Tag Archives: deliberate indifference

10th Circuit Deliberately Indifferent to Bivens – Update for December 5, 2024

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

10TH CIRCUIT KILLS BIVENS ‘DELIBERATE INDIFFERENCE’ CLAIM

The 10th Circuit minced no words: “The Supreme Court’s “abrogative process of Bivens has been ‘gradual, but relentless, such that the “‘right answer’ to whether to recognize a Bivens cause of action will always be no… Bivens is now all but dead.”

BivensdeadDustin Rowland’s lawsuit was pretty plain vanilla. He sued various BOP officials, claiming they were deliberately indifferent to his serious medical needs by repeatedly denying his requests for hernia surgery and post-operative treatment, seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. It is the kind of medical indifference suit that inmates file across the country all the time.

Or used to.

On November 19th, the 10th Circuit held that under the 2022 Supreme Court decision in Egbert v Boule, John’s case presented an application of Bivens that was different from the situations recognized as raising a valid Bivens claim. Given the “expressed caution about extending the Bivens remedy, even significant parallels to one of the Court’s previous Bivens cases” may not be enough to show that a case arises in the same context,” the 10th said Dustin could not seek damages for any 8th Amendment violations he had suffered.

Dustin’s case was materially different from the one prior case that SCOTUS – back in its salad days – had held raised a valid Bivens claim. In the decision in Carlson v. Green, the record showed that the inmate victim had died because of deliberate indifference. “Small differences can easily satisfy the new-context inquiry,” the 10th said.

He was dead, Dustin. You’re not. Viva la difference.

bivensalive241205The 10th’s holding drives a stake through virtually any Circuit Bivens 8th Amendment claim and probably will embolden the Government (like it needs any such encouragement to stretch precedent enough to deny an aggrieved prisoner a remedy for legitimate constitutional claims) to make similar arguments in other Circuits. If any circuit split results, the Supremes would settle it (and probably not in favor of the prisoner).

Rowland v. Matevousian, Case No. 23-1343, 2024 U.S.App. LEXIS 29406 (10th Cir., November 19, 2024)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v. Boule, 596 U.S. 482 (2022)

Carlson v. Green, 446 U.S. 14 (1980)

– Thomas L. Root

4th Circuit Strikes Blow Against Lousy Prison Medical Care – Update for September 12, 2019

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

4TH CIRCUIT HOLDS OFFICIAL’S KNOWLEDGE OF POLICIES AND DENIAL OF GRIEVANCES CAN ESTABLISH 8th AMENDMENT DELIBERATE INDIFFERENCE

hepc190912The 4th Circuit handed down a fascinating 8th Amendment opinion last week that established a prison’s obligation to treat hepatitis C, as well as expanding on the universe of officials subject to 8th Amendment claims.

For those of you who dozed through high school government class, the 8th Amendment prohibits cruel and unusual punishment. The Courts have defined that over the years to include the deliberate indifference of prison officials to serious medical needs of inmates.

Carl Gordon, a Virginia state inmate, had hepatitis C. The Virginia prison system had a policy of not treating hep C in people eligible for parole or close to the door, purportedly because they might leave in the middle of treatment, which posed a risk to their health. Carl was eligible for discretionary parole in 2008, despite the fact his actual “out” date was in 2028, 20 years later. He repeatedly filed administrative grievances demanding treatment for hepatitis C and warning of the deadly effects of the disease if left untreated.

The prison health director, who was familiar with the Virginia policy on hep C treatment, kept denying Carl’s grievances, telling Carl simply to go to sick call (despite the fact the director knew that at sick call, Carl would be refused hep C treatment because of the policy).

Finally, this “dog chasing its tail” saga reached federal court.

dogtail190912“By the very nature of the health director’s position,” the Circuit said, “he was personally involved in reviewing and enforcing the policy that prevented Carl Gordon from receiving HCV treatment… And the health director’s consistent failure to revise the Guidelines to remove the parole-eligibility exclusion constitutes personal involvement in the denial of HCV treatment for Gordon… it is inconsistent with the 8th Amendment for a prison official to withhold treatment from an inmate who suffers from a serious, chronic disease until the inmate’s condition significantly deteriorates.”

Gordon v. Schilling, 2019 U.S. App. LEXIS 26676 (4th Cir. Sept. 4, 2019)

– Thomas L. Root