# United States Court of Appeals **for the Fifth Circuit**

____________ No. 22-40579

____________ Delores Looper, Plaintiff—Appellant ,

versus Dallas B. Jones; Federal Bure au 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 se veral 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: 09/08/2023No. 22-40579

2 him from the lethal at tack of his cellmate. ROA.135, 163–74, 179 . The district court dismissed Looper’s complain t for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). We AFFIRM

. First, the district court correctly di smissed the suit against the Federal Bureau of Prisons. The law is clea r 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 th e 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’ failureto 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 “int errogated, 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 dist rict 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, s upported 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 ot her 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: 09/08/2023No. 22-40579

3 discrimination against a former congressi onal 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 Bivensis ‘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 tradit ionally asked two question—(1) whether this case presents a new context and (2) if so, whether there are any alternative remedies or spec ial factors indicating that judges are “at least arguably less eq uipped than Congress” to create a damages remedy. Egbert , 142 S. Ct. at 1803. But as a practica l matter, this inquiry reduces to “a single question: whether there is any reason to think that Congress might be better equipped to crea te 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 dama ges remedy, the courts must refrain from creating it. Even a si ngle 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 itwill be in most every case—

no Bivens action may lie. Case: 22-40579 Document: 00516888417 Page: 3 Date Filed: 09/08/2023No. 22-40579

4 Ibid. (cleaned up). Looper cannot make the required sh owing because this case presentsa new context, and Congress is far more equipped to create a damages remedy. First, this is a new Bivenscontext. 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 iden tify “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 medi cate claim, it did not create a cause of action for a prisoner’s Eighth Amen dment failure to protect or intervene claim. In that regard, Correctional Services Corp. v. Malesko , 534 U.S. 61 (2001), is instructive. Th ere a prisoner a lleged that offici als 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 pa rallel 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 righ t to be free from cruel and Case: 22-40579 Document: 00516888417 Page: 4 Date Filed: 09/08/2023No. 22-40579

5unusual punishment. And in both cases, the mechanism of injury was the same: failure to provide adequate medical treatment. . . . Even though the righ t 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 Ei ghth Amendment claim in Carlson

. Ibid. So this case presents a new context. Second, special factors counsel ag ainst creating a new remedy. Congress has created a compre hensive scheme to govern suits brought by prisoners against federal jailers in the Pri son 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 co nsider the matter of prison er 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 stan dalone 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 author ize the award of damage s,” we may not do so, Mesa , 140 S. Ct. at 747, even if we thou ght 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: 09/08/2023No. 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