The Supreme Court has restricted civil rights litigation by federal private prison inmates: should we care?

February 17

This week I’ll be blogging about The Modest Effect of Minneci v. Pollard on Inmate Litigants, a recent paper of mine that appeared in the Akron Law Review. It was the keynote article in a symposium called Inside America’s Criminal Justice System: The Supreme Court on the Rights of the Accused and the Incarcerated. Here’s the abstract:

In Minneci v. Pollard (2012), the Supreme Court denied the Bivens remedy for federal private prison inmates when state tort law is a reasonably comparable substitute. Minneci is part of a long line of decisions restricting the availability of Bivens. In this Article, I argue that, even if Minneci might be wrongly decided as a matter of Bivens doctrine, the results won’t be as dramatic as some fear.

Whether on the state or federal level, suing public prisons is difficult. Federal public prison inmates have to deal with the limitations of the Federal Tort Claims Act, and their state counterparts are similarly restricted by various state immunity doctrines and statutes. By contrast, private prisons, whether state or federal, are generally amenable to suit on state-law tort grounds, and the available tort theories are often more generous to plaintiffs than constitutional theories. (Federal and state Prison Litigation Reform Acts restrict prisoner litigation substantially, but don’t seem to alter this calculus, as they generally apply equally to public and private prisons.)

Because the holding of Minneci is limited to cases where the state-law tort remedy is roughly comparable to Bivens, the effect of the decision should be modest, even if the Supreme Court is unduly stingy with recognizing constitutional tort remedies.

Here’s the introduction:

The constitutional damages remedy, first recognized by the Supreme Court in Justice Brennan’s opinion in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics in 1971, enjoyed nine years of expansion but has now experienced thirty-three years (and counting) of contraction. Justices Scalia and Thomas characterize Bivens as “a relic of the heady days in which [the Supreme] Court assumed common-law powers to create causes of action by constitutional implication,” and, as such, would limit Bivens and its expansive progeny “to the precise circumstances that they involved.” Justices Scalia and Thomas don’t speak for the rest of the Court on this point, but there has consistently been a Supreme Court majority for limiting the Bivens remedy when there have been (even imperfect) alternative remedial schemes or (what a majority has seen as) special reasons counseling hesitation. And occasionally such contractions have been affirmatively harmful, leaving litigants with no remedy at all for injuries caused by unconstitutional acts.

Minneci v. Pollard expands the set of alternative remedial schemes that are sufficient to bar the Bivens action. Richard Lee Pollard, a federal inmate at a prison run by Wackenhut Corrections Corp., asserted a variety of claims against the corporation’s employees, including Margaret Minneci, Administrator of Health Services at the correctional facility in which he was housed. Among other things, he claimed that in the course of transporting him to a medical clinic for treatment, they forced him to wear a jumpsuit and arm restraints that caused him excruciating pain. Pollard also charged that they failed to follow clinic instructions to put his elbow in a splint, failed to provide physical therapy, deprived him of basic hygienic care, and gave him insufficient medicine.

But this is within the core of what’s traditionally covered by state tort law. As the Supreme Court wrote:

Pollard’s claim . . . is a claim for physical or related emotional harm suffered as a result of aggravated instances of the kind of conduct that state tort law typically forbids. That claim arose in California, where state tort law provides for ordinary negligence actions, for actions based upon “want of ordinary care or skill,” for actions for “negligent failure to diagnose or treat,” and for actions based upon the failure of one with a custodial duty to care for another to protect that other from “‘unreasonable risk of physical harm.’”

Moreover, state tort law is in many ways superior to constitutional tort litigation: most obviously, the negligence standard is far broader than the Eighth Amendment’s “deliberate indifference” standard, though one could also add other considerations like the availability of respondeat superior liability.

So Bivens, the Court held, is unavailable here. The idea that Bivens remedies can be limited when some alternative relief is available is nothing new; rather, it’s that this alternative relief needn’t have been contemplated by Congress and needn’t even be federal or uniform. In this case, the alternative remedial scheme is state tort law, and so that’s what the prisoner is stuck with, even if it doesn’t overlap with the Bivens remedy in every particular.

Commentators have been quick to charge that Minnecishut[s] the federal courthouse doors to inmates who suffer as a result of” shoddy private-prison practices, “create[s] new obstacles for civil rights plaintiffs,” “radically reduces the scope of Bivens relief,” allows the federal government to extinguish the Bivens remedy through privatization, and makes the doctrine incoherent. But these fears are probably overblown: Bivens is only unavailable because the alternative remedial regime is actually pretty attractive.

