Rios v. Redding

Divinity Rios is a transgender woman who was housed in a men’s federal prison in Colorado. After Ms. Rios told prison officials she was being threatened with assault by other prisoners, she was briefly placed in protective custody.

Unfortunately, despite Ms. Rios’s desperate pleas to keep her in protective housing, prison officials soon forced her back to the general population, where her fears proved warranted: she was sexually assaulted by another prisoner.

Ms. Rios, representing herself pro se, sued to vindicate her constitutional right under the Eighth Amendment to be protected from serious harm at the hands of other prisoners. If Ms. Rios had been in a state prison, she would have had a clear cause of action against the prison officials for failing to protect her from being raped.

But because she was in a federal prison, the district court dismissed her case because it held that there is no Bivens remedy—which enables individuals to sue the federal government for violating their constitutional rights—for failure to protect cases like Ms. Rios’s.

Our briefing before the U.S. Court of Appeals for the Tenth Circuit explains why a Bivens remedy is available to hold federal prison officials accountable for failing to protect prisoners in their care. We were proud to have the support of three amici curiae in Ms. Rios’s case. One amicus brief, from the Institute for Justice, detailed why allowing a Bivens remedy in these cases is consistent with our nation’s tradition and history, as well with Supreme Court precedent and congressional intent. Another group of amici, represented by the University of Denver Civil Rights Clinic and Lambda Legal, included LGBTQ and anti-sexual violence advocacy groups as well as Dee Farmer, the plaintiff in the landmark Supreme Court case Farmer v. Brennan. A third group of amici consisted of former high-ranking state prison officials, represented by the Harvard Law LGBTQ+ Advocacy Clinic, who reiterated the need to protect particularly vulnerable prisoners like Ms. Rios and the importance of accountability for prison officials who fail to do so.

Sadly, the Tenth Circuit affirmed the dismissal of Ms. Rios’s case. The Court avoided answering the question of the availability of a Bivens remedy, instead holding that Ms. Rios had failed to state a claim on the merits. Despite this disappointing—and, in our view, incorrect—outcome, we were honored to represent Ms. Rios in her fight to hold federal prison officials accountable.