Oral argument: Nov. 1, 2011
Appealed from: United States Court of Appeals for the Ninth Circuit (June 7, 2010)
While serving time in a privately operated federal prison, Respondent Richard Lee Pollard fell and broke both his elbows. Pollard insists that the treatment he received from various prison employees following the accident amounted to cruel and unusual punishment, a violation of the Eighth Amendment. Thus, Pollard sued the individual offending employees. However, the district court dismissed Pollard's claim, finding that alternative tort-based remedies barred the constitutional charge. The United States Court of Appeals for the Ninth Circuit reversed, finding that, because the private prison and its employees operate under the "color of federal law," Pollard has a valid claim under Supreme Court precedent. Petitioners Margaret Minneci and her fellow employees appeal, arguing that Supreme Court precedent limits extensions of this type of claim to cases where adequate state-law remedies do not exist. In response, Pollard maintains that he is among the category of victims that the Supreme Court sought to protect in decisions carving out this type of claim. The Supreme Court’s decision in this case could have a significant impact on the types of liabilities faced by private companies contracting with the federal government.
Whether the Court should imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against individual employees of private companies that contract with the Federal government to provide prison services, where the plaintiff has adequate alternative remedies for the harm alleged and the defendants have no employment or contractual relationship with the government.
Can a federal inmate recover damages for an alleged Eighth Amendment violation committed by private prison employees, whose employer was under contract with the federal government, when the prisoner has alternative remedies under state law?
In 2001, Richard Lee Pollard was a federal inmate in Taft Correctional Institute (TCI), a privately-owned prison under contract with the Federal Bureau of Prisons. While working in the prison kitchen, Pollard fell over a cart by the doorway. After Pollard visited the prison infirmary, the medical staff at TCI X-rayed Pollard and diagnosed his injury as possible elbow fractures. They secured his arms in a bilateral sling and arranged for Pollard to visit an external orthopedic clinic.
In preparation for a trip to the orthopedist, a prison employee instructed Pollard to remove his sling and put on a jumpsuit. Despite Pollard’s protest that doing so would cause him horrible pain, the employee insisted. Additionally, two employees forced him to wear a “black box,” a device chaining his wrists to his waist. Pollard alleges that the “black box” weighed painfully on his unsupported elbow injuries during both his trips to the orthopedist.
The orthopedist found Pollard’s injuries to be severe and recommended that Pollard immediately wear a posterior splint; he determined that surgery would be required, and that physical therapy should follow. Back at the prison, the employees denied Pollard the brace, citing limited resources at the facility. Following surgery, Pollard insists he also never received the doctor-prescribed physical therapy.
During his recovery, Pollard complained about the treatment he received from various prison employees. First, Pollard alleges that the prison employees forced him to return to work in the kitchen despite his obvious pain and a visible discoloration on his hands. After several days of working before his injuries healed, a prison physician deemed him unfit for work. Pollard further complained that, despite being unable to bathe and feed himself because of the pain and his limited movement, the prison employees denied him any accommodations.
Pollard sued the prison employees pro se for cruel and unusual punishment in the U.S. District Court for the Eastern District of California, seeking money damages under the Eighth Amendment, pursuant to the Supreme Court decision Bivens v. Six Unknown Named Agents. Under 28 U.S.C. § 1915A(a), the district court assigned the case to a magistrate judge, who found that a Bivens claim was unwarranted, since California law provided Pollard with adequate remedies and the private prison employees were not operating under color of federal law. . The district court accepted the magistrate’s recommendation to dismiss Pollard’s complaint under 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. After obtaining legal counsel, Pollard appealed to the United States Court of Appeals for the Ninth Circuit. Reviewing de novo, the Ninth Circuit reversed on the ground that liability under the Eighth Amendment extends to employees of a private prison contracting with the federal government. . The Supreme Court granted certiorari to hear the employees’ appeal on May 16, 2011.
Under Bivens v. Six Unknown Named Agents and its progeny, the Supreme Court has held that victims have an implied right of action against federal agents who violate the Fourth and Eighth Amendments to the U.S. Constitution. Petitioner Margaret Minneci and her fellow employees (collectively "Minneci") argue that allowing inmates of private prisons a Bivens cause of action where alternative remedies exist would needlessly expand the potential liabilities faced by private employees. However, Respondent Pollard argues that a Bivens action should be available to inmates like him because they belong to the category of victims that the Court sought to protect in carving out this type of claim.
Asymmetric Liability Costs
Minneci argues that allowing an inmate a Bivens claim against employees of private prisons would expose private employees to greater liability than their counterparts in federal prisons. Although federal employees enjoy immunity from state tort claims, employees of private corporations do not. The United States agrees, asserting that a constitutional claim against employees of private corporations contracting with the federal government imposes liability without Congressional authorization. Moreover, Minneci argues that expanding liability would invite a flood of litigation and increase the costs of contracting with the federal government, as companies pass on these extra litigation costs. The United States argues that creating a new cause of action is a quintessentially legislative function, and that the Court should leave it to Congress to weigh increased transaction costs against the availability of remedies.
