The Modest Effect of Minneci v. Pollard on Inmate Litigants

44 Pages Posted: 6 Oct 2013 Last revised: 31 Oct 2013

Date Written: 2013

Abstract

In Minneci v. Pollard, the Supreme Court denied the Bivens remedy for federal private prison inmates when state tort law is a reasonably comparable substitute. Minneci is part of a long line of decisions restricting the availability of Bivens. In this Article, I argue that, even if Minneci might be wrongly decided as a matter of Bivens doctrine, the results won’t be as dramatic as some fear.

Whether on the state or federal level, suing public prisons is difficult. Federal public prison inmates have to deal with the limitations of the FTCA, while their state counterparts are restricted by various state immunity doctrines and statutes. By contrast, private prisons, whether state or federal, are generally amenable to suit on state-law tort grounds, and the available tort theories are often more generous to plaintiffs than constitutional theories. (Federal and state PLRAs re-strict prisoner litigation substantially, but don’t seem to alter this calculus, as they generally apply equally to public and private prisons.)

Because the holding of Minneci is limited to cases where the state-law tort remedy is roughly comparable to Bivens, the result should be modest, even if the Supreme Court is unduly stingy with recognizing constitutional tort remedies.

Suggested Citation

Volokh, Alexander (Sasha), The Modest Effect of Minneci v. Pollard on Inmate Litigants (2013). Akron Law Review, Vol. 46, 2013, Emory Legal Studies Research Paper No. 13-261, Available at SSRN: https://ssrn.com/abstract=2336157

Alexander (Sasha) Volokh (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-5225 (Phone)
404-727-6820 (Fax)

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