As Luck Would Have It: Pollard v. GEO Group’s Extension of the Bivens Remedy Against Private Prison Employees
Imagine you are a federal inmate assigned to serve time under the authority of the Federal Bureau of Prisons at a privately run facility rather than a government‑run facility. An employee of the prison violates your Eighth Amendment right to be free from cruel and unusual punishment, and you want to sue under the Constitution in federal court. If you are located anywhere within the Ninth Circuit, you are entitled to a Bivens remedy. If you are located in any other part of the country, you may not be so lucky.
The circuits are split on whether private employees of federal prisons are acting under color of federal law for purposes of liability and whether state remedies that are available to inmates adequately protect their constitutional rights. This Comment argues that after hearing arguments on November 1, 2011, the Supreme Court ultimately should decide to adopt the Ninth Circuitʹs analysis in Pollard v. GEO Group: Individual employees of private federal prisons are liable for constitutional violations under Bivens. Pollard properly applies Supreme Court precedent, adequately protects prisoners’ rights, and promotes fairness among inmates in private and public federal prisons.