By: Joseph D. Sclesky*
Abstract
In 2022, the Supreme Court severely limited the reach of Bivens case law in Egbert v. Boule. In Bivens, the Court first recognized that an implied cause of action existed under certain constitutional rights for when federal actors violated these rights while acting under the color of their authority. Egbert has made the test for determining whether a Bivens claim exists much more restrictive, so much so that it is extremely unlikely that a litigant will be able to bring a successful Bivens case.
This Comment addresses the fallout of Egbert as applied to claims brought against Bureau of Prisons officers for their deliberate indifference. Specifically, this Comment examines deliberate indifference claims when officers ignore the risks that a prisoner, who presents obvious risks of assault, will be assaulted by other prisoners, and who are then assaulted in violation of the Fifth and Eighth Amendments. Egbert has caused several U.S. Courts of Appeals to hold that no Bivens remedy for these claims exists. Most recently, the Third Circuit adopted this position in Fisher v. Hollingsworth, unifying the circuit courts. However, this Comment argues that the circuit courts’ analyses are flawed in many regards.
This result has left the prisoners with only administrative grievances as a remedy, which are arguably ineffective at providing actual redress. To correct this problem, and many other civil rights problems involving federal actors across society, Congress needs to take the broad approach and extend 42 U.S.C. § 1983 to federal actors. The state prisons and state agencies can clearly operate under the burden of § 1983. This Comment argues that the Bureau of Prisons and other federal agencies/actors should as well.
* J.D. Candidate, The Pennsylvania State University Dickinson School of Law, 2026. I am grateful for the support of my family, friends, and trusted mentor, Dr. Gerald Zahorchak. Without their support, my success in law school would not have been possible. I would also like to thank the Hon. Marjorie Rendell and her law clerks—Matthew Tom, Ellen Heiman, and Francesca Crooks—for their guidance and mentorship during my time as a 1L judicial intern, which greatly helped hone my legal research and writing skills. I want to express my greatest gratitude to my fellow editors at the Penn State Law Review for their hard work on this Comment. All views and opinions expressed in this piece are solely those of the author.