Federal Prison Guards Allegedly Beat an Inmate to a Pulp. The Supreme Court Says He Can't Sue.

The Supreme Court quietly reversed a lower court decision this week in a ruling that largely flew under the radar. But the short order tells an interesting story about how the same body that created a cause of action for victims of federal abuse has since undermined that very right.

The case concerns a man named Andrew Fields, who alleges that guards at U.S. Penitentiary Lee repeatedly assaulted him after restraining him and placing him in solitary confinement, including ramming his head into the concrete wall and attacking him with a security shield. (He also says that officers seized his legal documents and prescription glasses, neither of which have been returned to him.)

Fields filed a civil suit against the Bureau of Prisons (BOP), the warden, supervisory prison officials, and the guards, based on his allegation that the excessive force violated his Eighth Amendment right to be free from cruel and unusual punishment.

Those who sue federal employees for misconduct must rely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the landmark 1971 Supreme Court ruling that permitted a man to sue the federal agents who performed a warrantless search of his home and then strip-searched him at a courthouse. It was a good decision—but Fields will not benefit from it. It’s worth exploring why. 

In recent years, the Court has issued subsequent decisions that have essentially allowed Bivens to stand in name only. In 2017, for example, the justices ruled in Ziglar v. Abbasi that courts evaluating Bivens claims must subject them to a two-pronged test. First, does the claim present a “new context,” aka, is it “different in a meaningful way from previous Bivens cases decided by” the Supreme Court? If so, are there any “special factors counselling hesitation”? If yes, then the lawsuit is dead on arrival. (You can imagine how such a vague standard would be nearly impossible for a plaintiff to overcome.) 

In 2022, the Court watered Bivens down further. That year, the justices heard Egbert v. Boule, a case that concerned a bed and breakfast owner, Robert Boule, who alleges he was assaulted by a Border Patrol agent, Erik Egbert, thus violating his Fourth Amendment rights. (Boule also alleged a violation of his First Amendment rights, because after he complained to Egbert’s supervisor about his behavior, Egbert allegedly sicced the IRS on him for an audit.)

In a 6–3 ruling released in June 2022, the Court said Boule could not sue under Bivens—even though the 1971 precedent involved an alleged violation of the Fourth Amendment. “Boule’s Fourth Amendment claim does not arise in a new context,” wrote Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, in dissent. “Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boule’s complaint.”

That very same month, the Court declined to hear two cases also alleging egregious violations of the Fourth Amendment: one brought by a woman who spent two years behind bars on bogus charges fabricated by a crooked cop, and another brought by a man whom an off-duty federal agent allegedly attempted to kill over a personal beef. Neither were permitted to sue, and the Court let those decisions stand. 

So Fields, for his part, always had an uphill battle. Yet last year he managed to succeed at the U.S. Court of Appeals for the 4th Circuit—which dismissed his claims against the BOP, the warden, and the supervisory prison officials but let stand the ones against the guards who allegedly beat him to a pulp. “While incarcerated at U.S. Penitentiary (USP) Lee, Andrew Fields was the target of egregious physical abuse,” wrote Judge Roger Gregory for the majority. “There is little doubt that Fields would have a viable § 1983 claim against prison officials if he had been incarcerated at a state prison.”

Core to the justification for narrowing Bivens, Gregory noted, is the idea that people in Fields’ position have “alternative remedies” other than federal civil-rights lawsuits. For federal prisoners, that is primarily the administrative grievance procedure. “That reasoning does not apply here,” Gregory said. Why? “Because prison officials deliberately thwarted his access” to an alternative remedy—by allegedly refusing to give Fields the forms to do so when he asked for them.

Fields’ brought his complaint under the Eighth Amendment. So it’s worth noting that the Supreme Court has, in fact, recognized that an Eighth Amendment claim can proceed under Bivens. In Carlson v. Green (1980), the justices allowed a lawsuit to move forward after an estate alleged that a federal prisoner died because prison officials failed to give him proper medical care, thus violated the Eighth Amendment. But Fields’ Eighth Amendment claim is for excessive force, departing enough from those facts to potentially doom his claim.

Which is ultimately what happened. “Extending Bivens to allow an Eighth Amendment claim for excessive force could have negative systemic consequences for prison officials,” the Court wrote in a per curiam opinion with no dissents. It also mentioned the “alternative remedy structure,” although the justices did not address that guards allegedly deprived Fields of his ability to access it.  

Congress could, in theory, do something. A trio of Democrats last year reintroduced the Bivens Act, which would insert federal officials acting under color of law into the Civil Rights Act of 1871. That bill predictably went to live in Congress’ legislative graveyard. Based on the Supreme Court’s jurisprudence on this issue, until lawmakers act, federal officials will continue to exist in what Judge Don Willett—a Trump appointee to the U.S. Court of Appeals for the 5th Circuit—once called a “Constitution-free zone.”

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