Tony Fisher v. Jordan Hollingsworth

                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 22-2846
                   ___________

       TONY FISHER, a/k/a Kellie Rehanna,
                                     Appellant

                         v.

WARDEN JORDAN HOLLINGSWORTH; WARDEN
DOE; UNIT DOE, Unit Manager, MS. FISCHER; MR.
WILLIAMS; N. WATKINS WARD; ANNA MORFE;
 STACIE D. MARANTZ-TATTERSDI; FEDERAL
           BUREAU OF PRISONS
               ____________

   On Appeal from the United States District Court
             for the District of New Jersey
               (D.C. No. 1-18-cv-16793)
    District Judge: Honorable Karen M. Williams
                     ____________

            Argued on February 8, 2024

Before: HARDIMAN, SCIRICA, and RENDELL, Circuit
                   Judges.

              (Filed: August 15, 2024)
Gregory Cui
Devi M. Rao
Roderick & Solange MacArthur Justice Center
501 H Street NE
Suite 275
Washington, DC 20002

Elena S. Meth [Argued]
Roderick & Solange MacArthur Justice Center
Supreme Court and Appellate Program
160 E Grand Avenue
6th Floor
Chicago, IL 60611
       Counsel for Appellant

Christina S. Paek
Lambda Legal
800 S Figueroa Street
Suite 1260
Los Angeles, CA 90017

Richard Saenz
Lambda Legal
120 Wall Street
19th Floor
New York, NY 10005
       Counsel for Amici Curiae Lamda Legal Defense &
Education Fund, Inc., Black and Pink National, Center for
Constitutional Rights, and Just Detention International in
Support of Appellant




                               2
Jessica R. Amunson
Elizabeth B. Deutsch
Jenner & Block
1099 New York Avenue NW
Suite 900
Washington, DC 20001
       Counsel for Amicus Curiae New Jersey Coalition
Against Sexual Assault in Support of Appellant

Philip R. Sellinger
Angela Juneau [Argued]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

J. Andrew Ruymann
Office of United States Attorney
402 E State Street
Suite 430
Trenton, NJ 08608
       Counsel for Appellee




                              3
                         ____________

                  OPINION OF THE COURT
                       ____________


HARDIMAN, Circuit Judge.

       This appeal involves an inmate seeking to recover
damages from federal prison officials because of sexual
assaults committed by another inmate. Consistent with the
Supreme Court’s opinion in Egbert v. Boule, 

(2022), we hold that no federal constitutional claim lies to
redress such injury. And even if it did, the complaint filed in
this case was untimely. For these reasons, we will affirm the
District Court’s order dismissing the suit.

                                 I

                                A

      Plaintiff-Appellant Tony Fisher 1 entered federal prison
in summer 2013 after pleading guilty to charges of producing
child pornography and enticing a minor for child

1
  As the District Court noted, “Plaintiff is a biological male
who now identifies as transgender.” Fisher v. Worth, 

, at *1 (D.N.J. Aug. 18, 2022). “At the time of the
events that give rise to this matter, Plaintiff did not identify as
transgender.” 

 Plaintiff signed the pro se complaint and the
notice of appeal as “Tony Fisher.” But Plaintiff now also goes
by “Kellie Rehanna.” Consistent with the prison records,
complaint, notice of appeal, and caption, we refer to Plaintiff
as Fisher.




                                4
pornography. 2 After an initial interview, the Bureau of Prisons
(BOP) did not identify Fisher as at risk for sexual assault.

       In July 2013, Fisher was transported to Fort Dix, a
federal prison in New Jersey. There Fisher reported having
been sexually assaulted at age 13, but that was Fisher’s only
listed risk factor for sexual assault. A week after arriving,
Fisher complained to the unit counselor about being verbally
harassed and catcalled by other prisoners—especially by a
prisoner known only as “C.” Fisher then met with the prison’s
staff psychologist, Dr. Anna Morfe. Morfe found that Fisher
had five risk factors for sexual assault: status as victim of
sexual assault, fear of the general prison population, sexual
orientation, status as a first-time prisoner, and criminal history
of sex offenses. Yet Morfe wrote: “Based upon a discussion
with the Inmate, he shows no indications that would require his
‘at risk’ level to be raised significantly above any other
inmate’s.” 3

      Within days of this meeting, the inmate known as “C”
raped Fisher. Three times over the course of three days, “C”
performed unwanted sex acts on Fisher and forced Fisher to
perform sex acts on him.

        Prison staff learned about the rapes a week and a half
later, when they overheard Fisher discussing them on a phone

2
  See 

(a); 

 § 2422(b). At this stage of the
proceedings, we accept as true the facts pleaded in the
complaint. See Ashcroft v. Iqbal, 

 (2009). We
also consider exhibits attached to the complaint and matters of
public record. See Mayer v. Belichick, 

 (3d
Cir. 2010).
3
 

.




                                5
call. The prison promptly intervened. Dr. Morfe re-evaluated
Fisher, this time concluding that Fisher was at risk of assault.
So Fisher was moved to a segregated housing unit.

        While in the Fort Dix prison’s segregated housing unit
that summer, Fisher was taken to speak with Captain Janet
Fitzgerald. According to Fisher’s declaration, Fitzgerald
warned Fisher “never [to] talk about the rapes” because “C”
could find Fisher through the BOP database even after Fisher’s
transfer to another prison, and prison staff would not protect a
snitch. 4 Fitzgerald likewise instructed that Fisher “must wait
until the BOP conducted an internal investigation” and the
agency’s attorneys reached out, rather than contacting an
attorney about the rapes. 5 As Fisher’s declaration explains:

         77. Capt. Fitzgerald said I should not “cause
         problems” for the BOP or they would make
         problems for me, including by keeping me from
         getting help from attorneys on the outside, and
         through “diesel therapy”—which she explained
         meant shipping an inmate from prison to prison
         until the inmate stopped complaining.

         78. Captain Fitzgerald’s words literally
         frightened me for my life to take any legal action,
         because I genuinely feared “C” would hunt me
         down wherever I was.

         79. I believed Captain Fitzgerald completely that
         I needed to just let the BOP handle all legal
         aspects and that I should wait until the BOP and

4
  

.
5
    

                                 6
       FBI finished their investigation. I did not know
       enough about how the legal system or the prison
       hierarchy work to doubt her. 6

       After the assaults of summer 2013, Fisher underwent a
psychological evaluation at Fort Dix. According to the
psychological report, Fisher “denied the presence of any
current mental health complaints and declined the use of
psychology services at this time.” 7

       In September 2013, the BOP transferred Fisher from
Fort Dix to a federal prison in Arkansas. Fisher underwent a
psychological evaluation there in early 2014. According to the
psychologist, “Fisher stated he is currently feeling ‘good’ and
that he is prescribed [three different drugs] to alleviate mental
health symptoms.” 8 Fisher’s “[m]ental status was [Within
Normal Limits].” 9 But in December 2014, the mental health
report was mixed. Fisher “struggl[ed] with an increase in
anxiety,” experienced “loss of appetite,” and “presented as
fatigued.” 10 At the same time, Fisher “appeared alert and
oriented,” demonstrated “no behavioral abnormalities,” and
had “organized, coherent, and goal-directed” thought
processes. 11

       While seeking psychological records in 2017, Fisher
learned that the BOP had substantiated the rape allegations.
Fisher immediately filed a request for administrative remedies

