The federal appeals court based in Denver underscored last month that incarcerated plaintiffs have essentially no path to suing federal officials for money for violating their constitutional rights.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit explained that the U.S. Supreme Court’s precedent, as well as its own, meant prisoners in federal facilities must rely on internal grievance protocols for alleged constitutional violations, not the courts.

That reality, however, has recently prompted some federal judges in Colorado to be uncharacteristically public in their dissatisfaction with the obstacles to suing the federal government, as the same hurdles do not exist for states and localities.

Lawsuits seeking money damages against federal employees for constitutional claims are legally known as a “Bivens remedy,” stemming from a 1971 Supreme Court decision, Bivens v. Six Unknown Named Agents. In that case, federal narcotics officers entered a man’s home without a warrant, arrested and strip searched him. A majority of the court decided plaintiff Webster Bivens could sue for a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures.

Since then, the Supreme Court has recognized a Bivens remedy exists for two other scenarios: sex discrimination under the Fifth Amendment and deliberate indifference to an inmate’s serious medical needs under the Eighth Amendment.

However, in 2022, the court handed down a 6-3 decision in Egbert v. Boule, severely restricting the availability of any further Bivens remedies. The majority concluded Bivens remedies are not available when Congress or the executive branch is “better equipped” to create a method for addressing constitutional violations.

Quickly, the 10th Circuit applied the new constraint to a federal prisoner’s excessive force case in Colorado. While the Supreme Court may have been open to such lawsuits in early Bivens remedy cases, it has “progressively chipped away at the decision – to the point that very little of its original force remains,” observed Senior Judge Bobby R. Baldock in the case of Silva v. United States.

In the most recent Bivens case to reach the 10th Circuit, Peter George Noe alleged that during his incarceration at the U.S. Penitentiary – Administrative Maximum Facility in Florence, dental staff failed to adequately treat his severe tooth problems. He brought a lawsuit claiming, among other things, deliberate indifference to his serious medical needs under the Eighth Amendment.

Case: Noe v. United States Government

Decided: December 22, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Allison H. Eid (author)

Joel M. Carson III

Veronica S. Rossman

Background: Federal judge to Congress: Roll back Supreme Court’s limitations on suing federal officials

U.S. Magistrate Judge Scott T. Varholak, in reviewing Noe’s claim, acknowledged the Silva decision appeared to dictate the outcome: Because the Federal Bureau of Prisons had an internal grievance process available to Noe, there was nothing the courts could do. At the same time, Varholak wrote at length about his discomfort with that state of affairs.

“Under the rationale,” Varholak elaborated, “a federal prison official may sadistically beat an inmate to within an inch of his life and that inmate will not have a civil remedy against that prison official – after all, the inmate may file a grievance.”

Varholak added that deliberate indifference to serious medical needs is already one of the limited types of claims the Supreme Court previously endorsed for a Bivens remedy – but only when a prisoner dies as a result of officials’ actions. Because Noe merely alleged significant pain, there was no path forward.

A “factual similarity to previous cases no longer appears sufficient to permit a Bivens claim to proceed,” Varholak noted.

In a Dec. 22 order, the 10th Circuit panel reviewing Noe’s appeal agreed its own decision in Silva interpreting the Supreme Court’s guidance led to the conclusion that the prison grievance system – or “administrative remedy program” – is the only recourse for prisoners’ constitutional claims.

“And here, the ARP, which Silva says is an adequate alternative remedy, is available to Noe,” wrote Judge Allison H. Eid.

The frustration on the bench with the Supreme Court’s restrictions on suing the federal government is not limited to Varholak. In August, U.S. District Court Senior Judge William J. Martínez took the extraordinary step of calling on Congress to roll back the hurdles erected by the nation’s highest court. He believed a plaintiff had a credible case against prison officials for a physical attack, but because the facility was a federal one, Martínez was obligated to throw out the case.

“Had the alleged events in this case occurred in state correctional facilities, Plaintiff would have very strong claims,” he wrote in an order. “Congress must act promptly to rectify this gaping void in the remedies available to federal prisoners subjected to unconscionable misconduct.”

The case is Noe v. United States Government et al.