Appellate Case: 21-1008 Document: 010110718290 Date Filed: 08/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 1, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ANDERSON COUTINHO SILVA,
Plaintiff - Appellant,
v. No. 21-1008
(D.C. No. 1:19-CV-02563-CMA-MEH)
UNITED STATES OF AMERICA; (D. Colo.)
BRANDON SHAW,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, SEYMOUR, and BALDOCK, Circuit Judges.
_________________________________
Today, we are called upon to expand the judicially implied cause of action described
in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Such action, however, was considered “a ‘disfavored’ judicial activity,” Ziglar v.
Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)),
before the Supreme Court’s recent decision in Egbert v. Boule, 142 S. Ct. 1793 (2022).
That decision saw the Supreme Court consider, amongst other things, a claim that closely
resembled the facts of Bivens itself. See id. at 1800–02, 1804–07. It nevertheless rejected
the Ninth Circuit’s decision to allow that claim to proceed out of hand. Id. at 1804–07.
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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The Supreme Court’s message could not be clearer—lower courts expand Bivens claims at
their own peril. We heed the Supreme Court’s warning and decline Plaintiff’s invitation
to curry the Supreme Court’s disfavor by expanding Bivens to cover his claim.
Accordingly, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s
disposition of this case.
I.
Plaintiff Anderson Silva is a prisoner at the United States Penitentiary in Florence,
Colorado (ADX Florence). The allegations of his complaint are as follows. In 2018,
Defendant Brandon Shaw, a corrections officer at ADX Florence, entered Plaintiff’s cell
while he was restrained. According to Plaintiff, the prison’s protocols do not allow
corrections officers to fully enter an inmate’s cell—an act that takes an officer outside the
view of security cameras. Once inside the cell, Defendant assaulted Plaintiff by slamming
him on the floor, jumping on his back, and “applying painful pressure with his knee.” Br.
of Appellant 3. Defendant called for assistance and other officers arrived. Plaintiff
maintains that the other officers falsely accused him of assaulting Defendant. In any event,
Plaintiff claims he suffered injuries to his back, right leg, and left hand.
Proceeding pro se, Plaintiff filed suit against the United States and Defendant. 1
Plaintiff’s complaint alleged violations of the Eighth Amendment under a Bivens cause of
action and sought monetary damages and injunctive relief. Defendant and the Government
1
The only claim before us on appeal is Plaintiff’s claim against Defendant for excessive
use of force in violation of the Eighth Amendment.
2
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filed a motion to dismiss Plaintiff’s complaint and Defendant separately filed a motion for
partial summary judgment. After reviewing both motions, a magistrate judge
recommended the district court dismiss Plaintiff’s complaint with prejudice for failure to
state a claim and deny Defendant’s separate motion for partial summary judgment as moot.
Silva v. United States (Silva I), No. 19-cv-2563-CMA-MEH, 2020 WL 8408472 (D. Colo.
Sept. 10, 2020). Plaintiff objected to the magistrate judge’s recommendation. 2 The district
court, however, agreed with the magistrate judge and dismissed Plaintiff’s complaint with
prejudice. Silva v. United States (Silva II), No. 19-cv-2563-CMA-MEH, 2020 WL
7706785 (D. Colo. Dec. 29, 2020). Now represented by counsel, Plaintiff appeals and asks
us to reverse the district court’s decision. Plaintiff offers two arguments in support of his
claim that the district court erred. First, Plaintiff asserts that his claim is not a Bivens
expansion at all—that is, because his claim arises under the Eighth Amendment, he
2
Defendant argues Plaintiff’s claim is barred by the firm waiver rule. Br. of Appellee 10–
14. We have “adopted the firm waiver rule, which bars appellate review of both factual
and legal questions if a party fails to timely object to the magistrate judge’s findings or
recommendations.” Laubach v. Scibana, 301 F. App’x 832, 835 (10th Cir. 2008)
(unpublished) (citing Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). The
firm waiver rule applies to pro se suits brought by prisoners. See, e.g., Duffield v. Jackson,
545 F.3d 1234 (10th Cir. 2008); Laubach, 301 F. App’x 832; Nasious v. Robinson, 396 F.
App’x 526 (10th Cir. 2010) (unpublished). In addition to filing timely objections, a party
must also provide “specific written objections” to the magistrate judge’s recommendations.
