CORRECTIONAL SERVICES CORP. v. MALESKO

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CORRECTIONAL SERVICES CORP. v. MALESKO
certiorari to the united states court of appeals for
the second circuit
No. 00–860. Argued October 1, 2001—Decided November 27, 2001
Petitioner Correctional Services Corporation (CSC), under contract with
the federal Bureau of Prisons (BOP), operates Le Marquis Community
Correctional Center (Le Marquis), a facility that houses federal inmates.
After respondent, a federal inmate afflicted with a heart condition limit-
ing his ability to climb stairs, was assigned to a bedroom on Le Marquis’
fifth floor, CSC instituted a policy requiring inmates residing below the
sixth floor to use the stairs rather than the elevator. Respondent was
exempted from this policy. But when a CSC employee forbade re-
spondent to use the elevator to reach his bedroom, he climbed the stairs,
suffered a heart attack, and fell. Subsequently, respondent filed this
damages action against CSC and individual defendants, alleging, inter
alia, that they were negligent in refusing him the use of the elevator.
The District Court treated the complaint as raising claims under Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, in which this
Court recognized for the first time an implied private action for dam-
ages against federal officers alleged to have violated a citizen’s constitu-
tional rights. In dismissing the suit, the District Court relied on FDIC
v. Meyer, 510 U. S. 471, reasoning, inter alia, that a Bivens action may
only be maintained against an individual, not a corporate entity. The
Second Circuit reversed in pertinent part and remanded, remarking,
with respect to CSC, that Meyer expressly declined to expand the cate-
gory of defendants against whom Bivens-type actions may be brought
to include not only federal agents, but also federal agencies. But the
court reasoned that such private entities should be held liable under
Bivens to accomplish the important Bivens goal of providing a remedy
for constitutional violations.
Held: Bivens’ limited holding may not be extended to confer a right of
action for damages against private entities acting under color of fed-
eral law. The Court’s authority to imply a new constitutional tort, not
expressly authorized by statute, is anchored in its general jurisdiction
to decide all cases arising under federal law. The Court first exercised
this authority in Bivens. From a discussion of that and subsequent
cases, it is clear that respondent’s claim is fundamentally different from
anything the Court has heretofore recognized. In 30 years of Bivens
jurisprudence, the Court has extended its holding only twice, to pro-

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62 CORRECTIONAL SERVICES CORP. v. MALESKO
Syllabus
vide an otherwise nonexistent cause of action against individual officers
alleged to have acted unconstitutionally, e. g., Carlson v. Green, 446 U. S.
14, and to provide a cause of action for a plaintiff who lacked any alter-
native remedy for harms caused by an individual officer’s unconstitu-
tional conduct, e. g., Davis v. Passman, 442 U. S. 228, 245. Where such
circumstances are not present, the Court has consistently rejected in-
vitations to extend Bivens, often for reasons that foreclose its exten-
sion here. See, e. g., Bush v. Lucas, 462 U. S. 367. Bivens’ purpose is
to deter individual federal officers, not the agency, from committing
constitutional violations. Meyer made clear, inter alia, that the threat
of suit against an individual’s employer was not the kind of deterrence
contemplated by Bivens. 510 U. S., at 485. This case is, in every
meaningful sense, the same. For if a corporate defendant is available
for suit, claimants will focus their collection efforts on it, and not the
individual directly responsible for the alleged injury. On Meyer’s logic,
inferring a constitutional tort remedy against a private entity like CSC
is therefore foreclosed. Respondent’s claim that requiring private cor-
porations acting under color of federal law to pay for the constitutional
harms they commit is the best way to discourage future harms has no
relevance to Bivens, which is concerned solely with deterring individ-
ual officers’ unconstitutional acts. There is no reason here to consider
extending Bivens beyond its core premise. To begin with, no federal
prisoners enjoy respondent’s contemplated remedy. If such a prisoner
in a BOP facility alleges a constitutional deprivation, his only remedy
lies against the offending individual officer. Whether it makes sense to
impose asymmetrical liability costs on private prison facilities alone is a
question for Congress to decide. Nor is this a situation in which claim-
ants in respondent’s shoes lack effective remedies. It was conceded at
oral argument that alternative remedies are at least as great, and in
many respects greater, than anything that could be had under Bivens.
For example, federal prisoners in private facilities enjoy a parallel tort
remedy that is unavailable to prisoners housed in government facilities.
Inmates in respondent’s position also have full access to remedial mecha-
nisms established by the BOP, including suits in federal court for injunc-
tive relief—long recognized as the proper means for preventing entities
from acting unconstitutionally—and grievances filed through the BOP’s
Administrative Remedy Program. Pp. 66–74.
229 F. 3d 374, reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a con-
curring opinion, in which Thomas, J., joined, post, p. 75. Stevens, J.,

