United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-40579 

____________ 

Delores Looper, 

Plaintiff—Appellant, 

versus

Dallas B. Jones; Federal Bureau of Prisons; 6 Unknown 

Employees, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 1:19-CV-377 

______________________________ 

Before Willett, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:*

Delores Looper, proceeding pro se and in forma pauperis, sued the 

Federal Bureau of Prisons and several prison officials pursuant to Bivens v. 

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 

(1971). ROA.132–36, 163–76. She alleged that the defendants violated the 

Eighth Amendment rights of her son, Joseph Looper, by failing to protect 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 8, 2023 

Lyle W. Cayce 

Clerk 

Case: 22-40579 Document: 00516888417 Page: 1 Date Filed: 09/08/2023
No. 22-40579 

2 

him from the lethal attack of his cellmate. ROA.135, 163–74, 179. The district court dismissed Looper’s complaint for failure to state a claim under 28 

U.S.C. § 1915(e)(2)(B)(ii). We AFFIRM. 

First, the district court correctly dismissed the suit against the Federal 

Bureau of Prisons. The law is clear that a plaintiff cannot bring a Bivens claim 

against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). 

Second, the district court correctly dismissed the suit against the federal officers. Looper alleges that the officers violated her son’s Eighth 

Amendment rights when they transferred him to a cell where another inmate 

killed him. ROA.172–74. She also alleges that the officers knew or should 

have known that her son was likely to suffer severe injury or death at the 

hands of the other inmate. ROA.172–74. She claims that the officers’ failure 

to protect her son and intervene on his behalf amounted to deliberate indifference. ROA.172–74.

† 

Bivens created a cause of action for money damages under the Fourth 

Amendment for Webster Bivens to sue federal agents who allegedly “manacled” him “in front of his wife and children, and threatened to arrest the entire family,” “searched the apartment from stem to stem,” and took him to 

a federal courthouse where he was “interrogated, booked, and subjected to a 

visual strip search.” 403 U.S. at 389. In the next decade, the Supreme Court 

recognized two other causes of action against federal officers: first, for sex 

_____________________ 

†

 Looper tried to amend her complaint to include additional Eighth Amendment 

claims, alleging that prison officials failed to adequately staff the prison and provide her son 

with timely emergency medical care. The district court denied her request because she had 

not sought leave; these new claims were time-barred by the applicable limitations period; 

and the new claims were, in any event, supported only by conclusory allegations. 

ROA.587–88. Even if Looper had properly presented these claims, they would fail to state 

a claim for Bivens relief for the same reasons that her other claims fail to do so: they present 

a new context and the Bivens remedy is not appropriate. 

Case: 22-40579 Document: 00516888417 Page: 2 Date Filed: 09/08/2023
No. 22-40579 

3 

discrimination against a former congressional staffer in violation of the Fifth 

Amendment, see Davis v. Passman, 442 U.S. 228 (1979); and second, for a 

failure to provide an asthmatic prisoner with adequate medical care in violation of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980). But 

since then, the Supreme Court has not once extended the Bivens remedy, and 

it has declined to do so at least a dozen times. See Egbert v. Boule, 142 S. Ct. 

1793, 1799–1800 (2022). The Supreme Court has repeatedly “emphasized 

that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’” Id. at 1803 (quoting Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) and 

Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). That is because “creating a cause 

of action is a legislative endeavor.” Ibid. So today, “Bivens claims generally 

are limited to the circumstances” of Bivens, Davis, and Carlson. Oliva v. 

Nivar, 973 F.3d 438, 442 (5th Cir. 2020). 

When analyzing Bivens claims, we have traditionally asked two question—(1) whether this case presents a new context and (2) if so, whether 

there are any alternative remedies or special factors indicating that judges are 

“at least arguably less equipped than Congress” to create a damages remedy. 

Egbert, 142 S. Ct. at 1803. But as a practical matter, this inquiry reduces to “a 

single question: whether there is any reason to think that Congress might be 

better equipped to create a damages remedy.” Ibid. And as the Supreme 

Court has instructed, this question creates an extremely high barrier: 

If there are sound reasons to think Congress might doubt the 

efficacy or necessity of a damages remedy, the courts must refrain from creating it. Even a single sound reason to defer to 

Congress is enough to require a court to refrain from creating 

such a remedy. Put another way, the most important question 

is who should decide whether to provide for a damages remedy, 

Congress or the courts? If there is a rational reason to think that 

the answer is “Congress”—as it will be in most every case—

no Bivens action may lie. 

