens Dissenters Prevailed?, 64 IND. L.J. 263, 265–66, 298–99 (1989) (arguing
that the analysis of remedial questions when the source of the right is a statute
should be different than when the source of the right is the Constitution and
concluding the federal courts can respect congressional competence without abdicating their responsibility to adjudicate constitutional claims); Gene R. Nichol,
Bivens, Chilicky, and Constitutional Damages Claims, 75 VA. L. REV. 1117, 1121,
1150 (1989) (criticizing the Court’s expansion of the special-factors exception beyond its initial grounding in the doctrine of separation of powers into amorphous
areas lacking any textual support in the Constitution); Perry M. Rosen, The Bivens Constitutional Tort: An Unfulfilled Promise, 67 N.C. L. REV. 337, 357–61
(1989) (highlighting the additional obstacles to recovery faced by a plaintiff suing
a federal government official versus a plaintiff suing a state or local government
official).
John Paul Woodley, Jr., Constitutional Tort Actions Against Federal Officials After Schweiker v. Chilicky, 1989 ARMY LAW. 10, 15.
510 U.S. 471 (1994).

Electronic copy available at: https://ssrn.com/abstract=3897753

944

NEBRASKA LAW REVIEW

[Vol. 96:924

rights of individuals harmed by federal officials in the same manner
and scope that § 1983 protects the constitutional rights of individuals
harmed by state and local officials.130 Other scholars posited that Bivens failure rests largely on its decision to impose liability on individual
government employees, and not the federal government itself, because
that decision led to the tidal wave of additional broad protections afforded to governmental defendants in federal civil rights cases.131
After the turn of the century, as the Supreme Court continued to
constrict the Bivens remedy, scholars and commentators continued to
criticize the Court’s Bivens jurisprudence.132 Indeed, much commentary began to adopt a highly pessimistic view that Bivens would extend no further than the three situations recognized by the Supreme
Court in Bivens, Davis, and Carlson.133 One commentator encouraged
130. William P. Kratzke, Some Recommendations Concerning Tort Liability of Government and Its Employees for Torts and Constitutional Torts, 9 ADMIN. L.J. AM. U.
1105, 1149–52 (1996) (commenting on the overall failure of Bivens to bring redress to victims of federal officials’ constitutional rights violations). In part,
Kratzke relies on the conclusion that even those Bivens actions allowed to proceed are unsuccessful on the merits. Id. at 1149–50. However, a more recent survey of Bivens cases brought in five federal judicial districts showed that Bivens
claims succeed at a much higher rate than previously thought. See generally Reinert, supra note 63; see also Bandes, supra note 94, at 336–38 (arguing that “the
Constitution is enforceable without the need for congressional authorization, and
that the Constitution is enforceable regardless of its congruence with state or
common law” and positing a new analytical framework to address constitutional
claims for damages against federal actors). But see Alan K. Chen, Rosy Pictures
and Renegade Officials: The Slow Death of Monroe v. Pape, 78 UMKC L. REV.
889, 907 (2010) (“[T]he foreclosure of Bivens claims under this special factors
analysis should only arise where the remedies are comparable.”).
131. James E. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation, 114 PENN ST. L. REV. 1387, 1415 (2010) (“The decision to recognize a Bivens action seems to have compelled the federal courts to develop a
matching set of immunity principles.”); Pillard, supra note 30, at 79–90 (1999)
(arguing that the federal courts have used the idea that government officers will
be held liable individually to support greater procedural and immunity
protections).
132. Daniel J. Meltzer, The Supreme Court’s Judicial Passivity, 2002 SUP. CT. REV.
343, 356–62 (arguing that Malesko portends a shift toward an earlier era when
courts declined to imply rights of action under certain statutes or the Constitution); Elizabeth Martin, Note, Correctional Services Corp. v. Malesko: The Supreme Court’s Continued Refusal to Stand Behind Bivens, 32 PUB. CONT. L.J. 197,
211 (2002) (criticizing the Supreme Court’s refusal to provide a Bivens remedy for
federal prisoners suing a private prison corporation as contrary to “the goals,
promises, and protections of Bivens”).
133. Erwin Chemerinsky, Closing the Courthouse Doors, 90 DENV. U. L. REV. 317, 326
(2012) (“[T]he courthouse doors have been shut on those who want to sue the
government or government officials.”); Alex Reinert, Procedural Barriers to Civil
Rights Litigation and the Illusory Promise of Equity, 78 UMKC L. REV. 931, 948
(2010) (“[T]here may be many reasons that the Court seems to have adopted a
preference for injunctive over damages relief in civil rights cases . . . . [But] the
illusory promise of equity does damage to public rights litigation.”); Michael P.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

945

the Supreme Court to embrace the Bivens decisions as part of the federal common law and to reformulate the entire Bivens doctrine (or
non-doctrine) to allow for flexibility in the type of remedy afforded.134
Other commentators called for Congress to explicitly address whether
and when the federal courts should hold the federal government liable
in damages for violations of constitutionally protected rights.135 Still
others argued Congress already provided statutory recognition of the
“right to pursue constitutional tort claims against federal actors”
through the Westfall Act and the Supreme Court need simply recognize this congressional action.136 Finally, scholars encouraged the federal courts and practitioners alike to return their focus to the first
question of the Bivens doctrine: whether a particular case presents a
true extension of the Bivens remedy.137

134.
135.

136.

137.

Robotti, Separation of Powers and the Exercise of Concurrent Constitutional Authority in the Bivens Context, 8 CONN. PUB. INT. L.J. 171, 205 (2009) (concluding
that the Bivens remedy has been rendered meaningless and encouraging the
Court to “reconsider the Bivens line of cases in this light and embrace Bivens as a
constitutional common law decision”); Tribe, supra note 93, at 70 (noting that
“Robbins appear[ed] to represent the first time the Court ha[d] found a Bivens
remedy unavailable to redress a run-of-the-mill constitutional claim against a
federal official in the absence of an alternative remedial scheme that is even arguably designed to be comprehensive” and finding the decision the first to deviate
from Bivens’s “core holding”); Heather J. Hanna & Alan G. Harding, Comment,
Ubi Jus Ibi Remedium—For the Violation of Every Right, There Must Be a Remedy: The Supreme Court’s Refusal to Use the Bivens Remedy in Wilkie v. Robbins,
8 WYO. L. REV. 193, 226–28 (2008) (concluding that the makeup of the current
Court will not provide a majority willing to recognize a Bivens remedy in a new
context). But see Alexander Volokh, Keynote Article: The Modest Effect of Minneci
v. Pollard on Inmate Litigants, 46 AKRON L. REV. 287, 328–29 (2013) (arguing
that while Minneci may have been wrongly decided, it does not close the courthouse doors on all prisoner litigation).
Robotti, supra note 133, at 202–04 (arguing that the Bivens doctrine should be
reformulated to “bring coherence to [it] by grounding it in the functionalist theory
of separation of powers and the theory of constitutional common law”).
Brown, supra note 72, at 904–10 (2009) (encouraging Congress to break the Bivens impasse to allow victims of federal government overreach in the War on Terror some form of relief, either in the form of an equivalent § 1983 statute applied
to the federal government, adding provisions to the FTCA to redress these
wrongs, creating a new national security court, or establishing a compensation
system outside the judicial process).
James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J. 117, 141 (2009); see also James E. Pfander
& David P. Baltmanis, W(h)ither Bivens?, 161 U. PA. L. REV. 231, 243 (2013)
(“[T]he removal and transformation provisions of the Westfall Act leave litigants
. . . entirely free to mount federal constitutional tort claims . . . .”); Carlos M.
Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the
Bivens Question, 161 U. PA. L. REV. 509, 580 (2013) (arguing that interpreting
the Westfall Act as making remedies available at the federal level would avoid
constitutional concerns and better implement congressional intent).
Alexander A. Reinert & Lumen N. Mulligan, Asking the First Question: Reframing Bivens After Minneci, 90 WASH. U. L. REV. 1473, 1495 (2013).

Electronic copy available at: https://ssrn.com/abstract=3897753

946

NEBRASKA LAW REVIEW

[Vol. 96:924

As outlined above, the Supreme Court followed this suggestion in
Abbasi, articulating a number of factors federal courts should consider
in determining whether a particular context represents a new area
under Bivens. But the Abbasi court made clear that absent the precise
circumstances presented in Bivens, Davis, and Carlson, litigants seeking to assert a Bivens remedy will find themselves in a “new” context.
For this reason, the remainder of this Article will deviate from prior
scholarship on the availability of a Bivens remedy by focusing on one
narrow type of claim—a Free Exercise claim brought by a federal prisoner—to argue a Bivens remedy should be available in this context
under existing Bivens jurisprudence for significant practical and policy reasons. Rather than add to the chorus of criticisms and suggested
solutions focusing on the broad-based Bivens doctrine as a whole, this
Article focuses instead on one constitutional claim brought by one type
of plaintiff against one type of federal official with the hope that the
analysis and discussion are transferrable to other situations and
claims.
The reasons for this approach are threefold. First, Abbasi makes
clear, at least for now, that the availability of a Bivens remedy will
largely be a case-by-case determination. Second, prisoners are a
uniquely vulnerable population, completely subject to the whims of
their prison-official captors. This vulnerability is not unique to state
prisoners; there is nothing inherently special about federal prison employees vis-à-vis their state counterparts that justifies exempting federal prison officials from liability for constitutional violations while
holding state prison officials accountable for the very same violations.
Thus, the fact that state prisoners have remedies available to them
that federal prisoners do not turns constitutional design on its head
when conditions of prison life remain largely identical between the
state and federal systems. Finally, religion has been a central part of
this country’s approach to incarceration since the opening of the first
penitentiary to today,138 and religious rights in prison are important
not only to rehabilitation but to help prisoners cope with the inherent
dignitary harms of prison life.139
This approach necessarily assumes the natural result of Abbasi
will not be the elimination of Bivens entirely. To do away with Bivens
entirely would be to abandon a remedial system designed to hold government actors accountable by imposing damages meant to deter bad
behavior.140 Such a result would be untenable when applied to Free
Exercise claims brought by federal prisoners because it would lead to
a clear disparity in the availability of constitutional remedies to fed138. See infra section IV.B.
139. Jim Thomas & Barbara H. Zaitzow, Conning or Conversion? The Role of Religion
in Prison Coping, 86 PRISON J. 242, 250 (2006).
140. Pfander, supra note 50, at 291.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

