Jordan Dongarra v. Officer D. Smith

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-2872
_______________
JORDAN DONGARRA,
Appellant
v.
OFFICER D. SMITH; S.I.S. WORKER ON CAMERA;
S.I.S. WORKER ON CAMERA; UNITED STATES OF
AMERICA
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:18-cv-01939)
District Judge: Honorable Jennifer P. Wilson
_______________
Argued: September 29, 2021
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Filed: March 1, 2022)
_______________

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David M. Zionts
Megan A. Crowley [ARGUED]
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, N.W.
Washington, DC 20001
Samuel Weiss
RIGHTS BEHIND BARS
416 Florida Avenue, N.W., Unit 26152
Washington, DC 20001
Counsel for Appellant
Melissa A. Swauger
Navin Jani [ARGUED]
UNITED STATES ATTORNEY’S OFFICE
Middle District of Pennsylvania
228 Walnut Street, P.O Box 11754
Harrisburg, PA 17108
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Judges are not superheroes. In the comics, caped crusaders
right every wrong. But in real life, robed jurists cannot. A
prison officer wrongly branded Jordan Dongarra a sex
offender, putting him at risk of assault. But that risk never ma-
terialized. We cannot award damages to compensate him for
an assault that never happened. And by the time he sued, the

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prison had corrected the error, so he cannot get an injunction
either. Thus, even though the officer violated Dongarra’s
rights, he has no remedy. We will affirm the District Court’s
dismissal.
I. BACKGROUND
On this appeal from a motion to dismiss, we take the com-
plaint’s factual allegations as true. Dongarra robbed a bank,
pleaded guilty, and went to prison. United States v. Dongarra,
2018 WL 1933409, at *1 (N.D. Ohio Apr. 24, 2018). In 2018,
he was transferred to a new prison in Pennsylvania.
When he got there, he went through the prison’s onboard-
ing process, supervised by Officer Smith. As part of that pro-
cess, Smith gave him an ID card and a T-shirt. Both mislabeled
him a sex offender. The ID card bore the code “ROF,” an ac-
ronym for “Registered Offender.” App. 38. The shirt differed
from those of other prisoners and was “know[n]” to be a “sex
offender T-shirt.” App. 39. What is more, the shirt falsely sug-
gested that he had been imprisoned at Terre Haute, Indiana, “a
sex offender prison.” App. 32.
Dongarra protested. He denied being a sex offender and
noted that he “could be killed” if prisoners mistook him for
one. Id. So he asked for a new ID card and T-shirt. But Smith
refused. Smiling, Smith said he did not care and that he
“hope[d] [Dongarra] kn[e]w how to fight … and use a knife.”
App. 33. Dongarra appealed to other staff, who asked Smith
for another T-shirt. But again Smith refused.
Branded by his ID and T-shirt, Dongarra had to explain the
situation to other prisoners. He was so scared of them that he

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skipped all his meals, “starved [him]self,” and shed lots of
weight. App. 33. He even stopped going out for recreation. All
this made him feeble and unfocused. In short, he suffered
“enormous amount[s] of pain physically, and mentally.” Id.
Next, Dongarra filed a prison grievance. Though he never
got a response, a few weeks later the prison finally replaced his
ID card and T-shirt.
Dongarra then sued Smith and two unnamed officers, seek-
ing damages and an injunction. He argued that the Constitution
provides a damages remedy for his suffering, relying on Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 397 (1971). But the District Court dismissed. It
barred damages, reasoning that no court had extended Bivens
to cover similar facts. And it denied injunctive relief because
Dongarra had not sued anyone who could fire or discipline
Smith.
Now Dongarra appeals. He does not challenge the denial of
an injunction. But he insists that he can sue for damages. He
argues that his case fits within settled Bivens law. And even if
it does not, he urges us to extend Bivens to cover his claim. But
his arguments fail. Dongarra’s case is meaningfully different
from accepted Bivens cases. And “special factors” bar extend-
ing Bivens here. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)
(quoting Carlson v. Green, 446 U.S. 14, 18 (1980)).
We review the District Court’s dismissal de novo. Newman
v. Beard, 617 F.3d 775, 779 (3d Cir. 2010). The District Court
had jurisdiction under 28 U.S.C. § 1331 and we have jurisdic-
tion under § 1291.