Fed. R. Civ. P. 72(b)(2); Laubach, 301 F. App’x at 835. Plaintiff failed to meet these
requirements because he only offered a single sentence about Bivens and cited authority
addressing claims under 42 U.S.C. § 1983. The district judge nevertheless found Plaintiff’s
objections sufficient. Silva II, 2020 WL 7706785, at *4. Although the district judge’s
decision to consider the merits of Plaintiff’s claim does not bind us, Laubach, 301 F. App’x
at 835, we exercise our own discretion to address the merits of the issue. See Morales-
Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).
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believes it falls squarely within the confines of Carlson v. Green, 446 U.S. 14 (1980).
Second, Plaintiff argues that even if his claim requires expanding Bivens, such an
expansion is justified in his case. Both arguments rely on the two-step analytical
framework detailed in Ziglar v. Abbasi. The Supreme Court had yet to decide Egbert v.
Boule at the time the case was briefed and argued. Nevertheless, we resolve this case by
applying Egbert. With that said, we note that regardless of Plaintiff’s protestations to the
contrary, his claim clearly constitutes an expansion of Bivens because “[a] claim may arise
in a new context even if it is based on the same constitutional provision as a claim in a case
in which a damages remedy was previously recognized.” Hernandez v. Mesa, 140 S. Ct.
735, 743 (2020). The distinction between an excessive force claim like the one Plaintiff
brings and a deliberate indifference to medical needs claim—which the Supreme Court
recognized as a valid Bivens action in Carlson—is sufficient to conclude that Plaintiff’s
claim would require an expansion of Bivens to move forward even though it originates
under the Eighth Amendment. See id.
II.
This case is before us after the district court dismissed Plaintiff’s complaint for
failure to state a claim with prejudice under Federal Rule of Civil Procedure 12(b)(6). “The
legal sufficiency of a complaint under Rule 12(b)(6) is a question of law which this Court
reviews de novo.” Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006) (citing Sutton v.
Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). “To survive
a Rule 12(b)(6) motion, Plaintiff’s complaint must allege sufficient facts to state a claim
for relief plausible on its face.” Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020)
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(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). For the purposes of such a motion,
“we must accept all the well-pleaded allegations of the complaint as true and must construe
them in the light most favorable to the plaintiff.” Albers v. Bd. of Cnty. Comm’rs, 771 F.3d
697, 700 (10th Cir. 2014) (quoting Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir.
2013)).
We consider this case in the aftermath of the Supreme Court’s recent decision in
Egbert v. Boule, which purports to alter the Bivens analysis. Though the decision was only
handed down recently, courts within our Circuit have already had to grapple with it and
have noted our lack of guidance on how to do so appropriately. See Bivens v. Blaike, No.
21-cv-783-PAB-NYW, 2022 WL 2158984, at *3–4 (D. Colo. June 15, 2022). To place
Egbert in some context, we begin with a brief history of the Bivens claim and its treatment
by the Supreme Court.
The story of Bivens is a saga played out in three acts: creation, expansion, and
restriction. In 1971, the Supreme Court entered the first act by blurring the lines between
an Article III decision and “judicial legislation.” Bivens, 403 U.S. at 430 (Blackmun, J.,
dissenting). The landmark Bivens decision created a claim for damages that allowed the
plaintiff to seek recovery from federal agents who had allegedly violated his Fourth
Amendment rights by entering his home, placing him in manacles, and threatening his
family. Id. at 389 (majority opinion). Reasoning that state law remedies were inadequate
to rectify constitutional injuries and that “no special factors counsel[ed] hesitation in the
absence of affirmative action by Congress,” id. at 395–96, the Court fashioned an implied
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claim for damages for Bivens despite the clear absence of textual support in the Fourth
Amendment or authorization from Congress. Id. at 397.
