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. This section discusses each of those elements in turn.

If a federal prisoner is not seeking damages, but instead wants to change a prison policy, or stop some other on-going illegal action, the prisoner can file a case in federal court 28 USC 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 or private corporations. This means you must name actual people as the defendants in your lawsuit, not the prison or the BOP.

When it comes to immigration detention, it can sometimes be tricky to determine whether or not someone is acting under federal law, because some immigrants are detained in federal detention centers, some are detained in state or local detention centers, and some are detained in facilities run by private corporations. However, no matter what kind of facility you are detained in, you are in the custody of ICE, a federal agency.

  • If you are in a Bureau of Prisons prison, all of the prison personnel you have contact with are acting under federal law.
  • If you are in a federal detention center, all of the prison personnel you have contact with are acting under federal law for the purpose of Bivens.
  • If you are in a private facility or a state, county, or other local facility that has a contract with ICE to hold immigration detainees, courts have sometimes found the law enforcement personnel to be federal actors under Bivens. In deciding this, the court looks closely at the relationship between the federal government and the individuals who work at the facility. Unfortunately, the Supreme Court has decided that prisoners cannot sue corporations themselves in a Bivens lawsuit. Correctional Services Corp. v. Malesko, 534 U.S. 16 (2001). In the context of a Bivens action, the Courts of Appeals have reached different decisions on whether prisoners or detainees can sue private prison guards. The Fourth, Tenth and Eleventh Circuits have held that prisoners cannot use Bivens to sue private prison guards. Peoples v. CCA, 422 F.3d 1090 (10th Cir. 2005); Holly v. Scott, 434 F.3d 287 (4th Cir. 2006); Alba v. Montford, 517 F.3d 1249, 1254-55 (11th Cir. 2008). But the Ninth Circuit has disagreed with the other courts and decided that employees of private prison corporations can be held liable for violating a prisoners’ constitutional rights. Pollard v. GEO, 607 F.3d 583 (9th Cir. 2010).

If you can’t figure out whether the person you want to sue is a state actor or a federal actor, you can bring your lawsuit under both Bivens and Section 1983, and the Judge will decided which approach is appropriate.

2. Unconstitutional Acts by Federal Officials
In general, the same constitutional standards that apply in section 1983 actions apply in Bivens actions. We explain those constitutional standards Chapter Three. Where there are differences, we have tried to highlight them throughout.

3. Federal Injunctions
You may not always be interested in suing for damages. In some cases, you may just want to try to change a prison policy you believe is unconstitutional. Section 1983 allows these types of claims, called “injunctions” for prisoners in state or local custody. Injunctions are explained in Chapter Four, Section B.

Federal law also allows federal prisoners to bring these types of claims in federal court. 28 USC 1331 states that the federal district courts have the power to hear “all civil actions arising under the Constitution, laws, or treaties of the United States.” The courts have taken this language to mean that federal courts can order federal prisons to stop acting in an unconstitutional way.

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