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filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ.,
joined, post, p. 75.
Carter G. Phillips argued the cause for petitioner. With
him on the briefs were Frank R. Volpe, George P. Stasiuk,
and Karen M. Morinelli.
Jeffrey A. Lamken argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Acting Solicitor General Underwood, Deputy Solici-
tor General Clement, Barbara L. Herwig, and Thomas M.
Bondy.
Steven Pasternak argued the cause for respondent. With
him on the brief was David C. Vladeck.*
Chief Justice Rehnquist delivered the opinion of the
Court.
We decide here whether the implied damages action first
recognized in Bivens v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388 (1971), should be extended to allow recovery
against a private corporation operating a halfway house
under contract with the Bureau of Prisons. We decline to
so extend Bivens.
Petitioner Correctional Services Corporation (CSC), under
contract with the federal Bureau of Prisons (BOP), oper-
ates Community Corrections Centers and other facilities
that house federal prisoners and detainees.1 Since the late
*Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union by Elizabeth Alexander, Margaret Winter, David
Fathi, and Steven R. Shapiro; and for the Legal Aid Society of the City
of New York by Daniel L. Greenberg and John Boston.
1 CSC is hardly unique in this regard. The BOP has since 1981 re-
lied exclusively on contracts with private institutions and state and
local governments for the operation of halfway house facilities to help
federal prisoners reintegrate into society. The BOP contracts not only
with for-profit entities like CSC, but also with charitable organizations like
Volunteers for America (which operates facilities in Indiana, Louisiana,
Maryland, Minnesota, New York, and Texas), the Salvation Army (Arkan-
sas, Florida, Illinois, North Carolina, Tennessee, and Texas), Progress

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1980’s, CSC has operated Le Marquis Community Correc-
tional Center (Le Marquis), a halfway house located in New
York City. Respondent John E. Malesko is a former federal
inmate who, having been convicted of federal securities fraud
in December 1992, was sentenced to a term of 18 months’
imprisonment under the supervision of the BOP. During
his imprisonment, respondent was diagnosed with a heart
condition and treated with prescription medication. Re-
spondent’s condition limited his ability to engage in physical
activity, such as climbing stairs.
In February 1993, the BOP transferred respondent to Le
Marquis where he was to serve the remainder of his sen-
tence. Respondent was assigned to living quarters on the
fifth floor. On or about March 1, 1994, CSC instituted a pol-
icy at Le Marquis requiring inmates residing below the sixth
floor to use the staircase rather than the elevator to travel
from the first-floor lobby to their rooms. There is no dispute
that respondent was exempted from this policy on account of
his heart condition. Respondent alleges that on March 28,
1994, however, Jorge Urena, an employee of CSC, forbade
him to use the elevator to reach his fifth-floor bedroom. Re-
spondent protested that he was specially permitted elevator
access, but Urena was adamant. Respondent then climbed
the stairs, suffered a heart attack, and fell, injuring his left
ear.
Three years after this incident occurred, respondent filed
a pro se action against CSC and unnamed CSC employees in
the United States District Court for the Southern District
of New York. Two years later, now acting with counsel, re-
spondent filed an amended complaint which named Urena as
1 of the 10 John Doe defendants. The amended complaint
alleged that CSC, Urena, and unnamed defendants were
“negligent in failing to obtain requisite medication for [re-
spondent’s] condition and were further negligent by refusing
House Association (Oregon), Triangle Center (Illinois), and Catholic Social
Services (Pennsylvania).

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[respondent] the use of the elevator.” App. 12. It further
alleged that respondent injured his left ear and aggravated
a pre-existing condition “[a]s a result of the negligence of
the Defendants.” Ibid. Respondent demanded judgment
in the sum of $1 million in compensatory damages, $3 million
in anticipated future damages, and punitive damages “for
such sum as the Court and/or [j]ury may determine.” Id.,
at 13.
The District Court treated the amended complaint as rais-
ing claims under Bivens v. Six Unknown Fed. Narcotics
Agents, supra, and dismissed respondent’s cause of action
in its entirety. App. to Pet. for Cert. 20a. Relying on our
decision in FDIC v. Meyer, 510 U. S. 471 (1994), the District
Court reasoned that “a Bivens action may only be main-
tained against an individual,” and thus was not available
against CSC, a corporate entity. App. to Pet. for Cert. 20a.
With respect to Urena and the unnamed individual defend-
ants, the complaint was dismissed on statute of limitations
grounds.
The Court of Appeals for the Second Circuit affirmed in
part, reversed in part, and remanded. 229 F. 3d 374 (2000).
That court affirmed dismissal of respondent’s claims against
individual defendants as barred by the statute of limita-
tions. Respondent has not challenged that ruling, and the
parties agree that the question whether a Bivens action
might lie against a private individual is not presented here.
With respect to CSC, the Court of Appeals remarked that
Meyer expressly declined “ ‘to expand the category of de-
fendants against whom Bivens-type actions may be brought
to include not only federal agents, but federal agencies
as well.’ ” 229 F. 3d, at 378 (quoting Meyer, supra, at 484
(emphasis deleted)). But the court reasoned that private
entities like CSC should be held liable under Bivens to “ac-
complish the . . . important Bivens goal of providing a rem-
edy for constitutional violations.” 229 F. 3d, at 380.

