USCA4 Appeal: 20-7540 Doc: 58 Filed: 06/06/2023 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7540

JOSEPH RANDOLPH MAYS,

Plaintiff – Appellant,

v.

T. B. SMITH, Warden, FCI Butner 1; S. MA’AT, Assoc. Warden, FCI Butner 1; JAMIE HOSKINS, Unicor Factory Manager; V. WILLIS, Unit Manager; J. HALFAST, Case Manager; R. MARTIN, Counselor; LT. CHRISTOPHER; K. HENDRY; OFFICER V. WILKINS; OFFICER GLASS; OFFICER SLAYDON; OFFICER LASSITAR; J. CARAWAY, Regional Director; JOHN/JANE DOES,

Defendants – Appellees,

and

UNITED STATES OF AMERICA,

Party-in-Interest.

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

RIGHTS BEHIND BARS; RODERICK & SOLANGE MACARTHUR JUSTICE CENTER,

Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:18-ct-03186-FL)

Argued: May 3, 2023 Decided: June 6, 2023 USCA4 Appeal: 20-7540 Doc: 58 Filed: 06/06/2023 Pg: 2 of 16

Before WYNN and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Richardson and Senior Judge Traxler joined.

ARGUED: Devin L. Redding, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW, Morgantown, West Virginia, for Appellant. Marie Cepeda Mekosh, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellee. ON BRIEF: Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Michael F. Easley, Jr., United States Attorney, Sharon C. Wilson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. Samuel Weiss, RIGHTS BEHIND BARS, Washington, D.C.; Easha Anand, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, San Francisco, California, for Amici Curiae.

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WYNN, Circuit Judge:

Joseph Mays, a federal inmate, brings claims under the Fifth Amendment for money

damages against federal prison officials for alleged violations of procedural due process

and equal protection. Mays contends his claims are authorized by Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics,

(1971), and its progeny. But

“the Supreme Court [has] all but closed the door on Bivens remedies” that do not fit within

the precise confines of its prior Bivens cases. Dyer v. Smith,

(4th Cir.

2022). Such is the case here. Accordingly, we affirm the district court’s dismissal of the

case.

I.

On review, we must accept as true the facts as alleged in the complaint. Langford v.

Joyner,

, 123 (4th Cir. 2023).

In June 2016, Mays was housed at FCI Butner in North Carolina, where he was

employed as a lead mechanic in the optics factory through the Bureau of Prisons’ (“BOP”)

UNICOR employment program. On June 20, Mays submitted a grievance directly to the

BOP’s regional director complaining that his UNICOR manager, Defendant Jamie

Hoskins, engaged in racial discrimination and gave preferential treatment to other inmates

who worked in the optics factory. Five days later, Mays submitted a second grievance to

the regional director complaining that two prison officials retaliated against him by falsely

claiming he was malingering and using abusive language at his job. The regional director

instructed Mays to resubmit both complaints directly to his institution, which he did. On

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July 29, several Defendants met with Mays and attempted to informally resolve his

complaints.

On August 10, Defendant S. Ma’at, the associate warden at FCI Butner, confronted

Mays and accused him of “giving his secretary . . . a hard time,” which Mays denied. J.A.

29. 1

On August 11, Hoskins and Ma’at met with Mays in the Butner dining hall to

address Mays’s concerns about his UNICOR job. During this meeting, Hoskins falsely

accused Mays of trying to disrupt the optics factory, and Ma’at threatened to fire Mays

from UNICOR. Later that day, Mays was in fact fired from his job. According to the

termination notice, Mays was fired for “making threatening comments” and threatening to

cause a work stoppage. J.A. 84. That same day, Mays was also placed in administrative

detention. The detention order did not specify a reason for that placement, but Defendant

Officer Glass told Mays “off the record” that it was because “someone ‘got in their

feelings’ because you filed a grievance” and that Ma’at and Hoskins did not want Mays to

remain at FCI Butner. J.A. 33.

Mays remained in detention from August 11 through October 21, despite officials

at FCI Butner opting, after an investigation, not to charge him with any disciplinary

offense. Ultimately, on October 21, Mays was transferred from FCI Butner to another BOP

institution. The transfer form stated that Mays had “maintained poor institutional

adjustment” to Butner, including allegations that he had threatened staff and threatened a

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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work stoppage at UNICOR—all of which Mays disputed. J.A. 74. Mays filed two more

grievances—in September 2016 and June 2017—complaining that he was denied due

process via his detention, firing from UNICOR, and transfer.

