Christopher “chrissy” Shorter v. United States of America

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-2554
____________
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
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-19-cv-16627)
District Judge: Honorable Renee M. Bumb
________________

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Argued on April 22, 2021
Before: AMBRO, RESTREPO, and RENDELL, Circuit
Judges
(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

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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
_______________
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 (1971), claiming officials
violated her Eighth Amendment rights by displaying deliberate
indifference to the substantial risk that another inmate would

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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
1 Because we assume the complaint’s factual allegations are
true at this stage, see Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000),
we describe the facts as Shorter reports them. We take no
position on whether she will be able to prove they are true after
discovery.

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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

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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.
2 The documents attached to Shorter’s complaint suggest at
least some portion of the delay may have been attributable to
amendments she made to her transfer request.

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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.
3 The District Court later dismissed Shorter’s other claims
under the Fifth Amendment and the Federal Tort Claims Act.
She does not press those claims on appeal.

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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
(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).

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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. The Supreme
Court subsequently recognized a Bivens remedy in two other
contexts: gender discrimination in the employment context in
violation of the Fifth Amendment’s Due Process Clause, see
Davis v. Passman, 442 U.S. 228, 249 (1979), and certain types
of prisoner mistreatment in violation of the Eighth
Amendment’s prohibition of cruel and unusual punishment,
see Carlson v. Green, 446 U.S. 14, 16 n.1 (1980) (addressing
a claim of deliberate indifference to a prisoner’s serious
medical needs).
In Farmer v. Brennan, 511 U.S. 825, 830 (1994), the
Supreme Court applied Carlson in recognizing an Eighth
Amendment damages claim nearly identical to the one at issue
here, involving prison officials who failed to keep a
transgender prisoner safe from sexual assault. The Farmer
Court explained that the Eighth Amendment “imposes duties
on [prison] officials, who must provide humane conditions of
confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must
take reasonable measures to guarantee the safety of the
inmates.” Farmer, 511 U.S. at 832 (internal quotation marks
and citation omitted). Accordingly, the Court held “a prison
official can[] be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement [if he or

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she] knows of and disregards an excessive risk to inmate health
or safety.” Id. at 837. This includes liability for displaying
deliberate indifference to a substantial risk that a prisoner will
be attacked by other prisoners, because “[b]eing violently
assaulted in prison is simply not part of the penalty that
criminal offenders pay for their offenses against society.” Id.
at 834 (internal quotation marks and citation omitted).4
In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme
Court summarized the status of Bivens jurisprudence. The
Court emphasized that, although the doctrine is a “settled,”
“fixed principle in the law” in certain spheres, “expanding the
Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at
1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
The Court then prescribed a two-pronged inquiry for courts to
follow in deciding whether to recognize a Bivens remedy.
First, they must evaluate whether a case presents “a
new Bivens context,” meaning that it “is different in a
meaningful way from previous Bivens cases decided by [the
Supreme] Court.” Id. at 1859. The Abbasi Court named three
previous cases in which a Bivens remedy has been recognized:
Bivens itself, in addition to the above-referenced Davis and
4 As we observed in Bistrian II, “[a]lthough the Farmer Court
did not explicitly state that it was recognizing a Bivens claim,
it not only vacated the grant of summary judgment in favor of
the prison officials but also discussed at length ‘deliberate
indifference’ as the legal standard to assess a Bivens claim, the
standard by which all subsequent prisoner safety claims have
been assessed.” Bistrian II, 912 F.3d at 90–91 (citing Farmer,
511 U.S. at 832–49). We therefore concluded that the Farmer
Court had “recognized” a Bivens damages remedy. Id. at 91.

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Carlson. Id. at 1854–55. “[M]eaningful” differences from
those recognized contexts may include
the rank of the officers involved; the constitutional right
at issue; the generality or specificity of the official
action; the extent of judicial guidance as to how an
officer should respond to the problem or emergency to
be confronted; the statutory or other legal mandate
under which the officer was operating; the risk of
disruptive intrusion by the Judiciary into the functioning
of other branches; or the presence of potential special
factors that previous Bivens cases did not consider.
Id. at 1860. If a case does not present a new Bivens context,
the inquiry ends there, and a Bivens remedy is available.
Bistrian II, 912 F.3d at 91–92. If, however, the case does
present a new Bivens context, a court proceeds to the second
step of the analysis and asks whether any “special factors
counsel[] hesitation” in extending a Bivens remedy to that
context. Abbasi, 137 S. Ct. at 1857–58 (internal quotation
marks and citation omitted).
Defendants assert this case presents a new Bivens
context and that special factors counsel hesitation before
allowing a Bivens remedy here. Our Court’s precedent in
Bistrian II covers this argument. 912 F.3d at 89–94. In that
case, we considered a Bivens claim from a prisoner who was
beaten by fellow inmates after they learned he was cooperating
with a prison surveillance operation. Like Shorter, Bistrian
claimed prison officials had failed “to protect him from a
substantial risk of serious injury at the hands of other inmates.”
Id. at 88. There, as here, the defendants contended Bistrian’s
claim presented a new Bivens context. We disagreed,

