Marcellas Hoffman v. Preston

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARCELLAS HOFFMAN, No. 20-15396
Plaintiff-Appellant,
D.C. No.
v. 1:16-cv-01617-
LJO-SAB
PRESTON,
Defendant-Appellee,
OPINION
and

D. COYLE; MATEVOISAIN, Warden;
L. T. HAYES; FIELDS, SIA
Investigator,
Defendants.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted February 8, 2021
San Francisco, California

Filed February 28, 2022
2 HOFFMAN V. PRESTON

Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit
Judges, and Lee H. Rosenthal, * District Judge.

Opinion by Chief District Judge Rosenthal;
Dissent by Judge Bea

SUMMARY **

Prisoner Civil Rights

The panel reversed the district court’s dismissal of an
action brought by federal prisoner Marcellas Hoffman
alleging that correctional officer Timothy Preston labeled
him a snitch to other prisoners, offered them a bounty to
assault Hoffman, and failed to protect him from the
predictable assault by another prisoner.

Hoffman sued Preston for violating his Eighth
Amendment rights and sought damages under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). The district court dismissed the action
on the grounds that Hoffman’s claim presented a new Bivens
context, and that special factors cautioned against extending
the Bivens remedy to Hoffman’s claim.

Construing the pro se complaint liberally, the panel held
that Hoffman’s complaint alleged conduct beyond deliberate

*
The Honorable Lee H. Rosenthal, Chief United States District
Judge for the Southern District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 HOFFMAN V. PRESTON 3

indifference. Preston did not merely know of a risk of
substantial harm; he intentionally and knowingly created the
risk. Although this claim of intentional harm was not
squarely presented in the Supreme Court’s Bivens opinions,
Hoffman’s allegations taken as true were only a modest
extension of Bivens. Citing Carlson v. Green, 446 U.S. 14
(1980), the panel reasoned that if the Supreme Court allowed
a guard who is aware of and deliberately indifferent to a
substantial risk that a prisoner will suffer medical harm from
an asthma attack to be sued under Bivens, it was but a modest
extension to allow a suit against a guard who creates the
substantial risk of harm and then allows it to occur.

While Hoffman’s Eighth Amendment claim was
different in some respects from the Eighth Amendment
claim presented in Carlson, no special factors counselled
hesitation against what was a very modest expansion of the
Bivens remedy to this context. The panel noted that
Hoffman would likely not be able to obtain damages from
Preston in a state-law tort suit given that the Westfall Act
accords federal employees absolute immunity from
common-law tort claims arising out of acts they undertake in
the course of their official duties. Here, the Department of
Justice had represented that if Hoffman were to bring a state-
law tort suit against Preston, it was likely the United States
would certify that Preston acted within the scope of
employment. Even if the question did reach a state court, it
would be unclear at best whether that court would find that
Preston acted within the scope of his employment.

If Preston was immune under the Westfall Act, Hoffman
would instead be able to bring a claim against the United
States under the Federal Tort Claims Act. The availability
of a remedy under that Act would not foreclose a parallel
Bivens suit, because the threat of suit against the United
4 HOFFMAN V. PRESTON

States was insufficient to deter the unconstitutional acts of
individuals.

The panel further held that an injunction, a habeas grant,
or other prospective relief was also inadequate to cure the
harm Hoffman already suffered. Hoffman’s claim did not
seek to reform prison management; he did not bring a claim
against an entity, and he did not seek to enjoin or require a
particular prison policy. Hoffman sought damages for the
harm caused to him by the targeted actions of one rogue
prison official.

The panel agreed with the Third Circuit “that
congressional silence in the PLRA about the availability of
Bivens remedies” did not suggest that Congress intended to
make such remedies unavailable. Bistrian v. Levi, 912 F.3d
79, 92-93 (3d Cir. 2018). Finally, allowing this Bivens claim
to proceed did not risk an undue impact on governmental
operations systemwide.

Dissenting, Judge Bea stated that 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. This should have been a straightforward
affirmance of the district court’s judgment. The Supreme
Court has never recognized a remedy for such actions under
Bivens, and multiple “special factors” demonstrated that
Congress, and not the judicial branch, is vested with the
authority to decide whether to extend a damages remedy
against federal officials for the Eighth Amendment
intentional harm claim presented here. And, to date,
Congress has affirmatively decided not to extend the specific
damages remedy requested in this case.
 HOFFMAN V. PRESTON 5

COUNSEL

Laura E. Dolbow (argued) and David M. Zionts, Covington
& Burling LLP, Washington, D.C.; Samuel Weiss, Rights
Behind Bars, Washington, D.C.; for Plaintiff-Appellant.

Philip A. Scarborough (argued), Assistant United States
Attorney; McGregor W. Scott, United States Attorney;
United States Attorney’s Office, Sacramento, California; for
Defendant-Appellee.

OPINION

ROSENTHAL, Chief District Judge:

Marcellas Hoffman, a federal prisoner, alleges that a
correctional officer, Timothy Preston, labeled him a snitch
to other prisoners, offered them a bounty to assault Hoffman,
and failed to protect him from the predictable assault by
another prisoner. Hoffman sued Preston for violating his
Eighth Amendment rights and sought damages under Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Although we recognize that
the Supreme Court has “made clear that expanding the
Bivens remedy is now a ‘disfavored’ judicial activity,” the
Court has also made clear that a remedy may be available for
a case arising in a new Bivens context, so long as “special
factors [do not] counsel[] hesitation.” Ziglar v. Abbasi,
137 S. Ct. 1843, 1857, 1859, 1865 (2017) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 675 (2009)). In Carlson v. Green,
446 U.S. 14, 18–20 (1980), the Court recognized a Bivens
remedy for a violation of the Eighth Amendment prohibition
on cruel and unusual punishment. While Hoffman’s Eighth
Amendment claim is different in some respects from the
6 HOFFMAN V. PRESTON

Eighth Amendment claim presented in Carlson, no special
factors counsel hesitation against what is a very modest
expansion of the Bivens remedy to this context. We
therefore reverse the district court’s Rule 12(b)(6) dismissal
of Hoffman’s pro se complaint for failure to state a claim
under Bivens, and remand for further proceedings.

I.

This appeal comes to us on a motion to dismiss, so we
recount the facts as set out in the complaint. See Dougherty
v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011) (on a
Rule 12(b)(6) motion, “[t]he facts alleged in a complaint are
to be taken as true” (citing Iqbal, 556 U.S. at 679)).

A.

Marcellas Hoffman was housed at U.S. Penitentiary
Atwater, where he worked as a cook. The prison’s warden,
food administrator, and food service assistant approved
Hoffman’s proposal to reduce waste in the food-service
department. Hoffman alleges that Timothy Preston, a
Bureau of Prisons correctional officer at Atwater, was upset
by the proposal and wanted Hoffman removed from the
kitchens. In February 2016, Preston told another
correctional officer, in front of Hoffman and other prisoners,
that “inmates are snitching in the staff dining hall and writing
officers[’] names down who are not paying for meals.”
Hoffman responded, “I am not snitching on no one, if you
are talking about me.” A heated verbal exchange between
Hoffman and Preston ended when Preston put Hoffman in a
 HOFFMAN V. PRESTON 7

holding cell. Preston later moved Hoffman to the Special
Housing Unit. 1

According to Hoffman’s complaint, over the following
months, Preston repeatedly and publicly labeled Hoffman a
snitch. Preston told other prisoners that Hoffman was
reporting both staff and prisoners for not paying for meals;
made it clear that he wanted Hoffman kicked out of the
kitchens; and offered a bounty to specific prisoners to harm
him. These actions worked their intended, predictable result:
on May 16, 2016, another prisoner, Emmanuel Ward,
assaulted Hoffman in his cell. Ward punched Hoffman in
the face, kicked him in the stomach, and smashed his head
into a locker. Hoffman alleges that Ward attacked him “as a
direct result” of Preston labeling Hoffman a snitch. Hoffman
has since been transferred to a different prison, but he
continues to receive threats from prisoners and staff because
of the reputation as a snitch that Preston started and
continued.

B.

This case has a complicated procedural history.
Hoffman filed his first complaint pro se on October 27,
2016. With leave of court and still proceeding pro se, he
amended the complaint on April 11, 2019. The amended
complaint states claims against Preston for retaliation and
cruel and unusual punishment, in violation of the First and

1
Preston also filed an incident report about the verbal exchange
accusing Hoffman of threatening to “whoop [Preston’s] ass.” At the
disciplinary hearing, Hoffman admitted swearing at Preston but denied
threatening him. Officer DeCarie, who witnessed the incident, testified
that Hoffman did not make a threat. The disciplinary charge was
changed from “Threatening Bodily Harm” to the lesser charge of
“Insolence Towards a Staff Member.”
8 HOFFMAN V. PRESTON

Eighth Amendments. Only the Eighth Amendment claim
survived the screening required under the Prison Litigation
Reform Act (“PLRA”). 28 U.S.C. § 1915A(a). On July 18,
2019, Preston moved to dismiss the amended complaint
under Federal Rule of Civil Procedure 12(b)(6), arguing that
Hoffman had failed to state a valid Eighth Amendment claim
under Bivens. 2

On October 11, 2019, the magistrate judge
recommended granting the motion to dismiss, explaining
that under the Supreme Court’s decision in Abbasi, there
were only three cases “in which the Court has approved of
an implied damages remedy under the Constitution itself”:
Bivens, Carlson, and Davis v. Passman, 442 U.S. 228
(1979). Abbasi, 137 S. Ct. at 1854–55. Of those cases, only
Carlson involved a claim under the Eighth Amendment’s
cruel and unusual punishment clause. Because that claim
was “for failure to provide medical care,” id. at 1864, the
judge concluded that it “differ[ed] meaningfully” from
Hoffman’s claim. The judge framed Hoffman’s claim as
deliberate indifference to the risk of, or failure to protect
from, an attack by another prisoner.

