Minneci v. Pollard - 10-1104 (2012)



No. 10–1104



On writ of certiorari to the united states court of appeals for the ninth circuit

[January 10, 2012]

Justice Ginsburg,

Were Pollard incarcerated in a federal- or state-operated facility, he would have a federal remedy for the Eighth Amendment violations he alleges. See Carlson v. Green, 446 U. S. 14 (1980) (Bivens action); Estelle v. Gamble, 429 U. S. 97 (1976) ( 42 U. S. C. §1983 action). For the reasons stated in the dissenting opinion I joined in Correctional Services Corp. v. Malesko, 534 U. S. 61 –83 (2001) (opinion of Stevens, J.), I would not deny the same character of relief to Pollard, a prisoner placed by federal contract in a privately operated prison. Pollard may have suffered “aggravated instances” of conduct state tort law forbids, ante, at 9 (opinion of the Court), but that same aggravated conduct, when it is engaged in by official actors, [ 1 ] also offends the Federal Constitution, see Estelle, 429 U. S., at 105–106. Rather than remitting Pollard to the “vagaries” of state tort law, Carlson, 446 U. S., at 23, I would hold his injuries, sustained while serving a feder-al sentence, “compensable according to uniform rules of federal law,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 409 (1971) (Harlan, J., concurring in judgment)

Indeed, there is stronger cause for providing a federal remedy in this case than there was in Malesko. There, the question presented was whether a Bivens action lies against a private corporation that manages a facility housing federal prisoners. Malesko, 534 U. S., at 63. Suing a corporate employer, the majority observed in Malesko, would not serve to deter individual officers from conduct transgressing constitutional limitations on their authority. Id., at 70–71. Individual deterrence, the Court reminded, was the consideration central to the Bivens decision. Malesko, 534 U. S., at 70. Noting the availability of state tort remedies, the majority in Malesko declined to “exten[d] Bivens beyond [that decision’s] core premise,” i.e., deterring individual officers. Malesko, 534 U. S., at 71–73. Pollard’s case, in contrast, involves Bivens’ core concern: His suit seeking damages directly from individual officers would have precisely the deterrent effect the Court found absent in

For the reasons stated, I would hold that relief potentially available under state tort law does not block Pollard’s recourse to a federal remedy for the affront to the Constitution he suffered. Accordingly, I would affirm the Ninth Circuit’s judgment.


1  The Ninth Circuit ruled that petitioners acted under color of federal law, Pollard v. The GEO Group, Inc., 629 F. 3d 843, 854 (2010), and petitioners did not seek this Court’s review of that determination, see Brief for Petitioners 37, n. 8.

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