Peter Bistrian v. Troy Levi

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 18-1967/1991/1992/2011/2017
_____________
PETER BISTRIAN

v.

WARDEN TROY LEVI, FDC Philadelphia; ASSISTANT
WARDEN TRACY BROWN, FDC Philadelphia;
ASSISTANT WARDEN BLACKMAN, FDC Philadelphia;
CAPTAIN DAVID C. KNOX, FDC Philadelphia; JEFFREY
MCLAUGHLIN, Special Investigative Agent, FDC
Philadelphia; DAVID GARRAWAY, Special Investigative
Agent, FDC Philadelphia; LT J. A. GIBBS, FDC
Philadelphia; SENIOR WILLIAM JEZIOR, FDC
Philadelphia; SENIOR OFFICER TIMOTHY BOWNS, FDC
Philadelphia; SENIOR OFFICER MARIBEL BURGOS,
FDC Philadelphia; UNIT MANAGER WHITE, Philadelphia
FDC; LT. RODGERS, FDC Philadelphia; LT R. WILSON,
Philadelphia FDC; LT DAVID ROBINSON, FDC
Philadelphia; UNITED STATES OF AMERICA

Jeffrey McLaughlin; Timothy Bowns; Maribel Burgos; David
Robinson,
Appellants in No. 18-1967

Troy Levi,
Appellant in No. 18-1991
 William Jezior,
Appellant in No. 18-1992

LT James Gibbs,
Appellant in 18-2011

Gregory Rodgers,
Appellant in 18-2017
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-08-cv-03010)
District Judge: Hon. Cynthia M. Rufe
_______________

Argued
September 11, 2018

Before: JORDAN, RENDELL, and VANASKIE, Circuit
Judges

(Filed December 28, 2018)
_______________

Benjamin N. Gialloreto
Law Offices of Richard Stoloff
1500 John F. Kennedy Blvd. - #520
Philadelphia, PA 19102
Counsel for Appellant Troy Levi

2
Carlton L. Johnson
Jeffrey M. Scott [ARGUED]
Shelley R. Smith
Archer & Greiner
Three Logan Square
1717 Arch St. - #3500
Philadelphia, PA 19103
Counsel for Appellants Jeffrey McLauglin,
Timothy Bowns, Maribel Burgos, David Robinson

Genelle P. Franklin
Fridie Law Group
101 Route 130 South - #9
Cinnaminson, NJ 08077
Counsel for Appellant Lt. Rodgers

Gary L. Bailey
Syreeta J. Moore
Bailey & Associates
1500 Walnut St. - #821
Philadelphia, PA 19102
Counsel for Appellant J.A. Gibbs

Kay Kyungsun Yu
Aleena Y. Sorathia
Ahmad Aaffarese
Joseph E. Zaffarese
One South Broad St. - #1810
Philadelphia, PA 19107
Counsel for Appellant William Jezior

3
Richard L. Bazelon [ARGUED]
Michael F. Harris
Bazelon Less & Feldman
One South Broad St. - #1500
Philadelphia, PA 19107

Robert E. Goldman
535 Hamilton St. - #302
Allentown, PA 18101
Counsel for Appellee

Jonathan H. Feinberg
Kairys Rudovsky Messing & Feinberg
718 Arth St. – #501 South
Philadelphia, PA 19106

Bruce P. Merenstein
Schnader Harrison Segal & Lewis
1600 Market St. - #3600
Philadelphia, PA 19103

Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19106
Counsel for Amicus, American Civil Liberties Union
_______________

OPINION OF THE COURT
_______________

4
JORDAN, Circuit Judge.

Peter Bistrian, a detainee at the Federal Detention
Center (“FDC”) in Philadelphia, brought suit against prison
officials there. He alleges that they failed to protect him from
other prisoners and punitively detained him in the FDC’s
Special Housing Unit (“SHU”).1 The District Court granted
qualified immunity to some defendants on some claims, but
denied summary judgment on Bistrian’s constitutional claims,
which were brought pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). For the reasons that follow, we will affirm in part and
reverse in part.

1
The SHU is a segregated housing unit where inmates
may be placed for either administrative or disciplinary
reasons. Inmates are confined in solitary or near-solitary
conditions in a “six by eight foot cell for 23 to 24 hours a day,
with little or no opportunity to interact with other inmates[.]”
(App. at 2923 ¶ 12.)

5
I. FACTUAL BACKGROUND2

From August 2005 until March 2008, Bistrian was a
detainee at the FDC while he awaited trial, was tried,
convicted, and finally sentenced on charges related to wire
fraud. During that time, prison officials placed him in the
SHU on four occasions.

They first placed him in the SHU on November 18,
2005, following allegations that he had violated telephone use
rules. He stayed there for approximately seven weeks, until
January 9, 2006. Three weeks later, on January 25, 2006,
prison officials again put him in the SHU, this time because
of “[s]ecurity [c]oncerns.”3 (App. at 94.) He remained there
for nearly a year, from January 25, 2006, to December 8,
2006.

During that second round of intensive detention,
Bistrian earned some privileges and became an orderly, a
prison job that provided him the opportunity to interact with
other inmates housed in the SHU. Knowing of Bistrian’s

2
In assessing an assertion of qualified immunity, we
take the facts in the light most favorable to “the party
asserting the injury,” which here is Bistrian. Scott v. Harris,
550 U.S. 372, 377 (2007).
3
What those concerns were is not in the record. In
February 2006, the Warden was informed that there was no
detention order for Bistrian’s then current detention in the
SHU. Months later, in July, a prison official completed a
detention order, noting that Bistrian was being detained for
“[s]ecurity [c]oncerns.” (App. at 94.)