6
  

7
  Supp. App. 57.
8
  Supp. App. 58.
9
  

10
   Supp. App. 59.
11
   

                               7
in connection with the rapes, seeking $20 million in
compensatory damages and $20 million in punitive damages
from the BOP. Later that month, the Fort Dix Warden denied
the request. And on appeal, the BOP clarified that “the
Administrative Remedy Program does not ordinarily provide
for monetary relief.” 12

       By fall 2018, Fisher’s mental health had worsened.
Fisher wrote in an email to a prison psychologist:

       [A]ll of my PTSD symptoms have been quite
       severe for quite a while as you know, I know that
       it’s not my fault, but they’re getting worse. I try
       to cope, calm myself, etc…, but nothing helps.
       The flashbacks, debilitating stress, etc. I relive
       the rapes daily. I’m no better now than years
       ago. 13

                               B

        In late 2018—more than five years after the 2013
assaults—Fisher filed this suit under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics. 14 The operative
complaint named eight federal prison officials as defendants in
their individual capacities. Fisher claimed Defendants violated
the Eighth Amendment’s prohibition on “cruel and unusual
punishments” through their deliberate indifference to the risk
of inmate-on-inmate sexual assault. Fisher sought $10 million



12
   Supp. App. 288.
13
   Supp. App. 63.
14
   

 (1971).




                               8
in compensatory damages and $10 million in punitive damages
for each rape.

       Defendants moved to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. They argued: (1) Fisher’s
suit was time-barred; and (2) Fisher had no Bivens cause of
action at all.

       The District Court granted Defendants’ motion and
dismissed Fisher’s operative complaint. Applying New
Jersey’s two-year statute of limitations for personal injury
actions, the Court concluded that Fisher’s Bivens suit was time-
barred. 15 Fisher filed this timely appeal. 16

                                II

       Although the District Court did not address whether
Fisher’s complaint was cognizable under Bivens, that issue
logically precedes the timeliness question. So we first ask
whether Fisher pleaded a cognizable Bivens claim. The answer
is no.

                                A

        In 1871, Congress enacted 

, which
created a private cause of action to redress violations of federal
rights committed by state actors. But Congress has yet to create
a similar cause of action to vindicate violations of federal rights

15
   See Fisher, 

, at *4–5.
16
   The District Court had jurisdiction under 

.
We have jurisdiction under 

. We review de
novo the District Court’s order of dismissal. Ocean Cnty. Bd.
of Comm’rs v. Att’y Gen., 

, 180 (3d Cir. 2021).




                                9
by federal officers. In its 1971 Bivens decision, 17 the Supreme
Court implied a cause of action against federal drug agents
whose warrantless search of a home violated the Fourth
Amendment. The Court extended Bivens eight years later in
Davis v. Passman, 18 which created a Fifth Amendment
damages action against a Congressman who fired a staffer
because she was a woman. 19 A year later, Bivens was extended
again in Carlson v. Green, 20 which implied an Eighth
Amendment damages action against federal prison officials
who failed to provide medical care to an asthmatic prisoner. 21
“Since these cases, the Court has not implied additional causes
of action under the Constitution.” 22

       With the new millennium, the Supreme Court took a
new approach to implied causes of action. The Court noted that
“private rights of action to enforce federal law must be created
by Congress.” 23 And failing that, “a cause of action does not
exist and courts may not create one, no matter how desirable
that might be as a policy matter.” 24 Consistent with that
approach, the Court’s 2017 decision in Ziglar v. Abbasi 25
established a restrictive test for extending Bivens. The Ziglar



17
   Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 

 (1971).
18
   

 (1979).
19
   See 

 at 229–34.
20
   

 (1980).
21
   See 

 at 16–18, 16 n.1.
22
   Egbert, 

.
23
   Alexander v. Sandoval, 

 (2001).
24
   

 at 286–87.
25
   

 (2017).




                              10
test first asked if the case presented a new Bivens context. 26 “If
the case is different in a meaningful way from previous Bivens
cases decided by this Court, then the context is new.” 27 If the
context was new, a court then asked whether any “special
factors” showed that Congress, rather than the courts, should
decide whether to extend Bivens. 28 This test counseled against
extending Bivens, since “expanding the Bivens remedy [wa]s
now a disfavored judicial activity.” 29

       Yet even under the Ziglar test, the Third Circuit
extended Bivens. In Bistrian v. Levi, 30 we held that a federal
prisoner stated a “cognizable Bivens cause of action for the
alleged failure of the defendants to protect him from a
substantial risk of serious injury at the hands of other
inmates.” 31 At Ziglar’s first step, we concluded that an
inmate’s claim against federal prison officials for failure to
protect “d[id] not present a new Bivens context.” 32 In doing so,
we relied on the Supreme Court’s 1994 opinion in Farmer v.
Brennan, 33 which had assumed a Bivens cause of action was
available for failure to prevent inmate-on-inmate assault. 34 We


26
   See 

 at 139–40.
27
   

.
28
   See 

.
29
   

 (cleaned up).
30
   

 (3d Cir. 2018).
31
   

.
32
   

.
33
   

 (1994).
34
    Farmer involved an Eighth Amendment claim against
federal prison officials who were indifferent to the risk that a
prisoner would be sexually assaulted. See 

 at 828–32. The
Court granted certiorari to resolve a circuit split about the




                                11
stated that the Farmer Court “ha[d], pursuant to Bivens,
recognized a failure-to-protect claim under the Eighth
Amendment.” 35 Although we determined that the plaintiff’s
failure-to-protect claim presented no new context vis-à-vis
Farmer, we held in the alternative that the defendants’
proposed special factors were not persuasive enough to
foreclose a Bivens remedy. 36

        This Court stood by Bistrian in Shorter v. United
States, 37 another case about inmate-on-inmate assault. The
federal prisoner in Shorter alleged an Eighth Amendment
Bivens claim: prison officials who had allowed the plaintiff to
be raped by a fellow inmate were liable for deliberate
indifference. 38 Applying Bistrian, we held that “Farmer
remains good law. Our case therefore does not present a new
Bivens context.” 39 Fisher argues that our decisions in Bistrian
and Shorter mean a Bivens claim is available here.

       Defendants respond that Bistrian and Shorter have been
abrogated by the Supreme Court’s later decision in Egbert v.
Boule. 40 We agree. Egbert tightened the Ziglar test and, in
doing so, made a strong statement that lower courts should not


applicable Eighth Amendment standard. See 

. Farmer
adopted “subjective recklessness” as the standard, see 

 at
839–40—and assumed, without deciding, that the plaintiff had
a cause of action, see 

 at 832–34.
35
   Bistrian, 

.
36
   See 

 at 91–92.
37
   

 (3d Cir. 2021).
38
   See Shorter, 

.
39
   

.
40
   

 (2022).




                              12
extend Bivens beyond the contexts recognized in Bivens,
Davis, and Carlson.

        At the first step, Ziglar had asked, somewhat vaguely,
whether that case was meaningfully different “from previous
Bivens cases decided by [the Supreme] Court.” 41 When it
formulated the first step, Ziglar did not specify which cases
counted, 42 although it elsewhere discussed Bivens, Davis, and
Carlson as the relevant cases. 43 Egbert’s new articulation of
this step is clearer—and unequivocally narrows the universe of
relevant cases to just three. Egbert requires us to ask whether
Fisher’s case meaningfully differs “from the three cases in
which the Court has implied a damages action.” 44 And Egbert
clarifies that all cases since those three—including cases that
“assumed . . . a [Bivens] action might be available”—are
inapplicable. 45 Under this rubric, the only relevant cases are
Bivens, Davis, and Carlson. So Farmer is out. Because they
relied on Farmer at the first step, our decisions in Bistrian and
Shorter deviate from Egbert.