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reiterating that under our case law and the Supreme Court’s
longstanding precedent in Farmer, a federal prisoner “ha[s] a
clearly established constitutional right to have prison officials
protect him from inmate violence” and has a damages remedy
when officials violate that right. Id. at 90 (internal quotation
marks omitted) (alteration in original).
Because Bistrian’s claim was not meaningfully
different from the claim at issue in Farmer, we concluded the
latter case “practically dictate[d] our ruling” in the former. Id.
at 91. So too here.5 Farmer made clear, in circumstances
virtually indistinguishable from our case, that an Eighth
Amendment Bivens remedy is available to a transgender
prisoner who has been assaulted by a fellow inmate. As
5 After Abbasi, “lower courts c[an] no longer rely on their own
prior precedents to recognize a Bivens remedy.” Mack v. Yost,
968 F.3d 311, 319 (3d Cir. 2020) (citing Bistrian II, 912 F.3d
at 95). “Unless the Supreme Court has recognized the context
before, the context is ‘new.’” Id. Our holding today does not
run afoul of this precedent. We do not rely on Bistrian II to
recognize a Bivens context the Supreme Court has not
recognized. Instead, we rely on it solely for its holding that
Farmer, which supplies the relevant Bivens context for our
case, remains good law. And Bistrian II was undisturbed by
the Supreme Court’s subsequent decision in Hernandez v.
Mesa, 140 S. Ct. 735 (2020), where the Court again referenced
only Bivens, Davis, and Carlson as the cases in which a Bivens
remedy has been recognized. Hernandez, 140 S. Ct. at 741–
43. However, the reasoning in Bistrian II—that the Supreme
Court in Abbasi neglected to name Farmer because it saw that
case as falling under the umbrella of Carlson—applies equally
to Hernandez. See Bistrian II, 912 F.3d at 91.

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Shorter points out, her case and Farmer’s both involved (1)
transitioning transgender women on estrogen who had
developed female physical characteristics, (2) who were
housed in allegedly unsafe cells in the general population of
all-male prisons where assaults were frequent, (3) who were
physically and sexually assaulted by fellow inmates, even after
(4) prison officials admitted “a high probability” that they
“could not safely function” in the prison due to their
transgender status, and (5) who alleged that prison officials had
therefore been deliberately indifferent to their safety.6 Farmer,
511 U.S. at 830–31, 848; Shorter Br. at 3–10. Defendants have
pointed to no meaningful differences between the two cases.7
And as we held in Bistrian II, Farmer remains good law. Our
case therefore does not present a new Bivens context.
B. Sufficiency of Shorter’s Pleading
Defendants argue that even if a Bivens remedy is
theoretically available in Shorter’s case, it was nonetheless
appropriate for the District Court to dismiss her complaint sua
sponte at the screening stage under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b) because she failed to plead a claim under the
Eighth Amendment. We disagree.
6 We do not suggest that this degree of factual similarity is
required to conclude a case does not present a new Bivens
context. But the extent of the factual overlap between
Shorter’s case and Farmer is indeed remarkable.
7 Defendants cite the PREA as a potential distinguishing
factor, but that statute, which cites Farmer favorably in its
preamble, see 34 U.S.C. § 30301(13), does not make this a
new Bivens context.

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“At this early stage of the litigation,” “[w]e accept the
facts alleged in [Shorter’s pro se] complaint as true,” “draw[]
all reasonable inferences in [her] favor,” and “ask only whether
[that] complaint, liberally construed, . . . contains facts
sufficient to state a plausible Eighth Amendment claim.”
Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015).
While it is proper for district courts to dismiss facially
inadequate complaints sua sponte under 28 U.S.C.
§§ 1915A(b) and 1915(e)(2)(B), premature dismissal under
those statutes “deprives us of the benefit of defendant’s
answering papers” and may result in the “wasteful . . . shuttling
of the lawsuit between the district court and appellate courts.”
Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (internal
quotation marks and citation omitted).
It was premature to dismiss Shorter’s complaint at the
screening stage. Construing her complaint liberally, accepting
her factual allegations as true, and drawing all reasonable
inferences in her favor, as we must, Shorter has stated an
Eighth Amendment deliberate indifference claim. That type of
claim has three components: “an inmate must plead facts that
show (1) [s]he was incarcerated under conditions posing a
substantial risk of serious harm, (2) the official was
deliberately indifferent to that substantial risk to h[er] health
and safety, and (3) the official’s deliberate indifference caused
h[er] harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012)
(“Bistrian I”). Neither the District Court nor Defendants argue
that Shorter failed to satisfy the first and third prongs; being
sexually assaulted and stabbed indisputably pose a substantial
risk of serious harm, and Shorter has alleged she was indeed
harmed when she was assaulted.

