Minneci v. Pollard , 132 S. Ct. 617 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MINNECI ET AL. v. POLLARD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 10–1104. Argued November 1, 2011—Decided January 10, 2012
Respondent Pollard sought damages from employees at a privately run
federal prison in California, claiming that they had deprived him of
adequate medical care in violation of the Eighth Amendment’s prohi-
bition against cruel and unusual punishment. The Federal District
Court dismissed the complaint, ruling that the Eighth Amendment
does not imply an action under Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388, against a privately managed prison’s person-
nel. The Ninth Circuit reversed.
Held: Because in the circumstance of this case, state tort law authorizes
adequate alternative damages actions—providing both significant de-
terrence and compensation—no Bivens remedy can be implied here.
Pp. 3−12.
(a) Wilkie v. Robbins, 551 U. S. 537, fairly summarizes the basic
considerations the Court applies here. In deciding whether to recog-
nize a Bivens remedy, a court must first ask “whether any alterna-
tive, existing process for protecting the [constitutionally recognized]
interest amounts to a convincing reason for the Judicial Branch to re-
frain from providing a new and freestanding” damages remedy. Even
absent an alternative, “a Bivens remedy is a subject of judgment: ‘the
federal courts must make the kind of remedial determination that is
appropriate for a common-law tribunal, paying particular heed . . . to
any special factors counselling hesitation before authorizing a new
kind of federal litigation.’ ” Id., at 550. In Bivens itself, the Court
held that the Fourth Amendment implicitly authorized a court to or-
der federal agents to pay damages to a person injured by the agents’
violation of the Amendment’s strictures, 403 U. S., at 389, noting that
the Fourth Amendment prohibited conduct that state law might
permit, id., at 392–393, and that the interests protected on the one
2 MINNECI v. POLLARD
Syllabus
hand by state “trespass” and “invasion of privacy” laws and on the
other hand by the Fourth Amendment “may be inconsistent or even
hostile,” id., at 394. It also stated that “[h]istorically, damages have
been regarded as the ordinary remedy for an invasion of personal in-
terests in liberty,” id., at 395, and found “no special factors counsel-
ling hesitation in the absence of affirmative action by Congress.” Id.,
at 396. Bivens actions were allowed in Davis v. Passman, 442 U. S.
228, for a Fifth Amendment due process claim involving gender-
based employment discrimination, and in Carlson v. Green, 446 U. S.
14, for an Eighth Amendment claim based on federal government of-
ficials’ “deliberat[e] indifferen[ce]” to a federal prisoner’s medical
needs, id., at 16, n. 1, 17. Since Carlson, this Court has declined to
imply a Bivens action in several different instances. See, e.g., Bush v.
Lucas, 462 U. S. 367, Correctional Services Corp. v. Malesko, 534
U. S. 61.
Applying Wilkie’s approach here, Pollard cannot assert a Bivens
claim, primarily because his Eighth Amendment claim focuses on a
kind of conduct that typically falls within the scope of traditional
state tort law. And in the case of a privately employed defendant,
state tort law provides an “alternative, existing process” capable of
protecting the constitutional interests at stake. Wilkie, 551 U. S., at
550. The existence of that alternative remedy constitutes a “convinc-
ing reason for the Judicial Branch to refrain from providing a new
and freestanding” damages remedy. Ibid. Pp. 3−7.
(b) Pollard’s contrary arguments are rejected. First, he claims that
Carlson authorizes an Eighth Amendment-based Bivens action here,
but Carlson involved government, not privately employed, personnel.
The potential existence of an “adequate alternative, existing process”
differs dramatically for public and private employees, as prisoners
ordinarily can bring state tort actions against private employees, but
not against public ones. Second, Pollard’s argument that this Court
should consider only whether federal laws provide adequate alterna-
tive remedies because of the “vagaries” of state tort law, Carlson, su-
pra, at 23, was rejected in Malesko, supra, at 72−73. Third, Pollard
claims that state tort law does not provide remedies adequate to pro-
tect the constitutional interests at issue here, but California, like
every other State (as far as the Court is aware), has tort law that
provides for negligence actions for claims such as his. That the state
law may prove less generous than would a Bivens action does not
render the state law inadequate, and state remedies and a potential
Bivens remedy need not be perfectly congruent. Fourth, Pollard ar-
gues that there may be similar Eighth Amendment claims that state
tort law does not cover, but he offers no supporting cases. The possi-
bility of a future case, where an Eighth Amendment claim or state
Cite as: 565 U. S. ____ (2012) 3
Syllabus
law differs significantly from those at issue, provides insufficient
grounds for reaching a different conclusion here. Pp. 7−12.