Mays, proceeding pro se, filed a federal complaint in July 2018. The district court

conducted a frivolity review and dismissed several claims. See

(e)(2)(B)

(district court shall dismiss any action filed by an inmate that is “frivolous” or fails to state

a claim). The court permitted Mays to file an amended complaint asserting three Bivens-

based claims for 1) First Amendment retaliation; 2) Fifth Amendment due process, alleging

Defendants placed him in administrative detention, terminated him from his UNICOR

position, and transferred him to another institution without providing notice or an

opportunity to rebut the allegations; and 3) Fifth Amendment equal protection, alleging

racial discrimination. Defendants moved to dismiss, and the district court granted their

motion after finding that Mays failed to state cognizable Bivens claims. 2 Mays timely

appealed, and we appointed counsel to represent him on appeal. 3

2 The district court also analyzed whether Mays exhausted his administrative remedies with the BOP as required before filing his complaint, see 42 U.S.C. § 1997e(a) (stating exhaustion requirement), ultimately holding that there was at least a genuine dispute on the issue, before disposing of Mays’s case on the merits. Defendants do not address the issue on appeal. Because administrative exhaustion in this context is not a jurisdictional requirement, we can proceed directly to the merits of Mays’s Bivens claims. Custis v. Davis,

(4th Cir. 2017); Anderson v. XYZ Corr. Health Servs., Inc.,

, 677–78 (4th Cir. 2005). 3 Counsel—Lawrence Rosenberg and students from the West Virginia University College of Law U.S. Supreme Court Litigation Clinic—have ably represented Mays on appeal, and we are grateful for their important service to Mays and this Court.

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II.

Counsel for Mays has elected not to pursue the First Amendment-based Bivens

claim. This was the correct decision, as both the Supreme Court and this Court have held

in the interim between when Mays originally appealed pro se and when he was appointed

counsel “that there is no Bivens action for First Amendment retaliation.” Egbert v. Boule,

(2022); see Earle v. Shreves,

(4th Cir.) (declining

to extend Bivens to include a “federal inmate’s claim that prison officials violated his First

Amendment rights by retaliating against him for filing grievances”), cert. denied,

(2021). Accordingly, the only remaining Bivens claims before us are for the denial

of procedural due process and equal protection, both brought under the Fifth Amendment.

We review de novo the district court’s dismissal of these claims. Annappareddy v. Pascale,

(4th Cir. 2021).

III.

A.

The Bivens story is by now a familiar one. Although § 1983 gives plaintiffs the

statutory authority to sue state officials for money damages for constitutional violations,

see

, there is no statutory counterpart to sue federal officials.

In Bivens, the Supreme Court held for the first time that there existed an implied

cause of action under the Fourth Amendment to sue federal officials for money damages

arising from an unreasonable search and seizure. Bivens,

. In the ensuing

decade, the Supreme Court found two more such implied causes of action for money

damages for constitutional violations by federal officials—one for gender discrimination

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in violation of the equal protection component of the Fifth Amendment’s due process

clause, Davis v. Passman,

(1979), and a second for deliberate

indifference to an inmate’s serious medical needs in violation of the Eighth Amendment,

Carlson v. Green,

(1980).

In the more than four decades since, however, “the [Supreme] 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.” Tate v. Harmon,

(4th Cir. 2022) (quoting Hernandez v. Mesa,

(2020)).

And in the past six years in particular, the Supreme Court has “handed down a trilogy of

opinions not only expressing regret over its Bivens cases but also demonstrating hostility

to any expansion of them.”

While not opting to overrule its three Bivens cases, the Court

has noted that the outcomes “might have been different if [those cases] were decided

today.” Ziglar v. Abbasi,

(2017). The Court has made clear that

expanding the Bivens remedy to a new context is an “extraordinary act,” Egbert,

n.3 (citation omitted), that will be unavailable “in most every case,”

.

And it has imposed a “highly restrictive” analysis for future Bivens cases. Tate,

.

