Shorter v. United States

• Decision Date: 01 September 2021
• Docket Number: No. 20-2554,20-2554
• Citation: 12 F.4th 366
• Parties: Christopher "Chrissy" SHORTER, Appellant v. UNITED STATES of America; Jordan Hollingsworth, Warden; Christine Dynan, Associate Warden; Robert Hazzlewood, Associate Warden; Dr. Marantz, Chief of Psychology; Unknown Pena, Captain; Officer Bittner, Lieutenant, Special Investigative Supervisor; Unknown Hamel, Counselor; Carl Sceusa, MD/CCHP; Unknown Byrd, Unit Manager; Unknown, PREA Compliance Manager
• Court: U.S. Court of Appeals — Third Circuit

12 F.4th 366

Christopher "Chrissy" SHORTER, Appellant

v.UNITED STATES of America; Jordan Hollingsworth, Warden; Christine Dynan, Associate Warden; Robert Hazzlewood, Associate Warden; Dr. Marantz, Chief of Psychology; Unknown Pena, Captain; Officer Bittner, Lieutenant, Special Investigative Supervisor; Unknown Hamel, Counselor; Carl Sceusa, MD/CCHP; Unknown Byrd, Unit Manager; Unknown, PREA Compliance Manager

No. 20-2554

United States Court of Appeals, Third Circuit.

Argued on April 22, 2021

Opinion filed September 1, 2021

Kelly J. Popkin (Argued), Rights Behind Bars, 276 Stratford Road, Brooklyn, NY 11218, Samuel Weiss, Rights Behind Bars, 416 Florida Avenue NW, #26152, Washington, DC 20001, Counsel for Appellant

J. Andrew Ruymann, United States Attorney's Office, 970 Broad Street, Room 700, Newark, NJ 07102, John T. Stinson, Jr. (Argued), United States Attorney's Office, 402 East State Street, Room 430, Trenton, NJ 08608, Counsel for Appellees

Kevin M. Costello, Harvard Law School, Center for Health Law & Policy Innovation, 1585 Massachusetts Avenue, Cambridge, MA 02138, Counsel for Amici Appellants Civil Rights Advocacy and Public Interest Organizations

Alexander L. Chen, T. Keith Fogg, Legal Services Center of Harvard Law School, 122 Boylston Street, Jamaica Plain, MA 02130, Counsel for Amici Appellants Former Corrections Officials

Before: AMBRO, RESTREPO, and RENDELL, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge Chrissy Shorter is a transgender woman who alleges she was stabbed and raped by a fellow inmate while in federal prison despite having warned prison officials repeatedly that she was concerned about being assaulted. She brought a pro se suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), claiming officials violated her Eighth Amendment rights by displaying deliberate indifference to the substantial risk that another inmate would assault her. Invoking its authority under 28 U.S.C. §§ 1915 and 1915A, the District Court dismissed her complaint sua sponte before allowing her to serve the defendants.

Shorter argues on appeal that a Bivens remedy is available and that the District Court erred by ignoring relevant factual allegations and imposing a needlessly demanding standard on her pro se complaint. The Government responds that we should not recognize a Bivens remedy in this context.

Shorter has the better argument. Her case falls comfortably within one of the few contexts in which the Supreme Court has recognized a Bivens remedy. And because Shorter adequately pleaded a violation of the Eighth Amendment, the District Court erred in dismissing that claim so early in the proceeding. We therefore reverse the dismissal of the Eighth Amendment claim and remand.

I. Background

Shorter is a transgender woman who has undergone hormone replacement therapy, meaning her body is "openly female."¹ J.A. at 81. In June 2015, she entered the Federal Correctional Institution, Fort Dix to begin a 96-month sentence for creating a fraudulent "tax services" firm. J.A. at 69; Gov. Br. at 3. Although prison officials were aware that Shorter was transgender, they opted to house her in a room without a lock with 11 men. Prison officials screened her risk for sexual assault under the Prison Rape Elimination Act of 2003 ("PREA") regulations, and they concluded she was at "significantly" higher risk than other inmates because, among other reasons, she presented as transgender, was small in stature, and had previously been sexually assaulted at another prison facility. J.A. at 137–38. The screening report stated that Shorter "should not be housed with anyone perceived to be ‘at risk’ for sexual abuse perpetration" and would be monitored. Id. at 138.

Despite these concerns, officials continued to house Shorter in a room without a lock with 11 men. Worried this living situation put her at risk for sexual assault, she asked to move to a two-person cell instead, citing policies of the Bureau of Prisons ("BOP") that supported her position. After initially objecting to this request, the prison reversed course and moved her to a two-person cell.

