23-6416-pr Ballard v. Dutton

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of September, two thousand twenty-four.

PRESENT: ROBERT D. SACK, RAYMOND J. LOHIER, JR., MARIA ARAÚJO KAHN, Circuit Judges. ------------------------------------------------------------------ ANTONIO T. BALLARD,

Plaintiff-Appellee,

v. No. 23-6416-pr

L DUTTON, LIEUTENANT,

Defendant-Appellant. ------------------------------------------------------------------ FOR DEFENDANT-APPELLANT: CASEN B. ROSS, Civil Division, Appellate Staff, United States Department of Justice, Washington, DC (Brian M. Boynton, Barbara L. Herwig, Laura E. Myron, Department of Justice; Carla B. Freedman, United States Attorney for the Northern District of New York, on the brief)

FOR PLAINTIFF-APPELLEE: GREGORY CUI (Devi M. Rao, on the brief), Roderick & Solange MacArthur Justice Center, Washington, DC

Appeal from an order of the United States District Court for the Northern

District of New York (Lawrence E. Kahn, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the District Court is REVERSED and the case is

REMANDED with instructions to dismiss the complaint.

Defendant Lucas Dutton appeals from an order of the United States

District Court for the Northern District of New York (Kahn, J.) denying his

motion to dismiss Antonio Ballard’s Eighth Amendment failure-to-protect claim

brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics,

(1971). On interlocutory appeal, Dutton argues that the

2 District Court erred in holding that Bivens provides a cause of action for Ballard’s

claim and in denying Dutton qualified immunity. We assume the parties’

familiarity with the underlying facts and the record of prior proceedings, to

which we refer only as necessary to explain our decision to reverse.

Proceeding pro se, Ballard sued Dutton, a lieutenant at the Federal

Correctional Institution, Ray Brook (“FCI Ray Brook”), for failing to protect him

from an assault by another inmate. Shortly after Ballard arrived at FCI Ray

Brook, and after alerting authorities that he had been assaulted at previous

correctional facilities, several inmates threatened to assault him because he was a

convicted sex offender. A few weeks later, on August 29, 2021, Ballard met with

Dutton to request protective custody because of these threats. Dutton denied his

request. Later that day, after returning to the general population housing unit,

Ballard was assaulted by one of the inmates who had threatened him.

The District Court concluded that Ballard could seek a Bivens remedy for

his failure-to-protect claim and that Dutton was not entitled to qualified

immunity at this stage of litigation. On de novo review, see Benzman v. Whitman,

(2d Cir. 2008), we conclude that Ballard has no Bivens remedy

3 under the circumstances of this case and that the District Court therefore erred in

denying Dutton’s motion to dismiss. 1

Bivens provides a cause of action for damages against federal officials for a

limited set of constitutional torts. See Egbert v. Boule,

, 490–91 (2022).

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,

; gender-based

employment discrimination by a United States Congressman in violation of the

Fifth Amendment, Davis v. Passman,

(1979); and federal prison

officials’ deliberate indifference to an inmate’s serious medical needs in violation

of the Eighth Amendment, Carlson v. Green,

(1980). See Ziglar v.

Abbasi,

, 130–31 (2017). Since Carlson, however, the Supreme Court

has repeatedly declined to extend Bivens, warning that “recognizing a cause of

action under Bivens is ‘a disfavored judicial activity.’” Egbert,

(quoting Abbasi,

).

1We have appellate jurisdiction to review Dutton’s Bivens argument on interlocutory appeal under Wilkie v. Robbins,

, 549 n.4 (2007). Because we resolve this case on Bivens grounds, we need not address Dutton’s argument that he is entitled to qualified immunity. 4 Before recognizing a Bivens cause of action here, we first ask whether

Ballard’s claim “is different in a meaningful way from previous Bivens cases” and

therefore “presents a new Bivens context.” Abbasi,

. A case may be

meaningfully different if it involves, among other things, “the presence of

potential special factors that previous Bivens cases did not consider.”

at 139–

40. If the case presents a new Bivens context, we then determine “whether there

are any special factors that counsel hesitation about granting the extension.”

Hernández v. Mesa,

(2020) (cleaned up). This includes whether

Congress has provided an “alternative remedial structure” for the alleged wrong.

Abbasi,

. Ultimately, this analysis “resolve[s] to a single question:

whether there is any reason to think that Congress might be better equipped to

create a damages remedy.” Egbert,

.

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.” Abbasi,

; see also Hernández,

(“A claim may arise in a new context

even if it is based on the same constitutional provision as a claim in a case in

5 which a damages remedy was previously recognized.”). Special factors not

present in prior Bivens cases distinguish Ballard’s claim and “counsel hesitation

about” extending Bivens to it. Hernández,

(cleaned up). Most

importantly, the Executive branch, through the Bureau of Prisons, provides an

administrative grievance process for inmates to lodge complaints about their

confinement. See Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-

134,

(1996); see also

. 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. See Egbert,

(“If there are alternative remedial structures in

place, that alone . . . is reason enough to limit the power of the Judiciary to infer a

new Bivens cause of action.” (quotation marks omitted)). We are therefore

compelled to conclude that Ballard has no Bivens cause of action.

Urging a contrary conclusion, Ballard insists that the Supreme Court in

Farmer v. Brennan,

(1994), recognized a Bivens cause of action for

Eighth Amendment failure-to-protect claims, and accordingly, that his claim

does not present a new context. In Farmer, the Supreme Court noted that the

plaintiff had brought a Bivens claim.

. Without discussing whether

6 Bivens supplied a cause of action, however, the Court proceeded to analyze the

merits of the claim. See

. The Supreme Court could reach the merits of

the claim, Ballard argues, only if it concluded that the plaintiff had a Bivens cause

of action.

On its face, this argument contradicts the Supreme Court’s repeated

observation that the only three cases in which it has recognized a Bivens remedy

are Bivens itself, Davis, and Carlson. See, e.g., Abbasi,

; Hernández,

; Egbert, 596 U.S. at 490–91. Ballard suggests, however, that there is

no real contradiction. In Ballard’s view, Farmer may have been excluded from

that list because the Supreme Court did not view it as distinct from the claim in

Carlson. But we need not, and therefore do not, decide whether Farmer assumed,

recognized, or otherwise presented a variation of an already recognized Bivens

claim. As noted, the existence of the PLRA’s grievance process, an alternative

remedial structure established after Farmer was decided, is a “special factor[] that

previous Bivens cases” — including, arguendo, Farmer — “did not consider” and

constitutes the type of meaningful difference that, in any event, counsels against

7 extending Bivens to the case at hand. Abbasi,

.

For the foregoing reasons, the order of the District Court is REVERSED

and the case is REMANDED with instructions to dismiss the complaint.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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