To that end, a court must engage in a “two-step inquiry” when analyzing would-be

Bivens claims. Hernandez,

. First, the court must determine whether a

claim falls within the causes of action already authorized under the Supreme Court’s three

prior Bivens cases or whether it “arises in a new context or involves a new category of

defendants.” Tate,

(internal quotation marks omitted) (quoting Hernandez,

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). The Court’s understanding of a “new context” is “broad,” which means

that the scope of the existing Bivens actions must be narrowly construed.

Second, if a claim does arise in a new context, the court must ask “whether there are

any special factors that counsel hesitation about granting the extension” of the Bivens

remedy.

The “special factors” inquiry must focus on “separation-of-powers principles”

and “requires courts to ask whether judicial intrusion into a given field is appropriate.”

Bulger v. Hurwitz,

(4th Cir. 2023) (quoting Hernandez,

). If “there is any reason to think that Congress might be better equipped to create a

damages remedy,” then the court must decline to extend Bivens to a new context. Egbert,

(emphasis added).

Given this legal backdrop, “courts are clearly warned to act with utmost hesitation

when faced with actions that do not fall precisely under” the three existing Bivens cases.

Tate,

. And this Court has “repeatedly heeded” that warning, expressly

declining to extend Bivens on numerous occasions over just the last few years. Bulger, 62

F.4th at 137–38 (collecting cases).

With this background in mind, we turn to Mays’s two remaining Bivens claims. We

conclude that under the Supreme Court’s current framework, neither presents a cognizable

claim.

B.

First, Mays’s two remaining claims arise in a new context. This is a low bar because

even “quite minor” differences between a proposed claim and the claims in the three

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existing Bivens cases can amount to a new context. Tun-Cos v. Perrotte,

(4th Cir. 2019).

The only Fifth Amendment-based Bivens claim that the Supreme Court has

recognized was the one in Davis, which “concerned alleged sex discrimination on Capitol

Hill.” Hernandez,

; see Davis,

. Here, Mays seeks to bring

two different Fifth Amendment claims, for procedural due process and for discrimination

based on race. The Supreme Court has never authorized a Bivens claim for procedural due

process or race-based discrimination. See Annappareddy,

(“Bivens has

never been extended to a Fifth Amendment due process claim.” (internal quotation marks

omitted)); Doe v. Meron,

(4th Cir. 2019) (holding that multiple Fifth

Amendment-based claims—“including violations of [the] right to parentage, to familial

relations and to equal protection of the laws”—present new Bivens contexts); see also

Cantu v. Moody,

(5th Cir. 2019) (“No one thinks Davis . . . means the

entirety of the Fifth Amendment’s Due Process Clause is fair game in a Bivens action.”).

Further, Mays’s claims are brought against a “new category of defendants”—prison

officials, as opposed to a former Congressman in Davis—operating in a different legal and

factual context (prisoner litigation). Tate,

. Expanding Bivens to these types

of claims would likely have “systemwide consequences” for the BOP in the form of

increased litigation, and Congress has so far declined to create a damages remedy for these

types of actions against federal prison officials. See

(identifying these factors as relevant

to the new-context inquiry).

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We do not find Mays’s reliance on Bistrian v. Levi,

(3d Cir. 2018), to

be compelling. In that case, the Third Circuit recognized an inmate’s Fifth Amendment-

based Bivens claim against federal prison officials for their alleged failure to protect him

from inmate violence.

at 90–94. In doing so, the Bistrian court put near-dispositive

weight on the Supreme Court’s decision in Farmer v. Brennan,

(1994), which

involved a Bivens action under the Eighth Amendment against prison officials for their

failure to protect an inmate from a violent assault.

at 830–31.

But “while the [Supreme] Court allowed the action to proceed, it never addressed

whether the claim was properly a Bivens claim.” Tate,

. Also, since Bistrian

was decided, the Supreme Court “has made clear that the universe of recognized Bivens

claims consists of only three cases”—which do not include Farmer—and “lower courts

should not interpret these cases to apply outside the precise contexts at issue.” Bulger,

. As we recently stated, and reiterate here, Bistrian may very well have come

out differently if the Third Circuit had the benefit of the Supreme Court’s more recent

Bivens guidance in Hernandez and Egbert. See

In any event, Bistrian does not aid Mays

here given the multiple differences between his claims and the claims recognized in the

three existing Bivens cases. And even if Farmer was an appropriate Bivens action, it still

would not help Mays given the significant differences between that case—which involved

an Eighth Amendment failure-to-protect claim—and his claims here.