The magistrate judge rejected Hoffman’s argument that
the Court recognized a Bivens remedy for failure-to-protect
claims in Farmer v. Brennan, 511 U.S. 825 (1994), because
Farmer was not one of the three cases listed in Abbasi. See
Abbasi, 137 S. Ct. at 1854–55. After deciding that
Hoffman’s claim presented “a new Bivens context,” id.
at 1859, the judge concluded that special factors—the
availability of other remedies, legislative action by
Congress, and the impact on government regulation—

2
Preston did not claim qualified immunity or dispute that the facts
alleged stated an Eighth Amendment violation.
 HOFFMAN V. PRESTON 9

cautioned against extending the Bivens remedy to Hoffman’s
claim. See id. at 1860.

On January 6, 2020, the district court adopted the
magistrate judge’s findings and recommendations in full and
dismissed the action with prejudice. Hoffman timely
appealed.

II.

The district court had jurisdiction over Hoffman’s Bivens
claims under 28 U.S.C. § 1331. We have jurisdiction over
Hoffman’s appeal of the district court’s dismissal under
28 U.S.C. § 1291.

We review the district court’s dismissal for failure to
state a claim de novo. Dougherty, 654 F.3d at 897. We take
all allegations of material fact in the complaint as true and
ask if they “plausibly give rise to an entitlement to relief.”
Id. (quoting Iqbal, 556 U.S. at 679). Pro se complaints are
construed liberally and “held to less stringent standards than
formal pleadings drafted by lawyers.” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010) (citation omitted).

III.

Before determining whether a Bivens remedy is available
for Hoffman’s Eighth Amendment claim, we address the
precise nature of that claim. The district court examined
whether a Bivens remedy was available for Hoffman’s claim
that Preston violated the Eighth Amendment through his
alleged deliberate indifference to Hoffman’s health and
safety as a prison inmate. Hoffman alleged in his complaint
that “Defendant Preston was deliberate in difference [sic]
when [Preston] offered to pay other inmates to harm
[Hoffman] for writing and submitting a Food Service
10 HOFFMAN V. PRESTON

Proposal and for claiming that [Hoffman was] reporting that
staff were not paying for meals,” and that “Defendant
Preston was deliberate indifference [sic] to the potential
harm that Plaintiff would receive by offering other inmates
a reward to harm [Hoffman] and have [Hoffman] removed
from the kitchen.” District Dkt. 42, at 5–6.

Hoffman’s complaint, however, does not allege that
Preston was merely indifferent to his harm. Instead,
Hoffman alleges that Preston took affirmative steps to target
Hoffman for harm by repeatedly and publicly labeling him a
snitch and offering a reward to other inmates to harm him.
Hoffman alleges that “Preston was supposed to protect
[Hoffman] from inmate assaults, but he instead encouraged
the inmates to harm Plaintiff and offered to pay them to doit
[sic].” District Dkt. 42, at 6 (emphasis added). Hoffman
also alleges that “Preston violated [his] right to be free from
intentional harm caused by [Preston].” Id. at 5.

We construe pro se complaints liberally and “afford the
petitioner the benefit of any doubt.” Hebbe, 627 F.3d at 342.
A generous approach is not required to read Hoffman’s
complaint as alleging conduct beyond “deliberate
indifference.” “Deliberate indifference” would mean that
Preston failed to protect Hoffman from a known risk of
substantial harm. Preston did not merely know of a risk of
substantial harm; he intentionally and knowingly created the
risk. Although this claim of intentional harm is not squarely
presented in the Supreme Court’s Bivens opinions,
Hoffman’s allegations taken as true are only a modest
extension of Bivens. If the Supreme Court has allowed a
guard who is aware of and deliberately indifferent to a
substantial risk that a prisoner will suffer medical harm from
an asthma attack to be sued under Bivens, it is but a modest
extension to allow a suit against a guard who creates the
 HOFFMAN V. PRESTON 11

substantial risk of harm and then allows it to occur. We find
no special factors that counsel against allowing a Bivens
remedy in this context. We reverse. 3

A.

In Bivens, the Supreme Court recognized, for the first
time, an implied cause of action arising directly under the
Constitution for damages against federal officers alleged to
have violated a plaintiff’s constitutional rights. 403 U.S.
at 389. The Bivens Court specifically held that damages
were recoverable against federal officers who violated the
Fourth Amendment’s prohibition against unreasonable
searches and seizures. Id. In the following decade, the Court
explicitly extended the Bivens remedy in two other cases:
Davis recognized an implied damages claim under the Fifth
Amendment’s due process clause for gender discrimination
by a member of the United States Congress, 442 U.S. at 230;
and Carlson recognized an implied claim under the Eighth
Amendment’s cruel and unusual punishment clause for
prison officials’ failure to provide adequate medical care,
446 U.S. at 16–18 & n.1.

In Abbasi, the Court instructed lower courts first to
determine whether the case presents “a new Bivens context”
by asking whether “the case is different in a meaningful way
from previous Bivens cases decided by [the Supreme]

3
Preston also urges us to affirm on the ground that Hoffman did not
administratively exhaust his claim. However, Preston did not present
this nonexhaustion theory in his motion to dismiss the current operative
complaint, and at no point in the litigation did he previously raise a
nonexhaustion defense as to Hoffman’s “snitch” claim. Because
nonexhaustion was not properly raised before the district court, we do
not reach it here. See Mansourian v. Regents of Univ. of Cal., 602 F.3d
957, 974 (9th Cir. 2010).
12 HOFFMAN V. PRESTON

Court.” 137 S. Ct. at 1859. While not an exhaustive list,
some meaningful differences creating a new context 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; the risk of disruptive intrusion by
the Judiciary into the functioning of other
branches; or the presence of potential special
factors that previous Bivens cases did not
consider.

Id. at 1860. A new Bivens context is defined broadly, see
Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)
(“Hernandez II”), but “trivial” differences do not “suffice to
create a new Bivens context,” Abbasi 37 S. Ct. at 1865. If
the case falls within a previously established context, the
Bivens remedy is available. Id. at 1859–60; see also
Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018).

If the case presents a new Bivens context, the next step is
to ask whether “special factors counsel[] hesitation” against
allowing the remedy in that context. Abbasi, 137 S. Ct.
at 1857 (quoting Carlson, 446 U.S. at 18). The Court has
not specified factors to consider, but instead generally
instructed lower courts to “concentrate on whether the
Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed.” Id. at 1857–58.
“Thus, to be a ‘special factor counselling hesitation,’ a factor
must cause a court to hesitate before answering that question
 HOFFMAN V. PRESTON 13

in the affirmative.” Id. at 1858. This analysis varies
depending on the facts, but it often includes considering the
availability of alternative remedies, the impact on
government operations, and whether “Congress has
designed its regulatory authority in a guarded way.” Id.; see
also Lanuza, 899 F.3d at 1028.

B.

The facts Hoffman alleges in his Eighth Amendment
Bivens claim are different than the factual basis of the
Carlson claim. In Carlson, the Supreme Court recognized a
Bivens remedy against individual prison officials for their
“violation of the Eighth Amendment’s proscription against
infliction of cruel and unusual punishment.” 446 U.S. at 17.
Carlson involved prison officials’ failure to provide a
severely asthmatic prisoner with adequate medical care. Id.
at 16 n.1. The prisoner’s mother alleged that the officials
were “fully apprised” of his condition and yet kept him at a
grossly inadequate medical facility, gave him the wrong
treatments, and failed to provide competent medical
attention for hours after an asthma attack. Id. The prisoner
died as a result of these acts and omissions. Id. The lower
courts held that the plaintiff had successfully pleaded an
Eighth Amendment violation under Estelle v. Gamble,
429 U.S. 97 (1976) and a cause of action for damages under
Bivens, and the Supreme Court affirmed. Carlson, 446 U.S.
at 17–18.

Recently, this circuit considered whether Carlson
created a blanket rule that applied to all Eighth Amendment
claims or whether certain Eighth Amendment claims might
still present new Bivens contexts. In Martinez v. U.S. Bureau
of Prisons, 830 F. App’x 234, 235 (9th Cir. 2020), a
previously incarcerated plaintiff sought a Bivens remedy
under Carlson for an Eighth Amendment claim for
14 HOFFMAN V. PRESTON

inadequate exercise. Martinez, 830 F. App’x at 235.
Although both the claims in Martinez and those in Carlson
arose under the Eighth Amendment, the court affirmed in an
unpublished disposition the district court’s finding that the
Martinez claim was a “new context,” because the inadequate
exercise claim was “demonstrably different in kind . . . from
that of Carlson.” Martinez v. Bureau of Prisons, 5:15-cv-
02160, 2019 WL 5432052, at *8 (C.D.C. Aug. 20, 2019); see
also Quintero Perez v. U.S., No. 17-56610, 2021 WL
3612108 (9th Cir. 2021) (case involving an officer fatally
shooting a Mexican national at the border was “‘different in
a meaningful way’” from Bivens, which involved an officer
arresting the plaintiff in, and searching, his home) (quoting
Abassi, 137 S. Ct. at 1859)).

Hoffman’s claim arises in a new context because it is
different in a modest way from that of the plaintiff in
Carlson. Hoffman alleges that Preston labeled him a
“snitch” and offered to pay other inmates to beat him. The
Carlson defendants kept the prisoner in an inadequate
medical facility, gave him the wrong treatments, and failed
to provide competent medical attention for hours after an
asthma attack. 446 U.S. at 16 n.1. The actions of the
defendants in both Carlson and in the present case caused
serious harm to each of the prisoners. 446 U.S. at 16 n.1.
The actions are, however, sufficiently different to treat
Hoffman’s claims as a modest extension beyond Carlson.
Martinez, 830 F. App’x at 235.

IV.

Having recognized that this claim presents a new Bivens
context because it involves a factually different Eighth
Amendment claim than Carlson, we hold that special factors
do not counsel hesitation against allowing a Bivens remedy
for a federal prison inmate alleging that a prison guard
 HOFFMAN V. PRESTON 15

intentionally targeted him for harm and failed to protect him
from the predictable harm that resulted. 4 See Lanuza,
899 F.3d at 1028 (“Abbasi makes clear that, though
disfavored, Bivens may still be available in a case against an
individual federal officer who violates a person’s
constitutional rights while acting in his official capacity.”).

A.