Later that decade, the Supreme Court entered the second act of its Bivens
jurisprudence. Beginning with Davis v. Passman, 442 U.S. 228 (1979), the Court initiated
a period of Bivens expansion. In Davis, the Court held that Bivens extended to a claim by
a former congressional aide against her former employer for discrimination in violation of
the Fifth Amendment’s Due Process Clause. See id. at 242–49. Shortly thereafter, the
Supreme Court expanded Bivens one final time. On this occasion, in Carlson v. Green, the
Court held that Bivens allowed a prisoner to bring suit against a prison official who was
deliberately indifferent to his medical needs in violation of the Eighth Amendment’s Cruel
and Unusual Punishments Clause. See 446 U.S. 14. Thus, by the early 1980s, the Supreme
Court had fashioned a claim for damages in three constitutional contexts: the Fourth
Amendment’s Search and Seizure Clause, the Fifth Amendment’s Due Process Clause, and
the Eighth Amendment’s Cruel and Unusual Punishments Clause. Schweiker v. Chilicky,
487 U.S. 412, 420–21 (1988).
That expansion proved to be short-lived. Beginning in 1983, the Court started to
approach requests to expand Bivens with greater hesitation. See Bush v. Lucas, 462 U.S.
367, 374–80 (1983); Chappell v. Wallace, 462 U.S. 296, 298–305 (1983); United States v.
Stanley, 483 U.S. 669 (1987). It did so by placing greater emphasis on the “special factors
counselling hesitation” and relying on them to reject proposed extensions. See id. Over
time, the Court approached Bivens with increasing disfavor. The Court ultimately
recognized that Bivens, Davis, and Carlson were the mistakes of an “ancien regime” that
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was too willing to create implied causes of action. Abbasi, 137 S. Ct. at 1855 (quoting
Alexander v. Sandoval, 532 U.S. 275, 287 (2001)). 3 In the years since it first expressed
caution at the prospect of expanding Bivens, the Court has performed its own version of
Bonaparte’s retreat from Moscow and progressively chipped away at the decision—to the
point that very little of its original force remains. See Egbert, 142 S. Ct. at 1799–800
(collecting cases).
As for the Bivens analysis itself, it too has evolved over the years as the Court’s
attitude towards the cause of action has changed. In the early years of Bivens, the Court
essentially presumed new Bivens actions were valid “unless the action [wa]s ‘defeated’ in
one of two specified ways”—an express declaration from Congress creating a substitute
remedy or the existence of “special factors” that counselled “hesitation.” Carlson, 446
U.S. at 26–27 (Powell, J., concurring in the judgment). At that time, however, the “special
factors” analysis was minimal and lacking in meaningful guidance. See id. at 27. The
Court later flipped this presumption and held that “a court must take into account any
‘special factors counselling hesitation’” before it created a Bivens claim. Chappell, 462
U.S. at 298 (quoting Bush, 462 U.S. at 378); see Stanley, 483 U.S. at 678–79. The Court
hewed to that principle in ensuing cases but left the term “special factors” undefined until
it decided Abbasi in 2017. See 137 S. Ct. at 1857–58. While the Court did not provide an
3
Justice Kennedy noted that the Court’s attitude towards implying causes of action
generally started to change in the mid-1970s. See Abbasi, 137 S. Ct. at 1855. That,
however, did not prevent the Court from expanding Bivens on two occasions after that
alleged change in attitude. See Davis, 442 U.S. 228; Carlson, 446 U.S. 14.
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exhaustive list of factors, it emphasized the key point of the analysis: “if 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, the courts must refrain
from creating the remedy.” Id. at 1858. Thus, as of Abbasi, courts analyzed Bivens claims
in a two-step process: first, a court had to ask whether “the case is different in a meaningful
way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. Second, if
the case is different—in other words if the “context is new”—then a court must analyze
whether the “special factors counselling hesitation” apply such that it should not expand
Bivens. Id. at 1857, 1859–60. The Court reaffirmed this framework as recently as 2020.
Hernandez, 140 S. Ct. at 743.
