The U.S. Supreme Court has limited federal inmate lawsuits against privately operated prisons in federal courts, but the door is still open for suits in other courts.
The decision is “not a disaster for inmate rights,” said Alexander Volokh, associate professor at Emory Law School.
In 1971, the high court recognized a remedy, called the Bivens Doctrine, for litigants to sue federal officials for money damages for violating their constitutional rights. Federal prisoners have used the doctrine to sue federal prison officials for money damages for unconstitutional treatments and conditions of confinement.
Writing for the Akron Law Review, Volokh argues that the decision is “a lot less threatening to civil rights claimants than it may seem to be at first glance.”
The court ruled in Minneci v. Pollard that a federal prisoner can’t sue employees at a privately run federal prison for money damages under Bivens for violation of the Eighth Amendment, if traditional tort damages for the employees’ conduct are available under the state law.
The Bivens remedy continues to be available to federal prisoners confined in public prisons.
Volokh acknowledges that “Minneci is somewhat harmful to federal inmate litigants in that it removes a potentially useful cause of action” and that “it may have been wrongly decided as a matter of Bivens doctrine.” However, he believes it is “no doomsday” on prisoner rights.
There has consistently been a Supreme Court majority for limiting Bivens remedy when there have been alternative remedial schemes, Volokh points out.
As Volokh has noted, the standard for proving an Eighth Amendment violation is harder to meet than to prove negligence in state court, where supervisory liability is available, and where neither the private prisons nor their employees are entitled to immunity. Bivens prohibits suing supervisors for subordinates’ behavior.
Although Minneci has created an obvious disparity in judicial remedies concerning private and public prisons, Volokh doubts that it will “permit a Bivens cause of action to be contracted away by federal entities who outsource their responsibilities to private corporations.”
“Bivens itself can be contracted away, as Minneci shows,” Volokh reasons, “but that’s not the same as contracting away accountability.” Privatization will only subject federal inmates to the “relative attractiveness of state-law remedies,” he adds, and “Bivens might survive in other Eighth Amendment cases with no clear tort-law analogues.”
