USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6109

RAYMOND TATE,

Plaintiff - Appellant,

v.

D. J. HARMON, Regional Director; M. BRECKON, Warden; ROGER MULLINS, Unit Manager; RODNEY COLLINS, Case Manager; DINK WILLIS, Counselor; B. JOHNSON, Senior Officer; J. WOODWARD, Cook Foreman; JOHN DOE, Correctional Officer; M. HAMILTON, Lieutenant; S. W. WHITE, Property Officer; S. HUTCHINS, Correctional Officer; J. ROBBINS, Correctional Officer; UNITED STATES OF AMERICA,

Defendants - Appellees.

------------------------------------------------

RODERICK & SOLANGE MACARTHUR JUSTICE CENTER; RIGHTS BEHIND BARS,

Amici Supporting Appellant.

Appeal from the United States District Court for the Western District of Virginia at Roanoke. Norman K. Moon, Senior District Judge. (7:19-cv-00609-NKM-JCH)

Argued: October 25, 2022 Decided: December 13, 2022

Before NIEMEYER, HARRIS, and HEYTENS, Circuit Judges. USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 2 of 17

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Harris and Judge Heytens joined.

ARGUED: Daniel Scott Harawa, WASHINGTON UNIVERSITY SCHOOL OF LAW, Saint Louis, Missouri, for Appellant. Krista Consiglio Frith, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees. ON BRIEF: Christopher R. Kavanaugh, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees. David Shapiro, Roderick and Solange MacArthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois; Samuel Weiss, RIGHTS BEHIND BARS, Washington, D.C., for Amici Curiae.

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NIEMEYER, Circuit Judge:

The issue before us is whether an inmate has a cause of action under the Eighth

Amendment for money damages against federal prison officials based on “degenerate”

conditions of confinement. Despite the absence of any statutory authority for such a claim,

the inmate contends that he has a cause of action under Bivens v. Six Unknown Federal

Narcotics Agents,

(1971), and its progeny. And if his claim is not authorized

by the existing Bivens cases, he requests that we extend Bivens to cover his claim, which,

he argues, would only be a “modest” extension of Bivens.

We conclude that the inmate’s claim is, under the applicable standard, different from

any Supreme Court decision finding a Bivens cause of action and that the relief he seeks in

this new context should be provided by Congress, if at all. Our conclusion is based on the

broad nature of the inmate’s claim and the separation-of-powers implications of

recognizing a Bivens cause of action in the new context of his claim. Accordingly, we

affirm the district court’s order dismissing his claim.

I

Raymond Tate, an inmate at U.S. Penitentiary Lee in western Virginia, commenced

this action pro se against officials and employees of the Federal Bureau of Prisons, seeking

money damages and other relief against the defendants, based on the manner in which he

was treated in prison and the conditions of his confinement. His highly-detailed 25-page

complaint, plus 29 exhibits, catalogs a broad range of engagements with prison officials,

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grievance proceedings, disciplinary actions, and conditions of confinement, all to support

his claims that his First, Fifth, and Eighth Amendment rights were violated.

More particularly, Tate alleged that he was sent to the prison’s Special Housing Unit

as punishment after a correctional officer filed a retaliatory incident report that falsely

claimed that Tate had made threatening and sexually aggressive comments to the officer

while also behaving uncooperatively during a headcount. He alleged that the conditions in

the Special Housing Unit to which he was sent were so degrading and detrimental that they

constituted cruel and unusual punishment, in violation of the Eighth Amendment. He

alleged that his cell was filthy and covered with mold; that the temperatures in his cell

could be extraordinarily cold; that he was given soiled and inadequate bedding; that he was

provided undersized toilet paper and a virtually unusable toothbrush; that he was not

provided adequate cleaning supplies; that prison guards made it difficult or impossible for

him to use the one hour per day that he was supposed to be allowed outside his cell; and

that prison guards intentionally endangered him by falsely telling other inmates that he had

exposed himself and made sexual overtures to male prison guards. And for authorization

of his claim for money damages, he relied on Bivens.

The defendants filed a motion to dismiss, arguing, as relevant here, that Tate’s

claims were not cognizable under Bivens.

The district court granted the defendants’ motion and dismissed Tate’s action. The

court concluded that Tate’s claims under the First, Fifth, and Eighth Amendments “ar[o]se

in a context different than the claims previously recognized by [the Supreme Court in its

Bivens cases].” The court also declined “to recognize a new remedy in any of the new

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contexts in which Tate’s claims ar[o]se, including his First Amendment and Fifth

Amendment claims, as well as any conditions-of-confinement claim under the Eighth

Amendment.” Tate filed a motion for reconsideration, which the court also denied. From

the district court’s order dated December 7, 2020, Tate filed this appeal.

