Pcr Consultants

Supreme Court: Bivens Can’t Be Used Against Private Prison Guards

Federal Private Prison Guards Protected

Minneci v. Pollard

So you or a loved one is in federal prison. You also happen to be one of the 10% or so of federal inmates who are housed in a private prison. It may already feel like the Bureau of Prisons (BOP) can do as they please with little to no repercussions.

Now, however, there is more protection for the employees of a private prison than even the BOP enjoys. Say you get thrown into “The Hole”, officially called segregation, for some bad behavior. There you are deprived of medical care or subject to other violations of the United States Constitution’s Eighth Amendment protections against cruel and unusual punishment.

This is a federal prison, and you are the property of the United States Federal Government. That means that violations of the United States Constitution while there should be the purview of the federal courts, right? Wrong.

In this opinion from the Supreme Court, announced on January 10th, 2012, an inmate in private federal prison cannot sue a guard of a private federal prison (see Bivens) for violations of his federally protected right against cruel and unusual punishment. Sound fishy to anybody?


Tuesday’s opinion was discussed and explained (better than I ever could) over at the Constitutional Law Prof Blog. The details are below:

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.

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.

From the Opinion

Delivered by Justice Breyer:

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 [theFourth Amendment] by a federal agent . . . gives rise to acause 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. See Wilkie v. Robbins, 551 U. S. 537, 550 (2007) (no Bivens action where “alternative, existing” processes provide adequate protection).

Leave a Comment

Your email address will not be published. Required fields are marked *