Tag Archives: religious land use and institutionalized persons act

Paper Tiger – Update for June 25, 2026

Leave a comment

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

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 Federal Bureau of Narcotics.

Bivens, in case you were busy doing something else in 1971 (I was graduating from high school), 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.

Bivens arose when federal drug agents kicked down Webster Bivens’ front door searching for drugs. They arrested Web without a warrant, but the drug charges were dismissed by a magistrate judge.  Web sued the agents, alleging a violation of his 4th Amendment protection from unreasonable search and seizure. 

The government argued that the 4th Amendment does not provide a cause of action for damages but “merely… limit[s] the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power.”  Web Bivens argued that a cause of action could be inferred because constitutional protections would be meaningless without a way to seek a remedy for their violation.

Since the Supreme Court’s 1971 decision, it has upheld the concept of a Bivens action only two other times, once for sex discrimination in a federal employment setting (Davis v. Passman (1979) and once for violation of the 8thAmendment by deliberate indifference to prisoner medical care (Carlson v. Green (1980)). Since 1980, Bivens has been on a long, slow march to irrelevance. Under Ziglar v. Abbasi (2017) and Egbert v. Boule (2022), any claim that is not highly similar to the facts in Bivens (excessive force during arrest), Davis (sex discrimination in federal employment), or Carlson (inadequate care in prison) 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.”

And the Court always thinks that. 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 state employees 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 vote dividing the court along ideological lines, the majority said federal law did not allow the prisoner, Damon Landor, to sue individual guards in their private capacity for violations of the RLUIPA.

Justice Neil M. Gorsuch wrote the majority opinion, holding that there were limits to Congress’s power to attach strings to the federal money given to state institutions like the Louisiana prison where Damon was held.

Three justices dissented, warning that the court’s decision would leave few options for state prisoners whose religious rights were violated.

The decision is reminiscent of the apocryphal line attributed to President Andrew Jackson about a Supreme Court decision: “John Marshall has made his decision, now let him enforce it.”  While probably never said by Jackson, the point is a good one: a law without an enforcement mechanism is toothless.

Speaking of toothless…

Last Monday, 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.

Francis Nielsen, who worked at a federal prison in Honolulu, says a lower court incorrectly allowed the case to proceed by expanding precedent on when federal prison inmates can sue officials for deliberate indifference to their medical needs.

Inmate Kekai Watanabe suffered serious injuries when assaulted while in at Honolulu’s Federal Detention Center in 2021. Watanabe said in his lawsuit that he repeatedly requested treatment for severe injuries, but nurse 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, arguing that the doctrine should be overturned. “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.’”

I cannot help but believe that SCOTUS sees the Nielsen case as the vehicle in which it can finally drive Bivens off a cliff. The New Republic agrees. On Tuesday, it said that Nielsen v. Watanabe “will give the court an opportunity to further narrow… Bivens claims…” The magazine reported:

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.

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

Religious Land Use and Institutionalized Persons Act

New York Times, Supreme Court Bars Lawsuit After Prison Guards Shaved Inmate’s Dreadlocks (June 23, 2026)

Landor v. Louisiana Dep’t of Corrections & Public Safety, Case No. 23-1197, 2026 U.S. LEXIS 2717 (June 23, 2026)

Davis v Passman, 442 US 228 (1979)

Carlson v Green, 446 US 14 (1980)

Ziglar v. Abbasi, 582 US 120 (2017)

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

Courthouse News Service, Supreme Court to review inmate lawsuit over untreated prison riot injury (June 22, 2026)

Nielsen v. Watanabe, Case No. 25-417 (certiorari granted, June 22, 2026)

~ Thonas L. Root

Diesel Therapy Doesn’t Cure Mootness, 10th Circuit Says – Update for March 10, 2026

Leave a comment

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

THE PRISONER MOVES BUT THE LAWSUIT SURVIVES

One of the tools a prison administration’s toolbox has traditionally used to thwart an inmate’s lawsuit against the conditions of confinement is diesel therapy, a transfer (always involuntary) to a new joint. Moving a prisoner somewhere else – besides the disruption to his or her life the transfer causes – is a great way for a prison administration to rid itself of a troublesome inmate, impose punishment without calling it that (or being called to account for it) and sometimes to let the government argue that the inmate’s suit about prison conditions at Smiley Face Correctional Institution is moot because he or she is now at Happy Time Prison, hundreds or thousands of miles away from where the complained-of deprivation occurred.

Mootness is a constitutional concept, grounded in Article III’s “case or controversy” requirement. The doctrine provides that although an actual controversy may have existed at the action’s onset, if that controversy ceases to exist, a federal court must dismiss the action for want of subject-matter jurisdiction. Even if a case is not constitutionally moot, it may be prudentially moot, where the court decides in its discretion that the likelihood of continued injury is too abstract for the court to waste its time on it.

Colorado prisoner Rodney Eaves sued the State in federal court, arguing that officials at the facility where he was housed violated his 1st Amendment rights by denying him access to relics and rituals used in the practice of his native American faith. He wanted an injunction from the federal district court ordering prison officials at his facility to stop interfering with his 1st Amendment rights and statutory rights under the Religious Land Use and Institutionalized Persons Act, 42 USC 2000cc-2000cc-1.

During the suit’s pendency, Colorado transferred him to another prison and then argued that his suit was moot. The federal district court denied the State’s mootness claim, and the State appealed.

Last week, the 10th Circuit agreed with Rod, holding that “where an incarcerated plaintiff alleges exposure to unlawful conditions of confinement at the time he files his complaint, a subsequent transfer to another prison will not render his claim(s) for injunctive relief constitutionally moot unless defendant can show plaintiff is not and will not be exposed, even in part, to such conditions at his new facility.” A case becomes constitutionally moot only when party claiming mootness “establishes subsequent events make it impossible for a court to grant any effective relief whatever to his adversary.”

To avoid dismissal on the basis of prudential mootness, the 10th held, the plaintiff “bears the burden of establishing a recurrent violation of the wrongs about which he complained is more than an abstract possibility, such that the court may grant him some meaningful relief. Here, Rod submitted an affidavit stating his conditions of confinement at the new prison were substantially the same as they were at the old one.  Prison officials did not deny this. The Circuit ruled that because the State had “submitted nothing to contradict [Rod’s affidavit], the record points in only one direction… the State continues to subject Plaintiff post transfer to at least some of the allegedly unlawful conditions of confinement from which he seeks relief.” Thus, Rod’s religious freedom claims were not prudentially moot.

Eaves v Polis, Case No 23-1143, 2026 U.S. App. LEXIS 6341 (10th Cir. March 4, 2026)

Colorado Politics, 10th Circuit distances itself from prior decision making it easier to toss prisoner lawsuits (March 6, 2026)

~ Thomas L. Root