FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE MARQUEZ, 

Plaintiff-Appellee, 

 v. 

C. RODRIGUEZ, Correctional Officer 

at M.C.C. Federal Prison; L. KELLY, 

Correctional Officer at M.C.C. Federal 

Prison, 

Defendants-Appellants, 

and 

UNITED STATES OF AMERICA; 

FEDERAL BUREAU OF PRISONS; 

DAVID L. YOUNG, Warden of 

M.C.C. Federal Prison; DOES, John 

Doe #1 Classification Official; Jane 

Doe #1 Classification Officer; 

Supervisor John Doe #2 Prison 

Guard, 

Defendants.

No. 21-55981 

D.C. No. 

3:18-cv-00434-

CAB-NLS 

OPINION
2 MARQUEZ V. RODRIGUEZ

Appeal from the United States District Court

for the Southern District of California 

Cathy Ann Bencivengo, District Judge, Presiding 

Argued and Submitted April 12, 2023 

Pasadena, California

Filed September 6, 2023 

Before: William A. Fletcher, Kenneth K. Lee, and 

Salvador Mendoza, Jr., Circuit Judges. 

Opinion by Judge Lee; 

Concurrence by Judge W. Fletcher 

SUMMARY*

Prisoner Civil Rights/Bivens

In an action brought pursuant to Bivens v. Six Unknown 

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 

388 (1971), alleging that federal correctional officials failed 

to protect plaintiff from other detainees at a jail, the panel 

reversed the district court’s denial of defendants’ motion to 

dismiss and declined to extend a Bivens action to include a 

Fifth Amendment failure-to-protect claim. 

When a party seeks to bring a Bivens action, courts apply 

a two-step test: whether the case presents a new Bivens

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
MARQUEZ V. RODRIGUEZ 3

context, and, if so, whether there “special factors” that 

counsel against extending Bivens.

Applying the first step, the panel held that this case 

presents a new Bivens context that the Supreme Court has 

not recognized in its Bivens jurisprudence. The panel 

declined to recognize an implied Bivens context arising from 

Farmer v. Brennan, 511 U.S. 825 (1994), which involved an 

Eighth Amendment failure-to-protect claim by a femalepresenting transsexual individual who was assaulted by 

other inmates. The panel noted that nearly thirty years have 

passed since the Supreme Court decided Farmer and if the 

Court were inclined to recognize it as one of the few 

acceptable Bivens contexts, it would have done so. The 

panel further determined that plaintiff’s claim was 

meaningfully distinguishable from Farmer, which involved 

an Eighth Amendment rather than a Fifth Amendment claim, 

alleged a different category of harm, and arose in a different 

factual setting. 

Applying the second step, the panel held that special 

factors counsel against extending Bivens to this case. The 

legislature and executive were best positioned to address 

plaintiff’s interest, and have, in fact, provided alternative 

remedies through administrative review procedures offered 

by the Board of Prisons. Accordingly, the panel declined to 

overstep its constitutional role to create a new damages 

action.

Concurring in the judgment, Judge W. Fletcher 

explained that a state prisoner making the same factual 

allegations as plaintiff states a cause of action for 

damages. Denying a damages remedy to a federal prisoner 

while granting it to a state prisoner in the same circumstance 

is a miscarriage of justice.
4 MARQUEZ V. RODRIGUEZ

COUNSEL

Colin M. McDonald (argued) and George V. Manahan, 

Assistant United States Attorneys; Katherine L. Parker, 

Assistant United States Attorney, Civil Division Chief; 

Randy S. Grossman, United States Attorney; United States 

Department of Justice, Southern District of California, San 

Diego, California; for Defendants-Appellants.

D. Dangaran (argued), Oren Nimni and Samuel Weiss, 

Rights Behind Bars, Washington, D.C.; Hope Bentley and 

Ronak Patel, Certified Law Students; Aaron Littman, 

Supervising Attorney; UCLA School of Law Prisoners’ 

Rights Clinic, Los Angeles, California; for PlaintiffAppellee.