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II. DONGARRA ALLEGES TWO DISTINCT
EIGHTH AMENDMENT CLAIMS
To get damages, Dongarra must clear two hurdles. First, he
must show that the prison violated his Eighth Amendment
rights. Second, he must show that Bivens lets him sue for dam-
ages.
All too often, courts skip straight to step two, without first
considering whether the government violated the Constitution.
Though this approach is permissible, it has its downsides. Cf.
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (letting courts
consider another two-step analysis—qualified immunity—in
either order).
For one, it skips a logical step: there is no need to consider
a remedy unless the plaintiff has established an injury. Plus,
when a judge recognizes a victim’s injury, that recognition
may have symbolic value for the victim, even if he gets no
compensation.
Jumping ahead also stunts the development of constitu-
tional law. Courts spend less time clarifying the scope of our
rights. And that makes it harder for plaintiffs to defeat qualified
immunity by showing that a right is “clearly established.” See
Carroll v. Carman, 574 U.S. 13, 16 (2014) (per curiam).
Although plaintiffs need not find a case directly on point, they
must cite “existing precedent” that puts “the … question be-
yond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
But they cannot do that if courts do not analyze the Constitu-
tion.

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This case illustrates the problem. Dongarra alleges that be-
ing mislabeled a sex-offender increased his risk of assault, sub-
jecting him to cruel and unusual punishment. But the Third Cir-
cuit has no precedent on point. So he is forced to support his
claim by citing out-of-circuit and nonprecedential opinions.
Reply Br. 23–24. This lack of precedent makes it harder for
him to clearly establish the right. We refuse to contribute to
this problem. So we turn to Dongarra and his constitutional
claims.
The Eighth Amendment bans “cruel and unusual punish-
ments .” When we parse his complaint, we see that Dongarra is
alleging two distinct Eighth Amendment wrongs. First, he
challenges the conditions of his confinement: living in prison
while branded a sex offender, he says, made him anxious and
stressed. Second, he challenges the prison’s failure to protect
him. Smith, he argues, was deliberately indifferent to the risk
that other prisoners would assault a supposed sex offender.
Each claim fails, but for different reasons. The conditions-
of-confinement claim fails because dubbing him a sex offender
did not deprive him of a basic human need. So he does not al-
lege a constitutional violation (step one). The failure-to-protect
claim does allege a constitutional violation, but it still falls
short because the Supreme Court has never recognized a dam-
ages remedy for an assault that never happened. So he has no
Bivens claim (step two).

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III. DONGARRA’S CONDITIONS OF CONFINEMENT
WERE CONSTITUTIONAL
Under the Eighth Amendment, prisoners must have “the
minimal civilized measure of life’s necessities.” Rhodes v.
Chapman, 452 U.S. 337, 347 (1981). That right covers only
“basic human needs,” like food, sanitation, and medical care.
Id. at 347–48.
Forcing Dongarra to live with a sex-offender T-shirt and ID
card did not fall beneath this standard. “While we do not doubt
[that] being labeled a sex offender caused [him] stress and anx-
iety, dubbing him a sex offender,” without more, “does not
constitute a deprivation of any basic human need.” Renchenski
v. Williams, 622 F.3d 315, 338 (3d Cir. 2010). Because the con-
ditions of Dongarra’s confinement were constitutional, we
need not decide if he can sue for damages.
IV. SMITH’S FAILURE TO PROTECT WAS UNCONSTITU-
TIONAL, BUT DONGARRA CANNOT RECOVER DAMAGES
FOR AN ASSAULT THAT NEVER HAPPENED
Dongarra’s second constitutional claim alleges that Smith
failed to protect him from other prisoners. Smith knew that
prisoners might harm Dongarra if they thought he was a sex
offender. Yet he ignored that risk when he gave Dongarra a
T-shirt and ID that implied he was. Though Dongarra states an
Eighth Amendment violation, he lacks a remedy. No one as-
saulted him, so he cannot recover damages. And the prison has
already replaced his ID and T-shirt, so it is too late to grant
injunctive relief. Thus, we will affirm the District Court’s dis-
missal of this claim too.

