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Suit over ‘Whitey’ Bulger’s death dismissed

Where the estate of James “Whitey” Bulger alleged that the United States and prison officials should be held responsible for failing to protect him from an attack by fellow inmates and failing to prevent his transfer to a “violent” facility, the suit was dismissed.


William Bulger, on behalf of the estate of former federal detainee James “Whitey” Bulger, sued the United States and several Federal Bureau of Prisons, or BOP, officials after Bulger was allegedly beaten to death by fellow inmates. The estate alleges that BOP officials violated the Eighth Amendment by failing to protect Bulger from the attack and failing to intervene to prevent Bulger’s transfer to a “violent” facility.

Appellant also sued the United States pursuant to the Federal Tort Claims Act, or FTCA, alleging that prison officials had been negligent in their failure to intervene and protect Bulger. The district court granted motions to dismiss filed by the individual defendants and the United States.


First, a court must determine whether a claim falls within the causes of action authorized under the Supreme Court’s three Bivens cases or whether it “arises in a ‘new context’ or involves a ‘new category of defendants.’” If a court finds that a claim presents a “new context” different from the three Bivens cases, it must “proceed to the second step and ask whether there are any special factors that counsel hesitation about granting the extension” of Bivens.

Appellant contends that its Eighth Amendment failure to protect and intervene claims against BOP officials do not present a new Bivens context because they are sufficiently akin to the Supreme Court’s decisions in Carlson and Farmer. This court disagrees.

Appellant places considerable reliance on the Third Circuit’s decision in Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018), in which the that court held that prisoner-on-prisoner violence and failure to protect claims are not new contexts for Bivens claims. The court finds appellant’s reliance on Bistrian decision unavailing as neither Bivens, Davis nor Carlson involved an official’s alleged failure to intervene and stop an inmate’s transfer to a particular facility or failure to protect an inmate from prisoner-on-prisoner violence.

Appellant contends that even if its claims arise in a new context, there are no special factors counseling against an extension of Bivens here. Again, this court disagrees. First, appellant’s claims would “require scrutiny of new categories of conduct and a new category of defendants — namely, BOP employees involved in transferring inmates and managing the agency’s housing system.”

Second, appellant’s claims “intersect with the statutory scheme delegating authority over prison designation, transfer, and housing decisions to the BOP.” Third, inmates have “an ‘alternative remedial structure’ for protecting a prisoner’s interest in avoiding unwanted housing placements” that allows a prisoner to seek equitable relief for issues related to confinement.

Additionally, allowing appellant’s Bivens claims to proceed would conflict with Congress’s choice “to give the BOP discretion over inmate placement, prohibit courts from reviewing inmate placement, and omit an individual-capacity damages remedy” from the Prison Litigation Reform Act. Finally, a “substantial burden … would be placed on government operations if the [c]ourt were to authorize a new category of prison litigation.”


Under the FTCA, the discretionary function exception bars suit for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” To determine whether the discretionary function exception applies in a particular case, the court first considers whether the conduct at issue “involves an element of judgment or choice,” and, second, whether the conduct at issue “involve[d] the permissible exercise of policy judgment.”

Here, the challenged BOP actions — assessing Bulger’s medical condition, transferring him to Hazelton and placing him within general population — meet both of the requisite prongs. First, there was no federal statute, regulation or policy that “specifically prescribe[d] a course of action” with respect to the challenged conduct.

Second, because decisions concerning “where to place inmates and whether to keep certain individuals … separated” invoke several policy considerations for prison officials, “they are precisely the kind of determinations that the discretionary function exception is intended to protect.” Finally, the district court did not abuse its discretion by denying appellant’s request for leave to conduct discovery in support of its FTCA claim.


Bulger v. Hurwitz, Case No. 22-1106, March 3, 2023. 4th Cir. (Thacker), from NDWVA at Martinsburg (Bailey). Jay T. McCamic for Appellant. Martin V. Totaro for Appellees. VLW 023-2-066. 28 pp.

VLW 023-2-066

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