A primary special factor counseling hesitation in
extending Bivens to a new context is the availability of
alternative remedies that sufficiently “protect[] the [injured
party’s] interest.” Abbasi, 137 S. Ct. at 1858 (second
alteration in original) (quoting Wilkie v. Robbins, 551 U.S.
537, 550 (2007)). Other remedies potentially available to
Hoffman do not adequately “redress [Hoffman’s] alleged
harm,” and therefore do not caution against expansion. See
Bistrian, 912 F.3d at 92; see also Carlson, 446 U.S. at 18–
19 (Bivens remedy is available unless Congress has provided
“equally effective” alternative relief).

1.

Hoffman would likely not be able to obtain damages
from Preston in a state-law tort suit. The Supreme Court has

4
In Boule v. Egbert, 998 F.3d 370, 387 (9th Cir. 2021), we similarly
held that special factors did not counsel against the “modest extension”
of the remedy to a Fourth Amendment excessive-force claim against a
border control agent. The Supreme Court recently granted certiorari in
that case on “whether a cause of action exists under Bivens for First
Amendment retaliation claims,” and “whether a cause of action exists
under Bivens for claims against federal officers engaged in immigration-
related functions for allegedly violating a plaintiff’s Fourth Amendment
rights.” The border context of that case distinguishes it from the facts
alleged here. The Court notably did not grant certiorari on Egbert’s third
proposed question: “Whether the Court should reconsider Bivens.”
16 HOFFMAN V. PRESTON

already recognized that in suits against federal officers,
state-law tort actions do not generally provide an alternative
remedy, because under the Westfall Act, “[p]risoners
ordinarily cannot bring state-law tort actions against
employees of the Federal Government.” Minneci v. Pollard,
565 U.S. 118, 126 (2012) (emphasis in original) (citing
28 U.S.C. §§ 2671, 2679(b)(1)). The dissent argues that
despite this general rule, Hoffman can bring a state-law tort
suit because Preston was not acting within the “scope of his
employment” during the alleged incidents. This argument is
inconsistent with the Westfall Act, California state law, and
the representations the Department of Justice made in this
case on Preston’s behalf.

The Westfall Act “accords federal employees absolute
immunity from common-law tort claims arising out of acts
they undertake in the course of their official duties.” Osborn
v. Haley, 549 U.S. 225, 229 (2007). When a state-law tort
suit is brought against a federal employee for actions taken
within the “scope of his office or employment,” the United
States is substituted as the defendant and the claim must
proceed in federal court under the Federal Tort Claims Act.
Id. at 230; see 28 U.S.C. § 2679(d)(4). There are two ways
to establish that an employee was acting within the scope of
his employment: (a) the Attorney General can so certify,
8 U.S.C. § 2679(d)(1), (2); or (b) if the Attorney General
refuses, the employee can petition the trial court for
certification, id. § 2679(d)(3). The Attorney General’s
certification is conclusive for removal purposes, id.
§ 2679(d)(2), while a state court’s certification can be
challenged after the case is removed to federal court, id.
§ 2679(d)(3).

The Department of Justice has represented that if
Hoffman were to bring a state-law tort suit against Preston,
 HOFFMAN V. PRESTON 17

“it is likely the United States would . . . certify that Preston
acted within the scope of employment.” The Attorney
General determines that certification is proper based “on an
understanding of the facts that differs from the plaintiff’s
allegations” in the complaint—including a defendant’s
denial of the underlying incidents. Osborn, 549 U.S. at 231.
Preston has denied the allegations, and the Attorney General,
through his designee, has approved Hoffman’s direct
representation by the Department of Justice, according to the
government’s letter brief filed on April 13, 2021. Such a
representation is approved only “when the actions for which
[Department of Justice] representation is requested
reasonably appear to have been performed within the scope
of the employee’s employment.” 28 C.F.R. § 50.15(a).

The Assistant U.S. Attorney has also repeatedly asserted
that Hoffman could obtain a remedy under the Federal Tort
Claims Act, which would be true only if Preston acted within
the scope of his employment during the alleged acts. See
28 U.S.C. § 1346(b)(1). As Preston acknowledges, in these
circumstances it would be quite odd if the Attorney General
did not certify that Preston was acting within the scope of his
employment for Westfall Act purposes, should the question
arise.

Even if the question did reach a state court, it would be
unclear at best whether that court would find that Preston
acted within the scope of his employment. An officer’s
scope of employment for Westfall Act purposes is
determined by applying “the principles of respondeat
superior of the state in which the alleged tort occurred”—
here, California. Saleh v. Bush, 848 F.3d 880, 889 (9th Cir.
2017) (citation omitted). Under California law, it is “well
established” that “an employee’s willful, malicious and even
criminal torts may fall within the scope of his or her
18 HOFFMAN V. PRESTON

employment for purposes of respondeat superior,” Lisa M.
v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 291, 296
(1995) (citations omitted), so long as there is a causal
“nexus” between the tortious conduct and the employment,
Xue Lu v. Powell, 621 F.3d 944, 948 (9th Cir. 2010).

California courts, and federal courts applying California
law, have often found that employees were—or could have
been—acting within the scope of their employment when
they committed intentional torts. See, e.g., Doe v. Bridges
to Recovery, LLC, No. 2:20-CV-00348-SVW, 2021 WL
1321652, at *3–4 (C.D. Cal. Mar. 8, 2021) (a reasonable
juror could find that a medical technician who sexually
assaulted a patient was acting within the scope of
employment); Heidari-Mojaz v. Arreguin, No. CV 20-154-
CBM-SHK(X), 2020 WL 6541991, at *2 (C.D. Cal.
Sept. 18, 2020) (an employee who punched a customer was
acting within the scope of employment); Xue Lu, 621 F.3d
at 948–49 (an immigration officer who solicited bribes from
an asylum applicant and sexually assaulted her acted within
the scope of employment); Mary M. v. City of Los Angeles,
814 P.2d 1341, 1347–52 (Cal. 1991) (en banc) (finding
factual disputes material to determining whether a police
officer who sexually assaulted the plaintiff acted within the
scope of employment).

If Hoffman were to bring a state-law tort suit, and the
Attorney General chose not to certify, the state court might
conclude that Preston was acting outside the scope of his
employment. But this remote possibility is too flimsy a basis
to conclude that a state tort remedy is so obviously
“available” to Hoffman that we should hesitate in extending
a Bivens remedy. Cf. Pollard, 565 U.S. at 125–26 (no Bivens
remedy was available against a privately employed guard
working in a federal prison, because a state-law tort claim
 HOFFMAN V. PRESTON 19

was clearly available against the guard, in contrast to a
federally employed prison employee).

2.

If Preston is immune under the Westfall Act, Hoffman
would instead be able to bring a claim against the United
States under the Federal Tort Claims Act. 28 U.S.C.
§ 2679(d)(4). The availability of a remedy under that Act
does not foreclose a parallel Bivens suit, because “the threat
of suit against the United States [is] insufficient to deter the
unconstitutional acts of individuals.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 67–68 (2012) (citing Carlson,
446 U.S. at 21). In Carlson, the Court noted that it is “crystal
clear that Congress views FTCA and Bivens as parallel,
complementary causes of action.” 446 U.S. at 20; see also
id. at 23 (“Plainly [the] FTCA is not a sufficient protector of
the citizens’ constitutional rights, and without a clear
congressional mandate we cannot hold that Congress
relegated respondent exclusively to the FTCA remedy.”).
The intervening years have not changed that conclusion. See
Hernandez II, 140 S. Ct. at 748 n.9 (“Congress made clear
that it was not attempting to abrogate Bivens” by enacting
the Federal Tort Claims Act.); see also Williams v. Baker,
487 F. Supp. 3d 918, 929 (E.D. Cal. 2020) (“The Supreme
Court has not repudiated its holding that the FTCA ‘is not a
sufficient protector of the citizens’ constitutional rights,’ and
this court remains bound by it.”) (quoting Carlson, 446 U.S.
at 23).

3.

An injunction, a habeas grant, or other prospective relief
is also inadequate to cure the harm Hoffman already
suffered. See, e.g., Abbasi, 137 S. Ct. at 1862 (“[I]ndividual
instances of discrimination or law enforcement overreach,
20 HOFFMAN V. PRESTON

. . . due to their very nature are difficult to address except by
way of damages actions after the fact.”); Bistrian, 912 F.3d
at 92 (remedies that “give[] no retrospective relief” do not
properly address the harm once a prisoner has been
assaulted); Reid, 825 F. App’x at 445 (injunctive relief “does
nothing to cure the damage [a plaintiff] already suffered”).
Injunctive relief would be ineffective for, and unavailable to,
Hoffman, as he has been moved to a different facility and is
no longer in contact with Preston. See, e.g., Dilley v. Gunn,
64 F.3d 1365, 1368 (9th Cir. 1995).

The dissent argues that the Supreme Court has precluded
extending a Bivens remedy when any administrative or
injunctive relief is, or was, available to the plaintiff—no
matter how meaningless that relief would be to address the
harm suffered. But the Supreme Court has not taken the
approach that the dissent suggests. Instead, the Court has
laid out a fact-specific inquiry, recognizing that when the
relief sought affects important aspects of prison
management, or when the relief is sought to deter entities,
rather than individuals, from acting unconstitutionally, the
plaintiff should seek an injunction. When the relief is sought
to deter individuals from inflicting harm and that relief does
not implicate prison policy or management, damages are
appropriate. See Malesko, 534 U.S. at 74.

In Malesko, the Court explained that the availability of
administrative and injunctive relief was a factor counseling
against extending Bivens to an Eighth Amendment claim
brought against a private prison operator. A Bivens remedy
was not a proper vehicle for deterring the acts of an entity,
as opposed to the acts of an individual federal officer.
Unlike the damages sought against individual federal
officers, as in Carlson and Boule and here, “injunctive relief
 HOFFMAN V. PRESTON 21

has long been recognized as the proper means for preventing
entities from acting unconstitutionally.” Id.

In Abbasi, the respondents were former detainees at the
Metropolitan Detention Center in Brooklyn, New York
under a “hold-until-cleared” policy. 137 S. Ct. at 1852–53.
Under the policy, the FBI would hold undocumented persons
indefinitely while completing investigations to determine
whether the detainees were connected to terrorists. Id. After
suffering alleged abuse and harsh confinement conditions,
the respondents brought two sets of Bivens claims against
executive officials and wardens at the Detention Center. The
Abbasi Court’s rejection of the Bivens claims against the
executive officials turned in part on recognizing that
injunctive relief, not damages, is the right relief to reform an
entity’s policies. 137 S. Ct. at 1860. The Abbasi remand of
the claims against the warden also raised this concern, noting
that “an injunction requiring the prison warden to bring his
prison into compliance with [the prison] regulations” may
have been available. 137 S. Ct. at 1865.