Case: 22-40579 Document: 00516888417 Page: 3 Date Filed: 09/08/2023
No. 22-40579 

4 

Ibid. (cleaned up). 

Looper cannot make the required showing because this case presents 

a new context, and Congress is far more equipped to create a damages remedy. 

 First, this is a new Bivens context. As the Supreme Court has emphasized, our “understanding of a ‘new context’ is broad.” Hernandez v. Mesa, 

140 S. Ct. 735, 743 (2020). That is because “even a modest extension” of 

Bivens outside the circumstances of Bivens, Davis, and Carlson “is still an extension.” Ziglar, 582 U.S. at 147; see also Watkins v. Three Admin. Remedy 

Coordinators of Bureau of Prisons, 998 F.3d 682, 685 (5th Cir. 2021). And it is 

not enough for a plaintiff to identify “parallel circumstances with Bivens, 

[Davis], or Carlson”; he must also satisfy “the analytic framework prescribed 

by the last four decades of intervening case law.” Egbert, 142 S. Ct. at 1809 

(quoting Ziglar, 582 U.S. at 139) (internal quotation marks omitted). 

 Even though Carlson created a cause of action for an asthmatic prisoner’s Eighth Amendment failure to medicate claim, it did not create a cause 

of action for a prisoner’s Eighth Amendment failure to protect or intervene 

claim. In that regard, Correctional Services Corp. v. Malesko, 534 U.S. 61 

(2001), is instructive. There a prisoner alleged that officials violated his 

Eighth Amendment rights by failing to provide him with necessary medication and accommodations for his heart condition. Id. at 64–65. He sought to 

vindicate these rights through Bivens and Carlson. But the Supreme Court 

held that this was a new context—even though the Court in Carlson had created a Bivens remedy “in almost parallel circumstances.” Ziglar, 582 U.S. at 

139. The Court later explained: 

In both cases [Carlson and Malesko], the right at issue was the 

same: the Eighth Amendment right to be free from cruel and 

Case: 22-40579 Document: 00516888417 Page: 4 Date Filed: 09/08/2023
No. 22-40579 

5 

unusual punishment. And in both cases, the mechanism of injury was the same: failure to provide adequate medical treatment. . . . Even though the right and the mechanism of injury 

[in Malesko] were the same as they were in Carlson, the Court 

held that the contexts were different. The Court explained that 

special factors counseled hesitation and that the Bivens remedy 

was therefore unavailable. 

Ibid. (citation omitted). 

So too here. Looper’s Eighth Amendment claim is different “in a 

meaningful way,” from the Eighth Amendment claim in Carlson. Ibid. So this 

case presents a new context. 

 Second, special factors counsel against creating a new remedy. Congress has created a comprehensive scheme to govern suits brought by prisoners against federal jailers in the Prison Litigation Reform Act (“PLRA”), 42 

U.S.C. § 1997e, enacted fifteen years after Carlson. See Ziglar, 582 U.S. at 

148–49; Watkins, 998 F.3d at 685. When enacting this legislation, “Congress 

had specific occasion to consider the matter of prisoner abuse and to consider 

the proper way to remedy those wrongs.” Ziglar, 582 U.S. at 148. But Congress chose not to “provide for a standalone damages remedy against federal 

jailers” and arguably “chose not to extend the Carlson damages remedy to 

cases involving other types of prisoner mistreatment.” Id. at 149; see also

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). Since “Congress has repeatedly declined to authorize the award of damages,” we may not do so, Mesa, 

140 S. Ct. at 747, even if we thought the PLRA remedy was “inadequate” 

here, Egbert, 142 S. Ct. at 1806. 

 Finally, to the extent Looper tries to hold officers vicariously liable for 

the actions of subordinates, she cannot. Vicarious liability does not apply to 

Bivens claims. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (holding 

Case: 22-40579 Document: 00516888417 Page: 5 Date Filed: 09/08/2023
No. 22-40579 

6 

“vicarious liability is inapplicable to Bivens and § 1983 suits”); accord Watkins, 998 F.3d at 686.

The district court’s judgment is AFFIRMED. Looper’s motion to 

supplement the record is DENIED. 

Case: 22-40579 Document: 00516888417 Page: 6 Date Filed: 09/08/2023