Just overrule Bivens already

Justice Gorsuch was right in Egbert, that the Court should close the door to Bivens. But not for the reason he gave--"false hope" to plaintiffs who bring claims believing they could be the lucky one. But because the Court makes itself look ridiculous in rejecting claims. The latest is Monday's per curiam reversal in Goldey v. Fields (pp. 12-14 of Orders List). Plaintiff alleged he was subjected to excessive force while in solitary confinement. (The Court throws in a gratuitous line that "[p]rison officials monitored Fields while he was isolated," suggesting that they do not believe his factual allegations, an irrelevant point right now).

Goldey demonstrates the silliness in both prongs. The case presents a new context because the Court has recognized claims for excessive-force under the Fourth Amendment but never under the Eighth Amendment. And the Court identifies two special factors: pervasive legislation around prisoner litigation and alternative remedies. As to the first: The legislation in the area is the Prison Litigation Reform Act, which erects procedural hurdles (e.g., exhaustion of administrative remedies and sua sponte review of the complaint) around prisoner litigation. As to the second: Those same administrative schemes provide the only alternative remedial mechanism.* But the PLRA  makes sense as applied to federal prisoners only if the plaintiff has a cause of action from some place else other than the PLRA;  Congress would not have required exhaustion as a condition precedent to bringing an action if no action could be brought or if the exhaustion requirement itself provides the basis for rejecting the cause of action. It is also circularity and double-counting.

[*] The other options are habeas and injunctive relief. Claims arising from physical abuse while incarcerated challenge conditions (as opposed to fact) of confinement, which is not cognizable through habeas. And I doubt a plaintiff can establish standing to obtain an injunction against future excessive force (what someone called a "'please don't beat me' injunction"), at least absent some showing of an official policy of placing him in solitary and beating prisoners in solitary.

We can look at this a slightly different way. Congress in the PLRA imposed limitations but not an express cause of action because it presumed the Bivens cause of action existed. The law sought to narrow existing law--Bivens creates a right action (just as § 1983 does) and the PLRA limits that. Congress saw no reason to include a right of action that it would then limit.

No one dissented, suggesting no one regards it as worth the candle.