In Minneci v. Pollard, Justice Breyer for eight Justices declines to find a Bivens remedy for violation of Eighth Amendment by privately managed prison personnel. Lousy pro-corporation Roberts Court, not finding for liability for corporations!
The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [theFourth Amendment] by a federal agent . . . gives rise to acause of action for damages” against a Federal Government employee). Because we believe that in the circumstances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensation—we cannot do so. See Wilkie v. Robbins, 551 U. S. 537, 550 (2007) (no Bivens action where “alternative, existing” processesprovide adequate protection).
I think the Chief kept it 8-1 by letting Breyer write on very narrow grounds, focusing on the availability of state remedies, not limiting Bivens.
Regardless, we concede that we cannot prove a negativeor be totally certain that the features of state tort law relevant here will universally prove to be, or remain, as wehave described them. Nonetheless, we are certain enough about the shape of present law as applied to the kind of case before us to leave different cases and different state laws to another day. That is to say, we can decide whether to imply a Bivens action in a case where an EighthAmendment claim or state law differs significantly fromthose at issue here when and if such a case arises. The possibility of such a different future case does not providesufficient grounds for reaching a different conclusion here.
For these reasons, where, as here, a federal prisonerseeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the EighthAmendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care atissue here), the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.
This in no way limits the ability of the Court to expand Bivens.
Justice Ginsburg dissents alone.
Were Pollard incarcerated in a federal- or state-operatedfacility, 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, 75–83 (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 havesuffered “aggravated instances” of conduct state tort law forbids, ante, at 9 (opinion of the Court), but that sameaggravated conduct, when it is engaged in by official actors,* 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 federal 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).