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.
(First published by Prison Legal News and used here by permission)