       Egbert also modified Ziglar’s second step, the special-
factors analysis. Ziglar had asked “whether the Judiciary is
well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a
damages action to proceed.” 46 Egbert now requires us to ask
whether “the Judiciary is at least arguably less equipped than
Congress” to weigh the costs and benefits of a damages

41
   Ziglar, 

.
42
   See 

43
   See 

.
44
   Egbert, 

 (emphasis added).
45
   

; see 

.
46
   Ziglar, 

 (emphasis added).




                               13
action. 47 If there is “any reason” to think this “might” be so, we
cannot imply a Bivens remedy. 48 By contrast, Bistrian asked
whether the special factors that the defendants cited were
“[]persuasive,” whether there were “true alternative remedies,”
and whether there was “good reason to fear that allowing
[plaintiff’s] claim w[ould] unduly affect the independence of
the executive branch.” 49 The standard that Bistrian applied
cannot be squared with Egbert’s articulation of the second step.
And Bistrian’s holding about which alternative remedies count
as special factors has likewise been superseded by Egbert. In
Bistrian, we concluded that “[t]he administrative grievance
process [wa]s not an alternative [remedy].” 50 But Egbert holds
that an administrative grievance procedure is an alternative
remedy that forecloses a Bivens action. 51

        Finally, Egbert instructs that the two-step framework
established in Ziglar largely reduces to just one question:
“whether there is any reason to think that Congress might be
better equipped to create a damages remedy.” 52 By itself, the
“uncertainty” that results from extending Bivens to a new
context “forecloses relief.” 53 And “[t]he newness of [a] ‘new
context’ . . . alone require[s] dismissal.” 54 To sum up, we read
Egbert to require the following: unless a case is
indistinguishable from Bivens, Davis, or Carlson, a damages


47
   Egbert, 

 (emphasis added).
48
   

 (emphasis added).
49
   Bistrian, 912 F.3d at 92–93 (emphasis added).
50
   Id. at 92.
51
   See Egbert, 596 U.S. at 497–98.
52
   Id. at 492 (emphasis added).
53
   Id. at 493.
54
   Id. (cleaned up).




                                14
remedy may be created by Congress, but not by the courts.
Because Bistrian and Shorter took a more lenient approach
than Egbert, we now recognize their abrogation.

       Respect for our own precedents “must succumb when a
prior holding of our Court . . . conflicts with a subsequent
Supreme Court holding.” 55 And we have also recognized the
abrogation of Circuit precedent by more recent Supreme Court
precedent that has “undermined [our Circuit’s] rationale.” 56
Egbert seriously undermines the rationale of Bistrian and
Shorter. For that reason, the Fourth Circuit rejected our
decision in Bistrian, explaining that “the Third Circuit did not
have the benefit of the Court’s more recent Bivens guidance.” 57
We agree with our sister court. Accordingly, we now align
Third Circuit law with the Supreme Court’s recent teachings in
Egbert. 58




55
   Karns v. Shanahan, 

 (3d Cir. 2018).
Indeed, “[a] panel of our Court may decline to follow a prior
decision of our Court . . . whether the conflicting Supreme
Court decision was rendered before or after our prior decision.”
United States v. Tann, 

 (3d Cir. 2009). Here,
Bistrian and Shorter conflict with the Supreme Court’s
subsequent decision in Egbert.
56
   United States v. Stevens, 

 (3d Cir. 2023).
57
   Bulger v. Hurwitz, 

 (4th Cir. 2023).
58
   In Xi v. Huagen, 

 (3d Cir. 2023), our Court
applied Egbert and declined to extend Bivens. See 

.
So we had no occasion there to consider the continued vitality
of Bistrian and Shorter.




                              15
                               B

        Applying Egbert to the facts of this appeal, we hold that
there is no implied constitutional damages action against
federal officials who fail to protect prisoners from the criminal
acts of their fellow inmates. So Fisher has no Bivens cause of
action.

                               1

       We begin by asking whether Fisher’s case differs
meaningfully from Bivens, Davis, and Carlson. 59 It does.
Fisher’s case is about prison officials who allegedly violated
the Eighth Amendment by failing to prevent inmate-on-inmate
violence. Bivens was about narcotics agents who allegedly
violated the Fourth Amendment by searching a home without
a warrant. And Davis was about a Congressman who allegedly
violated the Fifth Amendment by firing a staffer because of her
sex. Carlson comes closer to this appeal: it involved a claim
against prison officials who allegedly violated a prisoner’s
Eighth Amendment rights when they failed to provide medical
treatment.

      But Carlson is not close enough to satisfy Egbert. The
Supreme Court has instructed that a case can differ
meaningfully from Bivens, Davis, and Carlson even when it
involves the same constitutional right as one of those cases. 60
So the fact that Carlson and this case both involve Eighth
Amendment claims is insufficient. The relevant question is
whether an Eighth Amendment claim for failure to provide
medical treatment differs meaningfully from an Eighth

59
     See Egbert, 

.
60
     See Hernandez v. Mesa, 

 (2020).




                               16
Amendment claim for failure to prevent inmate-on-inmate
assault.

        The difference is clear. Unlike a failure-to-treat claim, a
failure-to-protect claim seeks to impose liability on prison
officials who fail to control the behavior of third parties.
Preventing inmate-on-inmate assault requires keeping
dangerous inmates apart from the targets of their violence.
Decisions about the placement and transfer of inmates involve
different concerns than decisions about the treatment of
diseases like asthma. And a cause of action for failure to protect
from inmate-on-inmate violence is likely to have different
“systemwide consequences” than Carlson’s cause of action for
failure to provide medical treatment. 61 So this case differs from
Carlson in meaningful ways.

        Our sister courts support our decision here. Applying
Egbert, the Fourth, Seventh, and Ninth Circuits have held that
recognizing a damages action for failure to protect would
require an impermissible extension of Bivens. 62 The Fourth
Circuit reasoned, as we now do, that “organizational policies,
administrative decisions, and economic concerns inextricably
tied to inmate transfer and placement determinations” make
failure-to-protect claims different from failure-to-treat
claims. 63 And the Ninth Circuit correctly concluded that the
“mechanism of injury” differs as between a failure-to-treat



61
   Egbert, 

 (cleaned up).
62
   See Bulger, 62 F.4th at 137–42; Sargeant v. Barfield, 

, 364–69 (7th Cir. 2023); Chambers v. Herrera, 

, 1105–07 (9th Cir. 2023).
63
   Bulger, 

.




                                17
claim and a failure-to-protect claim: the latter seeks to hold
prison officials liable for harm caused by “other[s].” 64

        Our sister courts also agree that plaintiffs cannot invoke
Bivens by analogizing their cases to Farmer. Such “reliance on
Farmer is misplaced” 65 because “the Supreme Court has never
recognized Farmer as a Bivens action.” 66 Although it might not
have seemed so before, the Egbert Court has now made it clear
that Bivens, Davis, and Carlson are the only three cases in
which the Supreme Court has recognized a constitutional
damages action against federal officials. 67 “Since these
cases”—the last of which was decided in 1980—“the Court has
not implied additional causes of action under the
Constitution.” 68 The theory that the 1994 Farmer decision
counts as a Bivens case is “contrary to” this teaching. 69 And
“neither Bivens, Davis, nor Carlson involved an official’s
alleged failure to . . . protect an inmate from prisoner-on-
prisoner violence.” 70 So Fisher’s failure-to-protect claim
differs meaningfully from the Court’s three Bivens contexts.