607 F. 3d 583 and 629 F. 3d 843, reversed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, ALITO, SOTOMAYOR, and KAGAN,
JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J.,
joined. GINSBURG, J., filed a dissenting opinion.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1104
_________________
MARGARET MINNECI, ET AL., PETITIONERS v.
RICHARD LEE POLLARD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 10, 2012]
JUSTICE BREYER delivered the opinion of the Court.
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. Narcot-
ics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [the
Fourth Amendment] by a federal agent . . . gives rise to a
cause of action for damages” against a Federal Govern-
ment employee). Because we believe that in the circum-
stances 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” processes
provide adequate protection).
I
Richard Lee Pollard was a prisoner at a federal facility
operated by a private company, the Wackenhut Correc-
tions Corporation. In 2002 he filed a pro se complaint in
federal court against several Wackenhut employees, who
(now) include a security officer, a food-services supervisor,
2 MINNECI v. POLLARD
Opinion of the Court
and several members of the medical staff. As the Federal
Magistrate Judge interpreted Pollard’s complaint, he
claimed that these employees had deprived him of ade-
quate medical care, had thereby violated the Eighth
Amendment’s prohibition against “cruel and unusual”
punishment, and had caused him injury. He sought
damages.
Pollard said that a year earlier he had slipped on a cart
left in the doorway of the prison’s butcher shop. The
prison medical staff took x rays, thought he might have
fractured both elbows, brought him to an outside clinic for
further orthopedic evaluation, and subsequently arranged
for surgery. In particular, Pollard claimed:
(1) Despite his having told a prison guard that he could
not extend his arm, the guard forced him to put on a
jumpsuit (to travel to the outside clinic), causing him “the
most excruciating pain,” App. 32;
(2) During several visits to the outside clinic, prison
guards made Pollard wear arm restraints that were con-
nected in a way that caused him continued pain;
(3) Prison medical (and other) personnel failed to follow
the outside clinic’s instructions to put Pollard’s left elbow
in a posterior splint, failed to provide necessary physical
therapy, and failed to conduct necessary studies, including
nerve conduction studies;
(4) At times when Pollard’s arms were in casts or simi-
larly disabled, prison officials failed to make alternative
arrangements for him to receive meals, with the result
that (to avoid “being humiliated” in the general food ser-
vice area, id., at 35) Pollard had to auction off personal
items to obtain funds to buy food at the commissary;
(5) Prison officials deprived him of basic hygienic care
to the point where he could not bathe for two weeks;
(6) Prison medical staff provided him with insufficient
medicine, to the point where he was in pain and could not
sleep; and
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
(7) Prison officials forced him to return to work before
his injuries had healed.
After concluding that the Eighth Amendment did not
provide for a Bivens action against a privately managed
prison’s personnel, the Magistrate Judge recommended
that the District Court dismiss Pollard’s complaint. The
District Court did so. But on appeal the Ninth Circuit
found that the Eighth Amendment provided Pollard with a
Bivens action, and it reversed the District Court. Pollard
v. The GEO Group, Inc., 607 F. 3d 583, 603, as amended,
629 F. 3d 843, 868 (CA9 2010).
The defendants sought certiorari. And, in light of a split
among the Courts of Appeals, we granted the petition. Com-
pare ibid. (finding an Eighth Amendment Bivens action
where prisoner sues employees of a privately operated
federal prison), with, e.g., Alba v. Montford, 517 F. 3d
1249, 1254–1256 (CA11 2008) (no Bivens action available),
and Holly v. Scott, 434 F. 3d 287, 288 (CA4 2006) (same).
