Steve Marquez v. C. Rodriguez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVE MARQUEZ, No. 21-55981

Plaintiff-Appellee, D.C. No.
3:18-cv-00434-
v. CAB-NLS

C. RODRIGUEZ, Correctional Officer
at M.C.C. Federal Prison; L. KELLY, OPINION
Correctional Officer at M.C.C. Federal
Prison,

Defendants-Appellants,

and

UNITED STATES OF AMERICA;
FEDERAL BUREAU OF PRISONS;
DAVID L. YOUNG, Warden of
M.C.C. Federal Prison; DOES, John
Doe #1 Classification Official; Jane
Doe #1 Classification Officer;
Supervisor John Doe #2 Prison
Guard,

Defendants.
2 MARQUEZ V. RODRIGUEZ

Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted April 12, 2023
Pasadena, California

Filed September 6, 2023

Before: William A. Fletcher, Kenneth K. Lee, and
Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Lee;
Concurrence by Judge W. Fletcher

SUMMARY *

Prisoner Civil Rights/Bivens

In an action brought pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971), alleging that federal correctional officials failed
to protect plaintiff from other detainees at a jail, the panel
reversed the district court’s denial of defendants’ motion to
dismiss and declined to extend a Bivens action to include a
Fifth Amendment failure-to-protect claim.
When a party seeks to bring a Bivens action, courts apply
a two-step test: whether the case presents a new Bivens

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MARQUEZ V. RODRIGUEZ 3

context, and, if so, whether there “special factors” that
counsel against extending Bivens.
Applying the first step, the panel held that this case
presents a new Bivens context that the Supreme Court has
not recognized in its Bivens jurisprudence. The panel
declined to recognize an implied Bivens context arising from
Farmer v. Brennan, 511 U.S. 825 (1994), which involved an
Eighth Amendment failure-to-protect claim by a female-
presenting transsexual individual who was assaulted by
other inmates. The panel noted that nearly thirty years have
passed since the Supreme Court decided Farmer and if the
Court were inclined to recognize it as one of the few
acceptable Bivens contexts, it would have done so. The
panel further determined that plaintiff’s claim was
meaningfully distinguishable from Farmer, which involved
an Eighth Amendment rather than a Fifth Amendment claim,
alleged a different category of harm, and arose in a different
factual setting.
Applying the second step, the panel held that special
factors counsel against extending Bivens to this case. The
legislature and executive were best positioned to address
plaintiff’s interest, and have, in fact, provided alternative
remedies through administrative review procedures offered
by the Board of Prisons. Accordingly, the panel declined to
overstep its constitutional role to create a new damages
action.
Concurring in the judgment, Judge W. Fletcher
explained that a state prisoner making the same factual
allegations as plaintiff states a cause of action for
damages. Denying a damages remedy to a federal prisoner
while granting it to a state prisoner in the same circumstance
is a miscarriage of justice.
4 MARQUEZ V. RODRIGUEZ

COUNSEL

Colin M. McDonald (argued) and George V. Manahan,
Assistant United States Attorneys; Katherine L. Parker,
Assistant United States Attorney, Civil Division Chief;
Randy S. Grossman, United States Attorney; United States
Department of Justice, Southern District of California, San
Diego, California; for Defendants-Appellants.
D. Dangaran (argued), Oren Nimni and Samuel Weiss,
Rights Behind Bars, Washington, D.C.; Hope Bentley and
Ronak Patel, Certified Law Students; Aaron Littman,
Supervising Attorney; UCLA School of Law Prisoners’
Rights Clinic, Los Angeles, California; for Plaintiff-
Appellee.

OPINION

LEE, Circuit Judge:

We address whether a plaintiff—who alleges that federal
correctional officers failed to protect him from other
detainees in a jail—can seek damages against them based on
the Fifth Amendment’s due process clause. See generally
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971). We hold that he cannot
and decline to extend a Bivens action to include a Fifth
Amendment failure-to-protect claim.
Invoking separation-of-powers principles, the Supreme
Court has repeatedly held that Congress, not the courts,
should typically decide whether to extend an implied
damages action against federal officials. This case is no
 MARQUEZ V. RODRIGUEZ 5

