Second Circuit rejects Bivens case against Metropolitan Detention Center

These federal inmates sued the government over the conditions of their confinement. The claims fail under a limited Supreme Court doctrine created in 1971 to allow plaintiffs to sue federal officials under the Constitution.

The case is Crespo v. Carvajal, a summary order issued on February 27. In 1971, the Supreme Court said in the Bivens case that you can sue federal defendants for constitutional violations if our legal system provides no other remedy for the violation. You will lose a Bivens claim even if the other, available remedies are limited and do not provide the same relief as a full-blown constitutional claim. Bear in mind that, when we sue state and local officials under 42 U.S.C. 1983, that statute does not guide claims against federal defendants. There is no Section 1983 counterpart in the federal system, and the way things are going in our world, there probably never will be.

For this reason, most Bivens claims fail. There is usually some administrative or other remedy available to the victim of a violation at the hands of a federal official or employee. One way to win a Bivens claims is alleging employment discrimination. Certain actions against federal police officers are also available under Bivens. But the state of Bivens litigation over the last 40 years has been predictable. Lawyers are always trying to convince the courts that their particular case creates the proper exception to the general prohibition against Bivens claims, and the courts usually reject that argument. That is what happened here.

Plaintiffs, inmates that the Metropolitan Detention Center in Brooklyn, allege that inmates denied adequate air, sunlight, and food in violation of the Eighth Amendment, which requires that even convicted criminals must be afforded some dignity, even if the jails do not have to rise to the level of a Holiday Inn. The Court of Appeals (Cabranes, Lohier and Sullivan) holds that plaintiffs lose because relief is available outside the Eighth Amendment: they can file a grievance with the Bureau of Prisons, which has authority to deal with the problem.

I am sure there are law review articles that prove that the grievance process at most prisons and jails do not provide inmates with the relief they need. But that will not sway the courts into abandoning the Bivens analysis. The Supreme Court has been hinting over the years that it may dispense with the Bivens doctrine overall and require Congress to deal with its absence through legislation. My guess is that Bivens will no longer be with us within the decade, as the Court may already have the votes to overrule Bivens. If that happens, it will be up to Congress. Without a clear political movement to help plaintiffs sue federal officials (not just in the jail context, mind you), that may spell the end of certain constitutional litigation against federal officials.