Wednesday, January 11, 2012

Supreme Court Pollard Decision Bars Bivens Actions Against Private Prison Employees


The Minneci v. Pollard decision concerned a Bivens action by a prisoner in a a federal facility operated by a private company.  Justice Breyer writing for the majority refused to authorize a Bivens action because state tort law provides an adequate remedy, not because of immunity.
"Because in the circumstance of this case, state tort law authorizes adequate alternative damages actions—providing both significant deterrence and compensation—no Bivens remedy can be implied here."  The Court continued: "Wilkie v. Robbins, 551 U. S. 537, fairly summarizes the basicconsiderations the Court applies here. In deciding whether to recognize a Bivens remedy, a court must first ask “whether any alternative, existing process for protecting the [constitutionally recognized]interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding” damages remedy. Even absent an alternative, “a Bivens remedy is a subject of judgment: ‘the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed . . . toany special factors counselling hesitation before authorizing a newkind of federal litigation.’ ” Id., at 550." "Pollard cannot assert a Bivens claim, primarily because his Eighth Amendment claim focuses on a kind of conduct that typically falls within the scope of traditionalstate tort law. And in the case of a privately employed defendant, state tort law provides an “alternative, existing process” capable ofprotecting the constitutional interests at stake. Wilkie, 551 U. S., at 550. The existence of that alternative remedy constitutes a “convincing reason for the Judicial Branch to refrain from providing a newand freestanding” damages remedy. Ibid."
  Here is a link to the Opinion.

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