Walker v. Hudson

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 4, 2025
• Docket: 24-3148
• Status: Unpublished

Opinion

Appellate Case: 24-3148 Document: 14-1 Date Filed: 06/04/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 4, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DERRICK S. WALKER,

Plaintiff - Appellant,

v. No. 24-3148 (D.C. No. 5:24-CV-03087-JWL) D. HUDSON; (FNU) WALKER; (FNU) (D. Kan.) SARGENT; (FNU) ALLEN; FNU ROCKHOLD; (FNU) WILLIAMS,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, MURPHY, and CARSON, Circuit Judges.** _________________________________

Judges cannot engage in lawmaking. And creating a cause of action is a

legislative decision. So no matter how much we sympathize with a prisoner’s plight

in federal custody, we cannot extend Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), to novel constitutional violations.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 24-3148 Document: 14-1 Date Filed: 06/04/2025 Page: 2

This case presents such a scenario. Plaintiff Derrick Walker, proceeding pro

se and housed in a federal prison, allegedly lived with an inch and a half of sewage in

his prison cell for forty-eight hours. He argues such living conditions violate his

Eighth Amendment right to be free from cruel and unusual punishment. We need not

decide that question today because Plaintiff cannot prevail under Bivens. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s dismissal of

Plaintiff’s complaint for failure to state a claim.

I.

Plaintiff, housed in FCI-Leavenworth, alleges that the Special Housing Unit

had a major sewage back-up causing one and a half inches of raw sewage to come

into his cell. Plaintiff says that he repeatedly asked for sanitary chemicals to clean

his cell or for someone to come and clean it. The prison denied these requests and

told Plaintiff to use his clothing to block the door sill to hold the sewage back. The

prison allegedly made Plaintiff and his cellmate live, walk, and eat in a room filled

with raw sewage.

Plaintiff alleges prison officials’ deliberate indifference to his health and

safety violated the Eighth Amendment’s prohibition of cruel and unusual

punishment. Plaintiff filed a complaint in the United States District Court for the

District of Kansas seeking $1,000,000 in compensatory and punitive damages.

The district court dismissed Plaintiff’s complaint for failure to state a claim.

The district court noted Plaintiff marked “unknown” for how he brought his action,

checking neither 42 U.S.C. § 1983 nor Bivens. The district court first concluded

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Plaintiff could not file his action under § 1983 because he alleged only rights

deprivations by federal prison officials rather than the statutorily-required persons

acting under color of state law. Next, the district court said Plaintiff could not use

Bivens because his claim did not fit such claims’ recognized categories and because

the Bureau of Prison’s Administrative Remedy Program provided an adequate

remedy. The district court thus dismissed Plaintiff’s complaint for failure to state a

claim. Plaintiff timely appealed.

Plaintiff’s appeal raises five issues. First, he says his action arises under

Bivens. Second, Plaintiff asserts Defendants acted as Bureau of Prisons employees

in an official capacity with requisite knowledge of a substantial risk. Third, Plaintiff

contends Carlson v. Green, 446 U.S. 14 (1980), gives him a Bivens remedy. Fourth,

Plaintiff argues the Administrative Remedy Program did not offer any adequate

alternative remedy and did not produce any administrative results. Finally, Plaintiff

argues his case pre-dates two cases the district court cited and the Federal Prison

Oversight Act thus provided no protections during the incident.

II.

A district court must dismiss a litigant’s case seeking to proceed in forma

pauperis whenever “the court determines that . . . the action or appeal . . . (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). Here, the district court dismissed the case for failure to state

a claim on which relief may be granted. Our review is thus de novo. Vasquez

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Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009) (citing Perkins v. Kan. Dep’t

of Corrs., 165 F.3d 803, 806 (10th Cir. 1999)). In conducting our review, we

construe Plaintiff’s pro se filings liberally. Yang v. Archuleta, 525 F.3d 925, 927 n.1

(10th Cir. 2008) (citing Ledbetter v. City of Topeka, 318 F.3d 1183, 1187–88 (10th

Cir. 2003)).

1.