Carlson is the one Supreme Court Bivens case that has
involved claims against individual federal prison guards for
their mistreatment of an inmate. The Carlson Court did not
hold that the availability of some form of injunctive relief
counseled against a Bivens remedy. The dissent asserts that
“it must be emphasized that no injunctive relief was possible
in Carlson, given that there, the prisoner died, whereas here,
Hoffman lives on.” Dissent at 43. In Carlson, the plaintiff
inmate had died from the medical problems that the federal
officers had failed to respond to, so the suit was brought by
the estate. Hoffman survived the attack by inmates that the
federal officer had instigated. But the twin purposes of a
damages remedy—to deter the offender and to make the
victim whole—are even more effective while the victim
22 HOFFMAN V. PRESTON

lives. See Malesko, 534 U.S. at 70 (“The purpose of Bivens
is to deter individual federal officers from committing
constitutional violations.”). The Dissent implies Carlson
may have had a different outcome had the plaintiff inmate
survived, but failure-to-provide-medical-care Bivens claims
modeled after the claim in Carlson are routinely brought and
maintained by current and former inmates who are still alive.
See, e.g., Jiau v. Tews, No. 13-cv-04231-YGR (PR), 2021
WL 2913549, at *8 (N.D. Cal. July 12, 2021); Van Gessel v.
Moore, 1:18-cv-01478-DAD-GSA-PC, 2020 WL 905216, at
*8–9 (E.D. Cal. Feb. 25, 2020); Lewis v. Ives, No. 3:18-cv-
00184-MK, 2020 WL 2761024, at *5 (D. Or. Feb. 12, 2020);
Harris v. Lappin, No. EDCV 06–00664 VBF (AJW), 2009
WL 789756, at *1, 10–11 (C.D. Cal. Mar. 19, 2009);
Lictenberg v. United States, No. 10–00353 SOM–BMK,
2011 WL 322552, at *2 (D. Hawaii Jan. 27, 2011). 5

Hoffman’s claim does not seek to reform prison
management. Hoffman does not bring a claim against an
entity, and he does not seek to enjoin or require a particular
prison policy. Hoffman seeks damages for the harm caused
to him by the targeted actions of one rogue prison official.

Finally, the internal BOP grievance process is not a
sufficient alternative to a damages remedy under Bivens. On
its face, the grievance process is not intended as a substitute
for a federal suit: the PLRA makes clear that a prisoner may
bring a federal action after he exhausts the grievance
process. 42 U.S.C. § 1997e(a). The Supreme Court has

5
See also Chapman v. Santini, 805 Fed. App’x. 548, 551, 554 (10th
Cir. Feb. 13, 2020); Koprowski v. Baker, 822 F.3d 248, 249–50, 257 (6th
Cir. 2016); Scinto v. Stansberry, 841 F.3d 219, 224, 236–37 (4th Cir.
2016); Whitley v. Hunt, 158 F.3d 882, 887–88 (5th Cir. 1998), abrogated
on other grounds, Booth v. Churner, 532 U.S. 731 (2001).
 HOFFMAN V. PRESTON 23

acknowledged as much, explaining that “federal prisoners
suing under [Bivens] must first exhaust inmate grievance
procedures.” Porter v. Nussle, 534 U.S. 516, 524 (2002).
The purpose of this exhaustion requirement is to “promote
administrative redress, filter out groundless claims, and
foster better prepared litigation of claims aired in court,” id.
at 528 (citation omitted)—not to exclude from federal court
meritorious claims that cannot be resolved by the grievance
process. This makes sense: when a prisoner is physically
injured due to an officer’s unconstitutional actions, the harm
can “only be remedied by money damages,” which are not
available through the BOP grievance process. Bistrian,
912 F.3d at 92 (citation omitted); see also Bivens, 403 U.S.
at 410 (Harlan, J., concurring) (the remedy is available for
cases in which “it is damages or nothing”).

B.

Courts should hesitate to extend the Bivens remedy into
a new context when “legislative action suggest[s] that
Congress does not want a damages remedy.” Abbasi, 137 S.
Ct. at 1865; see, e.g., Hernandez II, 140 S. Ct. at 739
(“Congress has been notably hesitant to create claims based
on allegedly tortious conduct abroad.”). We agree with the
Third Circuit “that congressional silence in the PLRA about
the availability of Bivens remedies” does not suggest that
Congress intended to make such remedies unavailable.
Bistrian, 912 F.3d at 92–93.

The touchstone is whether “there are sound reasons to
think Congress might doubt the efficacy or necessity of a
damages remedy as part of the system for enforcing the law
and correcting a wrong.” Abbasi, 137 S. Ct. at 1858.
Congress passed the PLRA in 1996, 16 years after the
Supreme Court decided Carlson. The law did not explicitly
create a stand-alone monetary damages remedy against
24 HOFFMAN V. PRESTON

federal correctional officers, but it did not explicitly disallow
one either. See 42 U.S.C. § 1997e; Abbasi, 137 S. Ct.
at 1865. The district court, Preston, and the dissent rely on
Abbasi’s discussion of the PLRA to conclude that
Congress’s failure to explicitly provide a damages remedy
“precludes an implied remedy.” Dissent at 46. But Abbasi
says only that “[i]t could be argued” that the PLRA’s failure
to provide a stand-alone damages remedy “suggests” that
“Congress chose not to extend the Carlson damages remedy
to cases involving other types of prisoner mistreatment.”
137 S. Ct. at 1865 (emphasis added). We do not dispute that
this argument can be made, but we find it unpersuasive.

The PLRA “attempts to eliminate unwarranted federal-
court interference with the administration of prisons” by
“affor[ding] corrections officials time and opportunity to
address complaints internally before allowing the initiation
of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006)
(emphasis added) (quoting Nussle, 534 U.S. at 525).
Congress would have been aware when drafting the PLRA
that prisoners were bringing failure-to-protect claims under
Bivens. See, e.g., Gillespie, 629 F.2d 637 (decided 16 years
before PLRA enactment); Farmer, 511 U.S. 825 (decided
two years before PLRA enactment). Congress did not and
has not disallowed additional Bivens remedies. See Brown
v. Gardner, 513 U.S. 115, 121 (1994) (“Congressional
silence ‘lacks persuasive significance.’” (citations omitted)).

Given its general purpose, the PLRA is best read as
reflecting congressional “intent to make more rigorous the
process prisoners must follow” before bringing a federal
damages lawsuit, rather than a desire to prevent prisoners
from seeking damages in federal court altogether. Bistrian,
912 F.3d at 93. The text supports this conclusion. The
PLRA states that “[n]o action shall be brought with respect
 HOFFMAN V. PRESTON 25

to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The PLRA slows down the processing of claims
until administrative remedies are exhausted; it does not
foreclose available remedies after exhaustion is complete,
nor is it plausibly read as suggesting that possibility.

The PLRA also provided courts with explicit authority
to act without motion to dismiss frivolous and meritless
motions:

The court shall on its own motion or on the
motion of a party dismiss any action brought
with respect to prison conditions under
section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison,
or other correctional facility if the court is
satisfied that the action is frivolous,
malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief
from a defendant who is immune from such
relief.

42 U.S.C. § 1997e(c)(1). Congress recognized that in some
instances, defendants may be immune from monetary relief
in suits relating to prison conditions, but Congress did not
define when this immunity applies. Other parts of the PLRA
specify when attorneys’ fees are appropriate, the conditions
for recovering mental or emotional damages, the types of
hearings required for pretrial proceedings, and when the
defendant has waived a reply. 42 U.S.C. § 1997e(d)–(g).

The PLRA’s purpose and text lead to the conclusion that
it is a statute about process, not the substantive requirements
26 HOFFMAN V. PRESTON

for relief. See Nussle, 534 U.S. at 524 (requiring PLRA
exhaustion for federal prisoners’ Bivens actions). The PLRA
does not overhaul the remedies available to incarcerated
plaintiffs after they satisfy process requirements to seek
those remedies. Cf. Chappell v. Wallace, 462 U.S. 296, 304
(1983) (rejecting a Bivens claim brought by military
personnel when Congress had already enacted a
comprehensive scheme for grievances, governing both
process and remedies). No significant meaning can be
attributed to the fact that Congress said nothing about the
availability or unavailability of monetary damages to
incarcerated plaintiffs. Cf. AMG Capital Mgmt., LLC v.
FTC, 141 S. Ct. 1341, 1351 (2021) (“[W]hen ‘Congress has
not comprehensively revised a statutory scheme but has
made only isolated amendments . . . [i]t is impossible to
assert with any degree of assurance that congressional failure
to act represents affirmative congressional approval of [a
court’s] statutory interpretation.’”); Midlantic Nat’l Bank v.
N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986) (“The
normal rule of statutory construction is that if Congress
intends for legislation to change the interpretation of a
judicially created concept, it makes that intent specific.”).

The PLRA does not provide “sound reasons to think
Congress might doubt the efficacy or necessity of a damages
remedy” here. Abbasi, 137 S. Ct. at 1858 (citation omitted).
Preston suggests no other legislative action that would cause
us to hesitate.

C.

Finally, we agree with the district court that allowing this
Bivens claim to proceed does not risk an undue “impact on
governmental operations systemwide.” Abbasi, 137 S. Ct.
at 1858. Generally, “a Bivens claim is brought against the
individual official for his or her own acts,” with the purpose
 HOFFMAN V. PRESTON 27

“to deter the officer” from further unconstitutional actions.
Id. (emphasis in original) (quoting F.D.I.C. v. Meyer,
510 U.S. 471, 485 (1994)). As discussed, this case falls
squarely within that central Bivens purpose and does not
threaten judicial overreach into the operation of another
branch.

