Following a recent U.S. Supreme Court decision closing the door on lawsuits for various violations of constitutional rights, the federal appeals court based in Denver has agreed an inmate may not sue a federal prison guard for allegedly assaulting him in his cell.

Anderson Coutinho Silva, who is incarcerated at the U.S. Penitentiary — Administrative Maximum Facility in Florence, ran into resistance from the U.S. Court of Appeals for the 10th Circuit in his attempt to seek monetary damages from the guard who reportedly entered his cell while he was restrained, jumped on him, and called in other guards to cut off Silva's clothes.

Such lawsuits against federal employees are legally known as a "Bivens remedy," which the Supreme Court has applied to a limited set of constitutional violations. But after the Court's conservative majority in June severely restricted the scope of Bivens remedies to other constitutional rights, a three-judge panel for the 10th Circuit felt obligated to dismiss Silva's complaint.

"First and foremost, we are left in no doubt that expanding Bivens is not just 'a disfavored judicial activity,'" explained Senior Judge Bobby R. Baldock in an Aug. 1 order, "it is an action that is impermissible in virtually all circumstances."

The concept of a Bivens remedy stems from a 1971 Supreme Court decision, Bivens v. Six Unknown Named AgentsIn 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, Baldock noted in the 10th Circuit's order, the Supreme Court subsequently "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."

In early June, the Court handed down a 6-3 decision in Egbert v. Boule, in which the majority said a man who was allegedly beaten up by a U.S. Border Patrol agent may not sue for excessive force. While dissenting Justice Sonia Sotomayor believed the Egbert case was "substantially similar" to that of Webster Bivens, 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.

For the Border Patrol, that amounted to an administrative process for handling grievances. Justice Clarence Thomas, writing for the majority, added that it is irrelevant whether such processes "do not provide complete relief" to someone whose constitutional rights are violated.

In Silva's lawsuit, he alleged corrections employee Brandon Shaw entered his cell, out of view of the security cameras, and beat him physically. Shaw reportedly radioed three other guards who "helped Officer Shawl (sic) hold me down and attacked me. ... They then took me to the restraint cell and cut my cloths (sic) off."

Silva, who represented himself, also claimed a guard threatened Silva if he did not drop his complaint. The lawsuit sought $10 million in damages, the discipline of all officers involved, and Silva's relocation from the Florence prison.

U.S. Magistrate Judge Michael E. Hegarty evaluated Silva's claims and recommended dismissing the lawsuit. A Bivens remedy, Hegarty concluded, was not available for the excessive force claim Silva was alleging, in large part because there was already a process for handling such complaints: filing an administrative grievance with the prison. 

Silva protested that the prison's procedures were not as effective as a lawsuit.

"The institution grievance process has never worked since guards will not discipline other guards. That is why the defendant wants nothing more than to have everything stay in-house where defendant's employer will sweep everything under the rug," Silva wrote.

Nonetheless, U.S. District Court Senior Judge Christine M. Arguello signed off on Hegarty's recommendation. Silva appealed to the 10th Circuit.

Represented by lawyers from Georgetown University Law Center and the nonprofit group Rights Behind Bars, Silva argued his claim of excessive force stemmed from the Eighth Amendment's prohibition on cruel and unusual punishment. Because the Supreme Court had already approved of a Bivens remedy under the same constitutional amendment — failing to provide medical care to inmates — Silva contended his lawsuit should be allowed to proceed.

"If this would be an extension of Bivens, it would be the most modest of modest extensions," attorney Samuel Weiss told the 10th Circuit panel during oral arguments in March. The government countered that excessive force and deliberate indifference to medical needs were not the same, and the court should not unilaterally permit inmates to sue for assaults by federal prison officials.

"It is certainly true that if there is a new claim and a new way for prison guards to be sued involving the use of force, they will have to hesitate and think twice," warned Assistant U.S. Attorney Karl L. Schock. "Now it may be that Congress decides that’s a good thing. But that is a policy judgment that should be made by Congress."

Shortly after oral arguments, the Supreme Court issued its decision in Egbert. Baldock, writing for the panel, concluded the Supreme Court had given clear instructions not to expand a Bivens remedy to lawsuits like Silva's. Because excessive force is different from medical indifference, and given the existence of the prison's grievance process, Silva could not hold Shaw liable.

"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," Baldock wrote.

The Egbert decision reverberated through the federal judiciary almost immediately. In addition to Silva's case, a federal judge in Colorado recently dismissed a transgender inmate's similar assault claim against a prison guard, citing the restrictive new guidance from the Supreme Court.

"The law was already heading in this direction even before Egbert, but I think Egbert just reinforces how rare the case will be today in which federal officers can be sued for damages for even the most egregious violation of our constitutional rights," Stephen I. Vladeck, a professor at the University of Texas School of Law, told Colorado Politics at the time.

The case is Silva v. United States et al.

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