John O. Kalu v. MR. SPAULDING, Warden of FCI-Allenwood

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 23-1103
___________
JOHN O. KALU,
Appellant
v.
MR. SPAULDING, Warden of FCI-Allenwood;
K. MIDDERNATCH, Lieutenant/FCI-Allenwood;
K. BITTENBENDER, Discipline Hearing Officer (DHO)
FCI-Allenwood
_______________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-19-cv-01621)
District Judge: Honorable Jennifer P. Wilson
______________
ARGUED: November 9, 2023
Before: RESTREPO, SCIRICA, and SMITH, Circuit Judges.
(Filed: August 21, 2024)

-- 1 of 68 --

2
Daniel G. Randolph [ARGUED]
David M. Zionts
Covington & Burling
850 10 th Street NW
One City Center
Washington, DC 20001
Samuel Weiss
Rights Behinds Bars
416 Florida Avenue NW
Unit 26152
Washington, DC 20001
Counsel for Appellant
Richard Euliss [ARGUED]
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N. 6 th Street, 2 nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________

-- 2 of 68 --

3
SCIRICA, Circuit Judge
Five decades ago, in Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
the Supreme Court first authorized an implied damages remedy
for constitutional claims brought against federal officials.
Since then, in recognition of the Constitution’s separation of
legislative and judicial power, the Court has greatly narrowed
the availability of new Bivens actions. “At bottom, creating a
cause of action is a legislative endeavor.” Egbert v. Boule, 596
U.S. 482, 491 (2022).
Here, appellant John O. Kalu, a federal inmate, seeks to
bring Eighth Amendment claims against federal prison
officials. He alleges a prison guard sexually assaulted him on
three separate occasions, prison officers subjected him to
inhumane conditions of confinement, and the prison’s Warden
failed to protect him from the abuse through deliberate
indifference. He seeks damages under Bivens to redress those
harms. Heeding the Supreme Court’s recent and repeated
warning that we must exercise “caution” before implying a
damages remedy under the Constitution, see id.; Hernandez v.
Mesa, 589 U.S. 93, 100–01 (2020), we decline to extend the
Bivens remedy to Kalu’s claims. For the following reasons, we
will affirm.
I.1
In 2016, John O. Kalu was an inmate at the Allenwood
1 The following facts are taken from the complaint, J.A. 59–81,
and are assumed as true with all reasonable inferences drawn
in the plaintiff’s favor. See Haberle v. Borough of Nazareth,
936 F.3d 138, 140 n.1 (3d Cir. 2019). We are also mindful that

-- 3 of 68 --

4
Federal Correctional Institution (“FCI Allenwood”) in
Allenwood, Pennsylvania. While housed at FCI Allenwood,
Kalu was sexually assaulted on three separate occasions.
According to Kalu, the abuse was perpetrated by a prison
official, defendant Lieutenant K. Middernatch (“Lt.
Middernatch”), and the correctional facility’s Warden,
defendant Warden Spaulding (“Warden Spaulding”), failed to
prevent further assaults through deliberate indifference. In
addition, Kalu alleges both defendants subjected him to
inhumane conditions of confinement following the incidents of
sexual assault.
A.
The first incident of sexual assault occurred on October
14, 2016. Kalu was returning from the cafeteria when Lt.
Middernatch “singled [him] out and pretend[ed] to pat [him]
down.” J.A. 65. During the interaction, Lt. Middernatch
grabbed Kalu’s genitals while smiling and asking, “You like
that?” Id. Kalu did not reply and felt “humiliated.” Id.
Two weeks later, Kalu was sexually assaulted for a
second time. Kalu was again returning from the cafeteria when
Lt. Middernatch “singled [him] out” and pretended to conduct
a pat down. Id. at 66. Like the previous encounter, Lt.
Middernatch grabbed Kalu’s genitals and “started to squeez[e]
and rub them against his hands” while asking Kalu, “What is
this in your pocket?” Id. When Kalu did not reply, Lt.
Middernatch stated he thought Kalu was trying to smuggle
a pro se litigant’s complaint is to be construed liberally. See
Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004).

-- 4 of 68 --

5
food items out of the cafeteria. Kalu then told Lt. Middernatch
he “felt assaulted and harassed,” and Lt. Middernatch
responded, “you haven’t seen anything yet.” Id.
On November 2, 2016, Kalu reported the two incidents
of sexual assault to Warden Spaulding. Specifically, Kalu sent
Warden Spaulding a confidential electronic email “regarding
the aggressive repetitive sexual abuse [he] encountered in the
hands of” Lt. Middernatch. Id. at 67–68. Warden Spaulding
responded to Kalu’s email stating he would “look into the
matter and then get back to [him],” but Kalu never heard back
from the Warden. Id. at 68.
The same day Kalu reported the abuse, he was
approached by three guards, handcuffed, removed from the
general population, and placed in FCI Allenwood’s Special
Housing Unit (“SHU”). While in the SHU, Kalu was “stripped
naked with no clothes or underwear for thirty minutes in the
holding cell” while several guards passed by “laughing.” Id.
On November 9, 2016, Kalu was questioned by FCI
Allenwood’s Secret Investigation Services (“SIS”) regarding
his assault allegations. About five days later, the SIS informed
Kalu they had concluded their investigation: Lt. Middernatch
“denied the allegation” and the SIS “believed his version of the
story.” Id. at 69. Prison officials then ordered Kalu to return to
the general population even though Kalu refused to go back
because he was afraid “for his life” and “to face his assailant.”
Id. at 69–70.
Shortly upon his return to the general population, on
December 1, 2016, Kalu was sexually assaulted for a third
time. Kalu was returning from breakfast at the cafeteria when

-- 5 of 68 --

6
he spotted Lt. Middernatch waiting for him past the metal
detector. As in the previous occasions, Lt. Middernatch singled
out Kalu and pretended to conduct a pat down. During the pat
down, Lt. Middernatch grabbed, squeezed, and rubbed Kalu’s
genitals and said, “You like that.” Id. at 67. When Kalu did not
reply, Lt. Middernatch “forced his fingers into [Kalu’s] anus,
saying how about this?” Id. Kalu reported this latest incident
to Warden Spaulding via email.
Following these episodes of sexual assault, Kalu was
subjected to further abuse by prison officials. Specifically,
Kalu was forced “to sleep on a cold steel metal bunk” in below
freezing temperatures for six months. Id. at 71. He was also
deprived of heat and appropriate clothing during this period.
The incidents of sexual assault caused Kalu to suffer
“mental anguish manifesting in daytime flashbacks[,] lapses of
concentration, and outbreaks of jitters, varying in intensity
from a mild attack of nerves to almost loss of control,” and his
condition “may have graduated into [] permanent post-
traumatic stress disorder.” Id. at 73. Kalu also experienced
reoccurring “nightmares of sexual assault,” and his cellmates
heard him “cry out in distress during the night.” Id.
B.
1.
Before filing the present suit, Kalu sought redress
through the Bureau of Prisons’ (“BOP”) Administrative
Remedy Program (“ARP”). The BOP’s ARP is a three-tiered
system whereby a federal inmate may “seek formal review of
an issue relating to any aspect of his/her own confinement.”

-- 6 of 68 --

7
See 28 C.F.R. § 542.10(a). Under the BOP’s administrative
procedures, an inmate must first attempt an informal resolution
by “present[ing] an issue of concern informally to staff.” Id.
§ 542.13(a). If the inmate is unsuccessful in achieving an
informal resolution, he or she may submit a formal written
Administrative Remedy Request (“AR” or “Request”) to the
facility’s Warden. Id. § 542.14(a). An inmate dissatisfied with
the Warden’s response may file an administrative appeal with
the Regional Director, and subsequently with the BOP’s
General Counsel. Id. § 542.15(a). The BOP’s procedures allow
certain limited exceptions to the requirement that an inmate file
an AR to the Warden. For instance, if an inmate “reasonably
believes the issue is sensitive and the inmate’s safety or well-
being would be placed in danger if the Request became known
at the institution, the inmate may submit the Request directly
to the appropriate Regional Director.” Id. § 542.14(d)(1). In
addition, to comply with Congress’s passage of the Prison
Rape Elimination Act (“PREA”), 34 U.S.C. §§ 30301 et seq.,
the BOP has established specific guidelines to address inmate
claims of sexual abuse. See 28 C.F.R. § 115.52.
Here, Kalu filed several Requests but was unsuccessful
in obtaining relief. On November 28, 2016, Kalu submitted
“AR 883971–R1 to the Northeast Regional Office concerning
a staff complaint.” J.A. 7 (quotation marks and citation
omitted). The Request was rejected the next day, and Kalu was
advised to resubmit after making certain corrections. On
December 3, 2016, Kalu resubmitted AR 883971–R2 which
stated the Request concerned “PREA–Sexual Abuse by Staff.”
Id. The Request was rejected on December 9, 2016, for several
reasons. Yet “Kalu never filed any administrative remedy at
the Central Office level,” and he did not file any subsequent
resubmissions with the Regional Office. Id. at 8.

-- 7 of 68 --

8
In addition, on December 1, 2016, Kalu submitted AR
884586–R1 to the Regional Office regarding a staff complaint.
The Request was rejected the next day because it was not
submitted on the proper form. But “Kalu did not resubmit
Administrative Remedy 884586 to the Regional Office.” Id.
2.
On August 20, 2019, Kalu filed a pro se complaint in
the Middle District of Pennsylvania against Warden Spaulding
and Lt. Middernatch asserting violations of his constitutional
rights and seeking damages under Bivens, among other relief.2
Specifically, Kalu alleges: (1) Lt. Middernatch violated Kalu’s
Eighth Amendment rights when he sexually assaulted him on
multiple occasions; (2) both defendants violated Kalu’s Eighth
Amendment rights when they subjected him to inhumane
conditions of confinement; and (3) Warden Spaulding violated
Kalu’s Eighth Amendment rights when he failed to protect him
2 Kalu’s complaint also named Discipline Hearing Officer K.
Bittenbender (“DHO K. Bittenbender”) as a defendant. Kalu
alleged that, after he filed a PREA complaint against Lt.
Middernatch, DHO K. Bittenbender imposed retaliatory
sanctions against him, in violation of his First Amendment
rights. The District Court dismissed the claim against DHO K.
Bittenbender because First Amendment retaliation claims are
not eligible for Bivens remedies. See Mack v. Yost, 968 F.3d
311, 320 (3d Cir. 2020). Kalu does not challenge that ruling on
appeal.

-- 8 of 68 --

9
from sexual assault through deliberate indifference.3
On March 16, 2020, defendants filed a combined
3 Kalu’s complaint only mentions Warden Spaulding as a
defendant with regard to his conditions-of-confinement claim.
See J.A. 71 (“Defendants K. Middernatch, Lieutenant K.
Bittenbender DHO, Spaulding Warden, violated Plaintiff
Kalu’s Eighth Amendment [constitutional] rights to be free
from cruel and unusual punishment through sanctions to sleep
on a cold steel metal bunk for six months in a 10° degree below
freezing special housing unit . . . .” (emphasis added)); see also
id. (“Defendant K. Middernatch Lieutenant violated Plaintiff
Kalu’s Eighth Amendment right to be free from cruel and
unusual punishment through repetitive sexual assault, and
solitary confinement.”). On appeal, Kalu argues his complaint
also sets forth a deliberate indifference or failure-to-protect
claim against Warden Spaulding. See Appellant’s Br. 18–20
(“As Mr. Kalu explained in his pro se brief opposing the
government’s dismissal motion, [the] sequence of events
plausibly illustrates the Warden’s deliberate indifference: He
knew of a substantial risk of serious harm to Mr. Kalu and yet
failed to respond reasonably.” (quotation marks omitted)). At
the motion to dismiss stage, “[p]leadings must be construed so
as to do justice,” Fed. R. Civ. P. 8(e), and this “already liberal
standard is even more pronounced where a plaintiff files the
complaint without the assistance of counsel,” Garrett v.
Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quotation
marks omitted). For the purpose of this appeal, therefore, we
read Kalu’s factual allegations as raising either an Eighth
Amendment deliberate indifference or failure-to-protect claim
against Warden Spaulding.