Mays also argues that his claims do not present a new context because both “arise

under the Fifth Amendment” just like the claim approved of in Davis. Opening Br. at 43.

But citation to the constitutional provision alone is insufficiently granular for the new-

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context inquiry. See Hernandez,

(“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 which a

damages remedy was previously recognized.”); Cantu,

(“Courts do not

define a Bivens cause of action at the level of ‘the Fourth Amendment’ or even at the level

of ‘the unreasonable-searches-and-seizures clause.’” (citation omitted)). We know this to

be so, because even where a case involves “similar allegations” or “almost parallel

circumstances,” such “superficial” similarities “are not enough to support the judicial

creation of a cause of action.” Egbert,

(citation omitted). After all, “even

a modest extension [of Bivens] is still an extension.” Ziglar,

.

The Supreme Court’s own treatment of its prior Bivens cases is telling. For example,

Bivens permitted a damages claim under the Fourth Amendment against a federal narcotics

officer for excessive force while Egbert rejected a virtually identical claim against a Border

Patrol agent. Compare Bivens,

(complaint alleged officer used

“unreasonable force” in making an arrest in violation of the Fourth Amendment), with

Egbert,

(complaint alleged a “Fourth Amendment violation for excessive

use of force”); see also Egbert,

(Gorsuch, J., concurring) (“The plaintiff

[in Egbert] is an American citizen who argues that a federal law enforcement officer

violated the Fourth Amendment . . . . Candidly, I struggle to see how this set of facts differs

meaningfully from those in Bivens itself.”).

Similarly, while Carlson permitted a damages claim under the Eighth Amendment

for a federal prison official’s failure to provide medical care, the Court later rejected a

nearly identical suit against a private prison operator. Compare Carlson,

&

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n.1 (complaint alleged violation of Eighth Amendment for failure to provide adequate

medical care), with Corr. Servs. Corp. v. Malesko,

, 63–65, 73 (2001) (same).

Although the circumstances of the two cases were “almost parallel”—involving the same

Eighth Amendment right and the same failure to provide adequate medical treatment—the

Supreme Court nevertheless determined the “contexts” to be different. Ziglar,

.

Mays’s claims may “mirror” those in Davis. Opening Br. at 38. But reflection is not

enough: “a new context may arise if even one distinguishing fact has the potential to

implicate separation-of-powers considerations.” Tate,

(citing Egbert,

). For the reasons given, we conclude that Mays’s procedural due process and

race-based equal protection claims have distinguishing factors from the Supreme Court’s

three Bivens cases such that each arises in a “new context.”

C.

Special factors also counsel against extending the Bivens remedy to cover Mays’s

claims. The Supreme Court has distilled this inquiry down to a single question: whether

“there is even a single reason to pause before applying Bivens in a new context.” Egbert,

(emphasis added) (citation and internal quotation marks omitted).

Central to this inquiry are “separation-of-powers principles,” which require us to ask

whether the courts are better suited than Congress to “weigh the costs and benefits of

allowing a damages action to proceed.” Hernandez,

(citation omitted).

The answer is almost always no.

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So, too, here. We recently dealt with a highly analogous situation in Bulger v.

Hurwitz. In that case, we declined to extend Bivens to cover a federal inmate’s Eighth

Amendment failure-to-protect claim. Bulger,

. As to the special-factors

prong, we concluded that “multiple special factors counsel against creating a new Bivens

remedy.”

Consideration of the same factors compels the same result in this case.

First, Mays’s claims would “require scrutiny of new categories of conduct and a

new category of defendants—namely, BOP employees involved in transferring inmates

and managing the agency’s housing system” and BOP employees involved in inmate

discipline and employment, such as through the UNICOR program.

Second, and related, Mays’s claims “intersect with the statutory scheme delegating

authority over prison designation, transfer, and housing decisions to the BOP,” as well as

those governing prison discipline and inmate employment. Id.; see

(b).

Indeed, we recently rejected a similar complaint from an inmate placed in administrative

detention as “rais[ing] serious questions relating to the reasoning, manner, and extent of

prison discipline,” noting that allowing a Bivens action for such claims “could lead to an

intolerable level of judicial intrusion into an issue best left to correctional experts.” Earle,

990 F.3d at 780–81 (citation and internal quotation marks omitted).

Third, inmates such as Mays have an “alternative remedial structure” that allows

them to seek equitable relief for issues related to confinement, discipline, and the like.

