This is the third post in a series on 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.
In Monday’s post, I introduced the recent Minneci v. Pollard (2012) case, where the Supreme Court limited the civil-rights actions called Bivens actions — for prisoners in federal private prisons. Federal public prisoners can still sue under Bivens, and state prisoners (whether public or private) can sue under § 1983, which is more generous than Bivens. Why do federal private prisoners alone get ill-treated by the Supreme Court in this way? I argue, though, that because of the availability of alternate remedies, Minneci is likely to be less harmful than one might fear.
In yesterday’s post, I discuss the many roadblocks to successfully suing your prison on a tort theory if you’re in a public prison. Today, I’ll discuss how many of these roadblocks fall away if you’re in a private prison.
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Suing Federal or State Governments Themselves
Bottom line: good luck if you want to sue a public prison, whether state or federal. But when it comes to suing private prisons, several of these limitations are entirely absent.
Of course, for federal private-prison inmates, suits against the United States directly are out. The FTCA waives sovereign immunity only for acts of employees of the government. Government employees are defined to include (among others) officers, employees, and persons working on behalf of “any federal agency,” and “federal agency,” in turn, specifically excludes contractors.
Thus, when federal prisoner Reagan Logue hanged himself in a county jail awaiting trial, Logue’s parents were unable to sue the United States for the negligence of the jail employees who failed to keep him under surveillance. The FTCA, the Supreme Court held, incorporates the common-law distinction between employees and contractors based on the principal’s “authority . . . to control the physical conduct of the contractor in the performance of the contract,” and that authority was lacking as between the federal government and the county officials. Nor could the county officials be characterized as “acting on behalf of a federal agency in an official capacity”; if they could, so could most contractors, which would make the explicit exclusion of contractors in the definition of “federal agency” kind of pointless.
What was true in Logue for local officials is also true for people and corporations that are more conventionally thought of as contractors. The United States is liable neither for the negligence of its independent-contractor physicians nor for that of private prison companies contracting with the federal government. Thus, if you’re like Vernice Garvin, an inmate at the Northeast Ohio Correctional Center in Youngstown, Ohio, trying to hold the United States liable because he was negligently housed with an inmate with a staph infection, you lose: NEOCC is operated by the Corrections Corporation of America, a federal contractor.
Much the same is true for state private-prison inmates: state tort claims acts, the state analogues of the FTCA, also waive state sovereign immunity for the acts of employees, not contractors. As a result, suing the state directly typically seems to be out.
Suing Prison Firms: The Common Law
But if suits against the United States under the FTCA by federal inmates are out, suits against the companies themselves under ordinary tort law aren’t—whether for federal or state inmates. In Correctional Services Corp. v. Malesko (2001), John Malesko sued the corporation running the community correction center in which he was housed, charging that the corporation and some of its employees were “negligent in failing to obtain requisite medication for [his] condition and were further negligent by refusing [him] the use of the elevator.” Because he was a federal inmate, he brought his claim under Bivens. The Supreme Court denied the Bivens claim primarily on a no-entity-liability theory (foreshadowed in the public context by FDIC v. Meyer (1994)), but it was also quick to point out his alternative remedies:
[A]lternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in Government facilities. This case demonstrates as much, since respondent’s complaint in the District Court arguably alleged no more than a quintessential claim of negligence. . . . [T]he heightened “deliberate indifference” standard of Eighth Amendment liability would make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence.
The Malesko dissent denied that the existence of alternative remedies should doom a Bivens claim, but didn’t deny that these attractive alternative remedies existed.
These same considerations were on display in Minneci itself, where the Court finally said what one could have guessed from Malesko: Bivens relief is not only unavailable against a corporation but is also not necessarily available even against an individual in the private-prison Eighth-Amendment setting.
As I mentioned above, Richard Lee Pollard complained of being mistreated by employees of the federal private prison in which he was housed; allegedly he was forced to wear very painful restraints and was deprived of therapy, hygienic care, and sufficient medicine. The Court wrote, sensibly enough, that these claims are within the core of state tort law, including in California, where this claim arose. The Fourth Circuit commented similarly on Ricky Lee Holly’s claim of inadequate medical care, pointing to North Carolina law; and the Tenth Circuit (in a short-lived opinion) likewise noted that Kansas law “gives rise to a negligence claim” for Cornelius Peoples’s claim that his jailors failed to protect him from an attack by gang members.
A recent California case cited by the Supreme Court illustrates the different treatment of public and private actors. Denisha Lawson was a California prisoner in a community-based correctional facility operated by Center Point, Inc., where she lived with her infant daughter Esperanza. Lawson sued the state and its employees, and Center Point and its employees, for the physical injury that Esperanza experienced, and the emotional distress that she herself experienced, when the defendants failed to get medical treatment for Esperanza’s respiratory infection. Esperanza wasn’t a prisoner, so let’s just focus on Denisha Lawson’s own emotional distress claim. Her claim was dismissed as to the state and its employees based on concepts of governmental immunity, as discussed above. But as to Center Point and its employees, the story was quite different:
The Petition cites no authority, and we are aware of none, that extends the governmental immunity set forth in the Tort Claims Act to a private entity working under contract for the State . . . . Accordingly, we conclude that Center Point is not a “public entity” and thus is not entitled to claim the immunity set forth in the Tort Claims Act.
