We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NO HARM, NO FOUL

Jordan Dongarra, a convicted bank robber, was designated to serve his sentence at a newly-opened BOP facility, USP Canaan in Pennsylvania. When he arrived, Officer Smith issued him an ID card and clothing that mislabeled him as a sex offender. Jordy protested, and asked for new ID and threads. Officer Smith refused, saying he did not care and that he “hopes you know how to fight… and use a knife.”

Branded by his ID and T-shirt, Dongarra tried to explain the situation to other prisoners. Out of fear, he skipped all his meals and shed lots of weight. He refused to go out for recreation. “All this made him feeble and unfocused,” the Court said. He filed an administrative remedy, a so-called BP-9, asking the Warden to fix things by giving him normal prison clothes and an ID without the “sex offender” label.

The Warden never answered Jordy’s BP-9. Nevertheless, a few weeks after he filed it, the prison finally replaced his ID card and T-shirt with duds and accessories more appropriate for, say, your ordinary bank robber.

Jordan sued Officer Smith in an action brought under Bivens, asking for money damages and an injunction to order the prison not to do it again. The district court threw out the case, and Jordan appealed.

Last week, the 3rd Circuit upheld the dismissal. “The 8th Amendment bans cruel and unusual punishments,” the Circuit said. “When we parse his complaint, we see that Dongarra is alleging two distinct 8th Amendment wrongs. First, he challenges the conditions of his confinement: living in prison while branded a sex offender, he says, made him anxious and stressed. Second, he challenges the prison’s failure to protect him. Smith, he argues, was deliberately indifferent to the risk that other prisoners would assault a supposed sex offender.”

The 3rd said that Jordy’s conditions-of-confinement claim failed “because dubbing him a sex offender did not deprive him of a basic human need.” His “failure-to-protect” claim, however, did allege an 8th Amendment violation.

The problem with the “failure-to-protect” claim, the 3rd said, was that it fell short on actual injury: you can’t collect damages for an assault that never happened.

“Rights do not always have remedies,” the 3rd Circuit said. “Often, someone can violate a right without paying full compensation. For instance, a valid claim can be blocked by sovereign or qualified immunity. So too here. Dongarra claimed administrative and injunctive relief, but he cannot get damages for any past harm.”

This is a tough lesson for inmates to absorb. All the time, I hear from people who want to sue – and promise that any lawyer I find for them to take the case will become fabulously rich on the damages – because the Bureau of Prisons delayed medical treatment or held them in quarantine too long or denied their units recreation time or some other complaint. The complaints are usually correct, but the inmates cannot point to any actual harm they suffered other than stress, aggravation or ennui.

But popular media accounts notwithstanding, you really do need to be damaged before you can collect money for it. Juries are never terribly sympathetic to inmate plaintiffs to begin with. Telling Joe and Jane Juror in essence that the BOP was mean to you and you were upset by it rarely results in jury awards. In Jordan Dongarra’s case, it did not even result in the right to bring the claim.

Dongarra v. Smith, Case No. 20-2872, 2022 U.S. App. LEXIS 5347 (3d Cir. Mar. 1, 2022)

– Thomas L. Root