-- 9 of 68 --

10
motion to dismiss and motion for summary judgment which
the District Court granted in part and denied in part on March
30, 2021. The District Court dismissed Kalu’s claims against
Warden Spaulding without prejudice, reasoning that: (1)
liability under Bivens could not be predicated solely on a theory
of respondeat superior; and (2) Kalu had failed to show that
Warden Spaulding was personally involved in the alleged
constitutional violations to make out a claim against him. See
id. at 23 (“The complaint’s factual allegations regarding
Warden Spaulding are insufficient to allege a facially plausible
Bivens claim that he was personally involved in the violation
of Kalu’s constitutional rights.”). However, the District Court
found that Kalu could remedy his failure to allege sufficient
personal involvement by amending his pleadings and granted
leave to file an amended complaint as to Warden Spaulding.
The suit was allowed to proceed on the sexual assault claim
against Lt. Middernatch. The District Court did not address the
conditions-of-confinement claim.
On July 30, 2021, Kalu filed an amended complaint. On
September 12, 2021, defendants filed a second motion to
dismiss, and shortly thereafter Kalu voluntarily sought to
withdraw the amended complaint. The District Court granted
Kalu’s motion and denied defendants’ motion to dismiss as
moot.
On November 29, 2021, Lt. Middernatch filed a third
motion to dismiss. The District Court granted the motion on
September 23, 2022, disposing of the remaining claims: “(1) a
sexual assault claim under the Eighth Amendment; and (2) a
condition-of-confinement claim under the Eighth
Amendment.” Id. at 41, 48. The District Court’s analysis
followed the two-part test set out in Ziglar v. Abbasi, 582 U.S.
120 (2017), and emphasized that the “Supreme Court [has]

-- 10 of 68 --

11
cautioned against expanding Bivens beyond the three
established circumstances where it has formally acknowledged
the availability of a Bivens remedy.” J.A. 42 (citing Abbasi,
582 U.S. at 135).
Regarding the first claim, the District Court determined
that an “alleged sexual assault is a new context under Bivens.”
Id. at 45. The District Court acknowledged that both our Court
of Appeals and the Supreme Court have “previously
established that a federal prisoner has a clearly established
constitutional right to have prison officials protect him from
inmate violence and provided a remedy when an official
violated that right.” Id. at 45 n.4 (citing Farmer v. Brennan,
511 U.S. 825, 833–34 (1994); Shorter v. United States, 12
F.4th 366, 371–72 (3d Cir. 2021)). But the District Court
distinguished those cases on the grounds that Kalu alleged
officer-on-inmate rather than inmate-on-inmate violence. The
District Court also found that special factors counseled against
extending Bivens to this new context: “Congress, in passing the
PREA opted not to include a private right for action for
damages for inmates.” Id. at 46. Thus, the District Court
declined to “extend the Bivens remedy to Eighth Amendment
cruel and unusual punishment claims premised on sexual
assault,” and dismissed Kalu’s sexual assault claim against Lt.
Middernatch with prejudice. Id. at 45; see also id. at 49.
The District Court likewise determined that a
“conditions of confinement claim is a new context under
Bivens.” Id. at 46. The District Court relied on our non-
precedential opinion in Mammana v. Barben, 856 F. App’x
411 (3d Cir. May 21, 2021), which rejected the argument that
Carlson v. Green, 446 U.S. 14 (1980), “gives rise to an Eighth
Amendment conditions-of-confinement claim against federal

-- 11 of 68 --

12
officials.” J.A. 46 (citing Mammana, 856 F. App’x at 414–15).
The District Court then found that two special factors
counseled against extending Bivens to this new context: (1) the
BOP’s administrative remedy process is available to address
these types of claims; and (2) “Congress’s omission of a
‘standalone damages remedy against federal jailers’ when it
passed the Prison Litigation Reform Act post-Carlson
‘suggests Congress chose not to extend the Carlson damages
remedy to cases involving other types of prisoner
mistreatment.’” Id. (quoting Abbasi, 582 U.S. at 149). Thus,
the District Court declined “to extend the Bivens remedy to this
context” and dismissed Kalu’s conditions-of-confinement
claim. Id.
On October 11, 2022, Kalu, still pro se, filed a timely
notice of appeal challenging the dismissal of his three Eighth
Amendment claims against Lt. Middernatch and Warden
Spaulding.4
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C. § 1291
over the District Court’s final decisions dismissing the claims
in Kalu’s complaint.
We review de novo a district court’s ruling granting a
motion to dismiss. Doe v. Univ. of Scis., 961 F.3d 203, 208 (3d
Cir. 2020). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
4 Kalu later obtained counsel and has been represented during
the proceedings before this Court.

-- 12 of 68 --

13
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible on its face
“when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. We affirm a district court’s
dismissal only if, “accepting all factual allegations as true and
construing the complaint in the light most favorable to the
plaintiff, we determine that the plaintiff is not entitled to relief
under any reasonable reading of the complaint.” McMullen v.
Maple Shade Twp., 643 F.3d 96, 98 (3d Cir. 2011) (quotation
marks and citation omitted). Because Kalu’s complaint was
filed pro se, we construe it liberally and hold it “to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(quotation marks and citation omitted); see also Durham v.
Kelley, 82 F.4th 217, 223 (3d Cir. 2023).
III.
In certain circumstances, the Constitution affords a
cause of action for damages against individual federal officers
to redress violations of constitutional rights. Bivens, 403 U.S.
at 397. “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.” Shorter, 12 F.4th at 371 (citing Bivens, 403 U.S.
at 389, 397). In the decade following Bivens, the Supreme
Court recognized two additional causes of action under the
Constitution: first, for a congressional staffer’s gender
discrimination claim under the Fifth Amendment, see Davis v.
Passman, 442 U.S. 228, 244 (1979), and second, for a federal

-- 13 of 68 --

14
prisoner’s inadequate-care claim under the Eighth
Amendment, see Carlson, 446 U.S. at 19. Egbert, 592 U.S. at
490–91.
Since then, the Supreme Court has “consistently refused
to extend Bivens liability to any new context or new category
of defendants,” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68
(2001), and “has not implied additional causes of action under
the Constitution,” Egbert, 592 U.S. at 491. Instead, in
recognition that separation of powers principles are central to
the analysis, the Court has “made clear that expanding the
Bivens remedy is now a ‘disfavored’ judicial activity.”5
Abbasi, 582 U.S. at 135 (quoting Iqbal, 556 U.S. at 675). At
bottom, the “question is ‘who should decide’ whether to
provide for a damages remedy, Congress or the courts?” Id.
(quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)). “The
answer most often will be Congress,” id., as the “Judiciary’s
authority to do so at all is, at best, uncertain,” Egbert, 592 U.S.
at 491. The Constitution entrusts the legislature—not the
courts—with the power to fashion new causes of action. And
“it is a significant step under separation-of-powers principles
for a court to determine that it has the authority, under the
judicial power, to create and enforce a cause of action for
damages against federal officials in order to remedy a
constitutional violation.” Abbasi, 582 U.S. at 133. Therefore,
when considering whether to recognize a new implied cause of
action for damages under a constitutional provision, “our
5 See Egbert, 596 U.S. at 486 (noting that in the four decades
since deciding Bivens, the Supreme Court has “declined 11
times to imply a similar cause of action for other alleged
constitutional violations,” and citing cases).

-- 14 of 68 --

15
watchword is caution.” Hernandez, 589 U.S. at 101.
Reflecting these concerns, the Supreme Court has set
forth a two-step inquiry to determine the availability of Bivens
remedies in a particular case. See Abbasi, 582 U.S. at 139–40.
First, we ask whether the “case presents a new Bivens
context”—i.e., whether the “case is different in a meaningful
way from previous Bivens cases decided by” the Supreme
Court. Id. at 139. Only three cases serve as a benchmark:
Bivens, Davis, and Carlson.6 “And our understanding of a ‘new
context’ is broad.” Hernandez, 589 U.S. at 102.
While the Court has not outlined “an exhaustive list of
differences that are meaningful enough to make a given context
a new one,” factors to be considered 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 as to how an
officer should respond to the problem or
emergency to be confronted; the statutory
or other legal mandate under which the
6 See Abbasi, 582 U.S. at 131 (“[T]hree cases—Bivens, Davis,
and Carlson—represent the only instances in which the Court
has approved of an implied damages remedy under the
Constitution itself.”); see also Xi v. Haugen, 68 F.4th 824, 834
(3d Cir. 2023) (“A context may be regarded as new if it is
different in any meaningful way from the three contexts where
the Court has recognized a Bivens remedy . . . .” (quotation
marks and citation omitted)).

-- 15 of 68 --

16
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.
Abbasi, 582 U.S. at 139–40. “If a case does not present a new
Bivens context, the inquiry ends there, and a Bivens remedy is
available.” Shorter, 12 F.4th at 372.
Alternatively, if the case presents a new context, we
proceed to the second step of the inquiry and ask whether there
are “special factors counselling hesitation” in extending
Bivens. See Abbasi, 582 U.S. at 136. The focus at this second
step is “on whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the
costs and benefits of allowing a damages action to proceed.”
Id. At this stage, two factors are “particularly weighty: the
existence of an alternative remedial structure and separation-
of-powers principles.” Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir.
2018) (citing Abbasi, 582 U.S. at 136). But any reason to pause
is sufficient to forestall a Bivens extension. Hernandez, 589
U.S. at 102.
In the present suit, Kalu claims Lt. Middernatch and
Warden Spaulding violated his Eighth Amendment rights
when: (a) a prison guard sexually assaulted him on several
occasions; (b) prison officials forced him to endure inhumane
conditions of confinement; and (c) the facility’s Warden failed
to protect him from sexual assault through deliberate
indifference. After applying Abbasi’s two-pronged inquiry, the
District Court dismissed Kalu’s first and second claims
because it determined that they presented new Bivens contexts,

-- 16 of 68 --

17
and special factors counseled against extending Bivens
liability. The District Court also dismissed Kalu’s claims
against Warden Spaulding on the ground that Kalu failed to
allege sufficient facts showing personal involvement by the
Warden to establish a plausible claim against him. We examine
each claim in turn.
A.
Kalu alleges Lt. Middernatch violated his Eighth
Amendment rights when he sexually assaulted him on three
separate occasions and seeks damages to redress that harm. But
Kalu’s sexual assault claim is ineligible for remedies under
Bivens because it arises in a new context and special factors
counsel against extending Bivens to this set of facts.
1.
The first step of the Bivens framework requires us to ask
whether a case presents a new context. See Egbert, 596 U.S. at
492. Applying that inquiry here, Kalu’s Eighth Amendment
sexual assault claim presents a new context because it “is
different in a meaningful way from previous Bivens cases
decided by” the Supreme Court. Abbasi, 582 U.S. at 139.
As a threshold matter, Kalu’s claim is “meaningfully
different” from those in Bivens and Davis because it arises
under a different constitutional provision and involves a
different category of defendants. Hernandez, 589 U.S. at 103;
see also Abbasi, 582 U.S. at 139–40 (“A case might differ in a
meaningful way because of the rank of the officers involved
[or] the constitutional right at issue . . . .”). Kalu’s claim must
therefore be sufficiently similar to the Supreme Court’s only

-- 17 of 68 --

18
Eighth Amendment Bivens precedent, Carlson v. Green, 446
U.S. 14 (1980), to qualify for Bivens remedies.
Like the plaintiff in Carlson, Kalu invokes the Eighth
Amendment in the prison setting against federal prison
officials. Carlson, 446 U.S. at 16. But those factual parallels
are not dispositive. Hernandez tells us that “[a] claim may arise
in a new context even if it is based on the same constitutional
provision as a claim in a case in which a damages remedy was
previously recognized.” 598 U.S. at 103. And Egbert instructs
us that “almost parallel circumstances” are not sufficient. 596
U.S. at 495 (quoting Abbasi, 582 U.S. at 139). “[H]ere,
distinctions abound,” Xi, 68 F.4th at 834, and several factors
render Kalu’s claim meaningfully different from that in
Carlson.
First, Kalu’s claim concerns a different kind of officer
misconduct. See Abbasi, 582 U.S. at 140 (listing “the
generality or specificity of the official action” as a factor in the
first step of the analysis). Carlson involved a claim against
federal prison officers for failure to provide adequate medical
treatment leading to a prisoner’s death. See 446 U.S. at 16 n.1.
Kalu, by contrast, alleges that a prison guard sexually assaulted
him on three separate occasions. While the official action in
both cases caused harm to the prisoners, “the mechanism of
injury” and the nature of the official misconduct is sufficiently
different to render Kalu’s claim a modest extension of Carlson.
Abbasi, 582 U.S. at 139. And under the Supreme Court’s
precedent, “even a modest extension is still an extension.” Id.
at 148.
Second, Kalu’s claim presents “features that were not
considered” by the Supreme Court when deciding Carlson. Id.