OPINION

LEE, Circuit Judge: 

We address whether a plaintiff—who alleges that federal 

correctional officers failed to protect him from other

detainees in a jail—can seek damages against them based on 

the Fifth Amendment’s due process clause. See generally 

Bivens v. Six Unknown Named Agents of the Federal Bureau 

of Narcotics, 403 U.S. 388 (1971). We hold that he cannot

and decline to extend a Bivens action to include a Fifth 

Amendment failure-to-protect claim. 

Invoking separation-of-powers principles, the Supreme 

Court has repeatedly held that Congress, not the courts, 

should typically decide whether to extend an implied

damages action against federal officials. This case is no 
MARQUEZ V. RODRIGUEZ 5

different, as it presents a factual and legal context that the 

Supreme Court has not recognized in its Bivens

jurisprudence. And under this new context, Congress is 

better suited than the judiciary to assess policy judgments 

involved in expanding an implied cause of action against 

federal officials. For example, this case implicates the 

Bureau of Prisons’ policy of deciding which detainees 

should be placed in protective custody, given strapped

resources and limited space. We thus reverse the district 

court’s denial of the correctional officers’ motion to dismiss.

BACKGROUND1

I. While Jailed as a Pretrial Detainee, Steve Marquez 

Suffers Injuries After Jail Officials Deny His Request 

for Protective Custody.

In 2016, Steve Marquez was booked into a federal 

corrections center in San Diego for an alleged sex offense.

Given the nature of his charges, Marquez requested

protective custody. Jail officials, however, declined his 

request, instead placing him in general population. 

According to Marquez, the officials made sarcastic 

comments such as “what a great guy” and “what an 

upstanding citizen.” And one official allegedly handed 

Marquez an emergency contact form—stating, “this is for 

when something happens to you in prison”—while another 

supposedly advised Marquez to lie to other inmates about the 

nature of his charges. Marquez does not allege, however, that 

any of the other inmates were in fact aware of the nature of 

his charges.

1 Because this appeal comes to us from the denial of a motion to dismiss, 

we accept as true all facts alleged in the complaint. Ashcroft v. Iqbal, 

556 U.S. 662, 678–79 (2009).
6 MARQUEZ V. RODRIGUEZ

Shortly after entering general population, Marquez 

began to have trouble with a group of fellow inmates. One 

inmate allegedly told Marquez, “we are going to break you.” 

Another told him that if he did not do everything the group 

commanded, they would “take care of him.”

It is unclear whether these inmates targeted Marquez

because of his status as an alleged sex offender or as part of 

a hazing ritual, as none of the inmates mentioned Marquez’s

charges. Whatever the reason, Marquez’s harassment 

continued to escalate. At some point, the inmates forced 

Marquez to exercise to the point of collapse, leading to 

serious medical complications requiring hospitalization. 

Following his hospitalization, officials returned 

Marquez to the jail’s general population over his objection. 

He remained there for about a month before being 

transferred to protective custody in state prison. During this 

time, Marquez continued to suffer emotional and physical

distress, but he did not have any further encounters with his 

former harassers. 

II. The District Court Denies the Officers’ Motion to 

Dismiss Marquez’s Complaint Against Them.

Marquez filed suit under Bivens against two jail

classification officers in their individual capacities. His

complaint alleges that the officers were deliberately 

indifferent to a substantial risk of serious harm when they

declined Marquez’s requests for protective custody—first 

despite knowing the risks tied to the nature of his sex-related 

charges and later after knowing that he had suffered harm at 

the hands of the other inmates. Because Marquez was a 

pretrial detainee—rather than a prisoner—at the time, the 

district court construed his claim as arising under the Due 

Process Clause of the Fifth Amendment rather than under the 
MARQUEZ V. RODRIGUEZ 7

Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 

n.16 (1979).

The officers moved to dismiss the complaint, contending 

that Marquez did not state a viable Bivens claim. The district 

court denied the motion. Although the district court found

that Marquez’s claim presented a “new Bivens context,” it 

concluded that an extension of Bivens could be warranted in 

his case.

