CHRISTOPHER “CHRISSY” SHORTER, Aрpellant v. UNITED STATES OF AMERICA, JORDAN HOLLINGSWORTH, Warden; CHRISTINE DYNAN, Associate Warden; ROBERT HAZZLEWOOD, Associate Warden; DR. MARANTZ, Chief of Psychology; UNKNOWN PENA, Captain; OFFICER BITTNER, Lieutenant, Special Investigative Supervisor; UNKNOWN HAMEL, Counselor; CARL SCEUSA, MD/CCHP; UNKNOWN BYRD, Unit Manager; UNKNOWN, PREA Compliance Manager
No. 20-2554
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 1, 2021
PRECEDENTIAL. Argued on April 22, 2021. Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1-19-cv-16627). District Judge: Honorable Renee M. Bumb.
Argued on April 22, 2021
Before: AMBRO, RESTREPO, and RENDELL, Circuit Judges
(Opinion filed September 1, 2021)
Kelly J. Popkin (Argued)
Rights Behind Bars
276 Stratford Road
Brooklyn, NY 11218
Samuel Weiss
Rights Behind Bars
416 Florida Avenue NW, #26152
Washington, DC 20001
Counsel for Appellant
J. Andrew Ruymann
United States Attorney‘s Office
970 Broad Street, Room 700
Newark, NJ 07102
John T. Stinson, Jr. (Argued)
United States Attorney‘s Office
402 East State Street, Room 430
Trenton, NJ 08608
Counsel for Appellees
Kevin M. Costello
Harvard Law School
Center for Health Law & Policy Innovation
1585 Massachusetts Avenue
Cambridge, MA 02138
Alexander L. Chen
T. Keith Fogg
Legal Services Center of Harvard Law School
122 Boylston Street
Jamaica Plain, MA 02130
Counsel for Amici Appellants Former Corrections Officials
OPINION OF THE COURT
AMBRO, Circuit Judge
Chrissy Shorter is a transgender woman who alleges she was stabbed and raped by a fellow inmаte while in federal prison despite having warned prison officials repeatedly that she was concerned about being assaulted. She brought a pro se suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming officials violated her Eighth Amendment rights by displaying deliberate indifference to the substantial risk that another inmate would assault her. Invoking its authority under
Shorter argues on appeal that a Bivens remedy is available and that the District Cоurt erred by ignoring relevant factual allegations and imposing a needlessly demanding standard on her pro se complaint. The Government responds that we should not recognize a Bivens remedy in this context.
Shorter has the better argument. Her case falls comfortably within one of the few contexts in which the Supreme Court has recognized a Bivens remedy. And because Shorter adequately pleaded a violation of the Eighth Amendmеnt, the District Court erred in dismissing that claim so early in the proceeding. We therefore reverse the dismissal of the Eighth Amendment claim and remand.
I. Background
Shorter is a transgender woman who has undergone hormone replacement therapy, meaning her body is “openly female.”1 J.A. at 81. In June 2015, she entered the Federal Correctional Institution, Fort Dix to begin a 96-month sentence for creating a fraudulent “tax services” firm. J.A. at 69; Gov. Br. аt 3. Although prison officials were aware that Shorter was transgender, they opted to house her in a room without a lock with 11 men. Prison officials screened her risk for sexual assault under the
Despite these concerns, officials continued to house Shorter in a room without a lock with 11 men. Worried this living situation put her at risk for sexual assault, she asked to move to a two-person cell instead, citing policies of the Bureau of Prisons (“BOP“) that supported her position. After initially objecting to this request, the prison
But the move did not fix the problem: the new cell also had no lock and was the furthest cell from the officer‘s station. Shorter reported these issues to prison officials, along with other concerns about sexual harassment and assault, but they took no immediate steps to protect her. Instead, her counselor compounded the problem by assigning a sex offender as her cellmate. The sex offender was later removed from her cell, and Shorter followed up with a grievance to the warden.
A few days later, Shorter again expressed concerns about sexual assault and submitted a request to transfer to a different prison, along with a BOP Program Statement supporting her request. Demonstrating the depth of her concern, Shorter requested a transfer from the low-security Fort Dix to a higher security facility, as she believed the latter would provide more protection against assault. The transfer request asserted that Fort Dix was a particularly dangerous facility for her because it holds an unusually large number of sex offenders and does not permit locks on cell doors. Although the prison‘s psycholоgy department agreed Shorter should be transferred, she remained in the cell furthest from the officer‘s station while her request was pending.