Interested law professors ("Law Professors") counter that holding private employees exempt from Bivens liability also produces an asymmetry between private employees and their federal counterparts. Law Professors add that allowing federal inmates to sue individual private employees who act under color of federal law only implicates personal liability, not a federal liability, and is therefore consistent with the fiscal analyses applied in prior Bivens actions. The American Civil Liberties Union and others (collectively "ACLU") add that denying Pollard his Bivens rights would deprive an inmate recourse to a federal remedy for abuses by a private employee wielding federal authority. Insisting on the pursuit of tort remedies, the ACLU argues, disregards a private employee's federal authority and miscasts the relationship between an inmate and a private corrections officer as one between ordinary citizens.
Uniformity of Constitutional Rights
The ACLU asserts that the federal interest in uniformity counsels against a case-by-case analysis, which would make an inmate's constitutional protections vary based on the state of incarceration and whether the inmate served in a privately operated or government-run prison. Specifically, the ACLU argues that a holding in favor of Minneci would force federal courts to fill the gaps in state tort law to determine whether local statutes or case law adequately protect victims similarly situated to Pollard. The ACLU questions whether an inmate's constitutional rights should be left to a judicial prediction of state and local tort law. Additionally, Pollard, anticipating the argument that respondeat superior claims might offer superior damages, insists that shifting employee liability to the prison company under state tort law cuts against the goal of deterring an individual from abusing federal power.
Minneci counters that Pollard ignores Supreme Court precedent, which calls for hesitation in extending implied rights of action under federal law. This is even more apparent when, as Minneci claims, Pollard has alternatives under California law. For example, Minneci asserts that, under state tort law, Pollard may sue the private prison itself using the doctrine of respondeat superior, thereby increasing the number of defendants from which to recover and the chance of recovery. Minneci thinks Pollard exaggerates the burden of a case-by-case analysis, noting that an inmate incarcerated in other states is unlikely to lack an adequate state-law remedy. Minneci cautions that, under a categorical approach, the Court would impose a rule beyond the factual scope of this case and encroach on Congressional power to fashion remedies for federal claims.
In this case, the Supreme Court will decide whether an implied right of action first announced in Bivens v. Six Unknown Agents extends to federal inmates who claim that the employees of a privately run federal prison committed Eighth Amendment violations against them. Petitioner Minneci and her fellow defendant employees (collectively “Minneci”) argue that, to recover under a Bivens cause of action, inmates must lack adequate alternative remedies. Minneci argues that the state tort remedies available to Respondent Pollard are adequate remedies barring recovery under Bivens. Pollard responds that, because the private employees were acting under color of federal law, this is not a new extension of Bivens, but rather follows the Court's extension in Carlson v. Green. . Moreover, Pollard argues that the common law remedies available to him under state law are uncertain, and do not guarantee recovery.
What Constitute Adequate Alternative Remedies?
Minneci argues that allowing Pollard to recover under Bivens in this situation would create a new type of Bivens claim, which the Court was hesitant to allow in Wilkie v. Robbins. Under Wilkie, recovery under Bivens exists only when a plaintiff has no other remedies, and, even then, a new Bivens recovery will be unavailable where there are “special factors counseling hesitation.” Minneci argues that Pollard’s situation does not satisfy either of these two factors. Minneci contends that a plaintiff has no other remedies when a statute bars a remedy that might otherwise be available, when there is no remedy at all, or when a remedy that is otherwise available is not effective given the circumstances. In essence, Minneci argues, these scenarios correspond to a situation where a plaintiff is faced with the prospect of either receiving a Bivens recovery or nothing. In this case, Pollard has a state tort remedy available to him, Minneci argues, and moreover the state cause of action is a superior alternative to one under Bivens. The state remedy available to Pollard would require him to prove negligence, Minneci points out, while a Bivens violation would require Pollard to prove deliberate indifference—a much more difficult task.
Bolstering the argument that Pollard fails the first prong of the Wilkie test, Minneci contends that the other available remedy need not be federal. Rather, Minneci argues that the Supreme Court’s calculus in determining whether an adequate remedy exists includes considering state remedies. Minneci points out that, in addition to Bivens, there are only two cases in which the Supreme Court has implied a Bivens action, and in each case the plaintiffs lacked both federal and state remedies. In Carlson v. Green, the Court allowed recovery under Bivens because a state statute barred alternative remedies, while in Davis v. Passman, the Court allowed Bivens recovery because the plaintiff had no other remedy at all. Pollard does not fit either of these categories, Minneci contends, given the available remedy under California tort law.