DISCUSSION

The district court erred in determining that Marquez’s 

Bivens claim could proceed. In Bivens, the Supreme Court 

recognized an implied cause of action against federal 

officials for Fourth Amendment violations. Since then, the 

Supreme Court has extended Bivens exactly twice: In Davis 

v. Passman, 442 U.S. 228 (1979), the Court permitted an 

administrative assistant to seek a damages remedy against

her former employer, a congressman, for alleged sex 

discrimination in violation of the Fifth Amendment. And in 

Carlson v. Green, 446 U.S. 14 (1980), the Court recognized 

a Bivens remedy in an action brought by a federal prisoner’s 

estate contending that prison officials infringed the Eighth 

Amendment’s Cruel and Unusual Punishment Clause by

failing to provide adequate medical treatment.

Apart from those cases, however, the Supreme Court has 

repeatedly and expressly confined Bivens claims, holding 

that an extension of implied causes of action is recognized 

today as “a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 

582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 

U.S. 662, 675 (2009)). Now, when a party seeks to bring a 

Bivens action, we proceed in two steps. “First, we ask 

whether the case presents ‘a new Bivens context’—i.e., is it 

‘meaningful[ly]’ different from the three cases in which the 
8 MARQUEZ V. RODRIGUEZ

Court has implied a damages action.” Egbert, 142 S. Ct. at 

1803 (quoting Abbasi, 137 S. Ct. at 1859–60). If a case 

presents a new Bivens context, then we examine whether 

“there are ‘special factors’ indicating that the Judiciary is at 

least arguably less equipped than Congress to ‘weigh the 

costs and benefits of allowing a damages action to proceed.’” 

Id. (quoting Abbasi, 582 U.S. at 136). These steps will

“often resolve to a single question: whether there is any 

reason to think that Congress might be better equipped to 

create a damages remedy.” Id. If so, then we may not allow 

the Bivens claim to proceed.

In practice, the Supreme Court’s stringent test will 

foreclose relief in all but the most extraordinary cases. See

id. at 1800, 1803; see also id. at 1809–1810 (Gorsuch, J., 

concurring). And while the Court has thus far “stop[ped] 

short of overruling Bivens and its progeny,” id. at 1823 

(Sotomayor, J., concurring), it has cabined the doctrine to the 

facts of three decades-old cases. See Hernández v. Mesa, 

140 S. Ct. 735, 751–53 (2020) (Thomas, J., concurring) 

(citing Abbasi, 582 U.S. at 135–36). 

Because Marquez’s claim fails to surmount this strict

standard, we conclude that he does not have a viable Bivens

action. We thus reverse the district court.

I. This Case Presents a New Bivens Context.

The district court correctly concluded that Marquez’s 

claim arises in a new Bivens context. As we noted above, 

“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. Marquez cannot show that his Fifth 

Amendment failure-to-protect claim fits within the context 

of one of these three cases.
MARQUEZ V. RODRIGUEZ 9

Marquez argues that Carlson allows a pretrial detainee 

to bring a failure-to-protect claim under Bivens. He does not 

argue that Carlson itself provides that remedy, however. 

Nor could he, as Carlson addressed a withholding medical 

care claim, not a failure-to-protect claim as in here. 446 U.S. 

at 16–17 & n.1; see also Bulger v. Hurwitz, 62 F.4th 127, 

138 (4th Cir. 2023). Instead, he leans on Farmer v. Brennan, 

511 U.S. 825 (1994). 

In Farmer, the Supreme Court considered an Eighth 

Amendment failure-to-protect claim brought under Carlson

by a female-presenting, “transsexual” individual who was 

assaulted by other inmates after being transferred to general 

population. Although Farmer centered on the definition of

“the term ‘deliberate indifference,’” id. at 829, Marquez

argues that the case impliedly recognized that failure-toprotect claims are an acceptable application of Carlson. We 

disagree: Farmer is not a cognizable Bivens context. And 

if it were, Marquez’s claim would still present a new Bivens

context, as there are meaningful differences between his 

claim and the one at issue in Farmer.