947

eral prisoners and their state counterparts, an idea developed further
in section III.C.
III. EXTENDING BIVENS TO FREE EXERCISE CLAIMS
BROUGHT BY FEDERAL PRISONERS
Few federal courts have engaged in the kind of thorough analysis
called for in Abbasi to determine whether a Bivens remedy is available
to federal prisoners asserting Free Exercise claims. The vast majority
of courts assume without expressly deciding or engaging in any of the
analysis outlined by the Supreme Court in its Bivens cases that a
plaintiff can proceed on a Bivens theory and proceed to the merits of
the plaintiff’s claim.141 Of the courts that analyzed whether the remedy is available, all determined a Bivens remedy is unavailable, but
for scattershot reasons and often without the full analysis outlined in
Abbasi.142 This Part will walk through the analysis provided by the
141. Because of the incredibly high burden placed on prisoner-plaintiffs in First
Amendment claims, the vast majority of whom are proceeding pro se, many of
these cases result in summary dismissal in any event. See, e.g., Potts v. Holt, 617
F. App’x 148, 153 (3d Cir. 2015) (reversing district court’s grant of qualified immunity on Free Exercise Bivens claim without addressing Bivens availability in
this context); Ford v. Bureau of Prisons, 570 F. App’x 246, 250 (3d Cir. 2014)
(proceeding to merits of First Amendment claim without addressing Bivens question); Watkins v. Donnelly, 551 F. App’x 953, 960 (10th Cir. 2014) (same); Watkins v. Rogers, 525 F. App’x 756, 757 (10th Cir. 2013) (same); Jean-Pierre v.
Bureau of Prisons, 497 F. App’x 164, 168 (3d Cir. 2012) (same); Garraway v. Lappin, 490 F. App’x 440, 445 (3d Cir. 2012) (same); Coley v. Smith, 441 F. App’x 627,
628 (11th Cir. 2011) (same); Daly v. Davis, No. 08-2046, 2009 WL 773880, at *2
(7th Cir. Mar. 25, 2009) (same); Weinberger v. Grimes, No. 07-6461, 2009 WL
331632, at *4 (6th Cir. Feb. 10, 2009) (same); Patel v. U.S. Bureau of Prisons, 515
F.3d 807, 814–15 (8th Cir. 2008) (upholding grant of summary judgment on merits of Free Exercise claim without addressing Bivens question); Resnick v. Adams, 348 F.3d 763, 771 (9th Cir. 2003) (turning to merits of Free Exercise claim
without reference to Bivens question); Kalka v. Hawk, 215 F.3d 90, 95 (D.C. Cir.
2000) (same); Chesser v. Walton, No. 12-cv-1198-JPG-RJD, 2016 WL 6471435, at
*2 (S.D. Ill. Nov. 2, 2016) (same); Williams v. Valazair, No. CIV-14-456-M, 2015
WL 9315537, at *4–5 (W.D. Okla. Nov. 9, 2015) (same); Ramadan v. FBOP, No.
1:14-25757, 2015 WL 5684126, at *2–6 (S.D.W. Va. Sept. 28, 2015) (same);
Bouman v. Broome, No. 3:13cv847 KS-MTP, 2015 WL 5604275, at *2 (S.D. Miss.
2015) (same).
142. Mack v. Warden, 839 F.3d 286, 305 (3d Cir. 2016) (determining RFRA provides a
comprehensive alternative remedial scheme for Free Exercise violations and that
it provides Free Exercise claimants all appropriate relief); Turkmen v. Hasty, 789
F.3d 218, 236 (2d. Cir. 2015) (holding a Bivens Free Exercise claim presents a
new context that has not been recognized by the Supreme Court, so dismissal was
proper without further analysis), rev’d in part on other grounds and vacated in
part by Ziglar v. Abbasi, 137 S. Ct. 1843 (2017); Ajaj v. Fed. Bureau of Prisons,
No. 15-cv-00992-RBJ-KLM, 2017 WL 219343, at *2–5 (D. Colo. Jan. 17, 2017)
(finding no Bivens remedy because alternative remedies existed in the forms of
injunctive relief and the prison system’s grievance policies and the potential “onslaught of litigation” counseled against expanding Bivens to this context) (I am

Electronic copy available at: https://ssrn.com/abstract=3897753

948

NEBRASKA LAW REVIEW

[Vol. 96:924

Supreme Court in Abbasi to demonstrate that even under the high
standard required to recognize the availability of a Bivens remedy in a
new context, a Bivens remedy should be available to federal prisoners
asserting a Free Exercise claim. This analysis will provide a careful
critique of the few federal court decisions that found either an adequate alternative remedy or determined special factors prevented the
recognition of a Bivens remedy in this context. The hope of offering
this thorough analysis is to provide a blueprint scholars and advocates
can build on to (likely slowly) rebuild the constitutional protections
recognized by Bivens in this and other contexts.
A.

Is a Bivens Remedy for Free Exercise Claims Truly an
Extension of Bivens?

After Abbasi, the answer to the question of whether a Bivens remedy for Free Exercise claims is truly an extension of Bivens is almost
certainly yes. Before Abbasi, when faced with the question of whether
a claim truly extended the Bivens doctrine, the Court focused on
whether the claim involved a new category of defendants or a new context.143 In the context of Free Exercise claims brought by federal prisoners, the category of defendants is certainly not new; Carlson
expressly contemplated a Bivens claim against federal prison officials.144 Whether the context is new is certainly a closer question. It
depends heavily on how narrowly or broadly the Court views the context of any given claim. In the broadest sense, a Free Exercise claim
brought by a federal prisoner is simply brought in the prison context,
like the claim in Carlson.145 Moreover, the Supreme Court allowed a
Bivens claim to move forward in a First Amendment context without
engaging in any analysis as to the appropriateness of Bivens relief. In
Hartman v. Moore,146 which considered whether “a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges,” the Supreme
Court accepted without analysis that a vengeful federal officer “is subject to an action for damages on the authority of Bivens.”147 Thus, the
Supreme Court has expressly provided for the availability of a damages remedy in both the prison context and the First Amendment con-

143.
144.
145.
146.
147.

counsel of record for Mr. Ajaj in this case); Hedin v. Castillo, 3:14-cv-01504-CL,
2016 WL 6915322, at *4 (D. Or. Sept. 27, 2016) (finding that RFRA is an alternative remedy precluding Bivens claim); Rezaq v. Fed. Bureau of Prisons, No. 13-cv00990-MJR-SCW, 2016 WL 97763, at *9 (S.D. Ill. Jan. 8, 2016) (finding no Bivens
remedy without analysis).
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001).
Carlson v. Green, 446 U.S. 14, 19 (1980).
Id.
547 U.S. 250 (2006).
Id. at 256–57.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

949

text.148 Thus, prior to Abbasi, a federal prisoner-plaintiff might
plausibly argue that allowing a damages remedy to a First Amendment Free Exercise claim required no extension of Bivens.
After Abbasi, a prisoner will almost certainly fail if he149 asserts
this type of argument. As articulated above in section II.C., the Abbasi
Court provided a nonexhaustive list of differences to consider when
determining whether a particular context is new, including:
the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how
an officer should respond to the problem or emergency to be confronted; the
statutory or other legal mandate under which the officer was operating; the
risk of disruptive intrusion by the Judiciary into the functioning of other
branches; or the presence of potential special factors that previous Bivens
cases did not consider.150

Of these, a Free Exercise claim brought by a federal prisoner will generally not raise meaningful differences from Carlson in the following
areas: the rank of the officers involved, the statutory or other legal
mandate under which the officer was operating, and the risk of disruptive intrusion by the judiciary into the functioning of other branches.
The estate in Carlson sued the director of the Federal Bureau of Prisons as well as various prison officials at the United States Penitentiary-Terre Haute.151 The Supreme Court clearly determined those
types of prison officials “do not enjoy such independent status in our
constitutional scheme as to suggest that judicially created remedies
against them might be inappropriate.”152 Similarly, all federal prison
148. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court assumed without
deciding that a Bivens remedy was available under the Free Exercise Clause but
expressed some doubt as to whether it would have extended the Bivens remedy to
the Free Exercise context had it been squarely presented with the question:
Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability to any new context or new category of
defendants. That reluctance might well have disposed of respondent’s
First Amendment claim of religious discrimination. For while we have
allowed a Bivens action to redress a violation of the equal protection
component of the Due Process Clause of the Fifth Amendment, we have
not found an implied damages remedy under the Free Exercise Clause.
Indeed, we have declined to extend Bivens to a claim sounding in the
First Amendment.
Id. at 675 (citations and quotations omitted).
149. I use the male pronoun here because the overwhelming majority of federal prisoners are male. See Inmate Gender, FED. BUREAU PRISONS, https://www.bop.gov/
about/statistics/statistics_inmate_gender.jsp [https://perma.unl.edu/4MXNH6F7] (last updated Aug. 26, 2017) (showing a federal-prison population that is
93.2% male and 6.8% female).
150. Ziglar v. Abbasi, 137 S. Ct. 1843, 1859–60 (2017). As mentioned above, it appears
that the last items on this list conflate the special factors discussion with the new
context discussion. Therefore, I reserve discussion of the special factors for infra
section III.B.
151. Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978).
152. Carlson v. Green, 446 U.S. 14, 19 (1980).

Electronic copy available at: https://ssrn.com/abstract=3897753

950

NEBRASKA LAW REVIEW

[Vol. 96:924

officers employed by the Federal Bureau of Prisons are tasked with
fulfilling the Bureau’s duties as outlined in 18 U.S.C. § 4042. Finally,
a federal prisoner’s Free Exercise claim would not lead to a greater
“disruptive intrusion” into the running of the Federal Bureau of Prisons than a federal prisoner’s Eighth Amendment medical-care claim
brought pursuant to Carlson. Therefore, these three potential differences do not support the conclusion that a federal prisoner’s Free Exercise claim presents a new context for a Bivens remedy.
In contrast, consideration of the constitutional right at issue, the
generality or specificity of the official action, and the extent of judicial
guidance as to how an officer should respond to the problem or emergency to be confronted will likely lead to the opposite conclusion: a
federal prisoner’s Free Exercise claim presents a new context under
existing Bivens jurisprudence. First, as discussed above, the Supreme
Court has never expressly recognized the availability of a Bivens remedy in any First Amendment context.153 While the Court accepted,
without analysis, the availability of a Bivens remedy in the First
Amendment retaliation context,154 it has not extended this recognition to Free Exercise claims.
While it is not entirely clear what the Abbasi Court meant by “the
generality or specificity of the official action,” the Court’s extensive
analysis of the “general policy”155 at issue in the detention policy
claims indicates this particular difference relates to whether a cause
of action is challenging broad-based executive policy or specific actions
by federal officials. Free Exercise claims may fall into both categories.
For example, certain cases may challenge prison policies that place
particular burdens on prisoners’ Free Exercise,156 while other cases
may challenge the specific conduct of an individual officer or officers.157 At this point, because both types of claims present a new
context under existing Bivens jurisprudence, the type of claim asserted makes little difference for the purpose of determining whether
a federal prisoner’s Free Exercise claim presents a new context. However, should the Court recognize one type of claim in the future, the
existence of this difference as pronounced by the Supreme Court may

153.
154.
155.
156.

Iqbal, 556 U.S. at 676.
Hartman v. Moore, 547 U.S. 250, 256–57 (2006).
Abbasi, 137 S. Ct. at 1860.
See, e.g., Chesser v. Walton, No. 12-cv-1198-JPG-RJD, 2016 WL 6471435, at *2
(S.D. Ill. Nov. 2, 2016) (asserting claims against individuals for creating and enforcing policy that limited congregate prayer of Muslim prisoners).
157. See, e.g., Mack v. Warden, 839 F.3d 286, 291–92 (3d Cir. 2016) (challenging
harassing anti-Muslim conduct of certain correctional officers as violative of the
Free Exercise Clause).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

951

lead to separate special-factors analyses related to whether or not a
challenge to prison policy is a special factor counseling hesitation.158
Finally, turning to the final difference listed by the Supreme Court
in Abbasi, the extent of judicial guidance as to how an officer should
respond to the problem or emergency is again unclear. To a certain
degree, it appears to conflate the question of whether a particular
claim is presenting a new context under Bivens with whether a special
factor counsels hesitation and whether the officer being sued should
be afforded qualified immunity. Qualified immunity allows a government official sued in his or her individual capacity to escape liability
for a constitutional violation if (1) he or she did not commit a constitutional violation or (2) the constitutional violation alleged was not
clearly established by prior judicial decisions.159 Thus, even if the
Court were to allow a Bivens remedy in a particular context, insufficient judicial guidance as to how an officer should respond to a particular problem will be a basis for dismissal of a suit.160 Nevertheless,
because no Bivens cases provide guidance on Free Exercise claims,
this factor supports the conclusion the claim presented here—a federal prisoner’s Free Exercise claim—is a new context. However, if the
Court recognizes a Bivens remedy in a Free Exercise case, there are
ample cases brought by state prisoners alleging Free Exercise violations that provide clear guidance to prison officials as to the type and
extent of acceptable burdens on religious exercise in the prison
setting.161
Because Abbasi makes clear almost every case will present a new
context for Bivens purposes except those brought under circumstances
nearly identical to those presented in Bivens, Davis, and Carlson, a
Free Exercise claim brought by a federal prisoner against federal
prison officials presents a new context subject to the special factors
and alternative remedy analysis.