6
access to others in the SHU, a fellow inmate, Steven
Northington, asked him to pass notes between inmates. In
particular, Northington wanted to facilitate communication
for another prisoner, his friend and criminal confederate
Kaboni Savage.4 Bistrian told Officers Gibbs and Bowns of
that request, rightfully believing they would be interested.
That led to the formation of a surveillance operation in which
Bistrian secretly passed inmate notes to prison officials.
Prison officials photocopied the notes, and gave Bistrian the
original to pass along. All went as planned until Bistrian
accidentally gave a photocopy of a note, instead of the
original, to an inmate, thereby tipping off the SHU’s residents
to Bistrian’s cooperation with prison officials. After his
cooperation became known, he received multiple threats and
made prison officials aware of them, including defendants
Bowns, Gibbs, Jezior, and Warden Levi.

Despite their knowledge of the threats against Bistrian,
on June 30, 2006, prison officials placed him in the recreation
yard where Northington and two other inmates were also
present. In what, for ease of reference, we will call “the
Northington attack,” Northington and the two others
proceeded to brutally beat Bistrian. Jezior and other officials
yelled for the attack to stop, but they did not enter the yard.
Instead, they waited until a larger number of guards (12 to 15)
were present to intervene. By then, the damage was done.
Bistrian suffered severe physical and psychological injuries,

4
Northington and Savage were part of a Philadelphia
drug gang and involved in witness intimidation, death threats
to witnesses and law enforcement, and a firebombing that
killed six family members of the government’s chief
cooperating witness.

7
and that is the basis of his claim under the Fifth Amendment
that the prison officials failed to protect him.5

In December 2006, less than a month after Bistrian had
completed his nearly yearlong second detention, prison
officials again placed him in the SHU. They cited his safety
as the reason for doing so. According to the defendants, there
had been death threats against him. Shortly after that
placement, Bistrian’s counsel sent a letter to Warden Levi
asking why his client was there. The Warden replied that
records indicated it was due to an investigation. Bistrian was
released two days after that response, having spent
approximately a month in the SHU.

In August 2007, at a sentencing hearing, Bistrian
objected to his treatment in prison and the time and
circumstances of his administrative detentions. After the
hearing, the government provided Bistrian’s counsel with
evidence of the telephone infractions they relied on as the
justification for Bistrian’s confinement in the SHU. That
prompted an email exchange in which Bistrian’s counsel
asked for an explanation of how Bistrian had violated prison
policies. Counsel for the government promptly forwarded
that request to the FDC.

Two days after Bistrian’s counsel pressed for an
explanation, Bistrian was put in the SHU for the fourth time.

5
On October 12, 2006, Bistrian was again attacked in
the recreation yard. The attacker on that occasion, however,
suffered from mental illness and was not known to be
associated with Savage or Northington. Bistrian does not
contend that that event is relevant to any issue on appeal.

8
Officer Jezior wrote an incident report stating that Bistrian
had again violated telephone use rules.6 Using available
administrative procedures, Bistrian contested the placement
but his grievance and appeal were denied. Bistrian alleges
that, after Warden Levi denied the appeal, the Warden said
Bistrian “would never see the light of day again.” (App. at 22
(citation omitted).) Bistrian was in the SHU for about three
months, until early December 2007. That final stay forms the
basis of his First Amendment retaliation claim and his Fifth
Amendment punitive detention claim.

Bistrian was ultimately sentenced to 57 months’
imprisonment and sent to a correctional facility in New York.

II. PROCEDURAL BACKGROUND

This lawsuit began over a decade ago. The operative
pleading is an amended complaint asserting various First,
Fifth, and Eighth Amendment claims against FDC prison
officials and medical staff, and claims under the Federal Tort
Claims Act (“FTCA”) against the United States. The
defendants filed motions to dismiss all nineteen claims in the
amended complaint, saying there had been a failure to
exhaust administrative remedies and a failure to plead
sufficient facts to overcome the defense of qualified
immunity. Bistrian v. Levi, Civ. No. 08-3010, 2010 WL
3155267, at *4-7 (E.D. Pa. July 29, 2010). The District Court
granted those motions in part. Id. at *1. It dismissed thirteen
claims but found that six were sufficiently pled to survive

6
The relevant detention order, however, stated that
Bistrian was placed in the SHU “pending investigation of a
violation of [Bureau] regulations.” (App. at 131.)

9
dismissal, including Bistrian’s Bivens claims for violations of
the First Amendment and Fifth Amendment. Id. at *1.

The defendants involved in this appeal, with others,
then asked us to review the District Court’s denial of their
assertion of qualified immunity. Bistrian v. Levi, 696 F.3d
352, 364-65 (3d Cir. 2012) (Bistrian II). We affirmed in part,
but dismissed the claims against some defendants and limited
the Bivens claims to a Fifth Amendment procedural due
process claim, a Fifth Amendment substantive due process
claim for failure to protect and another for punitive detention,
and a First Amendment claim for retaliation.7 Id. at 377. In
doing so, we set forth the legal standards governing the
claims we permitted to proceed. Id. at 366-68, 372-76.

Following remand and years of extensive discovery,
the remaining defendants filed motions for summary
judgment, which the District Court granted in part and denied
in part. Bistrian v. Levi, 299 F. Supp. 3d 686, 713 (E.D. Pa.
2018) (Bistrian III). It granted summary judgment in favor of
all defendants on the Fifth Amendment procedural due
process claim because Bistrian had had the opportunity to

7
We concluded that only certain periods of
confinement in the SHU could give rise to plausible
retaliation or punitive detention claims, excluding the periods
Bistrian was actively engaged in the note-passing operation.
Bistrian II, 696 F.3d at 374-75. We reasoned that the
defendants reasonably confined Bistrian to the SHU for his
own safety during that time. Id.

10
challenge each SHU confinement.8 Id. at 707-10. It denied
summary judgment on the other three Bivens claims,
concluding that they were based on clearly established rights
at the time of the alleged violations, making the defense of
qualified immunity inapplicable. Id. at 702, 707, 711-12.
Those three claims survived, however, only against certain
defendants. Id.

