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Supreme Court: No Bivens Actions for Federal Prisoners in Private Prison

by Matt Clarke

In an 8-1 decision, the U.S. Supreme Court has held that federal prisoners housed in privately-managed prisons may not file Bivens-style federal lawsuits against private prison employees alleging lack of medical care in violation of the Eighth Amendment.

Richard Lee Pollard was a federal prisoner incarcerated in a California facility operated by Wackenhut Corrections (now GEO Group) when he slipped on a cart left in the doorway to the butcher shop in the prison’s food service department, fell and was injured. He was X-rayed at the prison. Because prison medical staff believed he had fractured both elbows, he was taken to an outside clinic for orthopedic evaluation. He later had surgery.

Pollard filed an action in federal court under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that guards had caused him severe pain by requiring him to put on a jumpsuit for transportation outside the prison when he could not extend his arm, and by placing him in arm restraints that caused him great pain. He also alleged that prison medical personnel failed to provide a splint, physical therapy and medical studies recommended by the outside clinic and provided insufficient pain medication, leaving him in so much pain that he could not sleep. Further, he claimed that prison officials did not make provisions for basic hygienic care and nourishment, and as a result he was unable to bathe or receive meals from the food service department for two weeks. Finally, he alleged that prison officials ordered him to return to work before his injuries had healed.

The district court dismissed Pollard’s suit after agreeing with the magistrate judge that the Eighth Amendment did not provide for a Bivens action against employees of a privately-managed prison. The Ninth Circuit reversed the dismissal on appeal, finding that the Eighth Amendment did provide such an action. The defendants filed a petition for writ of certiorari in the Supreme Court, which was granted.

The Court held that the first step in deciding whether to recognize a Bivens action is to determine whether an alternative process exists that protects the constitutionally-recognized interest at issue. If such an alternative exists, no Bivens action should be recognized. In this case, an adequate state tort remedy existed; therefore, the Bivens action should not have been recognized.

The Supreme Court noted that it had allowed the estate of a deceased federal prisoner to sue for deliberate indifference to his serious medical needs in Carson v. Green, 446 U.S. 14 (1980). However, that suit involved federal employees at a federal prison against whom no state tort claim could be brought. Thus, it did not control in this case.

California “state tort law provides for ordinary negligence for actions based upon ‘want of ordinary care or skill,’ for actions based upon ‘failure to diagnose or treat,’ and for actions based upon failure of one with a custodial duty to care for and protect that other from ‘unreasonable risk of physical harm,’” the Court noted. State law imposes similar general tort duties of reasonable care on private prison employees “in every one of the eight States where privately managed secure federal facilities are currently located.”

Thus, no federal prisoner in a private facility could file a lawsuit challenging prison conditions covered by those torts in federal court. It did not matter that the state remedy might be less than that provided by a Bivens action so long as the remedy was sufficient to protect the interest at issue. As the Supreme Court concluded that a federal prisoner could not assert an Eighth Amendment Bivens claim for damages against private prison employees, the judgment of the Ninth Circuit was reversed. See: Minneci v. Pollard, 132 S.Ct. 617 (2012).

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Related legal case

Minneci v. Pollard