As the courts continue to restrict and further restrict the availability of Bivens remedies, one category of claims has been left behind—medical-care claims brought by people detained pretrial. Because of the way the Supreme Court structured the Bivens analysis in Ziglar v. Abbasi, people incarcerated postconviction can, and do, bring claims under the Eighth Amendment for damages resulting from constitutionally defective medical care. But many courts are refusing to allow people detained pretrial to bring these same claims under the Fifth Amendment. This situation creates a doctrinally incoherent and illogical reality in which people detained pretrial are more constrained in vindicating their constitutional rights than people incarcerated postconviction. In light of the factual and doctrinal similarities between Eighth and Fifth Amendment claims, the courts’ unique role in resolving doctrinal conflict, and the political vulnerability of people detained pretrial, this Note argues that courts should recognize Fifth Amendment medical-care claims, and that they can do so under the current Bivens framework.

The full text of this Note can be found by clicking the PDF link to the left.


Joseph Jones, Jr. died on August 15, 1975. 1 Green v. Carlson, 581 F.2d 669, 670 (7th Cir. 1978), aff’d, 446 U.S. 14 (1980).

At the time of his death, Mr. Jones was incarcerated in a federal prison. 2 Id. A month before he died, Mr. Jones spent eight days in a hospital with asth­ma complications and was discharged with treatment recommendations. 3 Id. at 671. The court also noted that prison staff were already aware of Mr. Jones’s condition, as he was diagnosed with chronic asthma when he arrived at the prison. Id. The prison staff did not follow these recommendations, and Mr. Jones suf­fered an asthma attack. 4 Id. The prison staff admitted him to the infirmary but left him untreated for eight hours. 5 Id. (“Although he was in serious condition for some eight hours, no doctor saw him because none was on duty and none was called in.”). His condition deteriorated. 6 Id. The prison staff then attempted to use a respirator—known to be broken—to assist with his breathing. 7 Id. (stating that a staff member “had been notified two weeks earlier that the respira­tor was broken”). Mr. Jones informed them that the respirator was mak­ing it more difficult for him to breathe. 8 Id. The prison staff then injected him with the wrong medication, twice. 9 Id. (“[The staff member] administered two injections of Thorazine, a drug contra­indicated for one suffering an asthmatic attack.”). After receiving his second injection, Mr. Jones experienced respiratory arrest. 10 Id. The prison staff retrieved a ma­chine that could be used to restart his breathing—though not by them; the offic­ers present did not know how to use it. 11 Id. (describing how two officers “brought emergency equipment to administer an electric jolt to Jones, but neither man knew how to operate the machine”). They transferred Mr. Jones to an outside hospital. 12 Id. He died before he arrived. 13 Id.

After Mr. Jones’s death, his mother, Marie Green, sued the prison staff for the unconstitutional mistreatment of her son. 14 Id. She claimed that their behavior violated the Eighth Amendment and that they should be liable for damages under the theory of constitutional torts articulated in Bivens v. Six Unknown Named Agents. 15 Id. at 671–72; see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390–97 (1971) (concluding that the plaintiff had a cause of action for damages under the Fourth Amendment). Ms. Green also brought claims under the Due Process Clause of the Fifth Amendment, but only her Eighth Amendment claim was dis­cussed by the court. See Carlson, 581 F.2d at 671, 675. The district and circuit courts recognized her Bivens claim but disagreed over the applicability of state law. 16 Carlson, 581 F.2d at 671–72, 674. For this rea­son, the case made its way up to the Supreme Court. 17 Carlson v. Green, 446 U.S. 14, 17–18 (1980).

The Supreme Court recognized Ms. Green’s Bivens claim. 18 Id. at 18. The true import of this decision became evident years later, when the Court mandated that Bivens claims previously recognized by the Supreme Court could move forward but labeled extending the claims into new contexts “a ‘disfavored’ judicial activity.” 19 Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); see also infra section I.A.3. By recognizing Ms. Green’s claim, the Court in Carlson v. Green opened the door to Eighth Amendment medical-care claims brought by people confined in federal prisons, and, in Ziglar v. Abbasi, 20 137 S. Ct. 1843. the Court kept the door open—even as it suggested preventing most other claims brought by most other people. 21 See infra section I.A.3.

One group that may not be able to bring Bivens claims post-Ziglar is people who suffer harm while detained pretrial. Unlike people incarcer­ated postconviction, like Mr. Jones, people detained pretrial bring their medical-care claims under the Fifth Amendment. 22 See Bell v. Wolfish, 441 U.S. 520, 535 & n.17 (1979) (discussing how the claims of people detained pretrial are brought under the Due Process Clause). Courts therefore may find that these claims arise in a new context even if they are otherwise iden­tical to the claims brought by Ms. Green on behalf of her son. 23 See infra section II.A. People detained pretrial and people incarcerated postconviction can reside in the same facility and receive mistreatment from the same correctional officer. 24 Cf. Alan Ellis, Securing a Favorable Federal Prison Placement, Champion, July 2015, at 24, 25, http://alanellis.com/wp-content/uploads/2015/08/Securing-Favorable-Federal-Prison-Placement-Champion-Magazine.pdf [https://perma.cc/YJW6-3A3G] (describing how people with short sentences can be placed in pretrial detention facilities and are in contact with people detained pretrial as a result of their work assignments). But see 18 U.S.C. § 3142(i)(2) (2018) (stating that detention orders must “direct that the person be com­mitted . . . for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal”). Yet, as the law currently stands, a person detained pretrial in a federal de­tention facility may have fewer rights than a person incarcerated after hav­ing been adjudged guilty of committing a crime. 25 See infra section II.A. This situation not only is at odds with basic notions of logic and fairness but also conflicts with doctrine mandating that people detained pretrial have rights that are at least as great as the rights of people incarcerated postconviction. 26 See infra section I.B.

This Note argues that courts should allow people detained pretrial to bring Bivens suits when corrections officers violate the Fifth Amendment by providing constitutionally inadequate medical care. Part I discusses how the Court extended Bivens to cover a postconviction incarcerated person’s Eighth Amendment medical-care claim in Carlson v. Green 27 446 U.S. 14 (1980). before con­tinually limiting its applicability for reasons articulated in Ziglar v. Abbasi. 28 137 S. Ct. 1843 (2017). Part I also tracks the development of Fourteenth Amendment medical-care claims brought by people detained pretrial in state facilities under 42 U.S.C. § 1983 29 42 U.S.C. § 1983 (2018) (creating a right of action for a violation of a constitutional right by a person acting under the color of state law); see also infra section I.B. and introduces the doctrinal conflict created by Ziglar. Then, Part II discusses how courts post-Ziglar typically perpetuate this conflict and ex­plains why courts’ deference to congressional action for these specific claims is unwarranted. Finally, Part III proposes that courts recognize the exist­ence of special factors counselling action that should lead them to resolve this logical and doctrinal incongruity by allowing Fifth Amendment medical-care claims. 30 See infra section III.B.2. This Note recommends a new form of analysis that directs courts not only to see if there are factors indicating that they should hesitate to allow a Bivens remedy but also to look for factors counselling them to act and extend the availability of Bivens claims.