Bulger,

(quoting Ziglar,

). Specifically, the BOP’s

Administrative Remedy Program allows all inmates to seek formal review of an issue

related to “any aspect” of their confinement.

(quoting

(a)). As the

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Supreme Court has noted, the Administrative Remedy Program provides a “means through

which allegedly unconstitutional actions and policies can be brought to the attention of the

BOP and prevented from recurring.” Malesko,

.

To be sure, the Administrative Remedy Program does not provide a damages

remedy as a Bivens claim would, but “the relevant question ‘is not what remedy the court

should provide for a wrong that would otherwise go unredressed’ but instead ‘whether an

elaborate remedial system should be augmented by the creation of a new judicial remedy.’”

Tun-Cos,

(alterations omitted) (quoting Bush v. Lucas,

(1983)). And as we have observed, “[t]he potential unavailability of a remedy in a particular

circumstance does not warrant supplementing that scheme.” Bulger,

. This

also disposes of Mays’s argument that his allegations involve only individual instances of

constitutional deprivations that are best remedied by damages actions. That may be, but the

Supreme Court has made abundantly clear that it is for Congress to decide whether to

“augment[]” any existing remedial scheme with a damages remedy. Tun-Cos,

. It has not done so.

Fourth, Congress has frequently legislated in the area of prisoner litigation, most

notably with the Prison Litigation Reform Act, but has so far declined to create an

individual-capacity damages remedy for federal inmates. See

The Prison Litigation

Reform Act—which was enacted after the Supreme Court’s three Bivens decisions—

“made comprehensive changes to the way prisoner abuse claims must be brought in federal

court.” Ziglar,

. Importantly, the Act “does not provide for a standalone

damages remedy against federal jailers,”

, a silence that “speaks volumes and

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counsels strongly against judicial usurpation of the legislative function” to create one,

Bulger,

(quoting Tun-Cos,

).

Fifth, and finally, if we were to authorize this new category of prison litigation,

claims like Mays’s would almost certainly “impose liability on prison officials on a

systemic level” and amount to a “substantial burden” on government officials.

Mays

couches his suit as an attempt to redress only “individual instances of discrimination and

law enforcement overreach.” Opening Br. at 22. But this is the wrong level of specificity.

The operative question is “whether a court is competent to authorize a damages action not

just against” the individual officers in the case at hand, but against all similarly situated

officials “generally.” Egbert,

.

“The answer, plainly, is no.”

The BOP currently employs more than 34,000

employees overseeing nearly 160,000 inmates across almost 130 institutions. Fed. Bureau

of Prisons, About Our Agency, https://www.bop.gov/about/agency/ (last visited June 2,

2023) (saved as ECF opinion attachment); Fed. Bureau of Prisons, About Our Facilities,

https://www.bop.gov/about/facilities/federal_prisons.jsp (last visited June 2, 2023) (saved

as ECF opinion attachment). 4 Were we to expand Bivens to cover Mays’s suit, it could

open the door for increased litigation over the myriad decisions made every day regarding

4 The Court takes judicial notice of these uncontested facts from Defendants’ Response Brief, which are publicly available on the BOP’s website. United States v. Doe,

, 147 & n.6 (4th Cir. 2020) (taking judicial notice of governmental reports and generally known facts); Nolte v. Cap. One Fin. Corp.,

, 317 n.* (4th Cir. 2004) (“[I]ndisputable facts are susceptible to judicial notice.” (citing Fed. R. Evid. 201(b)).

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inmate discipline, transfer, and employment across the entire BOP system. But even

“uncertainty alone” about such “systemwide” consequences “forecloses relief.” Egbert,

142 S. Ct. at 1803–04. Rather, if 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,’” we must decline to extend Bivens. Id. at 1805 (quoting Ziglar,

).

As discussed, such reasons exist here.

Accordingly, because Mays’s claims would expand Bivens to a “new context” and

because there are “special factors” counseling against our doing so, his Fifth Amendment-

based claims are not cognizable.

IV.

Because this matter does not fit within the precise confines of the Supreme Court’s

Bivens cases, we must adhere to the Supreme Court’s direction and affirm the district

court’s grant of Defendants’ motion to dismiss.

AFFIRMED

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