This leads us to the Supreme Court’s decision in Egbert, where the Supreme Court
appeared to alter the existing two-step Bivens framework by stating that “those steps often
resolve to a single question: whether there is any reason to think that Congress might be
better equipped to create a damages remedy.” 4 142 S. Ct. at 1803. In Egbert, the Supreme
Court considered two Bivens claims: (1) a Fourth Amendment excessive force claim that
“present[ed] ‘almost parallel circumstances’” to Bivens itself, id. at 1805, and (2) a novel
First Amendment retaliation claim. Id. at 1807–08. Both claims arose out of the plaintiff’s
interactions with the U.S. Border Patrol. Id. at 1799–1802. The plaintiff, a bed-and-
breakfast operator and Border Patrol confidential informant, alleged that a Border Patrol
4
Egbert does not overrule Abbasi or Hernandez. See Egbert, 142 S. Ct. 1793. We decline
to address or resolve any tension between Egbert and these prior decisions because it is not
necessary to dispose of the appeal before us.
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agent used excessive force on him while trying to conduct a search on the plaintiff’s
property. See id. at 1801. The plaintiff also claimed that the Border Patrol agent retaliated
by reporting him to the IRS after the plaintiff filed a grievance with the Border Patrol. Id.
at 1802. The Court concluded both claims would be expansions of Bivens beyond the three
previously recognized cases. Id. at 1804, 1807.
In declining to extend Bivens to the plaintiff’s Fourth Amendment claim, the Court
reasoned it failed “for two independent reasons.” Id. at 1804. First, the Court asked
whether “Congress is better suited to ‘weigh the costs and benefits of allowing a damages
action to proceed.’” Id. at 1805 (quoting Abbasi, 137 S. Ct. at 1858). To answer that
question, the Supreme Court rejected the Ninth Circuit’s decision to approach the analysis
“at too granular a level.” Id. at 1806. Instead, the Court in Egbert analyzed the question
at a high level of generality and asked “whether a court is competent to authorize a damages
action not just against Agent Egbert but against Border Patrol agents generally.” Id. The
Court concluded that “[t]he answer, plainly, is no” and primarily relied on the national
security implications of the border context as support. Id. (citation omitted). Second, the
Court held that “Congress has provided alternative remedies for aggrieved parties in
Boule’s position that independently foreclose a Bivens action.” Id. The Court specified
that an alternative remedial scheme need not “afford [a plaintiff] rights to participation or
appeal” to be adequate “because Bivens ‘is concerned solely with deterring the
unconstitutional acts of individual officers.’” Id. (quoting Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 71 (2001)). A remedy is sufficient to foreclose a Bivens action, then, “[s]o
long as Congress or the Executive has created a remedial process that it finds sufficient to
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secure an adequate level of deterrence.” Id. at 1807. The Court concluded that the Border
Patrol’s internal grievance process satisfied this requirement and foreclosed Bivens relief.
Id. at 1806–07.
With respect to the plaintiff’s First Amendment retaliation claim, the Court
differentiated it from the Fourth Amendment claim by noting that it had never recognized
a Bivens claim in a First Amendment context before. Id. at 1807. The Court emphasized
that recognizing a new Bivens action is an extreme course of action that “entail[s]
substantial social costs.” Id. (alteration in original) (quoting Anderson v. Creighton, 483
U.S. 635, 638 (1987)). “Federal employees,” the Court reasoned, “‘face[d with] the added
risk of personal liability for decisions that they believe to be a correct response to improper
[activity] would be deterred from’ carrying out their duties” if Bivens was expanded to
cover First Amendment retaliation claims. Id. (alterations in original) (quoting Bush, 462
U.S. at 389). Therefore, the Court was “‘convinced’ that, in light of these costs, ‘Congress
is in a better position to decide whether or not the public interest would be served’ by
imposing a damages action.” Id. (quoting Bush, 462 U.S. at 390).