158. I discuss infra section III.B whether cases challenging the Bureau of Prisons’s
policies implicate the same kind of special concerns discussed in Abbasi. I conclude they do not.
159. Pearson v. Callahan, 555 U.S. 223, 231–32 (2009).
160. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials . . . are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.”).
161. See, e.g., Cruz v. Beto, 405 U.S. 319 (1972); Washington v. Klem, 497 F.3d 272 (3d
Cir. 2007); Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006); Adkins v. Kaspar, 393
F.3d 559 (5th Cir. 2004).

Electronic copy available at: https://ssrn.com/abstract=3897753

952
B.

NEBRASKA LAW REVIEW

[Vol. 96:924

Do Special Factors Exist that Would Counsel Hesitation
in Expanding the Availability of a Bivens Remedy
for Free Exercise Claims Brought by Federal
Prisoners?

After noting it never expressly defined the phrase “special factors
counselling hesitation,” the Abbasi Court stated the “inquiry must
concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.”162 The Court further
made clear that if “Congress has designed its regulatory authority in a
guarded way” in a particular context, it is “less likely that Congress
would want the Judiciary to interfere.”163 With this, the Abbasi Court
specifically highlighted those areas where, in prior Bivens cases, it
found Congress specifically created a regulatory scheme wherein the
courts had no role—in military matters,164 the public purse by making a federal agency pay damages,165 and federal lands.166
Generally speaking, the special factors the Court recognizes as requiring hesitation involve the military, concerns of national security,
and foreign-policy considerations.167 None of these concerns are implicated by a Free Exercise claim brought by a federal prisoner against a
federal prison official. Indeed, because federal courts readily hear
cases for injunctive relief against the federal prison system, there are
no inherent separation of powers concerns related to judicial enforcement of constitutional norms in the prison context. Nonetheless, some
of the Abbasi Court’s analysis of the special factors implicates issues
federal-prison-official defendants will undoubtedly raise in future
cases. Each of these issues is addressed below in turn.
Initially, the Abbasi Court was incredibly concerned with the litigation’s potential to question and challenge the process and deliberations related to the government’s formulation of the detention policy
itself.168 Indeed, the Abbasi Court expressed deep skepticism at the
idea that the federal courts should be intruding upon the Executive’s
policymaking function in this manner.169 Undoubtedly, future challenges to the actions of federal prison officials will implicate, either
directly or indirectly, prison policies, and defendants to these cases
will, to the extent possible, reframe particular claims as challenges to
162. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857–58 (2017).
163. Id. at 1858.
164. Id. (citing United States v. Stanley, 483 U.S. 669, 679 (1987); Chappell v. Wallace, 462 U.S. 296, 302 (1983)).
165. Id. (citing FDIC v. Meyer, 510 U.S. 471, 486 (1994)).
166. Id (citing Wilkie v. Robbins, 551 U.S. 537, 561–62 (2007)).
167. Id. at 1860–62. Indeed, national security appears to be the foremost concern of
the Abbasi Court.
168. Id. at 1860–61.
169. Id.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

953

policy rather than challenges to the actions of a particular
individual.170
A prisoner-plaintiff has several avenues available to him to attempt to distinguish the Abbasi policy and prison policies relating to
Free Exercise claims. Initially, the Abbasi policy was formulated by
persons outside the Federal Bureau of Prisons—namely, Attorney
General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James
Ziglar.171 Cases challenging Free Exercise violations by federal prison
officials will rarely, if ever, implicate policies that are formulated by
such high-level executive officials. Rather, federal prison policy is
often developed by officials in the Federal Bureau of Prisons’ Central
Office in Washington, D.C. and implemented at the local institutional
level. Any Free Exercise challenges would result from either (1) discriminatory implementation of certain policies or (2) a prison official’s
failure to properly follow policy. Therefore, only the rare federal prisoner Free Exercise case will implicate the type of policy at issue in the
detention-policy claims in Abbasi. Moreover, the defendants to a federal prisoner Free Exercise case will rarely be the type of high-level
executive officials described in Abbasi, and the Abbasi Court noted
this special factor—interference in policy deliberations—only applied
to high-level-executive-official defendants.172 Thus, this factor should
not prohibit federal prisoners’ Free Exercise claims from moving
forward.
The Abbasi Court noted three other factors that counseled hesitation in affording a remedy under Bivens for the detention policy
claims. First, the “claims challenge more than standard ‘law enforcement operations’ ” and instead implicate “sensitive issues of national
security.”173 Second, Congress requested the Department of Justice to
investigate the conditions created by the detention policy, the Justice
Department did so in a detailed report, and Congress never chose to
extend a damages remedy related to the conditions described in that
report.174 Finally, the Abbasi Court concluded alternative remedies
170. See Memorandum in Support of Defendants’ Motion for Judgment on the Pleadings, Holder v. Saunders, Civ. Act. No. 13-cv-038-KCC-EBA (E.D. Ky. filed Aug.
17, 2017) (on file with author). After Abbasi, the Federal Bureau of Prisons, the
defendant in Saunders moved for judgment on the pleadings just as the case was
headed to trial, arguing that because the plaintiff’s complaint rested on a challenge to prison officials’ actions that were taken in accordance with policy, Abbasi
precluded suit on the plaintiff’s Eighth Amendment claims despite those claims’
similarities to Carlson. Id. at 16–19.
171. Abbasi, 137 S. Ct. at 1853, 1858 (identifying Attorney General Ashcroft and INS
Commissionar Ziglar as “Executive Officals” and noting the “formal policy” at issue in the “detention policy claims” was adopted by the Executive Officials).
172. Id. at 1861.
173. Id. (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 283 (1990)).
174. Id. at 1862.

Electronic copy available at: https://ssrn.com/abstract=3897753

954

NEBRASKA LAW REVIEW

[Vol. 96:924

existed for the Abbasi plaintiffs.175 Because this final factor appears
to conflate the second question to the Bivens analysis—whether Congress has created alternative remedies—it will be addressed below.
The other two factors, however, should not preclude the availability of
a Bivens remedy for a federal prisoner’s Free Exercise claim.
First, a federal prisoner’s Free Exercise claim will necessarily challenge the operation of the federal prisons, but such operation does not
inherently implicate sensitive national-security issues and, on its face,
appears more akin to a challenge to standard law enforcement operations. While some federal prisoners may present issues tangential to
national security,176 the vast majority of prisoner Free Exercise
claims will have no relation to national-security issues.
Further, federal prisoners’ Free Exercise claims are not an area
where congressional silence demonstrates congressional intent to provide a damages remedy to federal prisoners. As the Abbasi Court
briefly mentioned in its discussion of the prisoner-abuse claims, Congress passed the Prison Litigation Reform Act (PLRA) in 1996.177 The
Abbasi Court highlighted the idea that the PLRA “does not provide for
a standalone damages remedy against federal jailers.”178 However,
the Abbasi Court ignored the provisions of the PLRA that expressly
contemplate the availability of a damages remedy for federal prisoners.179 For example, the PLRA includes a specific provision requiring
any damages award made “to a prisoner in connection with a civil action brought against any Federal, State, or local jail, prison, or correctional facility or against any official or agent of such jail, prison, or
correctional facility” be first applied to restitution before being
awarded to the prisoner.180 Additionally, the PLRA also requires that
the victims of any crime committed by a prisoner be informed of a compensatory damages award before such award is provided to a prisoner.181 Thus, the plain language of the PLRA indicates that Congress
understood that federal prisoners might obtain monetary relief for the
violations of their rights, and this is not a situation where congressional silence on the exact question of whether federal prisoners
175. Id. at 1863.
176. An example is if a prisoner is placed on Special Administrative Measures (SAMs)
by the Attorney General and challenges the burdens placed on his religious exercise by the SAMs. See, e.g., Ghailani v. Holder, No. 14-cv-00041-CMA-BNB, 2015
WL 430375, at *3 (D. Colo. Jan. 30, 2015), rev’d on other grounds, Ghailani v.
Sessions, 859 F.3d 1295 (10th Cir. 2017).
177. Abbasi, 137 S. Ct. at 1865 (citing 42 U.S.C. § 1997e (2012)).
178. Id.
179. See, e.g., § 1997e(e) (precluding a prisoner from suing for compensatory damages
“for mental or emotional injury suffered while in custody without a prior showing
of physical injury”).
180. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 807, 110 Stat. 132166, 1321-76 (1996) (emphasis added).
181. Id.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

955

should be afforded a damages remedy for Free Exercise violations
should be read to indicate disapproval of a Bivens claim.
Moreover, the congressional history of the PLRA indicates Congress intended for the statute to apply to Bivens claims brought by
federal prisoners.182 Indeed, Congressman Frank LoBiondo, a Republican congressman from New Jersey and one of the principal sponsors
of the PLRA, stated the following during debate over the bill: “An exhaustion requirement [as part of the PLRA] would aid in deterring
frivolous claims: by raising the cost, in time/money terms, of pursuing
a Bivens action, only those claims with a greater probability/magnitude of success would, presumably, proceed.”183 Clearly, Congress
sought to impose significant barriers to prisoners’-rights litigation but
did not expressly eliminate Bivens actions entirely. This provides
strong evidence that Congress had no intention of eliminating the Bivens remedy altogether for federal prisoners.
In addition to the special factors mentioned in Abbasi, the lower
federal courts identified a couple of additional special factors that led
to the foreclosure of Bivens relief in Free Exercise cases. First, some
courts determined the deference afforded to prison officials in constitutional litigation is a special factor counseling hesitation to expand
the Bivens remedy in the First Amendment context.184 This concern
confuses the limited way in which the First Amendment already applies in the prison context with a special factor. To the extent there
are concerns about judicial intervention in prison management, those
concerns are fully addressed by the substantive limitations placed on
the reach of the First Amendment in the prison context.185 Permitting
Bivens actions by federal prisoners in the Free Exercise context is not
the equivalent of permitting judicial enforcement of the full panoply of
First Amendment rights within the prison walls. Rather, allowing
prisoners to sue for damages for violations of their religious rights
simply puts those prisoners in the same position as their state counterparts—they simply have the limited right to Free Exercise that
state prisoners already have by virtue of prisoner First Amendmentrights jurisprudence.
The final factor at least one lower federal court mentioned in declining to extend the Bivens remedy to Free Exercise claims brought
by federal prisoners is that doing so would “add to the Court’s already
182. See Whitley v. Hunt, 158 F.3d 882, 886 (5th Cir. 1998) (finding that the PLRA
“plainly” indicates Congress intended for the statute to apply to Bivens claims).
183. 141 CONG. REC. H14078-02, H14105 (daily ed. Dec. 6, 1995) (statement of Rep.
Lobiondo).
184. Shepard v. Rangel, No. 12-cv-01108-RM-KLM, 2014 WL 7366662, at *17 (D. Colo.
Dec. 24, 2015) (recommendation of the magistrate judge).
185. See Turner v. Safley, 482 U.S. 78, 89 (1987) (holding that because of the deference
due to prison officials, infringements on First Amendment rights in prison are
always judged under a reasonableness standard).

