Case: 22-40579 Document: 00516888417 Page: 1 Date Filed: 09/08/2023
United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED September 8, 2023 No. 22-40579 ____________ Lyle W. Cayce Clerk Delores Looper,
Plaintiff—Appellant,
versus
Dallas B. Jones; Federal Bureau of Prisons; 6 Unknown Employees,
Defendants—Appellees. ______________________________
Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:19-CV-377 ______________________________
Before Willett, Engelhardt, and Oldham, Circuit Judges. Per Curiam:* Delores Looper, proceeding pro se and in forma pauperis, sued the Federal Bureau of Prisons and several prison officials pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). ROA.132–36, 163–76. She alleged that the defendants violated the Eighth Amendment rights of her son, Joseph Looper, by failing to protect
_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-40579 Document: 00516888417 Page: 2 Date Filed: 09/08/2023
No. 22-40579
him from the lethal attack of his cellmate. ROA.135, 163–74, 179. The dis- trict court dismissed Looper’s complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). We AFFIRM. First, the district court correctly dismissed the suit against the Federal Bureau of Prisons. The law is clear that a plaintiff cannot bring a Bivens claim against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). Second, the district court correctly dismissed the suit against the fed- eral officers. Looper alleges that the officers violated her son’s Eighth Amendment rights when they transferred him to a cell where another inmate killed him. ROA.172–74. She also alleges that the officers knew or should have known that her son was likely to suffer severe injury or death at the hands of the other inmate. ROA.172–74. She claims that the officers’ failure to protect her son and intervene on his behalf amounted to deliberate indif- ference. ROA.172–74.† Bivens created a cause of action for money damages under the Fourth Amendment for Webster Bivens to sue federal agents who allegedly “mana- cled” him “in front of his wife and children, and threatened to arrest the en- tire family,” “searched the apartment from stem to stem,” and took him to a federal courthouse where he was “interrogated, booked, and subjected to a visual strip search.” 403 U.S. at 389. In the next decade, the Supreme Court recognized two other causes of action against federal officers: first, for sex
_____________________ † Looper tried to amend her complaint to include additional Eighth Amendment claims, alleging that prison officials failed to adequately staff the prison and provide her son with timely emergency medical care. The district court denied her request because she had not sought leave; these new claims were time-barred by the applicable limitations period; and the new claims were, in any event, supported only by conclusory allegations. ROA.587–88. Even if Looper had properly presented these claims, they would fail to state a claim for Bivens relief for the same reasons that her other claims fail to do so: they present a new context and the Bivens remedy is not appropriate.
2 Case: 22-40579 Document: 00516888417 Page: 3 Date Filed: 09/08/2023
discrimination against a former congressional staffer in violation of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228 (1979); and second, for a failure to provide an asthmatic prisoner with adequate medical care in viola- tion of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980). But since then, the Supreme Court has not once extended the Bivens remedy, and it has declined to do so at least a dozen times. See Egbert v. Boule, 142 S. Ct. 1793, 1799–1800 (2022). The Supreme Court has repeatedly “emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activ- ity.’” Id. at 1803 (quoting Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) and Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). That is because “creating a cause of action is a legislative endeavor.” Ibid. So today, “Bivens claims generally are limited to the circumstances” of Bivens, Davis, and Carlson. Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020). When analyzing Bivens claims, we have traditionally asked two ques- tion—(1) whether this case presents a new context and (2) if so, whether there are any alternative remedies or special factors indicating that judges are “at least arguably less equipped than Congress” to create a damages remedy. Egbert, 142 S. Ct. at 1803. But as a practical matter, this inquiry reduces to “a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Ibid. And as the Supreme Court has instructed, this question creates an extremely high barrier: If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy, the courts must re- frain from creating it. Even a single sound reason to defer to Congress is enough to require a court to refrain from creating such a remedy. Put another way, the most important question is who should decide whether to provide for a damages remedy, Congress or the courts? If there is a rational reason to think that the answer is “Congress”—as it will be in most every case— no Bivens action may lie.
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Ibid. (cleaned up).
Looper cannot make the required showing because this case presents a new context, and Congress is far more equipped to create a damages rem- edy.
