Correctional Services Corp. v. Malesko, 534 U.S. 61, 12 (2001)

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72

CORRECTIONAL SERVICES CORP. v. MALESKO

Opinion of the Court

prisoners enjoy respondent's contemplated remedy. If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual; a remedy Meyer found sufficient, and which respondent did not timely pursue. Whether it makes sense to impose asymmetrical liability costs on private prison facilities alone is a question for Congress, not us, to decide.

Nor are we confronted with a situation in which claimants in respondent's shoes lack effective remedies. Cf. Bivens, 403 U. S., at 410 (Harlan, J., concurring in judgment) ("For people in Bivens' shoes, it is damages or nothing"); Davis, 442 U. S., at 245 ("For Davis, as for Bivens, it is damages or nothing" (internal quotaton marks omitted)). It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. Tr. of Oral Arg. 41-42, 43. For example, federal prisoners in private facilities enjoy a parof cases suggesting that private correctional providers routinely abuse and take advantage of inmates under their control. Post, at 81, n. 9 (citing Brief for Legal Aid Society of City of New York as Amicus Curiae 8-25). See also Brief for American Civil Liberties Union as Amicus Curiae 14- 16, and n. 6 (citing and discussing "abundant" examples of such abuse). In all but one of these examples, however, the private facility in question housed state prisoners—prisoners who already enjoy a right of action against private correctional providers under 42 U. S. C. 1983. If it is true that the imperatives for deterring the unconstitutional conduct of private correctional providers are so strong as to demand that we imply a new right of action directly from the Constitution, then abuses of authority should be less prevalent in state facilities, where Congress already provides for such liability. That the trend appears to be just the opposite is not surprising given the BOP's oversight and monitoring of its private contract facilities, see Brief for United States as Amicus Curiae 4-5, 24- 26, which Justice Stevens does not mention.

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