A. Farmer is not a recognized Bivens context.

The Supreme Court’s Bivens jurisprudence squarely 

forecloses Marquez’s argument that Farmer established a 

cognizable Bivens context. As we have already stated, in 

Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court held that 

Bivens, Davis, and Carlson “represent the only instances in 

which the Court has approved of an implied damages 

remedy under the Constitution itself.” Id. at 131 (emphasis 

added). More recently, the Court in Egbert v. Boule, 142 S. 

Ct. 1793 (2022), suggested that a “new Bivens context” 

arises anywhere that the Court has not affirmatively stated 

that Bivens applies—which it did in only those three cases.
10 MARQUEZ V. RODRIGUEZ

We thus decline Marquez’s invitation to recognize an 

implied fourth Bivens context arising from Farmer. Nearly 

thirty years have passed since the Supreme Court decided 

Farmer. If the Court were inclined to recognize it as one of 

the few acceptable Bivens contexts, it would have done so. 

Instead, the Court continues to reaffirm that there are but 

three of these cases, and Farmer is not one of them. See 

Abbasi, 582 U.S. at 131; Hernández v. Mesa, 140 S. Ct. 735, 

743 (2020); Egbert, 142 S. Ct. at 1803.2

B. Marquez’s claim is meaningfully distinguishable 

from Farmer.

Even if we accepted Marquez’s assertion that Farmer

presents an acceptable Bivens claim, Marquez’s claim would 

still require extending Bivens to a new context. A context is 

“new” if the case differs “in a meaningful way from previous 

Bivens cases.” Abbasi, 582 U.S. at 139. Examples of a 

meaningful difference might 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 officer was 

operating; the risk of disruptive intrusion by 

the Judiciary into the functioning of other 

2 In so holding, we depart from the Third Circuit, whose decision to the 

contrary predates Egbert, and instead join the Fourth Circuit. See 

Bistrian v. Levi, 912 F.3d 79, 90–91 (3d Cir. 2018); Bulger v. Hurwitz, 

62 F.4th 127, 139 (4th Cir. 2023); see also Snowden v. Henning, 72 F.4th 

237, 241–42 (7th Cir. 2023) (emphasizing that the “Bivens trilogy” is a 

closed group).
MARQUEZ V. RODRIGUEZ 11

branches; or the presence of potential special 

factors that previous Bivens cases did not 

consider.

Id. at 140; see also Snowden v. Henning, 72 F.4th 237, 244

(7th Cir. 2023) (distilling “meaningful differences” as

“factual distinctions and legal issues that might alter the 

cost–benefit balance that justified an implied damages 

remedy in those cases”).

At the outset, we observe that “the constitutional right at 

issue” is different here than in Farmer. See Abbasi, 582 U.S. 

at 140. While both cases involve an alleged failure to 

protect, Farmer concerned an Eighth Amendment claim, 

while Marquez lodges his complaint under the Fifth 

Amendment. See Egbert, 142 S. Ct. at 1807 (quoting 

Abbasi, 582 U.S. at 139). Marquez contends that this is not

a meaningful difference, arguing that the Fifth Amendment 

standard for a failure-to-protect claim is the same as, if not 

lower than, the Eighth Amendment standard. Marquez’s 

argument has some merit. Indeed, Justice Breyer echoed 

that same point in Abbasi. Unfortunately for Marquez, 

Justice Breyer was not in the majority in that case. Abbasi, 

582 U.S. at 170 (Breyer, J., dissenting) (arguing that there is 

no substantive difference in the scope of rights protected by 

the Fifth and Eighth Amendments). The majority opinion in 

Abbasi rejected the argument being advanced by Marquez. 