different, as it presents a factual and legal context that the
Supreme Court has not recognized in its Bivens
jurisprudence. And under this new context, Congress is
better suited than the judiciary to assess policy judgments
involved in expanding an implied cause of action against
federal officials. For example, this case implicates the
Bureau of Prisons’ policy of deciding which detainees
should be placed in protective custody, given strapped
resources and limited space. We thus reverse the district
court’s denial of the correctional officers’ motion to dismiss.
BACKGROUND 1
I. While Jailed as a Pretrial Detainee, Steve Marquez
Suffers Injuries After Jail Officials Deny His Request
for Protective Custody.
In 2016, Steve Marquez was booked into a federal
corrections center in San Diego for an alleged sex offense.
Given the nature of his charges, Marquez requested
protective custody. Jail officials, however, declined his
request, instead placing him in general population.
According to Marquez, the officials made sarcastic
comments such as “what a great guy” and “what an
upstanding citizen.” And one official allegedly handed
Marquez an emergency contact form—stating, “this is for
when something happens to you in prison”—while another
supposedly advised Marquez to lie to other inmates about the
nature of his charges. Marquez does not allege, however, that
any of the other inmates were in fact aware of the nature of
his charges.

1
Because this appeal comes to us from the denial of a motion to dismiss,
we accept as true all facts alleged in the complaint. Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009).
6 MARQUEZ V. RODRIGUEZ

Shortly after entering general population, Marquez
began to have trouble with a group of fellow inmates. One
inmate allegedly told Marquez, “we are going to break you.”
Another told him that if he did not do everything the group
commanded, they would “take care of him.”
It is unclear whether these inmates targeted Marquez
because of his status as an alleged sex offender or as part of
a hazing ritual, as none of the inmates mentioned Marquez’s
charges. Whatever the reason, Marquez’s harassment
continued to escalate. At some point, the inmates forced
Marquez to exercise to the point of collapse, leading to
serious medical complications requiring hospitalization.
Following his hospitalization, officials returned
Marquez to the jail’s general population over his objection.
He remained there for about a month before being
transferred to protective custody in state prison. During this
time, Marquez continued to suffer emotional and physical
distress, but he did not have any further encounters with his
former harassers.
II. The District Court Denies the Officers’ Motion to
Dismiss Marquez’s Complaint Against Them.
Marquez filed suit under Bivens against two jail
classification officers in their individual capacities. His
complaint alleges that the officers were deliberately
indifferent to a substantial risk of serious harm when they
declined Marquez’s requests for protective custody—first
despite knowing the risks tied to the nature of his sex-related
charges and later after knowing that he had suffered harm at
the hands of the other inmates. Because Marquez was a
pretrial detainee—rather than a prisoner—at the time, the
district court construed his claim as arising under the Due
Process Clause of the Fifth Amendment rather than under the
 MARQUEZ V. RODRIGUEZ 7

Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535
n.16 (1979).
The officers moved to dismiss the complaint, contending
that Marquez did not state a viable Bivens claim. The district
court denied the motion. Although the district court found
that Marquez’s claim presented a “new Bivens context,” it
concluded that an extension of Bivens could be warranted in
his case.
DISCUSSION
The district court erred in determining that Marquez’s
Bivens claim could proceed. In Bivens, the Supreme Court
recognized an implied cause of action against federal
officials for Fourth Amendment violations. Since then, the
Supreme Court has extended Bivens exactly twice: In Davis
v. Passman, 442 U.S. 228 (1979), the Court permitted an
administrative assistant to seek a damages remedy against
her former employer, a congressman, for alleged sex
discrimination in violation of the Fifth Amendment. And in
Carlson v. Green, 446 U.S. 14 (1980), the Court recognized
a Bivens remedy in an action brought by a federal prisoner’s
estate contending that prison officials infringed the Eighth
Amendment’s Cruel and Unusual Punishment Clause by
failing to provide adequate medical treatment.
Apart from those cases, however, the Supreme Court has
repeatedly and expressly confined Bivens claims, holding
that an extension of implied causes of action is recognized
today as “a ‘disfavored’ judicial activity.” Ziglar v. Abbasi,
582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 675 (2009)). Now, when a party seeks to bring a
Bivens action, we proceed in two steps. “First, we ask
whether the case presents ‘a new Bivens context’—i.e., is it
‘meaningful[ly]’ different from the three cases in which the
8 MARQUEZ V. RODRIGUEZ

