Correctional Services Corp. v. Malesko, 534 U.S. 61, 20 (2001)

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Stevens, J., dissenting

light of the very large element of federal law which must in any event control the scope of official defenses to liability." Bivens, 403 U. S., at 409 (opinion concurring in judgment). And aside from undermining uniformity, the Court's reliance on state tort law will jeopardize the protection of the full scope of federal constitutional rights. State law might have comparable causes of action for tort claims like the Eighth Amendment violation alleged here, see ante, at 73, but other unconstitutional actions by prison employees, such as violations of the Equal Protection or Due Process Clauses, may find no parallel causes of action in state tort law. Even though respondent here may have been able to sue for some degree of relief under state law because his Eighth Amendment claim could have been pleaded as negligence, future plaintiffs with constitutional claims less like traditional torts will not necessarily be so situated.8

Second, the Court claims that the deterrence goals of Bivens would not be served by permitting liability here. Ante, at 71 (citing Meyer). It cannot be seriously maintained, however, that tort remedies against corporate employers have less deterrent value than actions against their

8 The Court blames respondent, who filed his initial complaint pro se, for the lack of state remedies in this case; according to the Court, respondent's failure to bring a negligence suit in state court was "due solely to strategic choice," ante, at 74. Such strategic behavior, generally speaking, is imaginable, but there is no basis in the case before us to charge respondent with acting strategically. Cf. ante, at 73 (discussing how proving a federal constitutional claim would be "considerably more difficult" than proving a state negligence claim). Respondent filed his complaint in federal court because he believed himself to have been severely maltreated while in federal custody, and he had no legal counsel to advise him to do otherwise. Without the aid of counsel, respondent not only failed to file for state relief, but he also failed to name the particular prison guard who was responsible for his injuries, resulting in the eventual dismissal of the claims against the individual officers as time barred. Respondent may have been an unsophisticated plaintiff, or, at worst, not entirely diligent about determining the identify of the guards, but it can hardly be said that "strategic choice" was the driving force behind respondent's litigation behavior.

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