Split Supreme Court: Federal Prisoner May Not Sue Prison Employees Under Bivens

WASHINGTON, D.C. - (Mealey's) A federal prisoner who alleges that he has been mistreated while behind bars has no grounds to proceed with his suit against individual employers of the prison under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (403 U.S. 388 [1971] [an enhanced version of this opinion is available to subscribers / unenhanced version available from lexisONE Free Case Law]) because state tort law provides an adequate alternative damages remedy, a divided U.S. Supreme Court ruled Jan. 10 (Margaret Minneci, et al. v. Richard Lee Pollard, et al., No. 10-1104, U.S. Sup.) ( subscribers may access Supreme Court briefs for this case).


"Applying [the approach found in Wilkie v. Robbins (551 U.S. 537) [enhanced version / unenhanced version]] here, [prisoner Richard] 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 traditional state tort law.  And in the case of a privately employed defendant, state tort law provides an 'alternative, existing process' capable of protecting 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 new and freestanding' damages remedy," Justice Stephen G. Breyer wrote for the majority.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Samuel Anthony Alito Jr., Sonia Sotomayor and Elena Kagan join in the opinion. 

Justice Scalia filed a concurring opinion in which he opined that he "would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U.S. 228 (1979) [enhanced version / unenhanced version], and Carlson v. Green, 446 U.S. 14 (1980) [enhanced version / unenhanced version]) to the precise circumstances that they involved."  Justice Thomas joined in that opinion.

Dissenting, Justice Ruth Bader Ginsburg opined that Pollard should have been provided with federal relief.  "Pollard may have suffered 'aggravated instances' of conduct state tort law forbids . . . but that same aggravated conduct, when it is engaged in by official actors, also offends the Federal Constitution.  . . .  Rather than remitting Pollard to the 'vagaries' of state tort law . . . I would hold his injuries, sustained while serving a federal sentence, 'compensable according to uniform rules of federal law,'" she wrote, quoting from Bivens

Dangerous Conditions 

Pollard is a federal prisoner.  He was sentenced to 20 years in prison in 1996 for drug trafficking and firearms offenses.  While he has been in prison, Pollard had been a "frequent filer" in the federal courts, having filed more than 10 civil actions. 

In the present action, Pollard 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, Pollard filed an amended complaint that no longer sought damages for the initial fall.  In his amended complaint, Pollard alleged that after being injured April 7, 2001, TCI medical personnel bandaged Pollard's 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. 

Leaving The Jail 

On April 12, Pollard reported to the discharge unit to go to the outside appointment.  A security guard removed Pollard's 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. 

The next day, Pollard was X-rayed and scheduled for surgery on April 18.  Pollard claimed that from April 13 to 18, he was unable to participate in the scheduled meals because he could not carry his tray and that he was provided with no alternative way to eat.  He also claimed that he was unable to bathe himself and that the pain made him restless at night. 

Pollard underwent surgery on April 18.  On May 2, during an outside examination, Pollard said the doctor recommended physical therapy.  However, he never received the therapy.  Pollard claimed that his pain continued when he was returned to work and during a follow-up clinic trip when he was again made to wear the black box. 

Allowed To Proceed 

Pollard 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.  He alleged 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. 


Jonathan S. Franklin of Fulbright & Jaworski in Washington represents the prison employees.  John F. Preis of University of Richmond School of Law in Richmond, Va., represents Pollard. 

R. Matthew Cairns of DRI-The Voice of the Defense Bar in Chicago filed an amicus curiae brief on behalf of DRI.  Matthew S. Hellman of Jenner & Block in Washington filed an amicus brief on behalf of law professors.  Joshua Karsh in Chicago filed an amicus brief on behalf of the United Mexican States.  Mark H. Lynch of Covington & Burling in Washington filed an amicus brief on behalf of the American Civil Liberties Union, the Legal Aid Society of New York and the Washington Lawyers' Committee for Civil Rights and Urban Affairs.  Solicitor General Donald B. Verrilli Jr. in Washington filed an amicus brief on behalf of the United States. 

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