Rights in Search of Remedies: Supreme Court Sentences Federal Inmates to Vagaries of State Law When Prison Contractors Violate Their Constitutional Rights

February 8, 2012

By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo teaches constitutional rights litigation.

Today in America nearly 20 percent of all federal prisoners (over 35,000) are confined in prisons managed by private corporations under contract with the Federal Bureau of Prisons. In its Jan. 10 opinion, Mennici v. Pollard, the U.S. Supreme Court ruled that one of those privatized prison inmates, Richard Lee Pollard, was barred from bringing a damage action in federal court against the individual corporate employees who violated his Eighth Amendment rights when they disregarded a serious medical condition that required treatment. The Court assumed that these employees were acting under color of federal law and, therefore, were federal actors subject to Eighth Amendment limitations.

Nonetheless, in the 8-1 decision, the Court refused to imply a constitutional damage claim against these federal actors, denying a federal remedy to Pollard and thousands of other federal prisoners in privately managed prisons. According to the Court, an independent federal remedy was not available because the conduct that formed the basis for Pollard’s constitutional claim was also, at least in theory, a violation of state tort law.

Pollard was imprisoned at California’s Taft Correctional Facility, managed under contract with the GEO Group, a private corporation. Pollard had every reason to believe that his lawsuit was authorized by the Supreme Court’s 1980 decision in Carlson v. Green, which held that federal prisoners had an implied right of action for damages against individual federal officials responsible for violating the Eighth Amendment rights of federal inmates. Carlson, in turn, was based on principles established in Bivens v. Six Unknown Named Agents, the landmark 1971 decision in which the Supreme Court ruled that the judiciary has the constitutional authority to imply a damages remedy when federal actors violate the Fourth Amendment “regardless of whether states … would prohibit or penalize the identical act” under state tort law.

Before its decision in Pollard, a majority of the Court had always adhered to the core principle that the existence of a potential state law remedy, by itself, was not a legitimate reason for the federal courts to refrain from implying a Bivens damage remedy. Indeed, in both Bivens and Carlson, the Court identified the “vagaries of the laws of the several states” as one of the principal reasons that an independent, federal remedy was both necessary and appropriate to ensure meaningful enforcement of federal constitutional limitations on federal actors. The Court in Carlson thought it “obvious that the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules [of federal law].” This core principle was ratified by Congress in 1988 when it specifically exempted from Federal Tort Claims Act restrictions all civil actions against individual federal employees for constitutional violations. The House Report accompanying the legislation discussed the “sharp differences between common law torts and constitutional or Bivens torts,” observing that a constitutional violation is “a more serious intrusion of the rights of an individual and merits special attention.” As Justice Harlan explained in Bivens: “[T]he limitations on state remedies for violation of common law rights … argue in favor of a federal damages remedy. [I]njuries inflicted by officials acting under color of law are substantially different in kind” than injuries caused by the breach of common law tort duties.

This well established principle was reaffirmed in Wilkie v. Robbins, a 2007 decision in which the Court reasoned that a Bivens action was not precluded by the availability of alternative remedies unless “Congress expected the Judiciary to stay itsBivens hand.” Treating the alternative-remedies issue as one limited to separation of powers considerations is consistent with the entire history of Bivens jurisprudence, which has repeatedly emphasized that, absent special factors, federal courts have the power to imply traditional damage remedies to redress invasions of constitutional liberty interests unless Congress designs or approves an equally effective alternative remedial scheme. (See Davis v.Passman.) In either case uniform federal remedies are required to insure the federal right is adequately protected.

To reject the Bivens claim in Pollard, the Court was forced to abandon its reasoning in these earlier Bivens cases and with it the Court’s long-held commitment to uniform federal remedies. To achieve this turnabout without overruling these earlier cases, the Court, in an opinion by Justice Breyer, simply ignored explicit language in Bivens, Carlson, andWilkie, that favored Pollard. Instead, the Court proclaimed that its 2001 opinion in Correctional Services v. Malesko, supported the use of state law to displace a federal Bivens remedy. This is a remarkable reading of Malseko, a case where a five-member majority of the Court refused to imply a Bivens remedy against the corporate employer managing a federal prison halfway house for the very reason that it did not further Bivens core purpose of deterring the individual officer. The Court in Malesko emphasized that “if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury.” Indeed, Justice Ginsburg, dissenting in Pollard, observed that Pollard’s “suit seeking damages directly from individual officers would have precisely the deterrent effect the Court found absent in Malesko.”