But the move did not fix the problem: the new cell also had no lock and was the furthest cell from the officer's station. Shorter reported these issues to prison officials, along with other concerns about sexual harassment and assault, but they took no immediate steps to protect her. Instead, her counselor compounded the problem by assigning a sex offender as her cellmate. The sex offender was later removed from her cell, and Shorter followed up with a grievance to the warden.

A few days later, Shorter again expressed concerns about sexual assault and submitted a request to transfer to a different prison, along with a BOP Program Statement supporting her request. Demonstrating the depth of her concern, Shorter requested a transfer from the low-security Fort Dix to a higher security facility, as she believed the latter would provide more protection against assault. The transfer request asserted that Fort Dix was a particularly dangerous facility for her because it holds an unusually large number of sex offenders and does not permit locks on cell doors. Although the prison's psychology department agreed Shorter should be transferred, she remained in the cell furthest from the officer's station while her request was pending.

Prison leadership took 17 days to act on Shorter's transfer request. On September 4, 2015, the BOP's Gender Identity Dysphoria Committee decided Shorter should be transferred because there were "security concerns due to" her gender dysphoria and "the physical layout" of Fort Dix could not "provide the same type of supervision as in other institutions." Id. at 106. Despite the apparent urgency of the situation, the warden took yet another 17 days before acting on the Committee's recommendation and submitting a transfer request to the central BOP office.²

Conditions in the prison only worsened as Shorter awaited transfer. She continued to submit written materials to prison officials detailing her concerns. And on October 5 and 8, 2015, the associate warden distributed two memoranda suspending certain inmate privileges due in part to the recent "significant increase in security issues involving staff and inmate assaults." Id. at 71, 108–109.

On October 14, 2015, Shorter's fears became real. In the middle of the night, an inmate entered her cell, raped her, and cut her seven times. After Shorter reported the incident, she was placed in involuntary protective custody. The prison conducted what Shorter characterizes as a cursory investigation of the assault but did not substantiate her claims. On November 3, 2015, approximately two and a half months after her initial transfer request and four months after she first complained to prison officials about her living arrangement, officials finally transferred Shorter from Fort Dix. She completed her sentence in 2019 and was released from custody.

After exhausting administrative remedies, Shorter filed this pro se lawsuit alleging, among other claims, that prison officials (collectively, "Defendants") were deliberately indifferent to the risk she would be seriously harmed in violation of the Eighth Amendment. The District Court screened her complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), which provide that courts shall dismiss cases filed by prisoners proceeding in forma pauperis that fail to state a claim on which relief can be granted. The Court concluded Shorter had not stated an Eighth Amendment claim because she merely expressed "generalized fears of being at risk of sexual assault[,] .... but there were no specific threats against her that required the defendants to take measures to protect her." J.A. at 10. The Court therefore dismissed her claim sua sponte before defendants were served.³ Shorter filed a pro se appeal and later obtained legal counsel.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. "Our review of the District Court's sua sponte dismissal for failure to state a claim, ... like that for dismissal under [Federal Rule of Civil Procedure] 12(b)(6), is plenary." Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000). We accept the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Warren Gen. Hosp. v. Amgen Inc. , 643 F.3d 77, 84 (3d Cir. 2011). And because Shorter's complaint was filed pro se , we construe it liberally and hold it to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks and citation omitted).

III. Analysis

We analyze the viability of Shorter's complaint in two steps. First, we consider whether a Bivens remedy exists at all in the context of deliberate indifference to prison rape. Concluding that it does, we next consider whether Shorter's complaint, in particular, was sufficiently pled to survive dismissal at this early stage. See Bistrian v. Levi , 912 F.3d 79, 88 (3d Cir. 2018) (" Bistrian II ") ("Whether a Bivens claim exists in a particular context is antecedent to the other questions presented.") (internal quotation marks and citation omitted).

A. Availability of a Bivens Remedy in This Context

" Bivens is the short-hand name given to causes of action against federal officials for alleged constitutional violations." Id. In the case giving the doctrine its name, the Supreme Court held there is a cause of action for damages when a federal agent, acting under color of his authority, conducts an unreasonable search and seizure in violation of the Fourth Amendment. Bivens , 403 U.S. at 389, 397, 91 S.Ct. 1999. The Supreme Court subsequently recognized a Bivens remedy in two other contexts: gender discrimination in the employment context in...