Court has implied a damages action.” Egbert, 142 S. Ct. at
1803 (quoting Abbasi, 137 S. Ct. at 1859–60). If a case
presents a new Bivens context, then we examine whether
“there are ‘special factors’ indicating that the Judiciary is at
least arguably less equipped than Congress to ‘weigh the
costs and benefits of allowing a damages action to proceed.’”
Id. (quoting Abbasi, 582 U.S. at 136). These steps will
“often resolve to a single question: whether there is any
reason to think that Congress might be better equipped to
create a damages remedy.” Id. If so, then we may not allow
the Bivens claim to proceed.
In practice, the Supreme Court’s stringent test will
foreclose relief in all but the most extraordinary cases. See
id. at 1800, 1803; see also id. at 1809–1810 (Gorsuch, J.,
concurring). And while the Court has thus far “stop[ped]
short of overruling Bivens and its progeny,” id. at 1823
(Sotomayor, J., concurring), it has cabined the doctrine to the
facts of three decades-old cases. See Hernández v. Mesa,
140 S. Ct. 735, 751–53 (2020) (Thomas, J., concurring)
(citing Abbasi, 582 U.S. at 135–36).
Because Marquez’s claim fails to surmount this strict
standard, we conclude that he does not have a viable Bivens
action. We thus reverse the district court.
I. This Case Presents a New Bivens Context.
The district court correctly concluded that Marquez’s
claim arises in a new Bivens context. As we noted above,
“three cases—Bivens, Davis, and Carlson—represent the
only instances in which the Court has approved of an implied
damages remedy under the Constitution itself.” Abbasi, 582
U.S. at 131. Marquez cannot show that his Fifth
Amendment failure-to-protect claim fits within the context
of one of these three cases.
 MARQUEZ V. RODRIGUEZ 9

Marquez argues that Carlson allows a pretrial detainee
to bring a failure-to-protect claim under Bivens. He does not
argue that Carlson itself provides that remedy, however.
Nor could he, as Carlson addressed a withholding medical
care claim, not a failure-to-protect claim as in here. 446 U.S.
at 16–17 & n.1; see also Bulger v. Hurwitz, 62 F.4th 127,
138 (4th Cir. 2023). Instead, he leans on Farmer v. Brennan,
511 U.S. 825 (1994).
In Farmer, the Supreme Court considered an Eighth
Amendment failure-to-protect claim brought under Carlson
by a female-presenting, “transsexual” individual who was
assaulted by other inmates after being transferred to general
population. Although Farmer centered on the definition of
“the term ‘deliberate indifference,’” id. at 829, Marquez
argues that the case impliedly recognized that failure-to-
protect claims are an acceptable application of Carlson. We
disagree: Farmer is not a cognizable Bivens context. And
if it were, Marquez’s claim would still present a new Bivens
context, as there are meaningful differences between his
claim and the one at issue in Farmer.
A. Farmer is not a recognized Bivens context.
The Supreme Court’s Bivens jurisprudence squarely
forecloses Marquez’s argument that Farmer established a
cognizable Bivens context. As we have already stated, in
Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court held that
Bivens, Davis, and Carlson “represent the only instances in
which the Court has approved of an implied damages
remedy under the Constitution itself.” Id. at 131 (emphasis
added). More recently, the Court in Egbert v. Boule, 142 S.
Ct. 1793 (2022), suggested that a “new Bivens context”
arises anywhere that the Court has not affirmatively stated
that Bivens applies—which it did in only those three cases.
10 MARQUEZ V. RODRIGUEZ

We thus decline Marquez’s invitation to recognize an
implied fourth Bivens context arising from Farmer. Nearly
thirty years have passed since the Supreme Court decided
Farmer. If the Court were inclined to recognize it as one of
the few acceptable Bivens contexts, it would have done so.
Instead, the Court continues to reaffirm that there are but
three of these cases, and Farmer is not one of them. See
Abbasi, 582 U.S. at 131; Hernández v. Mesa, 140 S. Ct. 735,
743 (2020); Egbert, 142 S. Ct. at 1803. 2
B. Marquez’s claim is meaningfully distinguishable
from Farmer.
Even if we accepted Marquez’s assertion that Farmer
presents an acceptable Bivens claim, Marquez’s claim would
still require extending Bivens to a new context. A context is
“new” if the case differs “in a meaningful way from previous
Bivens cases.” Abbasi, 582 U.S. at 139. Examples of a
meaningful difference might 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

2
In so holding, we depart from the Third Circuit, whose decision to the
contrary predates Egbert, and instead join the Fourth Circuit. See
Bistrian v. Levi, 912 F.3d 79, 90–91 (3d Cir. 2018); Bulger v. Hurwitz,
62 F.4th 127, 139 (4th Cir. 2023); see also Snowden v. Henning, 72 F.4th
237, 241–42 (7th Cir. 2023) (emphasizing that the “Bivens trilogy” is a
closed group).
 MARQUEZ V. RODRIGUEZ 11

branches; or the presence of potential special
factors that previous Bivens cases did not
consider.

