Inmate assault case cannot be litigated in court

In this case, the plaintiff-inmate alleges that, while in federal custody, the guards did not protect him from another inmate, who assaulted him. Plaintiff alleges that, when he arrived at this federal facility, he told authorities that he had been assaulted at other federal correctional facilities, and that several inmates had threatened to assault him because he was a convicted sex offender. The case is dismissed on appeal because there is no such claim available to plaintiff, at least not in court.

The case is Ballard v. Dutton, a summary order issued on September 4. Had all this happened in the state prison system, there would be a claim under state law, pursuant to Section 1983, which allows you to sue state and local officials for constitutional violations. But there is no federal counterpart to Section 1983 other than the Bivens claim, created by the Supreme Court in 1971 to permit damages claims if there is no other way for the civil rights victim to obtain any redress. Permissible Bivens claims are rare, and the Supreme Court and the federal courts routinely hold that any given Bivens claim must be dismissed. 

The trial court held that plaintiff could pursue this claim. The ruling was in error, the Second Circuit (Sack, Lohier and Kahn) holds.

The Supreme Court has expressly recognized only three contexts in which a Bivens remedy is available: unreasonable search and seizure by federal officials in violation of the Fourth Amendment, Bivens, 403 U.S. 388; gender-based employment discrimination by a United States Congressman in violation of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979); and federal prison officials’ deliberate indifference to an inmate’s serious medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980).

Nor will courts recognize any Bivens claims that "present[] a new Bivens context." The Supreme Court will not permit such claims. A sobering summary of the law. In theory, someone could submit legislation to create a federal counterpart to Section 1983, but in this political climate, that bill would be moping around the Capitol like the bill in Schoolhouse Rock.

The Second Circuit reasons it this way: "While we are sympathetic to Ballard’s claim, we conclude that Congress is better equipped to create a damages remedy here. Ballard’s Eighth Amendment failure-to-protect claim is meaningfully different from the Eighth Amendment claim in Carlson and therefore 'presents a new Bivens context.'” 

What requires dismissal is that Congress had already provided a grievance process for inmates like plaintiff who can lodge their complaints with prison management. That process is found in the Prison Litigation Reform Act of 1995. "This grievance process, which did not exist at the time Carlson was decided, is the type of 'alternative remedial structure[]' that prevents us from fashioning a Bivens cause of action here." The PLRA does not provide remedies that you might obtain in federal court, but that is no basis to rule in favor of a Bivens plaintiff. Nor may the grievance process under the PLRA secure plaintiff any relief. Since it may win the plaintiff some relief in theory, that is enough to dismiss this case.