Correctional Services Corp. v. Malesko, 534 U.S. 61, 19 (2001)

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Cite as: 534 U. S. 61 (2001)

Stevens, J., dissenting

ernment under state tort law may have been barred by sovereign immunity, a suit against the officer himself under state tort law was theoretically possible. Moreover, as the Court recognized in Carlson, Bivens plaintiffs also have remedies available under the FTCA. Thus, the Court is incorrect to portray Bivens plaintiffs as lacking any other avenue of relief, and to imply as a result that respondent in this case had a substantially wider array of non-Bivens remedies at his disposal than do other Bivens plaintiffs.6 If alternative remedies provide a sufficient justification for closing the federal forum here, where the defendant is a private corporation, the claims against the individual defendants in Carlson, in light of the FTCA alternative, should have been rejected as well.7

It is ironic that the Court relies so heavily for its holding on this assumption that alternative effective remedies— primarily negligence actions in state court—are available to respondent. See ante, at 72-74. Like Justice Harlan, I think it "entirely proper that these injuries be compensable according to uniform rules of federal law, especially in

6 The Court recognizes that the question whether a Bivens action would lie against the individual employees of a private corporation like Correctional Services Corporation (CSC) is not raised in the present case. Ante, at 65. Both CSC and respondent have assumed Bivens would apply to these individuals, and the United States as amicus maintains that such liability would be appropriate under Bivens. It does seem puzzling that Bivens liability would attach to the private individual employees of such corporations—subagents of the Federal Government—but not to the corporate agents themselves. However, the United States explicitly maintains this to be the case, and the reasoning of the Court's opinion relies, at least in part, on the availability of a remedy against employees of private prisons. Cf. ante, at 72 (noting that Meyer "found sufficient" a remedy against the individual officer, "which respondent did not timely pursue" (emphasis added)).

7 Although the Court lightly references administrative remedies that might be available to CSC-housed inmates, these are by no means the sort of comprehensive administrative remedies previously contemplated by the Court in Bush and Schweiker.


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