II
Recently, in Wilkie v. Robbins, supra, we rejected a
claim that the Fifth Amendment impliedly authorized a
Bivens action that would permit landowners to obtain
damages from government officials who unconstitutionally
interfere with their exercise of property rights. After
reviewing the Court’s earlier Bivens cases, the Court
stated:
“[T]he decision whether to recognize a Bivens remedy
may require two steps. In the first place, there is the
question whether any alternative, existing process for
protecting the [constitutionally recognized] interest
amounts to a convincing reason for the Judicial
Branch to refrain from providing a new and freestand-
ing remedy in damages. . . . But even in the absence
of an alternative, a Bivens remedy is a subject of
judgment: ‘the federal courts must make the kind of
4 MINNECI v. POLLARD
Opinion of the Court
remedial determination that is appropriate for a
common-law tribunal, paying particular heed, how-
ever, to any special factors counselling hesitation be-
fore authorizing a new kind of federal litigation.’ ” 551
U. S., at 550 (quoting Bush v. Lucas, 462 U. S. 367,
378 (1983)).
These standards seek to reflect and to reconcile the
Court’s reasoning set forth in earlier cases. In Bivens
itself the Court held that the Fourth Amendment implicit-
ly authorized a court to order federal agents to pay dam-
ages to a person injured by the agents’ violation of the
Amendment’s constitutional strictures. 403 U. S., at 389.
The Court noted that “ ‘where federally protected rights
have been invaded,’ ”courts can “ ‘adjust their remedies so
as to grant the necessary relief.’ ” Id., at 392 (quoting Bell
v. Hood, 327 U. S. 678, 684 (1946)). See also Correctional
Services Corp. v. Malesko, 534 U. S. 61, 66 (2001) (“author-
ity to imply a new constitutional tort” anchored within
general “ ‘arising under’ ” jurisdiction). It pointed out that
the Fourth Amendment prohibited, among other things,
conduct that state law might permit (such as the conduct
at issue in that very case). Bivens, 403 U. S., at 392–393.
It added that the interests protected on the one hand by
state “trespass” and “invasion of privacy” laws and on the
other hand by the Fourth Amendment’s guarantees “may
be inconsistent or even hostile.” Id., at 394. It stated
that “[h]istorically, damages have been regarded as the
ordinary remedy for an invasion of personal interests in
liberty.” Id., at 395. And it found “no special factors
counselling hesitation in the absence of affirmative action
by Congress.” Id., at 396.
In Davis v. Passman, 442 U. S. 228 (1979), the Court
considered a former congressional employee’s claim for
damages suffered as a result of her employer’s unconstitu-
tional discrimination based on gender. The Court found a
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
damages action implicit in the Fifth Amendment’s Due
Process Clause. Id., at 248–249. In doing so, the Court
emphasized the unavailability of “other alternative forms
of judicial relief.” Id., at 245. And the Court noted that
there was “no evidence” that Congress (or the Constitu-
tion) intended to foreclose such a remedy. Id., at 247.
In Carlson v. Green, 446 U. S. 14 (1980), the Court
considered a claim for damages brought by the estate of
a federal prisoner who (the estate said) had died as the
result of government officials’ “deliberat[e] indifferen[ce]”
to his medical needs—indifference that violated the
Eighth Amendment. Id., at 16, n. 1, 17 (citing Estelle v.
Gamble, 429 U. S. 97 (1976)). The Court implied an action
for damages from the Eighth Amendment. 446 U. S., at17–18. It noted that state law offered the particular plain-
tiff no meaningful damages remedy. Id., at 17, n. 4.
Although the estate might have brought a damages claim
under the Federal Tort Claims Act, the defendant in any
such lawsuit was the employer, namely the United States,
not the individual officers who had committed the viola-
tion. Id., at 21. A damages remedy against an individual
officer, the Court added, would prove a more effective
deterrent. Ibid. And, rather than leave compensation to
the “vagaries” of state tort law, a federal Bivens action
would provide “uniform rules.” 446 U. S., at 23.