Prison leadership took 17 days to act on Shorter‘s transfer request. On September 4, 2015, the BOP‘s Gender Identity Dysphoria Committee decided Shorter should be transferred because there were “security concerns due to” her gender dysphoria and “the physical layout” of Fort Dix сould not “provide the same type of supervision as in other institutions.” Id. at 106. Despite the apparent urgency of the situation, the warden took yet another 17 days before acting on the Committee‘s recommendation and submitting a transfer request to the central BOP office.2
Conditions in the prison only worsened as Shorter awaited transfer. She continued to submit written materials to prison officials detailing her сoncerns. And on October 5 and 8, 2015, the associate warden distributed two memoranda suspending certain inmate privileges due in part to the recent “significant increase in security issues involving staff and inmate assaults.” Id. at 71, 108-109.
On October 14, 2015, Shorter‘s fears became real. In the middle of the night, an inmate entered her cell, raped her, and cut her seven times. After Shorter reported the incident, she was placed in involuntаry protective custody. The prison conducted what Shorter characterizes as a cursory investigation of the assault but did not substantiate her claims. On November 3, 2015, approximately two and a half months after her initial transfer request and four months after she first complained to prison officials about her living arrangement, officials finally transferred Shorter from Fort Dix. She completed her sentence in 2019 and was released from custody.
After exhausting administrative remedies, Shorter filed this pro se lawsuit alleging, among other claims, that prison officials (collectively, “Defendants“) were deliberately indifferent to the risk she would be seriously harmed in violation of the Eighth Amendment. The District Court screened her complaint under
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under
III. Analysis
We analyze the viability of Shorter‘s complaint in two steps. First, we consider whether a Bivens remedy exists at all in the context of deliberate indifference to prison rape. Concluding that it does, we next consider whether Shorter‘s complaint, in particular, was sufficiently pled to survive dismissal at this early stage. See Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018) (”Bistrian II“) (“Whether a Bivens claim exists in a particular context is antecedent to the other questions presented.“) (internal quotation marks and citation omitted).
A. Availability of a Bivens Remedy in This Context
”Bivens is the short-hand name given to causes of action against federal officials for alleged constitutional violations.” Id. In the case giving the doctrine its name, the Supreme Court held there is a cause of action for damages when a federal agent, acting under color of his authority, conducts an unreasonable search and seizure in violation of the Fourth Amendment. Bivens, 403 U.S. at 389, 397. The Supreme Court subsequently recognized a Bivens remedy in two other contexts: gender discrimination in the employment context in violation of the Fifth Amendment‘s Due Process Clause, see Davis v. Passman, 442 U.S. 228, 249 (1979), and certain types of prisoner mistreatment in violation of the Eighth Amendment‘s prohibition of cruel and unusual punishment, see Carlson v. Green, 446 U.S. 14, 16 n.1 (1980) (addressing a claim of deliberate indifference to a prisoner‘s serious medical needs).
In Farmer v. Brennan, 511 U.S. 825, 830 (1994), the Supreme Court applied Carlson in reсognizing an Eighth Amendment damages claim nearly identical to the one at issue here, involving prison officials who failed to keep a transgender prisoner safe from sexual assault. The Farmer Court explained that the Eighth Amendment “imposes duties on [prison] officials, who
In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court summarized the status of Bivens jurisprudence. The Court emphasized that, although the doctrine is a “settled,” “fixed principle in the law” in certain spheres, “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). The Court then prescribed a two-pronged inquiry for courts to follow in deciding whether to recognize a Bivens remedy. First, they must evaluate whether a case presents “a new Bivens context,” meaning that it “is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. The Abbasi Court named three previous cases in which a Bivens remedy has been recognized: Bivens itself, in addition to the above-referenced Davis and Carlson. Id. at 1854-55. “[M]eaningful” differences from those recognized contexts may include
the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance аs to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Id. at 1860. If a case does not present a new Bivens context, the inquiry ends there, and a Bivens remedy is available. Bistrian II, 912 F.3d at 91-92. If, however, the case does present a new Bivens context, a court proceeds to the second step of the аnalysis and asks whether any “special factors counsel[] hesitation” in extending a Bivens remedy to that context. Abbasi, 137 S. Ct. at 1857-58 (internal quotation marks and citation omitted).
Defendants assert this case presents a new Bivens context and that special factors counsel hesitation before allowing a Bivens remedy here. Our Court‘s precedent in Bistrian II covers this argument. 912 F.3d at 89-94. In that case, we considered a Bivens claim from a prisoner who
Because Bistrian‘s claim was not meaningfully different from the claim at issue in Farmer, we concluded the latter case “practically dictate[d] our ruling” in the former. Id. at 91. So too here.5 Farmer made clear, in circumstances virtually indistinguishable from our case, that an Eighth Amendment Bivens remedy is available to a transgender prisoner who has been assaulted by a fellow inmate. As Shorter points out, her case and Farmer‘s both involved (1) transitioning transgender women on estrogen who had developed female physical characteristics, (2) who were housed in allegedly unsafe cells in the general population of all-male prisons where assaults were frequent, (3) who were physically and sexually assaulted by fellow inmates, even after (4) prison officials admitted “a high probability” that they “could not safely function” in the prison due to their transgender status, and (5) who alleged that prison officials had therefore been deliberately indifferent to their safety.6 Farmer, 511 U.S. at 830-31, 848; Shorter Br. at 3-10. Defendants have pointed to no meaningful differences between the two cases.7 And as we held in Bistrian II, Farmer remains good law. Our case therefore does not present a new Bivens context.
