Nos. 18-1967/1991/1992/2011/2017
United States Court of Appeals for the Third Circuit
December 28, 2018
PRECEDENTIAL. Argued September 11, 2018. On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-08-cv-03010). District Judge: Hon. Cynthia M. Rufe.
Jeffrey McLaughlin; Timothy Bowns; Maribel Burgos; David Robinson, Appellants in No. 18-1967
Troy Levi, Appellant in No. 18-1991
William Jezior, Appellant in No. 18-1992
LT James Gibbs, Appellant in 18-2011
Gregory Rodgers, Appellant in 18-2017
Before: JORDAN, RENDELL, and VANASKIE, Circuit Judges
Benjamin N.
Carlton L. Johnson, Jeffrey M. Scott [ARGUED], Shelley R. Smith, Archer & Greiner, Three Logan Square, 1717 Arch St. - #3500, Philadelphia, PA 19103, Counsel for Appellants Jeffrey McLauglin, Timothy Bowns, Maribel Burgos, David Robinson
Genelle P. Franklin, Fridie Law Group, 101 Route 130 South - #9, Cinnaminson, NJ 08077, Counsel for Appellant Lt. Rodgers
Gary L. Bailey, Syreeta J. Moore, Bailey & Associates, 1500 Walnut St. - #821, Philadelphia, PA 19102, Counsel for Appellant J.A. Gibbs
Kay Kyungsun Yu, Aleena Y. Sorathia, Ahmad Aaffarese, Joseph E. Zaffarese, One South Broad St. - #1810, Philadelphia, PA 19107, Counsel for Appellant William Jezior
Richard L. Bazelon [ARGUED], Michael F. Harris, Bazelon Less & Feldman, One South Broad St. - #1500, Philadelphia, PA 19107
Robert E. Goldman, 535 Hamilton St. - #302, Allentown, PA 18101, Counsel for Appellee
Jonathan H. Feinberg, Kairys Rudovsky Messing & Feinberg, 718 Arth St. – #501 South, Philadelphia, PA 19106
Bruce P. Merenstein, Schnader Harrison Segal & Lewis, 1600 Market St. - #3600, Philadelphia, PA 19103
Mary Catherine Roper, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19106, Counsel for Amicus, American Civil Liberties Union
OPINION OF THE COURT
JORDAN, Circuit Judge.
Peter Bistrian, a detainee at the Federal Detention Center (“FDC“) in Philadelphia, brought suit against prison officials there. He alleges that they failed to protect him from other prisoners and punitively detained him in the FDC‘s Special Housing Unit (“SHU“).1 The District Court granted qualified immunity to some defendants on some claims, but denied summary judgment on Bistrian‘s constitutional claims, which were brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). For the reasons that follow, we will affirm in part and reverse in part.
I. FACTUAL BACKGROUND2
From August 2005 until March 2008, Bistrian was a detainee at the FDC while he awaited trial, was tried, convicted, and finally sentenced on charges related to wire fraud. During that time, prison officials placed him in the SHU on four occasions.
They first placed him in the SHU on November 18, 2005, following allegations that he had violated telephone use rules. He stayed there for approximately seven
During that second round of intensive detention, Bistrian earned some privileges and became an orderly, a prison job that provided him the opportunity to interact with other inmates housed in the SHU. Knowing of Bistrian‘s
access to others in the SHU, a fellow inmate, Steven Northington, asked him to pass notes between inmates. In particular, Northington wanted to facilitate communication for another prisoner, his friend and criminal confederate Kaboni Savage.4 Bistrian told Officers Gibbs and Bowns of that request, rightfully believing they would be interested. That led to the formation of a surveillance operation in which Bistrian secretly passed inmate notes to prison officials. Prison officials photocopied the notes, and gave Bistrian the original to pass along. All went as planned until Bistrian accidentally gave a photocopy of a note, instead of the original, to an inmate, thereby tipping off the SHU‘s residents to Bistrian‘s cooperation with prison officials. After his cooperation became known, he received multiple threats and made prison officials aware of them, including defendants Bowns, Gibbs, Jezior, and Warden Levi.
