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Bivens and Private Prisons

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The US Supreme Court today agreed to take up the question of Bivens suits against employees of privately operated federal prisons, granting certiorari in the case of Minneci v. Pollard, No. 10-1104.  The SCOTUSblog page, with links to cert-stage documents, is here.
When the Ninth Circuit denied rehearing en banc, Judge Bea dissented, joined by Chief Judge Kozinski and Judge O'Scannlain, Gould, Tallman, Callahan, Ikuta, and N.R. Smith.  Here is the first paragraph (footnotes 2 & 3 omitted):

The panel majority--over a vigorous dissent by Chief Judge Restani of the Court of International Trade--extends and grants a Bivens1claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees. It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh. Further, it disregards the Supreme Court's narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. Because such an unprecedented opinion demands further review, I respectfully dissent from the denial of rehearing en banc.

1Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), is an extraordinary precedent that gives a party harmed by constitutional error a remedy against federal officials in a way that parallels the ยง 1983 remedy against state actors. See Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006).

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