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We granted certiorari, 532 U. S. 902 (2001), and now
reverse.2
In Bivens v. Six Unknown Fed. Narcotics Agents, 403
U. S. 388 (1971), we recognized for the first time an implied
private action for damages against federal officers alleged to
have violated a citizen’s constitutional rights. Respondent
now asks that we extend this limited holding to confer a
right of action for damages against private entities acting
under color of federal law. He contends that the Court must
recognize a federal remedy at law wherever there has been
an alleged constitutional deprivation, no matter that the
victim of the alleged deprivation might have alternative
remedies elsewhere, and that the proposed remedy would
not significantly deter the principal wrongdoer, an individ-
ual private employee. We have heretofore refused to imply
new substantive liabilities under such circumstances, and we
decline to do so here.
Our authority to imply a new constitutional tort, not
expressly authorized by statute, is anchored in our general
jurisdiction to decide all cases “arising under the Consti-
tution, laws, or treaties of the United States.” 28 U. S. C.
§ 1331. See, e. g., Schweiker v. Chilicky, 487 U. S. 412, 420–
421 (1988); Bush v. Lucas, 462 U. S. 367, 373–374 (1983). We
first exercised this authority in Bivens, where we held that
a victim of a Fourth Amendment violation by federal officers
may bring suit for money damages against the officers in
federal court. Bivens acknowledged that Congress had
never provided for a private right of action against federal
2 The Courts of Appeals have divided on whether FDIC v. Meyer, 510
U. S. 471 (1994), forecloses the extension of Bivens to private entities.
Compare Hammons v. Norfolk Southern Corp., 156 F. 3d 701, 705 (CA6
1998) (“Nothing in Meyer prohibits a Bivens claim against a private corpo-
ration that engages in federal action”), with Kauffman v. Anglo-American
School of Sofia, 28 F. 3d 1223, 1227 (CADC 1994) (“[Under] Meyer’s con-
clusion that public federal agencies are not subject to Bivens liability,
it follows that equivalent private entities should not be liable either”).
We hold today that it does.

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officers, and that “the Fourth Amendment does not in so
many words provide for its enforcement by award of money
damages for the consequences of its violation.” 403 U. S.,
at 396. Nonetheless, relying largely on earlier decisions
implying private damages actions into federal statutes, see
id., at 397 (citing J. I. Case Co. v. Borak, 377 U. S. 426, 433
(1964)); 403 U. S., at 402–403, n. 4 (Harlan, J., concurring in
judgment) (“The Borak case is an especially clear example
of the exercise of federal judicial power to accord damages
as an appropriate remedy in the absence of any express stat-
utory authorization of a federal cause of action”), and find-
ing “no special factors counseling hesitation in the absence
of affirmative action by Congress,” id., at 395–396, we found
an implied damages remedy available under the Fourth
Amendment.3
In the decade following Bivens, we recognized an implied
damages remedy under the Due Process Clause of the Fifth
Amendment, Davis v. Passman, 442 U. S. 228 (1979), and the
Cruel and Unusual Punishments Clause of the Eighth Amend-
ment, Carlson v. Green, 446 U. S. 14 (1980). In both Davis
and Carlson, we applied the core holding of Bivens, recogniz-
ing in limited circumstances a claim for money damages
against federal officers who abuse their constitutional au-
thority. In Davis, we inferred a new right of action chiefly
because the plaintiff lacked any other remedy for the alleged
constitutional deprivation. 442 U. S., at 245 (“For Davis, as
for Bivens, it is damages or nothing”). In Carlson, we in-
3 Since our decision in Borak, we have retreated from our previous will-
ingness to imply a cause of action where Congress has not provided one.
See, e. g., Central Bank of Denver, N. A. v. First Interstate Bank of Den-
ver, N. A., 511 U. S. 164, 188 (1994); Transamerica Mortgage Advisors,
Inc. v. Lewis, 444 U. S. 11, 15–16 (1979); Cannon v. University of Chicago,
441 U. S. 677, 688 (1979); id., at 717–718 (Rehnquist, J., concurring). Just
last Term it was noted that we “abandoned” the view of Borak decades
ago, and have repeatedly declined to “revert” to “the understanding of
private causes of action that held sway 40 years ago.” Alexander v. San-
doval, 532 U. S. 275, 287 (2001).

