LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.
Edited by Thomas L Root, MA JD
Vol 12, No 26
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Is Bivens Creaking Toward An Ignominious End?
The Untouchables
Sleeper
Reading is FUNdamental. Guns May Be, Too.
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IS BIVENS CREAKING TOWARD AN IGNOMINIOUS END?
Two Supreme Court developments this past week do not bode well for the future of Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics.
Bivens held that the Constitution implied that people have a private right of action against federal agents, employees, and officials for violations of their rights. A statute – 42 USC 1983 – created a federal right to sue state agents for such violations, but nothing created a similar right where federal employees or agents ran roughshod over your rights.
Since the 1971 decision, the Supreme Court has upheld its application only two other times, once for sex discrimination in a federal employment setting (Davis v Passman in 1979) and once for violation of the 8th Amendment by deliberate indifference to prisoner medical care (Carlson v Green in 1980). Since 1980, Bivens has been on a long, slow march to irrelevance.
Under SCOTUS decisions Ziglar v Abbasi (2017) and Egbert v Boule (2022), any claim not “highly similar” to the facts in Bivens, Davis, or Carlson is a “new context” to which Bivens will not be extended if “there is any reason to think that Congress might be better equipped to create a damages remedy.”
On Tuesday, SCOTUS held that a Rastafarian prisoner whose dreadlocks were forcibly shaved by prison guards two weeks before his release – despite his showing the guards a court order saying that he was allowed to keep them – could not sue the guards themselves for money.
Louisiana inmate Damon Landor sued under the Religious Land Use and Institutionalized Persons Act, a federal law that requires states to protect the religious rights of individuals in state institutions. Among other provisions, RLUIPA requires prison officials to reasonably accommodate prisoners’ religious beliefs.
In a 6-to-3 decision, the high court held that federal law did not allow Damon to sue individual guards in their private capacity for RLUIPA violations.
Also last week, the Supremes granted review in a case brought by a nurse facing a $3 million lawsuit over failing to provide medical care to a federal inmate, a case which promises to finally kill off the all-but-moribund Bivens.
Inmate Kekai Watanabe suffered serious injuries when assaulted while in at FDC Honolulu in 2021. Watanabe said in his lawsuit that he repeatedly requested treatment for severe injuries, but nurse Francis Nielsen only told him to take over-the-counter medication for his pain.
In his petition for review, Nielsen argues that Watanabe should not have a right to sue under Bivens for his injuries. “Preserving what remains of Bivens does little good,” Nielsen wrote. “Bivens is now little more than a ‘zombie.’ It offers only ‘false hope … invit[ing] still more ‘protracted litigation destined to yield nothing.’ And it disserves the interests of civil rights and ‘the public writ large because, absent [Bivens’] formal abrogation, Congress has no incentive to legislate in the space.’”
The New Republic last week said that the Nielsen case “will give the court an opportunity to further narrow what are known as Bivens claims… Taken together, the justices’ position is that Bivens is unacceptable because it is Congress’s responsibility, not the courts’, to create federal causes of action. When Congress does create those claims, however, the justices’ position is that the courts must sharply narrow them through judicially created doctrines like qualified immunity. Judicial power can only make it harder, not easier, for people to hold accountable those officials who violate their constitutional rights.”
Religious Land Use and Institutionalized Persons Act, Pub.L. 106-274, 114 Stat. 803 (Sept. 22, 2000)
NY Times, Supreme Court Bars Lawsuit After Prison Guards Shaved Inmate’s Dreadlocks (June 23, 2026)
Landor v Louisiana Dept of Corrections & Public Safety, Case No. 23-1197, 2026 USLEXIS 2717 (June 23, 2026)
Courthouse News Service, Supreme Court to review inmate lawsuit over untreated prison riot injury (June 22, 2026)
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THE UNTOUCHABLES
The Roman poet Juvenal once asked, “Quis custodiet ipsos custodes?” Who will guard the guards themselves?
Inside the Federal Bureau of Prisons, the answer is the agency’s Special Investigation Service. SIS investigates both inmates and staff for everything from violation of the rules to criminal misconduct.
But that answer begs the next question. Who will guard the guards who are guarding the guards?
Last week, the Denver Post reported that SIS Lieutenant Michael Popma, who works at FCC Florence, has been indicted on charges of conspiracy, bribery, providing contraband in prison and unlawful interception of oral communication. Lt Popma, whom, the Post said, “was still employed as a lieutenant” as of last week, is accused of being paid more than $15,000 by an inmate’s family to “smuggle 123 cell phones, 415 electronic nicotine vaporizers and 274 bottles of alcohol into the prison,” according to the indictment.
Popma was hired at Florence in 2014 as a correctional officer and became a lieutenant in 2021. A BOP spokesman told the Post that while the agency “does not discuss potential allegations of staff misconduct… we generally can tell you that the Bureau of Prisons takes our duty seriously to protect the individuals entrusted to our custody as well as maintain the safety of correctional staff and the community.”
Denver Post, Colorado federal prison employee accused of smuggling cellphones, vapes into facility (June 23, 2026)
Indictment, US v Popma, Case No 26-cr-130 (Doc. 1) (D.Colo, June 2, 2026)
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SLEEPER
It’s hardly ever news when the Federal Bureau of Prisons updates one of its program statements, those tributes to bureaucratese that govern everything that goes on in the BOP from designation to flag protocol to use of force against inmates to distribution of toilet paper. The agency has over 300 program statements posted on its website alone, and that list leaves out more than a few the Bureau really doesn’t want people to see.
