Joseph Jones, Jr. died on August 15, 1975.
At the time of his death, Mr. Jones was incarcerated in a federal prison.
A month before he died, Mr. Jones spent eight days in a hospital with asthma complications and was discharged with treatment recommendations.
The prison staff did not follow these recommendations, and Mr. Jones suffered an asthma attack.
The prison staff admitted him to the infirmary but left him untreated for eight hours.
His condition deteriorated.
The prison staff then attempted to use a respirator—known to be broken—to assist with his breathing.
Mr. Jones informed them that the respirator was making it more difficult for him to breathe.
The prison staff then injected him with the wrong medication, twice.
After receiving his second injection, Mr. Jones experienced respiratory arrest.
The prison staff retrieved a machine that could be used to restart his breathing—though not by them; the officers present did not know how to use it.
They transferred Mr. Jones to an outside hospital.
He died before he arrived.
After Mr. Jones’s death, his mother, Marie Green, sued the prison staff for the unconstitutional mistreatment of her son.
She claimed that their behavior violated the Eighth Amendment and that they should be liable for damages under the theory of constitutional torts articulated in Bivens v. Six Unknown Named Agents.
The district and circuit courts recognized her Bivens claim but disagreed over the applicability of state law.
For this reason, the case made its way up to the Supreme Court.
The Supreme Court recognized Ms. Green’s Bivens claim.
The true import of this decision became evident years later, when the Court mandated that Bivens claims previously recognized by the Supreme Court could move forward but labeled extending the claims into new contexts “a ‘disfavored’ judicial activity.”
By recognizing Ms. Green’s claim, the Court in Carlson v. Green opened the door to Eighth Amendment medical-care claims brought by people confined in federal prisons, and, in Ziglar v. Abbasi,
the Court kept the door open—even as it suggested preventing most other claims brought by most other people.
One group that may not be able to bring Bivens claims post-Ziglar is people who suffer harm while detained pretrial. Unlike people incarcerated postconviction, like Mr. Jones, people detained pretrial bring their medical-care claims under the Fifth Amendment.
Courts therefore may find that these claims arise in a new context even if they are otherwise identical to the claims brought by Ms. Green on behalf of her son.
People detained pretrial and people incarcerated postconviction can reside in the same facility and receive mistreatment from the same correctional officer.
Yet, as the law currently stands, a person detained pretrial in a federal detention facility may have fewer rights than a person incarcerated after having been adjudged guilty of committing a crime.
This situation not only is at odds with basic notions of logic and fairness but also conflicts with doctrine mandating that people detained pretrial have rights that are at least as great as the rights of people incarcerated postconviction.
This Note argues that courts should allow people detained pretrial to bring Bivens suits when corrections officers violate the Fifth Amendment by providing constitutionally inadequate medical care. Part I discusses how the Court extended Bivens to cover a postconviction incarcerated person’s Eighth Amendment medical-care claim in Carlson v. Green
before continually limiting its applicability for reasons articulated in Ziglar v. Abbasi.
Part I also tracks the development of Fourteenth Amendment medical-care claims brought by people detained pretrial in state facilities under 42 U.S.C. § 1983
and introduces the doctrinal conflict created by Ziglar. Then, Part II discusses how courts post-Ziglar typically perpetuate this conflict and explains why courts’ deference to congressional action for these specific claims is unwarranted. Finally, Part III proposes that courts recognize the existence of special factors counselling action that should lead them to resolve this logical and doctrinal incongruity by allowing Fifth Amendment medical-care claims.