The Departed: No Cause Of Action For Bulger Death

The United States Court of Appeals affirmed the rejection of claims brought by the estate of James “Whitey” Bulger for his death while in custody of the Bureau of Prisons

Bulger arrived at Hazelton on October 29, 2018, at approximately 6:49pm. Bulger had a “social interview” at 7:25pm, and at 8:21pm, after staff reviewed his Presentence Investigation Report and Inmate Central File, he was referred for a psychological exam. J.A. 108. According to Joshua Brawley, Executive Assistant at Hazelton, “[W]ithin 24 hours of an inmate’s arrival, medical staff [are required to] screen the inmate in compliance with BOP medical procedures to determine if there are medical reasons for housing the inmate away from general population.” Id. However, it is unknown whether Bulger actually received the required psychological exam or any other medical screening while at Hazelton.

The night of his arrival at Hazelton, Bulger was placed in the general population. The following morning at 8:20am — less than 14 hours after his arrival — BOP staff found Bulger unresponsive in his cell. According to the complaint, “within hours of [that] placement,” inmates “believed” to be from New England and loyal to the mafia killed Bulger using a “lock in a sock” bludgeoning weapon. J.A. 42

Reasoning

we conclude that Appellant’s Bivens claims arise in a new context and that several special factors, including separation-of-power implications and an increased burden on the federal prison system, counsel against an extension of Bivens in this new context. We also conclude that the discretionary function exception to the FTCA applies to BOP officials’ decisions to transfer Bulger and place him in general population.

(Mike Frisch)