Id. at 140; see also Snowden v. Henning, 72 F.4th 237, 244
(7th Cir. 2023) (distilling “meaningful differences” as
“factual distinctions and legal issues that might alter the
cost–benefit balance that justified an implied damages
remedy in those cases”).
At the outset, we observe that “the constitutional right at
issue” is different here than in Farmer. See Abbasi, 582 U.S.
at 140. While both cases involve an alleged failure to
protect, Farmer concerned an Eighth Amendment claim,
while Marquez lodges his complaint under the Fifth
Amendment. See Egbert, 142 S. Ct. at 1807 (quoting
Abbasi, 582 U.S. at 139). Marquez contends that this is not
a meaningful difference, arguing that the Fifth Amendment
standard for a failure-to-protect claim is the same as, if not
lower than, the Eighth Amendment standard. Marquez’s
argument has some merit. Indeed, Justice Breyer echoed
that same point in Abbasi. Unfortunately for Marquez,
Justice Breyer was not in the majority in that case. Abbasi,
582 U.S. at 170 (Breyer, J., dissenting) (arguing that there is
no substantive difference in the scope of rights protected by
the Fifth and Eighth Amendments). The majority opinion in
Abbasi rejected the argument being advanced by Marquez.
In that case, the Supreme Court considered whether Carlson
permitted an implied cause of action in a lawsuit brought by
non-citizens detained in the wake of the 9/11 attacks and
who alleged that the warden violated the Fifth Amendment
by allowing guards to abuse detainees. Id. at 137–38
(majority opinion). The Court held that—despite the
“significant parallels” to Carlson—the case presented a new
12 MARQUEZ V. RODRIGUEZ

Bivens context. 3 It relied in part on the fact that “Carlson
was predicated on the Eighth Amendment and this claim is
predicated on the Fifth.” Abbasi, 582 U.S. at 147.
Besides this legal distinction, there are also meaningful
factual differences between this case and Farmer. To start,
the plaintiff in Farmer was a transgendered individual who
“projects feminine characteristics,” while Marquez was an
accused sex offender who requested segregation based
solely on a charged crime that was unknown to others. Thus,
the Farmer plaintiff presumably faced a higher risk of harm
because the other inmates would notice the physical
characteristics that put the plaintiff at risk.
Another difference is that the Farmer plaintiff (a
convicted criminal) resided in a prison, while Marquez (a
pretrial detainee) was temporarily held in jail. This
difference in setting is significant. Jails are typically smaller
than prisons, they are not intended for long-term detention,
and they house a different class of inmates. Prisons and jails
also may involve different levels of risk to inmate safety.
Because of these differences, jails and prisons are operated
differently. For example, a jail may have less space for
protective custody than a larger prison designed to hold
inmates long-term.
Thus, when compared to Carlson and Farmer,
Marquez’s claim arises under a different constitutional
amendment, it alleges a different category of harm, and it
arises in a different factual setting. As the Supreme Court
emphasized that even minor differences can satisfy the new-

3
Because the lower court did not advance past this question, the Court
vacated the judgment and remanded the case with instruction to conduct
the special-factors analysis. Abbasi, 582 U.S. at 149.
 MARQUEZ V. RODRIGUEZ 13

