SCOTUS Decision in Minneci v. Pollard: Bivens Actions Against Privately Operated Federal Prisons

Yesterday the Supreme Court issued an 8-1 decision in Minneci v. Pollard. The majority opinion by Justice Breyer begins:  

The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcot­ics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [the Fourth Amendment] by a federal agent . . . gives rise to a cause of action for damages” against a Federal Govern­ment employee). Because we believe that in the circum­stances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensation—we cannot do so.

Justice Scalia authored a short concurring opinion that was joined by Justice Thomas; Justice Ginsburg authored a short dissent. The Scalia and Ginsburg opinions essentially restate their respective positions from Correc­tional Services Corp. v. Malesko, 534 U. S. 61 (2001). From Justice Scalia’s concurrence:

Bivens is “a relic of the heady days in which this Court assumed common-law powers to create causes of action” by constitutional implication. Correc­tional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., concurring); see also Wilkie v. Robbins, 551 U. S. 537, 568 (2007) (THOMAS, J., concurring). We have abandoned that power in the statutory field, see Alexander v. Sandoval, 532 U. S. 275, 287 (2001), and we should do the same in the constitutional field, where (presumably) an imagined “implication” cannot even be repudiated by Congress. As I have previously stated, see Malesko, supra, at 75, I would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U. S. 228 (1979), and Carlson v. Green, 446 U. S. 14 (1980)) to the precise circumstances that they involved.

From Justice Ginsburg’s dissent:

Were Pollard incarcerated in a federal- or state-operated facility, he would have a federal remedy for the Eighth Amendment violations he alleges. See Carlson v. Green, 446 U. S. 14 (1980) (Bivens action); Estelle v. Gamble, 429 U. S. 97 (1976) (42 U. S. C. §1983 action). For the reasons stated in the dissenting opinion I joined in Correctional Services Corp. v. Malesko, 534 U. S. 61, 75–83 (2001) (opinion of Stevens, J.), I would not deny the same charac­ter of relief to Pollard, a prisoner placed by federal con­tract in a privately operated prison. Pollard may have suffered “aggravated instances” of conduct state tort law forbids, ante, at 9 (opinion of the Court), but that same aggravated conduct, when it is engaged in by official ac­tors, also offends the Federal Constitution, see Estelle, 429 U. S., at 105–106. Rather than remitting Pollard to the “vagaries” of state tort law, Carlson, 446 U. S., at 23, I would hold his injuries, sustained while serving a feder­al sentence, “compensable according to uniform rules of federal law,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 409 (1971) (Harlan, J., concurring in judgment).

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