-- 18 of 68 --

19
at 148; see also id. at 140 (listing “the presence of potential
special factors that previous Bivens cases did not consider” as
a relevant factor in the new context inquiry). In Carlson, the
plaintiff—the administratrix of the estate of her deceased
son—did not have an alternative remedy against the officials
alleged to have acted unconstitutionally. Carlson, 446 U.S. at
20. As with Bivens and Davis, Carlson was a case of “damages
or nothing.” Bivens, 503 U.S. at 410 (Harlan, J., concurring in
judgment). Since Carlson was decided prior to the passage of
the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C.
§§ 1997e et seq., federal prisoners seeking money damages for
“constitutional claims had no obligation to exhaust
administrative remedies.” Woodford v. Ngo, 548 U.S. 81, 84
(2006). And, at the time, the BOP’s remedy program was not
in existence.7 Thus, in Carlson, there was “no explicit
congressional declaration that persons injured by federal
officers’ violations of the Eighth Amendment [could] not
recover money damages from the agents but [had to] be
remitted to another remedy, equally effective in the view of
Congress.” Carlson, 446 U.S. at 19. That situation bears little
resemblance to Kalu’s case where Congress, through the
PLRA, has enacted legislation to address prisoners’ lawsuits,
and where the BOP’s ARP provides inmates with an alternative
avenue for relief.8 Because the PLRA and the BOP’s remedy
7 The BOP’s ARP was established in 1996, after the passage of
the PLRA. See 61 Fed. Reg. 86 (Jan. 2, 1996) (codified at 28
C.F.R. § 542) (publishing the revised regulations which created
the current version of the BOP’s administrative program).
8 That the political branches have provided an alternative
avenue to redress prisoner claims is a factor of heightened
importance. For decades, the Supreme Court instructed that a

-- 19 of 68 --

20
program are “features that were not considered” by the
Supreme Court when it decided Carlson, they present an
additional reason to conclude that Kalu’s claim arises in a new
context. Abbasi, 582 U.S. at 148.
Third, Kalu’s claim involves an increased “risk of
disruptive intrusion by the Judiciary into the functioning of
other branches.” Abbasi, 582 U.S. at 140. In Carlson, the Court
considered a narrow claim that raised well-established criteria
for liability: “a claim for inadequate prison medical care
brought under the Eighth Amendment’s Cruel and Unusual
Punishment Clause.” Xi, 68 F.4th at 832 (citation omitted).
Although Carlson approved some encroachment into the
functioning of federal prisons, Kalu’s claim threatens to
interfere with federal prison operations “in ways Carlson did
not contemplate.” Sargeant v. Barfield, 87 F.4th 358, 367 (7th
Cir. 2023) (declining to extend Bivens to an Eighth
Amendment failure-to-protect claim brought by a federal
prisoner). Permitting Kalu’s claim to proceed would invite
judicial intrusion into a different aspect of federal prison
Bivens cause of action may be defeated “when defendants
show that Congress has provided an alternative remedy which
it explicitly declared to be a substitute for recovery directly
under the Constitution and viewed as equally effective.”
Carlson, 446 U.S. at 18–19. But after Egbert, we “may not
fashion a Bivens remedy if Congress already has provided, or
has authorized the Executive to provide, ‘an alternative
remedial structure.’” Egbert, 596 U.S. at 493 (quoting Abbasi,
582 U.S. at 137). And today it no longer “matter[s] that
‘existing remedies do not provide complete relief.’” Id.
(emphasis added) (quoting Bush, 462 U.S. at 388).

-- 20 of 68 --

21
administration: staffing and discipline instead of medical care.
And recognizing a cause of action for officer-on-inmate sexual
abuse would invariably implicate a broad range of potential
officer misconduct and sensitive line-drawing considerations
that courts are ill-positioned to assess. See Abbasi, 582 U.S. at
136 (“[T]he decision to recognize a damages remedy requires
an assessment of its impact on governmental operations
systemwide.”). The heightened risk of intrusive judicial
inquiry into an area that has been committed to the
responsibility of the political branches, see Turner v. Safley,
482 U.S. 78, 85 (1987), distinguishes this case from Carlson
and provides another reason to conclude that it presents a new
Bivens context.
Kalu argues his Eighth Amendment sexual assault claim
against Lt. Middernatch does not present a new Bivens context
because it is not meaningfully different from the Supreme
Court’s opinion in Farmer v. Brennan, 511 U.S. 825 (1994).
But his reliance on Farmer is misplaced for a number of
reasons. As an initial matter, Farmer did not address the
propriety of Bivens remedies. Rather, the case asked the Court
to define the deliberate indifference standard for Eighth
Amendment claims. Farmer, 511 U.S. at 828. In Farmer, the
Court considered a prisoner’s claim against federal prison
officials for their failure to prevent inmate-on-inmate sexual
violence, id. at 830–31, and held that a prison official could be
liable “only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take
reasonable measures to abate it,” id. at 847. The Court
remanded for further proceedings without indicating whether
it was recognizing a new cause of action under Bivens for such
claims. See Sargeant, 87 F.4th at 364–65 (discussing Farmer,
511 U.S. at 830; 835–40). And the parties “neither briefed nor

-- 21 of 68 --

22
discussed at oral argument whether the case was properly a
Bivens case.” Id. at 365 n.2.
Additionally, the Supreme Court has never recognized
Farmer as a Bivens case. In the decades since Farmer, the
Court has repeatedly omitted it from lists of its Bivens
jurisprudence. See, e.g., Egbert, 596 U.S. at 490–91
(discussing Bivens, Davis, and Carlson, and noting that
“[s]ince these cases, the Court has not implied additional
causes of action under the Constitution”); Hernandez, 589 U.S.
at 99 (“Bivens, Davis, and Carlson were the products of an era
when the Court routinely inferred causes of action that were
not explicit in the text of the provision that was allegedly
violated.” (quotation marks and citation omitted)); Abbasi, 582
U.S. at 131 (“These three cases—Bivens, Davis, and
Carlson—represent the only instances in which the Court has
approved of an implied damages remedy under the
Constitution itself.”); Minneci v. Pollard, 565 U.S. 118, 124
(2012) (“Since Carlson, the Court has had to decide in several
different instances whether to imply a Bivens action. And in
each instance it has decided against the existence of such an
action.”); Malesko, 534 U.S. at 70 (“In 30 years of Bivens
jurisprudence we have extended its holding only twice . . . .”).
Furthermore, the Supreme Court has cautioned against
implying a Bivens remedy where an earlier opinion has
assumed without deciding otherwise. Sargeant, 87 F.4th at 365
(citations omitted). In Egbert, the Court considered a First
Amendment retaliation claim and noted that while it had
previously “assumed that such a damages action might be
available,” it had “never held that Bivens extends to First
Amendment claims.” 596 U.S. at 498 (quotation marks,
citations, and alterations omitted). After applying the two-step

-- 22 of 68 --

23
inquiry required by its precedent, the Court concluded such
claims were ineligible for Bivens remedies. Id. at 498–99.
Egbert’s reasoning applies equally here: an assumption in
Farmer should not be interpreted as affirmatively authorizing
a Bivens action in that setting. For these reasons, we find that
Farmer does not present an established Bivens context.9
Kalu next argues two of our prior Bivens cases compel
a different outcome. Specifically, he contends our decisions in
Bistrian and Shorter establish that “no new Bivens context is
presented when prison officials are responsible for the assault
of an inmate in their care,” and those decisions should control
the new context analysis here. Appellant’s Br. 28. But Kalu’s
9 We note that Courts of Appeals have varied on the issue of
whether Farmer recognized a new Bivens cause of action.
Compare Bistrian, 912 F.3d at 90–91 (“It seems clear, then,
that [in Farmer] the Supreme Court [], pursuant to Bivens,
recognized a failure-to-protect claim under the Eighth
Amendment.”), with Bulger v. Hurwitz, 62 F.4th 127, 139 (4th
Cir. 2023) (“Appellant’s theory that Farmer recognized a
fourth context of Bivens claims beyond the issues presented in
Bivens, Davis, and Carlson is contrary to the Supreme Court’s
recognition that it has refused to extend Bivens to any new
context for the past 30 years, which includes the time period it
decided Farmer.” (quotation marks and citation omitted)),
Sargeant, 87 F.4th at 365 (“Not once has the Supreme Court
mentioned Farmer alongside [Bivens, Davis, and Carlson],
and we think it would have if Farmer created a new context or
clarified the scope of an existing one.”), and Chambers v.
Herrera, 78 F.4th 1100, 1105 n.2 (9th Cir. 2023) (declining to
recognize Farmer as a Bivens case).

-- 23 of 68 --

24
argument ignores Abbasi’s instruction that “lower courts [can]
no longer rely on their own prior precedents” to determine
whether a case presents a novel context for Bivens purposes.
Mack, 968 F.3d at 319; see also Abbasi, 582 U.S. at 139. After
Abbasi, we may only use three cases as benchmarks: Bivens,
Davis, and Carlson.10 Besides, both Bistrian and Shorter
10 In Abbasi, decided in 2017, the Supreme Court expressly
indicated that “three cases—Bivens, Davis, and Carlson—
represent the only instances in which the Court has approved
of an implied damages remedy under the Constitution itself.”
Abbasi, 582 U.S. at 131. Hernandez, issued in 2020, restated
that the Court has only authorized an implied cause of action
in “three Bivens cases”—specifically Bivens, Davis, and
Carlson—and only those can be considered in the new context
inquiry. See Hernandez, 589 U.S. at 101–02; see also id. at 117
(Thomas, J., concurring) (“[The Court has] effectively cabined
the Bivens doctrine to the facts of Bivens, Davis, and
Carlson.”).
Despite that assertion, our Bivens case law has relied on
Farmer v. Brennan as a benchmark in the new context inquiry.
In Shorter v. United States, decided a year after Hernandez, we
explained that “the Supreme Court in Abbasi [and Hernandez]
neglected to name Farmer because it saw that case as falling
under the umbrella of Carlson.” Shorter, 12 F.4th at 373 n.5.
In other words, we interpreted Farmer as falling within the
scope, or stretching the bounds of, the context recognized in
Carlson.
But more recently, in Egbert, the Supreme Court again
reiterated that at the first step of the analysis “we ask whether
the case presents a new Bivens context—i.e., is it meaningfully
different from the three cases in which the Court has implied a

-- 24 of 68 --

25
damages action.” Egbert, 596 U.S. at 492 (emphasis added)
(quotation marks, citation, and alterations omitted). And the
Court went as far as suggesting “that any extension to a new
context may be ultra vires.” Xi, 68 F.4th at 833; see also
Egbert, 596 U.S. at 502 (“[W]e have indicated that if we were
called to decide Bivens today, we would decline to discover
any implied causes of action in the Constitution.”).
Hernandez and Egbert evince the Court’s new
appreciation of “‘the tension between’ judicially created causes
of action and ‘the Constitution’s separation of legislative and
judicial power.’” Egbert, 596 U.S. at 491 (quoting Hernandez,
589 U.S. at 100); see also id. at 504 (Gorsuch, J., concurring in
the judgment) (“[I]f the only question is whether a court is
‘better equipped’ than Congress to weigh the value of a new
cause of action, surely the right answer will always be no.
Doubtless, these are the lessons the Court seeks to convey. I
would only take the next step and acknowledge explicitly what
the Court leaves barely implicit.”). Given the changing
“judicial attitudes about the creation of new causes of action,”
Vanderklok v. United States, 868 F.3d 189, 200 (3d Cir. 2017),
and Abbasi, Hernandez, and Egbert’s continued omission of
Farmer from the list of Supreme Court cases recognizing a
cause of action under the Constitution, we believe that Farmer
is not an appropriate benchmark in the new context inquiry.
We therefore follow the Supreme Court’s guidance and
compare the facts of Kalu’s case against Bivens, Davis, and
Carlson only. This finding is consistent with our more recent
precedent declining to read Farmer as an established Bivens
context. See Dongarra v. Smith, 27 F.4th 174, 180 (3d Cir.
2022) (“[T]he Court has recognized these implied causes of
actions for constitutional violations in only three contexts:

-- 25 of 68 --

26
involved officers who failed to protect prisoners from inmate-
on-inmate sexual assault, whereas Kalu alleges officer-on-
inmate sexual assault.11 See Bistrian, 912 F.3d at 83, 88
(finding that an inmate’s claim that prison officials failed to
protect him from “prisoner-on-prisoner violence is not a new
context for Bivens claims”); Shorter, 12 F.4th at 369, 373
(holding that an inmate’s claim that prison “officials violated
her Eighth Amendment rights by displaying deliberate
indifference to the substantial risk that another inmate would
[sexually] assault her” does not present a novel Bivens
context). While this difference may appear to some to be a
minor one, it furnishes a basis to hold that Kalu’s case seeks to
extend the Bivens remedy. And all that is needed to forestall a
Bivens extension is “any rational reason (even one) to think that
Congress is better suited to ‘weigh the costs and benefits of
Bivens; Davis v. Passman; and Carlson.”); see also Xi, 68 F.4th
at 833 (identifying Bivens, Davis, and Carlson as the three
cases where the Supreme Court has implied a damages action
under the Constitution).
11 At oral argument, Kalu’s counsel agreed there is a difference
between inmate-on-inmate violence and officer-on-inmate
assault for purposes of the Bivens analysis. See Arg. Tr. 9:3–
9:7. However, counsel argued the difference was not
dispositive: the distinction would not “expand or extend Bivens
because it’s a distinction that only makes the offense more
egregious.” Arg. Tr. 9:3–9:7; see also Appellant’s Br. 26 (“Mr.
Kalu’s sexual assault claim does not meaningfully extend
Bivens because it is grounded in—and involves an even starker
violation of—the same Eighth Amendment right that animated
Farmer in the same context of prison sexual assault.”). We
address that argument below.