context inquiry, see Abbasi, 582 U.S. at 149, we conclude
that the differences identified here are more than enough to
establish that Marquez’s claim involves a new Bivens
context.
II. Special Factors Counsel Against Extending Bivens to
This Case.
The district court erred in finding that the record did not
support that “special factors” require dismissing Marquez’s
claim. Before extending Bivens to a new context, we must
consider whether there are “special factors counseling
hesitation in the absence of affirmative action by Congress.”
Id. at 136 (quoting Carlson, 446 U.S. at 18). This means that
“[i]f there is even a single ‘reason to pause before applying
Bivens in a new context,’ a court may not recognize a Bivens
remedy.” Egbert, 142 S. Ct. at 1803 (quoting Hernández,
140 S. Ct. at 743); see also id. at 1805 (“A court faces only
one question: whether there is any rational reason (even one)
to think that Congress is better suited to ‘weigh the costs and
benefits of allowing a damages action to proceed.’”
(emphasis in original) (quoting Abbasi, 582 U.S. at 136)).
In setting this low bar, the Supreme Court has declined
to “‘create an exhaustive list’ of factors that may provide a
reason not to extend Bivens.” Hernández, 140 S. Ct. at 743.
Instead, guided by “separation-of-powers principles,” we
must “consider the risk of interfering with the authority of
the other branches”—asking “whether ‘there are sound
reasons to think Congress might doubt the efficacy or
necessity of a damages remedy’ and ‘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. (citations omitted) (quoting
Abbasi, 582 U.S. at 135–37). Applying that standard here,
14 MARQUEZ V. RODRIGUEZ

we hold that Marquez does not have a cognizable Bivens
claim.
Marquez has remedies available other than a Bivens
claim. If “Congress has created ‘any alternative, existing
process for protecting the [injured party’s] interest’ that itself
may ‘amoun[t] to a convincing reason for the Judicial
Branch to refrain from providing a new and freestanding
remedy in damages.’” Abbasi, 582 U.S. at 137 (alterations
in original) (quoting Wilkie v. Robbins, 551 U.S. 537, 550
(2007)). We find that there are such remedies here. For
example, Marquez could have challenged his placement in
general population through administrative review
procedures offered by the Board of Prisons. 28 CFR
§ 542.13–15; see also Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 74 (2001). Marquez also could have filed for
declaratory or injunctive relief, rather than for damages
under Bivens. See Abbasi, 582 U.S. at 148.
Although the district court recognized these alternative
remedies, it found that these procedures might not have been
enough to address Marquez’s injuries. This was error.
Because our inquiry is limited by separation-of-powers
principles, we do not consider the adequacy of the alternative
remedy. That is “a legislative determination that must be left
to Congress, not the federal courts.” Egbert, 142 S. Ct. at
1807; see also Pettibone v. Russell, 59 F.4th 449, 456–57
(9th Cir. 2023). The availability of these alternative
remedies is enough for us to find that Congress—not the
judiciary—is best suited to address Marquez’s interests.
Egbert, 142 S. Ct. at 1804, 1806–07 (“So long as Congress
or the Executive has created a remedial process that it finds
sufficient to secure an adequate level of deterrence, the
courts cannot second-guess that calibration by
 MARQUEZ V. RODRIGUEZ 15

superimposing a Bivens remedy.”); Bulger, 62 F.4th at 140–
41.
Our hesitation to extend Bivens is also counseled by the
fact that Congress has already legislated on prison
administration without providing a damages remedy against
jail officials. See 42 U.S.C. § 1997e; Abbasi, 582 U.S. at
148 (“[L]egislative action suggesting that Congress does not
want a damages remedy is itself a factor counseling
hesitation. . . . [I]t seems clear that Congress had specific
occasion to consider the matter of prisoner abuse and to
consider the proper way to remedy those wrongs.”).
We thus conclude that the district court erred in finding
that Marquez alleged a viable Bivens claim.
CONCLUSION
In the fifty years since Bivens was decided, the Supreme
Court has permitted only two other implied-damages actions
arising under the Constitution. Outside of these cases, the
Court has repeatedly declined to extend Bivens remedies.
This hesitancy is informed by the basic structure of our
government—the separation of powers that vests the
authority to create new federal causes of action in Congress,
not the courts. We may not allow a Bivens claim to proceed
when “there is any reason to think that Congress might be
better equipped to create a damages remedy.” Egbert, 142
S. Ct. at 1803.
Here, this mandate forecloses Marquez’s requested
remedy. Marquez’s Fifth Amendment failure-to-protect
claim differs meaningfully from any of the three accepted
Bivens contexts. Because the legislature and executive are
best positioned to address Marquez’s interests—and have, in
fact, provided alternative remedies to do so—we decline to
16 MARQUEZ V. RODRIGUEZ

overstep our constitutional role to create a new damages
action. We thus REVERSE the district court’s order
denying the officers’ motion to dismiss.