In his opening brief, Plaintiff makes clear that his is a Bivens claim, and that

he asserts these claims against federal employees. We have described Bivens as a

more limited federal analog to 42 U.S.C. § 1983. Mohamed v. Jones, 100 F.4th

1214, 1229 (10th Cir. 2024) (citing Hernandez v. Mesa, 589 U.S. 93 (2020)).

Because Plaintiff is a federal inmate and sues federal officials for a constitutional

violation, he must use Bivens rather than § 1983. Id. And as we recently stated,

“Bivens is now all but dead.” Rowland v. Matevousian, 121 F.4th 1237, 1241–42

(10th Cir. 2024) (citing Mohamed, 100 F.4th at 1236–37 (Tymkovich, J.,

dissenting)). Indeed, extending Bivens “is impermissible in virtually all

circumstances.” Id. at 1242 (quoting Silva v. United States, 45 F.4th 1134, 1140

(10th Cir. 2022)).

We engage in a two-step inquiry to see if Plaintiff’s claims are cognizable. Id.

First, we examine whether Plaintiff’s case arises in a new Bivens context. Id. (citing

Egbert v. Boule, 596 U.S. 482, 492 (2022)). Second, we consider whether special

factors suggest the Judiciary is at least arguably less equipped than Congress to

weigh the costs and benefits of allowing a damages action to proceed. Id.

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2.

Plaintiff contends his case is similar to Carlson, a Supreme Court-recognized

Bivens action. In Carlson, a plaintiff brought an Eighth Amendment lawsuit against

prison officials for deliberate indifference to a serious medical need. But simply

alleging a claim for deliberate indifference to a serious medical need is not enough to

make a Bivens claim similar. Rowland, 121 F.4th at 1242–43. Indeed, “[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.” Id. at

1243 (citing Hernandez, 589 U.S. at 102). Even small differences can satisfy the

new-context inquiry. Id. (citing Ziglar v. Abbasi, 582 U.S. 120, 149 (2017).

Here, Plaintiff’s case contains more than small differences from Carlson in

terms of the generality or specificity of the official action. Id. (citing Ziglar, 582

U.S. at 140). In Carlson, prison officials disobeyed a doctor’s orders by keeping the

plaintiff in a medical facility they knew to be grossly inadequate. The prisoner did

not receive competent medical attention for eight hours after he had an asthmatic

attack. The prison administered the prisoner drugs that exacerbated the attack.

Prison officials further impeded the prisoner’s breathing by giving him a respirator

they knew was inoperative. And, importantly, the prisoner died as a result. Carlson,

446 U.S. at 16. None of those facts are present here.

This is the reality of plaintiffs asserting Bivens claims. Differences between

Plaintiff’s case and Carlson do not disprove that Defendants were deliberately

indifferent to his medical needs. Rowland, 121 F.4th at 1243. Rather, the

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differences show his case is materially different from Carlson and therefore presents

a new Bivens context. Id. Because Plaintiff’s claims materially differ from the three

cases where the Supreme Court recognized a Bivens claim, we conclude Plaintiff’s

case arises in a new Bivens context. Id. Only Congress, not the judiciary, can

legislate and create a cause of action for inmates like Plaintiff to sue federal officials

for alleged violations of their constitutional rights.

Plaintiff argues in his brief that the district court essentially nullified the

Eighth Amendment by denying his Bivens claim. Not so. Sovereign immunity

immunizes the federal government from suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475

(1994). The United States must waive its sovereign immunity for constitutional

claims. Id. at 485–86. It has made no such a waiver for Eighth Amendment

violations.

Contrast that with Congress enacting 42 U.S.C. § 1983. That law authorized

individuals to sue state and local governments for violating constitutional rights. So

when Plaintiff cites cases in his brief, such as McBride v. Deer, 240 F.3d 1287, 1291

(10th Cir. 2001), where a plaintiff alleged defendants violated his constitutional

rights by forcing him to live in a feces-covered cell for three days, those plaintiffs

sued state governments under § 1983. Indeed, Oklahoma imprisoned McBride and

McBride alleged Oklahoma State employees violated his constitutional rights.