Despite their knowledge of the threats against Bistrian, on June 30, 2006, prison officials placed him in the recreation yard where Northington and two other inmates were also present. In what, for ease of reference, we will call “the Northington attack,” Northington and the two others proceeded to brutally beat Bistrian. Jezior and other officials yelled for the attack to stop, but they did not enter the yard. Instead, they waited until a larger number of guards (12 to 15) were present to intervene. By then, the damage was done. Bistrian suffered severe physical and psychological injuries,
and that is the basis of his claim under the Fifth Amendment that the prison officials failed to protect him.5
In December 2006, less than a month after Bistrian had completed his nearly yearlong second detention, prison officials again placed him in the SHU. They cited his safety as the reason for doing so. According to the defendants, there had been death threats against him. Shortly after that placement, Bistrian‘s counsel sent a letter to Warden Levi asking why his client was there. The Warden replied that records indicated it was due to an investigation. Bistrian was released two days after that response, having spent approximately a month in the SHU.
In August 2007, at a sentencing hearing, Bistrian objected to his treatment in prison and the time and circumstances of his administrative detentions. After the hearing, the government provided Bistrian‘s
Two days after Bistrian‘s counsel pressed for an explanation, Bistrian was put in the SHU for the fourth time.
Officer Jezior wrote an incident report stating that Bistrian had again violated telephone use rules.6 Using available administrative procedures, Bistrian contested the placement but his grievance and appeal were denied. Bistrian alleges that, after Warden Levi denied the appeal, the Warden said Bistrian “would never see the light of day again.” (App. at 22 (citation omitted).) Bistrian was in the SHU for about three months, until early December 2007. That final stay forms the basis of his First Amendment retaliation claim and his Fifth Amendment punitive detention claim.
Bistrian was ultimately sentenced to 57 months’ imprisonment and sent to a correctional facility in New York.
II. PROCEDURAL BACKGROUND
This lawsuit began over a decade ago. The operative pleading is an amended complaint asserting various First, Fifth, and Eighth Amendment claims against FDC prison officials and medical staff, and claims under the Federal Tort Claims Act (“FTCA“) against the United States. The defendants filed motions to dismiss all nineteen claims in the amended complaint, saying there had been a failure to exhaust administrative remedies and a failure to plead sufficient facts to overcome the defense of qualified immunity. Bistrian v. Levi, Civ. No. 08-3010, 2010 WL 3155267, at *4-7 (E.D. Pa. July 29, 2010). The District Court granted those motions in part. Id. at *1. It dismissed thirteen claims but found that six were sufficiently pled to survive
dismissal, including Bistrian‘s Bivens claims for violations of the First Amendment and Fifth Amendment. Id. at *1.
The defendants involved in this appeal, with others, then asked us to review the District Court‘s denial of their assertion of qualified immunity. Bistrian v. Levi, 696 F.3d 352, 364-65 (3d Cir. 2012) (Bistrian II). We affirmed in part, but dismissed the claims against some defendants and limited the Bivens claims to a Fifth Amendment procedural due process claim, a Fifth Amendment substantive due process claim for failure to protect and another for punitive detention, and a First Amendment claim for retaliation.7 Id. at 377. In doing so, we set forth the legal standards governing the claims we permitted to proceed. Id. at 366-68, 372-76.
Following remand and years of extensive discovery, the remaining defendants filed motions for summary judgment, which the District Court granted in part and denied in part. Bistrian v. Levi, 299 F. Supp. 3d 686, 713 (E.D. Pa. 2018) (Bistrian III). It granted summary judgment in favor of all defendants on the Fifth Amendment procedural due process claim because Bistrian had had the opportunity
challenge each SHU confinement.8 Id. at 707-10. It denied summary judgment on the other three Bivens claims, concluding that they were based on clearly established rights at the time of the alleged violations, making the defense of qualified immunity inapplicable. Id. at 702, 707, 711-12. Those three claims survived, however, only against certain defendants. Id.