                                2

       Having concluded that Fisher’s case differs from the
three relevant Supreme Court cases, we next ask whether any

64
   Chambers, 

.
65
   Bulger, 

.
66
   Chambers, 

 n.2; see also Sargeant, 

 (Farmer “never held—just assumed—that a Bivens
remedy was available to the plaintiff.”).
67
   See Egbert, 

.
68
   

.
69
   Bulger, 

.
70
   

                               18
special factor indicates that the judiciary may be less suited
than Congress to weigh the costs and benefits of a damages
remedy. 71 Any special factor—even one—suffices to foreclose
a new Bivens cause of action. 72 If there is a single reason to
pause, then we may not recognize a Bivens remedy. 73

        This appeal presents many reasons to pause before
implying a Bivens remedy for failure to prevent inmate-on-
inmate assault. To start, the “impact on governmental
operations systemwide” is a reason why Congress, rather than
the judiciary, may be better suited to authorize a damages
remedy for failure to prevent assault. 74 Defendants argue, as
they did in the District Court, that Fisher’s novel Bivens claim
would impose systemwide costs on the BOP: liability here
would deprive the BOP and its employees of the wide-ranging
deference they need to preserve order and maintain security.
We agree. Fisher’s claim “seeks to impose liability on prison
officials on a systemic level,” and this “new category of prison
litigation” would place “a substantial burden . . . on
government operations.” 75

       If the systemwide impact weren’t enough, another
quintessential special factor is also present: “an alternative
remedial structure.” 76 The BOP’s Administrative Remedy
Program is available to Fisher. That Program “allow[s] an
inmate to seek formal review of an issue relating to any aspect

71
   Egbert, 

.
72
   

.
73
   

.
74
   Egbert, 

 (cleaned up).
75
   Bulger, 

 (cleaned up); see also Chambers, 

 (same).
76
   Egbert, 

.




                              19
of his/her own confinement.” 77 “Although the [Program] does
not include a money damages remedy, inmates may file an
administrative grievance with the BOP or seek an injunction in
federal court to stop a pending transfer to a new facility.” 78 An
alternative remedy need not be “as effective as an individual
damages remedy” to foreclose a Bivens extension. 79 “So long
as Congress or the Executive has created a remedial process
that it finds sufficient to secure an adequate level of deterrence,
the courts cannot second-guess that calibration by
superimposing a Bivens remedy.” 80

       Accordingly, we join our sister courts and hold that the
BOP’s Administrative Remedy Program precludes a Bivens
remedy. 81 In doing so, we track the Supreme Court’s holding
in Egbert that an agency’s grievance process is a special factor
foreclosing Bivens relief. 82 And we recognize the abrogation
of Bistrian’s contrary holding that “[t]he administrative
grievance process is not an alternative [remedy].” 83

                         *      *       *

      Fisher cannot rely on our previous decisions that
recognized a Bivens action for failure to prevent inmate-on-
inmate violence. The Supreme Court’s decision in Egbert has

77
   

(a).
78
   Bulger, 

 (cleaned up).
79
   Egbert, 

 (cleaned up).
80
   

 (emphasis added).
81
   See Silva v. United States, 

, 1141 (10th Cir.
2022) (citing Egbert, 

); Bulger, 62 F.4th at 140–
41; Chambers, 78 F.4th at 1106–07.
82
   See Egbert, 596 U.S. at 497–98.
83
   Bistrian, 

.




                                20
abrogated those precedents. Applying Egbert, we hold that no
constitutional claim lies against federal officials who fail to
protect a prisoner from the violence of other inmates. So Fisher
has no cause of action under Bivens.

                                III

        Even if Fisher had a cognizable Bivens claim, we agree
with the District Court that such a claim would be untimely
under New Jersey’s two-year statute of limitations for personal
injury actions. 84 Because timeliness was raised by the parties
and ruled on by the District Court, we hold in the alternative
that this action is time-barred. 85

                                A

        Though Fisher’s action arises under federal law, that
“does not preclude the application of the statute of limitations
of the state.” 86 Where, as here, Congress has enacted no statute
of limitations for a federal tort, we ordinarily borrow the statute
of limitations from state law. 87

       But what happens when a state provides multiple
statutes of limitations, each of which plausibly “govern[s] an

84
   See N.J. Stat. Ann. § 2A:14-2.
85
   See United States v. Adams, 

, 147 (3d Cir. 2022)
(“[A]n alternate holding has the same force as a single holding;
it is binding precedent.”) (cleaned up), cert. denied, 

 (2022).
86
   O’Sullivan v. Felix, 

 (1914).
87
   See Johnson v. Ry. Express Agency, Inc., 

(1975); Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 

, 483–84 (1980).




                                21
analogous cause of action?” 88 The Supreme Court has held that
claims brought under 

 “are best characterized
as personal injury actions,” so a state’s statute of limitations for
injury to person applies. 89 And “where state law provides
multiple statutes of limitations for personal injury actions,
courts considering § 1983 claims should borrow the general or
residual statute for personal injury actions.” 90 Because every
state has exactly one general or residual statute of limitations
for personal injury actions, this rule limits confusion and
promotes predictability for plaintiffs and defendants alike. 91

        The seminal case in this area is Owens v. Okure. 92 There
the Supreme Court clarified the rule for § 1983 claims, but did
not speak to the limitations period for Bivens claims. Yet
almost all our sister courts have held that the general or residual
personal injury statute of limitations applies to Bivens claims
too. 93 And with good reason. Though a judicially created


88
   Tomanio, 446 U.S. at 483–84.
89
   Wilson v. Garcia, 

 (1985), abrogation on
other grounds recognized, Jones v. R.R. Donnelley & Sons Co.,

, 377–78 (2004).
90
   Owens v. Okure, 

, 249–50 (1989).
91
   See 

 245–48.
92
   

 (1989).
93
   See Gonzalez v. Hasty, 

, 219–20 (2d Cir. 2015);
Reinbold v. Evers, 

, 359 n.10 (4th Cir. 1999);
Spotts v. United States, 

, 573–74 (5th Cir. 2010);
Zappone v. United States, 

 (6th Cir. 2017);
King v. One Unknown Fed. Corr. Officer, 

(7th Cir. 2000); Sanchez v. United States, 

(8th Cir. 1995); Van Strum v. Lawn, 

, 409–10 (9th
Cir. 1991); Young v. Davis, 

 (10th Cir.




                                22
damages action, Bivens functions analogously to § 1983, the
statutory damages action that Congress has authorized for
“deprivation of . . . rights, privileges, or immunities secured by
the Constitution.” 94 The difference is that Bivens implies a
damages remedy for unconstitutional action taken under color
of federal law, while § 1983 expressly provides a damages
remedy for unconstitutional action taken under color of state
law. 95 According to the Supreme Court, it would be “untenable
to draw a distinction” between Bivens and § 1983 in terms of
the immunities that apply. 96 The Court thus views Bivens as
indistinguishable from § 1983 in important respects—and
appears to have created Bivens on the model of § 1983. So we
see no reason to establish different timeliness principles to
govern Bivens actions.