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ferred a right of action against individual prison officials
where the plaintiff ’s only alternative was a Federal Tort
Claims Act (FTCA) claim against the United States. 446
U. S., at 18–23. We reasoned that the threat of suit against
the United States was insufficient to deter the unconstitu-
tional acts of individuals. Id., at 21 (“Because the Bivens
remedy is recoverable against individuals, it is a more effec-
tive deterrent than the FTCA remedy”). We also found it
“crystal clear” that Congress intended the FTCA and Bivens
to serve as “parallel” and “complementary” sources of liabil-
ity. 446 U. S., at 19–20.
Since Carlson we have consistently refused to extend
Bivens liability to any new context or new category of de-
fendants. In Bush v. Lucas, supra, we declined to create a
Bivens remedy against individual Government officials for a
First Amendment violation arising in the context of federal
employment. Although the plaintiff had no opportunity to
fully remedy the constitutional violation, we held that admin-
istrative review mechanisms crafted by Congress provided
meaningful redress and thereby foreclosed the need to fash-
ion a new, judicially crafted cause of action. 462 U. S., at
378, n. 14, 386–388. We further recognized Congress’ insti-
tutional competence in crafting appropriate relief for ag-
grieved federal employees as a “special factor counseling
hesitation in the creation of a new remedy.” Id., at 380.
See also id., at 389 (noting that “Congress is in a far better
position than a court to evaluate the impact of a new species
of litigation between federal employees”). We have reached
a similar result in the military context, Chappell v. Wallace,
462 U. S. 296, 304 (1983), even where the defendants were
alleged to have been civilian personnel, United States v.
Stanley, 483 U. S. 669, 681 (1987).
In Schweiker v. Chilicky, we declined to infer a damages
action against individual Government employees alleged to
have violated due process in their handling of Social Secu-
rity applications. We observed that our “decisions have re-

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sponded cautiously to suggestions that Bivens remedies be
extended into new contexts.” 487 U. S., at 421. In light of
these decisions, we noted that “[t]he absence of statutory
relief for a constitutional violation . . . does not by any
means necessarily imply that courts should award money
damages against the officers responsible for the violation.”
Id., at 421–422. We therefore rejected the claim that a
Bivens remedy should be implied simply for want of any
other means for challenging a constitutional deprivation in
federal court. It did not matter, for example, that “[t]he cre-
ation of a Bivens remedy would obviously offer the prospect
of relief for injuries that must now go unredressed.” 487
U. S., at 425. See also Bush, supra, at 388 (noting that “ex-
isting remedies do not provide complete relief for the plain-
tiff ”); Stanley, supra, at 683 (“[I]t is irrelevant to a special
factors analysis whether the laws currently on the books
afford Stanley . . . an adequate federal remedy for his in-
juries” (internal quotation marks omitted)). So long as the
plaintiff had an avenue for some redress, bedrock principles
of separation of powers foreclosed judicial imposition of a
new substantive liability. Chilicky, supra, at 425–427.
Most recently, in FDIC v. Meyer, we unanimously de-
clined an invitation to extend Bivens to permit suit against
a federal agency, even though the agency—because Congress
had waived sovereign immunity—was otherwise amena-
ble to suit. 510 U. S., at 484–486. Our opinion emphasized
that “the purpose of Bivens is to deter the officer,” not the
agency. Id., at 485 (emphasis in original) (citing Carlson v.
Green, supra, at 21). We reasoned that if given the choice,
plaintiffs would sue a federal agency instead of an individ-
ual who could assert qualified immunity as an affirmative
defense. To the extent aggrieved parties had less incentive
to bring a damages claim against individuals, “the deterrent
effects of the Bivens remedy would be lost.” 510 U. S., at
485. Accordingly, to allow a Bivens claim against federal
agencies “would mean the evisceration of the Bivens remedy,

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rather than its extension.” 510 U. S., at 485. We noted fur-
ther that “special factors” counseled hesitation in light of the
“potentially enormous financial burden” that agency liability
would entail. Id., at 486.
From this discussion, it is clear that the claim urged by
respondent is fundamentally different from anything recog-
nized in Bivens or subsequent cases. In 30 years of Bivens
jurisprudence we have extended its holding only twice, to
provide an otherwise nonexistent cause of action against in-
dividual officers alleged to have acted unconstitutionally, or
to provide a cause of action for a plaintiff who lacked any
alternative remedy for harms caused by an individual offi-
cer’s unconstitutional conduct. Where such circumstances
are not present, we have consistently rejected invitations to
extend Bivens, often for reasons that foreclose its exten-
sion here.4
The purpose of Bivens is to deter individual federal offi-
cers from committing constitutional violations. Meyer made
clear that the threat of litigation and liability will adequately
deter federal officers for Bivens purposes no matter that
they may enjoy qualified immunity, 510 U. S., at 474, 485, are
indemnified by the employing agency or entity, id., at 486,
or are acting pursuant to an entity’s policy, id., at 473–474.
Meyer also made clear that the threat of suit against an in-
dividual’s employer was not the kind of deterrence con-
templated by Bivens. See 510 U. S., at 485 (“If we were to
imply a damages action directly against federal agencies . . .
there would be no reason for aggrieved parties to bring
damages actions against individual officers. [T]he deterrent
4 Justice Stevens’ claim that this case does not implicate an “exten-
sion” of Bivens, post, at 76–77, 82 (dissenting opinion), might come as some
surprise to the Court of Appeals which twice characterized its own hold-
ing as “extending Bivens liability to reach private corporations.” 229
F. 3d 374, 381 (CA2 2000). See also ibid. (“Bivens liability should extend
to private corporations”).