More specifically, the District Court granted summary judgment for five defendants on Bistrian‘s Fifth Amendment failure-to-protect claim, but it denied summary judgment for the eight defendants who bring this appeal. Id. at 700-02. It decided that there were material issues of fact as to whether those eight “were deliberately indifferent to the substantial risk to [Bistrian‘s] safety[,]” id. at 700, and it highlighted evidence that it said could lead a reasonable jury to conclude that “Bergos [sic], Bowns, Gibbs, Jezior, Levi, McLaughlin, Robinson, and Rodgers knew of the note-passing scheme and were aware of the risk [Bistrian] faced once his cooperation ... was discovered.”9 Id. Because the right to be protected
against prisoner-on-prisoner violence was already clearly established, the Court said, qualified immunity did not apply. Id. at 702.
As to Bistrian‘s Fifth Amendment punitive detention claim, the District Court granted summary judgment for all defendants except Levi and Jezior. Id. at 706. It determined that a genuine dispute of material fact existed “regarding whether [in sending Bistrian to the SHU for the fourth time] Jezior and Levi expressly intended to punish him for his protests to the Court[.]” Id. at 706. The Court relied on the timing of Jezior‘s incident report leading to the fourth confinement, as well as Levi‘s purported statement that Bistrian “would never see the light of day again[.]” Id. Qualified immunity, again, was not available because the right to be free from punitive detention was already clearly established at the time. Id. at 707.
So too, the First Amendment retaliation claim was allowed to proceed against Levi and Jezior. Id. at 710-11. The District Court determined that Bistrian‘s challenge to his SHU confinements was a protected activity and that his fourth assignment to the SHU could be seen as a retaliatory and adverse action taken by Jezior and Levi, given the “suggestive temporal proximity” of Jezior‘s incident report and the obvious import of the “never see the light of day”
comment that Levi allegedly made. Id. Once again, qualified immunity was not justified, the Court said, because the right against retaliation was clearly established at the time. Id. at 711-12.
Following the District Court‘s summary judgment ruling, the eight defendants before us now filed their timely interlocutory appeals, which have been consolidated for review.
“[W]e normally do not entertain appeals from a district court order denying a motion for summary judgment because such orders do not put an end to the litigation.” Rivas v. City of Passaic, 365 F.3d 181, 191 (3d Cir. 2004). That holds true when the district court denies qualified immunity based on a determination that material facts remain in dispute. Id. We can, however, entertain appeals based on a denial of “a defendant‘s motion for summary judgment so long as: (1) the defendant is a public official asserting a qualified immunity defense; and (2) the issue on appeal is whether the facts alleged by the plaintiff demonstrate a violation of clearly established federal law, not which facts the plaintiff might be able to prove at trial.” Id. (emphasis omitted) (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). In other words, we cannot review a decision in which the only question relates to “evidence sufficiency” in the sense of what facts can be
proven.11 See Vanderklok v. United States, 868 F.3d 189, 196 (3d Cir. 2017).
Some of the defendants’ arguments raise factual issues and so are outside our jurisdiction on this interlocutory appeal.12 But the defendants also challenge whether the
District Court properly applied principles of qualified immunity in denying summary judgment on the three Bivens actions. Those arguments involve only questions of law, including whether the rights in question were clearly established. Id. at 197. “And since the issue of whether a [Bivens] cause of action even exists ... is a threshold question of law, we have jurisdiction to consider that as well.” Id. Accordingly, what follows is a review of the dispositive legal questions raised by the qualified immunity defenses
IV. DISCUSSION
The defendants also challenge the District Court‘s qualified immunity analysis because, they say, as a matter of law, the Court failed to engage in a sufficiently particularized analysis with regard to each claim and each defendant. The District Court‘s ruling, however, resulted in denying summary judgment as to certain defendants on certain claims and granting summary judgment to other defendants on other claims. The Court could not have conducted a one-size-fits-all analysis because it reached different conclusions as to different defendants on each of the claims it let proceed. There was a sufficiently particularized analysis, and, we agree with Bistrian that the defendants’ attempts to argue that the District Court erred as a matter of law are nothing more than “a disguised insufficiency of the evidence contention.” (Bistrian Answering Br. I at 25.)
As we will explain, Bistrian has a cognizable Bivens cause of action for the alleged failure of the defendants to protect him from a substantial risk of serious injury at the hands of other inmates. The prisoner-on-prisoner violence is not a new context for Bivens claims, and no special factors counsel against allowing a failure-to-protect cause of action. We will therefore affirm the District Court‘s denial of summary judgment with respect to that claim. We must, however, reverse the denial of summary judgment on Bistrian‘s claims for punitive detention and retaliation because they are novel and special factors counsel against extending Bivens coverage to such claims.