Electronic copy available at: https://ssrn.com/abstract=3897753

956

NEBRASKA LAW REVIEW

[Vol. 96:924

heavy burden of prisoner litigation.”186 However, there is simply no
evidence that the federal courts’ refusal to recognize a Bivens remedy
in federal prisoners’ Free Exercise cases results in a smaller prisonconditions docket.187 Additionally, foreclosing an avenue of relief to
federal prisoners that is available to their state counterparts abdicates the role of the court as an arbiter of constitutional claims
against the federal government. This is particularly true in the First
Amendment context, where the express terms of the Amendment apply
directly to the federal government and where the states did not become subject to its provisions until after the passage of the Fourteenth
Amendment.188
Given the above analysis, while there are certainly some cases that
might present close calls and require further detailed analysis on one
or more potential special factors, there are no special factors that so
fully counsel hesitation as to disallow federal-prisoner Free Exercise
Bivens claims in toto. Indeed, in the vast majority of cases there
should be no impediments to allowing a federal prisoner to proceed in
his case for monetary relief for the violation of his federal rights. The
Article now turns to the question of whether adequate alternative
remedies exist that justify disallowing a Bivens remedy in this
context.
C.

Has Congress Created an Adequate Alternative Remedy
to Address the Violation of Federal Prisoners’ Free
Exercise Rights?

The Abbasi Court and lower federal courts that have analyzed
whether to recognize a Bivens remedy mention several possible alternative remedies that might provide an adequate means to redress the
denial of a federal prisoner’s Free Exercise rights. Those alternatives
include: the possibility of injunctive, mandamus, or habeas relief; the
availability of the administrative-remedy program or the federal prisoners’ internal grievance system; the availability of relief through the
FTCA; and the availability of relief through RFRA. When carefully
examined, however, it is clear that none of these remedies are true
alternative avenues of relief.
First, injunctive, mandamus, and habeas relief are neither consistently available to federal prisoners nor adequate. Initially, injunc186. Ajaj v. United States, No. 15-cv-00992-RBJ-KLM, 2016 WL 6212518, at *3 (D.
Colo. Oct. 25, 2016); Shepard v. Rangel, No. 15-cv-00992-RBJ-KLM, 2014 WL
7366662, at *18 (D. Colo. Dec. 24, 2015).
187. See supra notes 141–42 (outlining the number of cases filed for Free Exercise
violations despite the federal courts’ refusal to expressly recognize the availability of a Bivens remedy).
188. Stuart D. Poppel, Federalism, Fundamental Fairness, and the Religion Clauses,
25 CUMB. L. REV. 247, 247 (1995).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

957

tions, mandamus, and habeas relief are necessarily forward looking,
while the relief being sought in a Bivens case is necessarily backward
looking. Despite dicta in Abbasi indicating the Supreme Court may
determine injunctive and habeas relief are adequate alternatives in
some instances, the Supreme Court has never found an alternative
remedy where a potential remedy is only forward looking. Indeed, the
Supreme Court continually recognizes “[i]njunctive or declaratory relief is useless to a person who has already been injured.”189 For this
reason, the Court looks to whether alternative remedies “provide
roughly similar incentives for potential defendants to comply with the
[Constitution] while also providing roughly similar compensation to
victims of violations.”190
The question of whether an injunction, action in mandamus, or
habeas corpus petition provide roughly similar incentives for defendants to comply with the Constitution provides no clear answer. The
Abbasi Court strongly implies the injunctive and habeas relief191 that
may have been available to the Abbasi plaintiffs provides some modicum of deterrent effect to the defendants.192 However, this ignores the
different procedural realities of a suit for prospective relief and a suit
for damages. A suit for prospective relief will be asserted against the
federal prison agency or an official in his “official capacity,” which is a
legal fiction that allows for a suit against the government itself.193
Thus, unless a defendant is sued in his individual capacity for damages, there is no reason to believe the suit for prospective relief will, in
and of itself, provide any deterrent effect to individual bad actors. Regardless of whether a suit for prospective relief can provide a deterrent effect, it provides no compensation for plaintiffs that could be
189. Butz v. Economou, 438 U.S. 478, 504 (1978).
190. Minneci v. Pollard, 565 U.S. 118, 130 (2012) (emphasis added).
191. The Abbasi Court distinguished the situation in Abbasi from the situation in Bivens and Davis:
It is of central importance, too, that this is not a case like Bivens or
Davis in which “it is damages or nothing.” Unlike the plaintiffs in those
cases, repondents do not challenge individual instances of discrimination
or law enforcement overreach, which due to their very nature are difficult to address except by way of damages actions after the fact. Respondents instead challenge large-scale policy decisions concering the
conditions of confinement imposed on hundreds of prisoners. To address
those kinds of decisions, detainees may seek injunctive relief. And in addition to that, we have left open the question whether they might be able
to challenge their confinement conditions via a petition for writ of
habeas corpus.
Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63 (2017) (citations omitted). Thus, according to the Abbasi Court, injunctive relief halting enforcement of the detention
policy or some form of undefined habeas relief might have provided the detainees
adequate relief.
192. Id. at 1863.
193. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (citing Ex parte
Young, 209 U.S. 123, 159–60 (1908)).

Electronic copy available at: https://ssrn.com/abstract=3897753

958

NEBRASKA LAW REVIEW

[Vol. 96:924

equivalent to the compensation possible under Bivens. Moreover, the
idea that an equitable remedy should be obtained when legal remedies
might be possible contradicts the historical notion that an equitable
remedy should be sought only when legal relief is insufficient.194 For
these reasons, the possibility of injunctive relief, mandamus relief, or
habeas relief provides no adequate alternative remedy to a Bivens suit
for prisoners seeking vindication of their Free Exercise rights.
Before addressing the adequacy and availability of the federal
prison system’s administrative-remedy program, it is important to understand an additional topic in regard to cases for injunctive relief
against the Federal Bureau of Prisons (BOP).195 “[D]amages may be
the only effective remedy for constitutional violations that occur during a discrete and relatively brief period, and therefore may not be
susceptible to injunctive relief because of the rules of justiciability.”196
Even for those cases where the constitutional violation lasts for longer
periods, the BOP is in a unique position to prolong litigation by inserting complicated procedural questions into cases for injunctive relief. This is because the BOP has prisons across the country in
numerous judicial districts and the unbridled authority to move a particular prisoner for “any reason whatsoever or for no reason at all.”197
Indeed, in cases for injunctive relief that present important constitutional questions, the BOP’s modus operandi is to move the prisonerplaintiff from the jurisdiction in which the case was filed to another
judicial district in an attempt to moot or otherwise throw unique procedural wrenches into the prisoner’s claim.198
In other words, the BOP can and does manipulate litigation in order to avoid judicial decisions on the merits of any constitutional
194. Equible Remedy, BLACK’S LAW DICTIONARY (8th ed. 2004) (defining equitable remedy as “[a] remedy, usu[ally] a nonmonetary one such as an injunction or specific
performance, obtained when available legal remedies, usua[lly] monetary damages, cannot adequately redress the injury”).
195. What follows is largely drawn from my personal experience representing prisoners in cases against the Federal Bureau of Prisons.
196. Chen, supra note 130, at 923.
197. Collins v. Webster, No. 2:10-CV-172-JMS-WGH, 2013 WL 364574, at *9 (S.D.
Ind. Jan. 30, 2013) (quoting Brown-Bey v. United States, 720 F.2d 467, 470 (7th
Cir. 1983)).
198. The BOP attempted to first moot a prisoner-plaintiff’s injunctive claim by transferring him from Colorado to Indiana and then transferring the claim to another
judicial district. Chapman v. Fed. Bureau of Prisons, 235 F. Supp. 3d 1066,
1066–68 (S.D. Ind. 2017). Without his concomitant Bivens claims grounding the
case in Colorado, the prisoner-plaintiff’s claim may have been placed on an endless venue merry-go-round. In the spirit of full disclosure, I am counsel of record
for Mr. Chapman. See Rezaq v. Nalley, 677 F.3d 1001, 1009 (10th Cir. 2012);
Jordan v. Sosa, 654 F.3d 1012, 1020–21 (10th Cir. 2011); and Shakur v. Federal
Bureau of Prisons, 950 F.Supp. 3 (D.D.C. 1997) for examples of the BOP attempting to moot or introduce other procedural questions into a prisoner’s claim for
injunctive relief.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

959

claim. Without access to Bivens claims, prisoner-plaintiffs may find
themselves with no judicial relief for violations of their constitutional
rights.199 For example, if a prisoner files suit for violation of his religious rights and the BOP immediately takes steps to moot the injunctive claim while the court determines that the prisoner’s damages
claims are not allowed under Bivens, the prisoner-plaintiff is left with
no judicial relief whatsoever for the harms he suffered. Indeed, such a
result incentivizes, rather than deters, the unconstitutional conduct of
federal prison officials who are able act unconstitutionally and are
perpetually insulated from liability by manufacturing mootness, either by instituting policy changes or transferring prisoners. Thus, injunctive claims are particularly inadequate alternatives to Bivens
relief.
Satisfied that the availability of prospective relief does not provide
an adequate alternative remedy, the Article turns now to whether the
BOP’s administrative-remedy program provides an adequate alternative. For several reasons, it does not, despite the Supreme Court’s apparently favorable view of the program as articulated in Malesko.200
First, the administrative-remedy program is not a congressionally created scheme.201 Second, the purpose of the administrative-remedy
program is to provide a procedural mechanism that allows prisoners
to raise any issues about their confinement.202 It is not meant to address or protect the constitutional rights of the federal prison population. Indeed, “[g]rievance system rules and procedures are supposed to
provide informal and summary resolution of complaints, not full199. See Ajaj v. United States, No. 15-cv-00992-RBJ-KLM, 2016 WL 6212518, at *3
(D. Colo. Oct. 25, 2016) (finding that prisoner-plaintiff’s request for accommodation to fast during Ramadan is moot while simultaneously finding he cannot assert Bivens claims for the years during which prison officials refused to
accommodate his fast during Ramadan, even though the accommodation did not
start until after he initiated suit); see also Michele C. Nielsen, Mute and Moot:
How Class Action Mootness Procedures Silences Inmates, 63 UCLA L. REV. 760,
775 (2016) (“The prison context . . . renders inmates vulnerable to such unilateral, involuntary mootness. Inmate locations, treatment, and classifications exist
at the whims of prisons. Thus, if prisons can simply reshuffle inmates through
transfers and reclassify prisoners through implementing measures . . . in order to
avoid or strategically manipulate litigation, inmates are distinct kinds of plaintiffs who require additional protections from defendants who attempt to render
their claims moot.”). Such protections should include the availability of damages
remedies for violations of their fundamental constitutional rights.
200. Corr. Servs. Corp. v. Malesko, 543 U.S. 61, 74 (2001).
201. See Carlson v. Green, 446 U.S. 14, 18–19 (1980) (stating that a Bivens remedy is
not required “when defendants show that Congress has provided an alternative
remedy which it explicitly declared to be a substitute for recovery directly under
the Constitution and viewed as equally effective” (emphasis added)).
202. FED. BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, OGC/LIT NO. 1330.18, ADMINISTRATIVE REMEDY PROGRAM 1-2 (2014) [hereinafter BOP AR PROGRAM], https://
www.bop.gov/policy/progstat/1330_018.pdf [https://perma.unl.edu/3AL].

