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  [an enhanced version of this opinion is available to lexis.com 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.) (lexis.com
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
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.
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)
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
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
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
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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