A. Waiver
Before turning to the merits, though, there is a preliminary question: whether the defendants waived their arguments against the availability of Bivens claims.13 Bivens is the short-hand name given to causes of action against federal officials for alleged constitutional violations. In the
eponymous case, the Supreme Court considered whether a “violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” Bivens, 403 U.S. at 389. The Court held that such a claim was cognizable and that the plaintiff was “entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the [Fourth] Amendment.” Id. at 397. Thus was born an implied right of action to recover damages against federal officials for constitutional violations.
Prior to the present appeal, none of the eight defendants before us challenged the existence of a Bivens cause of action for failure to protect or for punitive detention, and only two of the defendants, Levi and Jezior, questioned the existence of a retaliation claim, and they did so only in passing.14 Bistrian thus argues that the defendants have waived their right to challenge the availability of a Bivens remedy. We conclude, however, that the cognizability of the Bivens claims is a question inherent in the qualified immunity defenses. To rule otherwise would be to allow new causes of action to spring into existence merely through the dereliction of a party.
Whether a Bivens claim exists in a particular context is “antecedent to the other questions presented.” Hernandez v.
Mesa, 137 S. Ct. 2003, 2006 (2017) (citation omitted). It is thus “a threshold question of law” that “is directly implicated by the defense of qualified immunity[.]” Vanderklok, 868 F.3d at 197 (quoting Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007)). We can sometimes resolve a case by demonstrating that a plaintiff would lose on the constitutional claim he raises, even if Bivens provided a remedy for that type of claim.15 See Hernandez, 137 S. Ct. at 2007 (approving “dispos[al] of a Bivens claim by resolving the constitutional question, while assuming the existence of a Bivens remedy“). But threshold questions are called that for a reason, and it will often be best to tackle head on whether Bivens provides a remedy, when that is unsettled. See id. at 2006-07 (remanding case to court of appeals to address existence of Bivens cause of action in first instance).
That is true whether the parties raise the question or not. Assuming the existence of a Bivens cause of action—without deciding the issue—can risk needless expenditure of the parties’ and the courts’ time and resources. Thus, even when a defendant does not raise the issue of whether a Bivens remedy exists for a particular constitutional violation, we may still consider the issue in the interest of justice. See Carlson v. Green, 446 U.S. 14, 17 n.2 (1980) (concluding “that the interests of judicial administration w[ould] be served by
addressing” the existence of a Bivens cause of action even though the issue was “not presented below“).
Accordingly, we consider whether a Bivens cause of action exists for each claim at issue here.
B. Bivens Analysis
“[F]or decades, the Supreme Court has repeatedly refused to extend Bivens actions beyond the specific clauses of the specific amendments [of the Constitution] for which a cause of action has already been implied, or even to other classes of defendants facing liability under those same clauses.” Vanderklok, 868 F.3d at 200. The Supreme Court‘s recent opinion in Ziglar v. Abbasi said bluntly “that expanding the Bivens remedy is now a ‘disfavored’ judicial activity[,]” but it noted that Bivens actions have been recognized in three contexts. 137 S. Ct. 1843, 1855, 1857 (2017) (citation omitted). First, as mentioned earlier, in the Bivens case itself the Court recognized an implied cause of action for violations of the Fourth Amendment‘s right against unreasonable searches and seizures. 403 U.S. at 397. In the following decade, the Court recognized two other Bivens actions: one under the Fifth Amendment‘s Due Process Clause for gender discrimination in the employment context, Davis v. Passman, 442 U.S. 228, 248-49 (1979), and another under the Eighth Amendment‘s Cruel and Unusual Punishments Clause for inadequate prison medical care, Carlson, 446 U.S. at 23-25.16
Indicating concern about any further expansion of implied rights, the Court in Abbasi “established a rigorous inquiry” to determine whether a Bivens cause of action should be recognized in a new context. Vanderklok, 868 F.3d at 200. First, courts must determine whether a case presents “a new Bivens context[,]” by asking
If the case does present an extension of Bivens into a new context, we turn to the second step of Abbasi and ask whether any “special factors counsel[] hesitation” in permitting the extension. Id. at 1857. There may be many such factors, but two are particularly weighty: the existence of an alternative remedial structure and separation-of-powers principles. Id. at 1857-58. The first factor – whether an alternative remedial structure is available – may by itself “limit the power of the Judiciary to infer a new Bivens cause of action.” Id. at 1858. And any time the second factor –
separation-of-powers principles – is in play, that “should be central to the analysis.” Id. at 1857. The Court noted other special factors that could be considered, including: the potential cost to the government of recognizing a private cause of action, both financially and administratively; whether the judiciary is well suited to weigh those costs; the necessity to deter future violations; whether Congress has already acted in that arena, suggesting it does not “want the Judiciary to interfere“; whether a claim addresses individual conduct or a broader policy question; whether litigation would intrude on the function of other branches of government; and whether national security is at stake. Id. at 1856-63.
