Keywords
incarceration; prisoner; incarcerated person; prison violence
Abstract
Correctional officers have an obligation, under the Eighth Amendment and 18 U.S.C. § 4042, to protect incarcerated persons from an attack at the hands of fellow incarcerated individuals. Despite this duty, when a federal officer fails to protect an incarcerated person from attack, the viability of the victim’s claim against the offending officer is uncertain. Even though the doctrine, created in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows courts to infer a cause of action for damages directly from the Constitution, the U.S. Supreme Court adopted a test in Ziglar v. Abbasi that has restricted the applicability of Bivens remedies. The Abbasi test only allows a Bivens remedy to proceed in cases that are factually similar to prior Bivens holdings and where there are no special factors that counsel hesitation.
Federal circuit courts apply the Abbasi test inconsistently, especially in the context of incarcerated individuals’ failure-to-protect claims. Focusing on the granular factual differences, the presence of alternative remedial structures, and separation-of-powers concerns, the U.S. Courts of Appeals for the Fourth and Ninth Circuits have determined that incarcerated individuals’ failure-to-protect claims may not proceed under Bivens. The U.S. Court of Appeals for the Third Circuit, on the other hand, has concluded that these same claims fall neatly within prior Bivens holdings, affording incarcerated individuals with a Bivens remedy.
Recommended Citation
Sophia M. Brusco,
Turning a Blind Eye to “Prisoner-on-Prisoner” Brawls: Why Failure-to-Protect Claims Should Proceed Under Bivens,
93 Fordham L. Rev. 695
(2024).
Available at: https://ir.lawnet.fordham.edu/flr/vol93/iss2/10