Thereafter, we appointed counsel * to represent Tate on appeal and address whether

“a Bivens remedy presently exists for Eighth Amendment claims alleging unlawful

conditions of confinement.” With counsel, Tate now contends that he is entitled to bring a

Bivens action under the Eighth Amendment based on Carlson v. Green,

(1980),

and Farmer v. Brennan,

(1994), or, if his claims differ from Carlson and

Farmer, that we should extend Bivens to cover his claim.

II

Tate argues that he is entitled to a Bivens remedy to remedy wrongs for violating

his Eighth Amendment rights when “Federal prison officials exposed him to conditions

that posed a constitutionally unacceptable risk to his health and safety and took deliberate

actions that exposed him to a substantial risk of serious physical harm.” He maintains that

his conditions-of-confinement claim “fits well within the class of Bivens actions

acknowledged by the Supreme Court” in Carlson and Farmer. Alternatively, he argues

that if his claim is found to arise in a new Bivens context, we should conclude that “no

special factors counsel against recognizing what would be at most a modest extension of

* Daniel Scott Harawa, Esq., has well represented Tate on appeal, and we are grateful for his important service both to Tate and to the court. 5 USCA4 Appeal: 21-6109 Doc: 70 Filed: 12/13/2022 Pg: 6 of 17

extant Bivens actions.” Two issues are thus presented — (1) whether Tate’s conditions-of-

confinement claim falls within the context of Bivens and its progeny and, if not, (2) whether

the district court erred in refusing to extend Bivens to provide a damages remedy for his

claim.

A

Before Bivens, plaintiffs had the statutory authority under

to sue

state officials for money damages when the officials violated plaintiffs’ constitutional

rights under color of state law. But no statutory counterpart existed for plaintiffs to sue

federal officials for money damages for violating their constitutional rights.

In Bivens, the Supreme Court held for the first time that even though Congress had

not provided any statutory authority for such actions, the plaintiff had an implied cause of

action under the Fourth Amendment that entitled him to sue federal officials for money

damages arising from an unreasonable search and seizure. Even though the Fourth

Amendment provided no such remedy explicitly, the Court found that a remedy was

implied under general principals of federal jurisdiction to redress wrongs that otherwise

would have been left unredressed. Bivens, 403 U.S. at 396–97.

After Bivens, the Court found two more implied causes of action for money damages

under the Fifth and Eighth Amendments. In Davis v. Passman,

(1979), the

Court allowed a claim for money damages made by a former congressional administrative

assistant who alleged that her employer, a member of Congress, had terminated her

employment because of her sex, in violation of the equal protection component of the Fifth

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Amendment’s Due Process Clause. And in Carlson v. Green,

(1980), the

Court allowed a claim under the Eighth Amendment for money damages by an inmate’s

estate against prison officials who allegedly acted with deliberate indifference in failing to

treat the inmate’s asthma, leading to his death.

But in the 42 years following Carlson, which was decided in 1980, the Court has

“consistently rebuffed” every request — 12 of them now — to find implied causes of action

against federal officials for money damages under the Constitution. Hernandez v. Mesa,

140 S. Ct. at 735, 743 (2020); see also Egbert v. Boule,

(2022). And

in the last 5 years in particular, it has handed down a trilogy of opinions not only expressing

regret over its Bivens cases but also demonstrating hostility to any expansion of them. See

Ziglar v. Abassi,

(2017) (noting that “expanding the Bivens remedy

is now a disfavored judicial activity” (cleaned up)); Hernandez, 140 S. Ct. at 742–43

(noting that if its “three “Bivens cases had been decided today, it is doubtful that we would

have reached the same result” (cleaned up)); Egbert,

(noting, “Now long

past the heady days in which this Court assumed common-law powers to create causes of

action [as in Bivens], we have come to appreciate more fully the tension between judicially

created causes of action and the Constitution’s separation of legislative and judicial power”

(cleaned up)). And the Court’s recent admonitions are clear: “[T]he Judiciary’s authority

to [create causes of action under the Constitution] is, at best, uncertain,” Egbert,

; courts must beware of “arrogating legislative power,” Hernandez, 140 S. Ct. at

741; and “our watchword is caution,” id. at 742; Egbert,

.