1. “Failure to Protect” Under the Fifth Amendment
Contrary to the opposition of some of the defendants,17 an inmate‘s claim that prison officials violated his
Farmer is of greatest significance. In that case, the Court assessed a “failure to protect” claim brought under the
Abbasi does not contradict that reasoning. It is true that Abbasi identified three Bivens contexts and did not address, or otherwise cite to, Farmer. 137 S. Ct. at 1854-55. But we decline to “conclude [that the Supreme Court‘s] more recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). It may be that the Court simply viewed the failure-to-protect claim as not distinct from the
As in Farmer, Bistrian seeks a remedy against prison officials for their failure to protect him from prisoner-on-prisoner violence. Id. Bistrian‘s claim, however, arises under the
The defendants ignore Farmer and urge that not only would allowance of this claim impermissibly extend Bivens, but there are special factors that counsel against such an extension. Since we conclude
First, the existence of an
If that precedent were not enough, the
The defendants argue that two other remedial routes were available to Bistrian, namely, the prison administrative grievance process and a petition for a writ of habeas corpus. But neither of those should prevent the availability of Bivens because they cannot redress Bistrian‘s alleged harm. Like Bivens, this is a case where “it is damages or nothing.” Abbasi, 137 S. Ct. at 1862 (citation omitted). The beating that Bistrian took in the prison yard was allegedly the result of “individual instances of [official misconduct], which due to their very nature are difficult to address except by way of damages actions after the fact.” Id. The administrative grievance process is not an alternative because it does not redress Bistrian‘s harm, which could only be remedied by money damages. See Nyhuis v. Reno, 204 F.3d 65, 70 (3d Cir. 2000) (observing that money damages are “not available under the Bureau of Prisons’ administrative process.” (citations omitted)). Similarly, a habeas petition would not address Bistrian‘s harms, because it too gives no retrospective relief. Preiser v. Rodriguez, 411 U.S. 475, 494 (1973) (observing that habeas relief does not provide for damages). Accordingly, there are no true alternative remedies counseling against allowing a Bivens remedy for a
Next, the defendants argue that congressional silence in the
Finally, the defendants argue that separation-of-powers principles counsel against providing a Bivens remedy in suits like this. It is true that Bivens is not the “proper vehicle for altering an entity‘s policy” and that “[t]he purpose of Bivens is to deter the officer.” Abbasi, 137 S. Ct. at 1860 (citations omitted). Hence, in Abbasi, a Bivens claim was not allowed where the plaintiffs challenged “the formal policy adopted by … Executive Officials” imposing restrictive housing conditions. Id. at 1858, 1860. Here, however, Bistrian‘s claim challenges particular individuals’ actions or inaction in a particular incident – the specific decision to place him in the yard with Northington and other prisoners and then to not intervene when he was being savagely beaten. Addressing that incident will, it is true, unavoidably implicate “policies regarding inmate safety and security[,]” (e.g., Gibbs Opening Br. at 18-19,) but that would be true of practically all claims arising in a prison. Cf. Pell v. Procunier, 417 U.S. 817, 823 (1974) (“[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.“). Farmer shows that that alone cannot be a complete barrier to Bivens liability, because “gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objectiv[e.]” 511 U.S. at 833-34 (citation omitted) (setting the “deliberate indifference” standard to ensure that prison officials do not forgo their responsibility “to protect prisoners from violence at the hands of other prisoners“); see, e.g., Benefield v. McDowall, 241 F.3d 1267, 1270-71 (10th Cir. 2001) (implementing the standard from Farmer for a Bivens failure-to-protect claim). Bistrian‘s claim fits squarely within Bivens’ purpose of deterring misconduct by prison officials. And, since failure-to-protect claims have been allowed for many years, there is no good reason to fear that allowing Bistrian‘s claim will unduly affect the independence of the executive branch in setting and administering prison policies.