W. Fletcher, J., concurring in the judgment.

Plaintiff Marquez was a pretrial detainee in federal
prison, charged with sex offenses. After the events at issue
in this case, the charges were dismissed, and Marquez was
released from prison.
Marquez brings a civil suit for damages against prison
officials under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging
a failure to protect him from his fellow prisoners in violation
of the Due Process Clause of the Fifth Amendment. The
district court denied a motion to dismiss brought under Rule
12(b)(6). In this procedural posture, we accept as true all
plausible factual allegations in Marquez’s complaint and all
reasonable inferences that may be drawn therefrom.
It is well known that sex offenders in prison are in danger
of severe injury or death at the hands of other prisoners.
Marquez alleges in his pro se complaint:

Due to the nature of the alleged charges
brought against him, it was imperative he be
placed in protective custody to protect him
from unreasonable risk of harm or from being
the subject of attack by other inmates.
During his interview for classification, C.
Rodriguez reviewed his alleged charges and
 MARQUEZ V. RODRIGUEZ 17

made comments towards him such as “what a
great guy” and “what an upstanding citizen.”
The official was well aware of
plaintiff[’]s charges and failed in [his] duty to
protect him from unreasonable risk or harm
by refusing requests to place plaintiff into
protective custody.
Instead he placed the plaintiff in general
population and chose to ignore plaintiff[’]s
requests to be placed in protective custody
and acted against prison policy and federal
law. Defendant C. Rodriguez handed
plaintiff an emergency contact form and said
to him, “here, this is for when something
happens to you in prison.”
The plaintiff became fearful and afraid
for his life and asked again to be placed in
protective custody. The official ignored the
plaintiff and instead advised plaintiff to lie to
other inmates about his alleged charges. He
said,”Don’t worry about it, just tell the other
inmates you[’re] here for selling drugs.”

Soon after Marquez was placed in the prison’s general
population, “the inmates moved plaintiff to a back corner of
the dorm[i]tory and the[n] began to physically torture him
by forcing him to perform extreme physical exertion until
plaintiff could no longer move. Out of fear for his life and
safety he complied.” Afterwards, Marquez “began to
experience more severe pain, fever, cold sweats, swelling of
his face and body, vomiting, loss of ap[p]etite, urination of
blood, shortness of breath, complete loss of leg function,
dizziness, headache, and mental and emotional anguish.”
The next day, Marquez notified a jail official and a nurse of
18 MARQUEZ V. RODRIGUEZ

what had happened. Medical staff drew blood for testing.
On the third day, more blood was drawn, and Marquez was
given an IV. He continued to urinate blood. On the fourth
day, Marquez was given another IV. Finally, on the fifth
day, he was taken to a hospital emergency room.
A doctor at the hospital informed Marquez that he had
“severe kidney failure” and that “death is a realistic
possibility.” Fearing imminent death, Marquez asked to
contact family members, but prison officials refused.
Marquez spent a week in the hospital. By the end of the
week, he had lost forty pounds. “[T]he end result of his
injuries included acute rhabdomyalosis [life-threatening
muscle injury], acute renal failure, acute tubular necrosis,
severe dehydration, medical renal disease, pulm[o]nary
congestion, cardiomegaly [enlarged heart], high blood
pressure, severe renal azotemia [excess waste products in the
blood], and other complications.”
Marquez sought the prescribed administrative remedy in
the prison and was denied relief.
The panel majority holds that because he is a federal
prisoner, Marquez has not stated a cause of action for
damages. If a state prisoner makes the same factual
allegations, it is black-letter law that he states a cause of
action for damages. See, e.g., Requena v. Roberts, 893 F.3d
1195 (10th Cir. 2018); Castro v. County of Los Angeles, 833
F.3d 1060 (9th Cir. 2016); Bowen v. Warden Baldwin State
Prison, 826 F.3d 1312 (11th Cir. 2016); Junior v. Anderson,
724 F.3d 812 (7th Cir. 2013); Nelson v. Shuffman, 603 F.3d
439 (8th Cir. 2010); Whitson v. Stone Cnty. Jail, 602 F.3d
920 (8th Cir. 2010); Clem v. Lomeli, 566 F.3d 1177 (9th Cir.
2009); Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008);
Brown v. Budz, 398 F.3d 904 (7th Cir. 2005); Calderon-
 MARQUEZ V. RODRIGUEZ 19