Electronic copy available at: https://ssrn.com/abstract=3897753

960

NEBRASKA LAW REVIEW

[Vol. 96:924

fledged litigation of federal claims.”203 For the BOP’s program, a BOP
official is required to respond to grievances filed by federal prisoners,
but the program does not require any particular relief should the BOP
official find merit to the underlying complaint.204 There is no requirement that BOP officials cease wrongful conduct, and there is no provision to provide prisoners compensation for past harms.205 Most indepth investigations into prison grievance systems conclude that “submitting a grievance is more akin to lodging a complaint with the police
than with filing a complaint in court; while filing a grievance initiates
an investigative process, it is not intended to instigate adjudication of
legal claims.”206 Thus, the administrative-remedy program provides
no deterrent effect and is a “remedy” in name only—it is certainly not
adequate for purposes of the Bivens analysis.207
The third alternative remedy not mentioned by the Abbasi Court
but raised by at least one lower court is the FTCA.208 However, because the Court is yet to overturn Carlson, lower courts that find the
FTCA is an adequate alternative remedy are ignoring clear Supreme
Court precedent. In Carlson, the Court flatly, yet thoughtfully, rejected the argument that the FTCA is an alternate and adequate remedy to Bivens relief.209 It reasoned that Congress intended the FTCA
to be a counterpart to Bivens, not its replacement.210 It concluded that
Bivens serves as a deterrent to individual actors in a way the FTCA
203. Giovanna Shay & Johanna Kalb, More Stories of Jurisdiction-Stripping and Executive Power: Interpreting the Prison Litigation Reform Act (PLRA), 29 CARDOZO
L. REV. 291, 316 (2007).
204. See generally BOP AR PROGRAM, supra note 202.
205. Id.; see also Lynn S. Branham, The Prison Litigation Reform Act’s Enigmatic Exhaustion Requirement: What It Means and What Congress, Courts and Correctional Officials Can Learn from It, 86 CORNELL L. REV. 483, 546–47 (2001)
(concluding prison grievance systems do not provide for “proactive problem-solving mechanisms in[ ] the grievance process”).
206. Shay & Kalb, supra note 203, at 318. See Rachel Moran, Ending the Internal
Affairs Farce, 64 BUFF. L. REV. 837 (2016), for a thorough criticism of the ineffectiveness of filing a complaint with the police.
207. Indeed, much criticism has been levied against prison grievance proceedings in
general. See, e.g., Kermit Roosevelt III, Exhaustion Under the Prison Litigation
Reform Act: The Consequence of Procedural Error, 52 EMORY L.J. 1771, 1806–07
(concluding that grievance proceedings are “insufficiently judicial in nature to
warrant preclusive effect” in part because “the administrative proceeding may
produce no reviewable findings, or no relevant ones” and “there is no guarantee
that whatever findings do result will be the product of a procedure that comports
with federal due process standards”).
208. See, e.g., Saleh v. United States, No. 09–cv–02563–PAB–KLM, 2011 WL 2682803,
at *11 (D. Colo. Mar. 8, 2011) (finding the FTCA an adequate alternative remedy
for prisoner-plaintiff’s First Amendment Bivens claim), overruled in part by Saleh
v. United States, No. 09–cv–02563–PAB–KLM, 2011 WL 2682728 (July 8, 2011) .
209. Carlson v. Green, 446 U.S. 14, 20–25 (1980).
210. Id. at 22.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

961

cannot in the same way prospective relief cannot.211 The Court also
favorably commented on the availability of punitive damages and jury
trials212 in Bivens suits but not FTCA suits.213 Finally, the Court expressed disapproval of the idea because FTCA claims are premised on
state tort law; thus, FTCA liability is dependent upon the law of the
state in which the federal prisoner resides.214 This raises concerns
about the need for the Constitution to be equally applicable throughout the country.215
The final alternative remedy that will necessarily be implicated by
a federal prisoner’s attempt to find a Bivens remedy for Free Exercise
violations is any remedy available under RFRA.216 Passed in 1993,
Congress unequivocally intended RFRA to “repair the damage to religious liberty caused by the Supreme Court’s decision in Employment
Division v. Smith,”217 a 1990 Supreme Court case wherein “the Supreme Court held that neutral and generally applicable laws can be
applied to suppress religious practices, and that states need have no
reason for refusing exemptions for the free exercise of religion.”218
RFRA thereby creates a statutory right to religious freedom that is
more protective than the First Amendment. Under RFRA, the government cannot substantially burden a person’s religious exercise without demonstrating the burden is both in furtherance of a compelling
211. Id. at 20.
212. The historical importance and current efficacy of civil jury trials has been thoroughly researched and commented on by other scholars. For our purposes, because a federal prisoner will only gain access to a civil jury trial if he is able to
assert a Bivens claim (injunctive and FTCA claims are always tried to the bench),
it is important to note:
The Framers believed a civil jury trial was necessary for several reasons.
Perhaps most importantly, they viewed it as a check on the corrupting
power of judges. A jury composed of twelve men assembled for just one
case would be less susceptible to corruption or the influence of the sovereign, than a single, unelected Article III judge. With a jury trial, private
litigants would also know that their interests could be vindicated in litigation with the government.
Joseph M. Clark, A Different Tack: The Case for a Least Restrictive Means Requirement for Summary Judgment, 40 U. DAYTON L. REV. 333, 338 (2016) (citing
THE FEDERALIST NO. 83, at 484 (Alexander Hamilton) (Kathleen M. Sullivan ed.,
2009)); Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639, 656 (1973)); see also Darrell A.H. Miller, Text, History, and Tradition: What the Seventh Amendment Teaches Us About the Second,
122 YALE L.J. 852, 873 n.99 (2013); George L. Priest, The Role of the Civil Jury in
a System of Private Litigation, 1990 U. CHI. LEGAL F. 161, 186–90.
213. Carlson, 446 U.S. at 22.
214. Hoery v. United States, 324 F.3d 1220, 1222 (10th Cir. 2003).
215. Id. at 23.
216. 42 U.S.C. § 2000bb-1(a)–(c) (2012).
217. Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 TEX. L. REV. 209, 209–10 (1994) (citing Emp’t Div. v. Smith, 494
U.S. 872 (1990)).
218. Id. at 209.

Electronic copy available at: https://ssrn.com/abstract=3897753

962

NEBRASKA LAW REVIEW

[Vol. 96:924

government interest and the least restrictive means of accomplishing
that interest.219 While RFRA was later found unconstitutional as applied to the states because it exceeded Congress’s power under Section
5 of the Fourteenth Amendment,220 the statute remains in effect as
applied to the federal government, including the federal prisons.221
At the time Congress debated the bill, a number of attorneys general attempted to persuade Congress to exempt prisons from the statute’s religious-liberty protections, to no avail.222 Senators Alan
Simpson and Harry Reid sponsored a proposed amendment to the bill
that would have expressly provided that nothing in RFRA “shall affect, interpret, or in any way address that portion of the First Amendment regarding laws prohibiting the free exercise of religion.”223
Importantly, RFRA is not a constitutional amendment but a statute
“designed to perform a constitutional function” by codifying the standard of review to be applied in cases involving Free Exercise violations.224 Indeed, RFRA could not override the Supreme Court’s
interpretation of the First Amendment—it simply took a constitutional right, converted it to a statutory right, and codified the protections afforded to that statutory right.225 This is why federal prisoners
can and do sue the federal government and its agents for violations of
both their constitutional right to freely exercise their religion and
their statutory right to do the same.226
Nevertheless, at least one lower federal court determined that Congress’s passage of RFRA signifies that it intended the statute to be an
alternative remedial scheme for Free Exercise constitutional violations, thereby precluding an extension of Bivens to remedy violations
of the First Amendment’s Free Exercise clause.227 Notably, in Mack v.
Warden Loretto FCI, the Third Circuit supported this conclusion by
expressly finding RFRA provides claimants with all “appropriate re219. § 2000bb-1(a)–(b).
220. See City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997). In response to City of
Boerne, Congress passed the Religious Land Use and Institutionalized Persons
Act (RLUIPA), which applies to states and their prisons. 42 U.S.C. § 2000cc-1
(2012). RLUIPA, passed using Congress’s power under the Spending Clause, has
survived constitutional challenges. See Cutter v. Wilkinson, 544 U.S. 709 (2005).
221. O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (noting that
RFRA’s application to internal federal government operations rests on Article I,
Section 8, Clause 18 of the Constitution); Kikumura v. Hurley, 242 F.3d 950,
959–60 (10th Cir. 2001); Jama v. U.S. Immigration & Naturalization Serv., 343
F. Supp. 2d 338, 369–70 (D.N.J. 2004) (applying RFRA to federal immigration
detainees).
222. Laycock & Thomas, supra note 217, at 239–40.
223. 139 CONG. REC. S14,468 (daily ed. Oct. 27, 1993).
224. Laycock & Thomas, supra note 217, at 218–19.
225. Id. at 243.
226. See supra notes 141–42.
227. Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

963

lief” for Free Exercise violations, including damages relief against individual federal officers who violate the religious rights of federal
prisoners.228 Thus, RFRA appears to present the biggest roadblock for
a Bivens remedy for Free Exercise violations. But, I submit, it is not
quite that simple.
First, the lower federal courts are decidedly split on whether RFRA
authorizes damages against individual defendants for claims brought
under the statute.229 For the courts who decided RFRA does not authorize damages, part of the rationale used to support their decision is
that RFRA only authorizes a cause of action against the government
itself, not individuals, and damages have never been available against
the government, as opposed to individuals.230 In interpreting the legislative history of RFRA, these courts concluded that “Congress’ intent
in enacting RFRA could not be clearer: It was to restore Congress’ understanding of the compelling interest test as it existed before
Smith—no more, no less.”231 To the extent this is the appropriate conclusion to draw from RFRA’s legislative history, then Congress did not
intend for RFRA to provide the sort of comprehensive remedial scheme
that should preclude the extension of the Bivens remedy.
Moreover, even if the Mack court’s interpretation of RFRA is correct232 and individual damages liability should be available under the
statute, a Bivens remedy should also be available. While this proposition is far afield the Supreme Court’s current Bivens jurisprudence, “a
damages remedy against the offending party is a vital component of
any scheme for vindicating cherished constitutional rights.”233 As another constitutional scholar clearly lays out, providing a damages remedy for violations of constitutional rights plays a crucial role in the
American constitutional scheme:
228. Id. at 301, 304–05.
229. See, e.g., Mack v. O’Leary, 80 F.3d 1175, 1177 (7th Cir. 1996) (allowing RFRA suit
against individual for damages); Fernandez-Torres v. Watts, No. 2:16–cv–24,
2017 WL 1173923, at *2 (S.D. Ga. Mar. 29, 2017) (no damages available under
RFRA); Barrera-Avila v. Watts, No. 2:16–cv–141, 2017 WL 933123, at *4 (S.D.
Ga. Mar. 8, 2017) (same); Ajaj v. United States, No. 15–cv–00992–RBJ–KLM,
2016 WL 6212518, at *3 (D. Colo. Oct. 25, 2016); Rezaq v. Fed. Bureau of Prisons,
No. 13–cv–00990–MJR–SCW, 2016 WL 97763, at *9 (S.D. Ill. Jan. 8, 2016)
(money damages available under RFRA against individuals), Tanvir v. Lynch,
128 F. Supp. 3d 756, 780 (S.D.N.Y. 2015) (finding that RFRA does not authorize a
damages case).
230. Tanvir, 128 F. Supp. 3d at 779–80.
231. Id. at 780.
232. While outside the scope of this Article, I find the Mack court’s conclusion that the
text and legislative history of RFRA support a conclusion that RFRA allows for
monetary relief from individuals to be entirely credible and accurate. Nonetheless, for the reasons articulated below, I believe a Bivens remedy should also be
available.
233. Owen v. City of Independence, 445 U.S. 662, 651 (1980).