Preston’s arguments to the contrary are unavailing. He
asserts that Hoffman’s claim interferes with internal prison
disciplinary proceedings because the alleged constitutional
violation is “intertwined” with the disciplinary citation
Preston issued to Hoffman. This argument is clearly
incompatible with the purpose and history of Bivens actions.
By Preston’s logic, any time a corrections officer initiated a
disciplinary matter, no matter how unfounded or retaliatory,
a Bivens claim would be precluded. This is simply not the
kind of interference with other branches that concerned the
Supreme Court in Abbasi.

This case does not impact national security or raise
cross-border concerns that clearly counsel against a Bivens
remedy. See Hernandez II, 140 S.Ct. at 749 (“We have
declined to extend Bivens where doing so would interfere
with the system of military discipline created by statute and
regulation, and a similar consideration is applicable here.
Since regulating the conduct of agents at the border
unquestionably has national security implications, the risk of
undermining border security provides reason to hesitate
before extending Bivens in this field.” (internal citations
omitted)); see also Abbasi, 137 S.Ct. at 186; cf. Lanuza,
899 F.3d at 1028–29 (allowing the extension of Bivens for a
plaintiff whose claim “d[id] not challenge high-level
executive action” or “seek to alter the policy of the political
branches”).
28 HOFFMAN V. PRESTON

Nor does Hoffman challenge prison administration or
policies. Prisoners generally bring three categories of Bivens
claims: 1) challenges to the conditions of their confinement;
2) challenges to the use of force by prison guards; and
3) claims that officers were deliberately indifferent to the
health and safety of inmates. Each of these Eighth
Amendment claims can pose separation of powers concerns
when the harm caused is the result of broader prison policies
and administration, or when a Bivens remedy might lead to
the alteration of prison policies and administration. As the
Supreme Court has emphasized, “[p]rison administration” is
“a task that has been committed to the responsibility of [the
legislative and executive] branches, and separation of
powers concerns counsel a policy of judicial restraint.”
Turner v. Safley, 482 U.S. 78, 84–85 (1987).

The allegations and claim in this case are similar to the
second category—alleging excessive force by prison
guards—but the allegations are not that a corrections officer
used excessive force against an inmate in an attempt to
maintain discipline or prison security. The Bivens claim here
is based on allegations that a corrections officer intentionally
harmed the plaintiff by bribing and inciting other prisoners
to use force against him. The allegations and claim in this
case are also similar to the third category—deliberate
indifference—but the allegations are not that the corrections
officer failed to protect an inmate from a known harm that
the officer himself did not create (like a prisoner’s proneness
to asthma attacks). The Bivens claim here is based on
allegations that a corrections officer created the risk of harm
and then failed to protect the plaintiff from that harm. The
claim, if it were to succeed, would punish the officer for acts
certainly prohibited by the prison administration’s rules
(bribing inmates to inflict harm on other inmates), and it
would not insert the court into broad or sensitive areas of
 HOFFMAN V. PRESTON 29

prison administration, such as the way the prison permits
officers to use force against inmates or the way the prison
houses inmates.

The propriety of this Bivens claim is made even clearer
when compared to claims by inmates for which courts have
permitted a Bivens remedy. Recently, the Third Circuit
upheld a Bivens remedy for an officer’s failure to protect a
prisoner from a substantial risk of harm at the hands of
another prisoner. In Bistrian v. Levi, 912 F.3d 79 (3d Cir.
2018), an inmate, Peter Bistrian, cooperated with two prison
officials in a “surveillance operation in which Bistrian
secretly passed inmate notes to prison officials.” Id. at 84.
Eventually, due to a slip-up by Bistrian, inmates learned of
Bistrian’s cooperation. Bistrian “received multiple threats
and made prison officials aware of them.” Id. “Despite [the
defendants’] knowledge of the threats against Bistrian, . . .
prison officials placed him in the recreation yard where” the
inmates whom Bistrian had been surveilling were waiting.
Those inmates “proceeded to brutally beat Bistrian,” while
the officers watched and did not intervene until “the damage
was done.” Id. “Bistrian suffered severe physical and
psychological injuries.” Id. 6

The defendants argued that separation of powers
principles counseled against a Bivens remedy, but the court
disagreed. Id. at 93. The court noted that “Bistrian’s claim
fits squarely within Bivens’ purpose of deterring misconduct
by prison officials,” because “Bistrian’s claim challenges

6
In Bistrian, the Third Circuit found that a claim for failure to
protect an inmate from a known risk of substantial harm does not arise
in a new Bivens context even when brought by pretrial detainees under
the Fifth Amendment. 912 F.3d at 88. This case does not present that
question, and we do not reach it.
30 HOFFMAN V. PRESTON

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 intervene
when he was being savagely beaten.” Id.

In Bistrian, the defendant officers did not provoke the
inmates to attack Bistrian, but they knowingly placed him in
a situation that they knew would result in harm, and they
then failed to protect him from that harm. Hoffman’s claim
goes one step further, alleging that Preston not only failed to
protect Hoffman from a known risk of harm, but also
provoked inmates to harm him in the first place. A Bivens
remedy would do more than ensure that officials do not forgo
their responsibility “to protect prisoners from violence at the
hands of other prisoners.” Farmer v. Brennan, 511 U.S 825,
833 (1994). It would ensure that officials also do not
instigate that violence.

The dissent’s worry that allowing a Bivens remedy in this
case will open a floodgate of claims against “countless
decisions taken by prison officials,” is misplaced. We write
far more narrowly. A Bivens claim may proceed on
allegations that an individual officer intentionally targeted
an inmate for harm by spreading malicious rumors about and
offering bribes to attack him, the inmate was attacked
because of the officer’s conduct, and the officer failed to
protect the inmate against the known risk of harm that the
officer himself created. 7 We take no further, and certainly

7
If, after discovery, there is no evidence supporting that Hoffman’s
attacker acted because of Preston’s conduct, then Hoffman would not
have an available Bivens claim. There are no allegations that Preston
had knowledge of a risk of harm to Hoffman that arose independent of
Preston’s conduct. See Farmer, 511 U.S. at 844 (“[P]rison officials who
lack[] knowledge of a risk cannot be said to have inflicted punishment.”).
 HOFFMAN V. PRESTON 31

no broader, position on the scope of claims against prison
officials that might otherwise warrant a Bivens remedy.

In sum, although this case represents a modest extension
of Bivens, no special factors caution against extending the
remedy to encompass this well-established claim, brought
against a single rogue officer under the same constitutional
provision applied in a well-recognized Supreme Court
Bivens case. Simply put, “if the principles animating Bivens
stand at all, they must provide a remedy” here. Lanuza,
899 F.3d at 1021.

V.

For the reasons stated above, the district court’s
dismissal is REVERSED and REMANDED for further
proceedings consistent with this opinion.

BEA, Circuit Judge, dissenting:

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
32 HOFFMAN V. PRESTON

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. Unfortunately, my colleagues dismiss the
Supreme Court’s clear instructions by permitting this case to
move forward as a Bivens cause of action. The majority
prunes partial quotes from Hernandez and Abbasi to present
a veneer of faithfulness to binding precedent. But do not be
fooled: their reasoning and conclusions cannot be squared
with modern Bivens jurisprudence. 1

While the majority recognizes this case arises in a new
Bivens context, they err in holding that no “special factors”
counsel against implying a new remedy for this Eighth
Amendment claim, an Eighth Amendment intentional harm
claim that is more than just a “modest extension” of Carlson.

1
See Hernandez v. Mesa, 140 S. Ct. 735 (2020); Ziglar v. Abbasi,
137 S. Ct. 1843 (2017).
 HOFFMAN V. PRESTON 33

Congress has determined that a judicially administered
damages regime against federal officials in their individual
capacity is not the best way to protect the constitutional
rights of federal prisoners. The existence of alternative
remedies, repeated refusal to extend a damages remedy, and
the complex regulatory regime governing prison
administration all counsel against extending Bivens here.

Because I fear the majority oversteps the constitutional
separation of powers and puts our circuit in danger of yet
another reversal, I respectfully dissent.

I. Factual Background

Marcellus Hoffman is a federal prison inmate formerly
housed at the U.S. Penitentiary in Atwater, California.
Hoffman sued Officer Timothy Preston of the Federal
Bureau of Prisons (“BOP”) in the U.S. District Court for the
Eastern District of California for intentionally instigating
other prisoners to attack him. According to the complaint, 2
Preston accused Hoffman in front of other inmates of
“snitching” on BOP officers for stealing lunches from the
prison cafeteria and offered to pay inmates to beat Hoffman
in retaliation for Hoffman’s opposition to the thefts. This
intentional conduct, motivated by specific intent to harm
Hoffman, allegedly caused another inmate to beat Hoffman
in his prison cell. The complaint further alleged that
Hoffman has continued to receive threats from prisoners and
prison officials since transferring to a new prison in
Pennington Gap, Virginia, because of Preston’s actions.

2
Officer Preston has denied the allegations, but their truth must be
assumed because this appeal arises from a ruling on a motion to dismiss.
Moss v. U.S. Secret Serv., 572 F.3d 962, 967–68 (9th Cir. 2009).
34 HOFFMAN V. PRESTON

Hoffman claimed that Officer Preston’s actions
constituted retaliation in violation of the First Amendment
and cruel and unusual punishment in violation of the Eighth
Amendment. To remedy these alleged violations of his
constitutional rights, Hoffman sought a declaratory
judgment as well as $100,000 in compensatory and punitive
damages and attorneys’ fees and costs from Officer Preston
in his individual capacity. Only the Eighth Amendment
claim is at issue on this appeal because Hoffman did not
appeal the dismissal of his First Amendment retaliation
claim.

From the outset, Hoffman faced a problem as to the
remedies he sought: Congress has never enacted a damages
remedy against individual federal officials for the violation
of constitutional rights as it has against state officials in
42 U.S.C. § 1983. Hoffman does not seek damages in this
action against the United States under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., by
alleging that Preston acted as an agent of the Government.
Hoffman also did not allege that Preston acted outside the
scope of his employment, and was therefore not protected
from liability under state laws by provisions of the Westfall
Act, id. § 2679. Neither did he attempt to bring California
tort law claims against Preston for assault, battery, or
defamation. Nor did Hoffman seek prospective injunctive
or habeas relief to remedy the reputational harms he
allegedly continues to suffer from being labelled a snitch
since transferring to a new federal prison facility in Virginia,
18 U.S.C. § 3626. Instead, Hoffman solely asked the court
to imply a damages remedy against individual federal
officials from the text of the Constitution itself.

