Recent Developments in the Federal Civil-Rights Liability of Federal Private Prisons

Subsection of Annual Privatization Report 2013: Criminal Justice and Corrections

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Early in 2012, the Supreme Court handed down its decision in Minneci v. Pollard, denying a money damages remedy against employees of a private prison firm for alleged violations of a federal inmate’s constitutional rights. The Minneci decision has been generally criticized by those who believe in the wide availability of money damages for federal civil-rights claimants. While Minneci is indeed the culmination of a long evolution toward restricting federal civil-rights lawsuits against federal actors, its effects will, overall, probably be somewhat modest.

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The Constitution protects individual rights, but it doesn’t tell courts what to do when those rights have been violated. Traditionally, when a plaintiff sues his state or the federal government for a violation of his constitutional rights, the remedy has been an order forcing the government to stop violating those rights. Money damages have always been tougher to get. Suing the government for money is generally precluded by sovereign immunity. Another option is suing the specific police officer or prison guard responsible for the unconstitutional act. Historically, state tort law was a way of getting at such behavior-a California police officer responsible for an unconstitutionally severe use of force could be sued for battery. But not all violations of the U.S. Constitution are also common-law torts: consider, for instance, a police officer who stops a speeding motorist because he is black.

In 1871, in the wake of the Civil War, Congress enacted the most important civil rights statute on the books, which now, after some renumbering, is called 42 U.S.C. § 1983 or just “§ 1983”. It was primarily designed to vindicate the constitutional rights of the newly freed slaves in the South by allowing them to sue abusive state officials in federal court for violations of the U.S. Constitution-and obtain money damages. § 1983 continues to be used today whenever someone wants to collect money from state officials-whether the plaintiff is a public schoolteacher fired for political reasons (a First Amendment violation), a criminal defendant wrongly roughed up by the police (a Fourth Amendment violation), or a state prison inmate (whether in a public or a private prison) neglected by his prison doctors (an Eighth Amendment violation). Some of these violations can also be litigated as common-law torts, but that is no bar to the availability of § 1983; it is common to see a Fourth Amendment claim bundled with a battery claim in the police context, or an Eighth Amendment claim bundled with a medical-malpractice claim in the prison medical context.

These claims are generally brought against individuals, not against state governments themselves, so in theory the damage awards come out of officials’ pockets. In practice, officials are almost universally indemnified and defended by their government employers, but the extent of such indemnification is the government’s choice; indemnification is routinely denied in some cases, like where the official is being criminally prosecuted for the same conduct.

But § 1983 is only good against state officials. The Reconstruction Congress didn’t see the need to allow damages against federal officials, so damages continued to be unavailable against federal officials except to the extent Congress passed a statute specifically authorizing damages in some context or another. One such example is the Federal Tort Claims Act (FTCA) of 1946 which, under certain circumstances, allows the federal government to be sued under state tort law for the acts of its employees as though it were a private individual.

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This is where matters stood in 1972, when the Supreme Court invented a § 1983-like cause of action against federal officials. Webster Bivens had been arrested and manacled, and his apartment searched, without a warrant and without probable cause. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court allowed Bivens to collect damages from the drug enforcement agents responsible for the Fourth Amendment violation-noting along the way that Bivens’s case probably wouldn’t go anywhere under state trespass law, and that in any event Fourth Amendment liability shouldn’t be driven by the vagaries of the common law in various states.

The so-called Bivens action expanded from there. In Davis v. Passman (1979), a plaintiff was allowed to collect damages from federal officials for violations of the Due Process Clause, and in Carlson v. Green (1980), federal inmate Joseph Jones, Jr. (through his administrator Marie Green) was allowed to collect damages for violations of the Eighth Amendment-from no less a defendant than Norman Carlson, director of the Federal Bureau of Prisons. It’s true that Jones would have had an FTCA claim against the United States, but the Court held such alternative relief wasn’t enough to bar the Bivens claim. For instance, an FTCA claim is against the United States, while a Bivens claim is against an individual; an FTCA claim doesn’t allow punitive damages or juries, while a Bivens claim does; and an FTCA claim depends on the vagaries of state tort law, while a Bivens claim directly adjudicates the constitutional issue.