B. Sufficiency of Shorter‘s Pleading
Defendants argue that even if a Bivens remedy is theoretically available in Shorter‘s case, it was nonetheless appropriate for the District Court to dismiss her complaint sua sponte at the screening stage under
It was premature to dismiss Shorter‘s complaint at the screening stage. Construing her complaint liberally, accepting her factual allegations as true, and drawing all reasonable inferences in her favor, as we must, Shorter has stated an Eighth Amendment deliberate indifference claim. That type of claim has three components: “an inmate must plead facts that show (1) [s]he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to h[er] health and safety, and (3) the official‘s deliberate indifference caused h[еr] harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (”Bistrian I“). Neither the District Court nor Defendants argue that Shorter failed to satisfy the first and third prongs; being sexually assaulted and stabbed indisputably pose a substantial risk of serious harm, and Shorter has alleged she was indeed harmed when she was assaulted.
Accordingly, only the second prong—whether the Defendants demonstrated “deliberate indifference to [Shorter‘s] health or safety“—is at issue. Farmer, 511 U.S. at 834 (internal quotation marks omitted). “Deliberate indifference” is evaluated under a subjective standard; “the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety” and disregarded that risk. Beers-Capitol v. Whetzel, 256 F.3d 120, 125, 132 (3d Cir. 2001). “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842 (internal citation omitted).
Shorter has adequately alleged that the Defendants were deliberately indifferent to the substantial risk she would be sexually assaulted. First, her complaint alleges that she repeatedly told prison officials about the risks she faced at Fort Dix, campaigned to transfer facilities due to the unique threats pоsed by the layout and inmate population at Fort Dix coupled with her transgender status, and supplemented her grievances with specific references to supporting BOP policies. It is difficult to imagine what more an unrepresented inmate could do to make prison officials aware of her risk of sexual assault. The District Court faulted Shorter for making “generalized” complaints that did not memorialize any particular threats of sexual assault by a specific inmate. J.A. at 10. But construed in the light most favorable to Shorter, the complaint plausibly alleges her grievances were not “generalized“; she gave many specific reasons why she was at high risk for becoming a sexual assault victim. Further, a prisoner‘s “failure to give advance notice [of the risk to her safety] is not dispositive,” and a prison
Moreover, Shorter also alleged that the Defendants explicitly acknowledged her risk of sexual assault. Prison offiсials evaluated that risk when she first entered Fort Dix, and they concluded she was at “significantly” higher risk than other inmates due to a variety of particular factors that included her transgender status. J.A. at 69, 137-38. Officials later recognized that she needed to be transferred to a different facility because there were “security concerns due to” her gender dysphoria, and “the physical layout” of Fort Dix could not “provide the same type of supervision as in other institutions.” Id. at 106. And in the days leading up to the attack on Shorter, prison officials posted notices throughout the prison warning about an increase in assaults. Yet Shorter alleges the prison did little to mitigate these concerns, keeping her in a dangerous cell far from the officers’ station and even going so far as to place a known sex offendеr as her cellmate.8
To be sure, Shorter‘s claim may yet fail if the Defendants acted reasonably in response to the risk to her safety. See Farmer, 511 U.S. at 844 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.“). We express no opinion on that fact-intensive question. But Shorter has provided sufficient allegations of the Defendants’ deliberate indifference to proceed to the next stage in the litigation.9 Cf. Hamilton v. Leavy, 117 F.3d 742, 748 (3d Cir. 1997) (concluding that it was inappropriate to decide the reasonableness of the defendants’ actions even at the summary judgment stage because there were genuine disputes of material fact). Dismissing Shorter‘s Eighth Amendment claim at the screening stage—before discovery and before Shorter even had the chance to serve process—requires a remand.
* * * * *
Extending a Bivens remedy to a new context is a disfavored judicial activity. But Shorter‘s case does not require any extension of Bivens. Instead, her claim falls squarely within one of the Bivens contexts long recognized by the Supreme Court as discussed explicitly in our precedent. And Shorter‘s pro se complaint, liberally construed, has plausibly alleged a violation of the Eighth Amendment. We thеrefore reverse the dismissal of the Eighth Amendment claim and remand.