We take several lessons from Egbert. First and foremost, we are left in no doubt
that expanding Bivens is not just “a disfavored judicial activity,” id. at 1803 (quoting
Abbasi, 137 S. Ct. at 1857) it is an action that is impermissible in virtually all
circumstances. See id. at 1803–07; id. at 1809–10 (Gorsuch, J., concurring in the
judgment). The Supreme Court’s rejection of the plaintiff’s Fourth Amendment claim,
despite its close resemblance to the facts of Bivens itself, underscores the extent of the
Court’s disfavor towards Bivens claims. See id. at 1810 (“Candidly, I struggle to see how
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this set of facts differs meaningfully from those in Bivens itself.”); id. at 1815 (Sotomayor,
J., concurring in the judgment in part and dissenting in part) (“At bottom, Boule’s claim is
materially indistinguishable from the claim brought in Bivens.”). Though the failure of
that claim raises a question aptly posed by Justice Gorsuch—“[w]hen might a court ever
be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and
benefits’ of creating a cause of action?” id. at 1809 (Gorsuch, J., concurring in the
judgment)—we do not endeavor to answer that question here. Instead, we emphasize what
we view as the key takeaway from Egbert, namely, that courts may dispose of Bivens
claims for “two independent reasons: Congress is better positioned to create remedies in
the [context considered by the court], and the Government already has provided alternative
remedies that protect plaintiffs.” Id. at 1804 (majority opinion) (emphasis added).
III.
We now apply Egbert to Plaintiff’s claim. Because the Supreme Court has
recognized independent means of disposing of Bivens claims, we focus our analysis on the
alternative remedial schemes available to Plaintiff. Plaintiff’s excessive force claim arises
in the federal prison context because he asserts a claim against a Bureau of Prisons (“BOP”)
official. As such, Defendant argues that the BOP Administrative Remedy Program
qualifies as an adequate alternative remedy for Plaintiff’s claim. Br. of Appellee 24–25.
The magistrate judge and district judge considering the case below both list the BOP’s
Administrative Remedy Program as one of several adequate alternative remedies available
to Plaintiff. Silva I, 2020 WL 8408472, at *6; Silva II, 2020 WL 7706785, at *6. Plaintiff
disagrees. He argues the BOP Program “is not the kind of ‘alternative remedial structure’
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the Supreme Court has described” because “the Administrative Remedy Program is a
regulatory creation of the BOP” and “offers no indication that Congress sought to displace
a Bivens remedy with any administrative regime.” Br. of Appellant 22–23.
But Plaintiff’s argument falls short for two reasons. First, Plaintiff’s argument that
the BOP Program is inadequate because it is a regulatory scheme rather than a
congressionally mandated one cannot stand in the wake of Egbert. The Supreme Court
expressly stated that an alternative remedial scheme is sufficient “[s]o long as Congress or
the Executive has created a remedial process that it finds sufficient to secure an adequate
level of deterrence.” Egbert, 142 S. Ct. at 1807 (emphasis added). The fact that the BOP
Administrative Remedy Program is a regulatory scheme is therefore irrelevant to any
determination of adequacy. Second, the Supreme Court has long since described the BOP
Administrative Remedy Program as an adequate remedy. See Malesko, 534 U.S. at 74
(“Inmates in respondent’s position also have full access to remedial mechanisms
established by the BOP, including . . . grievances filed through the BOP’s Administrative
Remedy Program.”). We therefore have little difficulty concluding that the BOP
Administrative Remedy Program is an adequate “means through which allegedly
unconstitutional actions . . . can be brought to the attention of the BOP and prevented from
recurring.” Id. “[B]ecause Bivens ‘is concerned solely with deterring the unconstitutional
acts of individual officers,’” we find the availability of the BOP’s Administrative Remedy
Program offers an independently sufficient ground to foreclose Plaintiff’s Bivens claim.
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Egbert, 142 S. Ct. at 1806 (quoting Malesko, 534 U.S. at 71). Accordingly, we need not
inquire any further to decide this appeal. 5
IV.
In sum, Plaintiff’s Bivens claim is foreclosed by the availability of the BOP
Administrative Remedy Program to address his complaint. For the foregoing reasons, we
AFFIRM the district court’s dismissal of Plaintiff’s complaint WITH PREJUDICE.
Entered for the Court
Bobby R. Baldock
Circuit Judge
5
We do not address whether the other remedies presented in the parties’ briefs and
considered by the district court below qualify as adequate alternatives for Bivens because
that discussion is unnecessary. Likewise, we do not wade into the other independently
sufficient grounds for disposing of this appeal, namely, “whether there is any reason to
think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.
Ct. at 1803. Nothing in this Order and Judgment should be read as expressing our views
on either subject.
13