The Prisoner’s Dilemma: Rehnquist Edition

One of the interesting things about Supreme Court precedents is the  inconsistent and contradictory web of legal reasoning they weave based on (1) the passage of time,  (2) changes in facts, and (3) the composition of the Court.

To demonstrate, let’s take a little magic carpet ride down the rabbit hole known as § 1983 prison litigation.

If you’re not familiar with 42 U.S.C. § 1983, here’s all you need to know: it’s a federal statute that allows you to sue state government officials for violating your constitutional rights.  But it’s important to emphasize that it is only good against state actors.  In other words, it doesn’t apply to the federal government.  If you want to sue federal employees for violating your constitutional rights, you have to use a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which implied a federal remedy analogous to § 1983.  Bivens and § 1983 diverge at times, and are not completely interchangeable.  But that’s all you really need to know in order to understand the rest of this post.

With that out of way, let’s dive head-first into the wading pool, shall we?

In Procunier v. Navarette, 434 U.S. 555 (1978), SCOTUS established qualified immunity for prison guards, finding that prison officials exercised a discretionary function on behalf of the Executive which entitled them to qualified immunity, but did not rise to the level of absolute immunity, which is a pretty exclusive penthouse (judges and prosecutors hold most of the member’s only jackets in that category).  Alright, so prison officials get qualified immunity.  Simple enough, right?

In Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982), SCOTUS held that § 1983 permits suit against a private corporation that is acting under color of state law.  In other words, if you’re a private corporation performing a duty that would normally be performed by a state government, you can be sued as if you’re a state actor.  This case doesn’t involve prisons, but it is important for reasons that will become apparent in a moment.

Later, in Richardson v. McKnight, 521 U.S. 399 (1997), the Supreme Court found that private prison officials did not enjoy qualified immunity from § 1983 actions.  The Court reasoned that qualified immunity was typically only granted in cases where a certain class of state actors has a “firmly rooted tradition” of immunity from civil liability, the existence of which flows from the common law doctrine of Sovereign Immunity.  The Court held that private prison officials, despite not benefiting from qualified immunity, could nonetheless be held liable under § 1983, because by housing state prisoners, they were acting “under color of state law.”  So here, we begin to see a little asymmetry: SCOTUS tells us that private prison officials are acting under color of state law, and therefore can be sued as state actors; but can’t raise the affirmative defense of qualified immunity like their publicly-employed counterparts can.  The Court articulated a few public policy justifications for this asymmetry, but nonetheless, it does muddy the waters a little (I happen to agree with the policies behind this distinction, but I nonetheless recognize the illogic of considering private prison officials state actors for one purpose, but not the other).

Enter Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001).  In this case, SCOTUS held that Bivens does not provide an implied right of action against private officials operating a corrections facility on behalf of the federal government.  The Court reasoned that Bivens is a judicially-created cause of action, and that Bivens actions should not be extended beyond their original premise.  The Court’s opinion, penned by Justice Rehnquist, noted that Bivens only grants a cause of action against individual federal employees, and not against the United States government itself.  The petitioner in this case was trying to sue Correctional Services Corp. (“CSC”) writ large, as opposed to merely the employee(s) that allegedly deprived him of his constitutional rights.  The Court analogized CSC to the United States Government (who can’t be sued directly under Bivens), and therefore, reasoned that no Bivens action was available against the CSC.

So now, we’re at a point where a prisoner can sue a publicly-employed state prison official under § 1983.  The prisoner can also sue a privately-employed state prison official under § 1983.  They can even sue a private corporation operating a state prison under § 1983.  But they cannot sue a private corporation operating a federal prison under Bivens.  After Malesko, there’s no “implied” cause of action in the last scenario.