Since Carlson, the Court has had to decide in several
different instances whether to imply a Bivens action. And
in each instance it has decided against the existence of
such an action. These instances include:
(1) A federal employee’s claim that his federal employer
dismissed him in violation of the First Amendment, Bush,
supra, at 386–388 (congressionally created federal civil
service procedures provide meaningful redress);
(2) A claim by military personnel that military superi-
ors violated various constitutional provisions, Chappell v.
Wallace, 462 U. S. 296, 298–300 (1983) (special factors
6 MINNECI v. POLLARD
Opinion of the Court
related to the military counsel against implying a Bivens
action), see also United States v. Stanley, 483 U. S. 669,
683–684 (1987) (similar);
(3) A claim by recipients of Social Security disability
benefits that benefits had been denied in violation of the
Fifth Amendment, Schweiker v. Chilicky, 487 U. S. 412,
414, 425 (1988) (elaborate administrative scheme provides
meaningful alternative remedy);
(4) A former bank employee’s suit against a federal
banking agency, claiming that he lost his job due to agency
action that violated the Fifth Amendment’s Due Process
Clause, FDIC v. Meyer, 510 U. S. 471, 484–486 (1994) (no
Bivens actions against government agencies rather than
particular individuals who act unconstitutionally);
(5) A prisoner’s Eighth Amendment-based suit against
a private corporation that managed a federal prison, Ma-
lesko, 534 U. S., at 70–73 (to permit suit against the
employer-corporation would risk skewing relevant incen-
tives; at the same time, the ability of a prisoner to bring
state tort law damages action against private individual
defendants means that the prisoner does not “lack effec-
tive remedies,” id., at 72).
Although the Court, in reaching its decisions, has not
always similarly emphasized the same aspects of the
cases, Wilkie fairly summarizes the basic considerations
that underlie those decisions. 551 U. S., at 550. We con-
sequently apply its approach here. And we conclude that
Pollard cannot assert a Bivens claim.
That is primarily because Pollard’s Eighth Amendment
claim focuses upon a kind of conduct that typically falls
within the scope of traditional state tort law. And in the
case of a privately employed defendant, state tort law
provides an “alternative, existing process” capable of
protecting the constitutional interests at stake. 551 U. S.,
at 550. The existence of that alternative here constitutes
a “convincing reason for the Judicial Branch to refrain
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
from providing a new and freestanding remedy in dam-
ages.” Ibid. Our reasoning is best understood if we set
forth and explain why we reject Pollard’s arguments to the
contrary.
III
Pollard (together with supporting amici) asks us to
imply a Bivens action for four basic reasons—none of
which we find convincing. First, Pollard argues that this
Court has already decided in Carlson that a federal pris-
oner may bring an Eighth Amendment-based Bivens
action against prison personnel; and we need do no more
than simply apply Carlson’s holding here. Carlson, how-
ever, was a case in which a federal prisoner sought dam-
ages from personnel employed by the government, not
personnel employed by a private firm. 446 U. S., at 25.
And for present purposes that fact—of employment
status—makes a critical difference.
For one thing, the potential existence of an adequate
“alternative, existing process” differs dramatically in the
two sets of cases. Prisoners ordinarily cannot bring state-
law tort actions against employees of the Federal Govern-
ment. See 28 U. S. C. §§2671, 2679(b)(1) (Westfall Act)
(substituting United States as defendant in tort action
against federal employee); Osborn v. Haley, 549 U. S. 225,
238, 241 (2007) (Westfall Act immunizes federal employee
through removal and substitution of United States as
defendant). But prisoners ordinarily can bring state-law
tort actions against employees of a private firm. Infra, at
9–10.
For another thing, the Court specifically rejected Justice
Stevens’ somewhat similar suggestion in his dissenting
opinion in Malesko, namely that a prisoner’s suit against a
private prison-management firm should fall within Carl-
son’s earlier holding because such a firm, like a federal
employee, is a “federal agent.” Compare Malesko, 534
8 MINNECI v. POLLARD
Opinion of the Court
U. S., at 70, and n. 4 (majority opinion), with id., at 76–77,
82 (dissenting opinion). In rejecting the dissent’s sugges-
tion, the Court explained that the context in Malesko was
“fundamentally different” from the contexts at issue in
earlier cases, including Carlson. 534 U. S., at 70. That
difference, the Court said, reflected in part the nature of
the defendant, i.e., a corporate employer rather than an
individual employee, ibid., and in part reflected the exist-
ence of alternative “effective” state tort remedies, id., at
72–73. This last-mentioned factor makes it difficult to
square Pollard’s argument with Malesko’s reasoning.
