Balancing the separation of powers and right-remedy principles in Minneci v. Pollard.

• Author: Howe, Zach

In the 1972 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that the courts had power to create damage remedies for violations of constitutional rights by those acting pursuant to federal law. (1) The Court failed, however, to issue specific instructions regarding the use and applicability of this newly spawned "Bivens remedy." (2) In the thirty-five years following its holding in Bivens, the Court extended the new remedy only twice. (3) Then, in Wilkie v. Robbins, (4) the Court established two hurdles that must be overcome before applying Bivens. First, Bivens does not apply when alternative remedies provide a "convincing reason" to refrain from extending the doctrine. (5) Second, courts must determine whether "special factors counseling hesitation" bar creation of a remedy. (6) By substantially narrowing Bivens, Wilkie signaled a growing reluctance by the Court to create unrestricted remedies of its own accord.

Last Term, in Minneci v. Pollard, (7) the Supreme Court further narrowed Bivens, holding that employees of private prisons who are found guilty of constitutional violations are not subject to damage claims under the Eighth Amendment because there are alternative state remedies for such violations. (8) By stringently interpreting the previously ambiguous first step of Wilkie but nevertheless preserving the Bivens remedy for use in cases where no alternative relief exists, the Court largely validated deep-seated separation of powers concerns expressed in prior precedent while simultaneously making a pragmatic effort to uphold Chief Justice Marshall's belief that a right must always entail a remedy. (9)

The facts of Minneci are as follows. In 2001 and 2002, Richard Pollard was a prisoner at a federal prison operated by the Wackenhut Corrections Corporation. (10) During his imprisonment, Pollard slipped and fell on a cart left in a doorway, seriously injuring his elbows. (11) According to Pollard, prison employees forced him to dress in a jumpsuit and wear uncomfortable arm restraints when traveling to an orthopedist for treatment, causing him serious pain. (12) The employees later failed to follow the orthopedist's instructions to place Pollard's left arm in a splint, refused to make alternative arrangements when he was unable to feed or bathe himself, provided him with insufficient medicine, and forced him to return to work before his injuries had healed. (13) Pollard subsequently brought suit against several prison employees, (14) alleging Eighth Amendment violations and seeking damages under Bivens. (15) The district court, adopting the recommendation of a magistrate judge assigned to the case, found that no Bivens claim was available against employees of a privately operated prison because Pollard could have sought alternative tort remedies and because the prison employees were not acting "under color of federal law." (16)

Pollard appealed to the Ninth Circuit, which reversed. (17) The court noted that the Supreme Court had never previously addressed whether a state remedy might preclude Bivens actions, but concluded that the Wilkie test favored extending Bivens in this case. (18) Looking to the first prong of the Wilkie test, the court held that Pollard's ability to seek tort remedies did not provide a "convincing reason" to stay a Bivens remedy. (19) The court adduced two reasons for this conclusion. First, because the available relief was a state remedy, a judicially crafted remedy would not implicate separation of powers concerns. (20) Second, allowing state tort remedies to displace Bivens actions would frustrate the goal of providing uniform remedies for constitutional violations because there are differences among the states' tort remedies, including the presence or absence of caps on non-economic damages and differing statutes of limitations. (21) With respect to the second prong of the Wilkie test, the court found no "special factors" counseling against extension of Bivens. (22)

The Supreme Court reversed and remanded. (23) Writing for the Court, (24) Justice Breyer found that Pollard could not assert a Bivens claim, "primarily because Pollard's Eighth Amendment claim focuses upon a kind of conduct that typically falls within the scope of traditional state tort law." (25) The Court found that the existence of this state remedy constituted a "convincing reason" to refrain from extending Bivens. (26) In support of this conclusion, Breyer examined and dismissed four arguments advanced by Pollard. (27) First, the Court rejected Pollard's contention that its holding in Carlson v. Green, a 1980 decision that extended a Bivens remedy for claims against employees of public prisons, (28) controlled the case. (29) The Court distinguished Carlson on the grounds that employees of public prisons, unlike employees of private prisons, are typically immune from tort claims. (30) The Court also noted that it had previously rejected a similar suggestion by Justice Stevens in his dissenting opinion in Malesko, (31) a 2001 decision in which the Court held that a prisoner could not bring a Bivens claim against a private prison because alternative state remedies existed. (32) Second, the Court found that Malesko foreclosed Pollard's contention that Carlson required federal, rather than state, remedies for constitutional violations. (33) According to the majority, state tort law could adequately deter constitutional violations and compensate victims, and thus a federal remedy may not always be necessary. (34) Third, the Court argued that in Pollard's particular case, tort remedies were well-suited to protect the constitutional interests in question. (35) It noted that California's tort law, which "basically reflects general principles of tort law ... in ... every State," extended to private jailers and had in fact been so applied on previous occasions. (36) In the majority's view, tort remedies "need not be perfectly congruent" with Bivens liability, so long as they similarly deter Eighth Amendment violations and similarly compensate victims. (37) Finally, the Court deferred to a later date Pollard's concern that state tort law might not cover certain Eighth Amendment claims, because it was...