More specifically, the District Court granted summary
judgment for five defendants on Bistrian’s Fifth Amendment
failure-to-protect claim, but it denied summary judgment for
the eight defendants who bring this appeal. Id. at 700-02. It
decided that there were material issues of fact as to whether
those eight “were deliberately indifferent to the substantial
risk to [Bistrian’s] safety[,]” id. at 700, and it highlighted
evidence that it said could lead a reasonable jury to conclude
that “Bergos [sic], Bowns, Gibbs, Jezior, Levi, McLaughlin,
Robinson, and Rodgers knew of the note-passing scheme and
were aware of the risk [Bistrian] faced once his cooperation
… was discovered.”9 Id. Because the right to be protected

8
The dismissal of the Fifth Amendment procedural
due process claim is not challenged on appeal. Additionally,
the United States filed a motion for summary judgment on the
FTCA claims that was granted in part and denied in part. The
United States, however, is not a party to this appeal, and,
thus, we do not address those claims.
9
In particular, the District Court observed that,
despite whatever protection the officials provided Bistrian by
discontinuing his orderly duties, they “did not take action to
prevent [him] from encountering Northington in the
recreation area.” Bistrian III, 299 F. Supp. 3d at 701. The

11
against prisoner-on-prisoner violence was already clearly
established, the Court said, qualified immunity did not apply.
Id. at 702.

As to Bistrian’s Fifth Amendment punitive detention
claim, the District Court granted summary judgment for all
defendants except Levi and Jezior. Id. at 706. It determined
that a genuine dispute of material fact existed “regarding
whether [in sending Bistrian to the SHU for the fourth time]
Jezior and Levi expressly intended to punish him for his
protests to the Court[.]” Id. at 706. The Court relied on the
timing of Jezior’s incident report leading to the fourth
confinement, as well as Levi’s purported statement that
Bistrian “would never see the light of day again[.]” Id.
Qualified immunity, again, was not available because the
right to be free from punitive detention was already clearly
established at the time. Id. at 707.

So too, the First Amendment retaliation claim was
allowed to proceed against Levi and Jezior. Id. at 710-11.
The District Court determined that Bistrian’s challenge to his
SHU confinements was a protected activity and that his fourth
assignment to the SHU could be seen as a retaliatory and
adverse action taken by Jezior and Levi, given the
“suggestive temporal proximity” of Jezior’s incident report
and the obvious import of the “never see the light of day”

Court reasoned that Bistrian had “put forth evidence showing
that he was incarcerated under conditions posing a substantial
risk of serious harm[,]” given his proximity to members of the
Savage-Northington gang after they discovered the note-
passing scheme. Id. at 700-01.

12
comment that Levi allegedly made. Id. Once again, qualified
immunity was not justified, the Court said, because the right
against retaliation was clearly established at the time. Id. at
711-12.

Following the District Court’s summary judgment
ruling, the eight defendants before us now filed their timely
interlocutory appeals, which have been consolidated for
review.

III. JURISDICTION10

“[W]e normally do not entertain appeals from a district
court order denying a motion for summary judgment because
such orders do not put an end to the litigation.” Rivas v. City
of Passaic, 365 F.3d 181, 191 (3d Cir. 2004). That holds true
when the district court denies qualified immunity based on a
determination that material facts remain in dispute. Id. We
can, however, entertain appeals based on a denial of “a
defendant’s motion for summary judgment so long as: (1) the
defendant is a public official asserting a qualified immunity
defense; and (2) the issue on appeal is whether the facts
alleged by the plaintiff demonstrate a violation of clearly
established federal law, not which facts the plaintiff might be
able to prove at trial.” Id. (emphasis omitted) (citing Mitchell
v. Forsyth, 472 U.S. 511, 528 (1985)). In other words, we
cannot review a decision in which the only question relates to
“evidence sufficiency” in the sense of what facts can be

10
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343.

13
proven.11 See Vanderklok v. United States, 868 F.3d 189, 196
(3d Cir. 2017).

Some of the defendants’ arguments raise factual issues
and so are outside our jurisdiction on this interlocutory
appeal.12 But the defendants also challenge whether the

11
Use of the phrase “evidence sufficiency” here does
not indicate that an appellant cannot challenge whether the
undisputed evidence supports a finding of qualified
immunity. That is a legal question over which we may
exercise jurisdiction. We use the phrase as did the Supreme
Court when it said that “a question of ‘evidence sufficiency,’
i.e., which facts a party may, or may not, be able to prove at
trial” is not an appealable final order. Johnson v. Jones, 515
U.S. 304, 313 (1995); see also Montanez v. Thompson, 603
F.3d 243, 248 (3d Cir. 2010), as amended (May 25, 2010)
(“The Supreme Court has made clear, however, that this
qualified immunity exception does not include interlocutory
appeals of a district court’s evidence sufficiency
determinations at summary judgment.”).
12
For example, Warden Levi contends the District
Court erred because there was insufficient evidence of
officers’ awareness of a substantial risk of serious harm to
Bistrian from inmate-on-inmate violence. That is not
appealable at this stage because Levi’s argument is based on
the District Court’s conclusion that Bistrian had evidence of a
fact that he may prove at trial, specifically he had “pointed to
evidence showing that [some officials] knew of the note-
passing scheme and were aware of the risk [Bistrian]
faced[.]” Bistrian III, 299 F. Supp. 3d at 701.

14
District Court properly applied principles of qualified
immunity in denying summary judgment on the three Bivens
actions. Those arguments involve only questions of law,
including whether the rights in question were clearly
established. Id. at 197. “And since the issue of whether a
[Bivens] cause of action even exists … is a threshold question
of law, we have jurisdiction to consider that as well.” Id.
Accordingly, what follows is a review of the dispositive legal
questions raised by the qualified immunity defenses to
Bistrian’s claims for failure to protect and punitive detention
under the Fifth Amendment, and for retaliation under the First
Amendment.