*   *   *

To make sense of this, we need to discuss tort remedies and constitutional law together. This isn’t a natural move for con-law scholars who don’t usually think in terms of state tort law when they think about litigation by inmates in prisons and jails. They might think of “‘court-order’ cases—litigation in which groups of inmate plaintiffs, represented by counsel, seek court-enforceable orders to govern some general set of prison or jail practices.” The most prominent recent example of this sort of litigation is Brown v. Plata (2011), where the Supreme Court upheld a population limit for the California prison system to remedy widespread Eighth Amendment violations. They would also think of cases brought by individual inmates seeking damages or accommodations—and within this category, they would probably primarily think of constitutional litigation. There, what’s striking is the odd compartmentalization of the field—a compartmentalization that Minneci makes even more stark.

The greatest doctrinal divide in constitutional damages litigation is between state and federal remedies. Inmates in state prisons can use § 1983 to sue and collect damages from prison employees who have violated their constitutional rights. These employees are “near[ly ]universal[ly]” indemnified by their employer, so these lawsuits are against the government in all but name, with an overlay of individual defenses like qualified immunity. Private prisons work just like public ones as far as § 1983 liability is concerned, except that private prison employees lack qualified immunity—so private prison inmates even (at least in this respect) get more favorable treatment by federal courts.

Federal inmates, on the other hand, look like state inmates’ poor cousins. Not having a statute like § 1983 to cover constitutional torts—the sins of federal agents weren’t on the minds on the post-Civil War Congressmen who passed the statute—federal inmates have to make do with the judge-made doctrine of Bivens. Bivens and § 1983 are similar in terms of issues like indemnification and qualified immunity, but where they differ the most is in whether the remedy is available at all. In principle, Bivens remedies, first devised in a Fourth Amendment context, are available for Fifth Amendment and Eighth Amendment violations (since 1979 and 1980, respectively). The availability of adequate alternative relief has always been a reason for limiting the remedy’s availability; “of course,” the Court has said, “were Congress to create equally effective alternative remedies” for federal inmate victims of constitutional torts, “the need for damages relief might be obviated.” The alternative remedies noted are usually federal ones, but state remedies have been relevant from the very beginning.

Contrast this with § 1983, where the availability of alternative relief under state law is mostly, though not entirely, irrelevant. Alternative federal relief may bar a § 1983 action, but it seems as though Congress’s alternative scheme must, at a minimum, intend to displace § 1983, track the § 1983 remedy closely in terms of coverage, and provide relief against individuals. In some cases, too, sufficient post-deprivation relief may suffice to avoid violating the plaintiff’s constitutional rights in the first place. But generally, alternative relief is much more of a deal-killer in Bivens-land than for § 1983 actions.

The result in Minneci was thus always potentially in the air, but now we know for sure: Bivens is entirely unavailable for a whole class of claims. But only for federal inmates, of course, for such is the nature of Bivens. And only for inmates in private prisons, since, as we’ll see, only they can benefit from state tort-law remedies; federal public-prison inmates’ tort-law claims must be brought against the federal government under the Federal Tort Claims Act (FTCA), and we know from Carlson v. Green that this alternative remedy is insufficient to preclude Bivens.

The federal constitutional landscape for prisoner litigation (whether in state or federal courts) thus looks like the following matrix, with the lower right-hand corner looking strangely empty:

Public prisons

Private prisons

State

§ 1983, no entity liability

§ 1983 (no qualified immunity), typically no entity liability

Federal

Bivens (more limited than § 1983), no entity liability

no Bivens in areas covered by state tort law, no entity liability

So much for federal constitutional litigation. But what we don’t usually think about are the “good many suits, about which far less is known, brought under state law and non-civil rights federal causes of action.” On the federal level, we have administrative claims and lawsuits under the federal or state Administrative Procedure Acts, often “relating to discipline and other grievances, including those about lost and damaged property and workplace injuries.” And the little-studied area of state-court inmate litigation is also “an important piece of the litigation landscape: a very gross estimate might be that about a quarter of what prison and jail officials think of as inmate litigation is currently filed in state court.” The tort-law matrix looks quite different than the constitutional matrix above. Instead, we have:

Public prisons

Private prisons

State

lots of tort-law immunity doctrines

(mostly) full exposure to state tort law

Federal

lots of FTCA exceptions to liability

As with constitutional litigation, state-law tort litigation can take place in either state court or federal court (if the prisoner and the prison defendants are of diverse citizenship); the big exception is that FTCA litigation must take place in federal court.

If you’re a litigant, the tort table above suggest that there are various reasons to prefer litigating as a private prisoner than as a public one. In the days to come, I’ll explain the many barriers to tort claims against both state and federal public prisons, and I’ll explain how many of these tort barriers fall away when you’re suing private prisons. Later, I’ll note to what extent these conclusions may be changed by the existence of the federal and state Prison Litigation Reform Acts. Finally, we’ll see what this tells us about Bivens doctrine as a whole.

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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