-- 26 of 68 --

27
allowing a damages action to proceed.’” Egbert, 596 U.S. at
496 (quoting Abbasi, 582 U.S. at 136). Thus, Kalu’s reliance
on Bistrian and Shorter is unpersuasive.
Finally, Kalu argues his claim does not present a new
context because it would not “extend[],” Egbert, 596 U.S. at
494, or “expand[],” Abbasi, 582 U.S. at 135, the existing level
of constitutional protection. He contends it “would be odd
indeed if Bivens relief were available when a prison official is
deliberately indifferent to the risk of sexual assault by other
inmates, but not when that same prison official perpetrates the
sexual assault himself” because the latter conduct “is
inherently more egregious.” Appellant’s Reply Br. 17. But that
argument “misses the point,” Hernandez, 589 U.S. at 108, as it
misapplies the new context inquiry. Bivens is concerned with
“deterring the unconstitutional acts of individual officers,”
Malesko, 534 U.S. at 71, and “respect for the separation of
powers” is our guiding principle, Hernandez, 589 U.S. at 113.
Our analysis in Bivens cases is not focused on the seriousness
or egregiousness of a defendant’s conduct—we do not ask
whether the defendant’s conduct violated an individual’s right.
“Instead, we ask whether the Judiciary should alter the
framework established by the political branches for addressing
any such conduct that allegedly violates the Constitution.”
Egbert, 596 U.S. at 500 (quotation marks and citation omitted).
And, where, as here,12 there are reasons to think that “Congress
12 As discussed infra, the existence of an alternative remedial
scheme through the BOP’s ARP, Congress’s omission of a
standalone damages action in the PLRA and PREA, and
Congress’s extensive regulation of the problem of sexual abuse
in prisons through the PREA are “reasons to think [the political
branches] might doubt the efficacy or necessity of a damages

-- 27 of 68 --

28
or the Executive has created a remedial process that it finds
sufficient to secure an adequate level of deterrence” for a
certain class of federal officials, we “cannot second-guess that
calibration by superimposing a Bivens remedy.” Id. at 489. In
other words, the seriousness of a federal official’s misconduct
does not authorize us to change the remedies available against
that class of defendants.13 See id. at 496 (“The Bivens inquiry
does not invite federal courts to independently assess the costs
and benefits of implying a cause of action.”).
The distinctions between Kalu’s sexual assault claim
and the one recognized in Carlson “are perhaps small, at least
remedy” in the context of federal prison. Abbasi, 582 U.S. at
137.
13 Of note, in Abbasi the Court observed that, in Bivens cases,
there “is a persisting concern . . . that absent a Bivens remedy
there will be insufficient deterrence to prevent officers from
violating the Constitution.” Abbasi, 582 U.S. at 145. But the
Court instructed that such concern must be balanced against
the costs and burdens that would be imposed on the
Government. Id. Officers “who face personal liability for
damages might refrain” in performing their duties, and “the
costs and difficulties of later litigation might intrude upon and
interfere with the proper exercise of their office.” Id. And
“Congress is ‘far more competent than the Judiciary’ to weigh
such policy considerations.” Egbert, 596 U.S. at 491 (quoting
Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)). Thus, we
“should not inquire . . . whether Bivens relief is appropriate in
light of the balance of circumstances in the ‘particular case.’”
Id. at 496 (quoting United States v. Stanley, 483 U.S. 669, 683
(1987)).

-- 28 of 68 --

29
in practical terms.” Abbasi, 582 U.S. at 149. But given the
Supreme Court’s “expressed caution about extending the
Bivens remedy,” the new-context inquiry is easily satisfied
here. Id.
2.
The next step of the framework requires us to determine
whether a case presents special factors that counsel hesitation
in extending the Bivens remedy. See Abbasi, 582 U.S. at 149.
Several special factors weigh against extending Bivens liability
to Kalu’s Eighth Amendment sexual assault claim, especially
because it arises in the prison setting.
First, the availability of alternative remedies weighs
against allowing Bivens remedies here. Inmates in Kalu’s
position have full access to an alternative remedial mechanism
established by the Executive Branch: the BOP’s ARP. See
Malesko, 534 U.S. at 74. The BOP’s program and procedures
allow “all inmates in institutions operated by the Bureau of
Prisons,” 28 C.F.R. § 542.10(b), “to seek formal review of an
issue relating to any aspect of his/her own confinement,” id.
§ 542.10(a). The program provides “an alternative remedial
structure,” Abbasi, 582 U.S. at 137, as it is “another means
through which allegedly unconstitutional actions and policies
can be brought to the attention of the BOP and prevented from
recurring,” Malesko, 534 U.S. at 74. In fact, the BOP’s
administrative procedures under the Prison Rape Elimination
Act set forth specific provisions regarding the resolution of
federal prisoners’ sexual abuse claims. See 28 C.F.R. § 115.52
(describing administrative procedures to address an inmate’s
claim of sexual abuse, including grievances regarding “a staff
member who is the subject of the complaint”).

-- 29 of 68 --

30
The presence of an alternative remedial structure
through the BOP’s program is sufficient by itself to preclude
an extension of Bivens. The Supreme Court’s “cases hold that
a court may not fashion a Bivens remedy if Congress already
has provided, or has authorized the Executive to provide, ‘an
alternative remedial structure.’” Egbert, 596 U.S. at 493
(quoting Abbasi, 582 U.S. at 137). “For if Congress has created
‘any alternative, existing process for protecting the injured
party’s interest’ that itself may ‘amount to a convincing reason
for the Judicial Branch to refrain from providing a new and
freestanding remedy in damages.’” Abbasi, 582 U.S. at 137
(alterations omitted) (quoting Wilkie v. Robbins, 551 U.S. 537,
550 (2007)). And this is true regardless of whether alternative
remedies are “not as effective as an individual damages
remedy.” Bush, 462 U.S. at 372.14
Second, congressional silence in this particular context
indicates that Congress did not want to create a damages
remedy against federal prison officials. Congress has passed
legislation in this subject area addressing both the issue of
prisoners’ constitutional claims through the Prison Litigation
Reform Act of 1995 (“PLRA”), 42 U.S.C. §§ 1997e et seq.,
and the issue of sexual abuse in federal prisons through the
Prison Rape Elimination Act of 2003 (“PREA”), 34 U.S.C.
§§ 30301 et seq. Both times, the resulting legislation has
explicitly omitted an individual capacity damages cause of
14 “The fact that [Kalu] was unsuccessful in obtaining relief
through [the BOP’s] program does not mean that he did not
have access to alternative or meaningful remedies.” Mack, 968
F.3d at 321 n.8 (quotation marks and citation omitted).

-- 30 of 68 --

31
action against federal officials. “This pattern of congressional
action—refraining from authorizing damages actions for injury
inflicted” by federal prison officials—“gives us further reason
to hesitate about extending Bivens in this case.” Hernandez,
589 U.S. at 113.
Allowing Kalu’s claim to proceed would conflict with
Congress’s stated purpose in passing the PLRA—namely, to
“eliminate unwarranted federal-court interference with the
administration of prisons.” Woodford, 548 U.S. at 93. Enacted
some 15 years after Carlson was decided, the PLRA “made
comprehensive changes to the way prisoner abuse claims must
be brought in federal court.” Abbasi, 582 U.S. at 148. The Act
created a mandatory exhaustion provision for cases brought by
inmates “with respect to prison conditions,” whether under
Section 1983 “or any other Federal law.” 42 U.S.C. § 1997e(a);
see also Porter v. Nussle, 534 U.S. 516, 524 (2002). But the
Act itself failed to “provide for a standalone damages remedy
against federal jailers,” which “suggests Congress chose not to
extend the Carlson damages remedy to cases involving other
types of prisoner mistreatment.” Abbasi, 582 U.S. at 149.
Years later, Congress passed the PREA to, inter alia,
“establish a zero-tolerance standard for the incidence of prison
rape in prisons in the United States” and “develop and
implement national standards for the detection, prevention,
reduction, and punishment of prison rape.” 34 U.S.C.
§ 30302(1), (3). While the Act established several mechanisms
to tackle the issue of sexual abuse in prisons, it did not create a
cause of action against federal prison officials. Instead,
Congress chose to address the problem by instructing the
Attorney General to develop and promulgate “national
standards for the detection, prevention, reduction, and

-- 31 of 68 --

32
punishment of prison rape,” id. § 30307(a)(1), and through
other measures. See, e.g., id. § 30303(a)(1) (directing the
Bureau of Justice Statistics to develop a yearly
“comprehensive statistical review and analysis of the incidence
and effects of prison rape”); id. § 30304(a)(2) (requiring the
National Institute of Corrections to “conduct periodic training
and education programs for Federal, State, and local authorities
responsible for the prevention, investigation, and punishment
of instances of prison rape”); id. § 30305(a) (authorizing grants
“to provide funds for personnel, training, technical assistance,
data collection, and equipment to prevent and prosecute
prisoner rape”); id. § 30306(a)–(f) (establishing “a commission
to be known as the National Prison Rape Elimination
Commission” to provide, among other things, “recommended
national standards for enhancing the detection, prevention,
reduction, and punishment of prison rape”). Recognizing a
cause of action against federal correction officials may threaten
to interfere with the comprehensive remedial mechanism
established by Congress to address the problem of sexual
assault in prisons. See Bush, 462 U.S. at 388 (“The question
is . . . whether an elaborate remedial system that has been
constructed step by step, with careful attention to conflicting
policy considerations, should be augmented by the creation of
a new judicial remedy for the constitutional violation at
issue.”). Bearing in mind that separation of powers principles
are central to the analysis, Abbasi, 582 U.S. at 149, we are
hesitant to create such a remedy in this context.
Kalu counters that Congress’s silence in the PLRA is
not indicative of its desire to limit Bivens actions in the prison
context and is therefore not a special factor counseling
hesitation. See Appellant’s Br. 44. According to him, “because
the PLRA regulates how Bivens actions are brought, it cannot

-- 32 of 68 --

33
rightly be seen as dictating that a Bivens cause of action should
not exist at all.” Id. (quotation marks and citation omitted).
Contrary to Kalu’s argument, that the statute has been
interpreted to govern the process by which prisoners bring
Bivens claims, Nyhuis v. Reno, 204 F.3d 65, 68–69 (3d Cir.
2000), is not dispositive. The PLRA was enacted against the
backdrop of Carlson, where the Supreme Court extended
Bivens to an Eighth Amendment claim against prison officials
for their failure to provide adequate medical care. Carlson, 446
U.S. at 19–18. And in the Act Congress chose to impose the
same gatekeeping requirements to the constitutional cause of
action recognized in Carlson as to claims brought under
Section 1983. See 42 U.S.C.A. § 1997e(a) (noting that the
PLRA applies to actions brought under 42 U.S.C. § 1983 and
under “any other Federal law”). It is not surprising Congress
elected to institute the same exhaustion provisions to both
kinds of cases. “The PLRA was plainly intended, at least in
part, to reduce the intervention of federal courts into the
management of the nation’s prison systems,” and “Congress
would only undermine this objective by carving out certain
types of actions from the aegis of the PLRA.” Booth v.
Churner, 206 F.3d 289, 295 (3d Cir. 2000) (quotation marks
and citation omitted), aff’d, 532 U.S. 731 (2001). But nothing
in Kalu’s submissions—or in the PLRA’s legislative history—
suggests Congress intended the statute to create a new cause of
action for all constitutional claims brought by federal
prisoners. See Nussle, 534 U.S. at 523–26 (recounting
legislative history); Alexander v. Hawk, 159 F.3d 1321, 1324–
25 (11th Cir. 1998) (same). The PLRA does not demonstrate
legislative intent to provide for a damages remedy in contexts
other than the one identified in Carlson—it does not suggest
Congress wanted to extend the Bivens remedy to all

-- 33 of 68 --

34
constitutional claims brought by prisoners.15
15 In support of his argument, Kalu cites our decisions in
Bistrian v. Levi and Mack v. Yost. See Bistrian, 912 F.3d at 93
(“The very statute that regulates how Bivens actions are
brought cannot rightly be seen as dictating that a Bivens cause
of action should not exist at all.”); Mack, 968 F.3d at 324 (“We
again reject the argument that Congressional silence within the
PLRA suggests that Congress did not want a damages remedy
against prison officials for constitutional violations.”). But
another recent decision from our Court reached a contrary
determination, reasoning that the PLRA’s omission of a cause
of action is a special factor counseling hesitation in extending
Bivens. In Davis v. Samuels we stated that “Congress’s post-
Bivens promulgation of the Prison Litigation Reform Act of
1995” was a special factor militating against extending Bivens
in the prison setting. See 962 F.3d 105, 112 (3d Cir. 2020). And
several of our sister circuits have agreed with our reasoning in
Samuels and concluded the PLRA is indicative of legislative
intent and thus a special factor counseling hesitation. See
Sargeant, 87 F.4th at 368 (“[The PLRA is a] reason
suggest[ing] that Congress is better positioned to assess the
need for a remedy or that Congress might not desire a new
remedy.”); Butler v. Porter, 999 F.3d 287, 294–95 (5th Cir.
2021) (listing the PLRA as a special factor counseling
hesitation); Callahan v. Fed. Bureau of Prisons, 965 F.3d 520,
524 (6th Cir. 2020) (concluding the PLRA is a special factor
because “‘[l]egislative action suggesting that Congress does
not want a damages remedy’ counsels against judicial do-it-
yourself projects’” (quoting Abbasi, 582 U.S. at 148)).
Of importance, the Supreme Court has provided
guidance on the significance of the PLRA in the special factor