In sum, a special factors analysis does not counsel hesitation, and the District Court correctly denied the defendants’ motion for summary judgment with respect to
2. Punitive Detention Under the Fifth Amendment
Bistrian‘s claim for damages for punitive detention is a different matter altogether. Unlike the failure-to-protect claim, the punitive-detention claim does amount to an extension of Bivens into a new context, and special factors do counsel against creating a new Bivens remedy in that context, so we hold there is no Bivens cause of action for that alleged violation of the
Citing Carlson and Davis, Bistrian argues that his punitive-detention claim is not really a Bivens novelty because the Supreme Court has “expressly extended Bivens both to the
Turning to Abbasi‘s second step, the special factors analysis counsels against extending Bivens to provide a remedy for punitive detention. Unlike Bistrian‘s failure-to-protect claim, which relates to a specific and isolated event, a punitive-detention claim more fully calls in question broad policies pertaining to the reasoning, manner, and extent of prison discipline. The warden and other prison officials have—and indeed must have—the authority to determine detention policies, to assess the endless variety of circumstances in which those policies may be implicated, and to decide when administrative detention is deserved and for how long. See Sandin v. Conner, 515 U.S. 472, 482 (1995) (observing, in the
Besides those serious separation of powers concerns, recognizing a Bivens remedy would likely cause “an increase of suits by inmates, increased litigation costs to the government, and … burdens on individual prison employees to defend such claims.” (Gibbs Reply Br. at 24.) Heeding the reasoning in Abbasi, we must be reluctant to “establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation.” 137 S. Ct. at 1858. Therefore, we will reverse the District Court‘s denial of summary judgment with respect to Bistrian‘s punitive-detention claim. It is not a valid Bivens action.24
3. Retaliation Under the First Amendment
Likewise, we conclude that Bistrian‘s claim for retaliation under the
In the heyday of Bivens expansion, we recognized an implied right to sue federal officials for damages for a violation of the
The Supreme Court has never recognized a Bivens remedy under the
Retaliation claims are based on an adverse action following the exercise of constitutional rights. Here, Bistrian alleges that his fourth placement in the SHU was punishment for complaining about his treatment by prison officials. Like a punitive detention claim, retaliation claims like this one are grounded in administrative detention decisions. Whether to place an inmate in more restrictive detention involves real-time and often difficult judgment calls about disciplining inmates, maintaining order, and promoting prison officials’ safety and security. See Sewell v. Pegelow, 291 F.2d 196, 197 (4th Cir. 1961) (stating that courts should not interfere in prison administration when “particular disciplinary measures were taken within the normal management of the institution.“). That strongly counsels restraint, just as in the punitive-detention context. For the same reasons we reject an extension of Bivens to that latter context, we reject it here as well. Such claims must be approached “with skepticism and particular care” because they are “easily fabricated and … may cause unwarranted judicial interference with prison administration.” Holmes v. Grant, No. 03 Civ. 3426 RJH RLE, 2006 WL 851753, at *14 (S.D.N.Y. Mar. 31, 2006) (citation omitted) (discussing
That conclusion aligns with a strong trend in district courts, post-Abbasi, holding that a Bivens retaliation claim under the
Bistrian‘s retaliation claim involves executive policies, implicates separation-of-power concerns, and threatens a large burden to both the judiciary and prison officials. We thus conclude that the special factors analysis prevents an extension of Bivens to cover such claims. Accordingly, we will reverse the District Court‘s denial of summary judgment with respect to his retaliation claim.25
V. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s denial of summary judgment for the defendants on Bistrian‘s failure-to-protect claim but will reverse its decision with respect to his punitive detention and retaliation claims.