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effects of the Bivens remedy would be lost”). This case is,
in every meaningful sense, the same. For if a corporate de-
fendant is available for suit, claimants will focus their col-
lection efforts on it, and not the individual directly responsi-
ble for the alleged injury. See, e. g., TXO Production Corp.
v. Alliance Resources Corp., 509 U. S. 443, 464 (1993) (plural-
ity opinion) (recognizing that corporations fare much worse
before juries than do individuals); id., at 490–492 (O’Con-
nor, J., dissenting) (same) (citing authorities). On the logic
of Meyer, inferring a constitutional tort remedy against a
private entity like CSC is therefore foreclosed.
Respondent claims that even under Meyer’s deterrence ra-
tionale, implying a suit against private corporations acting
under color of federal law is still necessary to advance the
core deterrence purpose of Bivens. He argues that because
corporations respond to market pressures and make deci-
sions without regard to constitutional obligations, requiring
payment for the constitutional harms they commit is the best
way to discourage future harms. That may be so, but it has
no relevance to Bivens, which is concerned solely with deter-
ring the unconstitutional acts of individual officers. If de-
terring the conduct of a policymaking entity was the purpose
of Bivens, then Meyer would have implied a damages remedy
against the Federal Deposit Insurance Corporation; it was
after all an agency policy that led to Meyer’s constitutional
deprivation. Meyer, supra, at 473–474. But Bivens from
its inception has been based not on that premise, but on the
deterrence of individual officers who commit unconstitu-
tional acts.
There is no reason for us to consider extending Bivens
beyond this core premise here.5 To begin with, no federal
5 Justice Stevens claims that our holding in favor of CSC portends
“tragic consequence[s],” post, at 81, and “jeopardize[s] the constitutional
rights of . . . tens of thousands of inmates,” ibid. He refers to examples

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prisoners enjoy respondent’s contemplated remedy. If a
federal prisoner in a BOP facility alleges a constitutional
deprivation, he may bring a Bivens claim against the offend-
ing individual officer, subject to the defense of qualified im-
munity. The prisoner may not bring a Bivens claim against
the officer’s employer, the United States, or the BOP. With
respect to the alleged constitutional deprivation, his only
remedy lies against the individual; a remedy Meyer found
sufficient, and which respondent did not timely pursue.
Whether it makes sense to impose asymmetrical liability
costs on private prison facilities alone is a question for Con-
gress, not us, to decide.
Nor are we confronted with a situation in which claimants
in respondent’s shoes lack effective remedies. Cf. Bivens,
403 U. S., at 410 (Harlan, J., concurring in judgment) (“For
people in Bivens’ shoes, it is damages or nothing”); Davis,
442 U. S., at 245 (“For Davis, as for Bivens, it is damages or
nothing” (internal quotaton marks omitted)). It was con-
ceded at oral argument that alternative remedies are at least
as great, and in many respects greater, than anything that
could be had under Bivens. Tr. of Oral Arg. 41–42, 43. For
example, federal prisoners in private facilities enjoy a par-
of cases suggesting that private correctional providers routinely abuse and
take advantage of inmates under their control. Post, at 81, n. 9 (citing
Brief for Legal Aid Society of City of New York as Amicus Curiae 8–25).
See also Brief for American Civil Liberties Union as Amicus Curiae 14–
16, and n. 6 (citing and discussing “abundant” examples of such abuse).
In all but one of these examples, however, the private facility in question
housed state prisoners—prisoners who already enjoy a right of action
against private correctional providers under 42 U. S. C. § 1983. If it is
true that the imperatives for deterring the unconstitutional conduct of
private correctional providers are so strong as to demand that we imply a
new right of action directly from the Constitution, then abuses of authority
should be less prevalent in state facilities, where Congress already pro-
vides for such liability. That the trend appears to be just the opposite is
not surprising given the BOP’s oversight and monitoring of its private
contract facilities, see Brief for United States as Amicus Curiae 4–5, 24–
26, which Justice Stevens does not mention.

