Tuesday, January 10, 2012

Court Declines to Extend Bivens to Suit Against Private Prison Guards

The Supreme Court ruled 8-1 today that a prisoner in a privately run federal prison in California cannot sue guards for a violation of his Eighth Amendment rights under Bivens v. Six Unknown Fed. Narcotics Agents.  The ruling, authored by Justice Breyer, means that when alternative state causes of action (or other processes) exist, plaintiffs have no Bivens action against private government contractors, even when they are engaged in traditional government services (like guarding a prison).

Justice Breyer applied the two-prong approach in Wilkie v. Robbins (2007).  The Court in Wilkie held that Bivens does not extend if (1) there are "alternative, existing" processes that provide adequate protection or (2) there are special factors counseling against a Bivens remedy.  Only the first was at issue here.

Justice Breyer wrote that California tort law provided an adequate, alternative process, even if the remedies available were not perfectly equal to remedies under Bivens--that "[t]he existence of [an alternative, existing process] here constitutes a 'convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.'"  Op. at 6-7. 

The ruling, which focuses on the availability and adequacy of state tort law, at least theoretically leaves open the possibility that Bivens might extend in a similar circumstance but when an alternative process is inadequate.

The ruling extends the holding in Correctional Services Corp. v. Malesko (2001), which said that Bivens did not extend to a plaintiff's case against a privately operated prison (and not a private prison guard).  The plaintiff here tried to distinguish Malesko on the ground that Bivens is designed to deter, and while the threat of a Bivens action against a private prison can't deter individual officers, the threat of a Bivens action against private guard can.

Justices Scalia and Thomas concurred, emphasizing their view that "Bivens is 'a relic of the heady days in which this Court assumed common-law powers to create causes of action' by constitutional implication," and that it should be limited to its facts.  (Quoting Malesko, Scalia, J., concurring.)

Justice Ginsburg was the lone dissenter.  She would have extended Bivens to the private prison guards, based on Bivens's application to the government prison guard in Carlson v. Green (1980).  She also emphasized the deterrence point--that the threat of Bivens against private guards can deter (even if the threat against a private prison, under Malesko, can't).



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