In that case, the Supreme Court considered whether Carlson

permitted an implied cause of action in a lawsuit brought by

non-citizens detained in the wake of the 9/11 attacks and 

who alleged that the warden violated the Fifth Amendment 

by allowing guards to abuse detainees. Id. at 137–38

(majority opinion). The Court held that—despite the 

“significant parallels” to Carlson—the case presented a new 
12 MARQUEZ V. RODRIGUEZ

Bivens context.3 It relied in part on the fact that “Carlson 

was predicated on the Eighth Amendment and this claim is 

predicated on the Fifth.” Abbasi, 582 U.S. at 147. 

Besides this legal distinction, there are also meaningful 

factual differences between this case and Farmer. To start, 

the plaintiff in Farmer was a transgendered individual who 

“projects feminine characteristics,” while Marquez was an 

accused sex offender who requested segregation based 

solely on a charged crime that was unknown to others. Thus, 

the Farmer plaintiff presumably faced a higher risk of harm 

because the other inmates would notice the physical 

characteristics that put the plaintiff at risk. 

Another difference is that the Farmer plaintiff (a 

convicted criminal) resided in a prison, while Marquez (a 

pretrial detainee) was temporarily held in jail. This

difference in setting is significant. Jails are typically smaller 

than prisons, they are not intended for long-term detention, 

and they house a different class of inmates. Prisons and jails 

also may involve different levels of risk to inmate safety. 

Because of these differences, jails and prisons are operated 

differently. For example, a jail may have less space for 

protective custody than a larger prison designed to hold 

inmates long-term. 

Thus, when compared to Carlson and Farmer, 

Marquez’s claim arises under a different constitutional 

amendment, it alleges a different category of harm, and it 

arises in a different factual setting. As the Supreme Court 

emphasized that even minor differences can satisfy the new3 Because the lower court did not advance past this question, the Court 

vacated the judgment and remanded the case with instruction to conduct 

the special-factors analysis. Abbasi, 582 U.S. at 149.
MARQUEZ V. RODRIGUEZ 13

context inquiry, see Abbasi, 582 U.S. at 149, we conclude 

that the differences identified here are more than enough to 

establish that Marquez’s claim involves a new Bivens

context.

II. Special Factors Counsel Against Extending Bivens to 

This Case.

The district court erred in finding that the record did not 

support that “special factors” require dismissing Marquez’s 

claim. Before extending Bivens to a new context, we must 

consider whether there are “special factors counseling 

hesitation in the absence of affirmative action by Congress.” 

Id. at 136 (quoting Carlson, 446 U.S. at 18). This means that 

“[i]f there is even a single ‘reason to pause before applying 

Bivens in a new context,’ a court may not recognize a Bivens

remedy.” Egbert, 142 S. Ct. at 1803 (quoting Hernández, 

140 S. Ct. at 743); see also id. at 1805 (“A court faces only 

one question: whether there is any rational reason (even one) 

to think that Congress is better suited to ‘weigh the costs and 

benefits of allowing a damages action to proceed.’” 

(emphasis in original) (quoting Abbasi, 582 U.S. at 136)). 

In setting this low bar, the Supreme Court has declined 

to “‘create an exhaustive list’ of factors that may provide a 

reason not to extend Bivens.” Hernández, 140 S. Ct. at 743. 

Instead, guided by “separation-of-powers principles,” we 

must “consider the risk of interfering with the authority of 

the other branches”—asking “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.’” Id. (citations omitted) (quoting 

Abbasi, 582 U.S. at 135–37). Applying that standard here, 
14 MARQUEZ V. RODRIGUEZ

we hold that Marquez does not have a cognizable Bivens

claim.

Marquez has remedies available other than a Bivens 

claim. If “Congress has created ‘any alternative, existing 

process for protecting the [injured party’s] interest’ that itself 

may ‘amoun[t] 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 

in original) (quoting Wilkie v. Robbins, 551 U.S. 537, 550 

(2007)). We find that there are such remedies here. For 

example, Marquez could have challenged his placement in 

general population through administrative review 

procedures offered by the Board of Prisons. 28 CFR 

§ 542.13–15; see also Corr. Servs. Corp. v. Malesko, 534 

U.S. 61, 74 (2001). Marquez also could have filed for 

declaratory or injunctive relief, rather than for damages 

under Bivens. See Abbasi, 582 U.S. at 148. 