        We therefore join the chorus and hold that Bivens and
§ 1983 actions operate under identical timeliness rules. As with
§ 1983, the residual or general personal injury statute of
limitations applies to Bivens. 97 Both causes of action are best
served by this “uniform, easily applicable limitations
period.” 98



2009); Iriele v. Griffin, 

, 1282 n.1 (11th Cir.
2023). But see Barrett ex rel. Est. of Barrett v. United States,

 (1st Cir. 2006) (declining to decide the issue).
94
   

.
95
   See Kelly v. Serna, 

 (11th Cir. 1996).
96
   Harlow v. Fitzgerald, 

 (1982) (cleaned up);
see also McSurely v. Hutchison, 

 (6th Cir.
1987).
97
   See Owens, 

.
98
   Van Strum, 

.




                               23
        Because Fisher suffered injury in New Jersey on
account of Defendants’ allegedly unconstitutional conduct in
New Jersey, we apply that state’s general personal injury
statute. That law provides: “every action at law for an injury to
the person caused by the wrongful act, neglect or default of any
person within this State shall be commenced within two years
next after the cause of any such action shall have accrued.” 99
In the § 1983 context, we apply this two-year limitation when
New Jersey is the applicable state. 100 So too in this Bivens case.

       Fisher was sexually assaulted in 2013 and filed suit in
2018. Fisher’s suit is untimely absent some exception.

                                B

       Fisher claims an exception applies. According to Fisher,
New Jersey’s revival statute for sexual assault claims, N.J. Stat.
Ann. § 2A:14-2b (“2b”), renders timely this Bivens suit
alleging failure to prevent sexual assault. We are unpersuaded.
In determining whether a constitutional tort claim is timely, we
borrow only state-law timeliness rules that apply across the
board to personal injury torts. We do not borrow a state’s tort-
specific tolling and revival rules. And because New Jersey’s
“2b” revival statute is specific to tort claims for sexual assault,
it cannot revive an untimely Bivens claim.

      New Jersey’s “2b” statute provides                      that,
notwithstanding any contrary statute of limitations:



99
  N.J. Stat. Ann. § 2A:14-2.
100
   See Dique v. New Jersey State Police, 

(3d Cir. 2010).




                                24
       an action at law for an injury resulting from the
       commission of sexual assault, any other crime of
       a sexual nature, a prohibited sexual act . . . , or
       sexual abuse . . . , that occurred prior to
       [December 1, 2019], and which action would
       otherwise be barred through application of the
       statute of limitations, may be commenced within
       two years immediately following [December 1,
       2019]. 101

This provision created a window—from December 2019 to
December 2021—for plaintiffs to bring sexual assault claims
that were otherwise time-barred. Fisher filed this suit in
December 2018, and it was pending before the District Court
within this window. According to Fisher, this makes the suit
timely.

        Fisher cites Hardin v. Straub, 102 where the Supreme
Court clarified that “[l]imitations periods in § 1983 suits are to
be determined by reference to the appropriate state statute of
limitations and the coordinate tolling rules.” 103 At issue was a
Michigan statute that gave anyone “under 18 years of age,
insane, or imprisoned at the time the claim accrues” an
additional “1 year after the disability is removed” to bring a
cause of action, “although the period of limitations has run.” 104




101
    N.J. Stat. Ann. § 2A:14-2b.
102
    

 (1989).
103
    Id. at 539 (cleaned up).
104
    Id. at 540 (quoting 

(1)
(1987)).




                               25
The Supreme Court held that Michigan’s tolling provision
rendered the plaintiff’s § 1983 suit timely. 105

        Fisher likens New Jersey’s “2b” statute to the Michigan
statute. We see it differently. The tolling statute in Hardin
applied to all personal injury torts: anyone suffering from a
legal disability received extra time to file suit for any tort. New
Jersey’s “2b” statute, by contrast, is tort-specific: it applies
only to torts that involve sexual assault, crimes of a sexual
nature, prohibited sex acts, or sexual abuse. 106 Adopting tort-
specific tolling and revival rules would conflict with the
“general or residual personal injury approach” to timeliness
that the Supreme Court in Owens instructed us to follow. 107

        As Owens explains, there are strong “[f]ederal interests
in uniformity, certainty, and the minimization of unnecessary
litigation.” 108 These interests require federal courts to “borrow
the general or residual statute for personal injury actions.”109
And, as Hardin holds, when we borrow that general personal
injury statute of limitations, we likewise borrow “coordinate”
or “interrelated . . . provisions regarding tolling, revival, and
questions of application.” 110

      We need to harmonize Owens’s command to borrow the
general limitations period with Hardin’s requirement to
borrow “coordinate” tolling and revival provisions. In doing
so, we conclude that tolling and revival provisions are

105
    See id. at 542–44.
106
    See N.J. Stat. Ann. § 2A:14-2b.
107
    Owens, 

.
108
    Id. at 240.
109
    Id. at 250.

 U.S. at 539 (cleaned up).




                                26
“coordinate” with the general limitations period only when
they apply generally to personal injury torts. In other words, a
federal court deciding a constitutional tort case borrows state
tolling and revival rules that apply to all personal injury torts.
But it does not borrow specialized tolling and revival rules—
those which apply only to a subset of personal injury torts.

        At least three of our sister courts have synthesized the
Supreme Court’s teachings in Owens and Hardin as we do
here. 111 In constitutional tort cases, they borrow state tolling
and revival rules that apply across the board to personal injury
torts, but do not borrow tort-specific tolling and revival rules.
Accordingly, “[o]nly generally applicable tolling provisions—
such as those based on minority, incapacity, and equitable
grounds—should be incorporated” in § 1983 and Bivens
cases. 112

        The point of our rule is to avoid doubt and dispute about
which state-law tort is most analogous to the federal
constitutional tort. It would “frustrate ‘the federal interest in
uniformity and the interest in having firmly defined, easily
applied rules’” if we “appl[ied] the residual statute of
limitations” but then “adopt[ed] a tort-specific tolling
provision.” 113 By borrowing only those tolling rules that apply




111
    See Kane v. Mount Pleasant Cent. Sch. Dist., 

,
108–11 (2d Cir. 2023); Bonneau v. Centennial Sch. Dist., 

 (9th Cir. 2012); Varnell v. Dora Consol. Sch.
Dist., 

, 1212–13 (10th Cir. 2014).
112
    Varnell, 

.
113
    Bonneau, 

 (quoting Wilson, 

).




                               27
generally to personal injury torts, we avoid making “a choice
among multiple tolling provisions.” 114

       Under our approach, the applicable tolling and revival
rules never depend on the “precise legal theory of the claim.” 115
There is “no need to analyze the nature of the underlying
claims,” 116 because the same state timeliness rules apply to
every federal constitutional tort claim—no matter which
constitutional right is at issue and no matter which common-
law right it resembles. For example, we never ask whether an
alleged Fourth Amendment violation is more like trespass or
false imprisonment. And we never ask whether an alleged
Eighth Amendment violation is more like a sexual assault tort
or a medical malpractice tort. A trespass-specific tolling rule
or sexual-assault-specific revival rule can never apply, which
rules out the need for such inquiries.

       New Jersey’s “2b” statute is a specialized revival
provision that applies only to sexual assault torts. So “2b” is
not “coordinate” or “interrelated” with the general personal
injury statute of limitations, 117 and we cannot apply “2b” to
render Fisher’s constitutional tort claims timely. 118


114
    

 (cleaned up).

 U.S. at 274.
116
    Kane, 80 F.4th at 109.

 U.S. at 539.
118
    Fisher also cites a New Jersey tolling provision: “Nothing
in [the seven-year statute of limitations for sexual assault
claims] is intended to preclude the court from finding that the
statute of limitations was tolled in an action because of the
plaintiff’s mental state, physical or mental disability, duress by
the defendant, or any other equitable grounds.” N.J. Stat. Ann.