First, this is a new Bivens context. As the Supreme Court has empha- sized, our “understanding of a ‘new context’ is broad.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). That is because “even a modest extension” of Bivens outside the circumstances of Bivens, Davis, and Carlson “is still an ex- tension.” Ziglar, 582 U.S. at 147; see also Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons, 998 F.3d 682, 685 (5th Cir. 2021). And it is not enough for a plaintiff to identify “parallel circumstances with Bivens, [Davis], or Carlson”; he must also satisfy “the analytic framework prescribed by the last four decades of intervening case law.” Egbert, 142 S. Ct. at 1809 (quoting Ziglar, 582 U.S. at 139) (internal quotation marks omitted).
Even though Carlson created a cause of action for an asthmatic pris- oner’s Eighth Amendment failure to medicate claim, it did not create a cause of action for a prisoner’s Eighth Amendment failure to protect or intervene claim. In that regard, Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), is instructive. There a prisoner alleged that officials violated his Eighth Amendment rights by failing to provide him with necessary medica- tion and accommodations for his heart condition. Id. at 64–65. He sought to vindicate these rights through Bivens and Carlson.
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Case: 22-40579 Document: 00516888417 Page: 1 Date Filed: 09/08/2023
United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED September 8, 2023 No. 22-40579 ____________ Lyle W. Cayce Clerk Delores Looper,
Plaintiff—Appellant,
versus
Dallas B. Jones; Federal Bureau of Prisons; 6 Unknown Employees,
Defendants—Appellees. ______________________________
Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:19-CV-377 ______________________________
Before Willett, Engelhardt, and Oldham, Circuit Judges. Per Curiam:* Delores Looper, proceeding pro se and in forma pauperis, sued the Federal Bureau of Prisons and several prison officials pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). ROA.132–36, 163–76. She alleged that the defendants violated the Eighth Amendment rights of her son, Joseph Looper, by failing to protect
_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-40579 Document: 00516888417 Page: 2 Date Filed: 09/08/2023
No. 22-40579
him from the lethal attack of his cellmate. ROA.135, 163–74, 179. The dis- trict court dismissed Looper’s complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). We AFFIRM. First, the district court correctly dismissed the suit against the Federal Bureau of Prisons. The law is clear that a plaintiff cannot bring a Bivens claim against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). Second, the district court correctly dismissed the suit against the fed- eral officers. Looper alleges that the officers violated her son’s Eighth Amendment rights when they transferred him to a cell where another inmate killed him. ROA.172–74. She also alleges that the officers knew or should have known that her son was likely to suffer severe injury or death at the hands of the other inmate. ROA.172–74. She claims that the officers’ failure to protect her son and intervene on his behalf amounted to deliberate indif- ference. ROA.172–74.† Bivens created a cause of action for money damages under the Fourth Amendment for Webster Bivens to sue federal agents who allegedly “mana- cled” him “in front of his wife and children, and threatened to arrest the en- tire family,” “searched the apartment from stem to stem,” and took him to a federal courthouse where he was “interrogated, booked, and subjected to a visual strip search.” 403 U.S. at 389. In the next decade, the Supreme Court recognized two other causes of action against federal officers: first, for sex
_____________________ † Looper tried to amend her complaint to include additional Eighth Amendment claims, alleging that prison officials failed to adequately staff the prison and provide her son with timely emergency medical care. The district court denied her request because she had not sought leave; these new claims were time-barred by the applicable limitations period; and the new claims were, in any event, supported only by conclusory allegations. ROA.587–88. Even if Looper had properly presented these claims, they would fail to state a claim for Bivens relief for the same reasons that her other claims fail to do so: they present a new context and the Bivens remedy is not appropriate.