Once the Court accepted in principle that state tort law could preclude a Bivens federal remedy, it was then necessary to address the structural problem recognized by Bivens and its progeny that state court remedies are too uncertain, vague and spotty to be adequate substitutes for a uniform federal remedy. The Court’s solution was simply to redefine the meaning of “adequacy” in the Bivens context to require only “in general” that the federal courts find any state remedy to be “roughly similar;” it need not be “perfectly congruent.”

Applying this “general, rough similarities” test, the Court off-handedly found California tort law adequate to protect Pollard’s Eighth Amendment rights because California provides damages against jailors and medical professionals for breach of common law duties of reasonable care. To reach this conclusion the Court was forced to presume state remedies were “adequate” from the mere existence of broad categories of state law potentially related to the same conduct that gave rise to the constitutional injury. The Court made such an unsupported presumption even though, in fact, California state tort law is either unavailable to Pollard, or at most provides a remedy in name only.

For example, California medical malpractice law, like that in most states, requires the plaintiff to produce testimony by a licensed physician. (See Flowers v. Torrence Mem’l Hosp. Med. Ctr.) Proving a Bivens claim, however, does not require the support of expert testimony. Due to the cost of medical professionals as experts, a state medical malpractice claim will not be available to most indigent federal inmates such as Pollard. Nonetheless, the Court sweeps this aside as a “procedural obstacle” that is insufficient to make the state remedy inadequate. Such a conclusion could be reached only by a Court completely out of touch with the practical realities of access to the courts by the poor and middle-class.

The Pollard majority also fails to mention that the duty of jailors to inmates under California law has never been approved state-wide by the California Supreme Court, and in fact one Federal District Court in California has refused to extend this duty to “a situation that does not involve a jailor’s duty to protect an inmate from violence at the hands of a third party.” (See Young v. Pulsipher.) As for the recovery of punitive damages, the Court in Pollard entirely ignores that California law requires the plaintiff to prove “extreme indifference” by “clear and convincing evidence.” (See Flyer’s Body Shop Profit Sharing Plan v. Ticor TitleIns. Co.; and  Cal. Civ. Code §3294(a).) On the other hand, when constitutional rights, and not state torts, are the subject of the litigation,punitive damages are recoverable under the more lenient reckless disregard standard, and the burden of proof is only preponderance of the evidence. (See Smith v. Wade; and Crawford-El v. Britton.) This is a particularly egregious oversight given that punitive damages are “especially appropriate to redress the violation by a Government official of a citizen’s constitutional rights.” Carlson. Indeed, it is often the case that punitive damages are the only damages that actually deter constitutional wrongdoers, especially in cases like Pollard’s where there is little or no out of pocket loss. For Pollard, like most prison inmates, it’s often punitive damages or nothing.

Having found California’s general negligence law an “adequate” substitute for a federal remedy, the Court easily swats away any complaints that prisoners with identical constitutional claims in other states may be treated differently. Simply, the Court observes, the same standard of common law reasonable care is imposed on prison employees in all eight states where contractors currently manage federal prisons. Since the Court is only concerned with generalities, it evidently matters not that these states, including California, may bar claims against government contractors on grounds of immunity, have higher burdens for proving punitive damages, have damage caps, and impose a host of other procedural obstacles that may prevent or inhibit a federal inmate from pursuing an existing state law tort claim.

In addition to bad law, the Pollard decision promotes a long list of bad policy choices. To begin with, it creates severe asymmetry among similarly situated groups of prison inmates with identical constitutional injuries. Federal inmates like Pollard in privately contracted prisons have no federal Bivens damage remedy, while federal inmates confined in government run prisons have a right to sue for damages under Bivens. Moreover, unlike their federal counterparts, all state prison inmates, including those housed in privately managed prisons, have a right under 42 U.S.C. §1983 to bring a federal damage claim in federal court to remedy federal constitutional violations. (See West v. Atkins.) Finally, given the Pollard Court’s empty interpretation of “adequacy” as a minimum federal requirement, the Pollard decision has the practical effect of delegating the enforcement of these federal inmate’s constitutional rights to the uncertainties and limitations of state tort laws that were neither designed nor intended to remedy constitutional interests such as those embraced by the Eighth Amendment.

It was Justice Harlan, again, who said it best in Bivens itself: “[I]t is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy” when those acting under the authority of the federal government violate the Constitution.