Program statements are constantly being adopted, updated and changed. In the first half of this year, the BOP has tinkered with over a fifth of the program statements posted at BOP.gov. Few people notice. But one change – a real sleeper – was posted last month, and it took Elizabeth Oyer, the former pardon attorney turned DOJ critic, to catch the change and note its significance.
Program Statement 5100.08, entitled Inmate Security Designation and Custody Classification Manual, regulates how inmates are placed in the appropriate level of BOP facility, be it a minimum-security camp or the ADMAX. It doesn’t matter who you are. All that matters is how you score on a matrix that measures everything from your offense and criminal history to your behavior inside to amount of time left to serve and over a dozen other factors.
And the exceptions to placement are well-regulated, too, by what are called “management variables.” A person with a sex-offender variable cannot be placed in a minimum-security camp. A camper needing a particular program or medical care only available at a low-security facility could receive a variable to permit placement at the higher-security prison.
There are a lot of valid criticisms of Program Statement 5100.08, but it embodies the best of bureaucracy, what German sociologist Max Weber defines as “a form of general organization characterized by the majority of rules and procedures applied impersonally by specialized agents.”
No longer. In a change notice to PS 5100.08 issued last month, the BOP quietly adopted a new DOJ policy that gives the Attorney General the power to send any federal prisoner to any prison in the country. Nothing limits the AG’s discretion, not regulation, not the BOP, not PS 5100.08.
This change notice could be intended to blunt the firestorm of criticism flowing from Jeffrey Epstein confidante Ghislaine Maxwell, who was sent to a camp despite her sex offense conviction after she sat for an interview last year with Todd Blanche. In the interview, she denied that President Trump had engaged in sexual misconduct with women in Epstein’s orbit. Critics, including legislators in Congress, have suggested that Maxwell’s designation to a camp – contrary to PS 5100.08 policy – was a payoff for her favorable testimony.
The change that Liz Oyer cited last week would, after the fact, give Blanche the power to redesignate Maxwell regardless of BOP policy. Oyer said the policy means that “[i]f you are facing a federal prison sentence, Todd Blanche has total discretion to decide where you’ll serve your time… Under this rule, Blanche could direct the Bureau of Prisons to put anyone who opposes the Trump Administration in a maximum security prison. if you’re prosecuted for protesting ICE, for example, or for vandalizing Trump’s Reflecting Pool, you could serve your sentence alongside murderers and rapists. Blanche could decide to put all of Trump’s enemies in maximum security prisons. He could put all Democrats in maximum security prisons. There are no limits no checks and no review of his decisions.”
The converse is equally problematic. “This policy [also] permits preferential treatment for Trump’s allies,” Liz Oyer said. “If you’re MAGA, you might go to a minimum security camp, or if you’ve got a couple million bucks to spend, you could buy your way into a halfway house or even home detention.”
Section 3621(b) of Title 18 holds that in designation, “there shall be no favoritism given to prisoners of high social or economic status.” But the same subsection provides that “a designation of a place of imprisonment under this subsection is not reviewable by any court.” If there is no right of review, then the AG can do as he or she pleases.
An interesting thought: If the AG can designate federal prisoners to whatever level, then the AG could designate someone to serve their entire sentences in a halfway house. What’s more, the AG could offer preferential designation as a benefit under plea or cooperation agreements.
Program Statement 5100.08 CN-3, Inmate Security Designation and Custody Classification Manual (May 6, 2026)
Youtube, @Lawyeroyer (June 22, 2026)
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READING IS FUNDAMENTAL. GUNS MAY BE, TOO.
The Supreme Court last week held that Hawaii’s restrictive firearms-carry law – that made a person lawfully packing heat get permission from any private owner from a neighbor to a store owner before entering the property – violated the 2nd Amendment. While the holding seems to have nothing to do with felon-in-possession laws, it suggests that SCOTUS is slowly moving toward a decision that 18 USC 922(g)(1) can be unconstitutional when applied to nonviolent felons.
Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman noted that the Wolford v Lopez opinion repeatedly referred to the right to possess a gun for self-defense as a “fundamental right” cited in DC v Heller, a 2008 decision.
Berman suggests the use of the term is no accident:
In this Wolford ruling (as well as last week’s Hemani ruling), the Justices are now acting and talking like the 2nd Amendment is to be regarded and safeguarded like other ‘fundamental Bill of Rights guarantees.’ But if that is true, I do not see how federal and state felon lifetime dispossession laws can be categorically upheld as consistent with the 2nd Amendment. I am unaware of any other fundamental constitutional right — or even fundamental common-law right such as the right of self-defense — that a person could forever lose on the basis of a prior conviction. Would anyone seriously claim that 1st Amendment protected activity, such as writing a book or going to church, could be permanently criminalized by governments if and whenever a person had a prior conviction? If that seems crazy under the 1st Amendment, it would seem modern doctrine also makes it crazy under the 2nd Amendment.”
Sentencing Law and Policy, If truly a “fundamental right,” how can lifetime felon bans on gun possession square with the 2nd Amendment? (June 25, 2026)
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