Second, Pollard argues that, because of the “vagaries” of
state tort law, Carlson, 446 U. S., at 23, we should consid-
er only whether federal law provides adequate alternative
remedies. See id., at 18–19, 23 (considering adequacy of
federal remedies); see also, e.g., Schweiker, supra, at 423(similar); Bush, 462 U. S., at 378 (similar). But cf. Carl-
son, supra, at 24 (“ ‘[R]elevant Indiana statute would not
permit survival of the [state tort] claim’ ”). This argument
flounders, however, on the fact that the Court rejected it
in Malesko. Compare 534 U. S., at 72–73 (majority opin-
ion), with id., at 79–80 (Stevens, J., dissenting) (making
similar suggestion). State tort law, after all, can help to
deter constitutional violations as well as to provide com-
pensation to a violation’s victim. And it is consequently
unsurprising that several cases have considered the ade-
quacy or inadequacy of state-law remedies when determin-
ing whether to imply a Bivens remedy. See, e.g., Bivens,
403 U. S., at 394 (state tort law “inconsistent or even
hostile” to Fourth Amendment); Davis, 442 U. S., at 245,
n. 23 (noting no state-law remedy available); cf. Malesko,
supra, at 70 (noting that the Court has implied Bivens
action only where any alternative remedy against individ-
ual officers was “nonexistent” or where plaintiff “lacked
any alternative remedy” at all).
Third, Pollard argues that state tort law does not pro-
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
vide remedies adequate to protect the constitutional inter-
ests at issue here. Pollard’s claim, however, is a claim for
physical or related emotional harm suffered as a result of
aggravated instances of the kind of conduct that state
tort law typically forbids. That claim arose in California,
where state tort law provides for ordinary negligence
actions, for actions based upon “want of ordinary care or
skill,” for actions for “negligent failure to diagnose or
treat,” and for actions based upon the failure of one with a
custodial duty to care for another to protect that other
from “ ‘unreasonable risk of physical harm.’ ” See Cal. Civ.
Code Ann. §§1714(a), 1714.8(a) (West 2009 and Supp.
2012); Giraldo v. California Dept. of Corrections and Re-
habilitation, 168 Cal. App. 4th 231, 248, 85 Cal. Rptr. 3d
371, 384 (2008) (quoting Haworth v. State, 60 Haw. 557,
562, 592 P. 2d 820, 824 (1979)). California courts have
specifically applied this law to jailers, including private
operators of prisons. Giraldo, supra, at 252, 85 Cal. Rptr.
3d, at 387 (“[J]ailers owe prisoners a duty of care to pro-
tect them from foreseeable harm”); see also Lawson v.
Superior Ct., 180 Cal. App. 4th 1372, 1389–1390, 1397,
103 Cal. Rptr. 3d 834, 849–850, 855 (2010) (same).
Moreover, California’s tort law basically reflects general
principles of tort law present, as far as we can tell, in the
law of every State. See Restatement (Second) of Torts
§§314A(4), 320 (1963–1964). We have found specific au-
thority indicating that state law imposes general tort
duties of reasonable care (including medical care) on pris-
on employees in every one of the eight States where pri-
vately managed secure federal facilities are currently lo-
cated. See Dept. of Justice, Federal Bureau of Prisions,
Weekly Population Report (Dec 22, 2011), http://
www.bop.gov/locations/weekly_report.jsp (listing States)
(as visited Dec. 29, 2011, and available in Clerk of Court’s
case file); Thomas v. Williams, 105 Ga. App. 321, 326, 124
S. E. 2d 409, 412–413 (1962) (In Georgia, “ ‘sheriff owes to
10 MINNECI v. POLLARD
Opinion of the Court
a prisoner placed in his custody a duty to keep the prison-
er safely and free from harm, to render him medical aid
when necessary, and to treat him humanely and refrain
from oppressing him’ ”); Giraldo, supra, at 248, 85 Cal.