                               28
                                 C

       Fisher’s fallback position is that the complaint qualifies
for equitable tolling. New Jersey’s general tolling principles
apply because we borrow them together with the state’s general
personal injury statute of limitations. 119 We have characterized
New Jersey’s doctrine of equitable tolling as “narrowly
limited.” 120 More importantly, the New Jersey Supreme Court
teaches that “the doctrine of equitable tolling of limitations
periods has been applied only in narrowly-defined
circumstances.” 121 Those “very limited circumstances” are:

       (1) if the defendant has actively misled the
       plaintiff,

       (2) if the plaintiff has in some extraordinary way
       been prevented from asserting his or her rights,
       or




§ 2A:14-2a(b)(2). This provision may establish a specialized
tolling rule for sexual assault cases. Cf. R.L. v. Voytac, 

, 1083–84 (N.J. 2009) (interpreting an analogous
statute as a specialized tolling provision). If so, it cannot apply
to render this Bivens suit timely. And if it does not create a tort-
specific rule for sexual assaults, then it merely restates the
generally applicable state law of equitable tolling.
119
    See Dique, 

.
120
    Knight v. Brown Transp. Corp., 

 (3d Cir.
1986).
121
    R.A.C. v. P.J.S., Jr., 

 (N.J. 2007).




                                29
       (3) if the plaintiff has timely asserted his or her
       rights mistakenly in the wrong forum. 122

And equitable tolling “does not excuse claimants from
exercising the reasonable insight and diligence required to
pursue their claims.” 123 New Jersey law—which allows
equitable tolling in these three circumstances only if the
plaintiff also exercises diligence—is essentially the same as
our test for equitable tolling. 124 And our precedent on the
federal law of tolling can be relevant because “[w]here state
tolling principles contradict federal law or policy, federal
tolling principles may apply.” 125

      There is no suggestion that Fisher timely filed in the
wrong forum, so Fisher is entitled to equitable tolling only if a
Defendant actively misled Fisher or if Fisher was prevented in
some extraordinary way from filing. Fisher makes two
arguments on this score, which we address in turn.

                                1

        Fisher first claims that Captain Fitzgerald tricked Fisher
into allowing the two-year filing deadline to pass. According
to Fisher’s declaration:

       Captain Fitzgerald said I should never talk about
       the rapes for my own safety, because [the rapist]

122
    Barron v. Gersten, 

, 504 (N.J. App. Div. 2022)
(cleaned up), cert. denied, 

 (N.J. 2022).
123
    Id. at 505.
124
    See D.J.S.-W. by Stewart v. United States, 

 (3d Cir. 2020).
125
    Kach v. Hose, 

 (3d Cir. 2009).




                               30
       could still find me even . . . after I transferred to
       the other prison, and the prison staff would not
       protect me from violence if I “snitched.” . . .
       Captain Fitzgerald told me I must wait until the
       BOP conducted an internal investigation and
       until BOP attorneys contacted me, and she
       strongly urged me not to contact any attorney
       regarding the rapes. 126

As the District Court noted, Fisher “was transferred out of state
and far beyond the reach of Captain Fitzgerald”—and, we may
add, beyond the reach of Fisher’s assailant—“a mere two
months after the assaults.” 127 So Fisher “had the vast majority
of the two-year limitation period within which to file a
complaint where the captain had no ability to deter or
interfere.” 128

        The District Court’s conclusion—that Fisher was not
entitled to equitable tolling—aligns with our precedent. In
Kach v. Hose, 129 we applied the federal law of equitable tolling,
assuming arguendo it might be more plaintiff-friendly than
state law. 130 There, a high school student ran away with a
public-school employee and lived with him from age 14 to age
24. 131 After escaping, she sued school officials, including her
captor, under § 1983. 132 She argued that equity tolled the

.
127
    Fisher, 

, at *5.
128
    

129
    

 (3d Cir. 2009).
130
    See 

.
131
    See 

 at 630–31.
132
    See 

                                31
limitations period until she was freed at age 24. 133 We
disagreed, holding that equitable tolling did not render timely
the claims of a young woman who was still under the control
of a man who had abducted her as a minor. 134 It follows that
Fisher, who was soon transferred far from Fitzgerald’s control,
cannot qualify for equitable tolling here.

        Moreover, as Defendants argue and as the District Court
found, Fisher has not shown the diligence required for
equitable tolling. 135 Once transferred away from Fitzgerald,
Fisher could have asked staff at the new prison whether it was
necessary to await the results of an internal investigation before
filing suit. Instead, Fisher “believed Captain Fitzgerald
completely.” 136 That lack of diligence rules out equitable
tolling.

                                2

       Fisher next cites mental health—and unique
vulnerability—as justifications for equitable tolling here.
Recall that the two-year limitations period began running in
summer 2013 and expired in summer 2015. Well within that
period, in January 2014, “Fisher stated he is currently feeling
‘good.’” 137 And in a December 2014 report, Fisher was
characterized as “alert and oriented on all domains” with “no




133
    See 

.
134
    See 

.
135
    See Fisher, 

, at *5.

.
137
    Supp. App. 58.




                               32
behavioral abnormalities.” 138 Fisher’s “[t]hought-processes
were organized, coherent, and goal-directed.” 139

       If anything, these psychological records show that
Fisher’s mental health was worse by December 2018, when
suit was filed. In October 2018, for instance, Fisher wrote:
“[M]y PTSD symptoms . . . [are] getting worse. I try to cope,
calm myself, etc…, but nothing helps. The flashbacks,
debilitating stress, etc., I relive the rapes daily. I’m no better
now than years ago.” 140 Despite all that, Fisher managed to file
suit. So Fisher’s delay in filing suit was not attributable to
issues of mental health or unique vulnerability.

        We conclude by noting that “[c]ourts that have allowed
equitable tolling based on mental illness have done so only in
exceptional circumstances, such as where the complainant is
institutionalized or adjudged mentally incompetent.” 141 And
New Jersey law, which requires “mental disability” for the
tolling of general personal injury torts, 142 comports with
federal caselaw on this point. 143 After reviewing Fisher’s
allegations and the records attached to the complaint, we agree
with the District Court that this case does not warrant equitable




138
    Supp. App. 59.
139
    

140
    Supp. App. 63.
141
    Lyons v. Potter, 

 (8th Cir. 2008), quoted
in Kach, 

.
142
    N.J. Stat. Ann. § 2A:14-21.
143
    See Kelsey v. Cohen, 

, at *2 (N.J. App.
Div. May 15, 2012).




                               33
tolling. 144 We hold that Fisher’s putative Bivens action is time-
barred.

                         *      *      *

       There is no Bivens cause of action for failure to prevent
inmate-on-inmate assault. And even if Fisher had a cause of
action, any Bivens claim would be time-barred by New
Jersey’s two-year statute of limitations for personal injury
claims. New Jersey’s revival provision for sexual assault
claims does not apply to a Bivens suit, and Fisher is not entitled
to equitable tolling. For these reasons, we will affirm the
District Court’s order.




144
      See Fisher, 

, at *6.




                               34
RENDELL, Circuit Judge, concurring in part and dissenting in part:

       Though the majority dismisses Appellant’s claims
because they are not cognizable under Bivens, it then goes on
to determine that because the revival provision is tort-specific,
it cannot apply under our precedent. To the extent any
discussion of the application of the New Jersey statute is
relevant and not dicta,1 I respectfully dissent from my
colleagues and would find that the application of New Jersey’s
revival provision not only comports with, but is compelled by,
precedent.