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In its trilogy, the Court explained the reasons for the “notable change in [its]

approach” to Bivens actions. Ziglar,

. It stated that Bivens was decided

in an era when the Court was more generally willing to find implied causes of action,

, and that the Court has since then come “to appreciate more fully the tension

between this practice and the Constitution’s separation of legislative and judicial powers,”

Hernandez, 140 S. Ct. at 741; see also Egbert,

. It observed that because

“creating a cause of action is a legislative endeavor,” “the Judiciary’s authority to do so at

all is, at best, uncertain.” Egbert, 142 S. Ct. at 1802–03 (emphasis added). It explained:

[I]t is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.

Ziglar,

.

Nonetheless, the Court elected not to overrule its three Bivens cases, although some

members expressed the view that “the time has come to consider discarding the Bivens

doctrine altogether.” Hernandez, 140 S. Ct. at 750 (Thomas, J., concurring, joined by

Gorsuch, J.). The Court did, however, impose a highly restrictive analysis for Bivens cases

by (1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a

broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens

remedies.

To this end, the Court prescribed “a two-step inquiry.” Hernandez, 140 S. Ct. at

743. First, a court must determine whether a claim falls within the causes of action

authorized under the Supreme Court’s three Bivens cases or whether it “arises in a ‘new

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context’ or involves a ‘new category of defendants.’” Hernandez, 140 S. Ct. at 743

(quoting Corr. Servs. Corp. v. Malesko,

(2001)). The Court explained that

its “understanding of a ‘new context’ is broad,” thus requiring the scope of the existing

Bivens causes of action to be construed narrowly.

A context is new, the Court

explained, when it is “different in a meaningful way from previous Bivens cases decided

by [the] Court.” Ziglar,

.

If, following the first step, the court finds that a claim arises in a “new context” and

thus is different from the three Bivens cases, it must proceed to the “second step and ask

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

of Bivens. Hernandez, 140 S. Ct. at 743 (cleaned up). And if there is “reason to pause

before applying Bivens in a new context or to a new class of defendants,” the request to

extend Bivens should be rejected. Id. Moreover, the Court has directed that the “special

factors” inquiry must center on “separation-of-powers principles.” Id. (quoting Ziglar,

). As the Court explained:

We thus consider the risk of interfering with the authority of other branches, and we ask whether “there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy,” and “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.”

(citation omitted); see also Ziglar,

.

Against this now critical condition of Bivens jurisprudence and the caution that the

Court has mandated when applying it, courts are clearly warned to act with utmost

hesitation when faced with actions that do not fall precisely under Bivens, Davis, or

Carlson. And we have so proceeded. See, e.g., Annappareddy v. Pascale,

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(4th Cir. 2021) (rejecting a requested extension of Bivens to claims of wrongdoing by

prosecutors and criminal investigators, allegedly in violation of the Fourth and Fifth

Amendments); Earle v. Shreves,

(4th Cir. 2021) (rejecting a requested

extension of Bivens to claims of wrongful retaliation by prison officials for filing

grievances, allegedly in violation of the First Amendment); Tun-Cos v. Perrotte,

(4th Cir. 2019) (rejecting a requested extension of Bivens to claims of wrongful

searches and seizures by Immigration and Customs Enforcement agents, allegedly in

violation of the Fourth and Fifth Amendments). In short, courts’ authority now to create

new causes of action for money damages under the Constitution is most limited, for “if

there are sound reasons to think Congress might doubt the efficacy or necessity of a

damages remedy as part of the system for enforcing the law and correcting a wrong, the

courts must refrain from creating the remedy in order to respect the role of Congress in

determining the nature and extent of federal-court jurisdiction under Article III.” Ziglar,

. And even “uncertainty alone” in this regard “forecloses relief.” Egbert,

.

We now address whether Tate’s claim arises in a “new context” and, if so, whether

special factors counsel hesitation about extending the Bivens remedy to that context.

B

On the first step, Tate argues that his Eighth Amendment conditions-of-confinement

claim for money damages against prison officials is authorized by the Supreme Court’s

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decisions in Carlson v. Green,

(1980), and Farmer v. Brennan,

(1994), and that the district court erred as a matter of law in concluding otherwise.

The district court concluded that while Carlson “involved a prison official’s

deliberate indifference to an inmate’s health in failing to provide medical care, where that

failure allegedly resulted in the inmate’s death[,] . . . Tate’s claim is premised on conditions

in the [Special Housing Unit]. . . . His conditions-of-confinement claim thus arises in a

new context.” And with respect to Farmer, the district court held that the Supreme Court

did not address whether it was recognizing a Bivens claim, as the issue was neither raised

in that case nor addressed by the Court.

