Correctional Services Corp. v. Malesko, 534 U.S. 61, 16 (2001)

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Stevens, J., dissenting

decade later, in Carlson v. Green, 446 U. S. 14 (1980), we held that a violation of the Eighth Amendment by federal prison officials gave rise to a Bivens remedy despite the fact that the plaintiffs also had a remedy against the United States under the Federal Tort Claims Act (FTCA). We stated: "Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." 446 U. S., at 18 (emphasis added).

In subsequent cases, we have decided that a Bivens remedy is not available for every conceivable constitutional violation.1 We have never, however, qualified our holding that Eighth Amendment violations are actionable under Bivens. See Farmer v. Brennan, 511 U. S. 825 (1994); McCarthy v. Madigan, 503 U. S. 140 (1992). Nor have we ever suggested that a category of federal agents can commit Eighth Amendment violations with impunity.

The parties before us have assumed that respondent's complaint has alleged a violation of the Eighth Amendment.2 The violation was committed by a federal agent—a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government. Thus, the question presented by this case is whether the Court should create an exception to the straightforward application of Bivens and

1 See, e. g., FDIC v. Meyer, 510 U. S. 471 (1994); Schweiker v. Chilicky, 487 U. S. 412 (1988); Bush v. Lucas, 462 U. S. 367 (1983); Chappell v. Wallace, 462 U. S. 296 (1983).

2 Although it might have challenged the sufficiency of respondent's constitutional claim, see ante, at 72-73, petitioner has not done so. See Tr. of Oral Arg. 55 (acknowledgment by petitioner that the complaint states an Eighth Amendment violation). Its petition for certiorari presented the single question whether a Bivens cause of action for damages "should be implied against a private corporation acting under color of federal law." Pet. for Cert. (i).

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