The district court adhered to the clear instructions of the
Supreme Court’s decision in Abbasi by refusing to extend a
 HOFFMAN V. PRESTON 35

Bivens remedy and dismissed the case. The court began by
holding that Hoffman’s claim arose in a “new Bivens
context” because the Supreme Court “has approved of only
one Bivens damages remedy under the Eighth
Amendment—specifically for failure to provide medical
care,” and Hoffman’s claim had nothing to do with
inadequate medical care. See Carlson v. Green, 446 U.S. 14,
16 n.1, 18–23 (1980). The court rejected Hoffman’s
argument that the Court had extended Carlson through
Farmer, which “never explicitly stated . . . that it was
recognizing an implied Bivens Eighth Amendment failure to
protect claim.” See Farmer, 511 U.S. 825.

Next, the district court held that “special factors”
counselled against extending a new Bivens remedy for
Hoffman’s intentional instigation claim. First, the court
found that Congress had provided for alternative remedies
aside from a damages action against individual officials:
Hoffman could challenge the conditions of his confinement
through the BOP administrative grievance process, seek
declaratory and injunctive relief, and seek damages against
the Government under the FTCA. Second, Congress had
decided against creating an individual damages remedy
against federal prison officials despite specifically
considering the issue in 1996 when enacting the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.
Hoffman appealed with the aid of pro bono appellate
counsel; our review is de novo. Vega v. United States,
881 F.3d 1146, 1152 (9th Cir. 2018).

II. Separation of Powers & Bivens

Our Constitution is exceptional not necessarily because
it enumerates individual rights, but because it divides the
power to remedy their violations among three independent
branches of government. Article I vests Congress with
36 HOFFMAN V. PRESTON

“legislative Powers” to articulate rights and establish
remedies, U.S. CONST. art. I, § 1; Article II renders the
President accountable to the national electorate for the sole
exercise of “the executive Power,” id. art. II, § 1; and
Article III vests the federal courts with the “judicial Power”
to adjudicate rights in “Cases” and “Controversies,” id.
art. III, §§ 1–2. “Without a secure structure of separated
powers, our Bill of Rights would be worthless, as are the
bills of rights of many nations of the world that have
adopted, or even improved upon, the mere words of ours.”
Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J.,
dissenting).

The legislative power “is the power to make law.”
Patchak v. Zinke, 138 S. Ct. 897, 905 (2018). Under our
constitutional system, “the legislature not only commands
the purse, but prescribes the rules by which the duties and
rights of every citizen are to be regulated.” The Federalist
No. 78, at 402 (A. Hamilton) (Cary & McClellan eds. 2001).
Congress enjoys broad authority to create rights and
remedies and may enforce many enumerated rights “by
appropriate legislation.” U.S. CONST. art. I, § 8; id. amends.
XIII, XIV, XV, XXIV, XXVI. The availability of a damages
remedy against federal officials also implicates Congress’s
taxing and spending powers, since such officials may be
indemnified against legal expenses and adverse judgments
for claims arising out of the scope of their employment. Id.
art. I, § 7, cl. 1, § 8, cls. 1–2, 5.

The judicial power is “limited to particular cases and
controversies” assigned to the federal courts by statute or by
the Constitution. Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 223 (1995); see Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). The constitutional bases for
jurisdiction—federal question, foreign ministers, admiralty,
 HOFFMAN V. PRESTON 37

diverse citizenship, and disputes between states, U.S.
CONST. art. III, § 2, cl. 1—cannot serve as a cause of action
for damages against individual officials for the violation of
constitutional rights. Instead, plaintiffs alleging an official
abuse of power must rely on a statutory cause of action to
invoke the aid of the federal courts. Kokkonen, 511 U.S.
at 377; see Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963);
Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 10 (1817).
Unlike the historical courts of England which created the
forms of action, our courts do not create new laws. See, e.g.,
F. Maitland, The Forms of Action at Common Law (1936).

From 1789 until 1971, the Supreme Court held firm to
the indisputable conclusion that the extension of a damages
remedy is an exercise of “legislative power.” Hernandez,
140 S. Ct. at 742. Without a statute permitting “suits for
damages for abuse of power, federal officials [were] usually
governed by local law.” Wheeldin, 373 U.S. at 652.
Congress could have provided for a uniform federal statute
allowing suits for damages against federal officials for
constitutional torts as it had against state and local officials
in 42 U.S.C. § 1983. “[B]ut it ha[d] not done so,” and it was
not up to the federal courts “to fill any hiatus Congress has
left in this area.” Id.

In Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme
Court broke new ground by recognizing a Fourth
Amendment damages remedy for the warrantless search of a
residence. The Court implied a novel authority to craft
constitutional torts from the statutory grant of federal
question jurisdiction, which provided at the time that “[t]he
district courts shall have original jurisdiction of all civil
actions wherein the matter in controversy . . . arises under
the Constitution, laws, or treaties of the United States.”
38 HOFFMAN V. PRESTON

28 U.S.C. § 1331(a); see Hernandez, 140 S. Ct. at 741–42.
The ostensible driving force behind the decision was nothing
more than a general notion of equity, “that where legal rights
have been invaded, and a federal statute provides for a
general right to sue for such invasion, federal courts may use
any available remedy to make good the wrong done.”
Bivens, 403 U.S. at 396 (quoting Bell v. Hood, 327 U.S. 678,
684 (1946)). The Court has extended Bivens only twice in
the intervening fifty years: to intentional sex discrimination
by a congressman in Davis v. Passman, 442 U.S. 228 (1979),
and to the failure to provide, through deliberate indifference,
adequate medical care to a federal prisoner in Carlson.

The Supreme Court has long since returned to the
original understanding that the Constitution empowers
Congress, not the courts, “to evaluate ‘whether, and the
extent to which, monetary and other liabilities should be
imposed upon individual officers and employees of the
Federal Government’ based on constitutional torts.”
Hernandez, 140 S. Ct. at 742 (quoting Abbasi, 137 S. Ct.
at 1856). The jurisprudential foundations on which Bivens
relied—the practice of implying causes of action believed to
further the purpose of a statute—has been soundly
repudiated as a usurpation of the legislative power. See id.
at 741–42; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 67
n.3 (2001) (“[W]e have retreated from our previous
willingness to imply a cause of action where Congress has
not provided one.”); Alexander v. Sandoval, 532 U.S. 275,
287 (2001) (“We abandoned that understanding in [1975]
. . . and have not returned to it since.”). Given these
developments, it seems fair to say “that if ‘the Court’s three
Bivens cases [had] been . . . decided today,’ it is doubtful that
[the Court] would have reached the same result.”
Hernandez, 140 S. Ct. at 742–43 (quoting Abbasi, 137 S. Ct.
at 1856). Only the Court can overrule Bivens, Davis, and
 HOFFMAN V. PRESTON 39

Carlson, and the lower courts are bound to apply them until
and unless that decision is made. But the Court has
recognized that every step in the direction of Bivens is a step
away from fidelity to the separation of powers, and has
substantially narrowed the circumstances in which the lower
courts may proceed down that road.

“When asked to extend Bivens, we engage in a two-step
inquiry.” Hernandez, 140 S. Ct. at 743. First, we ask
whether the claim arises in a “new context” or involves a
“new category of defendants.” Id. (quoting Malesko,
534 U.S. at 68). Claims arise in a “new context” when they
are “different in a meaningful way from previous Bivens
cases decided by this Court.” Id. (quoting Abbasi, 137 S. Ct.
at 1859). 3 Second, if the claim does arise in a new context,
we ask whether there are “any ‘special factors [that]
counsel[] hesitation’ about granting the extension.” Id.
(quoting Abbasi, 137 S. Ct. at 1857). Should the requested
extension fail this exacting test, any implied damages
remedy against individual federal officials must be denied.

III. Special Factors Analysis

At the outset, the majority correctly recognizes this case
arises in a new Bivens context. Therefore, the court must
next decide whether an extension of Bivens is permissible in
the absence of congressional action. Abbasi, 137 S. Ct.

3
In characterizing Hoffman’s claim as only a “modest extension” of
Carlson, the majority opinion provides no limiting principles as to what
constitutes a “modest” extension as opposed to a “radical” extension.
But in truth, these distinctions are immaterial, as under Abbasi, any
extension of Bivens demands the same analysis at the second step—are
there special factors counseling hesitation against extending the Bivens
remedy? If any special factors counseling hesitation are present, Abbasi
demands that Bivens should not be extended.
40 HOFFMAN V. PRESTON

at 1857. In doing so, we must ask whether the power to
extend the requested remedy rests with Congress or with the
judicial branch. Because the Constitution vests Congress
with the authority to enact damages remedies against federal
officials, “[t]he answer most often will be Congress.” Id.
Respect for the separation of powers requires the courts to
refuse to imply a new remedy “if there are ‘special factors
counselling hesitation.’” Id. (quoting Carlson, 446 U.S.
at 18).

Without overruling Bivens, the Supreme Court has since
repudiated the rationales on which that case relied and
declared further expansion of Bivens to be a “‘disfavored’
judicial activity.” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 675 (2009)). The decision to imply a new damages
remedy from the Constitution itself is thus no longer guided
by the rationales in Bivens, but by the “special factors”
inquiry commanded at Abbasi’s second step.

Whereas the Bivens Court rejected state law as an
adequate remedy for many constitutional violations,
403 U.S. at 392–95, the Court has since relied on the
availability of damages under state tort law to refuse to
expand Bivens even when the state remedies available are
not “perfectly congruent” with those provided by Bivens.
Minneci v. Pollard, 565 U.S. 118, 129 (2012) (refusing to
extend the Bivens remedy in Carlson to inadequate medical
care claim against private prison officials); Malesko,
534 U.S. at 72–73 (similar).