Rptr. 3d, at 384 (California, same); Farmer v. State ex rel.
Russell, 224 Miss. 96, 105, 79 So. 2d 528, 531 (1955) (Mis-
sissippi, same); Doe v. Albuquerque, 96 N. M. 433, 438,
631 P. 2d 728, 733 (App. 1981) (New Mexico, same); Mul-
tiple Claimants v. North Carolina Dept. of Health and
Human Servs., 176 N. C. App. 278, 280, 626 S. E. 2d 666,
668 (2006) (North Carolina, same); Clemets v. Heston, 20
Ohio App. 3d 132, 135–136, 485 N. E. 2d 287, 291 (1985)
(Ohio, same); Williams v. Syed, 782 A. 2d 1090, 1093–1094
(Pa. Commw. 2001) (Pennsylvania, same); Salazar v.
Collins, 255 S. W. 3d 191, 198–200 (Tex. App. 2008) (Tex-
as, same); see also Schellenger, 14 A. L. R. 2d 353, §2[a]
(Later Case Service and Supp. 2011) (same). But cf. Miss.
Code. Ann. §11–46–9(1)(m) (Supp. 2011) (statute forbid-
ding such actions against State—though not private—
employees); N. Y. Correc. Law Ann. §§24 (West 2003), 121
(2011 Cum. Supp.) (similar).
We note, as Pollard points out, that state tort law may
sometimes prove less generous than would a Bivens ac-
tion, say, by capping damages, see Cal. Civ. Code Ann.
§3333.2(b) (West 1997), or by forbidding recovery for emo-
tional suffering unconnected with physical harm, see 629
F. 3d, at 864, or by imposing procedural obstacles, say,
initially requiring the use of expert administrative panels
in medical malpractice cases, see, e.g., Me. Rev. Stat. Ann.,
Tit. 24, §2853, (Supp. 2010); Mass. Gen. Laws, ch. 231,
§60B (West 2010). But we cannot find in this fact suffi-
cient basis to determine state law inadequate.
State-law remedies and a potential Bivens remedy need
not be perfectly congruent. See Bush, supra, at 388 (ad-
ministrative remedies adequate even though they “do not
provide complete relief ”). Indeed, federal law as well as
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
state law contains limitations. Prisoners bringing federal
lawsuits, for example, ordinarily may not seek damages
for mental or emotional injury unconnected with physical
injury. See 42 U. S. C. §1997e(e). And Bivens actions,
even if more generous to plaintiffs in some respects, may
be less generous in others. For example, to show an
Eighth Amendment violation a prisoner must typically
show that a defendant acted, not just negligently, but with
“deliberate indifference.” Farmer v. Brennan, 511 U. S.
825, 834 (1994). And a Bivens plaintiff, unlike a state
tort law plaintiff, normally could not apply principles of
respondeat superior and thereby obtain recovery from a
defendant’s potentially deep-pocketed employer. See Ash-
croft v. Iqbal, 556 U. S. 662, 676 (2009).
Rather, in principle, the question is whether, in general,
state tort law remedies provide roughly similar incentives
for potential defendants to comply with the Eighth
Amendment while also providing roughly similar compen-
sation to victims of violations. The features of the two
kinds of actions just mentioned suggest that, in practice,
the answer to this question is “yes.” And we have found
nothing here to convince us to the contrary.
Fourth, Pollard argues that there “may” be similar
kinds of Eighth Amendment claims that state tort law
does not cover. But Pollard does not convincingly show
that there are such cases. Compare Brief for Respondent
Pollard 32 (questioning the availability of state tort reme-
dies for “prisoners [who] suffer attacks by other inmates,
preventable suicides, or the denial of heat, ventilation or
movement”), with Giraldo, supra, at 248–249, 85 Cal Rptr.
3d, at 384–385 (courts have long held that prison officials
must protect, e.g., transgender inmate from foreseeable
harm by other inmates), and Restatement (Second) of
Torts §§314A(4), 320.