Although the district court recognized these alternative 

remedies, it found that these procedures might not have been 

enough to address Marquez’s injuries. This was error.

Because our inquiry is limited by separation-of-powers 

principles, we do not consider the adequacy of the alternative 

remedy. That is “a legislative determination that must be left 

to Congress, not the federal courts.” Egbert, 142 S. Ct. at 

1807; see also Pettibone v. Russell, 59 F.4th 449, 456–57 

(9th Cir. 2023). The availability of these alternative 

remedies is enough for us to find that Congress—not the 

judiciary—is best suited to address Marquez’s interests. 

Egbert, 142 S. Ct. at 1804, 1806–07 (“So long as Congress 

or the Executive has created a remedial process that it finds 

sufficient to secure an adequate level of deterrence, the 

courts cannot second-guess that calibration by 
MARQUEZ V. RODRIGUEZ 15

superimposing a Bivens remedy.”); Bulger, 62 F.4th at 140–

41.

Our hesitation to extend Bivens is also counseled by the 

fact that Congress has already legislated on prison 

administration without providing a damages remedy against 

jail officials. See 42 U.S.C. § 1997e; Abbasi, 582 U.S. at 

148 (“[L]egislative action suggesting that Congress does not 

want a damages remedy is itself a factor counseling 

hesitation. . . . [I]t seems clear that Congress had specific 

occasion to consider the matter of prisoner abuse and to 

consider the proper way to remedy those wrongs.”).

We thus conclude that the district court erred in finding 

that Marquez alleged a viable Bivens claim.

CONCLUSION

In the fifty years since Bivens was decided, the Supreme 

Court has permitted only two other implied-damages actions 

arising under the Constitution. Outside of these cases, the 

Court has repeatedly declined to extend Bivens remedies. 

This hesitancy is informed by the basic structure of our 

government—the separation of powers that vests the 

authority to create new federal causes of action in Congress, 

not the courts. We may not allow a Bivens claim to proceed 

when “there is any reason to think that Congress might be 

better equipped to create a damages remedy.” Egbert, 142 

S. Ct. at 1803. 

Here, this mandate forecloses Marquez’s requested 

remedy. Marquez’s Fifth Amendment failure-to-protect 

claim differs meaningfully from any of the three accepted 

Bivens contexts. Because the legislature and executive are 

best positioned to address Marquez’s interests—and have, in 

fact, provided alternative remedies to do so—we decline to 
16 MARQUEZ V. RODRIGUEZ

overstep our constitutional role to create a new damages 

action. We thus REVERSE the district court’s order

denying the officers’ motion to dismiss.

W. Fletcher, J., concurring in the judgment. 

Plaintiff Marquez was a pretrial detainee in federal 

prison, charged with sex offenses. After the events at issue 

in this case, the charges were dismissed, and Marquez was 

released from prison. 

Marquez brings a civil suit for damages against prison 

officials under Bivens v. Six Unknown Named Agents of the 

Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging 

a failure to protect him from his fellow prisoners in violation 

of the Due Process Clause of the Fifth Amendment. The 

district court denied a motion to dismiss brought under Rule

12(b)(6). In this procedural posture, we accept as true all 

plausible factual allegations in Marquez’s complaint and all 

reasonable inferences that may be drawn therefrom. 

It is well known that sex offenders in prison are in danger 

of severe injury or death at the hands of other prisoners. 

Marquez alleges in his pro se complaint: 

Due to the nature of the alleged charges 

brought against him, it was imperative he be 

placed in protective custody to protect him 

from unreasonable risk of harm or from being 

the subject of attack by other inmates. 

During his interview for classification, C. 

Rodriguez reviewed his alleged charges and 
MARQUEZ V. RODRIGUEZ 17

made comments towards him such as “what a 

great guy” and “what an upstanding citizen.”

