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.

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