High Court Hears Arguments On Prisoner's Right To Sue Prison Employees

WASHINGTON, D.C. - (Mealey's) A federal prisoner suing over his alleged mistreatment behind bars has failed to show that the remedies provided in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (403 U.S. 388 [1971]) are applicable, the attorney representing the prison management company and several of the company's employees argued Nov. 1 before the U.S. Supreme Court (Margaret Minneci, et al. v. Richard Lee Pollard, et al., No. 10-1104, U.S. Sup.).

"Over the last three decades, the Court 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.  Respondent has satisfied neither criteria.  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," Jonathan S. Franklin of Fulbright & Jaworski in Washington argued on behalf of the prison employees. 

But John F. Preis of the University of Richmond School of Law in Richmond, Va., argued on behalf of prisoner Richard Pollard that prisoners' access to constitutional remedies should not depend on where they happen to be detained.  "The Petitioner's chief argument is that privately-held Federal prisoners should not have an Eighth Amendment damages remedy because they have damages under State law.  This argument suffers from two flaws.  First, it misconceives this Court's Bivens jurisprudence; second, it misconceives the nature of State remedies available to prisoners," Preis argued.  

Assistant to the Solicitor General Pratik A. Shah in Washington presented oral arguments on behalf of the United States as amicus curiae in support of the employees.   

Pollard was sentenced to 20 years in prison in 1996 for drug trafficking and firearms offenses.  He filed a pro se complaint in 2001 while he was an inmate at Taft Correction Institution (TCI) in California.  At the time, TCI was managed by Wackenhut Corrections Corp., now known as the GEO Group Inc.  In his initial complaint, Pollard alleged that an unreasonably dangerous condition caused him to trip over a cart outside the TCI butcher shop where he was working.  That complaint was dismissed with leave to amend.  In 2002, he filed an amended complaint that no longer sought damages for the initial fall.  Instead, he alleged that after he was injured April 7, 2001, TCI medical personnel bandaged his arms, put them in a sling and scheduled a doctor appointment for him on the morning of April 9.  Dr. Jonathan Akanno diagnosed possible fractures in both elbows, prescribed an analgesic and referred Pollard to an outside clinic in Bakersfield.  When preparing for the outside appointment, Pollard claimed that a security guard removed his bandages and sling and told him to put on a jumpsuit.  The actions, Pollard claimed, caused him pain.  Pollard also claimed that the "black box" security device that he was required to wear injured his arms and caused him pain. 

At the clinic, Pollard was diagnosed with injuries to his arms and was told that he would need a splint and then surgery.  However, when he returned to TCI, he was told that there were no facilities for putting on a splint.  He ultimately underwent surgery on April 18 but claimed that he was denied the recommended therapy following surgery.   

He sued Wackenhut (now GEO) and several individual defendants who were employed by Wackenhut and GEO in the U.S. District Court for the Eastern District of California, alleging violation of his Eighth Amendment to the U.S. Constitution rights.  The District Court dismissed the case, and Pollard appealed.  A split Ninth Circuit U.S. Court of Appeals panel ruled that Pollard's suit against the individual employees should be allowed to proceed under Bivens.  A panel rehearing and a rehearing en banc were denied.  The employees petitioned the high court. 

[Editor's Note:  Full coverage will be in the November issue of Mealey's Litigation Report: Employment Law.  In the meantime, the oral arguments transcript is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #73-111111-013T.  For all of your legal news needs, please visit]

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