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allel tort remedy that is unavailable to prisoners housed
in Government facilities. See Brief in Opposition 13. This
case demonstrates as much, since respondent’s complaint in
the District Court arguably alleged no more than a quint-
essential claim of negligence. It maintained that named
and unnamed defendants were “negligent in failing to obtain
requisite medication . . . and were further negligent by re-
fusing . . . use of the elevator.” App. 12 (emphasis added).
It further maintained that respondent suffered injuries “[a]s
a result of the negligence of the Defendants.” Ibid. (em-
phasis added). The District Court, however, construed the
complaint as raising a Bivens claim, presumably under
the Cruel and Unusual Punishments Clause of the Eighth
Amendment. Respondent accepted this theory of liability,
and he has never sought relief on any other ground. This is
somewhat ironic, because the heightened “deliberate indif-
ference” standard of Eighth Amendment liability, Estelle v.
Gamble, 429 U. S. 97, 104 (1976), would make it considerably
more difficult for respondent to prevail than on a theory of
ordinary negligence, see, e. g., Farmer v. Brennan, 511 U. S.
825, 835 (1994) (“[D]eliberate indifference describes a state
of mind more blameworthy than negligence”).
This also makes respondent’s situation altogether different
from Bivens, in which we found alternative state tort reme-
dies to be “inconsistent or even hostile” to a remedy inferred
from the Fourth Amendment. 403 U. S., at 393–394. When
a federal officer appears at the door and requests entry, one
cannot always be expected to resist. See id., at 394 (“[A]
claim of authority to enter is likely to unlock the door”). Yet
lack of resistance alone might foreclose a cause of action in
trespass or privacy. Ibid. Therefore, we reasoned in
Bivens that other than an implied constitutional tort remedy,
“there remain[ed] . . . but the alternative of resistance, which
may amount to a crime.” Id., at 395 (internal quotation
marks and citation omitted). Such logic does not apply to

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respondent, whose claim of negligence or deliberate indif-
ference requires no resistance to official action, and whose
lack of alternative tort remedies was due solely to strategic
choice.6
Inmates in respondent’s position also have full access to
remedial mechanisms established by the BOP, including suits
in federal court for injunctive relief and grievances filed
through the BOP’s Administrative Remedy Program (ARP).
See 28 CFR § 542.10 (2001) (explaining ARP as providing
“a process through which inmates may seek formal review
of an issue which relates to any aspect of their confinement”).
This program provides yet another means through which al-
legedly unconstitutional actions and policies can be brought
to the attention of the BOP and prevented from recurring.
And unlike the Bivens remedy, which we have never consid-
ered a proper vehicle for altering an entity’s policy, injunc-
tive relief has long been recognized as the proper means for
preventing entities from acting unconstitutionally.
In sum, respondent is not a plaintiff in search of a rem-
edy as in Bivens and Davis. Nor does he seek a cause of
action against an individual officer, otherwise lacking, as in
Carlson. Respondent instead seeks a marked extension of
Bivens, to contexts that would not advance Bivens’ core
purpose of deterring individual officers from engaging in un-
constitutional wrongdoing. The caution toward extending
Bivens remedies into any new context, a caution consistently
and repeatedly recognized for three decades, forecloses such
an extension here.
The judgment of the Court of Appeals is reversed.
It is so ordered.
6 Where the government has directed a contractor to do the very thing
that is the subject of the claim, we have recognized this as a special cir-
cumstance where the contractor may assert a defense. Boyle v. United
Technologies Corp., 487 U. S. 500 (1988). The record here would provide
no basis for such a defense.

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75 Cite as: 534 U. S. 61 (2001)
Stevens, J., dissenting
Justice Scalia, with whom Justice Thomas joins,
concurring.
I join the opinion of the Court because I agree that a
narrow interpretation of the rationale of Bivens v. Six Un-
known Fed. Narcotics Agents, 403 U. S. 388 (1971), would
not logically produce its application to the circumstances
of this case. The dissent is doubtless correct that a broad
interpretation of its rationale would logically produce such
application, but I am not inclined (and the Court has not been
inclined) to construe Bivens broadly.
In joining the Court’s opinion, however, I do not mean to
imply that, if the narrowest rationale of Bivens did apply
to a new context, I would extend its holding. I would not.
Bivens is a relic of the heady days in which this Court as-
sumed common-law powers to create causes of action—de-
creeing them to be “implied” by the mere existence of a stat-
utory or constitutional prohibition. As the Court points out,
ante, at 67, n. 3, we have abandoned that power to invent
“implications” in the statutory field, see Alexander v. Sando-
val, 532 U. S. 275, 287 (2001). There is even greater reason
to abandon it in the constitutional field, since an “implica-
tion” imagined in the Constitution can presumably not even
be repudiated by Congress. I would limit Bivens and its
two follow-on cases (Davis v. Passman, 442 U. S. 228 (1979),
and Carlson v. Green, 446 U. S. 14 (1980)) to the precise cir-
cumstances that they involved.
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403
U. S. 388 (1971), the Court affirmatively answered the ques-
tion that it had reserved in Bell v. Hood, 327 U. S. 678 (1946):
whether a violation of the Fourth Amendment “by a federal
agent acting under color of his authority gives rise to a cause
of action for damages consequent upon his unconstitutional
conduct.” 403 U. S., at 389 (emphasis added). Nearly a