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A. Smith violated the Eighth Amendment by failing to
protect Dongarra
Prison officials violate the Eighth Amendment when they
act with “deliberate indifference to a substantial risk of serious
harm to” a prisoner. Farmer v. Brennan, 511 U.S. 825, 828–29
(1994) (internal quotation marks omitted). The prisoner must
show both that a prison officer ignored an objectively serious
risk and that he was subjectively aware of that risk. Id. at 834,
839–40. Dongarra’s complaint states both elements.
Dongarra faced an objectively serious risk of harm. The
risk to his safety was “very likely to cause … needless suffer-
ing.” Helling v. McKinney, 509 U.S. 25, 33 (1993). If other
prisoners thought he was a sex offender, they might have as-
saulted or even killed him. That is as serious as it gets. “Being
violently assaulted in prison is simply not part of the penalty
that criminal offenders pay for their offenses against society.”
Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347)
(internal quotation marks omitted); see also Shorter v. United
States, 12 F.4th 366, 372−73 (3d Cir. 2021).
Dongarra also pleads that Smith was subjectively aware of
the risk of assault. That is, Smith was both “aware of facts from
which” he could infer the sufficiently serious risk and that he
actually “dr[e]w th[at] inference.” Farmer, 511 U.S. at 837. In-
deed, Dongarra told Smith that he was in danger of “being mis-
taken[ ] for a child molester or … sex offender” and thus
“killed.” App. 32. That plausible fear was enough to warn
Smith of the serious risk Dongarra faced. See Renchenski, 622
F.3d at 326–27 (noting that the sex-offender label “is

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stigmatizing” and can induce attacks on labeled inmates (inter-
nal quotation marks omitted)). It is obvious that branding Don-
garra a sex offender could make him a target of prison violence.
Kedra v. Schroeter, 876 F.3d 424, 442 (3d Cir. 2017) (“[W]e
have regularly relied on the obviousness of risk as a permissi-
ble and highly relevant basis from which to infer actual
knowledge [of risk].”).
Plus, Smith did recognize that serious risk. He allegedly
said he “hop[ed] [Dongarra] kn[e]w how to fight or make[ ] and
use a knife.” App. 33. This comment leaves no doubt that
Smith knew of the real risk of violence.
Once Smith knew that prisoners might target Dongarra, he
had to do more to protect him. Farmer, 511 U.S. at 832–33
(requiring prison officers to “take reasonable measures to guar-
antee [prisoners’] safety” (internal quotation marks omitted)).
But Smith never did. So, if the complaint’s allegations are true,
he violated the Eighth Amendment.
B. Though Smith violated his rights, Dongarra has no
remedy
Rights do not always have remedies. True, Blackstone fa-
mously wrote that “where there is a legal right[,] there is also
a legal remedy.” 3 William Blackstone, Commentaries *23.
Though that maxim is a good principle, it is a poor practical
guide. Often, someone can violate a right without paying full
compensation. For instance, a valid claim can be blocked by
sovereign or qualified immunity. So too here. Dongarra
claimed administrative and injunctive relief, but he cannot get
damages for any past harm.

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1. Administrative relief came; injunctive relief is no longer
needed. When a prison fails to protect a prisoner from a serious
risk of harm, he can claim administrative relief or an injunction
even before he is harmed. “[A] prisoner need not wait until he
is actually assaulted before obtaining relief.” Helling, 509 U.S.
at 34. Prisoners are “entitled to relief under the Eighth Amend-
ment when they prove[ ] threats to [their] safety.” Id. at 33–34.
Dongarra had two avenues for relief. First, the prison’s
grievance process lets prisoners “seek formal review” of offic-
ers’ conduct. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74
(2001) (quoting 28 C.F.R. § 542.10 (2001)). That process
seems to have worked here. True, Dongarra says he never got
a formal response to his grievance. But the prison must have
noted his complaints because, within a few weeks, it replaced
his ID card and shirt. Second, Dongarra could sue for an in-
junction. Federal courts may award prisoners temporary re-
straining orders, preliminary injunctions, and permanent pro-
spective relief. 18 U.S.C. § 3626(a)(1)–(2). If the prison had
not fixed the situation, a court could have stepped in. But the
prison did, so we cannot.
2. Bivens damages are unavailable. Though injunctive re-
lief was available while the prison was actively violating Don-
garra’s rights, he cannot get damages under Bivens for Smith’s
failure to protect him from an attack that never happened.
For most constitutional violations, unless a statute author-
izes relief, damages are unavailable from the federal govern-
ment or its officers. But Dongarra can point to no statute al-
lowing his suit. He correctly notes that the Supreme Court has
authorized suits against the government even without a statute

