New opinion — Third Circuit allows Bivens claim for failure to protect prisoner to proceed

Bistrian v. Levi — civil rights — partial affirmance — Jordan

Peter Bistrian was being held in prison awaiting trial for wire fraud and earned the privilege of working outside his cell as an orderly. Another inmate, Steven Northington, asked Bistrian to pass notes from Northington to other prisoners. Northington was being held for a federal capital trial for being a leading member of the violent drug operation headed by Kaboni Savage. [Disclosure: I represent a co-defendant of Northington and Savage in a pending Third Circuit criminal appeal.]  Bistrian, who must be mind-bogglingly brave, told prison guards about Northington’s request and then agreed to pass Northington’s notes to the guards for them to photocopy before Bistrian delivered them. But when one of the prison guards screwed up and gave Bistrian the photocopy instead of the original, Bistrian’s cooperation was discovered, and Bistrian received multiple threats. Even though the guards were aware of these threats, they one day sent Bistrian into the recreation yard with Northington and two others, who commenced to “brutally beat” him, causing him “severe physical and psychological injuries.” What an unfathomable nightmare.

Bistrian sued the guards and the government, asserting Bivens claims for failing to protect him and for retaliating against him for filing inmate grievances. The defendants asserted qualified immunity and the district court granted summary judgment on this basis for some claims but not others. Yesterday, the Third Circuit affirmed in part, holding that Bistrian’s Bivens claims for failure to protect survived summary judgment but that his retaliation claims did not.

The court also refused to find that the defendants had waived their key legal argument by failing to raise it below, explaining that “[t]o rule otherwise would be to allow new causes of action to spring into existence merely through the dereliction of a party,” although I don’t follow how recognizing waiver of a legal argument by a party in one appeal would spring anything into existence.

Joining Jordan were Rendell and the about-to-retire Vanaskie. Arguing counsel were Jeffrey Scott of Archer for the defendants and Richard Bazelon of Bazelon Less for Bistrian.