Mack v. Yost, No. 18-3504 (3d Cir. 2020)
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Mack, a practicing Muslim, was an inmate at the Federal Correctional Institution in Loretto, Pennsylvania, and worked for pay at the prison’s commissary. Mack alleges that he was harassed, based on his religion, by correctional officers Roberts and Venslosky, who supervised the inmates working in the commissary. Mack alleges that he raised these issues with their supervisor, Stephens; that upon overhearing Mack’s oral complaint to Stephens, Roberts told Mack, “[y]ou are not going to be here long”; and that Venslosky fired Mack less than two weeks later. The district court denied the government’s motion for summary judgment on Mack’s First Amendment retaliation claim.
The Third Circuit reversed. The court noted that no statute provides a damages remedy for constitutional claims brought against federal officials. Although the Supreme Court recognized an implied damages action for such claims under the Fourth Amendment in 1971 (Bivens), the Court has since recognized an implied damages remedy in only two other instances. In 2017, the Supreme Court cautioned against creating additional implied damages remedies and explicitly declared expansion of Bivens a “disfavored judicial activity.” The Third Circuit declined to expand Bivens to create a damages remedy for Mack’s First Amendment retaliation claim.
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