414
Scalia, J., dissenting
faith defense, rather than qualified immunity. . . . However, that issue is not before this Court in this interlocu-tory appeal." 88 F. 3d, at 425.
Like the Court in Wyatt, and the Court of Appeals in this case, we do not express a view on this last-mentioned question.
For these reasons the judgment of the Court of Appeals is
Affirmed.
Justice Scalia, with whom The Chief Justice, Justice
Kennedy, and Justice Thomas join, dissenting.
In Procunier v. Navarette, 434 U. S. 555 (1978), we held that state prison officials, including both supervisory and subordinate officers, are entitled to qualified immunity in a suit brought under 42 U. S. C. § 1983. Today the Court declares that this immunity is unavailable to employees of private prison management firms, who perform the same duties as state-employed correctional officials, who exercise the most palpable form of state police power, and who may be sued for acting "under color of state law." This holding is supported neither by common-law tradition nor public policy, and contradicts our settled practice of determining § 1983 immunity on the basis of the public function being performed.
I
The doctrine of official immunity against damages actions under § 1983 is rooted in the assumption that that statute did not abolish those immunities traditionally available at common law. See Buckley v. Fitzsimmons, 509 U. S. 259, 268 (1993). I agree with the Court, therefore, that we must look to history to resolve this case. I do not agree with the Court, however, that the petitioners' claim to immunity is defeated if they cannot provide an actual case, antedating or contemporaneous with the enactment of § 1983, in which immunity was successfully asserted by a private prison
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