Publication Date



With the increasing privatization of prisons, a growing
issue is whether individual employees in private federal
prisons are liable through a Bivens suit for violating the
constitutional rights of inmates. Four circuits have
confronted the issue. Three circuits have held that no
Bivens action is available; but recently the Ninth Circuit
has held the contrary.
The Supreme Court's Bivens case law offers mixed
messages as to whether an implied cause of action should
be available in this situation. One view is that, despite an
initial willingness to expand Bivens, the Supreme Court
has consistently moved away from recognizing new Bivens
suits. An expanding class of alternative remedies that are
considered adequate to foreclose a Bivens action could
explain part of this shift. Another interpretation is that
recent Supreme Court cases have reaffirmed that the
Supreme Court's current approach to Bivens is
substantially the same as it was right after Bivens was
This Note will argue that based on recent Supreme
Court jurisprudence private prison employees should not
be subject to Bivens liability. Important policy
considerations underlying Bivens actions further suggest
a finding of no liability. Also, because a state law
negligence suit should be viewed as an adequate
alternative, the creation of an implied cause of action in
this context is unnecessary.