IV. DISCUSSION

The defendants also challenge the District Court’s
qualified immunity analysis because, they say, as a matter of
law, the Court failed to engage in a sufficiently particularized
analysis with regard to each claim and each defendant. The
District Court’s ruling, however, resulted in denying
summary judgment as to certain defendants on certain claims
and granting summary judgment to other defendants on other
claims. The Court could not have conducted a one-size-fits-
all analysis because it reached different conclusions as to
different defendants on each of the claims it let proceed.
There was a sufficiently particularized analysis, and, we agree
with Bistrian that the defendants’ attempts to argue that the
District Court erred as a matter of law are nothing more than
“a disguised insufficiency of the evidence contention.”
(Bistrian Answering Br. I at 25.)

15
 As we will explain, Bistrian has a cognizable Bivens
cause of action for the alleged failure of the defendants to
protect him from a substantial risk of serious injury at the
hands of other inmates. The prisoner-on-prisoner violence is
not a new context for Bivens claims, and no special factors
counsel against allowing a failure-to-protect cause of action.
We will therefore affirm the District Court’s denial of
summary judgment with respect to that claim. We must,
however, reverse the denial of summary judgment on
Bistrian’s claims for punitive detention and retaliation
because they are novel and special factors counsel against
extending Bivens coverage to such claims.

A. Waiver

Before turning to the merits, though, there is a
preliminary question: whether the defendants waived their
arguments against the availability of Bivens claims.13 Bivens
is the short-hand name given to causes of action against
federal officials for alleged constitutional violations. In the

13
While “waiver” is defined as a “voluntary
relinquishment or abandonment … of a legal right or
advantage[,]” we recognize that the term “waiver” is used
loosely to refer to the loss of the right to challenge a ruling on
appeal due to failure to object at trial or to otherwise
sufficiently raise an argument in the trial court. Waiver,
Black’s Law Dictionary (10th ed. 2014). We would be more
precise if we used the term “forfeiture,” Forfeiture, Black’s
Law Dictionary (10th ed. 2014), but, in light of the historical
use of the term waiver with respect to the forfeiture of
arguments, we use it throughout this opinion.

16
eponymous case, the Supreme Court considered whether a
“violation of [the Fourth Amendment] by a federal agent
acting under color of his authority gives rise to a cause of
action for damages consequent upon his unconstitutional
conduct.” Bivens, 403 U.S. at 389. The Court held that such
a claim was cognizable and that the plaintiff was “entitled to
recover money damages for any injuries he has suffered as a
result of the agents’ violation of the [Fourth] Amendment.”
Id. at 397. Thus was born an implied right of action to
recover damages against federal officials for constitutional
violations.

Prior to the present appeal, none of the eight
defendants before us challenged the existence of a Bivens
cause of action for failure to protect or for punitive detention,
and only two of the defendants, Levi and Jezior, questioned
the existence of a retaliation claim, and they did so only in
passing.14 Bistrian thus argues that the defendants have
waived their right to challenge the availability of a Bivens
remedy. We conclude, however, that the cognizability of the
Bivens claims is a question inherent in the qualified immunity
defenses. To rule otherwise would be to allow new causes of
action to spring into existence merely through the dereliction
of a party.

Whether a Bivens claim exists in a particular context is
“antecedent to the other questions presented.” Hernandez v.

14
The existence of a Bivens retaliation claim was
raised by Jezior and Levi in one sentence in a motion-to-
dismiss reply brief and one sentence in the summary-
judgment briefing.

17
Mesa, 137 S. Ct. 2003, 2006 (2017) (citation omitted). It is
thus “a threshold question of law” that “is directly implicated
by the defense of qualified immunity[.]” Vanderklok, 868
F.3d at 197 (quoting Wilkie v. Robbins, 551 U.S. 537, 549 n.4
(2007)). We can sometimes resolve a case by demonstrating
that a plaintiff would lose on the constitutional claim he
raises, even if Bivens provided a remedy for that type of
claim.15 See Hernandez, 137 S. Ct. at 2007 (approving
“dispos[al] of a Bivens claim by resolving the constitutional
question, while assuming the existence of a Bivens remedy”).
But threshold questions are called that for a reason, and it will
often be best to tackle head on whether Bivens provides a
remedy, when that is unsettled. See id. at 2006-07
(remanding case to court of appeals to address existence of
Bivens cause of action in first instance).

That is true whether the parties raise the question or
not. Assuming the existence of a Bivens cause of action—
without deciding the issue—can risk needless expenditure of
the parties’ and the courts’ time and resources. Thus, even
when a defendant does not raise the issue of whether a Bivens
remedy exists for a particular constitutional violation, we may
still consider the issue in the interest of justice. See Carlson
v. Green, 446 U.S. 14, 17 n.2 (1980) (concluding “that the
interests of judicial administration w[ould] be served by

15
“Whether a cause of action exists is not a question
of jurisdiction, and may be assumed without being decided.”
Air Courier Conference of Am. v. Am. Postal Workers Union
AFL-CIO, 498 U.S. 517, 523 n.3 (1991). Accordingly, the
fact that a Bivens action might not exist does not deprive this
Court of jurisdiction to resolve the issues raised.

18
addressing” the existence of a Bivens cause of action even
though the issue was “not presented below”).

Accordingly, we consider whether a Bivens cause of
action exists for each claim at issue here.

