In a ruling today in Hoffman v. Preston, a Ninth Circuit panel majority approved what it called a “very modest extension” of the judicially invented Bivens damages remedy against federal officers for constitutional violations. Specifically, the majority held that a prisoner could pursue an Eighth Amendment damages action against a federal prison guard who allegedly labeled him a snitch to other prisoners, offered them a bounty to assault him, and failed to protect him from an assault.
Judge Carlos Bea vigorously dissented. An excerpt:
The Supreme Court has made crystal clear that the days of freely implying damages remedies against individual federal officials under Bivens are at an end. “The Constitution grants legislative power to Congress,” and so “a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress.” Hernandez v. Mesa, 140 S. Ct. 735, 741–42 (2020). The Court has recognized only three exceptions to this general rule: damages remedies may be implied for the specific claims at issue in Bivens, Davis, and Carlson. But these exceptions are limited to the factual contexts in which they arose, and the lower courts cannot extend them if any “special factors counsel[] hesitation” before intruding on the separation of powers and acting in the absence of statutory authority. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).
This should have been a straightforward affirmance of the district court’s judgment. We are asked to decide whether a prisoner (Hoffman) may seek damages against a federal prison guard (Preston) who, the prisoner claims, intentionally and deliberately instigated other prisoners to beat him in retaliation for the prisoner’s suspected snitching out of the prison guards’ theft of prison food by offering to pay other prisoners to beat him. Is that a Bivens eligible violation of the Eighth Amendment’s prohibition of cruel and unusual punishment? The answer is no. Congress has never enacted a damages remedy against federal prison officials who act as in the allegations in this case, which amount to an Eighth Amendment excessive force claim; the Supreme Court has never recognized a remedy for such actions under Bivens, and at least three special factors bar the narrow gate towards extending the Bivens remedy to this new context.