Whereas Bivens assumed that every wrong requires a
remedy, 403 U.S. at 395–96, the Court has long since
abandoned the practice of implying judicial remedies from
statutes and constitutional provisions that do not expressly
provide them. Hernandez, 140 S. Ct. at 741–42; Abbasi,
137 S. Ct. at 1855–57; see also Jesner v. Arab Bank, PLC,
 HOFFMAN V. PRESTON 41

138 S. Ct. 1386, 1402–07 (2018) (refusing to imply a cause
of action against foreign corporation for terrorist activities
that was not expressly provided for by Congress in the plain
text of the Alien Tort Statute).

Relatedly, whereas the Bivens Court read congressional
silence as to provision of remedies as implicitly permitting
the courts to create their own, 403 U.S. at 397, the Court has
since refused to imply remedies when Congress has
“repeatedly declined to authorize the award of damages”
when enacting “statutes addressing related matters.”
Hernandez, 140 S. Ct. at 747 (citing repeated exclusion of
liability for official conduct abroad to deny extension of
Bivens to cross-border shooting); see also Chappell v.
Wallace, 462 U.S. 296, 300–04 (1983) (citing statutes and
regulations establishing the military justice system to deny
extension of Bivens to suits by military personnel against
superior officers). Indeed, the Court has explicitly refused to
extend Bivens in the prison context in part because Congress
“had specific occasion to consider the matter of prisoner
abuse and to consider the proper way to remedy those
wrongs” when enacting the Prison Litigation Reform Act of
1996 (“PLRA”), 42 U.S.C. § 1997e, and declined to extend
a damages remedy against individual prison officials.
Abbasi, 137 S. Ct. at 1865.

Hoffman’s requested extension of Bivens fails because
multiple “special factors” demonstrate that Congress, and
not the judicial branch, is vested with the authority to decide
whether to extend a damages remedy against federal officials
for the Eighth Amendment intentional harm claim presented
in this case. And, to date, Congress has affirmatively
decided not to extend the specific damages remedy requested
in this case.
42 HOFFMAN V. PRESTON

A. The Existence of Alternate Remedies

The first “special factor” precluding the extension of a
Bivens remedy to Hoffman’s claim is “the existence of
alternative remedies.” Abbasi, 137 S. Ct. at 1865. “For if
Congress has created ‘any alternative, existing process for
protecting the [plaintiff’s] interest,’” then “that alone may
limit the power of the Judiciary to infer a new Bivens cause
of action.” Id. at 1858 (quoting Wilkie v. Robbins, 551 U.S.
537, 550 (2007)). For starters, as explained above, Congress
has provided for injunctive relief in federal court and
administrative relief under BOP’s claims process that would
have allowed Hoffman to avoid injury by obtaining his
transfer beyond Preston’s reach before he was attacked, or
by seeking other forms of prospective relief. See id. at 1863
(noting habeas relief “would have provided a faster and more
direct route to relief than a suit for money damages” by
requiring immediate improvement of the conditions of
confinement). That Hoffman failed to utilize these remedies
between February 26, 2016 (the onset of his dispute with
Preston) and May 16, 2016 (the date of alleged physical
violence against Hoffman) does not permit this court to
conclude that an implied Bivens remedy is therefore
necessarily available. The Supreme Court has repeatedly
found that the availability of administrative and injunctive
relief precluded the requested extension of a Bivens remedy.
See id. at 1865 (concluding injunctive and habeas relief
counseled against extending Bivens to a claim of a warden’s
acquiescence in detainee abuse by prison guards); Malesko,
534 U.S. at 74 (finding the availability of injunctive and
administrative relief, along with state tort claims, eliminated
the need to extend Bivens to Eighth Amendment claims for
deliberate indifference to medical needs asserted against
private prisons as an entity). Moreover, an injunction
against Preston could be argued to have a deterrent effect on
 HOFFMAN V. PRESTON 43

such officials by crimping their future ascendency within the
bureaucracy.

Next, Congress provided a damages remedy against the
Government for prisoners in Hoffman’s position under the
Federal Torts Claims Act (“FTCA”), which provides for
damages suits for intentional torts committed by individual
federal officers. 28 U.S.C. §§ 2674, 2680(h). It is true that
the Supreme Court in Carlson treated FTCA suits as an
inadequate substitute “[b]ecause the Bivens remedy is
recoverable against individuals . . . [and] is a more effective
deterrent than the FTCA remedy against the United States.”
446 U.S. at 21. But the Court has since warned that the
coexistence of the FTCA with Bivens remedies in
established contexts (i.e., Bivens, Davis, and Carlson) “is not
a license to create a new Bivens remedy in a context we have
never before addressed.” Hernandez, 140 S. Ct. at 748 n.9.
Because Hoffman’s claim against Preston for intentional
harm arises in a “new Bivens context,” we cannot simply
write off FTCA suits as inadequate and thereby usurp the
authority to craft our own remedy from the text of the
Constitution itself. If nothing else, the oft-cited “damages or
nothing” rationale from Bivens falls flat, given that Hoffman
has a damages remedy available to him under the FTCA,
such that extending the Bivens remedy to this case is not the
only means by which Hoffman can obtain damages. Bivens,
403 U.S. at 410 (Harlan, J., concurring). And moreover,
even taking at face value Carlson’s conclusion that the
FTCA alone was an inadequate remedy given the specific
facts of that case, it must be emphasized that no injunctive
relief was possible in Carlson, given that there, the prisoner
died, whereas here, Hoffman lives on.

Finally, Congress has left open the possibility that
claimants like Hoffman may bring state tort claims against
44 HOFFMAN V. PRESTON

federal officers like Preston who engage in particularly
egregious intentional conduct. The Westfall Act generally
bars state tort claims against “any employee of the
Government while acting within the scope of his office or
employment.” 28 U.S.C. § 2679(b)(1). 4 Under California
law—which controls in this case because the conduct at
issue occurred at a federal prison in California—the scope of
employment inquiry turns on whether the tort was
“foreseeable,” whether the employer’s job requirements
“engendered” the conduct, and whether the conduct was “not
so unusual or startling” that holding the employer liable
would be unfair. Lisa M. v. Henry Mayo Newhall Mem’l
Hosp., 907 P.2d 358, 362–63 (Cal. 1995) (citations and
quotation marks omitted).

Here, Preston allegedly sought to retaliate against
Hoffman for reporting Preston and other prison guards for
stealing lunches through an indirect use of force that violated
BOP regulations. 5 These actions likely amounted to the
common law torts of assault and battery. See, e.g., Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 926 (9th
Cir. 2001) (recognizing that California law imposes liability

4
To assert Westfall Act immunity, a federal employee sued in tort
must deliver the pleadings to his supervisor and, ultimately, to the
Attorney General. 28 U.S.C. § 2679(c). If the Attorney General certifies
the employee acted within the scope of his employment at the time of the
incident from which the claim arose, the court substitutes the United
States as defendant. Id. § 2679(d)(1)–(2). The scope of employment
inquiry is governed by the law of the state in which the conduct is alleged
to have occurred. See Saleh v. Bush, 848 F.3d 880, 888 (9th Cir. 2017).
5
See 28 C.F.R. §§ 552.20 (prohibiting the use of force except “as a
last alternative after all other reasonable efforts to resolve a situation
have failed”), 552.22(b) (prohibiting the use of force to “punish an
inmate”), 552.22(j) (requiring that all uses of force “be carefully
documented”).
 HOFFMAN V. PRESTON 45

for police officers who “aided, abetted, counseled or
encouraged” battery when such force was unreasonable);
Fluharty v. Fluharty, 59 Cal. App. 4th 484, 497 (Cal. Ct.
App. 1997) (defining battery as “an act which resulted in a
harmful or offensive contact with the plaintiff's person”
(citation omitted)). Hoffman’s allegations would also fit
comfortably within the common law action for the
intentional infliction of emotional distress even if a fellow
inmate had never laid a hand on Hoffman. See, e.g., Potter
v. Firestone Tire & Rubber Co., 863 P.2d 795, 819 (Cal.
1993) (defining intentional infliction of emotional distress as
intentional or reckless “extreme and outrageous conduct”
directed at the plaintiff that proximately causes the plaintiff
“severe or extreme emotional distress”). And because
Preston is alleged to have falsely labeled Hoffman a “snitch”
to damage his reputation among other prisoners and prison
guards, Hoffman’s claim may state a cause of action for
defamation. See, e.g., Shively v. Bozanich, 80 P.3d 676,
682–83 (Cal. 2003) (defining slander as a “false and
unprivileged oral communication attributing to a person . . .
certain unfavorable characteristics or qualities”). While the
scope of employment is necessarily a fact-bound inquiry,
there is authority for the proposition that the conduct alleged
here falls outside the line. See, e.g., Lisa M., 907 P.2d
at 363–67 (holding that although a hospital technician’s
sexual assault of a patient was enabled by his employment,
the tort was not foreseeable and did not arise out of emotions
engendered by the job). 6

6
When asked for additional briefing on the availability of state tort
remedies in this case, the Government explained that the Attorney
General would likely certify that Preston acted within the scope of his
employment pursuant to the Government’s standard practice of
assuming the truth of a federal officer’s denial of the allegations in a
46 HOFFMAN V. PRESTON

B. Legislative Action

The second “special factor” precluding an extension of
Bivens here is “legislative action suggesting that Congress
does not want a [Bivens] damages remedy.” Abbasi, 137 S.
Ct. at 1865. In the PLRA of 1996, Congress sought to
address a backlog in prisoner-initiated litigation by imposing
new exhaustion requirements meant to reduce the quantity
of federal lawsuits. See 42 U.S.C. § 1997e(a), (c). Tellingly,
the PLRA did not include any damages remedies against
federal prison officials although its drafters were well aware
of the limited scope of the Bivens remedy extended in
Carlson for the inadequate provision of medical care.

