FLEMING v. UNITED STATES (2025)

ORDER GRANTING SUMMARY JUDGMENT ON THE BIVENS CLAIM

The plaintiff Rhonda Fleming is a federal prisoner. She asserts a claim against her prior warden under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The warden has moved for summary judgment on the ground that Bivens does not apply in this context. This order grants the motion, holding that an on-point Eleventh Circuit decision to the contrary has been abrogated by Supreme Court decisions and the Eleventh Circuit's analysis of them.

I

The fifth amended complaint alleges Ms. Fleming was exposed to mold and friable asbestos that imperiled her health, including when she was suffering from covid-19. This adequately pleads an Eighth Amendment violation. See, e.g., Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (holding that a state prisoner who was subjected to second-hand smoke stated an Eighth Amendment claim on which relief could be granted).

Ms. Fleming asserts a claim on this basis against her prior warden, Erica Strong, in her individual capacity. Ms. Fleming demands both injunctive relief and damages, but the claim for injunctive relief is moot because Ms. Fleming is no longer in the same facility and Ms. Strong is no longer her warden. The damages claim relies entirely on Bivens.

Ms. Fleming also asserts claims against the United States based on the same conditions and on other grounds. The current motion does not implicate the claims against the United States.

II

Bivens implied a cause of action for damages against federal law enforcement officers who conducted an unconstitutional search and arrest. The decision was widely understood at the time to mean federal officials might be susceptible to a broad array of constitutional claims.

Not anymore. The Supreme Court has restricted Bivens in a series of decisions culminating in Egbert v. Boule, 596 U.S. 482, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022). There the Court held that Bivens does not authorize Fourth Amendment excessive-force or First Amendment retaliation claims for damages against border agents. The Court acknowledged that it had allowed Bivens actions not only in Bivens itself but also in two other cases, including, of particular importance here, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). But drawing on numerous decisions in which it refused to extend Bivens, the Court set out a framework for analyzing the applicability of Bivens in any “new context.” Egbert, 596 U.S. at 492, 142 S.Ct. 1793.

A

If considered based only on Egbert, exposure to prison conditions, even when they imperil health, would not give rise to a Bivens claim. Egbert’s entire extended discussion confirms this, and two points nail it down.

First, at least in a “new context,” whether to apply Bivens “often resolves to a single question: whether there is any reason to think that Congress might be better equipped [than the courts] to create a damages remedy.” Egbert, 596 U.S. at 492, 142 S.Ct. 1793. When and how to remediate mold and especially asbestos in prison facilities systemwide are questions that call for the application of engineering expertise and that have enormous budget implications. These are considerations that fall on the no-Bivens-action side of the equation.

Second, “a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.’ ” Egbert, 596 U.S. at 493, 142 S.Ct. 1793 (quoting Ziglar v. Abbasi, 582 U.S. 120, 137, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017)). An alternative remedy—a Bureau of Prisons grievance process—is in place to address an individual prisoner's concerns about the impact of prison conditions on the prisoner's individual health. And a judicial remedy—injunctive relief—also is available in appropriate circumstances. See 18 U.S.C. § 3626(a)(1)(A).

In sum, if Egbert controls the issue of whether Bivens applies to prison-condition claims, the result is clear: no Bivens action. The Eleventh Circuit's most treatment of Bivens confirms this. In Johnson v. Terry, 119 F.4th 840 (11th Cir. 2024), the court extensively analyzed the evolution of Bivens and concluded that proper applications of Bivens beyond those already recognized by the Supreme Court “are as rare as the ivory-billed woodpecker”—a species last seen in 1944 that many experts believe is extinct. Johnson, 119 F.4th at 848 & n.2.

B

Egbert and other decisions rejecting Bivens claims are not, however, the only Supreme Court decisions on the issue. In Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court recognized a Bivens action for deliberate indifference to a prisoner's serious medical needs. This followed the Court's recognition that deliberate indifference of this kind violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Egbert did not overrule Carlson, so lower courts must continue to treat Carlson as binding. See, e.g., Evans v. Sec'y, Fla. Dep't of Corr., 699 F.3d 1249 (11th Cir. 2012) (noting that only the Supreme Court may overrule its own decisions).

Carlson addressed an individual prisoner's medical treatment, not prison conditions more broadly. But Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990), extended Carlson to prison conditions. In Powell, a federal prisoner asserted a Bivens claim based on exposure to friable asbestos, coincidentally at the same facility about which Ms. Fleming now complains. The district court dismissed the complaint, but the Eleventh Circuit reversed. Citing Estelle v. Gamble, the court said refusing to move the plaintiff to an asbestos-free environment could constitute deliberate indifference to serious medical needs. The court held that this adequately stated a Bivens claim.

Powell is on point. If it remains good law, Ms. Fleming's Bivens claim can go forward. If not, then not.

Occasions on which a district court in this circuit may properly refuse to follow the holding of an on-point, published Eleventh Circuit decision are, if not as rare as an ivory-billed woodpecker, nearly so. The prior-panel rule binds later Eleventh Circuit panels and, just as clearly, district courts in the circuit. “Under that rule, a prior panel's holding is binding on all subsequent panels”—and on all district courts within the circuit—“unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by [the Eleventh Circuit] sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

Although one could reasonably argue both sides of the issue, the better view is that Egbert undermined Powell to the point of abrogation. And any possibility that the Eleventh Circuit would read Egbert differently disappeared in Johnson. One cannot conscientiously read Egbert and Johnson as leaving any room for Powell.

III

The bottom line: a Bivens action does not lie for exposure to mold or friable asbestos, even when the exposure allegedly affects a prisoner's health. Other remedies, including injunctive relief, may be available for exposure to mold or asbestos, and a Bivens action for damages may still lie for failure to treat an individual prisoner's serious medical needs. But Ms. Fleming has asserted an exposure-to-conditions claim, not a failure-to-treat claim, and she has presented no evidence of any failure to treat. The warden is entitled to summary judgment on this claim.

IT IS ORDERED:

1. The warden's summary-judgment motion, ECF No. 272, is granted.

2. I do not direct the entry of judgment under Federal Rule of Civil Procedure 54(b).

SO ORDERED on April 9, 2025.

Robert L. Hinkle, United States District Judge