In Mohamed v. Jones, No. 22-1453, __ F.4th __ (10th Cir. May 7, 2024), the U.S. Court of Appeals for the Tenth Circuit determined that it lacked jurisdiction to consider an interlocutory order concerning whether the Bivens doctrine provided a remedy for excessive force and failure to intervene claims under the Eighth Amendment. Along with the Third and the Sixth Circuits, the Tenth Circuit is the third circuit court to conclude that the collateral order doctrine does not provide for immediate review under similar circumstances.  

The ‘Bivens’ Doctrine

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court recognized an implied private right of action for damages against federal officials who allegedly violated a citizen’s constitutional rights. Bivens held that federal officials may be liable for using excessive force in conducting a warrantless search. Since 1971, the Supreme Court has recognized Bivens claims in two additional contexts. In Davis v. Passman, 442 U.S. 228 (1979), the court allowed a Bivens claim under the Fifth Amendment for gender discrimination against a congressional staffer; in Carlson v. Green, 446 U.S. 14 (1980), the court allowed a prisoner suit alleging inadequate medical care in violation of the Eighth Amendment.