In Abbasi, the Supreme Court explicitly noted that
“Congress had specific occasion to consider the matter of
prisoner abuse and to consider the proper way to remedy
those wrongs” when enacting the PLRA, but “chose not to
extend the Carlson damages remedy to cases involving other
types of prisoner mistreatment.” 137 S. Ct. at 1865. This
reasoning precludes an implied remedy for Hoffman’s
Eighth Amendment intentional harm claim based on
allegations of prisoner-on-prisoner violence instigated by a
guard. My colleagues cannot escape the fact that Congress
implicitly accepted the limited scope of the remedy in
Carlson (1980) by failing to expand upon it when enacting
the PLRA (1996). The majority’s allusion to the PLRA’s

complaint. (citing Osborn v. Haley, 549 U.S. 225, 247 (2007)). But we
should not be so quick to cast aside a role for state tort law when such
suits are consistent with the Westfall Act. The Attorney General may
withdraw a certification if new evidence comes to light, and contrary to
the majority opinion’s statements suggesting otherwise, the court may
override such a certification if the plaintiff sets out allegations capable,
if true, of proving the employee acted outside the scope of his
employment. See Saleh, 848 F.3d at 889.
 HOFFMAN V. PRESTON 47

“general purpose” as merely a procedural statute is
unavailing. As the majority itself recognizes, Congress
unquestionably had damages remedies on their mind in
writing the PLRA, as evinced by 42 U.S.C. 1997e(e), a
provision which expressly limits the scope of claims on
which a prisoner can recover damages on due to “mental or
emotional injury.” And to be sure, the PLRA is not merely
an “isolated amendment” to an otherwise innocuous law,
AMG Capital Mgmt., LLC v. FTC, 141 S. Ct. 1341, 1351
(2021), but instead is precisely the type of comprehensive
statutory scheme courts should look to “for guidance on the
appropriate boundaries of judge-made causes of actions.”
Hernandez, 140 S. Ct. at 747. If the PLRA can be said to
have any “purpose,” that purpose is clearly to limit the scope
of remedies of which a prisoner may avail himself, whether
evidenced through the enhanced procedural requirements a
prisoner must meet before bringing a claim, or in the limited
scope of recovery a prisoner can receive once a claim is
properly brought.

And perhaps most fundamentally of all, even if it wanted
to do so, how could Congress disallow a Bivens remedy, as
the majority opinion seems to demand in order to give any
weight to the PLRA in the context of the special factors
analysis? The majority discounts the relevancy of the PLRA
in the special factors analysis by observing that while the
“law did not explicitly create a stand-alone monetary
damages remedy against federal correctional officers, [] it
did not explicitly disallow one either.” However, as was said
long ago: “It is emphatically the province and duty of the
judicial department to say what the law is.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And here, the
Bivens Court didn’t simply say what a run-of-the-mill statute
meant—it said what the Constitution itself meant. Congress
cannot restrict the Bivens remedy any more than it could
48 HOFFMAN V. PRESTON

restrict the Fourth Amendment, upon which Bivens is based,
or any other constitutional provision. See, e.g., Dickerson v.
United States, 530 U.S. 428, 436–37 (2000) (overruling a
1968 statute designed to abrogate Miranda v. Arizona,
384 U.S. 436 (1966), because “Congress may not
legislatively supersede our decisions interpreting and
applying the Constitution.”). Therefore, the majority errs in
holding that “[n]o significant meaning can be attributed to
the fact that Congress said nothing about the availability or
unavailability of damages under Bivens.” For all these
reasons, legislative action in enacting the PLRA
undoubtedly counsels hesitation against expanding Bivens to
this new context.

C. Disruptive Intrusion

The third “special factor” precluding an extension of
Bivens in this case is the “disruptive intrusion by the
Judiciary into the functioning of other branches” risked by a
damages remedy for intentional harm claims. Abbasi, 137 S.
Ct. at 1860. By extending a novel Bivens remedy for a claim
of such sweeping breadth, my colleagues fail to heed the
Supreme Court’s warning that “a general Bivens cure [could]
be worse than the disease.” Wilkie, 551 U.S. at 560–61
(refusing to recognize Bivens claim for “retaliatory or undue
pressure on a property owner for standing firm on property
rights”). The conduct alleged here is serious, and no doubt
it is tempting to imagine allowing Hoffman’s case to proceed
will not create a substantial or recurring imposition upon
federal officials. But the intentional harm claim the majority
recognizes today will not be limited to these facts in future
cases. Rather, the reasoning underlying the majority’s new
 HOFFMAN V. PRESTON 49

remedy logically extends to any conduct that demonstrates
intent to cause any serious harm to an inmate. 7

Examining the majority’s analysis (and approval) of the
Third Circuit’s clearly flawed opinion in Bistrian v. Levi,
912 F.3d 79 (3d Cir. 2018) further enforces this conclusion.
In that case, no new Bivens context was found, and
accordingly, the Bivens remedy was extended to apply to
inmate Peter Bistrian, a prisoner who was brutally assaulted
out on the prison yard by vengeful prisoners after he was
found out to be involved in a surveillance program in
collaboration with prison officials. Bistrian, 912 F.3d at 84.
That Bistrian was allowed to be out on the yard after being
outed as a snitch assuredly meets the “deliberate
indifference” standard of Carlson, and in any event is
reprehensible conduct, just as is the conduct alleged in this
case. However, unlike here, Bistrian did not allege a
Carlson-type Bivens claim. Instead, as a pre-trial detainee,
Bistrian asserted a novel Fifth Amendment “failure to
protect” Bivens claim on the theory that such a Bivens claims
had already been endorsed by the Supreme Court in Farmer,
even though Farmer was decidedly not a Bivens case, and
even though Farmer was an Eighth Amendment case, and
not a Fifth Amendment case. 8 Bistrian, 912 F.3d at 90.

7
The majority opinion implicitly recognizes as much, but instead of
viewing this outcome as problematic, they approvingly cite to a
multitude of district court cases in this circuit which extend the Bivens
remedy to factual situations that are materially distinct from Carlson,
sanctioning what is undoubtedly a massive expansion of Bivens.
Whereas this case should have marked the end of such unrestrained
expansion of Bivens in this circuit, it regrettably signals a new beginning
for the misguided doctrine.
8
By Farmer’s own terms: “This case requires us to define the term
‘deliberate indifference,’ as we do by requiring a showing that the
50 HOFFMAN V. PRESTON

Surprisingly, however, the Third Circuit agreed with
Bistrian, and accordingly found the facts of that case to
present no “new Bivens context,” purely on the strength of
Farmer’s alleged recognition of a “failure to protect” Bivens
claims. Bistrian, 912 F.3d at 90. This notwithstanding
Abbasi’s clear teaching to the contrary, that the universe of
recognized Bivens claims consists of only three cases:
Bivens, Davis, and Carlson. Abbasi, 137 S. Ct. at 1855. By
heartily endorsing Bistrian’s flawed analysis, the majority
offers no principled reasons why a subsequent case in this
circuit should not also recognize Farmer’s alleged “failure
to protect” Bivens claim, thus opening the doors for
seemingly any such Fifth (as in Bistrian) or Eighth (as
alleged to have been recognized in Farmer) Amendment
violation to state a viable Bivens claim. Such a holding
would be unprecedented, yet I fear that today’s majority
opinion will lead to that unfortunate, if not inevitable,
outcome.

IV. Conclusion

“The Framers recognized that, in the long term,
structural protections against abuse of power were critical to
preserving liberty.” Bowsher v. Synar, 478 U.S. 714, 730
(1986). Insisting on respect for the separation of powers is
not formalism for its own sake. Rather, “the Constitution

official was subjectively aware of the risk.” Id. at 829. Farmer offered
nothing at all about remedies for violations of the contested right at issue
in that case. In addition to the district court below, at least three other
district courts have similarly recognized that Farmer did not extend
Bivens to cover “failure to protect” claims. See Vela v. Christian, No.
3:20-CV-0990-C (BH), 2021 WL 5701382, at *8 (N.D. Tex. Nov. 5,
2021); Marquez v. Rodriguez, No. 3:18-CV-0434-CAB-NLS, 2021 WL
2826075, at *7 (S.D. Cal. July 6, 2021); Oden v. True, No. 3:18-CV-600-
GCS, 2020 WL 4049922, at *4 (S.D. Ill. July 20, 2020).
 HOFFMAN V. PRESTON 51

protects us from our own best intentions: It divides power
among sovereigns and among branches of government
precisely so that we may resist the temptation to concentrate
power in one location as an expedient solution to the crisis
of the day.” New York v. United States, 505 U.S. 144, 187
(1992). By vesting the legislative power in Congress, the
Constitution provides that elected officials subject to
democratic accountability and enjoying a broader
perspective than the courts will be the ones to balance the
costs and benefits of imposing a damages remedy against
federal officials within the complex regulatory scheme that
governs federal prisons. See Abbasi, 137 S. Ct. at 1856. In
this way, the separation of powers helps to ensure that the
“Bivens cure” will not be “worse than the disease.” Wilkie,
551 U.S. at 561.

Rather than break new ground, the majority should have
followed binding precedents of the Supreme Court and our
court and left the enactment of such a broad and novel
remedy to Congress. We should not extend Bivens to this
new context by judicial ipse dixit in light of the multiple
“special factors” that counsel hesitation. To be sure, the
majority is correct that the alleged conduct here is more
morally culpable than that in Carlson. The deliberate
indifference of Carlson requires only that an “official [be]
subjectively aware of the risk,” Farmer, 511 U.S. at 829,
whereas here, Hoffman’s claim of intentional harm demands
that Preston have acted with specific intent to harm.
However, the Supreme Court does not instruct us to look to
the moral culpability of an act when deciding whether to
extend Bivens. 9 Instead, when a new Bivens context arises,

9
If this were so, the Supreme Court would have decided Hernandez
v. Mesa differently, as there, the asserted Fourth Amendment claim
involved a tragic shooting resulting in death, Hernandez, 140 S. Ct.
52 HOFFMAN V. PRESTON

as here, we are instructed to perform the special factors
analysis commanded by Abbasi to determine whether the
Bivens remedy should be extended. For all the foregoing
reasons, this is surely not such a case. This case, perhaps
more than any other, demonstrates that precisely because
“the principles animating Bivens” no longer stand in any
capacity, Lanuza v. Love, 899 F.3d 1019, 1021 (9th Cir.
2018), a Bivens remedy cannot be extended to Hoffman’s
claim consistent with current Supreme Court jurisprudence.

Because the majority’s decision usurps the legislative
power in direct contradiction of Abbasi, I respectfully
dissent and would affirm the district court.

at 740, whereas the Fourth Amendment claim in Bivens itself alleged no
physical injury whatsoever. Bivens, 403 U.S. at 389–90.