1
  “[I]f it is not necessary to decide more, it is necessary not to
decide more[.]” Anariba v. Dir., Hudson Cnty. Corr. Ctr., 

 (Nov. 3, 2021) (cleaned up). The majority views
the statute of limitations discussion as an alternative holding.
Supra at Section III.A, n. 85. But having concluded that there
is no cause of action, can the statute of limitations discussion
be anything but dicta? Moreover, what basis do we have to
discuss the statute of limitations for a cause of action we agree
is nonexistent? The Supreme Court has cautioned that we
should “confine the opinion only to the very questions
necessary to decision of the case.” Dames & Moore v. Regan,

 (1981); Trump v. United States, 

 (2024), 

, 2369 (2024) (Sotomayor,
J., dissenting); see also Morse v. Frederick, 

(2007) (Breyer, J., concurring in part and dissenting in part)
(chastising the majority for going further than necessary, when
deciding the case solely on the qualified immunity issue before
the Court would have produced a unanimous decision).




                                1
                                I

        The applicable precedent that both sides wrestle with is
the Supreme Court’s opinion in Wilson, and its follow-up
opinion in Owens, that clarified the relevant statute of
limitations for Section 1983 actions. Read together, these
opinions dictate that one specific state statute of limitations—
the general or residual personal injury statute—should apply.
Wilson v. Garcia, 

 (1985); Owens v. Okure, 

 (1989). The backdrop of these opinions is key to
understanding my dissenting view.

        For years, federal courts had been presented with
preliminary issues regarding the applicable statute of
limitations in Section 1983 cases.2 An ALR annotation
recounted that this was previously a “difficult issue for the
courts,” replete with “uncertainty, confusion, and lack of
uniformity in selecting the applicable statute of limitations in §
1983 suits.” Annot., 

, 554 (1979). Cases
were stymied at the outset with the need for the court to decide
this pivotal issue. See Wilson, 

-75 & n. 25.
Litigants were uncertain as to the deadline for filing their
claims. See 

 (“If the choice of the statute of
limitations were to depend upon the particular facts or the
precise legal theory of each claim, counsel could almost always
argue, with considerable force, that two or more periods of
limitations should apply to each § 1983 claim.”). For example,
one court would apply the statute of limitations for actions
based upon liability created by federal statute, while another
would permit a plaintiff to proceed based upon a more

2
 I agree with the majority that “Bivens and § 1983 actions
operate under identical timeliness rules.” Supra at III.A.




                                2
generous catch-all statute of limitations. See Lai v. City & Cnty.
of Honolulu, 

 (9th Cir. 1984). As the
Court in Wilson noted, there was a crying need for “uniformity,
certainty, and a minimization of unnecessary litigation.” 

. Litigation, that is, regarding which statute of
limitations should apply. Thus, the Supreme Court came up
with a practical solution: it adopted a rule. Section 1983 claims
are best characterized as personal injury actions, and hence a
state’s statute of limitations for personal injury actions should
apply.3 Reading the opinion, one gets the sense that the Court
felt compelled to resolve the untenable situation in these cases.

       In Owens, the Supreme Court next considered what
state statute of limitations should apply when a state has
multiple personal injury statutes. Owens, 

. The
Court continued the “practical inquiry” it had adapted in
Wilson and directed courts to apply the “statute that can be
applied with ease and predictability in all 50 states,” 

,
namely, “the general or residual statute for personal injury
actions,” 

. The Court explained that to apply a tort-
specific statute of limitations depending on the nature of the
claim would just further “the present confusion” and would be
inconsistent with Section 1983’s broad scope. 

.



3
  Notably, Justice O’Connor dissented. She accused the Court
of legislating, due to Congress’s failure at the time to pass any
number of proposed bills to standardize the limitations period
for Section 1983 claims. Wilson, 

 (O’Connor,
J., dissenting). She cautioned that the majority’s decision both
co-opted federal legislation and “effectively foreclose[d]
legislative creativity on the part of the States.” 

                                3
        Shortly after the Supreme Court decided Owens, it
issued its opinion in Hardin, which bears specifically on the
issue before us: whether state revival and tolling provisions
should apply to Section 1983 and Bivens claims. Hardin v.
Straub, 

 (1989). I believe Hardin is not only
relevant but controlling here. In Hardin, the Sixth Circuit was
presented with the question of whether the court should apply
a Michigan tolling provision that suspends limitations periods
for prisoners and others with legal disabilities until one year
after the disability has been removed. 

. The Sixth
Circuit refused to apply the tolling provision, reasoning that
applying the tolling period was “counterproductive to sound
federal policy in attempting to deal with § 1983 claims as
promptly as practicable.” Id. at 542 (quoting Higley v.
Michigan Dep’t of Corrections, 

 (1987)).

        The Supreme Court reversed the Sixth Circuit and made
the critical statement that should be our guide: “Courts thus
should not unravel state limitations rules unless their full
application would defeat the goals of the federal statute at
issue.” Id. at 539. The Court determined that the state’s
decision to toll the statute of limitations did not frustrate the
goals of Section 1983. Id. at 543. Instead, the Court explained
that the “tolling statute reflects a legislative decision to lessen
any such difficulties by extending the time in which prisoners
may seek recovery for constitutional injuries. Such a statute is
consistent with § 1983’s remedial purpose.” Id. at 544. In a
footnote, the Court specifically rejected the notion that
Wilson’s concerns for uniformity, certainty, and the
minimization of unnecessary litigation applied here to “weigh
against application of Michigan’s tolling provision.” Id. at 544,
n. 14.




                                4
        It is undisputed that Wilson and Owens dictate that, for
the sake of uniformity and consistency, and to avoid
unnecessary litigation, courts in Section 1983 actions should
apply the forum state’s general or residual personal injury
statute of limitations for Bivens actions. But these cases go no
further than that, either explicitly or implicitly. And Hardin
reinforced that we should respect state legislative
determinations unless they undermine federal policy.

                               II

        The Federal Defendants urge—and the majority
agrees—that Wilson and Owens should operate to foreclose the
application of the revival statute here. The majority states: “In
determining whether a constitutional tort claim is timely, we
borrow only state-law timeliness rules that apply across the
board to personal injury torts. We do not borrow a state’s tort-
specific tolling and revival rules.” Supra at Section III.B. But
we must wonder why not. Wilson and Owens do not say this
and Hardin says the opposite. Neither party contends that there
is any confusion regarding its application or any need for
uniformity. Nor is there any unnecessary litigation that would
accompany the application of this revival statute or others like
it. There is simply no predicament here that is analogous to that
which caused the Supreme Court to take the unusual course
that it did in Wilson and Owens. And no one has urged a
countervailing federal policy that should cause us to disregard
the state prerogative. Moreover, here we are not asked to
choose one of several statutes that states have enacted that
could arguably apply. Instead, we are asked to nullify New
Jersey’s legislative decision that plaintiffs who have
experienced this type of very specific harm should be entitled




                               5
to more time to bring their claims. We should apply the revival
provision, as the Court did in Hardin. 

.

        The Federal Defendants’ argument that because the
revival provision at issue here is not “closely related” to the
statute of limitations it should be nullified lacks foundation.
This interpretation misreads Wilson. It seizes on a sentence in
Wilson that merely states the obvious: “Only the length of the
limitations period, and closely related questions of tolling and
application, are to be governed by state law.” 