The official was well aware of 

plaintiff[’]s charges and failed in [his] duty to 

protect him from unreasonable risk or harm 

by refusing requests to place plaintiff into 

protective custody.

Instead he placed the plaintiff in general 

population and chose to ignore plaintiff[’]s 

requests to be placed in protective custody 

and acted against prison policy and federal 

law. Defendant C. Rodriguez handed 

plaintiff an emergency contact form and said 

to him, “here, this is for when something 

happens to you in prison.”

The plaintiff became fearful and afraid 

for his life and asked again to be placed in 

protective custody. The official ignored the 

plaintiff and instead advised plaintiff to lie to 

other inmates about his alleged charges. He 

said,”Don’t worry about it, just tell the other 

inmates you[’re] here for selling drugs.”

Soon after Marquez was placed in the prison’s general 

population, “the inmates moved plaintiff to a back corner of 

the dorm[i]tory and the[n] began to physically torture him 

by forcing him to perform extreme physical exertion until 

plaintiff could no longer move. Out of fear for his life and 

safety he complied.” Afterwards, Marquez “began to 

experience more severe pain, fever, cold sweats, swelling of 

his face and body, vomiting, loss of ap[p]etite, urination of 

blood, shortness of breath, complete loss of leg function, 

dizziness, headache, and mental and emotional anguish.” 

The next day, Marquez notified a jail official and a nurse of 
18 MARQUEZ V. RODRIGUEZ

what had happened. Medical staff drew blood for testing. 

On the third day, more blood was drawn, and Marquez was 

given an IV. He continued to urinate blood. On the fourth 

day, Marquez was given another IV. Finally, on the fifth 

day, he was taken to a hospital emergency room. 

A doctor at the hospital informed Marquez that he had 

“severe kidney failure” and that “death is a realistic 

possibility.” Fearing imminent death, Marquez asked to 

contact family members, but prison officials refused. 

Marquez spent a week in the hospital. By the end of the 

week, he had lost forty pounds. “[T]he end result of his 

injuries included acute rhabdomyalosis [life-threatening 

muscle injury], acute renal failure, acute tubular necrosis, 

severe dehydration, medical renal disease, pulm[o]nary 

congestion, cardiomegaly [enlarged heart], high blood 

pressure, severe renal azotemia [excess waste products in the 

blood], and other complications.” 

Marquez sought the prescribed administrative remedy in 

the prison and was denied relief. 

The panel majority holds that because he is a federal 

prisoner, Marquez has not stated a cause of action for 

damages. If a state prisoner makes the same factual 

allegations, it is black-letter law that he states a cause of 

action for damages. See, e.g., Requena v. Roberts, 893 F.3d 

1195 (10th Cir. 2018); Castro v. County of Los Angeles, 833 

F.3d 1060 (9th Cir. 2016); Bowen v. Warden Baldwin State 

Prison, 826 F.3d 1312 (11th Cir. 2016); Junior v. Anderson, 

724 F.3d 812 (7th Cir. 2013); Nelson v. Shuffman, 603 F.3d 

439 (8th Cir. 2010); Whitson v. Stone Cnty. Jail, 602 F.3d 

920 (8th Cir. 2010); Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 

2009); Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008);

Brown v. Budz, 398 F.3d 904 (7th Cir. 2005); Calderon-
MARQUEZ V. RODRIGUEZ 19

Ortiz v. LaBoy-Alvarado, 300 F.3d 60 (1st Cir. 2002); Lopez 

v. LeMaster, 172 F.3d 756 (10th Cir. 1999); Hamilton v. 

Leavy, 117 F.3d 742 (3d Cir. 1997); Taylor v. Michigan 

Dep’t of Corrections, 69 F.3d 76 (6th Cir. 1995); Matzker v. 

Herr, 748 F.2d 1142 (7th Cir. 1984). Even if all of his 

factual allegations are true, Marquez can recover nothing. A 

state prisoner in the same situation would likely recover 

substantial damages. 

