Supreme Court to hear case of felon hurt in private prison

McClatchy NewspapersOctober 27, 2011 

WASHINGTON — Prison hurt Richard Lee Pollard, in more than the usual ways.

Now, from improbable beginnings, the Supreme Court will examine Pollard's treatment at a privately run California facility. The outcome could either shield or render more vulnerable the fast-growing private prison industry, not to mention what it might do for Pollard's own post-prison life.

"Nobody has an easy time in prison," said Pollard's pro bono attorney, University of Richmond law professor John Preis, "but he has had a particularly difficult time. It's been a struggle."

On Tuesday, Preis will have 30 minutes to convince justices that inmates held in privately run prisons enjoy the same constitutional right to sue employees over cruel and unusual punishment as do inmates in facilities run directly by the government.

"This case," Preis said, "is about how the Constitution should be enforced."

Private prison industry leaders believe otherwise, and Pollard's arguments will face considerable resistance Tuesday.

Along with the Obama administration, the industry wants inmates in privately run facilities to confine their complaints to damage claims in state courts. Federal lawsuits claiming constitutional violations go too far, the officials say, since the prison employees aren't federal workers.

"To imply an additional federal remedy, as (Pollard) urges, would ... subject employees of private prison contractors to a double dose of liability under state and federal law," Solicitor General Donald Verrilli Jr. wrote in a brief supporting the prison industry.

Pollard sued several prison employees, contending poor medical care following an injury that left him permanently damaged.

Potentially, the case goes well beyond the 54-year-old Pollard.

Privately run facilities currently hold about 34,000 federal prisoners across the country. Tens of thousands of additional state and local prisoners are likewise held in privately run facilities.

North of Sacramento, Calif., for instance, the same company that ran the San Joaquin Valley prison where Pollard was incarcerated now runs a correctional center near the town of Live Oak for some 300 low-security female prisoners.

The company, called the GEO Group, reported 2010 revenues of $1.2 billion.

"Our core correctional, detention and treatment market segments continue to be driven by strong fundamental trends and increasing demand for bed space," GEO Group chairman George C. Zoley said in his company's 2010 annual report.

Pollard came into the hands of Zoley's company having already traveled through the criminal justice system.

In April 1996, as a prior felon, Pollard was sentenced to 20 years after being convicted on methamphetamine and firearms charges. He landed at the Taft Correctional Institution, west of Bakersfield, Calif.

The GEO Group, then under a different name, had the contract to run the Taft facility from 1997 through 2007.

Pollard was working in the prison's butcher shop in 2001 when he tripped over a cart. He was diagnosed with possible fractures of both elbows and sent to a Bakersfield clinic. Pollard said guards forced his arms into painful positions when he was handcuffed and left him unsplinted for two weeks. He says he suffered permanent damage.

"The functioning of my forearm is never going to allow me to return to my previous job as an auto body shop (worker) and mechanic," Pollard stated in a September 2006 declaration.

Pollard started writing his own complaints, originally seeking $500,000. Skeptical officials labeled him a "frequent filer," a prisoner who clogged the courthouse with repeated lawsuits.

"He guards his rights a little more diligently than others," Preis said.

Fresno, Calif.-based U.S. District Judge Oliver Wanger dismissed Pollard's suit in 2007.

But Pollard, by chance, had come to the attention of Preis, who was researching similar cases. The professor told the felon he would represent him pro bono.

The case tests how far constitutional protections go.

Usually, federal employees are immune from lawsuits unless Congress has specifically authorized them. But in a 1971 case involving New York City resident Webster Bivens, who was roughly handled by narcotics agents during an illegal search, the Supreme Court ruled that some lawsuits may proceed if constitutionally protected rights have been violated by the federal employee.

Applying this rule to Pollard's case, the 9th U.S. Circuit Court of Appeals reasoned "there is no principled basis to distinguish" the privately run Taft prison from a government-run prison.

"If those employees demonstrated deliberate indifference to Pollard's serious medical needs, the resulting deprivation was caused ... by the federal government's exercise of its power to punish Pollard by incarceration," the 9th Circuit stated.

The employees petitioned the higher court to overturn that ruling, in the case now called Minneci v. Pollard.

The Supreme Court, meanwhile, has been loathe to extend the right to sue under the Bivens ruling, and in a 2001 case explicitly said the ruling cannot be used against private prison corporations. The Pollard case concerns employees rather than corporations.

Pollard will miss the hour-long oral argument Tuesday. Currently on home detention in Washington state, he has roughly one more month to serve before he's released.

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