Peter Bistrian v. Troy Levi
912 F.3d 79
| 3rd Cir. | 2018Background
- Peter Bistrian, a pretrial detainee at FDC Philadelphia (2005–2008), was placed in the Special Housing Unit (SHU) on four occasions; during one prolonged SHU placement he worked as an orderly and participated in a note‑passing surveillance operation for officials.
- His cooperation was exposed when he mistakenly passed a photocopy, after which he received threats and notified multiple prison officials (including Bowns, Gibbs, Jezior, Levi, McLaughlin, Robinson, Rodgers).
- On June 30, 2006, despite officials’ knowledge of threats, Bistrian was placed in the recreation yard with Steven Northington and two others and was brutally beaten; guards delayed entry until more officers arrived.
- Bistrian later was placed in the SHU a fourth time shortly after his counsel pressed the Bureau for explanations; he alleges this was punitive/retaliatory and that Warden Levi said Bistrian “would never see the light of day again.”
- He sued under Bivens for (1) Fifth Amendment failure to protect, (2) Fifth Amendment punitive detention, and (3) First Amendment retaliation; District Court denied qualified immunity on the first claim against several defendants and on punitive‑detention and retaliation claims against Levi and Jezior.
- Third Circuit: affirmed denial of summary judgment on failure‑to‑protect (Bivens available) but reversed as to punitive detention and retaliation (Bivens extension barred by special‑factors analysis).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens remedy exists for a pretrial detainee’s failure‑to‑protect claim (Fifth Amendment) | Bistrian: Farmer and prior Third Circuit precedent establish a clearly established right to protection from inmate violence; Bivens applies | Defendants: Extending Bivens is disfavored; special factors (FTCA, PLRA, separation of powers) counsel hesitation | Held: Not a new Bivens context (analogous to Farmer/curtis); Bivens remedy available; summary judgment denial affirmed |
| Whether a Bivens remedy exists for punitive administrative detention (Fifth Amendment) | Bistrian: Carlson/Davis support Bivens in prison/Fifth contexts; punitive SHU confinement is actionable | Defendants: Recognition would intrude on prison administration; special factors (separation of powers, administrative burden) bar extension | Held: New context; special factors counsel against extension; no Bivens remedy; summary judgment denial reversed |
| Whether a Bivens remedy exists for retaliation via SHU assignment (First Amendment) | Bistrian: prior circuit precedents recognized First Amendment Bivens actions (Paton, Mack) and his complaint alleges adverse action tied to protected activity | Defendants: Post‑Abbasi, First Amendment Bivens claims are novel; allowing them would disrupt prison administration and invite fabricated claims | Held: Novel context; special factors counsel hesitation; no Bivens remedy for retaliation claim; summary judgment denial reversed |
| Whether qualified immunity review is appealable here | Bistrian: defendants forfeited/chose not to press Bivens‑existence at trial; but courts may address Bivens question sua sponte | Defendants: appeal should be limited; many arguments raise factual disputes not reviewable now | Held: Court has jurisdiction to decide the threshold legal question whether Bivens applies; factual sufficiency challenges are not reviewable on interlocutory appeal |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognizing an implied damages action against federal agents for Fourth Amendment violations)
- Farmer v. Brennan, 511 U.S. 825 (1994) (establishing deliberate‑indifference standard for failure‑to‑protect claims in prison context)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (articulating framework for determining whether to extend Bivens and warning that extension is disfavored)
- Davis v. Passman, 442 U.S. 228 (1979) (recognizing Bivens‑type remedy under the Fifth Amendment in employment discrimination context)
- Carlson v. Green, 446 U.S. 14 (1980) (recognizing Bivens remedy for inadequate prison medical care; discussing FTCA as complementary remedy)