Carlson marked the high point of the Bivens action. Because Bivens is a judge-made doctrine, as opposed to § 1983 which was passed by Congress, the Burger, Rehnquist and Roberts Courts have been reluctant to expand Bivens any further. Justices Scalia and Thomas have gone further and declared the entire Bivens doctrine illegitimate, as a forbidden exercise in federal common lawmaking; they aren’t voting to overrule Bivens, but neither are they willing to expand it beyond Carlson. The other Justices take a more moderate view that Bivens shouldn’t be casually extended. A § 1983 action may be available against state officials regardless of whether alternate means of redress exist, but the existence of alternate remedies is a good argument against extending Bivens. Accordingly, the Bivens remedy has been denied when some relief (even imperfect relief) is available through, say, the civil service review process or the Social Security appeals process. The Bivens remedy has also been limited to suits against individuals, not against entities. Thus, when John Meyer sued the Federal Savings and Loan Insurance Corp. (FSLIC) for firing him without due process, the Supreme Court, in FDIC v. Meyer (1994), declared that a Bivens suit was only available against the FSLIC employee who fired him, not against the larger entity (which, by the time of Meyer’s appeal, was the FDIC, the FSLIC’s statutory successor).

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These strands of Bivens doctrine have recently come together in the federal private-prison context. John Malesko sued Correctional Services Corp., which ran the federal community correction center in which he was housed, charging that CSC and its employees negligently failed to get him necessary medication and also negligently refused to let him use the elevator. In Malesko v. Correctional Services Corp. (2001), the Supreme Court denied Malesko a Bivens action against CSC. The primary theory was the no-entity-liability principle of FDIC v. Meyer, now imported into the privatization context. (Why didn’t Malesko also sue the CSC employees? Because he had waited too long, so the employees, as individuals, were protected by the statute of limitations.) But the Court also pointed out along the way that Malesko had some attractive state tort-law options. First, the privatization context was important.

Malesko’s public-prison counterparts would have had the exclusive remedy of suing the United States under the FTCA-which, the Court already held in Carlson, was an insufficient alternate remedy. But the FTCA only applies to federal government employees, not contractors. Malesko, unlike his public-prison counterpart, could have sued the CSC employees under state tort law. Moreover, state tort law is in many ways much more attractive than constitutional law: an Eighth Amendment violation requires “deliberate indifference” on the part of the official, while a tort claim requires mere negligence. In light of the availability and advantages of state tort law for the federal private-prison inmate plaintiff, why also give the plaintiff a Bivens action?

This alternate-remedies discussion wasn’t determinative, because the FDIC v. Meyer-based no-entity-liability theory was sufficient to deny the Bivens action in Malesko’s case. But the seed had been planted. Many assumed, after Malesko, that Bivens would continue to be available against the individual employees of the private prison firm. In the first place, when alternate remedies had been held sufficient to bar a Bivens action in the past, these had been federal remedies like the Social Security appeals process. State law had been discussed occasionally (even in Bivens itself), but whether Bivens could be precluded based on state law alone was another matter. In the second place, past cases (e.g., Bivens and Carlson) had spoken disparagingly of relying on the vagaries of state tort law: if one’s constitutional rights are at issue, why should the remedy be different in California than in Georgia based on differing rules of trespass or battery or medical malpractice law? Still, the state-law-friendly language in Malesko suggested that the hostility to state law as a barrier to Bivens might be on its way out. Over the last few years, the federal appellate courts came to differing conclusions on this question-whether Bivens is available against employees of private firms (such as prison firms). Finally, the Supreme Court took one of these cases.