Ortiz v. LaBoy-Alvarado, 300 F.3d 60 (1st Cir. 2002); Lopez
v. LeMaster, 172 F.3d 756 (10th Cir. 1999); Hamilton v.
Leavy, 117 F.3d 742 (3d Cir. 1997); Taylor v. Michigan
Dep’t of Corrections, 69 F.3d 76 (6th Cir. 1995); Matzker v.
Herr, 748 F.2d 1142 (7th Cir. 1984). Even if all of his
factual allegations are true, Marquez can recover nothing. A
state prisoner in the same situation would likely recover
substantial damages.
It does not have to be this way. Indeed, it has not always
been this way.
The problem is easy to state. Section 1983, a post-Civil
War statute, provides a cause of action for damages for
violations of constitutional rights under color of state law.
After almost a century of ignoring § 1983, the Supreme
Court held in 1961 that it provides a cause of action for
damages against state and local officials who have violated
the Constitution. See Monroe v. Pape, 365 U.S. 167 (1961).
However, there is no equivalent statute providing a cause of
action for damages against a federal official.
The solution is also easy to state. When a suit is brought
against a federal officer who has violated the Constitution,
the Court can infer a cause of action for damages directly
from the Constitution, analogous to the cause of action under
§ 1983. The Court did this in Bivens, ten years after Monroe
v. Pape. Justice Brennan wrote for the Court that there were
no “special factors counseling hesitation in the absence of
affirmative action by Congress.” Bivens, 403 U.S. at 396
(emphasis added). Nor was there an “explicit congressional
declaration that persons injured by a federal officer’s
violation of the Fourth Amendment may not recover money
damages from the agents but must instead be remitted to
another remedy, equally effective in the view of Congress.”
20 MARQUEZ V. RODRIGUEZ

Id. at 397 (emphasis added). Recognizing that compensatory
damages were the only effective remedy, Justice Harlan
wrote, “For people in Bivens’ shoes, it is damages or
nothing.” Id. at 410 (Harlan, J., concurring) (emphasis
added).
In Butz v. Economou, 438 U.S. 478 (1978), seven years
later, the Court held that qualified immunity for a federal
officer in a Bivens action should match qualified immunity
for a state officer in a § 1983 action. Justice White wrote for
the Court:

[I]n the absence of congressional direction to
the contrary, there is no basis for according to
federal officials a higher degree of immunity
from liability when sued for a constitutional
infringement as authorized by Bivens than is
accorded state officials when sued for the
identical violation under § 1983. . . . That
Congress decided, after the passage of the
Fourteenth Amendment, to enact legislation
specifically requiring state officials to
respond in federal court for their failures to
observe the constitutional limitations on their
powers is hardly a reason for excusing their
federal counterparts for the identical
transgressions. To create a system in which
the Bill of Rights monitors more closely the
conduct of state officials than it does that of
federal officials is to stand the constitutional
design on its head.

Id. at 501, 504 (emphasis added).
 MARQUEZ V. RODRIGUEZ 21

The promise to the ear has been broken to the hope. The
vision of the Court that decided Bivens and Economou, a
vision articulated by justices as different as Justices
Brennan, Harlan, and White, has been abandoned. The
words are the same—“special factors counseling hesitation”
and “another remedy, equally effective in the view of
Congress”—but the reality is not.
For a “special factor,” it now suffices that “[i]f there is
even a single ‘reason to pause before applying Bivens in a
new context,’ a court may not recognize a Bivens remedy.”
Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting
Hernández v. Mesa, 140 S. Ct. 735, 743 (2020)). For
“another remedy, equally effective in the view of Congress,”
a failed administrative grievance now suffices. Egbert, 142
S. Ct. at 1806 (citing Correctional Services Corp. v.
Malesko, 534 U.S. 61, 74 (2001)).
Denying a damages remedy here is a miscarriage of
justice. There is no other way to characterize our decision
today.
As in Bivens, the reality is that there are no “special
factors” that justify denying Marquez a damages remedy. To
deny a damages remedy to a federal prisoner while granting
it to a state prisoner in the same circumstance “is to stand the
constitutional design on its head.” As in Bivens, the reality
is that a grievance procedure is not an “equally effective
remedy in the view of Congress.” “For people in
[Marquez’s] shoes, it is damages or nothing.”
With deep regret, I concur in the result.