Because Oklahoma rather than the United States government imprisoned McBride,

Congress authorized McBride to sue Oklahoma’s officials for violating his Eighth

Amendment rights. Plaintiff also cites DeSpain v. Uphoff, 264 F.3d 965, 970 (10th

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Cir. 2001), a case in which a Wyoming-state inmate sued Wyoming officials for cruel

and unusual punishment for exposing him to unsanitary flooding conditions. Again,

Congress authorized such suits against state governments, not the federal

government. If this had happened in a state prison, a district court may not have

dismissed Plaintiff’s case for failure to state a claim. But because Plaintiff is a

federal inmate, Congress has not provided a cause of action and the district court

properly dismissed his Bivens suit. Thus, the district court did not engage in an

“abuse of judicial authority” as Plaintiff alleges. Until Congress waives the federal

government’s immunity, identical plaintiffs cannot prevail on an Eighth Amendment

claim.

3.

We now turn to the second step of the Bivens inquiry, which “dooms”

Plaintiff’s case. Rowland, 121 F.4th at 1243. An alternative remedial scheme

addresses Plaintiff’s complaints: the Bureau of Prisons’ (“BOP”) Administrative

Remedial Program, which brings allegedly unconstitutional actions to the BOP’s

attention. Id. at 1243–44 (citing Silva, 45 F.4th at 1141). Plaintiff used this process.

But he argues the Administrative Remedy Program was not an adequate alternative

remedy and produced no administrative results. We have held numerous times,

however, that the BOP’s Administrative Remedy Program offers an independently

sufficient ground to foreclose a Bivens claim. Id. at 1244 (citing Silva, 45 F.4th at

1141).

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Plaintiff’s Bivens claim fails because “so long as Congress or the Executive

has created a remedial process that it finds sufficient to secure an adequate level of

deterrence, the courts cannot second-guess that calibration by superimposing a

Bivens remedy.” Id. (quoting Egbert, 596 U.S. at 498).

4.

The most relevant question under Bivens is whether any rational reason exists

to think Congress can weigh the costs and benefits of allowing a damages action to

proceed better than a court. Rowland, 121 F.4th at 1244 (citing Egbert, 596 U.S. at

496). We have said “Congress will always be better suited to make such a call

because, as the Supreme Court has emphasized, recognizing a Bivens action

improperly merges the ‘Constitution’s separation of legislative and judicial power.’”

Id. (quoting Egbert, 596 U.S. at 491). More importantly, “courts are simply ill-suited

to ‘predict the ‘systemwide’ consequences of recognizing a cause of action under

Bivens.’” Id. (quoting Egbert, 596 U.S. at 493). Creating a cause of action is a

legislative endeavor, and that is what every Bivens action requires courts to do. Id.

5.

Finally, Plaintiff says his case pre-dates Noe v. U.S. Gov’t, 2023 WL 8868491

(10th Cir. Dec. 22, 2023), Logsdon v. U.S. Marshal Serv., 91 F.4th 1352 (10th Cir.

2024), and the Federal Prison Oversight Act. Therefore, he asserts, “no protections

were in place at the time of the incident.”

Presumably, Plaintiff argues his case pre-dates Noe and Logsdon because

those cases clarify that a federal inmate like Plaintiff cannot succeed under a Bivens

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claim. This argument does not help Plaintiff. Noe and Logsdon both rely on Egbert

and Silva. And courts decided both Egbert and Silva prior to the alleged violations

that occurred in Plaintiff’s case in December 2022.

As to the Federal Prison Oversight Act, Plaintiff argues that statute supports

his claims that the BOP’s Administrative Remedy Program does not provide an

adequate alternative remedy. That Act established an independent oversight office to

investigate and address conditions in the federal prison system. The Act’s passage

does not, however, change that the Executive has created a remedial process it finds

sufficient to adequately deter prison official misconduct. We cannot second-guess

that calibration by superimposing a Bivens remedy. Egbert, 596 U.S. at 498.1

AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge

1 Plaintiff moved to proceed in forma pauperis. We GRANT his motion but remind him that he must continue to make partial payments until he pays the filing fee in full. 9