Nor is this just a California rule. The Restatement (Second) of Torts provides that “[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection” has a duty “(a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.” Jailors are also under a duty to reasonably control third persons to prevent them from harming their charges. An illustration shows jailors’ general duty of care—which would apply just as well to public jailors but for the immunity doctrines discussed above:
A is imprisoned in a jail, of which B is the jailor. A suffers an attack of appendicitis, and cries for medical assistance. B does nothing to obtain it for three days, as a result of which A’s illness is aggravated in a manner which proper medical attention would have avoided. B is subject to liability to A for the aggravation of his illness.
Such duties exist in all states that have federal prisons.
This is not to say that state remedies are always the same as what one might get under Bivens. Most obviously, as I’ve noted, state remedies are more attractive because the general negligence standard is more plaintiff-friendly than the “deliberate indifference” required under the Eighth Amendment and because tort law’s respondeat superior doctrine is unavailable under Bivens. On the other hand, the determination of whether the defendant was negligent will inevitably be colored by the realities of prison life and the necessity of keeping discipline; and inmates may not always make the most sympathetic plaintiffs (though private prison companies may also be unpopular). Moreover, tort-reform measures can sometimes make state remedies less attractive: the Minneci Court noted damage caps, bars on recovery for emotional suffering without physical harm, or miscellaneous other procedural obstacles.
But, the Minneci Court concluded, particular procedural quirks don’t matter; all that’s required is a system with roughly similar compensation rules that produces roughly similar incentives for defendants. Chief Justice Warren, recognizing FTCA liability for prison negligence in United States v. Muniz (1963), had refused to import “the casuistries of municipal liability for torts” by giving effect to divergent state immunity rules, and Bivens cases have also pointed to the desire to avoid subjecting plaintiffs to the “niceties” or “vagaries” of state tort law. Indeed, it does seem somewhat incongruous that a constitutional violation, which is judged by the same rules in California as in Georgia, should be differently compensated under California and Georgia tort law. Muniz is still good law for the FTCA treatment of federal immunity at federal public prisons; but for Bivens liability of federal private prisons, the new rule is that, when state schemes are roughly similar, we are subject to the vagaries of state tort law. Sometimes this will produce better results for plaintiffs, sometimes worse; it seems hard to maintain that the result will be generally worse for plaintiffs. Tellingly, Justice Ginsburg’s lone dissent focused on the vagaries, not the inadequacy of the state remedy.
Suing Prison Firms: Immunity Statutes
The common-law approach I’ve sketched above is the approach taken by most states. In the absence of a statute providing otherwise, private prison firms are treated just like any other kind of firm. Nor is the government contractor immunity recognized in Boyle v. United Technologies Corp. (1988) available for federal private prisons, at least not unless the conduct complained of was specifically mandated by the federal government.
Perhaps out of an excess of caution, Tennessee has even passed legislation explicitly foreclosing the application of sovereign immunity to private prisons: a state statute provides that “[t]he sovereign immunity of the state shall not apply to the contractor.” The statute requires that private prison contractors carry liability insurance, “specifically including insurance for civil rights claims,” and “[n]either the contractor nor [its] insurer . . . may plead the defense of sovereign immunity in any action arising out of the performance of the contract.”
New Mexico’s statutory regime, which requires private prison contractors to “assume all liability caused by or arising out of all aspects of the provision or operation of the facility” and carry adequate liability insurance, seems to grant somewhat more immunity to private prison employees who perform the functions of correctional officers. The statute classifies these employees as “correctional officers” for the purposes of two statutory sections and “no other purpose of state law.” One of these sections relates to the qualifications of correctional officers (adult citizens of good moral character with at least a high school education and having passed certain physical and aptitude exams). Another grants correctional officers the “power of a peace officer with respect to arrests and enforcement of the laws” in certain circumstances. The section also provides that “[n]o correctional officer or other employee of the corrections department shall be convicted or held liable for any act performed pursuant to this section if a peace officer could lawfully have performed the same act in the same circumstances.” So private prison guards seem to be as immune as public prison guards while making arrests and enforcing the law.
But, notably, the statute does not incorporate the statutory section granting general tort immunity to all public employees. So private prison guard immunity apparently doesn’t extend to their day-to-day activities that can’t be classified as arrests or law enforcement.
North Carolina has gone all the way and actually indemnified private prison employees to the same extent as public ones. The statute makes “[c]ustodial officials employed by a private confinement facility . . . agents of the Secretary of Public Safety,” and as such, they (and their employers, the private prison firms, under respondeat superior) are entitled to assert the same public official immunity as their public counterparts. (Public officers in North Carolina aren’t liable for mere negligence unless an exception applies, for instance unless their conduct is shown to be “malicious, corrupt, or outside the scope of official authority.”) But while official immunity protects the officers, North Carolina does waive its sovereign immunity, at least up to the amount of a statutory bond, so inmates aren’t without a remedy.
As far as I can tell, North Carolina is the only state to have extended such broad immunity. Thus, in most states, the liability of private prison firms and their employees is governed by regular common-law negligence rules.
In the next post, we’ll discuss whether the federal or state Prison Litigation Reform Acts are relevant here.