-- 34 of 68 --

35
Similarly, Kalu argues that the PREA’s omission of a
damages action is not indicative of legislative intent to
foreclose a Bivens remedy in the prison context. Specifically,
he contends that in passing the PREA “Congress signaled that
constitutional tort litigation and Bivens remedies in particular
were among the measures that would advance the statute’s
‘zero-tolerance’ policy for sexual assault in prisons.”
Appellant’s Br. 35 (quoting 34 U.S.C. § 30302(1)). But
contrary to his suggestion, the Act does not purport to manifest
congressional approval of Bivens actions in the prisoner abuse
context. The “Findings” section of the statute cites the
Supreme Court’s opinion in Farmer v. Brennan for the
proposition that “deliberate indifference to the substantial risk
of sexual assault violates prisoners’ rights under the Cruel and
Unusual Punishments Clause of the Eighth Amendment.” 34
U.S.C. § 30301(13). But nothing in the statutory scheme or its
language illustrates Congress’s intention to create a cause of
action for such violations, or to extend Bivens remedies to
analysis. In Abbasi, the Court interpreted the PLRA’s omission
of a cause of action for damages and noted it may suggest
“Congress chose not to extend the Carlson damages remedy”
to other prisoner cases. Abbasi, 582 U.S. at 149. And, in
Egbert, the Court explained that we now “defer to
‘congressional inaction’ if ‘the design of a Government
program suggests that Congress has provided what it considers
adequate remedial mechanisms.’” Egbert, 596 U.S. at 501
(quoting Schweiker, 487 U.S. at 423). Considering our
conflicting precedent and the Court’s instruction in Abbasi and
Egbert, we believe Congress’s silence in the PLRA constitutes
a special factor counseling hesitation in extending Bivens
liability to this setting.

-- 35 of 68 --

36
officer-on-prisoner abuse.
“[T]he concept of special factors counselling hesitation
in the absence of affirmative action by Congress has proved to
include an appropriate judicial deference to indications that
congressional inaction has not been inadvertent.” Schweiker,
487 U.S. at 423 (quotation marks and citation omitted). So
here, the omission of a cause of action for damages against
federal officers in the PREA is indicative “that Congress has
provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of [a
government program’s] administration.” Id. Given that
Congress paid close attention to the issue of sexual assault in
prisons but chose not to create a standalone cause of action
against federal officials, we decline to supplement the PREA’s
comprehensive legislative scheme by implying a judicially
created Bivens remedy.
Third, separation of powers principles caution against
extending Bivens to the novel context presented by Kalu’s
claim. Hernandez, 589 U.S. at 96. When evaluating this factor,
we “consider the risk of interfering with the authority of the
other branches, and we ask whether there are sound reasons to
think Congress might doubt the efficacy or necessity of a
damages remedy, and whether the Judiciary is well suited,
absent congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages action to
proceed.” Hernandez, 589 U.S. at 102 (quotation marks and
citations omitted). Here, the fact that Kalu’s claim arises in the
prison setting is of central importance. The Supreme Court has
long recognized that, because “the operation of our
correctional facilities is peculiarly the province of the
Legislative and Executive Branches,” separation of powers and

-- 36 of 68 --

37
federalism concerns support conferring “wide-ranging
deference” to prison administrators’ policy and operational
decisions. Bell v. Wolfish, 441 U.S. 520, 547–48 (1979); see
also Block v. Rutherford, 468 U.S. 576, 584 (1984)
(“reaffirm[ing] the very limited role that courts should play in
the administration of detention facilities”). Since we are unable
to anticipate the practical effects of recognizing a damages
action against federal officials for officer-on-prisoner assault,
we “must refrain from creating the remedy in order to respect
the role of Congress in determining the nature and extent of
federal-court jurisdiction under Article III.” Abbasi, 582 U.S.
at 137.
***
In sum, the availability of an alternative remedial
scheme through the BOP’s ARP, Congress’s repeated
omission of a cause of action against individual officials in
both the PLRA and PREA, and separation of powers principles
are special factors counseling against extending Bivens liability
to Kalu’s officer-on-prisoner sexual assault claim. As Egbert
cautions, whether to supplement an existing remedial scheme
with a damages action is a legislative determination that we are
not allowed to “second-guess.” Egbert, 596 U.S. at 498; see
also id. at 502 (Gorsuch, J., concurring in the judgment) (“Our
Constitution’s separation of powers prohibits federal courts
from assuming legislative authority.”). We therefore hold
Kalu’s Eighth Amendment sexual assault claim against Lt.
Middernatch is ineligible for remedies under Bivens. We will
affirm the District Court’s dismissal of Kalu’s sexual assault
claim.

-- 37 of 68 --

38
B.
Kalu alleges both defendants violated his Eighth
Amendment rights when they subjected him to inhumane
conditions of confinement. He seeks damages under Bivens to
redress that harm. But, like his sexual assault claim, Kalu’s
conditions-of-confinement claim fails because it presents a
new Bivens context and special factors counsel against a Bivens
extension.
1.
In his complaint, Kalu argues that he is entitled to
damages under Bivens to remedy a violation of his Eighth
Amendment “rights to be free from cruel and unusual
punishment through sanctions to sleep on a cold steel metal
bunk for six months” in below freezing temperatures without
access to heat or appropriate clothing. J.A. 71. He maintains
his conditions-of-confinement claim does not present a novel
Bivens context because it fits well within the Bivens actions
recognized by the Supreme Court in Carlson and Farmer,16
and the District Court erred in concluding otherwise. We
disagree.
In essence, Kalu argues that the Supreme Court’s
holding in Carlson extends to all Eighth Amendment suits
brought by federal inmates regarding prison conditions. This
argument disregards the Supreme Court’s “expressed caution
about extending the Bivens remedy,” and its instruction that
16 As previously discussed, we believe Farmer is not an
appropriate benchmark in the new context inquiry.

-- 38 of 68 --

39
“the new-context inquiry is easily satisfied.” Abbasi, 582 U.S.
at 149. Under the Court’s jurisprudence, a novel context may
arise if “even one” distinguishing factor implicates separation
of powers concerns. Egbert, 596 U.S. at 496. That threshold is
met here. Kalu’s Eighth Amendment conditions-of-
confinement claim “bear[s] little resemblance to the three
Bivens claims the Court has approved in the past: a claim
against FBI agents for handcuffing a man in his own home
without a warrant; a claim against a Congressman for firing his
female secretary; and a claim against prison officials for failure
to treat an inmate’s asthma.” Abbasi, 582 U.S. at 140 (citing
Bivens, 403 U.S. at 397; Davis, 442 U.S. at 248; and Carlson,
446 U.S. at 19).
Kalu’s claim presents a new context because it is
distinct “in a meaningful way from previous Bivens cases
decided by” the Supreme Court: Bivens, Davis, and Carlson.
Id. at 139. As an initial matter, Kalu cannot rely on Bivens or
Davis as comparisons for the new context inquiry—his claim
involves a different “category of defendants,” Malesko, 534
U.S. at 68, and a different constitutional right, Egbert, 596 U.S.
at 499.
Kalu’s claim is also meaningfully different to the one
recognized in Carlson. Though Kalu’s case and Carlson
present somewhat “parallel circumstances,” Abbasi, 582 U.S.
at 139, as they both involve misconduct by federal prison
officials which harmed inmates, the similarities end there. The
“theory of liability,” Malesko, 534 U.S. at 73, and “the
mechanism of injury,” Abbasi, 582 U.S. at 138, are sufficiently
distinct to conclude Kalu’s case presents a novel Bivens
context. See Abbasi, 582 U.S. at 138–39 (distinguishing
Carlson from its subsequent decision in Malesko even though

-- 39 of 68 --

40
the cases presented “almost parallel circumstances,” the same
“right at issue,” and an identical “mechanism of injury”). In
Kalu’s case, he was forced to endure inhumane conditions of
confinement by being forced to sleep in a cold metal bunk and
denied appropriate heat and clothing during the winter. In
Carlson, by contrast, federal prison officials failed to provide
medical treatment for a period of hours eventually leading to
the prisoner’s death. Carlson, 446 U.S. at 16 n.1.; see also
Abbasi, 582 U.S. at 139–40 (“A case might differ in a
meaningful way because of . . . the generality or specificity of
the official action . . . .”).
In addition, as compared to Carlson, Kalu’s claim
“concern[s] a different breed of law enforcement misconduct.”
Xi, 68 F.4th at 834. This factor is material because it increases
the “risk of disruptive intrusion by the Judiciary into the
functioning of other branches.” Abbasi, 582 U.S. at 140.
Specifically, allowing Kalu’s claim to proceed would “expand
prison officials’ liability from previous Bivens actions to
systemic levels, potentially affecting not only the scope of their
responsibilities and duties but also their administrative and
economic decisions.” Tate v. Harmon, 54 F.4th 839, 846 (4th
Cir. 2022) (declining to extend Bivens to a conditions-of-
confinement claim). The potential “impact on governmental
[prison] operations systemwide,” Abbasi, 582 U.S. at 136,
coupled with our “policy of judicial restraint” in the realm of
prison administration, Turner, 482 U.S. at 85, provide yet
further reasons to conclude that Kalu’s claim presents a novel
Bivens context.
Finally, the official conduct that Kalu challenges is far
broader in scope than that in Carlson. Recognizing Bivens
liability for Kalu’s conditions-of-confinement claim could

-- 40 of 68 --

41
invite a wide variety of new prisoner suits. And such cases
could involve “prison conditions that could vary from cell to
cell, from prison to prison, and from time to time, implicating
a broad class of inmates suffering ill-defined injuries with ill-
defined damages.” Tate, 54 F.4th at 847. Our inability to
“predict the ‘systemwide’ consequences of recognizing a cause
of action under Bivens” for this set of facts, therefore, results
in uncertainty which alone “forecloses relief.” Egbert, 596
U.S. at 493 (citing Abbasi, 582 U.S. at 136).
When determining whether a case presents a new
context for Bivens purposes, we must be mindful that the
“Constitution’s separation of powers requires us to exercise
caution before extending Bivens.” Hernandez, 589 U.S. at 96.
Caution is especially warranted here. Unlike any previously
recognized Bivens claim, one based on the conditions of a
prison cell implicates policy and operational decisions of
prison administrators that raises significant separation of
powers concerns. We therefore hold that Kalu’s Eighth
Amendment conditions-of-confinement claim presents a novel
Bivens context.
2.
The special factors counseling against extending Bivens
liability to Kalu’s sexual assault claim apply equally to Kalu’s
conditions-of-confinement claim. First, as previously
discussed, the “Supreme Court has noted that ‘when alternative
methods of relief are available, a Bivens remedy usually is
not.’” Mack, 968 F.3d at 320 (quoting Abbasi, 582 U.S. at 145).
Of heightened relevance here, the Supreme Court in Malesko
“explained that Bivens relief was unavailable because federal
prisoners could, among other options, file grievances through”

-- 41 of 68 --

42
the BOP’s Administrative Remedy Program. Egbert, 596 U.S.
at 497 (citing Malesko, 534 U.S. at 74). Malesko’s reasoning
applies equally here. A plaintiff in Kalu’s shoes can—and
must—seek redress for similar allegedly unconstitutional
conditions of confinement through the BOP’s ARP. See
Nussle, 534 U.S. at 532 (holding that “the PLRA’s exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong”); see also Jones v. Bock, 549 U.S. 199, 218
(2007) (noting that rules “are defined not by the PLRA, but by
the prison grievance process itself”); 28 C.F.R. § 542.10(a).
Thus, the political branches have “provided alternative
remedies for aggrieved parties in [Kalu’s] position that
independently foreclose a Bivens action here.” Egbert, 596
U.S. at 497.
Second, where “Congress has legislated pervasively on
a particular topic but has not authorized the sort of suit that a
plaintiff seeks to bring under Bivens, respect for the separation
of powers demands that courts hesitate to imply a remedy.”
Klay v. Panetta, 758 F.3d 369, 376 (D.C. Cir. 2014). After
Bivens and Carlson were decided, Congress passed the PLRA
and had a “specific occasion to consider the matter of prisoner
abuse and to consider the proper way to remedy those wrongs.”
Abbasi, 582 U.S. at 148. Congress’s “dominant concern” in
enacting the PLRA was “to promote administrative redress”
and “filter out groundless claims.” Nussle, 534 U.S. at 528. The
fact that the legislation omitted a cause of action against
individual federal correction officials supports the “conclusion
that Congress considered—and rejected—the possibility of
federal damages for” conditions-of-confinement claims such
as Kalu’s. Butler, 999 F.3d at 294–95; see also Samuels, 962

-- 42 of 68 --

43
F.3d at 112. “[I]n any inquiry respecting the likely or probable
intent of Congress, the silence of Congress is relevant; and here
that silence is telling.” Abbasi, 582 U.S. at 143–44. Implying a
damages remedy in this context would have the potential to
“upset the careful balance of interests struck by the lawmakers”
when enacting legislative and administrative schemes meant to
redress prisoner complaints. Hernandez, 589 U.S. at 100.
Third, consideration of separation of powers principles
counsel against extending Bivens remedies to Kalu’s
conditions-of-confinement claim. Congress has directed
“control and management of Federal penal and correctional
institutions . . . in the Attorney General, who shall promulgate
rules for the government thereof.” 18 U.S.C. § 4001(b)(1).
Under that authority, the BOP has established an internal
administrative remedy process designed to allow federal
inmates to seek review of issues relating to their confinement.
See 28 C.F.R. § 542.10(a). The BOP, rather than the judiciary,
is therefore tasked with oversight of prison administration.
Allowing individual officers to be sued under Bivens for
conditions-of-confinement claims would “invite intrusive
judicial inquiry” into the BOP’s administrative decisions.
Mack, 968 F.3d at 322. “We should hesitate before embarking
down such a path,” id. at 323, as prison administration is “a
task that has been committed to the responsibility of [the
legislative and executive] branches,” Turner, 482 U.S. at 85.
And since conditions-of-confinement claims are “common,”
they are “more likely to impose ‘a significant expansion of
Government liability.’” Egbert, 596 U.S. at 500 (quoting FDIC
v. Meyer, 510 U.S. 471, 486 (1994)). Implying a damages
remedy in this novel circumstance therefore risks frustrating
Congress’ policymaking role and entangling courts in matters
committed to the executive branch.