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76 CORRECTIONAL SERVICES CORP. v. MALESKO
Stevens, J., dissenting
decade later, in Carlson v. Green, 446 U. S. 14 (1980), we held
that a violation of the Eighth Amendment by federal prison
officials gave rise to a Bivens remedy despite the fact that
the plaintiffs also had a remedy against the United States
under the Federal Tort Claims Act (FTCA). We stated:
“Bivens established that the victims of a constitutional viola-
tion by a federal agent have a right to recover damages
against the official in federal court despite the absence of any
statute conferring such a right.” 446 U. S., at 18 (emphasis
added).
In subsequent cases, we have decided that a Bivens rem-
edy is not available for every conceivable constitutional vio-
lation. 1 We have never, however, qualified our holding that
Eighth Amendment violations are actionable under Bivens.
See Farmer v. Brennan, 511 U. S. 825 (1994); McCarthy v.
Madigan, 503 U. S. 140 (1992). Nor have we ever suggested
that a category of federal agents can commit Eighth Amend-
ment violations with impunity.
The parties before us have assumed that respondent’s com-
plaint has alleged a violation of the Eighth Amendment.2
The violation was committed by a federal agent—a private
corporation employed by the Bureau of Prisons to perform
functions that would otherwise be performed by individual
employees of the Federal Government. Thus, the question
presented by this case is whether the Court should create an
exception to the straightforward application of Bivens and
1 See, e. g., FDIC v. Meyer, 510 U. S. 471 (1994); Schweiker v. Chilicky,
487 U. S. 412 (1988); Bush v. Lucas, 462 U. S. 367 (1983); Chappell v. Wal-
lace, 462 U. S. 296 (1983).
2 Although it might have challenged the sufficiency of respondent’s con-
stitutional claim, see ante, at 72–73, petitioner has not done so. See Tr. of
Oral Arg. 55 (acknowledgment by petitioner that the complaint states an
Eighth Amendment violation). Its petition for certiorari presented the
single question whether a Bivens cause of action for damages “should be
implied against a private corporation acting under color of federal law.”
Pet. for Cert. (i).

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77 Cite as: 534 U. S. 61 (2001)
Stevens, J., dissenting
Carlson, not whether it should extend our cases beyond their
“core premise,” ante, at 71. This point is evident from the
fact that prior to our recent decision in FDIC v. Meyer, 510
U. S. 471 (1994), the Courts of Appeals had consistently and
correctly held that corporate agents performing federal func-
tions, like human agents doing so, were proper defendants in
Bivens actions.3
Meyer, which concluded that federal agencies are not su-
able under Bivens, does not lead to the outcome reached by
the Court today. In that case, we did not discuss private
corporate agents, nor suggest that such agents should be
viewed differently from human ones. Rather, in Meyer, we
drew a distinction between “federal agents” and “an agency
of the Federal Government,” 510 U. S., at 473. Indeed, our
repeated references to the Federal Deposit Insurance Corpo-
ration’s (FDIC) status as a “federal agency” emphasized the
FDIC’s affinity to the federal sovereign. We expressed con-
cern that damages sought directly from federal agencies,
such as the FDIC, would “creat[e] a potentially enormous
financial burden for the Federal Government.” Id., at 486.
And it must be kept in mind that Meyer involved the FDIC’s
waiver of sovereign immunity, which, had the Court in
Meyer recognized a cause of action, would have permitted
the very sort of lawsuit that Bivens presumed impossi-
3 See Schowengerdt v. General Dynamics Corp., 823 F. 2d 1328 (CA9
1987); Reuber v. United States, 750 F. 2d 1039 (CADC 1984); Gerena v.
Puerto Rico Legal Servs., Inc., 697 F. 2d 447 (CA1 1983); Dobyns v.
E-Systems, Inc., 667 F. 2d 1219 (CA5 1982); Yiamouyiannis v. Chem-
ical Abstracts Serv., 521 F. 2d 1392 (CA6 1975).
It is true that one court has overruled its Circuit precedent in light of
Meyer and held that Meyer dictates the exclusion of all corporate entities
from Bivens liability. Kauffman v. Anglo-American School of Sofia, 28
F. 3d 1223 (CADC 1994). However, as another court has explained, that
conclusion is in no way compelled by Meyer. See Hammons v. Norfolk
Southern Corp., 156 F. 3d 701 (CA6 1998).

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78 CORRECTIONAL SERVICES CORP. v. MALESKO
Stevens, J., dissenting
ble: “a direct action against the Government.” 510 U. S., at
485.4
Moreover, in Meyer, as in Bush v. Lucas, 462 U. S. 367
(1983), and Schweiker v. Chilicky, 487 U. S. 412 (1988), we
were not dealing with a well-recognized cause of action.
The cause of action alleged in Meyer was a violation of proce-
dural due process, and as the Meyer Court noted, “a Bivens
action alleging a violation of the Due Process Clause of the
Fifth Amendment may be appropriate in some contexts, but
not in others.” 510 U. S., at 484, n. 9. Not only is substan-
tive liability assumed in the present case, but respondent’s
Eighth Amendment claim falls in the heartland of substan-
tive Bivens claims.5
Because Meyer does not dispose of this case, the Court
claims that the rationales underlying Bivens—namely, lack
of alternative remedies and deterrence—are not present in
cases in which suit is brought against a private corporation
serving as a federal agent. However, common sense, but-
tressed by all of the reasons that supported the holding in
Bivens, leads to the conclusion that corporate agents should
not be treated more favorably than human agents.
First, the Court argues that respondent enjoys alterna-
tive remedies against the corporate agent that distinguish
this case from Bivens. In doing so, the Court characterizes
Bivens and its progeny as cases in which plaintiffs lacked
“any alternative remedy,” ante, at 70. In Bivens, however,
even though the plaintiff ’s suit against the Federal Gov-
4 Meyer also did not address the present situation because the Court
understood the plaintiff ’s “real complaint” in that case to be that the indi-
vidual officers would be shielded by qualified immunity, 510 U. S., at 485,
a concern not present in the case before us, see Richardson v. McKnight,
521 U. S. 399, 412 (1997) (denying qualified immunity to private prison
guards in a suit under 42 U. S. C. § 1983).
5 The Court incorrectly assumes that we are being asked “to imply a
new constitutional tort,” ante, at 66. The tort here is, however, well es-
tablished; the only question is whether a remedy in damages is available
against a limited class of tortfeasors.