While it is not disputed that the standard for finding “a new context is broad,”

Hernandez, 140 S. Ct. at 743, the dispute here centers on how broad or, conversely, how

narrow a court must understand the precedential scope of the Bivens cases to be. We

conclude that the “new context” standard is sufficiently broad that Tate’s conditions-of-

confinement claim does indeed arise in a “new context.”

The Supreme Court has instructed not only that “new context” must be understood

broadly but also that a new context may arise if even one distinguishing fact has the

potential to implicate separation-of-powers considerations. See Egbert,

.

While not providing an exhaustive list of distinguishing factors, the Court has noted

examples that would support finding a new context, such as (1) “uncertainty alone” as to

whether allowing a Bivens claim would have systemwide consequences, Egbert,

; (2) a “new category of defendants,” Malesko,

; (3) a difference as

small as the “rank of the officers involved,” Ziglar,

; (4) the “statutory

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or other legal mandate under which the officer was operating,” id.; (5) a “potential effect

on foreign relations,” Hernandez, 140 S. Ct. at 744, and “national security,” id. at 746–47;

(6) Congress’s “repeatedly declin[ing] to authorize the award of damages” in the relevant

context, id. at 747; and (7) the risk that “the burden and demand of litigation” would prevent

Executive Officials “from devoting the time and effort required for the proper discharge of

their duties,” Ziglar,

.

Thus, for example, in Tun-Cos, we considered a Fourth Amendment claim for an

unreasonable search and seizure brought by several plaintiffs against U.S. Immigration and

Customs Enforcement agents, who were investigating the legality of the plaintiffs’

presence in the United States.

. Although the plaintiffs’ claim was a

straightforward Fourth Amendment claim of the sort allowed in Bivens itself, we

nonetheless concluded that the case arose in a “new context.” We reasoned that the

statutory authority under which the agents in Tun-Cos operated was different than the

statutory authority under which the agents in Bivens operated, and the public policies

regarding the enforcement of immigration laws were different as well. We thus held that

the interests and concerns specific to the immigration context were sufficient to distinguish

Tun-Cos such that it arose in a new Bivens context. See Tun-Cos, 922 F.3d at 523–24.

In this case, Tate has brought a broad-based, systemic claim against an array of

federal officials, including a Regional Director of the Bureau of Prisons, the Warden of

U.S. Penitentiary Lee, and 10 correctional officers. As the district court summarized, Tate

claimed that “the cells were unsanitary, cold, and contained uncomfortable mattresses, and

that he was denied recreation time and given inadequate amounts of toilet paper and

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toothpaste.” And he alleged many more similar deficiencies in his conditions of

confinement. But while he demanded millions of dollars in damages, he has alleged neither

serious physical injury nor any particularized damage from the conditions he challenges.

By its very nature, Tate’s claim would expand prison officials’ liability from previous

Bivens actions to systemic levels, potentially affecting not only the scope of their

responsibilities and duties but also their administrative and economic decisions. In light

of such costs, as the Egbert Court observed, “Congress is in a better position to decide

whether or not the public interest would be served by imposing a damages action” against

such officials. Egbert, 142 U.S. at 1807 (cleaned up).

While the claim authorized in Carlson was, to be sure, also an Eighth Amendment

claim, it nonetheless arose in a context different from Tate’s. The claim in Carlson was

narrow and discrete, implicating well-established criteria for liability and damages. In

Carlson, the inmate’s estate claimed that prison officials had failed to treat the inmate’s

asthma condition, allegedly leading to the inmate’s death. Specifically, the estate alleged

that prison officials kept the inmate in the prison facility “against the advice of doctors,

failed to give him competent medical attention for some eight hours after he had an

asthmatic attack, administered contra-indicated drugs which made his attack more severe,

attempted to use a respirator known to be inoperative,” and unduly delayed his transfer to

a hospital. Carlson,

n.1. Such a claim is, we conclude, materially distinct

from a systemic claim based on a collection of prison conditions that could vary from cell

to cell, from prison to prison, and from time to time, implicating a broad class of inmates

suffering ill-defined injuries with ill-defined damages. Given this meaningful difference,

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we conclude that Tate’s conditions-of-confinement claim is not authorized by Carlson but

instead arises in a “new context.”

