Court unlikely to allow private prison to be sued

AP News

11/1/2011 3:17:30 PM - AP News

The Supreme Court seemed unlikely on Tuesday to allow employees at a privately run federal prison to be sued by an inmate in federal court, despite his complaint that their neglect left him with two permanently damaged arms.

Justices heard appeals from lawyers representing employees of the GEO Group, formerly known as Wackenhut Corrections Corp, who work at the privately run Taft Correctional Institution in Taft, Calif. The 9th U.S. Circuit Court of Appeals had ruled inmate Richard Lee Pollard could sue GEO officials for his treatment after he fell and fractured both of his elbows.

Pollard said GEO officials put him in a metal restraint that caused him pain, and refused to provide him with a splint, making his injuries worse and causing permanent impairment. He sued in federal court for money, claiming GEO officials had violated the Eighth Amendment prohibition on cruel and unusual punishment.

The federal appeals court allowed his lawsuit against the GEO officials to move forward. Courts normally don't allow government employees to be sued in those types of lawsuits, but the high court has authorized some if constitutionally protected rights have been violated by the federal employee and there is no state court remedy.

Justices repeatedly questioned Pollard's lawyer about why his client did not file a state negligence lawsuit against GEO officials. Pollard's lawsuit will be dismissed if he can't sue in federal court, because the state statute of limitations has expired.

"We think it's likely that his medical malpractice claims, the claims against the doctors, could be vindicated. We don't think the law is clear in California that his other claims _ the deprivation, nutrition, hygiene, forced labor at some point before his injuries were healed _ that those would necessarily be covered," lawyer John Preis said.

Justice Stephen Breyer was skeptical. "So you have to have a cruel treatment and where a person deliberately or negligently subjects someone else to cruel treatment. My law school recollection of many years ago is that there ordinarily is a tort action. I'm suspicious of your statement that there isn't," he said.

And Breyer also found common ground with Justice Antonin Scalia despite their reputations as the stalwarts of the court's liberal and conservative wings on whether the court should expand these types of lawsuits nationwide, which are called "Bivens" cases. Pollard has argued that the court has to either bar all Bivens actions against all private prison employees for Eighth Amendment violations or allow all such lawsuits.

"If there is one state that would not have an adequate remedy for any single bad thing that could happen in prison, there is a Bivens action for everybody for everything?" Scalia asked. "Is that what you are saying?"

"Yes," Pries said.

"Wow," Scalia replied. "I certainly wouldn't want to hold that."

"I would find that rather surprising too," Breyer chimed in.

The justices will make their ruling next year.

The case is Minneci v. Pollard, 10-1104.