-- 43 of 68 --

44
***
Heeding the Supreme Court’s cautionary language in its
recent Bivens jurisprudence, we conclude that special factors
counsel against expanding Bivens liability to the context
presented by Kalu’s conditions -of-confinement claim. The
availability of an alternative remedial scheme through the
BOP’s ARP, Congress’s omission of a standalone damages
action in the passage of the PLRA, and separation of powers
implications are factors that weigh against allowing the claim
to proceed. We therefore hold that Kalu’s Eighth Amendment
conditions-of-confinement claim is ineligible for Bivens
remedies.17 We will affirm the District Court’s dismissal of
Kalu’s conditions-of-confinement claim.
C.
Kalu next alleges Warden Spaulding violated his Eighth
Amendment rights when he failed to protect him against sexual
assault inflicted by a prison guard. Kalu seeks damages under
Bivens to redress that harm. But Kalu’s claim against Warden
Spaulding fails for two reasons. First, as the District Court
correctly found, his complaint does not contain sufficient facts
17 We join the Fourth Circuit in holding that Bivens remedies
are not available for an Eighth Amendment conditions-of-
confinement claim in the prison context. See Tate, 54 F.4th at
847–48 (concluding that a prisoner’s “conditions-of-
confinement claim is not authorized by Carlson but instead
arises in a ‘new context’” and special factors weigh against
authorizing Bivens remedies for such a claim).

-- 44 of 68 --

45
to set forth a plausible claim against the Warden. Second, as
defendants argue, his claim is ineligible for remedies under
Bivens because it arises in a new context and special factors
counsel against implying a new damages remedy to his
circumstances.
1.
The District Court dismissed Kalu’s claim against
Warden Spaulding because the “complaint’s factual
allegations regarding Warden Spaulding are insufficient to
allege a facially plausible Bivens claim that he was personally
involved in the violation of Kalu’s constitutional rights.”18 J.A.
23. Kalu argues the District Court “misunderstood” his claim
against Warden Spaulding “as being based on the doctrine of
respondeat superior or vicarious liability.” Appellant’s Br. 19
(quotation marks and citation omitted). According to Kalu, his
allegations set forth a failure-to-protect or deliberate
indifference claim under a “knowledge-and-acquiescence
theory of supervisory liability.”19 Id. at 20. Even assuming
18 The District Court’s order dismissing Kalu’s failure-to-
protect claim also granted leave to file an amended complaint.
Months later, Kalu filed an amended complaint against Warden
Spaulding. But after defendants filed a second motion to
dismiss, Kalu voluntarily sought to withdraw the amended
complaint, and the court granted Kalu’s motion and denied
defendants’ motion to dismiss as moot. Thus, only the
allegations in Kalu’s original complaint are the subject of this
appeal.
19 The District Court found that Kalu’s complaint lacked any
“allegation that Warden Spaulding . . . knew of or otherwise

-- 45 of 68 --

46
acquiesced in Lt. Middernatch’s alleged sexual assault of
[Kalu] prior to the email Kalu sent on November 2, 2016.” J.A.
22. The District Court therefore interpreted the factual
allegations as framing a respondeat superior theory of liability.
And, because “[g]overnment officials may not be held liable
for the unconstitutional conduct of their subordinates under a
theory of respondeat superior,” Iqbal, 556 U.S. at 676, the
District Court dismissed the claim. See J.A. 23 (“The
complaint’s factual allegations regarding Warden Spaulding
are insufficient to allege a facially plausible Bivens claim that
he was personally involved in the violation of Kalu’s
constitutional rights.”).
Kalu argues this interpretation was erroneous and his
allegations are best understood as raising a deliberate
indifference or failure-to-protect claim. Appellant’s Br. 18–24.
In a Bivens action, “each [g]overnment official, his or her title
notwithstanding, is only liable for his or her own misconduct.”
Iqbal, 556 U.S. at 677. Where the claim is based on deliberate
indifference or failure-to-protect in violation of the Eighth
Amendment, controlling precedent makes clear that a plaintiff
must plead each “prison official’s deliberate indifference to a
substantial risk of serious harm.” Hamilton v. Leavy, 117 F.3d
742, 746 (3d Cir. 1997); see also Farmer, 511 U.S. at 828.
Kalu’s allegations can reasonably be interpreted as
raising a deliberate indifference claim. Specifically, Kalu
claimed that Warden Spaulding was “responsible for ensuring
the security, safety, and well-being of prisoner[s] under his
supervision,” J.A. 65, knew of the first two instances of sexual
assault, id. at 67–68, and replied that he would “look into the
matter,” id. at 68. Additionally, Kalu indicated he was removed
from the general prison population the same day Warden

-- 46 of 68 --

47
Kalu’s allegations are properly characterized as raising a
deliberate indifference or failure-to-protect claim against
Warden Spaulding, we agree with the District Court. His
pleadings were insufficient to state a plausible claim against
Warden Spaulding.
The Federal Rules of Civil Procedure require a
complaint to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). A motion to dismiss “may be granted only if,
accepting all well-pleaded allegations in the complaint as true
and viewing them in the light most favorable to the plaintiff, a
court finds that plaintiff’s claims lack facial plausibility.”
Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.
2011) (citing Twombly, 550 U.S. at 555–56). “A claim has
facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
Spaulding learned about the sexual assault allegations. Id. at
67–68. And an internal investigation commenced shortly
thereafter. Therefore, the claim is that Warden Spaulding had
a duty to ensure Kalu’s safety after learning about the risk of
sexual violence. See Washington v. Harper, 494 U.S. 210, 225
(1990) (“Prison administrators have . . . the duty to take
reasonable measures for the prisoners’ own safety.”).
Consequently, while the complaint sought a “species of
supervisory liability, it is not respondeat superior liability.”
Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir.
2010). We therefore proceed by analyzing Kalu’s factual
allegations as raising a deliberate indifference or failure-to-
protect claim against Warden Spaulding.

-- 47 of 68 --

48
at 678. And “a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106
(1976) (quotation marks and citation omitted).
When ruling on a defendant’s motion to dismiss, we
first outline the elements a plaintiff must plead to state a claim
for relief. Argueta v. U.S. Immigr. & Customs Enf’t, 643 F.3d
60, 73 (3d Cir. 2011). We then disregard any allegations that
are “no more than conclusions” and thus “not entitled to the
assumption of truth,” and determine whether the remaining
well-pleaded factual allegations “plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
Bivens liability is predicated on each defendant’s own
constitutional violations. To state a plausible Bivens claim “a
plaintiff must plead that each [g]overnment-official defendant,
through the official’s own individual actions, has violated the
Constitution.” Id. at 676. And the “factors necessary to
establish a Bivens violation will vary with the constitutional
provision at issue.” Id. Applying these standards to Kalu’s
Eighth Amendment deliberate indifference or failure-to-
protect claim, Kalu had to plead sufficient facts to show: “(1)
[he] was incarcerated under conditions posing a substantial risk
of serious harm, (2) the official was deliberately indifferent to
that substantial risk to [his] health and safety, and (3) the
official’s deliberate indifference caused [him] harm.” Shorter,
12 F.4th at 374 (citation omitted).
Under the second prong of the analysis a prison official
may be liable for deliberate indifference “only if he knows that
inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.”

-- 48 of 68 --

49
Farmer, 511 U.S. at 847. In this context, deliberate
indifference is a subjective standard: “the prison
official . . . must actually have known or been aware of the
excessive risk to inmate safety.” Beers-Capitol v. Whetzel, 256
F.3d 120, 125 (3d Cir. 2001). And the “requisite knowledge of
a substantial risk” may be established “in the usual ways,
including inference from circumstantial evidence.” Farmer
511 U.S. at 842.
Prison officials may defeat a deliberate indifference
claim in several ways. For example, they may escape liability
if they are able to show “that they did not know of the
underlying facts indicating a sufficiently substantial danger
and that they were therefore unaware of a danger, or that they
knew the underlying facts but believed (albeit unsoundly) that
the risk to which the facts gave rise was insubstantial or
nonexistent.” Farmer, 511 U.S. at 844. Additionally, “prison
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.” Id.
On appeal, Kalu contends that the following “sequence
of events” set forth in his complaint plausibly illustrates
Warden Spaulding’s deliberate indifference—i.e., that the
Warden “knew of a substantial risk of serious harm to [Kalu]
and yet failed to respond reasonably.” Appellant’s Br. 19
(quotation marks and citation omitted). Kalu informed Warden
Spaulding about the first two instances of sexual assault by
sending him “a confidential electronic[] email.” J.A. 67.
Warden Spaulding replied to the email stating he would “look
into the matter and then get back” to Kalu, but Kalu never
heard back from the Warden. Id. at 68. The same day the email

-- 49 of 68 --

50
was sent, Kalu was “taken out of the general population and
placed in the Special Housing Unit.” Id. A week later, Kalu
was questioned by the SIS and “was advised that they [would]
see [Kalu] again after their investigation.” Id. at 68–69. After
five days, the SIS called Kalu into their office, “told [him] that
they had concluded their investigation,” “that [Lt.
Middernatch] denied the allegation,” and that they “believed
[Lt. Middernatch’s] version of the story.” Id. at 69. Kalu
resisted going back to the prison’s general population as he
“fear[ed] for his life and to face his assailant.” Id. at 70. At a
hearing regarding his transfer, a third official20 “threatened to
impose numerous sanctions” if Kalu did not drop a complaint
he had initiated against Lt. Middernatch and refused to go back
to the general population. Id. Kalu refused to drop the
complaint and was subsequently returned to the prison’s
general population. Upon his return, Kalu was once again
sexually assaulted by Lt. Middernatch. Kalu reported this third
instance of sexual assault to Warden Spaulding by sending him
another email. Finally, in his complaint, Kalu stated that
Warden Spaulding, as the Warden at FCI Allenwood, was
“responsible for the operation and wellbeing of prisoners under
his supervision.” Id. at 67.
Accepting all facts as true, and drawing all reasonable
inferences in Kalu’s favor, he fails to meet even the liberal
pleading standard afforded to pro se litigants. Kalu’s
allegations are insufficient to establish the elements of a
20 Specifically, Kalu alleges that DHO K. Bittenbender
threatened him with sanctions if he did not drop the sexual
assault complaint. The claim against DHO K. Bittenbender is
not a part of this appeal.