Pollard counters that Carlson authorizes recovery under Bivens, and that the Court would not be creating a new Bivens claim in allowing such recovery. In Carlson, the Court extended Bivens recovery to Eighth Amendment violations, declining to distinguish between violations perpetrated by federal employees and private prison employees. Indeed, Pollard contends, the Court has never denied recovery to federal inmates whose Eighth Amendment rights have been violated by prison officials. In all relevant respects, Pollard argues, his situation is the same as that in Carlson: Pollard was a federal prisoner whose Eighth Amendment rights were violated by prison officials who acted under color of federal law.
Even if the Court determines that Carlson does not control, Pollard argues that he should still recover under Bivens because his alternative remedies are inadequate. The purpose of Bivens, Pollard contends, is to deter “individual officers who commit unconstitutional acts.” Although there are various state tort remedies available to Pollard, he argues that a state remedy only lessens the need for a Bivens remedy when it furthers such deterrence. In most cases, Pollard contends, state law will not protect a constitutional right completely. Indeed, Pollard argues that courts have declined to place responsibility for enforcement of constitutional rights in states. Pollard argues that the Court has consistently evaluated available remedies on a categorical basis, rather than a case-by-case, state-based approach. In fact, Pollard argues that the Supreme Court has never determined the availability of alternative remedies for Bivens recovery on a case-by-case basis.
Private Employees and Bivens Liability
Minneci argues that Pollard fails the second prong of the Wilkie test because the fact that the defendants are private, rather than federal, employees is a special factor counseling hesitation. Private employees are not shielded from tort liability in the way that government employees are, Minneci points out, as the Court has declined to extend qualified immunity to private employees. Minneci points out that the Court specifically limited the deterrent goal of Bivens to federal officers in Correctional Services Corp. v. Malesko. In Malesko, the Court refused to extend Bivens to an action against a private entity, in part because imposing liability on private employees for constitutional violations would create more liability for private employees than for federal employees. Minneci argues that Congress did not contemplate this asymmetry, and that Congress, not the Court, should make this determination after careful policy consideration.
Minneci also points out that the Court has interpreted Bivens claims and claims under the Federal Tort Claims Act (“FTCA”) to be parallel, such that a plaintiff may assert both against federal employees. In light of this, Minneci argues that the fact that Congress specifically excluded private employees from liability under the FTCA strongly suggests that Congress intended to exempt private employees from Bivens liability. Congress can construct a scheme that would hold private employees liable, Minneci contends, but the absence of a Congressionally-imposed liability counsels hesitation in creating one from the bench.
Pollard counters that private employees under government contract act under color of federal law, and as such they should be subject to Bivens liability. Pollard notes that the Court has no precedent of treating private employees acting under color of federal law differently than federal employees. Indeed, Pollard insists that the Court only declined to extend Bivens in Malesko because the defendant was an entity, not because the employee was private rather than federal. Private employees working under government contract perform the exact same work as government employees in the same position, Pollard argues. As such, Pollard asserts that, for purposes of symmetry, federal prisoners held in privately-run facilities and those held in publicly-run facilities should have access to the same remedies against corrections officers. Pollard also adds that Minneci’s reliance on the supposed relationship between the FTCA and Bivens is questionable in light of the fact that Congress enacted the FTCA twenty-five years before the Court decided Bivens. .
Additionally, Pollard points out that employees of privately operated federal prisons do not have qualified immunity because market pressures can act as a substitute. Specifically, a private company’s need to compete when vying for government contracts creates adequate incentives for prison guards to perform their jobs effectively without inefficient “timid[ity].” But, Pollard contends, this lack of immunity does not change the applicability of Bivens. Pollard insists that, as the Court explained in U.S. v. Stanley, the question of immunity is “analytically distinct” from the question of Bivens liability: the availability of a cause of action is analyzed separately from the question as to whether a defendant has immunity against the cause of action. Therefore, the only question that arises under Bivens, Pollard argues, is whether there is a remedy available for the constitutional violation at issue; and there is for Eighth Amendment violations.
The Supreme Court’s decision in this case may affect the remedies available to inmates of privately operated prisons who suffer constitutional violations under the Eighth Amendment. Petitioner Margaret Minneci and her fellow employees argue that, because Respondent Richard Lee Pollard has adequate remedies available under state tort law, the Court should not extend its holding in Bivens to include an implied right of action under the Eighth Amendment. In response, Pollard counters that the various state tort remedies available to plaintiffs like him are insufficient to safeguard constitutional rights, and that he is among the category of victims that the Supreme Court sought to protect in its decisions carving out this type of claim.
Edited by: Colin O’Regan
Bloomberg, Greg Stohr: Prison Company Liability Gets U.S. Supreme Court Review (May 16, 2011)
Insurance Journal, Andrew G. Simpson: Prison Case Tests Liability of Private Workers Doing Government Work (May 19, 2011)
Cardozo Law Review, Barbara Kritchevsky: Civil Rights Liability of Private Entities (2005)
Social Justice, Brian Gran and William Henry: Holding Private Prisons Responsible: A Socio-Legal Analysis of “Contracting Out” Prisons (2007)