It does not have to be this way. Indeed, it has not always 

been this way.

The problem is easy to state. Section 1983, a post-Civil 

War statute, provides a cause of action for damages for 

violations of constitutional rights under color of state law. 

After almost a century of ignoring § 1983, the Supreme 

Court held in 1961 that it provides a cause of action for 

damages against state and local officials who have violated 

the Constitution. See Monroe v. Pape, 365 U.S. 167 (1961). 

However, there is no equivalent statute providing a cause of 

action for damages against a federal official. 

The solution is also easy to state. When a suit is brought 

against a federal officer who has violated the Constitution, 

the Court can infer a cause of action for damages directly 

from the Constitution, analogous to the cause of action under 

§ 1983. The Court did this in Bivens, ten years after Monroe 

v. Pape. Justice Brennan wrote for the Court that there were 

no “special factors counseling hesitation in the absence of 

affirmative action by Congress.” Bivens, 403 U.S. at 396 

(emphasis added). Nor was there an “explicit congressional 

declaration that persons injured by a federal officer’s 

violation of the Fourth Amendment may not recover money 

damages from the agents but must instead be remitted to 

another remedy, equally effective in the view of Congress.” 
20 MARQUEZ V. RODRIGUEZ

Id. at 397 (emphasis added). Recognizing that compensatory 

damages were the only effective remedy, Justice Harlan 

wrote, “For people in Bivens’ shoes, it is damages or 

nothing.” Id. at 410 (Harlan, J., concurring) (emphasis 

added).

In Butz v. Economou, 438 U.S. 478 (1978), seven years 

later, the Court held that qualified immunity for a federal 

officer in a Bivens action should match qualified immunity 

for a state officer in a § 1983 action. Justice White wrote for 

the Court:

[I]n the absence of congressional direction to 

the contrary, there is no basis for according to 

federal officials a higher degree of immunity 

from liability when sued for a constitutional 

infringement as authorized by Bivens than is 

accorded state officials when sued for the 

identical violation under § 1983. . . . That 

Congress decided, after the passage of the 

Fourteenth Amendment, to enact legislation 

specifically requiring state officials to 

respond in federal court for their failures to 

observe the constitutional limitations on their 

powers is hardly a reason for excusing their 

federal counterparts for the identical 

transgressions. To create a system in which 

the Bill of Rights monitors more closely the 

conduct of state officials than it does that of 

federal officials is to stand the constitutional 

design on its head.

Id. at 501, 504 (emphasis added). 
MARQUEZ V. RODRIGUEZ 21

The promise to the ear has been broken to the hope. The 

vision of the Court that decided Bivens and Economou, a 

vision articulated by justices as different as Justices 

Brennan, Harlan, and White, has been abandoned. The 

words are the same—“special factors counseling hesitation” 

and “another remedy, equally effective in the view of 

Congress”—but the reality is not. 

For a “special factor,” it now suffices that “[i]f there is 

even a single ‘reason to pause before applying Bivens in a 

new context,’ a court may not recognize a Bivens remedy.” 

Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting 

Hernández v. Mesa, 140 S. Ct. 735, 743 (2020)). For 

“another remedy, equally effective in the view of Congress,” 

a failed administrative grievance now suffices. Egbert, 142 

S. Ct. at 1806 (citing Correctional Services Corp. v. 

Malesko, 534 U.S. 61, 74 (2001)). 

Denying a damages remedy here is a miscarriage of 

justice. There is no other way to characterize our decision 

today.

As in Bivens, the reality is that there are no “special 

factors” that justify denying Marquez a damages remedy. To 

deny a damages remedy to a federal prisoner while granting 

it to a state prisoner in the same circumstance “is to stand the 

constitutional design on its head.” As in Bivens, the reality 

is that a grievance procedure is not an “equally effective 

remedy in the view of Congress.” “For people in 

[Marquez’s] shoes, it is damages or nothing.”

With deep regret, I concur in the result.