Why does it make a difference whether the guy/company violating my rights is employed by/running a state or federal prison, you ask?  Well, practically speaking, it shouldn’t.  Unfortunately, because Rehnquist et al. always hated Bivens from the second it was born, they never missed an opportunity to limit its application whenever they could, regardless of whether it was inconsistent with prior cases.  So now, we have a situation where, if you’re being held in a privately-run state prison, you have remedies under § 1983.  But if you’re being held in a privately-run federal prison, you do not have the same remedies available to you.

Justice Stevens explained the incongruity in a lengthy paragraph from his Malesko dissent:

The Court raises a concern with imposing “asymmetrical liability costs on private prison facilities,” ante, at 522, and further claims that because federal prisoners in Government-run institutions can only sue officers, it would be unfair to permit federal prisoners in private institutions to sue an “officer’s employer,” ibid.  Permitting liability in the present case, however, would produce symmetry: both private and public prisoners would be unable to sue the principal ( i.e., the Government), but would be able to sue the primary federal agent (i.e., the Government official or the corporation).  Indeed, it is the Court’s decision that creates asymmetry—between federal and state prisoners housed in private correctional facilities.  Under 42 U.S.C. § 1983, a state prisoner may sue a private prison for deprivation of constitutional rights, [citing Lugar], yet the Court denies such a remedy to that prisoner’s federal counterpart.  

Stevens continued:

It is true that we have never expressly held that the contours of Bivens and § 1983 are identical. The Court, however, has recognized sound jurisprudential reasons for parallelism, as different standards for claims against state and federal actors “would be incongruous and confusing.” [citations omitted].

Stevens, of course, recognized what he was dealing with.  He knew that both Scalia and Rehnquist hated Bivens, and he called them out in his dissent:

It is apparent from the Court’s critical discussion of the thoughtful opinions of Justice Harlan and his contemporaries, ante, at 519, and n. 3, and from its erroneous statement of the question presented by this case . . . that the driving force behind the Court’s decision is a disagreement with the holding in Bivens itself.

In a footnote, Stevens snarkily tells us that “such hostility to the core of Bivens is not new,” and points to Scalia’s concurring opinion, in which Scalia tells us that Bivens  is a “relic of . . . heady days” and should be limited  . . . to its facts.”  Stevens also points us to one of  Rehnquist’s previous dissents, where Rehnquist states that “[T]o dispose of this case as if Bivens were rightly decided would . . . be to start with an ‘unreality.’”  Stevens noted in closing that there was nothing new in the Court’s “disregard for precedent concerning well-established causes of action.”  After which Steven did what most frustrated dissenting judges do: cite to one of his own dissents and calls it a day—which is the equivalent of picking up your ball and going home.  I for one, don’t blame him.

So basically, what we have here is an incongruity between federal and state prison systems because certain members of SCOTUS disagreed with a particular decision, and thereafter sought to limit its application as much as possible—even if it makes a mess of the law.  And while it is true that a prisoner held in a privately-run federal prison facility is not without any remedies.  The problem is that those remedies come with their own set of limitations and restrictions.  The Federal Tort Claims Act, for example, exempts the United States from liability for certain intentional torts.  And while SCOTUS recently held in Milbrook v. United States that federal prisoners can sue prison officials for intentional torts committed by federal prison guards in the scope of their employment, it doesn’t change the fact that FTCA claims must “apply the law of the state where the act or omission occurred,” which may be more or less favorable based on what state you happen to be incarcerated in.

This whole fiasco is a good example of just how malleable stare decisis is.  While the Rehnquist Court technically did no more than limit Bivens to its facts when they decided Malesko, it doesn’t change the fact that they screwed up the law in the process.  And they screwed it up based on a purely ideological disagreement with Bivens.  That’s not to say judges shouldn’t have those disagreements, of course—there’s plenty of well-entrenched SCOTUS cases I would love to see reversed.  But in such cases, the right decision is to just come out and say that you think Bivens was wrongly decided, and ought to be overruled.  None of this half-stepping nonsense that inevitably makes the law an even thornier maze than already is.  Good news for lawyers, perhaps—but not so great for the unwashed masses, for whom law becomes less accessible every day.

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