Electronic copy available at: https://ssrn.com/abstract=3897753

964

NEBRASKA LAW REVIEW

[Vol. 96:924

Individual damages actions play a significant role in the constitutional enforcement scheme by permitting injured parties to be compensated for harms
caused by renegade public officials’ unconstitutional conduct and providing
some deterrence of official misconduct. They also play a valuable signaling
role, both to society and to public officials, about the importance of constitutional values and the rule of law.234

This signaling role—the idea that “the imposition of damages against
public officials can serve a valuable symbolic function to convey a
broad societal message that public officials, like ordinary citizens,
must adhere to the rule of law and that constitutional rights are valued by our system of justice”235—is perhaps the most important value
provided by a system that ensures damages remedies are available to
all, regardless of their status.
The necessity to provide equal remedial protections for violations
of constitutional rights holds particularly true in the context of remedies available for the violation of religious freedoms protected by the
First Amendment. As further explored below, in section IV.B, with
particular focus on the importance of religion in prison, the free exercise of religion has been a central tenet of American constitutional
protection since the earliest days of the republic, with protections
found in both the Bill of Rights and nearly all state constitutions.236
Moreover, the need for prison systems to bear a semblance of fairness
in order to remain legitimate, discussed in more detail in section IV.A,
likewise contributes to the importance of protecting the religious
rights of all prisoners in the same manner and through the same
processes. This combination—the fundamental importance of religious freedoms to the American constitutional system and the need for
fairness in the administration of prisons—creates a compelling rationale for ensuring federal prisoners have the same remedial mechanisms available to them as their state counterparts. This rationale
moves beyond the traditional Bivens test and negates the idea that a
mere statute like RFRA should or could be an adequate alternative
solution to address constitutional violations.237

234. Chen, supra note 130, at 890.
235. Id. at 901.
236. John Witte Jr., The Essential Rights and Liberties of Religion in the American
Constitutional Experiment, in THE FIRST AMENDMENT: THE FREE EXERCISE OF RELIGION CLAUSE—ITS CONSTITUTIONAL HISTORY AND THE CONTEMPORARY DEBATE
33, 43 (Thomas C. Berg ed., 2008).
237. On this same note, because existing jurisprudence requires that a plaintiff seeking to vindicate the violation of his constitutional rights under the First Amendment is required to meet a higher burden than a plaintiff suing for vindication of
his statutory rights under RFRA, the mere fact that a plaintiff might meet this
higher burden deserves remedial protection that properly acknowledges the importance of the rights enshrined in the Constitution.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

965

IV. IMPORTANCE OF A DAMAGES REMEDY FOR
SUBSTANTIAL BURDENS ON THE FREE EXERCISE
OF RELIGION IN PRISONS
There is no doubt that serving time in an American prison is not an
easy experience. The incarceration boom of the past four-plus decades
has been accompanied by a move toward harsher and more punitive
policies.238 Moreover, social psychologists have long recognized that
authoritarian institutions like prisons are ripe for allowing and even
encouraging abuses by those in power.239 Yet, the reality of modernday prison life is largely unknown to the American public,240 and the
238. See generally MONA LYNCH, SUNBELT JUSTICE ARIZONA AND THE TRANSFORMATION
OF AMERICAN PUNISHMENT (2010) (tracing Arizona’s transition from a rehabilitative to punitive model of punishment). Lynch explicitly sets out to illustrate how
Arizona “became a national trend-setting leader in delivering harsh punishment”
using Arizona as but one illustration of “a sociological and cultural theoretical
framework that explicates how punishment functions during a moment of paradigm transformation.” Id. at 3; see also ROBERT A. FERGUSON, INFERNO: AN ANATOMY OF AMERICAN PUNISHMENT 182 (2014) (describing America’s “muscular desire
to punish”).
239. The most famous, and controversial, experiment examining the behavior of both
the powerful and the powerless in prisons is the Stanford Prison Experiment, in
which social psychologist Philip Zimbardo and his team created a mock prison in
the basement of the psychology building at Stanford University. Craig Haney et
al., Interpersonal Dynamics in a Simulated Prison, 1 INT’L J. CRIMINOLOGY & PENOLOGY 69, 73 (1973). However, other famous experiments and studies in psychology and sociology reveal that ordinary citizens often respond to authoritarian
figures and institutions with blind obedience, regardless of the evils being perpetrated or sanctioned by such obedience. See, e.g., Solomon E. Ashe, Studies of
Independence and Conformity: A Minority of One Against a Unanimous Majority,
70 PSYCHOL. MONOGRAPHS 1, 3 (1965) (discussing the results of a series of experiments testing behavior in a group setting, finding that individuals are quick to
conform to the behavior of others, and concluding that social situations profoundly impact human behavior); Stanley Milgram, Some Conditions of Obedience and Disobedience to Authority, 18 HUM. REL. 57, 74–75 (1965) (“With
numbing regularity good people were seen to knuckle under the demands of authority and perform actions that were callous and severe. . . . A substantial proportion of people do what they are told to do, irrespective of the content of the act
and without limitations of conscience, so long as they perceive that the command
comes from legitimate authority.”).
240. MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA 18 (2006). The invisibility of the modern carceral state lies
in stark contrast to the public’s historical interest in prisons:
The problem of the prison was central to major political theorists of the
eighteenth and nineteenth centuries. The role that punishment and imprisonment served in maintaining social order, legitimizing the state,
and reforming the soul were key concerns of thinkers like Mill, Bentham, Kant, Montesquieu, Tocqueville, and Francis Lieber, the first
named professor of political science in the United States. Years ago prisons also transfixed the public. American penitentiaries were a prime
sightseeing destination for foreign and domestic tourists. Prison officials
charged entrance fees and put prisoners on view as if they were in a zoo,
sometimes hosting thousands of tourists in a single day. Charles Dickens

Electronic copy available at: https://ssrn.com/abstract=3897753

966

NEBRASKA LAW REVIEW

[Vol. 96:924

political process provides little oversight or protection to prisoners.241
For these reasons, the role of the judiciary in protecting the rights of
prisoners is vital, and judicial remedies meant to deter future wrongful conduct are of the utmost importance.
There are three interwoven practical and policy areas relied on to
reach the ultimate conclusion that allowing for and preserving a damages remedy for violations of a prisoner’s Free Exercise rights is of
paramount importance. First, prisons, by their nature, invite unchecked abuse by the powerful over the powerless. Second, religion in
prison is both important for the incarcerated, as a way to maintain a
sense of self and preserve a sense of dignity, and for the incarcerators,
who often view allowing for religious observance and activities in
prison as serving a greater rehabilitative goal.242 Finally, the very
purpose of punitive damages in constitutional cases is to deter the
powerful from exerting unfair control over the powerless. By refusing
federal prisoner-plaintiffs the option to pursue these damages in
court, the federal courts abdicate their responsibility to check the unrestrained power of the Executive over a uniquely vulnerable population—the 185,254 prisoners locked within the confines of the federal
prison system.243
A.

The Stanford Prison Experiment and the “Lucifer
Effect”244: How Prisons Create an Environment Ripe
for Abuse

In August 1971, a group of psychologists at Stanford University,
led by Philip Zimbardo, conducted an experiment where they created
a prison in the basement of Stanford University’s Jordan Hall.245 The
pyschologists recruited university students to play the parts of prison-

241.

242.
243.
244.
245.

reportedly told the warden of Cherry Hill prison after a visit: “The Falls
of Niagara and your Penitentiary are two objects I might almost say I
most wish to see in America.”
Id. (first citing MICHAEL HINDUS, PRISON AND PLANTATION: CRIME, JUSTICE, AND
AUTHORITY IN MASSACHUSETTS AND SOUTH CAROLINA, 1767–1978, at 101 (1980);
and then quoting NEGLEY K. TEETERS & JOHN D. SHEARER, THE PRISON AT PHILADELPHIA, CHERRY HILL: THE SEPARATE SYSTEM OF PENAL DISCIPLINE: 1829–1913,
at 114 (1957)).
Erwin Chemerinsky, The Constitution in Authoritarian Institutions, 32 SUFFOLK
U. L. REV. 441, 458 (1999); see also N.Y. CIVIL LIBERTIES UNION, BOXED IN: THE
TRUE COST OF EXTREME ISOLATION IN NEW YORK’S PRISONS 7 (2012) (“What occurs
behind prison walls is murky.”).
Thomas & Zaitzow, supra note 139, at 250.
About Our Agency, FED. BUREAU OF PRISONS, https://www.bop.gov/about/agency
[https://perma.unl.edu/6CJH-NAH3].
PHILIP ZIMBARDO, THE LUCIFER EFFECT: UNDERSTANDING HOW GOOD PEOPLE
TURN EVIL (2007).
Id. at 20.

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

967

ers and guards in the experiment.246 Zimbardo and the other psychologists screened each of the participants for personality disorders
before starting the experiment.247 Utilizing the assistance of the local
police, the students assigned to be prisoners were “arrested” and
taken into custody on Sunday, August 14, 1971.248 Within hours of
taking the so-called prisoners into custody, the students assigned as
guards began a series of abuses against the prisoners.249 The experimenters, “surprised both by the intensity of the guards’ domination
and the speed with which it appeared,”250 ended the experiment,
meant to last two weeks, after a mere six days.251
Many conclusions regarding the situational influence of power on
human behavior and how that situational power plays out in prisons
can be drawn from Zimbardo’s study. A few are of signfiance here.
First, “[p]ower is a concern when people either have a lot of it and
need to maintain it or when they have not much power and want to
get more.”252 Both of these dynamics are likely present in a prison at
any given time. Prison guards have an enormous amount of power but
are incredibly outnumbered by the powerless prisoners surrounding
them.253 Yet, despite this lopsided distribution of power of the few
over the many within the prison system, prison guards often view
themselves as the “dentists of the law enforcement world.”254 In other
words, even though prison guards have a lot of power within the
prison system, they see themselves as having little power or prestige
vis-à-vis their law enforcement cohorts. This psychological tug-of-war
for prison guards inevitably leads to stress that guards may choose to
relieve through perpetrating abuses on prisoners.255
This result can be intensified by another important conclusion
from the Stanford Prison Experiment: the idea that pressures to conform arising from the need for social approval can overwhelm a per246.
247.
248.
249.
250.
251.
252.
253.

See id. at 19–20.
Id. at 30.
Id. at 23, 34–39.
Id. at 40–56.
Id. at 196.
Id. at 171–72, 178.
Id. at 208.
Shane Bauer, My Four Months as a Private Prison Guard, MOTHER JONES,
July–Aug. 2016, http://www.motherjones.com/politics/2016/06/cca-private-prisons-corrections-corporation-inmates-investigation-bauer [https://perma.unl.edu/
PGR6-T4UQ] (“There are almost never more than two floor officers per general
population unit. That’s one per 176 inmates.”).
254. TED CONOVER, NEWJACK: GUARDING SING SING 20 (2000).
255. Dasha Lisitsina, “Prison Guards Can Never Be Weak”: The Hidden PTSD Crisis
in America’s Jails, GUARDIAN (May 20, 2015), https://www.theguardian.com/usnews/2015/may/20/corrections-officers-ptsd-american-prisons [https://perma.unl
.edu/35S9-U87Z].