B. Bivens Analysis

“[F]or decades, the Supreme Court has repeatedly
refused to extend Bivens actions beyond the specific clauses
of the specific amendments [of the Constitution] for which a
cause of action has already been implied, or even to other
classes of defendants facing liability under those same
clauses.” Vanderklok, 868 F.3d at 200. The Supreme Court’s
recent opinion in Ziglar v. Abbasi said bluntly “that
expanding the Bivens remedy is now a ‘disfavored’ judicial
activity[,]” but it noted that Bivens actions have been
recognized in three contexts. 137 S. Ct. 1843, 1855, 1857
(2017) (citation omitted). First, as mentioned earlier, in the
Bivens case itself the Court recognized an implied cause of
action for violations of the Fourth Amendment’s right against
unreasonable searches and seizures. 403 U.S. at 397. In the
following decade, the Court recognized two other Bivens
actions: one under the Fifth Amendment’s Due Process
Clause for gender discrimination in the employment context,
Davis v. Passman, 442 U.S. 228, 248-49 (1979), and another
under the Eighth Amendment’s Cruel and Unusual
Punishments Clause for inadequate prison medical care,
Carlson, 446 U.S. at 23-25.16

16
In Abbasi, the Supreme Court suggested that its
analysis for those three recognized Bivens remedies “might

19
 Indicating concern about any further expansion of
implied rights, the Court in Abbasi “established a rigorous
inquiry” to determine whether a Bivens cause of action should
be recognized in a new context. Vanderklok, 868 F.3d at 200.
First, courts must determine whether a case presents “a new
Bivens context[,]” by asking whether or not the case “is
different in a meaningful way from previous Bivens cases
decided by [the Supreme] Court[.]” Abbasi, 137 S. Ct. at
1859. Examples of potentially meaningful differences
include “the rank of the officers involved; the constitutional
right at issue; the generality or specificity of the official
action; the extent of judicial guidance as to how an officer
should respond to the problem or emergency to be
confronted; the statutory or other legal mandate under which
the officer was operating; [and] the risk of disruptive
intrusion by the Judiciary into the functioning of other
branches[.]” Id. at 1860.

If the case does present an extension of Bivens into a
new context, we turn to the second step of Abbasi and ask
whether any “special factors counsel[] hesitation” in
permitting the extension. Id. at 1857. There may be many
such factors, but two are particularly weighty: the existence
of an alternative remedial structure and separation-of-powers
principles. Id. at 1857-58. The first factor – whether an
alternative remedial structure is available – may by itself
“limit the power of the Judiciary to infer a new Bivens cause
of action.” Id. at 1858. And any time the second factor –

have been different if they were decided today.” 137 S. Ct. at
1856.

20
separation-of-powers principles – is in play, that “should be
central to the analysis.” Id. at 1857. The Court noted other
special factors that could be considered, including: the
potential cost to the government of recognizing a private
cause of action, both financially and administratively;
whether the judiciary is well suited to weigh those costs; the
necessity to deter future violations; whether Congress has
already acted in that arena, suggesting it does not “want the
Judiciary to interfere”; whether a claim addresses individual
conduct or a broader policy question; whether litigation
would intrude on the function of other branches of
government; and whether national security is at stake. Id. at
1856-63.

1. “Failure to Protect” Under the Fifth
Amendment

Contrary to the opposition of some of the defendants,17
an inmate’s claim that prison officials violated his Fifth
Amendment rights by failing to protect him against a known
risk of substantial harm does not present a new Bivens
context. On the contrary, we recognized just such a claim 45
years ago in Curtis v. Everette. 489 F.2d 516, 518-19 (3d Cir.
1973) (recognizing constitutional due process right for
prisoner to be free from violent attack by fellow prisoner).
Moreover, the Supreme Court ratified that kind of claim some
20 years later in Farmer v. Brennan, 511 U.S. 825, 832-49
(1994), and we recently concluded, in Bistrian II, that a

17
Although the defendants did not challenge the
existence of a Bivens remedy for Bistrian’s failure-to-protect
claim in the District Court, two defendants, Officers Gibbs
and Rodgers raised it in their opening briefs on appeal.

21
pretrial detainee “ha[s] a clearly established constitutional
right to have prison officials protect him from inmate
violence[,]” 696 F.3d at 367.

Farmer is of greatest significance. In that case, the
Court assessed a “failure to protect” claim brought under the
Eighth Amendment and Bivens as a result of prisoner-on-
prisoner violence. 511 U.S. at 829-34. Although the Farmer
Court did not explicitly state that it was recognizing a Bivens
claim, it not only vacated the grant of summary judgment in
favor of the prison officials but also discussed at length
“deliberate indifference” as the legal standard to assess a
Bivens claim, the standard by which all subsequent prisoner
safety claims have been assessed. Id. at 832-49. It seems
clear, then, that the Supreme Court has, pursuant to Bivens,
recognized a failure-to-protect claim under the Eighth
Amendment.18 See Doty v. Hollingsworth, Civ. No. 15-3016,
2018 WL 1509082, at *3 (D.N.J. Mar. 27, 2018) (holding that
an Eighth Amendment failure-to-protect claim premised on

18
Counsel for the defendants seemed to admit as
much at oral argument: “[Counsel:] In Farmer v. Brennan,
the Supreme Court seemed to have implied a cause of action
and then went and started to talk about a failure-to-protect
claim and what would be the culpability level of an official.
[The Court:] So why doesn’t Farmer vs. Brennan say there is
… a Bivens action under the Fifth Amendment for failure to
protect, that’s what Farmer v. Brennan is all about?
[Counsel:] It is.” (Oral Arg. Tr. at 5:36-6:01.) And, some
defendants’ briefs analyzed Bistrain’s claim under the Farmer
framework.

22
inmate-on-inmate violence is not a new context given
sufficient similarity to both Carlson and Farmer).

Abbasi does not contradict that reasoning. It is true
that Abbasi identified three Bivens contexts and did not
address, or otherwise cite to, Farmer. 137 S. Ct. at 1854-55.
But we decline to “conclude [that the Supreme Court’s] more
recent cases have, by implication, overruled an earlier
precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). It
may be that the Court simply viewed the failure-to-protect
claim as not distinct from the Eighth Amendment deliberate
indifference claim in the medical context. Farmer continues
to be the case that most directly deals with whether a Bivens
remedy is available for a failure-to-protect claim resulting in
physical injury. 137 S. Ct. at 832-34.