Nor does Tate’s reliance on Farmer advance his cause. In Farmer, the Eighth

Amendment claim involved the failure of prison officials to protect an inmate from an

attack that involved a beating and rape, even though the officials knew that the prison had

a “violent environment” and that the inmate was “particularly vulnerable to sexual attack.”

. Importantly, however, while the Court allowed the action to proceed, it

never addressed whether the claim was properly a Bivens claim. Moreover, the Court has

never considered Farmer a Bivens case when cataloging all of its Bivens cases. See Egbert,

142 S. Ct. at 1799–1800, 1802; Hernandez, 140 S. Ct. at 741, 743; Ziglar, 137 S. Ct. at

1854–55, 1857.

C

Tate contends that even if his claim arises in a “new context,” there are, nonetheless,

“no special factors counseling against what would be an extremely modest extension of

Bivens” and that the district court erred in refusing to extend Bivens. He focuses

particularly on facts about the adequacy vel non of existing procedures available to address

his claim, arguing that there are no satisfactory alternative remedies to redress the wrongs

he alleged. While Tate contends that the district court erred in concluding to the contrary

— that procedures were available to him to address his claims — the difference between

Tate’s position and that of the district court is probably beside the point. The Supreme

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Court has concluded that the absence of a remedy for a wrong is ordinarily for Congress to

fix, not the courts. As it recently explained:

[T]he relevant question is not whether a Bivens action would disrupt a remedial scheme . . . or whether the court should provide for a wrong that would otherwise go unredressed. Nor does it matter that existing remedies do not provide complete relief. Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy.

Egbert,

(emphasis added) (cleaned up). Thus, while the Court did not

categorically reject the possibility that Bivens may still be extended, it nonetheless

emphasized that before authorizing any extension, a court must devote special attention to

separation-of-powers considerations.

As already noted, the Supreme Court has described a two-step process for analyzing

purported Bivens claims, prescribing factors for consideration at each step. But in Egbert,

the Court’s most recent Bivens case, the Court recognized a substantial overlap between

the factors relevant to whether a purported Bivens claim arose out of a “new context” and

the special factors that counsel hesitation for any extension, often leading to an analysis

that addresses just a single question. As the Court observed:

While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.

. Justice Gorsuch, concurring in the judgment, noted similarly that the

Court’s opinion “recognizes that our two-step inquiry really boils down to a single

question: Is there any reason to think Congress might be better equipped than a court to

weigh the costs and benefits of allowing a damages action to proceed?”

at 1809

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(Gorsuch, J., concurring in the judgment) (cleaned up). And when answering that question,

the Court stated that courts must show “utmost deference” to Congress so as not to

“arrogate legislative power.”

(majority opinion) (cleaned up). Thus, while

courts can attempt to describe the aspect of a cause of action that makes it more suitable

for Congress to create, “a court likely cannot predict the systemwide consequences of

recognizing a cause of action under Bivens. . . . [And] [t]hat uncertainty alone is a special

factor that forecloses relief.”

at 1803–04 (cleaned up).

In explaining above why Tate’s claim arises in a “new context,” we noted that his

claim seeks to impose liability on prison officials on a systemic level, implicating the day-

to-day operations of prisons, affecting the scope of the officials’ responsibilities and duties,

and implicating policy, administrative, and economic decisions. Determinations about the

temperature at which to keep cells, the level of cleanliness at which prison employees or

inmates themselves are to maintain cells, the adequacy of toilet paper and toothbrushes,

and the length and thickness of mattresses are usually the subject of systemwide executive

regulations. Moreover, providing a damages remedy for such inadequacies would involve

not only decisions of acceptable human needs but also judgments regarding prison staffing

levels, economic considerations, and the most efficient procedures for addressing the

inadequacies. As the Egbert Court noted:

The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed.

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Egbert,

(cleaned up). We conclude that in this context, the political

branches are indeed “better equipped to decide whether existing remedies should be

augmented by the creation of a new judicial remedy.”

(cleaned up). This is

especially so because we are ill-suited to “predict the systemwide consequences of

recognizing a cause of action under Bivens,” and even our “uncertainty” on that question

“forecloses relief.”

(cleaned up).

In short, the “special factors” counseling hesitation here in providing a new cause

of action are similar in kind to the factors distinguishing Tate’s claim from the claim in

Carlson. Heeding the Supreme Court’s warning that courts should not be in the business

of creating causes of action and that they must give the legislative branch “utmost

deference” in considering whether to do so, our uncertainty is itself sufficient to resolve

Tate’s claims. The judgment of the district court is accordingly

AFFIRMED.

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