Bivens claim survives appellate review

The greatest loophole in constitutional law is that there is no statute that allows you to sue federal officials for a constitutional violation. If you want to sue state and local officials, you can invoke 42 U.S.C. 1983, but there is no Section 1983 claim against federal officials, and the Supreme Court has recognized such claims against federal defendants on three occasions and has repeatedly said it will not recognize new claims. But this plaintiff does have a claim against federal prison defendants because her case is close enough to one of the cases recognized by the Supreme Court as legitimate.

The case is Cicchiello v. Warden, Danbury Correctional Facility, a summary order issued on August 11. Plaintiff is an inmate a federal correctional institution. In her Eighth Amendment claim, she asserts that, as a 73 year-old inmate with a known heart condition, the 100 degree heat inside the jail poses a risk to her health. The case was dismissed because it does not fall within the three kinds of cases that the Supreme Court recognizes as legitimate against federal defendants.

In 1971, the Supreme Court ruled in the Bivens case that, even without a federal counterpart to Section 1983, the Constitutional implies a constitutional claim for civil rights victims suing federal defendants if there are no other remedies available to the plaintiff, such as an in-house administrative remedy, even if the administrative remedy will not get you the damages that a federal lawsuit would, and even if the administrative remedy does not allow for discovery and other procedural protections afforded to federal litigants. One of these days -- and I have been predicting this for years -- the Supreme Court is going to do away with Bivens claims altogether and leave it to Congress to enact a Section 1983 statute for claims against federal defendants. But until that happens, some Bivens claims will survive dismissal. This is one of them.

The Second Circuit (Menashi, Merriam and Cronan [D.J.]) says that plaintiff's case resembles Carlson v. Green, 446 U.S. 14 (1980, where the federal inmate asserted a constitutional claim that the jail was deliberately indifferent to serious medical needs. If plaintiff is able to amend her lawsuit on remand to assert that the jail knew she had a serious medical condition, then this lawsuit will be among the rare Bivens cases that will survive dismissal.  

To give you a sense how hard it is to bring a Bivens claim these days, plaintiff also claims that defendants subjected her to an unlawful strip search. There is no such claim in the Supreme Court arsenal that resembles this one. While one of the three positive Bivens claims in the Supreme Court said a plaintiff could sue federal defendants for a home search in violation of the Fourth Amendment, that case is not this one, as this one took place inside a federal prison, and everyone knows that jail cases are different than all other civil rights cases because courts defer to the expertise of prison officials. The strip search claim is dismissed for good.