As in Farmer, Bistrian seeks a remedy against prison
officials for their failure to protect him from prisoner-on-
prisoner violence. Id. Bistrian’s claim, however, arises under
the Fifth Amendment, not the Eighth Amendment, because he
was a pretrial detainee at the time of the Northington
Attack.19 But that does not warrant the conclusion that, in
applying Bivens to a pretrial detainee’s claim under the Fifth
Amendment as opposed to a post-conviction prisoner’s claim
under the Eighth Amendment, we would be extending Bivens

19
“Pretrial detainees are not within the ambit of the
Eighth Amendment but are entitled to the protections of the
Due Process clause.” Kost v. Kozakiewicz, 1 F.3d 176, 188
(3d. Cir. 1993) (citation omitted). The Fifth Amendment
protects pretrial detainees, while the Eighth Amendment
protects post-trial convicts. Id.

23
to a new context. Indeed, Farmer practically dictates our
ruling today because it is a given that the Fifth Amendment
provides the same, if not more, protection for pretrial
detainees than the Eighth Amendment does for imprisoned
convicts.20 Kost v. Kozakiewicz, 1 F.3d 176, 188 n.10 (3d.
Cir. 1993) (“Pretrial detainees … are entitled to at least as
much protection as convicted prisoners, so the protections of
the Eighth Amendment would seem to establish a floor of
sorts.”). Accordingly, although Bistrian’s claim derives from
a different Amendment, it is not “different in a meaningful
way” from the claim at issue in Farmer. Abbasi, 137 S. Ct. at
1859. The failure-to-protect claim here thus does not call for
any extension of Bivens.

The defendants ignore Farmer and urge that not only
would allowance of this claim impermissibly extend Bivens,
but there are special factors that counsel against such an
extension. Since we conclude a failure-to-protect claim does
not present a new context, there is no need to address the
second step and consider special factors. See Abbasi, 137 S.
Ct. at 1860 (observing that if the case presents a new Bivens
context, “a special factors analysis [is] required before
allowing [the] damages suit to proceed”). Even if there were
such a need, however, the factors the defendants point to—
namely, first, the existence of alternative remedial structures,
second, the implication of the passage of the PLRA, and third,
separation of powers principles—are unpersuasive, given the
weight and clarity of relevant Supreme Court precedent.

Defendant Gibbs admitted that “[t]he Due Process
20

Clause affords Bistrian the same protection as the Eight
Amendment’s Cruel and Unusual Punishment Clause.”
(Gibbs Opening Br. at 19.)

24
 First, the existence of an FTCA remedy does not
foreclose an analogous remedy under Bivens. According to
the Supreme Court, it is “crystal clear that Congress intended
the FTCA and Bivens to serve as parallel and complementary
sources of liability.” Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 68 (2001) (citation omitted). For example, in Carlson, the
Supreme Court specifically noted that a “Bivens remedy … is
a more effective deterrent than the FTCA” because it “is
recoverable against individuals[.]” 446 U.S. at 21. The Court
continued by saying that the “FTCA is not a sufficient
protector of the citizens’ constitutional rights, and without a
clear congressional mandate we cannot hold that Congress
relegated [prisoners] exclusively to the FTCA remedy.” Id. at
23; see also Bush v. Lucas, 462 U.S. 367, 378 (1983) (“No
statute expressly declared the FTCA remedy to be a substitute
for a Bivens action.”).

If that precedent were not enough, the FTCA itself
appears to recognize the complementary existence of Bivens
actions by creating an exception for suits against individual
federal officers for constitutional violations. See Vanderklok,
868 F.3d at 201 (stating that the FTCA, in 28 U.S.C.
§ 2679(b)(2)(A), “notes that a Bivens action itself is
available.”). So the prospect of relief under the FTCA is
plainly not a special factor counseling hesitation in allowing a
Bivens remedy. Id.

The defendants argue that two other remedial routes
were available to Bistrian, namely, the prison administrative
grievance process and a petition for a writ of habeas corpus.
But neither of those should prevent the availability of Bivens
because they cannot redress Bistrian’s alleged harm. Like

25
Bivens, this is a case where “it is damages or nothing.”
Abbasi, 137 S. Ct. at 1862 (citation omitted). The beating
that Bistrian took in the prison yard was allegedly the result
of “individual instances of [official misconduct], which due to
their very nature are difficult to address except by way of
damages actions after the fact.” Id. The administrative
grievance process is not an alternative because it does not
redress Bistrian’s harm, which could only be remedied by
money damages. See Nyhuis v. Reno, 204 F.3d 65, 70 (3d
Cir. 2000) (observing that money damages are “not available
under the Bureau of Prisons’ administrative process.”
(citations omitted)). Similarly, a habeas petition would not
address Bistrian’s harms, because it too gives no retrospective
relief. Preiser v. Rodriguez, 411 U.S. 475, 494 (1973)
(observing that habeas relief does not provide for damages).
Accordingly, there are no true alternative remedies
counseling against allowing a Bivens remedy for a Fifth
Amendment claim based on a failure to protect.

Next, the defendants argue that congressional silence
in the PLRA about the availability of Bivens remedies is
evidence of an intent that there be none. That silence,
however, does not bear the meaning the defendants ascribe to
it. The PLRA was enacted “to eliminate unwarranted federal-
court interference with the administration of prisons” and “to
reduce the quantity and improve the quality of prisoner
suits.”21 Woodford v. Ngo, 548 U.S. 81, 93-94 (2006)

21
Abbasi discussed the impact of the PLRA’s
enactment, noting that it “made comprehensive changes to the
way prisoner abuse claims must be brought in federal court.”
137 S. Ct. at 1865.

