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Wednesday, June 29, 2011

Supreme Court to Decide Contractor Liability for Bivens Actions

On May 16, the Supreme Court granted cert. in Minneci v. Pollard.  The Ninth Circuit opinion and a dissent from the denial of rehearing en banc can be found here.

9th Circuit Pollard was incarcerated at a federal prison that had, for several years by then, been operated by an independent contractor, now known as The GEO Group (GEO).  Pollard alleges that he was mistreated by GEO personnel after he fell over a cart in the prison and may have fractured both his elbows.  The GEO employees allegedly put Pollard in restraints that caused him great pain, did not get him the bilateral slings prescribed for his injuries, failed to properly attend to him while he was injured and forced him to return to work before his injuries had healed.  He sued GEO, seven GEO employees, and a doctor employed by another entity, alleging violations of his 8th Amendment rights and seeking damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

GEO was not subject to suit, due to a prior ruling that private entities that run prisons are not subject to Bivens actions.  The District Court dismissed his action in its entirety.  A divided panel of the 9th Circuit reversed.  The majority ruled that: 1) private contractors running a federal prison act under color of federal law; and 2) the availability of state remedies does not foreclose Pollard's Bivens action.  In so ruling, the 9th Circuit acknowledged that it was creating a split between its law and the laws of the 4th and 11th Circuits.

Over at SCOTUSblog, Lyle Denniston predicts that the Supreme Court granted the petition in order to curb any attempts by the lower courts to expand the availability of the Bivens action.  I wouldn't wager against him.

[JT] 

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