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Richard Lee Pollard, a federal inmate at the Taft Correctional Institution, a prison run by Wackenhut Corrections Corp. (now called The GEO Group, Inc.), brought various claims against Wackenhut’s employees, including Margaret Minneci, Administrator of Health Services at Taft. Among other things, he claimed that, while taking him to a medical clinic, they forced him to wear excruciatingly painful arm restraints and a jumpsuit; he also charged that they didn’t follow the clinic’s instructions to put his elbow in a splint, didn’t give him physical therapy, deprived him of basic hygienic care, and gave him insufficient medicine.

The Court’s decision in Minneci v. Pollard came down on January 10, 2012. By now, it should come as little surprise that the Court denied Pollard a Bivens claim. Pollard’s claims were within the core of what is traditionally covered by state tort law. The Court wrote:

Pollard’s claim . . . is a claim for physical or related emotional harm suffered as a result of aggravated instances of the kind of conduct that state tort law typically forbids. That claim arose in California, where state tort law provides for ordinary negligence actions, for actions based upon “want of ordinary care or skill,” for actions for “negligent failure to diagnose or treat,” and for actions based upon the failure of one with a custodial duty to care for another to protect that other from “‘unreasonable risk of physical harm.'”

Moreover, just as in Malesko, the Court wrote that state tort law is in many ways better than constitutional tort litigation-most obviously, in that the negligence standard is far more plaintiff-friendly than the Eighth Amendment’s “deliberate indifference” standard, though one could also add other considerations like the option of using tort law’s doctrine of respondeat superior-that is, the ability to sue the corporation itself for its employees’ missteps. To be sure, tort-reform measures can sometimes make state remedies less attractive. The Court noted damage caps, bars on recovery for emotional suffering without physical harm, and various other obstacles. But, said the Court, particular procedural quirks don’t matter; the only requirement is a system with roughly similar compensation rules that produces roughly similar incentives for defendants. The only dissenting vote was from Justice Ginsburg, who took the line that constitutional torts should have nationally uniform rules rather than depending on state-by-state common-law rules; but even Justice Ginsburg didn’t argue that state tort-law remedies, as a whole, would be systematically inadequate.

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What is the upshot of Minneci? Various commentators have been quick to charge that Minneci shuts the federal courthouse doors to private-prison inmates, creates new obstacles for civil rights plaintiffs, radically reduces the scope of relief, and allows the federal government to extinguish the Bivens remedy through privatization. Yet these concerns may be somewhat overblown.

It is true that the Court’s concern with nationally uniform rules for constitutional torts is gone. It is true that any hint of an insistence that only federal alternate remedies could displace Bivens is likewise gone. It is true that Minneci is in substantial tension with Carlson, though it is perhaps premature to say that Carlson has by now been implicitly overruled: recall that Carlson rested on factors other than an unwillingness to rely on state law, such as the inadequacy of the FTCA remedy and its unavailability against individual defendants.

Most importantly, though, it is true that, in federal private-prison cases, Bivens is unavailable-but only because there is an alternate remedial regime, which is quite attractive. Privatization may eliminate a Bivens remedy in many cases, but it will open up state tort remedies that, on balance, may be at least as advantageous to plaintiffs. Moreover, the Court left open the possibility of Bivens suits continuing to exist for those Eighth Amendment violations that don’t fall squarely within tort law, like, for instance, the failure to provide sufficient hygiene. It also left open the possibility of Bivens suits existing for violations of, say, the First Amendment or Equal Protection Clause, which quite often have no tort analogue, not even a rough one. And perhaps Bivens suits might exist in the odd state that is systematically less generous to its private-prison plaintiffs, though unfortunately the Court was less than crystal-clear on this issue.

As a result, for all the doctrinal innovation that Minneci represents, the main story of this case may be that of the counter-revolution against inmate rights that didn’t happen. This may be a decision with surprisingly modest effects on private-prison civil-rights litigants.

Alexander Volokh is an associate professor at Emory Law School. His full-length article on Minneci v. Pollard and civil rights suits against private prisons is forthcoming in the Akron Law Review.

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