26
(citation omitted). Therefore, the PLRA reflects Congress’s
intent to make more rigorous the process prisoners must
follow to bring suit in federal court. And, of dispositive note,
the PLRA has been interpreted to govern the process by
which federal prisoners bring Bivens claims. Nyhuis v. Reno,
204 F.3d 65, 68-69 (3d Cir. 2000); see also Abbasi, 137 S. Ct.
at 1865 (“This Court has said in dicta that the [PLRA’s]
exhaustion provisions would apply to Bivens suits.”). The
very statute that regulates how Bivens actions are brought
cannot rightly be seen as dictating that a Bivens cause of
action should not exist at all.22

Finally, the defendants argue that separation-of-powers
principles counsel against providing a Bivens remedy in suits
like this. It is true that Bivens is not the “proper vehicle for
altering an entity’s policy” and that “[t]he purpose of Bivens
is to deter the officer.” Abbasi, 137 S. Ct. at 1860 (citations
omitted). Hence, in Abbasi, a Bivens claim was not allowed
where the plaintiffs challenged “the formal policy adopted by
… Executive Officials” imposing restrictive housing
conditions. Id. at 1858, 1860. Here, however, Bistrian’s
claim challenges particular individuals’ actions or inaction in
a particular incident – the specific decision to place him in the
yard with Northington and other prisoners and then to not

22
“It could be argued that [silence in the PLRA]
suggests Congress chose not to extend the Carlson damages
remedy to cases involving other types of prisoner
mistreatment.” Abbasi, 137 S. Ct. at 1865. It is equally, if
not more, likely, however, that Congress simply wanted to
reduce the volume of prisoner suits by imposing exhaustion
requirements, rather to eliminate whole categories of claims
through silence and implication.

27
intervene when he was being savagely beaten. Addressing
that incident will, it is true, unavoidably implicate “policies
regarding inmate safety and security[,]” (e.g., Gibbs Opening
Br. at 18-19,) but that would be true of practically all claims
arising in a prison. Cf. Pell v. Procunier, 417 U.S. 817, 823
(1974) (“[C]entral to all other corrections goals is the
institutional consideration of internal security within the
corrections facilities themselves.”). Farmer shows that that
alone cannot be a complete barrier to Bivens liability, because
“gratuitously allowing the beating or rape of one prisoner by
another serves no legitimate penological objectiv[e.]” 511
U.S. at 833-34 (citation omitted) (setting the “deliberate
indifference” standard to ensure that prison officials do not
forgo their responsibility “to protect prisoners from violence
at the hands of other prisoners”); see, e.g., Benefield v.
McDowall, 241 F.3d 1267, 1270-71 (10th Cir. 2001)
(implementing the standard from Farmer for a Bivens failure-
to-protect claim). Bistrian’s claim fits squarely within
Bivens’ purpose of deterring misconduct by prison officials.
And, since failure-to-protect claims have been allowed for
many years, there is no good reason to fear that allowing
Bistrian’s claim will unduly affect the independence of the
executive branch in setting and administering prison policies.

In sum, a special factors analysis does not counsel
hesitation, and the District Court correctly denied the
defendants’ motion for summary judgment with respect to
Bistrian’s failure-to-protect claim. As we previously
concluded, “Bistrian—as an inmate who at all relevant times
was either not yet convicted or convicted but not yet
sentenced—had a clearly established constitutional right to
have prison officials protect him from inmate violence.”
Bistrian II, 696 F.3d at 367. That conclusion was based on a

28
right that was recognized in Farmer and not overruled by
Abbasi, and thus a right that remains clearly established. See
Agostini, 521 U.S. at 237 (declining to “conclude [that the
Supreme Court’s] more recent cases have, by implication,
overruled an earlier precedent.”). Abbasi changed the
framework of analysis for Bivens claims generally, but not the
existence of the particular right to Bivens relief for prisoner-
on-prisoner violence.

2. Punitive Detention Under the Fifth
Amendment

Bistrian’s claim for damages for punitive detention is a
different matter altogether. Unlike the failure-to-protect
claim, the punitive-detention claim does amount to an
extension of Bivens into a new context, and special factors do
counsel against creating a new Bivens remedy in that context,
so we hold there is no Bivens cause of action for that alleged
violation of the Fifth Amendment.

Citing Carlson and Davis, Bistrian argues that his
punitive-detention claim is not really a Bivens novelty
because the Supreme Court has “expressly extended Bivens
both to the Fifth Amendment, … and to the prison context[.]”
(Bistrian Answering Br. II at 26 (citations omitted).) That
does not hold water. Abbasi expressly warns that, even if
there are “significant parallels to one of the Court’s previous
Bivens cases,” “a modest extension is still an extension.” 137
S. Ct. at 1864. Neither Carlson nor Davis addressed a
constitutional right against punitive detention, and that alone
warrants recognizing this as a new context.

29
 Turning to Abbasi’s second step, the special factors
analysis counsels against extending Bivens to provide a
remedy for punitive detention. Unlike Bistrian’s failure-to-
protect claim, which relates to a specific and isolated event, a
punitive-detention claim more fully calls in question broad
policies pertaining to the reasoning, manner, and extent of
prison discipline. The warden and other prison officials
have—and indeed must have—the authority to determine
detention policies, to assess the endless variety of
circumstances in which those policies may be implicated, and
to decide when administrative detention is deserved and for
how long. See Sandin v. Conner, 515 U.S. 472, 482 (1995)
(observing, in the § 1983 context, that “federal courts ought
to afford appropriate deference and flexibility to state
officials trying to manage a volatile [prison] environment”
and thus should limit “the involvement of federal courts in the
day-to-day management of prisons”). Detention policies and
their application cannot be helpfully reviewed as Bivens
claims. “[C]ourts are ill equipped to deal with the
increasingly urgent problems of prison administration and
reform” because the problems “are complex and intractable,
and, more to the point, they are not readily susceptible of
resolution by decree.” Turner v. Safley, 482 U.S. 78, 84
(1987) (citation omitted). The Bureau of Prisons, not the
judiciary, has the “expertise, planning, and the commitment
of resources” necessary for the difficult task of running a
correctional facility. Id. at 84-85. Consequently, the task of
prison administration “has been committed to the
responsibility of [the legislative and executive] branches, and
separation-of-powers concerns counsel a policy of judicial
restraint.” Id. at 85. Ruling on administrative detention

30
policy matters would unduly encroach on the executive’s
domain.23 See Wetzel v. Edwards, 635 F.2d 283, 288 (4th Cir.
1980) (“It is a rule grounded in necessity and common sense,
as well as authority, that the maintenance of discipline in a
prison is an executive function with which the judicial branch
ordinarily will not interfere.” (citation omitted)).