2 Case: 22-40579 Document: 00516888417 Page: 3 Date Filed: 09/08/2023
discrimination against a former congressional staffer in violation of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228 (1979); and second, for a failure to provide an asthmatic prisoner with adequate medical care in viola- tion of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980). But since then, the Supreme Court has not once extended the Bivens remedy, and it has declined to do so at least a dozen times. See Egbert v. Boule, 142 S. Ct. 1793, 1799–1800 (2022). The Supreme Court has repeatedly “emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activ- ity.’” Id. at 1803 (quoting Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) and Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). That is because “creating a cause of action is a legislative endeavor.” Ibid. So today, “Bivens claims generally are limited to the circumstances” of Bivens, Davis, and Carlson. Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020). When analyzing Bivens claims, we have traditionally asked two ques- tion—(1) whether this case presents a new context and (2) if so, whether there are any alternative remedies or special factors indicating that judges are “at least arguably less equipped than Congress” to create a damages remedy. Egbert, 142 S. Ct. at 1803. But as a practical matter, this inquiry reduces to “a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Ibid. And as the Supreme Court has instructed, this question creates an extremely high barrier: If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy, the courts must re- frain from creating it. Even a single sound reason to defer to Congress is enough to require a court to refrain from creating such a remedy. Put another way, the most important question is who should decide whether to provide for a damages remedy, Congress or the courts? If there is a rational reason to think that the answer is “Congress”—as it will be in most every case— no Bivens action may lie.
3 Case: 22-40579 Document: 00516888417 Page: 4 Date Filed: 09/08/2023
Ibid. (cleaned up).
Looper cannot make the required showing because this case presents a new context, and Congress is far more equipped to create a damages rem- edy.
First, this is a new Bivens context. As the Supreme Court has empha- sized, our “understanding of a ‘new context’ is broad.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). That is because “even a modest extension” of Bivens outside the circumstances of Bivens, Davis, and Carlson “is still an ex- tension.” Ziglar, 582 U.S. at 147; see also Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons, 998 F.3d 682, 685 (5th Cir. 2021). And it is not enough for a plaintiff to identify “parallel circumstances with Bivens, [Davis], or Carlson”; he must also satisfy “the analytic framework prescribed by the last four decades of intervening case law.” Egbert, 142 S. Ct. at 1809 (quoting Ziglar, 582 U.S. at 139) (internal quotation marks omitted).
Even though Carlson created a cause of action for an asthmatic pris- oner’s Eighth Amendment failure to medicate claim, it did not create a cause of action for a prisoner’s Eighth Amendment failure to protect or intervene claim. In that regard, Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), is instructive. There a prisoner alleged that officials violated his Eighth Amendment rights by failing to provide him with necessary medica- tion and accommodations for his heart condition. Id. at 64–65. He sought to vindicate these rights through Bivens and Carlson. But the Supreme Court held that this was a new context—even though the Court in Carlson had cre- ated a Bivens remedy “in almost parallel circumstances.” Ziglar, 582 U.S. at 139. The Court later explained:
In both cases [Carlson and Malesko], the right at issue was the same: the Eighth Amendment right to be free from cruel and
4 Case: 22-40579 Document: 00516888417 Page: 5 Date Filed: 09/08/2023
unusual punishment. And in both cases, the mechanism of in- jury was the same: failure to provide adequate medical treat- ment. . . . Even though the right and the mechanism of injury [in Malesko] were the same as they were in Carlson, the Court held that the contexts were different. The Court explained that special factors counseled hesitation and that the Bivens remedy was therefore unavailable. Ibid. (citation omitted).
So too here. Looper’s Eighth Amendment claim is different “in a meaningful way,” from the Eighth Amendment claim in Carlson. Ibid. So this case presents a new context.
Second, special factors counsel against creating a new remedy. Con- gress has created a comprehensive scheme to govern suits brought by prison- ers against federal jailers in the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, enacted fifteen years after Carlson. See Ziglar, 582 U.S. at 148–49; Watkins, 998 F.3d at 685. When enacting this legislation, “Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs.” Ziglar, 582 U.S. at 148. But Con- gress chose not to “provide for a standalone damages remedy against federal jailers” and arguably “chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.” Id. at 149; see also Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). Since “Congress has repeat- edly declined to authorize the award of damages,” we may not do so, Mesa, 140 S. Ct. at 747, even if we thought the PLRA remedy was “inadequate” here, Egbert, 142 S. Ct. at 1806.
Finally, to the extent Looper tries to hold officers vicariously liable for the actions of subordinates, she cannot. Vicarious liability does not apply to Bivens claims. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (holding
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“vicarious liability is inapplicable to Bivens and § 1983 suits”); accord Wat- kins, 998 F.3d at 686.
The district court’s judgment is AFFIRMED. Looper’s motion to supplement the record is DENIED.