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Accordingly, only the second prong—whether the
Defendants demonstrated “deliberate indifference to
[Shorter’s] health or safety”—is at issue. Farmer, 511 U.S. at
834 (internal quotation marks omitted). “Deliberate
indifference” is evaluated under a subjective standard; “the
prison official-defendant must actually have known or been
aware of the excessive risk to inmate safety” and disregarded
that risk. Beers-Capitol v. Whetzel, 256 F.3d 120, 125, 132 (3d
Cir. 2001). “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that
the risk was obvious.” Farmer, 511 U.S. at 842 (internal
citation omitted).
Shorter has adequately alleged that the Defendants were
deliberately indifferent to the substantial risk she would be
sexually assaulted. First, her complaint alleges that she
repeatedly told prison officials about the risks she faced at Fort
Dix, campaigned to transfer facilities due to the unique threats
posed by the layout and inmate population at Fort Dix coupled
with her transgender status, and supplemented her grievances
with specific references to supporting BOP policies. It is
difficult to imagine what more an unrepresented inmate could
do to make prison officials aware of her risk of sexual assault.
The District Court faulted Shorter for making “generalized”
complaints that did not memorialize any particular threats of
sexual assault by a specific inmate. J.A. at 10. But construed
in the light most favorable to Shorter, the complaint plausibly
alleges her grievances were not “generalized”; she gave many
specific reasons why she was at high risk for becoming a sexual
assault victim. Further, a prisoner’s “failure to give advance

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notice [of the risk to her safety] is not dispositive,” and a prison
official may not “escape liability for deliberate indifference by
showing that, while he was aware of an obvious, substantial
risk to inmate safety, he did not know that the complainant was
especially likely to be assaulted by the specific prisoner who
eventually committed the assault.” Farmer, 511 U.S. at 843,
848.
Moreover, Shorter also alleged that the Defendants
explicitly acknowledged her risk of sexual assault. Prison
officials evaluated that risk when she first entered Fort Dix, and
they concluded she was at “significantly” higher risk than other
inmates due to a variety of particular factors that included her
transgender status. J.A. at 69, 137–38. Officials later
recognized that she needed to be transferred to a different
facility 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. And in the days leading up to the
attack on Shorter, prison officials posted notices throughout the
prison warning about an increase in assaults. Yet Shorter
alleges the prison did little to mitigate these concerns, keeping
her in a dangerous cell far from the officers’ station and even
going so far as to place a known sex offender as her cellmate.8
To be sure, Shorter’s claim may yet fail if the
Defendants acted reasonably in response to the risk to her
safety. See Farmer, 511 U.S. at 844 (“[P]rison officials who
8 In holding otherwise, the District Court relied primarily on
distinguishable, non-precedential, or out-of-circuit cases, most
of which were decided much later in the litigation process at
the summary judgment stage. See J.A. at 7–10.

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actually knew of a substantial risk to inmate health or safety
may be found free from liability if they responded reasonably
to the risk, even if the harm ultimately was not averted.”). We
express no opinion on that fact-intensive question. But Shorter
has provided sufficient allegations of the Defendants’
deliberate indifference to proceed to the next stage in the
litigation.9 Cf. Hamilton v. Leavy, 117 F.3d 742, 748 (3d Cir.
1997) (concluding that it was inappropriate to decide the
reasonableness of the defendants’ actions even at the summary
judgment stage because there were genuine disputes of
material fact). Dismissing Shorter’s Eighth Amendment claim
at the screening stage—before discovery and before Shorter
even had the chance to serve process—requires a remand.
* * * * *
Extending a Bivens remedy to a new context is a
disfavored judicial activity. But Shorter’s case does not
require any extension of Bivens. Instead, her claim falls
squarely within one of the Bivens contexts long recognized by
the Supreme Court as discussed explicitly in our precedent.
And Shorter’s pro se complaint, liberally construed, has
plausibly alleged a violation of the Eighth Amendment. We
9 Defendants also argue we should affirm the dismissal of the
complaint on qualified immunity grounds, an issue the District
Court never reached. It is not obvious from the face of the
complaint that qualified immunity applies, and we decline to
reach this affirmative defense in the first instance. See Plains
All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 545 (3d Cir. 2017)
(“Generally, in the absence of exceptional circumstances, we
decline to consider an issue not passed upon below.”) (internal
quotation marks, citation, and alteration omitted).

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therefore reverse the dismissal of the Eighth Amendment claim
and remand.

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