-- 50 of 68 --

51
deliberate indifference or failure-to-protect claim. Kalu’s
allegations satisfy the first prong of the analysis: being sexually
assaulted on two occasions by the same perpetrator, in the same
location, and via a similar modus operandi poses a substantial
risk of future harm. But the complaint’s allegations are
insufficient to satisfy the second prong of the framework—i.e.,
that Warden Spaulding was “deliberately indifferent” to a
“substantial risk to [Kalu’s] health and safety.” Shorter, 12
F.4th at 374. While Kalu’s email communications are enough
to show that Warden Spaulding had “actual knowledge” of the
risk of continued sexual assault, Beers-Capitol, 256 F.3d at
131, Kalu’s factual narrative does not establish that Warden
Spaulding failed “to take reasonable measures to abate it,”
Farmer, 511 U.S. at 847.
In fact, Kalu’s allegations demonstrate that Warden
Spaulding took measures to address the situation. Warden
Spaulding responded to the first report of sexual assault by
having him removed from the general population and
commencing an internal investigation conducted by the SIS.
The BOP’s regulations suggest that removing an inmate from
the general population and placing them in SHU can serve to
protect the inmate’s safety. See 28 C.F.R. § 541.21 (describing
SHUs as “units in Bureau institutions where inmates are
securely separated from the general inmate population,” which
serve to “ensure the safety, security, and orderly operation of
correctional facilities, and protect the public, by providing
alternative housing assignments”). And the BOP’s regulations
concerning sexual assault allegations require prison officials to
take measures to protect the victim by, for instance, separating
them from the alleged abuser. See id. § 115.62 (“When an
agency learns that an inmate is subject to a substantial risk of
imminent sexual abuse, it shall take immediate action to

-- 51 of 68 --

52
protect the inmate.”); see also id. § 115.64(a) (“Upon learning
of an allegation that an inmate was sexually abused, the first
security staff member to respond to the report shall be required
to: (1) [s]eparate the alleged victim and abuser . . . .”). Kalu
was only returned to the general population after the SIS
concluded its investigation. This series of events illustrates that
Warden Spaulding “responded reasonably to the risk.” Farmer,
511 U.S. at 844. Such a conclusion frees an officer from
liability “even if the harm ultimately was not averted.” Id.
The Eighth Amendment requires prison officials to
ensure a prisoner’s “reasonable safety.” Helling v. McKinney,
509 U.S. 25, 33 (1993). That standard “incorporates due regard
for prison officials’ unenviable task of keeping dangerous men
in safe custody under humane conditions.” Farmer, 511 U.S.
at 844–45 (quotation marks and citation omitted). Drawing all
inferences in Kalu’s favor, his complaint fails to establish
Warden Spaulding acted with deliberate indifference—or
unreasonably—by removing Kalu from the general prison
population and commencing an investigation into the
allegations of sexual assault. We therefore conclude his
complaint fails to set forth sufficient allegations to make out a
plausible claim against Warden Spaulding.
2.
In any event, Kalu’s deliberate indifference claim
against Warden Spaulding is ineligible for Bivens remedies
because it presents a novel context and special factors counsel
against a Bivens extension in this context.21 “Although Bivens
21 Kalu argues defendants have forfeited their alternative
argument that Kalu’s deliberate indifference or failure-to-

-- 52 of 68 --

53
protect claim is ineligible for remedies under Bivens. See
Appellant’s Reply Br. 9. Specifically, he contends “arguments
raised in footnotes are generally forfeited,” and we “should not
make an exception here.” Appellant’s Reply Br. 9 (citing
United States v. Yung, 37 F.4th 70, 81 (3d Cir. 2022)).
“[F]orfeiture is the failure to make the timely assertion
of a right.” United States v. Olano, 507 U.S. 725, 733 (1993).
Arguments not raised in an opening brief, see In re Wettach,
811 F.3d 99, 115 (3d Cir. 2016), and “arguments raised in
passing (such as, in a footnote), but not squarely argued, are
considered [forfeited],” Higgins v. Bayada Home Health Care
Inc., 62 F.4th 755, 763 (3d Cir. 2023) (alteration in original)
(citation omitted). “Because of the important interests
underlying the preservation doctrine, we will not reach a
forfeited issue in civil cases absent truly ‘exceptional
circumstances.’” Barna v. Bd. of Sch. Dirs. of Panther Valley
Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) (quoting Brown v.
Philip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001)).
Here, the District Court did not decide whether Kalu’s
deliberate indifference or failure-to-protect claim was eligible
for remedies under Bivens. See J.A. 20–23 (discussing only
whether Kalu’s complaint alleged sufficient personal
involvement by Warden Spaulding to set forth a claim against
him). On appeal, defendants raised the issue in a footnote in
their opposition brief. See Appellee’s Br. 13 n.3 (“Although the
district court did not have occasion to rule on the Bivens-
eligibility of the claims against Warden Spaulding, they are
also precluded by Egbert for the same reasons that the claims
against Lt. Middernatch are.”).

-- 53 of 68 --

54
However, we are not necessarily precluded from
addressing defendants’ Bivens-eligibility argument. We have
discretionary authority to address forfeited issues under
exceptional circumstances. See Webb v. City of Philadelphia,
562 F.3d 256, 263 (3d Cir. 2009). Such circumstances exist
where “the public interest requires that the issues be heard or
manifest injustice would result from the failure to consider
such issues.” Philip Morris Inc., 250 F.3d at 799. And we are
slightly less reluctant to bar consideration of a forfeited pure
question of law. Barna, 877 F.3d at 147; see also N.J.
Carpenters & the Trs. Thereof v. Tishman Const. Corp. of N.J.,
760 F.3d 297, 305 (3d Cir. 2014) (“It is appropriate for us to
reach an issue that the district court did not if the issues provide
purely legal questions, upon which an appellate court exercises
plenary review.” (quotation marks and citation omitted)).
Considering these principles, we find it appropriate to
consider defendant’s Bivens-eligibility argument. First,
resolution of this issue is one of public importance. See, e.g.,
Wagner v. PennWest Farm Credit, ACA, 109 F.3d 909, 911 (3d
Cir. 1997) (“While we will ordinarily not consider issues raised
for the first time on appeal, . . . . [i]n this case, the existence
(or, more accurately, the non-existence) of a private right of
action under the [Agricultural Credit Act] is so fundamental to
the claims alleged in the district court that we cannot address
the issues raised by the parties without first deciding whether
there is a private right of action.”). In its most recent opinion
concerning Bivens, the Supreme Court reversed a Court of
Appeals’s decision allowing two constitutional damages
actions to proceed noting that its “cases have made clear that,
in all but the most unusual circumstances, prescribing a cause
of action is a job for Congress, not the courts.” Egbert, 596

-- 54 of 68 --

55
damages are available for some deliberate-indifference claims,
this case is meaningfully different.” Dongarra, 27 F.4th at 180.
The Supreme Court has recognized only three Bivens contexts,
none of which involve deliberate indifference to officer-on-
inmate violence. Carlson recognized a cause of action for an
officer’s failure to provide adequate medical treatment. But
here, Kalu seeks damages for Warden Spaulding’s alleged
U.S. at 486. This appeal likewise raises the issue of the
propriety of Bivens remedies in a given context “and presents
a weighty question of public concern.” Tri-M Grp., LLC v.
Sharp, 638 F.3d 406, 417 (3d Cir. 2011). Second, “[t]he
argument omitted in the District Court is a pure question of
law, and one that is closely related to arguments that [Kalu] did
raise in that court.” Bagot v. Ashcroft, 398 F.3d 252, 256 (3d
Cir. 2005). Third, we “may uphold a judgment on any proper
theory, even if not raised by the parties first in the district court,
as long as there is no prejudice to the other party,” Wagner,
109 F.3d at 911, and such is the case here. The new argument
raised on appeal is presented as a ground for affirming the
District Court, and Kalu would suffer no prejudice as he has
had a fair opportunity to defend the case on that basis. See
Appellant’s Reply Br. 9 (arguing that Kalu’s “failure-to-
protect claim is Bivens-eligible because it arises in the context
presented in Farmer, which addressed a prison official’s
‘deliberate indifference’ to the risk of assault to an inmate,
regardless of the perpetrator”); see also Arg. Tr. 28:21–30:11
(arguing that the failure-to-protect claim is Bivens-eligible
because it “arises in the same context as Farmer and the same
context” as Bistrian and Shorter). We therefore exercise our
discretion to reach the issue of whether Kalu’s claim against
Warden Spaulding is suitable for damages under Bivens.

-- 55 of 68 --

56
failure to protect him from sexual abuse inflicted by a prison
guard. The difference in the “mechanism of injury” between
Kalu’s claim and the one recognized in Carlson is sufficient to
find that Kalu’s case presents a modest extension of Bivens.
See Abbasi, 582 U.S. at 138. And the “fact that [Kalu’s] claim
arose in a different prison setting is highly relevant” as it
“indicates that [Kalu’s] suit might implicate policy
determinations that the Supreme Court did not consider in
Carlson.” Sargeant, 87 F.4th at 366.
Our conclusion that Kalu’s deliberate indifference or
failure-to-protect claim presents a new context is bolstered by
the Supreme Court’s decision in Abbasi. There, the Court
considered a claim that a federal correction warden “violated
the Fifth Amendment by allowing prison guards to abuse”
prisoners. Abbasi, 582 U.S. at 146. While the Court noted that
the case had “significant parallels” to its decision in Carlson
because both concerned a “claim for prisoner mistreatment,” it
found that the claim presented a modest extension of Carlson
and thus a new context. Id. at 146–47. The cases were distinct
because they invoked different constitutional provisions, and
the judicial guidance available to the warden in Abbasi, with
respect to his supervisory duties, was less developed. Id. at
147–48. The standard for claims alleging failure to provide
medical treatment to a prisoner—namely, “deliberate
indifference to serious medical needs,” Estelle, 429 U.S. at
104—was clearly established by the Court’s precedents.
Abbasi, 582 U.S. at 148. But the “standard for a claim alleging
that a warden allowed guards to abuse detainees [was] less
clear under the Court’s precedents.” Id. The Court’s reasoning
applies here and bolsters our conclusion that Kalu’s claim
arises under a new Bivens context.

-- 56 of 68 --

57
Next, the presence of “potential special factors that
previous Bivens cases did not consider” weighs against
extending Bivens liability to Kalu’s claim. See id. at 140. As
the Supreme Court recently explained, while its Bivens “cases
describe two steps, those steps often resolve to a single
question: whether there is any reason to think that Congress
might be better equipped to create a damages remedy.” Egbert,
596 U.S. at 492. Here, we have enough reasons to determine
that the political branches are “better equipped to decide
whether existing remedies ‘should be augmented by the
creation of a new judicial remedy.’” Id. at 493 (quoting Bush,
462 U.S. at 388).
First, we consider whether Congress “already has
provided, or has authorized the Executive to provide, ‘an
alternative remedial structure.’” Id. (quoting Abbasi, 582 U.S.
at 137). The Supreme Court has emphasized that “the relevant
question is not whether a Bivens action would disrupt a
remedial scheme,” “whether the court should provide for a
wrong that would otherwise go unredressed,” or whether
“existing remedies do not provide complete relief.” Id.
(quotations marks, citations, and alterations omitted). Rather,
an alternative remedial scheme is sufficient so “long as
Congress or the Executive has created a remedial process that
it finds sufficient to secure an adequate level of deterrence.” Id.
at 498. Such is the case here. The BOP’s ARP is an
“administrative review mechanism[]” established by the
political branches that “foreclose[s] the need to fashion a new,
judicially crafted cause of action.” Malesko, 534 U.S. at 68. As
a federal inmate, Kalu had access to the BOP’s ARP, and he
attempted, albeit unsuccessfully, to seek redress through that
forum. The existence of an alternative remedy through the
BOP’s administrative program is thus a special factor

-- 57 of 68 --

58
counseling against a Bivens extension.
Second, we consider whether congressional legislation
already exists in this context. Abbasi, 582 U.S. at 143–44. As
previously discussed, Congress paid close attention to federal
inmate constitutional claims when passing the PLRA and opted
not to create a new cause of action against individual officials.
The Act requires exhaustion of administrative remedies before
filing suit, bars prisoners from recovering from “mental or
emotional injury” unless an inmate can show a “physical
injury” or “sexual act,” and prohibits prisoners from
proceeding in forma pauperis if they have filed three or more
prior actions that were dismissed without legal basis. See 42
U.S.C. § 1997e. The PLRA’s scheme suggests that “Congress’
failure to provide a damages remedy might be more than mere
oversight, and that congressional silence might be more than
‘inadvertent.’” Abbasi, 582 U.S. at 143 (quoting Schweiker,
487 U.S. at 423). “This possibility counsels hesitation ‘in the
absence of affirmative action by Congress.’” Id. (quoting
Bivens, 403 U.S. at 396).
Third, we consider the risk of judicial interference with
the functioning of another branch. Abbasi, 582 U.S. at 140.
Recognizing any new Bivens action “entail[s] substantial social
costs, including the risk that fear of personal monetary liability
and harassing litigation will unduly inhibit officials in the
discharge of their duties.” Egbert, 596 U.S. at 499 (quoting
Anderson v. Creighton, 483 U.S. 635, 638 (1987)). In the
prison setting, this risk is heightened because, as the Supreme
Court has emphasized,
[r]unning a prison is an inordinately difficult
undertaking that requires expertise, planning,

