Today the Supreme Court will hear oral argument in Minneci v. Pollard, a case about whether employees of a private corporation operating a federal prison may be held liable under federal law for committing constitutional violations. Petitioners are asking the Court to reverse the Ninth Circuit’s holding that claims may be asserted against the employees of privately-run federal prisons.
Richard Lee Pollard was incarcerated in a federal prison in Taft, California. The prison was operated under contract by a private company, Wackenhut Corrections Corp. (now part of the Geo Group). In April 2007, Pollard tripped over a cart that had been left in the hallway, fell, and broke both of his elbows. Prison employees forced him to use his broken arms in painful ways, refused to provide the splints recommended by his doctors, and made him engage in prison tasks before his injuries had healed.
Pollard sued both the corporate entity and individual employees for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. Bivens was a 1971 case in which the Supreme Court created a damages remedy against federal officers for constitutional violations, where there was no other remedy available.
The district court rejected Pollard’s claims against the corporation, based upon the Supreme Court’s 2001 holding in Correction Services Corp. v. Malesko that private prison corporations cannot be sued under Bivens. The district court also dismissed Pollard’s claims against the individual employees on the grounds that they were not acting in any official capacity when Pollard was injured, and that Pollard had the alternative remedy of suing for damages under California law.
The Court of Appeals for the Ninth Circuit reversed the district court’s decision as to the individual employees, ruling that the corporate employees were acting officially because they were carrying out a “fundamentally governmental function.” (The circuit court affirmed the district court’s ruling that the corporation itself could not be sued under Malesko). The Ninth Circuit held that the inquiry under Bivens is whether an alternative federal remedy is available; where the only alternative remedy is under state law, a Bivens action may be maintained.
The federal Bureau of Prisons relies increasingly on outsourcing the incarceration of federal prisoners. In 2009, approximately 16% of the federal prison population resided in privately-run facilities. Additionally, nearly half of federal immigration detainees are held in privately-run detention facilities.
Because private prison contractors have incentives to cut costs in order to maximize their profits, they pay corrections officers less, provide less training, and maintain fewer officers per inmate than federally-run prisons. As a result, inmates held in privately-held facilities face greater dangers to their health and safety than do other prisoners, and federal oversight of such facilities has been insufficient to correct such shortcomings. Yet petitioners seek to limit the ability of inmates to seek recompense when they suffer as a result of these dangers.
If the Supreme Court rules in favor of the corporate employees, inmates who are held in privately-run federal prisons will be unable to sue under federal law when their constitutional rights are violated by their jailers.