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on point. But the Court has recognized these implied causes of
actions for constitutional violations in only three contexts:
Bivens; Davis v. Passman, 442 U.S. 228, 248 (1979); and Carl-
son, 446 U.S. at 16 n.1.
To preserve the separation of powers, the Court has “con-
sistently rebuffed” efforts to extend Bivens further. Hernandez
v. Mesa, 140 S. Ct. 735, 743 (2020). That makes sense. The
Constitution entrusts Congress, not the courts, with the power
to create new federal causes of action and remedies.
Reflecting these concerns, the Supreme Court has outlined
a cautious two-step approach to Bivens remedies. First, we ask
whether this case presents a new context—whether it is “dif-
ferent in a meaningful way from previous Bivens cases decided
by [the Supreme] Court.” Ziglar, 137 S. Ct. at 1859. If it is, we
then ask whether “special factors counsel[ ] hesitation” in ex-
tending Bivens. Id. at 1857 (quoting Carlson, 446 U.S. at 18).
This “inquiry must concentrate on whether the [j]udiciary is
well suited, absent congressional action or instruction, to
weigh the costs and benefits of allowing a damages action to
succeed.” Id. at 1857–58. If “we have reason to pause,” we
should not extend Bivens. Hernandez, 140 S. Ct. at 743.
At the first step, this case presents a new context. Although
Bivens damages are available for some deliberate-indifference
claims, this case is meaningfully different. See Ziglar, 137 S.
Ct. at 1859. Carlson extended Bivens to remedy prison offic-
ers’ failure to give medical assistance. 446 U.S. at 16 n.1. But
there, the prisoner died because of the officers’ neglect. Put
differently, the risk that the prison officer ignored (death from
not treating the prisoner’s chronic asthma) in fact resulted. Id.

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But here, Dongarra was not attacked. The potential harm
that Smith allegedly ignored (assault by other prisoners) never
happened. True, it may have been foreseeable that branding
Dongarra a sex offender would cause him emotional and psy-
chological harms. But Dongarra does not claim that Smith was
indifferent to those risks. So this case presents a new context.
Ziglar, 137 S. Ct. at 1859.
As such, we must proceed to the second step of the Ziglar
test. We ask whether there are “special factors counselling hes-
itation.” Id. at 1857. Here, there are two: (1) alternative reme-
dies are available, and (2) the judiciary is poorly suited to bal-
ance the costs and benefits of allowing damages. Id. at 1857–
58. Because these factors give us “reason to pause,” we decline
to extend Bivens. Hernandez, 140 S. Ct. at 743.
First, Dongarra had two avenues for relief: the prison griev-
ance process and a federal injunction. The prison’s grievance
process lets prisoners “seek formal review” of officers’ con-
duct. Corr. Serves Corp. v. Malesko, 534 U.S. 61, 74 (2001)
(quoting 28 C.F.R. § 542.10). It is not only well suited to pre-
venting an assault on Dongarra, but also seems to have worked:
he complained and got a new T-shirt. And even if that process
had failed, he could have asked a court for an injunction order-
ing the prison to fix its mistake.
Second, creating a Bivens remedy would require us to make
rules on when a prison official who is deliberately indifferent
to one risk may be held liable for harms that result from a fore-
seeable yet distinct secondary risk. Dongarra did not allege that
Smith was indifferent to the risk that labeling him a sex of-
fender would lead to panic attacks, starvation, or loss of

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sleep—only the risk of assault by other prisoners. While such
a secondary risk was arguably foreseeable, it remains a step
removed from the prototypical failure-to-protect case. If we
were to extend Bivens here, we would need to make rules on
whether liability attaches for secondary risks when an officer
is alleged to have been indifferent only to a primary risk. For
instance, did Smith’s subjective awareness of the risk that Don-
garra would be assaulted include the risk that Dongarra might
suffer mental anguish or be harmed by his efforts to avoid be-
ing assaulted? It is not obvious how far a prison official’s lia-
bility should extend. If we strike the wrong balance, we could
unleash a torrent of litigation on prisons. And unlike state tort
damages, the availability of a federal constitutional remedy
cannot be undone by the legislature. The stakes are high, and
we are poorly suited to the task. So we must leave that judg-
ment to Congress.
* * * * *
Smith should not have turned a blind eye to the risk that
mislabeling Dongarra a sex offender could cause other prison-
ers to assault him. If he did, he violated Dongarra’s Eighth
Amendment rights. But Dongarra lacks a remedy. The prison
has already issued him a new ID card and T-shirt, so it is too
late for administrative and injunctive relief. And Bivens dam-
ages are unavailable for an assault that never happened. So we
will affirm.

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