Freeman v. Unit Manager J. Lincalis, 2025 U.S. App. LEXIS 28298 (October 29, 2025) Roth, Circuit Judge.
Judges: Before: MATEY, FREEMAN and ROTH, Circuit Judges.
Rocky Freeman was tried for two murders but was acquitted of one. His presentence report mistakenly stated that he had committed both murders. A judge ordered that the mistake be corrected. It was not. Eighteen years later, Freeman learned of this error. He sued, alleging that he had been subjected to heightened prison security conditions because of the error. He contends that the government is liable under the Federal Tort Claims Act (FTCA) for negligent transmission of his PSR and failure to correct it and that the federal officials responsible are individually liable under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics for a denial of due process. Freeman now appeals an order dismissing those claims. We agree with him that the dismissal of his FTCA claim was improper. We will, however, affirm the dismissal of his Bivens claim (albeit on an alternative ground).
The United States’ liability for an FTCA claim is based on “the law of the place where the act or omission occurred. Although the USPO’s alleged negligence occurred in New York, while the BOP’s occurred in Colorado, Kentucky, and Pennsylvania, no party has alleged a relevant conflict-of-law. Instead, both parties acknowledge that all four states use the same, familiar, four-part test for negligence: duty, breach, causation, and injury. Applying this test, the District Court found that Freeman had failed to present evidence which could sustain a negligence suit. In the absence of adequate discovery, we hold that this dismissal was premature.
The government has not contested that the USPO breached a duty when it transmitted a PSR falsely attributing the Sosa murder to Freeman. And the government does not contest that, if Freeman’s conditions of confinement were heightened as a result of the misstatement in the PSR, this would constitute an injury. Instead, its sole argument is that he cannot show causation because he “has not established what security classification he received, what classification he should have received, or how classifications impact housing designations, solitary confinement decisions, or restraint policies.”
Moreover, our precedent is clear that plaintiffs who have been released from incarceration may prospectively exempt themselves from the PLRA’s strictures, including the PLRA’s physical-injury requirement, by filing an amended or supplementary post-release complaint (even one that simply recapitulates their original complaint). See Garrett v. Wexford Health, 938 F.3d 69, 84, 91 (3d Cir. 2019); Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 307-09 (3d Cir. 2020). Upon remand, the District Court may determine the impact of any timely requested amendment on Freeman’s claim.
Freeman’s suit is predicated on the USPO’s failure to abide by a court order directing it to amend the PSR, and its subsequent transmission of an incomplete PSR to the BOP. There is no reason the USPO should be immunized for its (alleged) failure to abide by a direct court order, or its ministerial transmission of the wrong report to the BOP.
We will therefore reverse the order dismissing the FTCA claim and remand it to the District Court for further proceedings.
Turning to Freeman’s Bivens claims against the probation officers, we hold that the District Court erred in dismissing them for failure to effectuate process. But that error was harmless because Freeman’s claims fail on the merits. As such, we will affirm the District Court’s judgment despite the error.
We now adopt the approach of our sister-circuits. Freeman was an incarcerated, convicted murderer. We understand why the probation officers would not want him to know their addresses. Nevertheless, he provided the most up-to-date information he had and repeatedly tried to secure counsel to assist him with service. After four-and-a-half years of motion practice, he finally convinced the District Court to order the government to provide their whereabouts — only to be told that their locations were
stored in a government warehouse in St. Louis. He then asked to have USMS retrieve the government files at issue or, alternatively, for an attorney to help him retrieve them himself. In response, the court waited one week to see if an attorney would volunteer and then dismissed his case. Because Freeman provided the information, he had access to, and the government has not shown that service by USMS was unreasonable, dismissal on this ground was an abuse of discretion.
The District Court should not have dismissed Freeman’s Bivens claims for failure to effectuate service. Nevertheless, we will affirm its decision on the alternative ground that these claims plainly fail on the merits.
Because Freeman’s asserted claim is not an analogue to any recognized Bivens claim, we proceed to the second step of our inquiry, asking if “there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Even one such factor precludes a remedy. Following the Supreme Court’s directions, we recently decided in Kalu v. Spaulding that Congress’s enactment of the PLRA (and decision not to include a damages remedy) counsels against expanding Bivens to suits arising from a prisoner’s conditions of confinement.
Although Freeman is no longer incarcerated, this cannot cure the deficiency in his Bivens claim. Our refusal to extend Bivens to prisoner-confinement claims in Kalu did not turn on whether those claims were formally constrained by a particular provision of the PLRA. See 113 F.4th at 333. Instead, our holding rested on the underlying reality the PLRA reflects extensive congressional regulation of conditions-of-confinement suits, accompanied with no congressional mandate for a free-standing cause of action. See id. That reality does not lose its force when a litigant steps outside the prison gates.
MATEY, Circuit Judge, concurring in part and dissenting in part.