-- 58 of 68 --

59
and the commitment of resources, all of which
are peculiarly within the province of the
legislative and executive branches of
government. Prison administration is, moreover,
a task that has been committed to the
responsibility of those branches, and separation
of powers concerns counsel a policy of judicial
restraint.
Turner, 482 U.S. at 84–85.
Allowing Kalu to proceed with his claim against
Warden Spaulding, as a supervisor, for his handling of Kalu’s
sexual assault allegation would invariably invite intrusion
administration of federal prison policies—determinations
ranging from housing and safety, to discipline and resources.
Since we “are not in a position to second-guess the
administrative policies and functions historically within the
executive’s domain, we must exercise restraint if judicial
intervention would ultimately interfere with executive
functions.” Mack, 968 F.3d at 322. With that caution in mind,
we find that separation of powers principles counsel against a
Bivens extension in this sphere.
***
In sum, Kalu’s Eighth Amendment deliberate
indifference claim against Warden Spaulding is ineligible for
damages under Bivens. We hold his claim presents a new
Bivens context and special factors counsel against extending

-- 59 of 68 --

60
Bivens liability to his set of facts.22 We will affirm the District
Court’s dismissal of Kalu’s deliberate indifference or failure-
to-protect claim.
IV.
In recent years, the Supreme Court has indicated that if
it had to decide Bivens today, it “would decline to discover any
implied causes of action in the Constitution.” Egbert, 596 U.S.
at 502. It is the province of the legislature, not the judiciary, to
weigh the costs and burdens associated with creating new
causes of action for damages under constitutional provisions.
With these principles in mind, we conclude that Kalu’s Eighth
Amendment claims present novel Bivens contexts, and special
factors counsel against extending liability to his circumstances.
22 We join the Fourth and Ninth Circuits in holding that Bivens
remedies are not available for Eighth Amendment deliberate
indifference or failure-to-protect claims in the prison setting.
See Bulger, 62 F.4th at 141 (concluding that an Eighth
Amendment failure-to-protect claim brought by a prisoner’s
estate was ineligible for Bivens remedies because “Congress
has expressed a desire to prevent courts from interfering with
BOP decisions,” has been “conspicuously silent about creating
a remedy for prisoners to obtain damages from individual
officers,” and “the existence of the ARP and PLRA counsel
hesitation in extending Bivens” (quotation marks and citation
omitted)); Chambers, 78 F.4th at 1106 (“No case has extended
Bivens to claims that BOP employees violated the Eighth
Amendment by failing to protect an inmate from other staff
members.”).

-- 60 of 68 --

61
For the foregoing reasons, we will affirm the District
Court’s dismissal of Kalu’s claims.

-- 61 of 68 --

RESTREPO, Circuit Judge, concurring.
Although I agree with the Majority that this case
presents a new Bivens context, I write separately to highlight
the alarming reports of pervasive staff-on-inmate sexual abuse
within the Bureau of Prisons and corresponding flaws in the
administrative remedy process, and to note recent actions the
Department of Justice, the United States Sentencing
Commission, and Congress have taken since those findings
were disclosed.
In 2022, following an investigation of alleged sexual
abuse by a BOP employee, the DOJ’s Office of the Inspector
General (OIG) sent a Management Advisory Memorandum to
notify BOP of “serious concerns” it had “with the manner in
which BOP handles investigations of alleged misconduct by
BOP employees.” DOJ OIG, No. 23-001, Management
Advisory Memorandum: Notification of Concerns Regarding
the Federal Bureau of Prisons’ (BOP) Treatment of Inmate
Statements in Investigations of Alleged Misconduct by BOP
Employees 1 (Oct. 12, 2022),
https://oig.justice.gov/sites/default/files/reports/23-001.pdf
[https://perma.cc/Z5D3-25GF] (MAM 23-001). The concerns
raised in the memorandum, which remain partially unresolved,
suggest that the Executive Branch does not find BOP’s
administrative process sufficient to secure an adequate level of
deterrence in this context.1
1 See also The Principal Associate Deputy Attorney
General Working Group of DOJ Components, Report and
Recommendations Concerning the Department of Justice’s
Response to Sexual Misconduct by Employees of the Federal

-- 62 of 68 --

2
OIG’s seventeen-page memorandum detailed its
“significant concern” over BOP’s statement that,
[I]n cases that have not been accepted for
criminal prosecution, the BOP will not rely on
inmate testimony to make administrative
misconduct findings and take disciplinary action
against BOP employees, unless there is evidence
aside from inmate testimony that independently
establishes the misconduct, such as a video
capturing the act of misconduct, conclusive
forensic evidence, or an admission from the
subject.
MAM 23-001 at 1. OIG noted that this policy was
“inconsistent with the fact that such testimony is fully
admissible in criminal and civil cases,” and inconsistent with
“those DOJ regulations implementing the Prison Rape
Elimination Act (PREA), [which] require the credibility of an
alleged victim to be assessed on an individual basis and not be
determined by the person’s status as an inmate.” Id. at 2.
OIG also noted that “the BOP is disproportionately
concerned about the risk of losing an adverse action appeal to
the [Merit Systems Protection Board] to the exclusion of other
Bureau of Prisons (Nov. 2, 2022),
https://www.justice.gov/d9/pages/attachments/2022/11/03/20
22.11.02_bop_sexual_misconduct_working_group_report.pdf
[https://perma.cc/99Q3-S94U] (PDAG Report), (discussing
deficiencies with prevention, reporting, investigations,
prosecution, and the use of administrative actions and
discipline of BOP employees who commit sexual misconduct).

-- 63 of 68 --

3
highly significant risks.” Id. at 8. Specifically, OIG warned
that BOP’s reluctance to rely on an incarcerated person’s
testimony “enhances the likelihood that employees who have
engaged in serious misconduct, including sexual abuse of a
ward, will avoid accountability for their actions and remain on
staff, thereby posing serious insider threat potential for serial
misconduct.” Id. at 8–9.
OIG made three recommendations to BOP, two of
which OIG marked as “resolved.” Id. at 14–15. Those
recommendations included issuing immediate written
notifications to BOP employees that there is no prohibition
against substantiating employee misconduct based on inmate
testimony, and providing training to all BOP employees
involved with administrative misconduct matters on the
preponderance of the evidence standard. Id. Notably, the
“unresolved” concern involved the BOP’s resistance to the
recommendation that it “create a policy regarding the proper
handling of inmate statements in administrative matters” that
is consistent with the PREA’s guidance on inmate credibility
assessment. Id. at 14.
In its annual letter to the United States Sentencing
Commission, DOJ urged the Commission to address concerns
regarding the increasing number of cases involving sexual
abuse committed by law enforcement or correctional personnel
against victims in their custody, care, or supervision. See U.S.
Sent’g Comm’n, 2023 Amendments in Brief: Amendment #816
Sexual Abuse Offenses,
https://www.ussc.gov/sites/default/files/pdf/amendment-
process/amendments-in-brief/AIB_816.pdf
[https://perma.cc/TP8S-MZB5]. In response, the 2023

-- 64 of 68 --

4
amendments to the U.S. Sentencing Guidelines included an
increase in the base offense level at §2A3.3 (Criminal Sexual
Abuse of a Ward or Attempt to Commit Such Acts) from 14 to
22 for cases involving sexual abuse committed by law
enforcement or correctional personnel against incarcerated
victims.
The Sentencing Commission also modified the list of
specified extraordinary and compelling reasons for
compassionate release to add a ground for relief which applies
if an incarcerated person has suffered sexual or physical abuse
that was committed by or at the direction of a correctional
officer, an employee or contractor of BOP, or any other
individual having custody or control over that person. See
USSG §1B1.13. This provision responds to DOJ’s suggestion
that a sentence reduction may be appropriate where an
individual in BOP custody has been determined to have been
the victim of sexual assault perpetrated by BOP personnel. See
PDAG Report at 3, 21–22.
Commentators have noted potential hurdles that
survivors pursuing motions for compassionate release may
face, however, due to the requirement that an incarcerated
person’s claim of sexual abuse “must be established by a
conviction in a criminal case, a finding or admission of liability
in a civil case, or a finding in an administrative proceeding.”
See FAMM, Comments on Proposed 2023 Amendments to the
Federal Sentencing Guidelines (Mar. 14, 2023),
https://www.ussc.gov/sites/default/files/pdf/amendment-
process/public-comment/202303/88FR7180_public-
comment.pdf#page=1052 [https://perma.cc/TVR6-NFQU].
According to the Bureau of Justice Statistics, from 2016 to

-- 65 of 68 --

5
2018, perpetrators of staff sexual misconduct were only
convicted, sentenced, fined, or pleaded guilty in six percent of
substantiated incidents in prisons. See U.S. DOJ, Bureau of
Justice Statistics, Substantiated Incidents of Sexual
Victimization Reported by Adult Correctional Authorities,
2016–2018 15, (Jan. 31, 2023),
https://bjs.ojp.gov/document/sisvraca1618.pdf
[https://perma.cc/SZ9L-UDPC].
The Senate Committee on Homeland Security and
Governmental Affairs’ Permanent Subcommittee on
Investigations, chaired by Senator Jon Ossoff, also reported on
sexual abuse of incarcerated individuals in BOP custody—
specifically incarcerated women. The Subcommittee’s 2022
report details the widespread abuse that occurred at
Metropolitan Correctional Center New York, Metropolitan
Detention Center Brooklyn, Federal Correctional Complex
Coleman in Florida, and especially Federal Correctional
Institution (FCI) Dublin in California,2 where eight federal
2 The closure of FCI Dublin, dubbed “the rape club,”
was announced on April 15, 2024, just ten days after Judge
Yvonne Gonzalez Rogers appointed a special master for
independent oversight of the facility. See Christopher Weber,
Senators demand accounting of rapid closure plan for
California prison where women were abused, AP News (Apr.
24, 2024), https://apnews.com/article/fci-dublin-california-
prison-shutdown-86b7284ca597d89269a1af301c02eed3
[https://perma.cc/U89M-LS68]. Following “disturbing
reports” of “ensuing chaos,” related to the closure and
subsequent transfer of over 600 incarcerated women at the
facility as well as “hostility and retaliation” against individuals
in custody, a group of senators urged the BOP to take

-- 66 of 68 --

6
corrections officers—including the warden, chaplain, and
former PREA compliance officer responsible for training
supervisors on the PREA requirements and coordinating the
PREA audit—were indicted for sexually abusing incarcerated
women.3 See Staff of Permanent S. Subcomm. on
Investigations, 117th Cong., Rep. On Sexual Abuse of Female
Inmates In Federal Prisons 2 (Comm. Print 2022),
https://www.ossoff.senate.gov/wp-
content/uploads/2022/12/PSI-Embargoed-Staff-Report-re-
Sexual-Abuse-of-Female-Inmates-in-Federal-Prisons.pdf
[https://perma.cc/CT8Q-YSKK].
The Subcommittee’s report includes findings that BOP
employees sexually abused incarcerated women in at least two-
thirds (19 of 29 facilities) of federal prisons that held women
over the past decade, and that as of October 28, 2022, BOP’s
Office of Internal Affairs (OIA) had a backlog of
approximately 8,000 cases alleging employee misconduct,
including at least hundreds of sexual abuse cases. Id. at 1, 24–
25. The Subcommittee’s investigation also provides insight
into the low number of criminal prosecutions of BOP officers
who admitted to crimes of abuse in sworn statements: when a
“immediate action” to ensure that individuals impacted by the
closure “receive appropriate medical attention and proper care
as required by the Constitution, federal laws, BOP policy, and
the dictates of common decency.” Letter to BOP Director
Colette Peters (April 24, 2024),
https://www.booker.senate.gov/imo/media/doc/letter_to_bop_
fci_dublin.pdf [https://perma.cc/PT5C-DR68].
3 As of March 2024, seven of the eight had been
sentenced after convictions at trial or plea deals.

-- 67 of 68 --

7
BOP employee admits to sexual misconduct in a compelled
interview, statements made during that interview cannot be
used against them in a criminal prosecution by OIG or any
other law enforcement entity. Id. at 13 (discussing Garrity v.
New Jersey, 385 U.S. 493 (1967)). Thus, subjects of BOP
investigations who admit to crimes are effectively immunized
from criminal prosecution.
The bipartisan Federal Prison Oversight Act, which
President Joe Biden recently signed into law, is Congress’s
swift response to the Subcommittee’s investigation and report.
The new law provides for the establishment of an inspections
regime to be implemented by the Inspector General of the DOJ,
and an independent Ombudsman who may receive complaints
regarding issues adversely affecting the health, safety, welfare,
or rights of incarcerated people or staff at federal prisons. See
Federal Prison Oversight Act, Pub. L. No. 118-71 (2024).
While this important legislation provides much needed
safeguards, the provision of a civil legal remedy for survivors
of staff-on-inmate abuse is notably absent from the text of the
statute. This absence, Egbert cautions us, may lend “reason to
think Congress might doubt the efficacy or necessity of a
damages remedy” in cases such as the one before us. See
Egbert v. Boule, 596 U.S. 482, 491 (2022) (quoting Ziglar v.
Abbasi, 582 U.S. 120, 137 (2017)).
Bound as we are by the Supreme Court’s unwillingness
to expand Bivens to any new context, I reluctantly concur in
the judgment.

-- 68 of 68 --