Supreme Court Watch Justices to consider 'Bivens' claims against private prison

By Kimberly Atkins

The Daily Record Newswire

BOSTON -- At oral arguments on Tuesday, the justices of the U.S. Supreme Court seemed skeptical of a federal prisoner's claim that he should be allowed to bring a Bivens action against private contractors who run the prison where he was housed.

The case of Minneci v. Pollard stems from a claim by federal prisoner Richard Lee Pollard that prison officials failed to provide him with adequate medical attention after a fall.

The prison was run by an independent contractor under contract with the federal government.

Pollard filed a claim against several of the contractor's employees alleging Eighth Amendment violations under Bivens v. Six Unknown Named Agents, which allows damages actions for constitutional violations to be brought against federal agents.

But the court dismissed the action, ruling that private contractors are not subject to Bivens liability and that there were adequate state grounds for relief.

The 9th Circuit reversed, holding that the contractors could be subject to a Bivens suit if they were acting under color of federal law.

The Supreme Court granted the contract employees' petition for certiorari.

Study of state law

Jonathan S. Franklin, a partner in the Washington office of Fulbright & Jaworski argued on behalf of the employees that Pollard did not show "that he lacked a traditional tort remedy for the injuries of which he complains" because California tort law provides for negligence actions against jail officials.

"I think you have a good case about California law here," said Justice Elena Kagan. "But suppose we were in a state where the law was very different from what California's law appears to be, where there was no special duty recognized for jailors? What would happen then?"

"That would be a different case and the Court could in that circumstance say there were no adequate alternative remedies," Franklin replied.

Some justices noted that the prisoner's complaint is about medical care, and in order to bring a medical malpractice action in many states a plaintiff must submit a certification from a physician.

"How [is] a pro se person sitting in prison ... supposed to have access to a doctor who will provide this certificate?" Kagan asked.

"I don't want to argue someone else's case on that," Franklin said, noting that no such requirement exists in California.

Pratik Shah, an assistant to the solicitor general who argued as amicus curiae on the contractors' behalf, said that Bivens claims should not be allowed against private contractors because such contractors "are subject to well-established theories of tort liability, but lack a recognized qualified immunity defense."

"[But] courts have allowed them to have a good faith defense," Justice Ruth Bader Ginsburg noted. "So in practice, what's [the difference] whether they have qualified immunity or whether they have a good faith defense?"

"This Court has never recognized a good faith defense, so I wouldn't call it a recognized defense," Shah replied.

No adequate tort action?

John F. Preis, a professor at the University of Richmond School of Law in Virginia, argued on Pollard's behalf that a "prisoner's access to constitutional remedies should [not] turn on the mere happenstance of where the prisoner is detained."

But Justice Stephen Breyer was skeptical that there was no other recourse.

"The Eighth Amendment says cruel and unusual punishment," he said. "My law school recollection of many years ago is that there ordinarily is a tort action" in such situations.

Preis argued that the facts here fit a Bivens action rather than a tradition tort claim.

After Pollard's injuries, Preis alleged, "he was put back on his work detail before his injuries were healed. He was also immediately after being injured forced to sort of endure excessive security measures, forced to wear particular handcuffs that pushed his arms."

Justice Antonin Scalia was not convinced.

"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?" Scalia asked.

"Yes, Your Honor," Pries said.

"Wow -- I certainly wouldn't want to hold that," Scalia said.

"I'm not surprised that you wouldn't want to hold that, Your Honor," Preis replied, drawing laughter.

"I would find that rather surprising too, actually," Breyer said, drawing more laughs.

A decision from the Court is expected later this term.

Published: Mon, Nov 7, 2011