Private U.S. Prison Won’t Face Federal Liability

     (CN) – State law can address the claims of an inmate who says medical staff mistreated him at a privately run federal prison, the Supreme Court ruled Tuesday, rejecting the idea that the landmark Bivens case gives him federal standing.



     Richard Lee Pollard filed a pro se lawsuit in 2002 over injuries he sustained by slipping on a cart left in the doorway of a butcher shop at the Taft Correctional Institution in California.
     Since the prison is operated by a private company – Wackenhut Corrections, which is now known as the Geo Group – a federal judge concluded that Pollard could not sustain an Eighth Amendment damages action against a federal government employee.
     Such cases are known as Bivens actions after the Supreme Court’s 1971 decision in Bivens v. Six Unknown Fed. Narcot­ics Agents, which held that federal prisoners can recover damages from government agents for constitutional violations.
     Bivens cannot apply where “alternative, existing” processes provide adequate protection, and state law would allow Pollard to recover damages with a negligence or medical malpractice claim, the District Court said. The private workers who contracted with the government to operate the Taft prison, moreover, were not acting under federal law.
     But the 9th Circuit disagreed, saying the Supreme Court recognized an implied cause of action for injury caused by “a federal agent acting under his authority.”
     A majority of Supreme Court justices concluded Monday, however, that they cannot “imply the existence” of a Bivens action.
     “We conclude that Pollard cannot assert a Bivens claim,” Justice Stephen Breyer wrote for the majority.
     “That is primarily because Pollard’s Eighth Amendment claim focuses upon a kind of conduct that typically falls within the scope of traditional state tort law. And in the case of a privately employed defendant, state tort law provides an ‘alternative, existing process’ capable of protecting the constitutional interests at stake. The existence of that alternative here constitutes a “convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.'”
     Breyer noted several ways in which state tort law “may sometimes prove less generous than would a Bivens ac­tion.” State law plaintiffs face damages caps; they cannot plead emo­tional suffering that is not connected to physical harm; and they face procedural obstacles, such as retaining expert administrative panels in medical malpractice cases.
     “But we cannot find in this fact suffi­cient basis to determine state law inadequate,” he added, noting that federal law has its own limitations.
     “And Bivens actions, even if more generous to plaintiffs in some respects, may be less generous in others,” the decision states. “For example, to show an Eighth Amendment violation a prisoner must typically show that a defendant acted, not just negligently, but with ‘deliberate indifference.’ And a Bivens plaintiff, unlike a state tort law plaintiff, normally could not apply principles of respondeat superior and thereby obtain recovery from a defendant’s potentially deep-pocketed employer.”
     In a brief concurring opinion, Justice Antonin Scalia and Clarence Thomas said they would decline to extend the holding of Bivens, even if “the narrowest rationale” of the case applied here.
     “Bivens is ‘a relic of the heady days in which this court assumed common-law powers to create causes of action’ by constitutional implication,” Scalia wrote, quoting his own concurring opinion from the 2001 case, Correc­tional Services Corp. v. Malesko. “We have abandoned that power in the statutory field, and we should do the same in the constitutional field, where (presumably) an imagined ‘implication’ cannot even be repudiated by Congress.”
     Justice Ruth Bader Ginsburg dissented, emphasizing that Pollard was placed by federal contract into a privately operated institution.
     “Pollard may have suffered ‘aggravated instances’ of conduct state tort law forbids, but that same aggravated conduct, when it is engaged in by official ac­tors, also offends the federal Constitution,” she wrote. “Rather than remitting Pollard to the ‘vagaries’ of state tort law, I would hold his injuries, sustained while serving a feder­al sentence, ‘compensable according to uniform rules of federal law.'”

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