Besides those serious separation of powers concerns,
recognizing a Bivens remedy would likely cause “an increase
of suits by inmates, increased litigation costs to the
government, and … burdens on individual prison employees
to defend such claims.” (Gibbs Reply Br. at 24.) Heeding the
reasoning in Abbasi, we must be reluctant to “establish whole
categories of cases in which federal officers must defend
against personal liability claims in the complex sphere of
litigation.” 137 S. Ct. at 1858. Therefore, we will reverse the
District Court’s denial of summary judgment with respect to
Bistrian’s punitive-detention claim. It is not a valid Bivens
action.24

23
Bistrian argues that the Supreme Court has already
extended Bivens to the prison setting in Carlson, and thus,
approved of such an encroachment. But medical care issues,
which were at issue in Carlson, do not require analysis of the
reasoning, motivations, or actions of prison officials in the
same way a punitive-detention analysis would. 446 U.S. at
15 n.1. Thus, Carlson did not encroach on the executive
branch in the manner Bistrian seeks.
24
Since we conclude that the punitive detention claim
is not cognizable, we need not address whether any of the
defendants are entitled to qualified immunity with respect to
that claim.

31
 3. Retaliation Under the First Amendment

Likewise, we conclude that Bistrian’s claim for
retaliation under the First Amendment presents a new context
for Bivens and that special factors counsel against allowing
such a claim.

In the heyday of Bivens expansion, we recognized an
implied right to sue federal officials for damages for a
violation of the First Amendment. For example, in Paton v.
La Prade, we held that a high school student could seek a
remedy under Bivens after the FBI created a dossier on her
because she mailed an envelope to the Socialist Workers
Party. 524 F.2d 862, 864-66, 870 (3d Cir. 1975). We later
extended Paton to imply a Bivens remedy under the First
Amendment for the denial of a prisoner’s right of access to
courts. Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir.
1981). More recently, we implied a Bivens remedy for an
inmate’s claim that prison officials retaliated against him for
his exercise of his First Amendment rights. Mack v. Warden
Loretto FCI, 839 F.3d 286, 297 (3d Cir. 2016) (“[W]e reject
the Government’s plea to not ‘extend’ Bivens to Mack’s First
Amendment retaliation claim.”). Since those cases were
decided, however, the Supreme Court issued its opinion in
Abbasi, which clearly communicates that expanding Bivens
beyond those contexts already recognized by the Supreme
Court is disfavored. Abbasi, 137 S. Ct. at 1857. It is Abbasi,
not our own prior precedent, that must guide us now.

The Supreme Court has never recognized a Bivens
remedy under the First Amendment. See Reichle v. Howards,
566 U.S. 658, 663 n.4 (2012) (“We have never held that

32
Bivens extends to First Amendment claims.”). Accordingly,
from the vantage of boundaries set by the Supreme Court,
Bistrian’s First Amendment retaliation claim is novel. We
thus turn to the special factors analysis.

Retaliation claims are based on an adverse action
following the exercise of constitutional rights. Here, Bistrian
alleges that his fourth placement in the SHU was punishment
for complaining about his treatment by prison officials. Like
a punitive detention claim, retaliation claims like this one are
grounded in administrative detention decisions. Whether to
place an inmate in more restrictive detention involves real-
time and often difficult judgment calls about disciplining
inmates, maintaining order, and promoting prison officials’
safety and security. See Sewell v. Pegelow, 291 F.2d 196,
197 (4th Cir. 1961) (stating that courts should not interfere in
prison administration when “particular disciplinary measures
were taken within the normal management of the
institution.”). That strongly counsels restraint, just as in the
punitive-detention context. For the same reasons we reject an
extension of Bivens to that latter context, we reject it here as
well. Such claims must be approached “with skepticism and
particular care” because they are “easily fabricated and …
may cause unwarranted judicial interference with prison
administration.” Holmes v. Grant, No. 03 Civ. 3426 RJH
RLE, 2006 WL 851753, at *14 (S.D.N.Y. Mar. 31, 2006)
(citation omitted) (discussing First Amendment retaliation
claims).

That conclusion aligns with a strong trend in district
courts, post-Abbasi, holding that a Bivens retaliation claim
under the First Amendment should not be recognized. See
Akande v. Philips, No. 1:17-cv-01243 EAW, 2018 WL

33
3425009, at *8 (W.D.N.Y. July 11, 2018) (collecting cases
and noting that “[n]ationwide, district courts seem to be in
agreement that, post-Abbasi, prisoners have no right to bring
a Bivens action for violation of the First Amendment”
(citation omitted)). We agree with that view.

Bistrian’s retaliation claim involves executive policies,
implicates separation-of-power concerns, and threatens a
large burden to both the judiciary and prison officials. We
thus conclude that the special factors analysis prevents an
extension of Bivens to cover such claims. Accordingly, we
will reverse the District Court’s denial of summary judgment
with respect to his retaliation claim.25

V. CONCLUSION

For the foregoing reasons, we will affirm the District
Court’s denial of summary judgment for the defendants on
Bistrian’s failure-to-protect claim but will reverse its decision
with respect to his punitive detention and retaliation claims.

Because we conclude that the retaliation claim is not
25

a recognized Bivens remedy, we again need not address
whether any of the defendants are entitled to qualified
immunity.

34