Electronic copy available at: https://ssrn.com/abstract=3897753

968

NEBRASKA LAW REVIEW

[Vol. 96:924

son’s sense of right and wrong.256 Zimbardo and his team found that
“[g]roup pressure from other guards placed significant importance on
being a ‘team player,’ conforming to an emergent norm that demanded
dehumanizing the prisoners in various ways.”257 The third and final
conclusion from the Stanford Prison Experiment relevant to this discussion is the idea that prisons do more than just create an environment ripe for physical abuse or violence directed at the powerless by
the powerful. In authoritarian instututions like prisons,
[w]hat is more typical is[ ] mediated violence, where authorities pass along
orders to underlings who carry them out or the violence involves verbal abuse
that undercuts the self-esteem and dignity of the powerless. Authorities often
take actions that are punitive and whose consequences are not directly observable. For example, giving hostile feedback to someone that knowingly will
disrupt their performance and adversely affect their chances of getting a job
qualifies as a form of such socially mediated violence.258

It is this sort of psychological and dignitary assault by a prison guard
on a prisoner that creates great concern. Physical assaults on prisoners can violate the Eighth Amendment, and prisoners should certainly
have a damages remedy available to them for the physical and psychological harms that result from excessive uses of force. Such a remedy
is available for state prisoners through § 1983, and Carlson established that federal prisoners have a concomitant remedy under Bivens.259 The focus here is on protecting the Free Exercise rights of
prisoners and on deterring prison guards from unjustifiably burdening those rights. That focus stems from a belief that burdens on the
religious rights of a prisoner are often meant to be an attack on the
prisoner’s core belief system, the system he uses to define who he is
and how, even as a prisoner, he might choose to live his life with dignity. Prisoners’ religious-rights cases highlight a myriad of mediated
abuses prison guards perpetrate on the prisoners they confine,
including:
1. On multiple occasions, forcibly removing a prisoner from his
cell, in full SWAT gear, with physical force, placing the prisoner in
another room, and forcibly shaving his head;260
2. Forcing a Muslim prisoner working in the kitchen to prepare
pork and punishing the prisoner for refusing;261
3. Pushing a Muslim prisoner during his daily prayers;262
256.
257.
258.
259.
260.
261.
262.

ZIMBARDO, supra note 244, at 221.
Id.
Id. at 278.
Carlson v. Green, 446 U.S. 14 (1980).
Smith v. Ozmint, 578 F.3d 246, 259 (4th Cir. 2009).
Williams v. Bitner, 359 F. Supp. 2d 370, 373 (M.D. Pa. 2005).
Arroyo Lopez v. Nuttall, 25 F. Supp. 2d 407, 409 (S.D.N.Y. 1998) (awarding state
prisoner seven thousand dollars in damages for violation of Free Exercise rights).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

969

4. Refusing to tell a Muslim prisoner the time of day in order to
allow him to pray and refusing to tell him the date so he could
observe Ramadan;263
5. Throwing a Muslim prisoner’s Qur’an in the garbage or on the
floor;264
6. Refusing to allow a prisoner to preach;265 and
7. Excluding a prisoner from his faith services for a period of
three months.266
These indignities may appear minor in the context of other cruelties prisoners may face in prison, but often these indignities are motivated or accompanied by a discriminatory or malicious animus.
Indeed, prison officials often equate religious practice to other troublemaking acts in the prison.267 Moreover, as discussed in further depth
below, these humiliations attack the very core of how a person defines
himself, a harm felt even more acutely in prison, where prisoners are
required to hide much of their identity in order to survive the harshness of daily prison life.
B.

The Importance of Religious Rights in Prison
Religion is a special phenomenon, in part, because it plays such a wide variety
of roles in human life: it is an institution, but it is more than that; it is an
ideology or worldview, but it is more than that; it is a set of personal loyalties
and locus of community, akin to family ties, but it is more than that; it is an
aspect of identity, but it is more than that; it provides answers to questions of
ultimate reality, and offers a connection to the transcendent; but it is more
than that. Religion cannot be reduced to a subset of any larger category.268

All schoolchildren in the United States learn early that issues of
religious liberty were important and influential to the drafters of the
Constitution and the Bill of Rights.269 Indeed, “the founders understood freedom in matters of religious belief and practice as something
fundamental to the American experiment.”270 And while the meaning
of the twin religion clauses in the First Amendment continues to be
debated today, it is clear that the “sixteen words capture numerous
263. Omar v. Casterline, 288 F. Supp. 2d 775, 781–82 (W.D. La. 2003).
264. Jama v. Esmor Corr. Servs., Inc., No. 97-3093, 2008 WL 724337, at *2 (D.N.J.
Mar. 17, 2008).
265. Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 38 (1st Cir. 2007).
266. Meyer v. Teslik, 411 F. Supp. 2d 983, 989–90 (W.D. Wis. 2006).
267. CONOVER, supra note 254, at 21 (recounting that prison officials told him “the
rules they followed to prevent trouble: breaking up gatherings of more than six
people; forbidding martial arts practice, group worship (Muslims wanted to pray
together and kneel toward Mecca), and contact sports”).
268. Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV.
42 (2000).
269. James A. Sonne, Religious Liberty, Clinical Education, and the Art of Building
Bridges, 22 CLINICAL L. REV. 251, 257 (2015).
270. Id. at 257–58.

Electronic copy available at: https://ssrn.com/abstract=3897753

970

NEBRASKA LAW REVIEW

[Vol. 96:924

abiding principles, including liberty of conscience, free exercise, pluralism, equality, separationism, and disestablishment.”271 The principle relating to liberty of conscience becomes the most important in
prison, both in terms of prisoners’ coping mechanisms and chances at
rehabilitation.
The prison system as we know it stems from early Quaker ideals
about penance and reform.272 “Religion has, in one way or another,
been a cornerstone” of the American prison system, and “[b]y the mid20th century, religion was recognized as an accepted program in virtually all U.S. prisons . . . [but], with limited exceptions, religious rights
extended primarily to the two Christian doctrines of Catholics and
Protestants.”273 This discriminatory provision of religious rights in
prison continued until the Supreme Court allowed a Muslim prisoner
to challenge prison policies restricting his access to religious leaders of
his faith in Cooper v. Pate.274 While the availability of religious programming remains largely focused on Christian values, faith-based
programming is considered by many to “contribute substantially to
prison life for staff and prisoners.”275 Indeed, “there is considerable
evidence that religion contributes to feelings of well-being, reduces
stress, and increases general health.”276 Religion is also seen as a way
for prisoners to form healthy connections with others, and
“[a]ffiliation with a religious group may be the only place where these
inmates can interact with other inmates in a positive manner and
have a sense of psychological well-being.”277 Moreover, the vast majority of prison chaplains view “religious counseling and other religionbased programming an important aspect of rehabilitating
prisoners.”278
Thus, religion serves an important function in prison for both the
prisoners and the prison officials. For prisoners, the right to religious
freedom “is intrinsic to the human person.”279 Indeed, the right to religious freedom is grounded in inherent human dignity: “When people
271. Id. at 259.
272. GOTTSCHALK, supra note 240, at 47; Jim Thomas & Barbara H. Zaitzow, Conning
or Conversion? The Role of Religion in Prison Coping, 86 PRISON J. 242, 247
(2006).
273. Thomas & Zaitzow, supra note 272, at 257.
274. 378 U.S. 546 (1964).
275. Thomas & Zaitzow, supra note 272, at 250.
276. Id. at 254.
277. Id.
278. FORUM ON RELIGION & PUB. LIFE, PEW RESEARCH CTR., RELIGION IN PRISONS: A
50-STATE SURVEY OF PRISON CHAPLAINS 11 (Sandra Stencel et al. eds., 2012),
http://assets.pewresearch.org/wp-content/uploads/sites/11/2012/03/Religion-inPrisons.pdf [https://perma.unl.edu/8ZR5-K69X].
279. TIMOTHY SAMUEL SHAH, WITHERSPOON INST. TASK FORCE ON INT’L RELIGIOUS
FREEDOM, RELIGIOUS FREEDOM: WHY NOW? DEFENDING AN EMBATTLED HUMAN
RIGHT 3 (2012).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

971

lose their religious freedom, in other words, they lose more than their
freedom to be religious. They lose their freedom to be human.”280
Therefore, curtailments of religious freedom in prison do not simply
infringe upon certain religious practices; they can effectively attack a
person’s core identity. For this reason, and because of the historical
importance of religious rights to the American tradition, religious
rights in prison deserve the utmost constitutional protection.
C.

The Historical Purpose of Punitive Damages

From the earliest English common law allowing for exemplary, or
punitive damages, it is clear punitive damages were meant to redress
“some sort of dignitary harm to the plaintiff [that would] remain[ ]
otherwise uncompensated.”281 As discussed above, prisoners are a
particularly vulnerable population, subject to the whim of their captors at all times, and violations of prisoners’ religious rights are inherently dignitary harms. Thus, allowing prisoners to seek punitive
damages affords the socially powerless—those unable to protect themselves—the opportunity to vindicate their constitutionally protected
rights when those rights are violated by the more powerful prison
guards. Such a purpose is consistent with the historical role of punitive damages in our legal system.282
Consequently, punitive damages, likely the only damages available
to prisoner-plaintiffs asserting Free Exercise claims because of the
physical-injury requirement of the PLRA,283 are exactly the type of
damages meant to compensate the dignitary harms associated with
Free Exercise violations.284 Yet only state officials currently face punitive-damage liability for violation of one of the nation’s foremost constitutional protections and federal officials do not. Because of this
structure, the system is set up to elevate the interests of some at the
280. Id. at 28.
281. Redish & Mathews, supra note 29, at 14 (2004).
282. Pillard, supra note 30, at 71; Rustad & Koenig, supra note 30, at 1285 (“[T]he
history of the rise of the doctrine of punitive damages is a part of the struggle of
individuals to preserve their rights against the mighty.”).
283. The PLRA provides that a prisoner may not receive compensatory damages “for
mental or emotional injury suffered while in custody without a prior showing of
physical injury.” 42 U.S.C. § 1997e(e) (2012). The PLRA places no such limitation
on the availability of punitive damages.
284. See Thomas B. Colby, Clearing the Smoke from Philip Morris v. Williams: The
Past, Present, and Future of Punitive Damages, 118 YALE L.J. 392, 434 (2008);
Anthony J. Sebok, Punitive Damages: From Myth to Theory, 92 IOWA L. REV. 957,
1008 (2007) (“Punitive damages vindicate the ‘dignity’ of the private citizen and,
therefore, the private right whose violation grounds their award is the private
right not to have one’s dignity violated. This right can be expressed in a number
of ways—the right to respect, the right to dignity, and the right to moral
equality.”).

Electronic copy available at: https://ssrn.com/abstract=3897753

972

NEBRASKA LAW REVIEW

[Vol. 96:924

expense of others.285 In a system where all federal officers must take
an oath to support and defend the Constitution,286 such a result is
nonsensical, untenable,287 and contrary to the historic roots of punitive damages awarded in cases involving “the abuse of official authority [and] acts in which the defendant used his social power to abuse
the plaintiff.”288 By refusing to uniformly allow an award of punitive
damages against both state and federal prison officials for the dignitary harms associated with religious rights violations, federal courts
are abdicating their responsibility to ensure the Constitution is
respected by both the states and the executive branch of the federal
government.
V.

