D. Bivens Actions and Federal Injunctions

• Library: The Jailhouse Lawyer's Handbook (CCR) (2021 Ed.)

D. Bivens Actions and Federal Injunctions

FTCA claims can only be brought for torts, not constitutional violations. If a federal prisoner wants to make a constitutional claim for money damages, they must do so through a "Bivens action." The name comes from a lawsuit, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which the Supreme Court established the right to bring a lawsuit for money damages against individual law enforcement officials, acting under color of federal law, for violations of constitutional rights. You might notice that this sounds very similar to the language in Section 1983. The key difference is that Section 1983 applies to state actors, while Bivens applies to federal actors. If you are an immigration detainee in the custody of ICE, a federal agency, or a federal prisoner in the custody of the Bureau of Prisons, in most situations, you will be relying on Bivens and not on Section 1983.

There are two main elements to a Bivens action: (1) a federal actor and (2) unconstitutional acts by that person that are properly the subjects of a Bivens Claim. This section discusses each of those elements in turn.

If a federal prisoner is not seeking money damages, but instead wants to change a prison policy, or stop ongoing illegal action, the prisoner can file a case for an "injunction" in federal court under 28 U.S.C. 1331. These federal injunctions are also described below.

1. Who is acting under color of federal law?

Who should you name as the defendant in your lawsuit? In other words, who should you sue? First, it is important to know that Bivens provides a right of action against individuals only, and not against federal agencies, private corporations, or private contractors. This means you must name actual people as the...