Regardless, we concede that we cannot prove a negative
or be totally certain that the features of state tort law
12 MINNECI v. POLLARD
Opinion of the Court
relevant here will universally prove to be, or remain, as we
have 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 wheth-
er to imply a Bivens action in a case where an Eighth
Amendment claim or state law differs significantly from
those at issue here when and if such a case arises. The
possibility of such a different future case does not provide
sufficient grounds for reaching a different conclusion here.
For these reasons, where, as here, a federal prisoner
seeks damages from privately employed personnel work-
ing at a privately operated federal prison, where the con-
duct allegedly amounts to a violation of the Eighth
Amendment, 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 at
issue here), the prisoner must seek a remedy under state
tort law. We cannot imply a Bivens remedy in such a case.
The judgment of the Ninth Circuit is reversed.
So ordered.
Cite as: 565 U. S. ____ (2012) 1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1104
_________________
MARGARET MINNECI, ET AL., PETITIONERS v.
RICHARD LEE POLLARD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 10, 2012]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring.
I join the opinion of the Court because I agree that
a narrow interpretation of the rationale of Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),
would not cause the holding of that case to apply to the
circumstances of this case. Even if the narrowest ra-
tionale of Bivens did apply here, however, I would decline
to extend its holding. Bivens is “a relic of the heady days
in which this Court assumed common-law powers to create
causes of action” by constitutional implication. Correc-
tional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001)
(SCALIA, J., concurring); see also Wilkie v. Robbins, 551
U. S. 537, 568 (2007) (THOMAS, J., concurring). We have
abandoned that power in the statutory field, see Alexander
v. Sandoval, 532 U. S. 275, 287 (2001), and we should do
the same in the constitutional field, where (presumably)
an imagined “implication” cannot even be repudiated by
Congress. As I have previously stated, see Malesko, supra,
at 75, I would limit Bivens and its two follow-on cases
(Davis v. Passman, 442 U. S. 228 (1979), and Carlson v.
Green, 446 U. S. 14 (1980)) to the precise circumstances
that they involved.
Cite as: 565 U. S. ____ (2012) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
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No. 10–1104
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MARGARET MINNECI, ET AL., PETITIONERS v.
RICHARD LEE POLLARD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 10, 2012]
JUSTICE GINSBURG, dissenting.
Were Pollard incarcerated in a federal- or state-operated
facility, 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 charac-
ter of relief to Pollard, a prisoner placed by federal con-
tract in a privately operated prison. Pollard may have
suffered “aggravated instances” of conduct state tort law
forbids, ante, at 9 (opinion of the Court), but that same
aggravated conduct, when it is engaged in by official ac-
tors,* 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 feder-
al 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
——————
* The Ninth Circuit ruled that petitioners acted under color of federal
law, Pollard v. The GEO Group, Inc., 629 F. 3d 843, 854 (2010), and
petitioners did not seek this Court’s review of that determination, see
Brief for Petitioners 37, n. 8.
2 MINNECI v. POLLARD
GINSBURG, J., dissenting
in judgment).
Indeed, there is stronger cause for providing a federal
remedy in this case than there was in Malesko. There, the
question presented was whether a Bivens action lies
against a private corporation that manages a facility
housing federal prisoners. Malesko, 534 U. S., at 63.
Suing a corporate employer, the majority observed in
Malesko, would not serve to deter individual officers from
conduct transgressing constitutional limitations on their
authority. Id., at 70–71. Individual deterrence, the Court
reminded, was the consideration central to the Bivens
decision. Malesko, 534 U. S., at 70. Noting the availabil-
ity of state tort remedies, the majority in Malesko declined
to “exten[d] Bivens beyond [that decision’s] core premise,”
i.e., deterring individual officers. Malesko, 534 U. S., at71–73. Pollard’s case, in contrast, involves Bivens’ core
concern: His suit seeking damages directly from individu-
al officers would have precisely the deterrent effect the
Court found absent in Malesko.
For the reasons stated, I would hold that relief poten-
tially available under state tort law does not block Pol-
lard’s recourse to a federal remedy for the affront to the
Constitution he suffered. Accordingly, I would affirm the
Ninth Circuit’s judgment.