CONCLUSION

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of
the first duties of government is to afford that protection . . . . The government
of the United States has been emphatically termed a government of laws, and
not of men. It will certainly cease to deserve this high appellation, if the laws
furnish no remedy for the violation of a vested legal right.289

Since Chief Justice John Marshall penned the Supreme Court’s
landmark decision in Marbury v. Madison, the proposition that the
rule of law requires judicial remedies for wrongs perpetrated by the
government has been generally accepted as universal truth.290 From
the earliest days of the American republic, the idea that federal
285. Markel, supra note 31, at 271 (2009) (“[A] system that arbitrarily punished some
people’s illegal conduct while systematically—or—haphazardly leaving others’
misconduct untouched would be one that participated (perhaps unwittingly) in
the making of false assessments of whose interests count how much in a liberal
democracy. Consequently, when people defy their equal obligation to obey the
rules the state has imposed to protect the rights of others, the state may seek to
punish them . . . .”).
286. See 5 U.S.C. § 3331 (2012).
287. Markel, supra note 31, at 263–64 (“It’s interesting that the principle of democratic self-defense is embodied in the oath taken by federal officers, the substance
of which obligates them to protect the decision-making structure of the nation.
The oath illuminates the idea that the Constitution must be defended against
attack by those who shift the rules unlawfully, thus revealing offenses as, to some
degree, forms of rebellion.” (citations omitted)).
288. Sebok, supra note 284, at 1008 (citing Charles T. McCormick, Some Phases of the
Doctrines of Exemplary Damages, 8 N.C. L. REV. 129, 137 (1930)).
289. Marbury v. Madison, 5 U.S. 137, 163 (1803).
290. William Michael Treanor, The Story of Marbury v. Madison: Judicial Authority
and Political Struggle, in FEDERAL COURTS STORIES 29, 30 (Vicki C. Jackson &
Judith Resnik eds., 2010) (“Marbury played a critical part in the development of
the larger propositions that, in the new republic, there was a distinction between
politics and law, and that remedies for governmental wrongs were necessary to
the rule of law.”).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

973

“judges ought to be guardians of the Constitution”291 by enforcing constitutional rights through judicial review has been recognized as vitally important.292 However, judicial review becomes meaningless to
individuals if the federal courts refuse to provide a remedy for violations of constitutional rights.293
Scholars have extensively criticized the Supreme Court’s retraction of the Bivens doctrine as a failure to uphold Marbury’s promise of
a remedy for all violations of individual rights.294 While agreeing with
this critique, this Article focuses on a discrete type of claim to argue
that by refusing to hold federal officials accountable in the same manner and form as state officials who are performing the same job for
violations of the same constitutional rights, the Supreme Court is inevitably creating a constitutional scheme wherein federal actors can
violate the Constitution with impunity while their state counterparts
are held accountable. Moreover, by focusing on remedy before rights,
the Supreme Court is stripping itself and the lower federal courts of
jurisdiction over claims arising from the Constitution itself. This result is antithetical to constitutional history and design, and creates a
perverse federalist system wherein the federal government holds the
states to higher constitutional standards than it holds itself. Such a
system is inherently arbitrary, unfair, and unequal. This is clearly
demonstrated when examining the incongruous remedies available in
Free Exercise challenges brought by state and federal prisoners.295
When first adopted, the Constitution applied primarily to the federal government. After the Civil War, Congress drafted and approved,
and the states ratified, the Fourteenth Amendment.296 Decades later,
291. Id. at 42 (citing 11 ANNALS OF CONG. 179 (1802) (statement by Republican Senator Wright of Maryland during congressional debates as to whether to repeal the
Judiciary Act of 1801)).
292. Id.; see also Sharon Dolovich, Forms of Deference in Prison Law, 24 FED. SENT’G
REP. 245, 245 (2012) (calling for a theory of deference for the prison-law context).
293. Marbury, 5 U.S. at 166 (“But where a specific duty is assigned by law, and individual rights depend upon the enforcement of that duty, it seems equally clear
that the individual who considers himself injured has a right to resort to the laws
of his country for a remedy.”).
294. See supra section II.C.
295. See supra Parts II–III.
296. Gregory E. Maggs, A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning, 49 CONN. L.
REV. 1069, 1074 (2017). A full examination of the history behind the ratification
of the Fourteenth Amendment is beyond the scope of this piece. However, the
39th Congress faced “formidable roadblocks” in securing ratification.
Article V required the approval of three-fourths of the states, and white
southern legislatures were fully prepared to reject the Fourteenth and
Fifteenth Amendments, thereby depriving them of legal validity. When
faced with this prospect, congressional Republicans used military force
and other desperate constitutional expedients to ram their amendments
through the southern legislatures. These heavy-handed methods contributed to the alienation of the white South for generations.

Electronic copy available at: https://ssrn.com/abstract=3897753

974

NEBRASKA LAW REVIEW

[Vol. 96:924

the Supreme Court acknowledged that certain provisions of the Bill of
Rights were applicable to the states through the Due Process Clause
of the Fourteenth Amendment,297 a practice known as the incorporation doctrine.298 The Supreme Court did not incorporate the Free Exercise clause until 1940,299 thereby expressly holding the states to the
same standards as the federal government with regard to Free Exercise rights.300 Prior to incorporation, the Constitution placed no limits
on state regulation of religion; indeed, the text of the First Amendment itself is focused on limitations placed on the federal government
through Congress.301 Despite this textual anomaly, the federal courts
continue to analyze the substance of Free Exercise claims against the
state in the same manner as those asserted against the federal
government.
To be clear, this Article is not arguing that the Supreme Court got
it wrong in the incorporation cases. To the contrary, the Fourteenth
Amendment rightly requires the states to protect and secure the individual rights and liberties enshrined in the Bill of Rights in the same
way it requires the federal government to do so. What is asserted,
however, is that by imposing inconsistent remedial consequences for
violations of those rights on state actors vis-á-vis federal actors, the
federal courts ignore constitutional history and design meant to protect individuals from rights infringement by the federal government.
In the prison setting, this results in federal prison officials escaping
with no repercussions for violations of federally protected constitutional rights while state prison officials are held liable for the very
same acts. Such a result stands constitutional design on its head302
and creates an inherently arbitrary and unfair constitutional scheme
that “values other concerns of far less importance over the constitutional rights of individuals—rights that lie at the heart of our judicial
system.”303
BRUCE ACKERMAN, THE CIVIL RIGHTS REVOLUTION 58 (3d ed. 2014).
297. Chi., Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897) (incorporating
the takings provision of the Fifth Amendment).
298. Poppel, supra note 188.
299. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
300. Other commentators have examined the problems inherent to applying the same
Free Exercise standards to the state and federal government. See, e.g., Poppel,
supra note 188, at 248–49.
301. U.S. CONST. amend. I (“Congress shall make no law . . . ” (emphasis added)).
302. Carlson v. Green, 446 U.S. 14, 22 (1980) (“ ‘Constitutional design’ would be stood
on its head if federal officials did not face at least the same liability as state
officials guilty of the same constitutional transgression.” (citations omitted)).
303. Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified
Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 133 MICH. L. REV. 1219, 1254 (2015).

Electronic copy available at: https://ssrn.com/abstract=3897753

2018] HOLDING FED. PRISON OFFICIALS ACCOUNTABLE

975

A judicial system that undervalues individual rights and results in
such obviously arbitrary and unfair outcomes leads to unpredictability
and allows for abuse and injustice. The prison context creates an environment ripe for abuse on its own such that allowing federal prison
officials to act with impunity only heightens the risk of abuse. Moreover, the perception of fair treatment plays an important role in both
the prison context and in the broader justice system. “Much psychological research has addressed the importance of the perception of fair
process in the evaluation of the quality of justice dispensed in any legal setting.”304 Chief Justice Earl Warren recognized the important
role of the federal courts in promoting a fair society and “believed that
the Court had a responsibility to enforce constitutional guarantees,
and anything less amounted to ‘judicial abnegation.’ ”305 With this in
mind, the Warren Court used its power “to achieve fairness and equal
protection for all,” embodying, as Michael Anthony Lawrence posits,
“the ‘justice-as-fairness’ approach” of John Rawls.306 But in the fourplus decades since Justice Warren retired, the Court has moved away
from fairness as a guiding principle, focusing instead on other nonindividual rights matters to divest itself of jurisdiction in both Bivens
cases and prisoners’-rights cases more generally.307
The Court’s latest line of Bivens cases declined to extend Bivens to
new contexts based on purported separation of powers concerns.
Mainly, if Congress has not expressly authorized a suit for damages in
a particular context, the Court should exercise restraint to entertain a
cause of action wherein damages are the sought-after remedy.308
However, Congress granted the federal courts jurisdiction on all matters of federal law—28 U.S.C. § 1331 provides “[t]he district courts
shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” Congress enacted
this statute, thereby granting the federal courts federal question jurisdiction, in 1875, presumably to promote “uniformity in the interpretation and application of federal law.”309 In other words, “because the
304. Brief of Professors and Practitioners of Psychology and Psychiatry as Amicus Curiae in Support of Respondent, Wilkinson v. Austin, 545 U.S. 209 (2005) (No. 04495) (citing Jon Darley et al., Psychological Jurisprudence: Taking Psychology
and Law into the Twenty-First Century, in TAKING PSYCHOLOGY AND LAW INTO
THE TWENTY-FIRST CENTURY 35–39 (James Ogloff ed., 2002)).
305. Michael Anthony Lawrence, Justice-as-Fairness as Judicial Guiding Principle:
Remembering John Rawls and the Warren Court, 81 BROOK. L. REV. 673, 690
(2016) (quoting BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT—A JUDICIAL BIOGRAPHY 265 (1983)).
306. Id. at 694 (citing JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999)).
307. See Shay & Kalb, supra note 203, at 324.
308. Zigalr v. Abbasi, 137 S. Ct. 1843, 1863 (2017).
309. Erwin Chemerinsky & Larry Kramer, Defining the Role of the Federal Courts,
1990 BYU L. REV. 67, 84. Chemerinsky argues that individual federal-rights
cases are the most important cases decided by the federal courts. Id. at 91.

Electronic copy available at: https://ssrn.com/abstract=3897753

976

NEBRASKA LAW REVIEW

[Vol. 96:924

Constitution, treaties, and statutes of the United States apply to the
entire country, they should have essentially the same meaning in all
parts of the country.”310 Yet, by divesting themselves of jurisdiction to
hear Free Exercise claims brought by federal prisoners, the federal
courts are simply abdicating jurisdiction, often in order to get rid of
irritating cases.311 The result of this abdication is an inconsistent application of the Constitution depending on the identity of the
defendant.
“The ability to control, even if not unfettered, confers moral responsibility.”312 Federal courts have the power to hear and remedy constitutional claims. Because prisoners’ Free Exercise claims are of utmost
constitutional importance, the federal courts should allow federal prisoners to seek damages in the same manner and form as their state
counterparts. This would ensure equal applicability of the Constitution to all parties. When litigants choose to seek relief, “it is important, in a civilized society, that the judicial branch of the Nation’s
government stand ready to afford a remedy.”313 Federal prisoners deserve that remedy.

310. Id.
311. Shay & Kalb, supra note 203, at 324 (“The problem with th[is] type of jurisdiction-abdication . . . is that in embracing rigid, bright-line rules in order to get rid
of irritating cases, courts may find that they have tied their own hands when they
subsequently want to reassert authority.”).
312. Michael Hatfield, Legitimacy, Identity, Violence, and the Law, in ON TORTURE
145, 156 (Thomas C. Hilde ed., 2008) (focusing on the moral responsibility of lawyers, who have exclusive control over legal interpretations). This moral responsibility extends to the judiciary, which has ultimate control of how the law is
applied and is ultimately responsible for providing the necessary checks on executive action.
313. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
411 (1971) (Harlan, J., concurring).

Electronic copy available at: https://ssrn.com/abstract=3897753