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With the multi-billion-dollar private prison industry as the backdrop, the U.S. Supreme Court on Tuesday appeared reluctant to give federal prisoners in privately run prisons the right to sue employees for violations of their Eighth Amendment rights. The justices heard arguments in Minneci v. Pollard on whether federal prisoners have a so-called Bivens cause of action for damages against individual employees of private companies that contract with the federal government to provide prison services. There are currently 13 privately run, secure facilities housing more than 25,000 federal prisoners, and numerous privately run, halfway houses holding almost 9,000 more, according to the Department of Justice. Jonathan Franklin of Fulbright & Jaworski, representing prison employees, told the Court that federal prisoners in private prisons have adequate, alternative state remedies for their injuries — remedies often superior to what they might get in a Bivens action. But John Preis of the University of Richmond School of Law, counsel to Richard Pollard, countered that state remedies may not always be available, and these federal prisoners should have the same access to a Bivens action as prisoners housed in federal facilities now have. The Bivens cause of action stems from a 1971 Supreme Court decision: Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In that case, the justices found an implied cause of action for damages against federal agents who violate the Fourth Amendment. The Court has extended Bivens twice — for Fifth and Eighth Amendment violations — and not at all since 1980. In a 2001 decision, the justices held that private prison corporations are not subject to Bivens liability. The Minneci case arises out of a lawsuit filed by Pollard against the GEO Group and a number of its employees at the Taft Correctional Institution in California. While at Taft, Pollard fell and fractured both his elbows. He alleged four different Eighth Amendment violations, including inadequate medical care and unnecessary infliction of pain, by five different GEO employees. A district court dismissed Pollard’s suit after finding that the GEO employees did not act under color of federal law and that there were adequate alternative state remedies. A divided panel of the U.S. Court of Appeals for the 9th Circuit reversed. During Tuesday’s arguments, the justices pressed Franklin and Assistant to the Solicitor General Pratik Shah on what situations, if any, would permit a Bivens action for federal prisoners in privately run prisons. “Suppose there is a state, where the law is very different from California’s law, and a basic negligence tort is unavailable,” suggested Justice Elena Kagan. “What would happen then?” Franklin said, “That would be a different case, but every state does afford the bedrock tort of negligence.” And, he added, the standard for proving negligence is much easier to meet than the deliberate indifference standard under Bivens. “What if a state gives absolute immunity to these officials?” asked Justice Sonia Sotomayor of Shah. The government attorney answered, “I think that would be a case where there was no adequate alternative remedy and a Bivens remedy may be justified. But there is no suggestion that any state has such a draconian rule.” Justice Ruth Bader Ginsburg noted that private prisons often house both state and federal prisoners in the same facility. “State prisoners would have a (Section) 1983 cause of action,” she said. “Two types of prisoners, identical mistreatment, and one gets a federal remedy and the other doesn’t.” Franklin said the Court in the last 30 years has made clear “that Bivens remedies are disfavored and will only be authorized in narrow situations where there are no adequate alternative means for redressing a plaintiff’s injuries and no other factor counsels hesitation.” Pollard has not satisfied either criterion, he said, explaining, “He has not shown that he lacked a traditional tort remedy for the injuries of which he complains, and Petitioners’ status as employees of a private contractor rather than the government at a minimum gives rise to factors counseling hesitation. Several justices pressed Preis, counsel to Pollard, on what claims of Pollard could not be vindicated under state law. Preis said that although Pollard’s medical malpractice claim could have a state remedy, “there is nothing to assure the Court” that his other claims, such as deprivation of nutrition, shackling and forced labor, or the claims of other prisoners would be remedied under state law. Sotomayor asked whether, as Franklin argued, the Court should only look at California law and decide whether Pollard’s claims are covered by that state’s laws. “We don’t think that is appropriate,” said Preis. “This Court’s view has always been that a Bivens action exists or does not exist with regards to an entire category of defendants, or context.” Justice Antonin Scalia interjected, “So if there is one state that would not have an adequate remedy for any single bad thing that could happen in prison, there is a Bivens action for everybody for everything? Is that what you are saying?” Preis answered, “Yes, your Honor, we are.” Scalia said, “Wow.” The GEO Group, one of the two largest private prison companies in the country, reported $1.2 billion in revenue in 2010. Marcia Coyle can be contacted at [email protected].

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