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Opinion recap: No new Bivens remedy

Lengthening a pattern that runs back almost three decades, the Supreme Court over a single dissent refused on Tuesday to create a new right to sue for damages for wrongdoing based on a claim directly under the Constitution, rather than a federal or state law.   It was the sixth time since 1983 that the Court had turned aside such a claim.   That left the so-called “Bivens remedy” confined to the three specific situations in which it was made available between 1971 and 1980.  (The claims get their name from the 1971 decision in Bivens v. Six Unknown Federal Narcotics Agents.)

The ruling appeared to have significance not only in this single case, from California, but also in the eight states where federal prison facilities are being run by private companies.

In the new case, the Court barred an inmate in a federal prison in California from suing private employees who had worked at that prison on the staff of a company operating the facility under contract with the federal government.   Just as the Court in 2001 had barred inmates from filing a Bivens claim against the private company running a federal prison, the Court said Tuesday that this alternative is not available when the targets are a company’s workers instead of the company itself.  In both situations, the rationale for the decision was that the inmates had the option of trying to get a remedy for their harms under state law.

The new ruling came in the case of Minneci, et al., v. Pollard, et al. (docket 10-1104).  Written by Justice Stephen G. Breyer with only Justice Ruth Bader Ginsburg dissenting, the decision overturned a ruling by the Ninth Circuit Court allowing the inmate, Richard Lee Pollard, to sue private employees who, he contended, had caused him physical harm while he was an inmate at the federal prison in Taft, Calif.

At that time, the facility was being operated under contract with the federal Bureau of Prisons by Wackenhut Corp.  That company is now known as The GEO Group.

In April 2001, Pollard accidentally tripped over a cart that he said had been left in the hallway outside a prison butcher shop where he was working.  His lawsuit claimed that he broke both elbows, but the prison staff required him to make use of the arm in painful ways in taking him to and from an outside clinic for treatment, refused to provide a splint for the injured arm though a doctor had prescribed one, and ordered him back to work in the prison before his injury had fully healed.  He also claimed that they denied him adequate meals and medical services.  His claim was that he suffered “cruel and unusual punishment” in violation of his Eighth Amendment rights.

The Ninth Circuit had allowed the lawsuit to go forward, and five of the sued employees took the case on to the Supreme Court.   The Ninth Circuit found that state law remedies that Pollard could have tried were inadequate.

Justice Breyer’s opinion briefly examined the state law options open to Pollard, and concluded that they were adequate, because they provided both significant deterrence against misconduct and the availability of compensation.

While the opinion appeared to make no new law on the standards for a Bivens remedy, Breyer did emphasize that such a remedy would not be recognized in any situation unless the individual or individuals involved lacked “any alternative remedy” or one that was “nonexistent.”

Justice Antonin Scalia, joined by Justice Clarence Thomas, questioned the legitimacy of any Bivens remedy, but said they would limit the right to the three situations previously found by the Court.

In dissent, Justice Ginsburg argued that inmates in federal prisons should be allowed to sue for damages for their injuries under the Eighth Amendment, so that there is a uniform remedy in all such facilities.  She said deterrence of individual employees of a private firm running a prison was more important than taking action against the private employer.


Recommended Citation: Lyle Denniston, Opinion recap: No new Bivens remedy, SCOTUSblog (Jan. 10, 2012, 5:02 PM),