 (1985). This observation is followed by a footnote that
makes the unremarkable point that “[i]n virtually all statutes of
limitation the chronological length of the limitation period is
interrelated with provisions regarding tolling, revival, and
questions of application.” 

, n.17 (citing Johnson v.
Ry. Express Agency, Inc., 

 (1975)). Wilson
does not instruct that only the “closely related” questions of
tolling and revival can apply to federal claims (and, even if it
did, such instructions would be dicta, as in Wilson the Court
was only asked to determine which statute of limitations
applied). All Wilson does is note that statutes of limitations and
closely related questions of tolling, revival, and application are
governed by state law—a proposition with which I
wholeheartedly agree. That is a far cry from saying that we
should refuse to apply a revival provision provided by state law
when we have chosen a certain state statute of limitations for
Section 1983 claims. And it is important to note that Wilson
and Owens did not choose a federal statute of limitations—
rather they recognized that these provisions are state centric.

      Indeed, the Supreme Court in Hardin clarified how we
should approach this issue:




                                6
       This tradition of borrowing analogous
       limitations statutes is based on a congressional
       decision to defer to the State’s judgment on the
       proper balance between the policies of repose
       and the substantive policies of enforcement
       embodied in the state cause of action. In virtually
       all statutes of limitations the chronological
       length of the limitation period is interrelated with
       provisions regarding tolling, revival, and
       questions of application. Courts thus should not
       unravel state limitations rules unless their full
       application would defeat the goals of the federal
       statute at issue.

 (cleaned up). The majority’s decision to
pick one of the State’s statutes of limitations but then refuse to
apply its tolling and revival provisions ignores the “State’s
judgment on the proper balance” between repose and
enforcement. 

. It is one thing to cabin or restrict this
judgment when uniformity and consistency require. It is quite
another to do so for no apparent reason, as is the case here.
Following Hardin, we should not unravel rules of revival
where no federal policy requires it. Hardin, 

.

       Like the provision in Hardin, the revival provision New
Jersey enacted reflects the legislature’s wisdom and decision
to provide victims of sexual assault extra time to bring
previously barred claims does not frustrate Bivens goals of
compensation and deterrence. See Chardon v. Fumero Soto,

 (1983) (“[N]o federal policy—deterrence,
compensation, uniformity, or federalism—[is] offended by the
application of state tolling rules.”). “Rather, it enhances the
[victim’s] ability to bring suit and recover damages for




                                7
injuries.” Hardin, 

. Indeed, “[t]he State also
may have decided that if the official knows an act is
unconstitutional, the risk that he or she might be haled into
court indefinitely is more likely to check misbehavior than the
knowledge that he or she might escape a challenge to that
conduct within a brief period of time.” 

 On this basis, I
would apply New Jersey’s sexual assault revival provision to
federal Bivens claims.

       I acknowledge that the Second, Ninth, and Tenth
Circuits have reached the same conclusion as the majority does
here. While I believe their rhetoric is appealing, I find their
reasoning less so. In Kane v. Mount Pleasant School District,
the Second Circuit, presented with a situation similar to the one
before us today, declined to apply New York’s child sex abuse
revival provision. In doing so, it stated that “[i]t would strain
credulity that the Supreme Court would require federal courts
to abstain from a factual analysis for purposes of determining
the appropriate statute of limitations, only to allow courts to
engage in that same analysis to determine if a revival or tolling
provision applies.” 

, 109 (2d Cir. 2023). The
majority similarly alludes to some theoretical “doubt and
dispute” that the application of New Jersey’s revival provision
would entail. Supra at Section III.B. But two questions come
to mind in response: where did Wilson concern itself with fact
finding, as such, and what fact finding is actually required? The
unnecessary litigation that Wilson was concerned with had less
to do with a hesitation to engage in a factual inquiry and more
to do with selecting the most appropriate statute under several
potential theories of liability based on known facts. Here, we
are presented with a straightforward revival provision; either it
applies or it does not. What litigation, let alone fact finding,
will occur in order for the court to determine whether the




                               8
plaintiff’s claim is timely? I suggest, none. Furthermore, there
is no “choice” to be made here, as in the case of the statute of
limitations. Rather, we are essentially nullifying something the
New Jersey legislature has enacted. To do so runs counter to
Supreme Court precedent in Hardin. And, to give force to these
tolling provisions furthers, rather than undermines, the broad
remedial purpose of Section 1983 and of Bivens.

         Moreover, if we believe that Wilson dictates nullifying
state law that would entail fact finding regarding the time
provided to bring suit, what does it do to equitable tolling
analyses, which are, by their very nature, intensely fact bound?
Why is application of a revival provision any more difficult to
apply than principles of equitable tolling—which neither side
contends should be done away with? In fact, it isn’t. In essence,
there is no basis for nullifying a state’s revival statute any more
than we would do away with principles of equitable tolling.
Wilson and Owens don’t hint at it, let alone require it.
Moreover, Hardin could be said to point in the opposite
direction.

        In Bonneau, the Ninth Circuit refused to interpret the
extended 20-year statute of limitations for child abuse victims
as a tolling provision, and thus declined to apply it to a Section
1983 claim. The majority quotes the analysis from Bonneau, in
which the Ninth Circuit posited that it would “no less frustrate
‘the federal interest in uniformity and the interest in having
firmly defined, earlier applied rules’ were we to obediently
apply the residual statute of limitations, only to adopt a tort-
specific tolling provision.” Supra at Section III.B (quoting
Bonneau v. Centennial Sch. Dist. No. 28J, 

(9th Cir. 2012). Bonneau then pretends to quote from Owens,
but actually inserts the word “tolling” where it does not appear




                                9
in Owens when it says, “Such a holding ‘would succeed only
in transferring the [ ] confusion over the choice among multiple
[statutes of limitations] to a choice among multiple [tolling]
provisions.’” 

 (citing Owens, 

) (alterations in
original). The unaltered language from Owens reads that, “we
would succeed only in transferring the present confusion over
the choice among multiply personal injury provisions to a
choice among multiple intentional tort provisions.” Owens,

. But more to the point, I question the very
premise of this reasoning from Bonneau, which the majority
adopts, supra at Section III.B, which is that there are multiple,
tort-specific tolling provisions just as there are multiple, tort-
specific statutes of limitations.

        And, I am unconvinced that we should view the revival
or tolling provisions at issue here as tort-specific. To the
contrary, they are victim-specific. It doesn’t matter whether the
underlying act was technically an assault, a battery, rape, or
murder. It is the victim of a broad category of offenses that is
entitled to take advantage of the revival provision. Why is the
sexual abuse victim any different from the legally disabled
prisoner in Hardin? New Jersey and Michigan have identified
that certain victims deserve special treatment—with no
showing that there is confusion about who can avail themselves
of the provision or any need for uniformity—and as long as
there is no undermining of a federal policy or interest (as there
is with non-uniform statutes of limitation in Section 1983 cases
in general), why should they not be permitted to do so?

       We have heard from various amici urging policy
reasons as to why we should reverse this order. While I do not
reason based on policy, I truly regret that victims of sexual
abuse are being denied their day in court, and that New Jersey’s




                               10
policy that they be permitted to do so is being thwarted, based
upon a flawed premise and logic that does not withstand
scrutiny. The nullification of these important tolling and
revival provisions is something that the Supreme Court should
examine and tell the circuits whether Hardin is indeed
distinguishable, as the majority posits, or whether it has the
force that I am reading into it.

                              III

       For the reasons set forth above, I respectfully dissent
from my colleagues as to the applicability of New Jersey’s
revival provision.




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