Correctional Services Corp. v. Malesko, 534 U.S. 61, 18 (2001)

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78

CORRECTIONAL SERVICES CORP. v. MALESKO

Stevens, J., dissenting

ble: "a direct action against the Government." 510 U. S., at 485.4

Moreover, in Meyer, as in Bush v. Lucas, 462 U. S. 367 (1983), and Schweiker v. Chilicky, 487 U. S. 412 (1988), we were not dealing with a well-recognized cause of action. The cause of action alleged in Meyer was a violation of procedural due process, and as the Meyer Court noted, "a Bivens action alleging a violation of the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in others." 510 U. S., at 484, n. 9. Not only is substantive liability assumed in the present case, but respondent's Eighth Amendment claim falls in the heartland of substantive Bivens claims.5

Because Meyer does not dispose of this case, the Court claims that the rationales underlying Bivens—namely, lack of alternative remedies and deterrence—are not present in cases in which suit is brought against a private corporation serving as a federal agent. However, common sense, buttressed by all of the reasons that supported the holding in Bivens, leads to the conclusion that corporate agents should not be treated more favorably than human agents.

First, the Court argues that respondent enjoys alternative remedies against the corporate agent that distinguish this case from Bivens. In doing so, the Court characterizes Bivens and its progeny as cases in which plaintiffs lacked "any alternative remedy," ante, at 70. In Bivens, however, even though the plaintiff's suit against the Federal Gov-4 Meyer also did not address the present situation because the Court understood the plaintiff's "real complaint" in that case to be that the individual officers would be shielded by qualified immunity, 510 U. S., at 485, a concern not present in the case before us, see Richardson v. McKnight, 521 U. S. 399, 412 (1997) (denying qualified immunity to private prison guards in a suit under 42 U. S. C. 1983).

5 The Court incorrectly assumes that we are being asked "to imply a new constitutional tort," ante, at 66. The tort here is, however, well established; the only question is whether a remedy in damages is available against a limited class of tortfeasors.

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