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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 in-
correct 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 pri-
vate corporation, the claims against the individual defend-
ants 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 hold-
ing 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 compensa-
ble 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 Correc-
tional 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 cor-
porate agents themselves. However, the United States explicitly main-
tains 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 pri-
vate prisons. Cf. ante, at 72 (noting that Meyer “found sufficient” a rem-
edy against the individual officer, “which respondent did not timely pur-
sue” (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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80 CORRECTIONAL SERVICES CORP. v. MALESKO
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 viola-
tions 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 Amend-
ment 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 main-
tained, however, that tort remedies against corporate em-
ployers 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 imag-
inable, 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 determin-
ing 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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Stevens, J., dissenting
employees. As the Court has previously noted, the “orga-
nizational structure” of private prisons “is one subject to
the ordinary competitive pressures that normally help pri-
vate firms adjust their behavior in response to the incentives
that tort suits provide—pressures not necessarily present in
government departments.” Richardson v. McKnight, 521
U. S. 399, 412 (1997). Thus, the private corporate entity at
issue here is readily distinguishable from the federal agency
in Meyer. Indeed, a tragic consequence of today’s decision
is the clear incentive it gives to corporate managers of pri-
vately operated custodial institutions to adopt cost-saving
policies that jeopardize the constitutional rights of the tens
of thousands of inmates in their custody.9
The Court raises a concern with imposing “asymmetri-
cal liability costs on private prison facilities,” ante, at 72,
and further claims that because federal prisoners in
Government-run institutions can only sue officers, it would
be unfair to permit federal prisoners in private institu-
tions to sue an “officer’s employer,” ibid. Permitting liabil-
ity in the present case, however, would produce symmetry:
both private and public prisoners would be unable to sue
the principal (i. e., the Government), but would be able to
sue the primary federal agent (i. e., the Government official
or the corporation). Indeed, it is the Court’s decision that
creates asymmetry—between federal and state prisoners
housed in private correctional facilities. Under 42 U. S. C.
§ 1983, a state prisoner may sue a private prison for depri-
vation of constitutional rights, see Lugar v. Edmondson Oil
Co., 457 U. S. 922, 936–937 (1982) (permitting suit under
9 As amici for respondent explain, private prisons are exempt from
much of the oversight and public accountability faced by the Bureau of
Prisons, a federal entity. See, e. g., Brief for Legal Aid Society of the City
of New York as Amicus Curiae 8–25. Indeed, because a private prison
corporation’s first loyalty is to its stockholders, rather than the public in-
terest, it is no surprise that cost-cutting measures jeopardizing prisoners’
rights are more likely in private facilities than in public ones.

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82 CORRECTIONAL SERVICES CORP. v. MALESKO
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§ 1983 against private corporations exercising “state action”),
yet the Court denies such a remedy to that prisoner’s federal
counterpart. It is true that we have never expressly held
that the contours of Bivens and § 1983 are identical. The
Court, however, has recognized sound jurisprudential rea-
sons for parallelism, as different standards for claims against
state and federal actors “would be incongruous and confus-
ing.” Butz v. Economou, 438 U. S. 478, 499 (1978) (internal
quotation marks omitted); cf. Bolling v. Sharpe, 347 U. S.
497, 500 (1954) (“In view of our decision that the Consti-
tution prohibits the states from maintaining racially seg-
regated public schools, it would be unthinkable that the
same Constitution would impose a lesser duty on the Federal
Government”). The value of such parallelism was in fact
furthered by Meyer, since § 1983 would not have provided
the plaintiff a remedy had he pressed a similar claim against
a state agency.
It is apparent from the Court’s critical discussion of the
thoughtful opinions of Justice Harlan and his contempo-
raries, ante, at 66–67, and n. 3, and from its erroneous state-
ment of the question presented by this case as whether
Bivens “should be extended” to allow recovery against a pri-
vate corporation employed as a federal agent, ante, at 63,
that the driving force behind the Court’s decision is a dis-
agreement with the holding in Bivens itself.10 There are at
least two reasons why it is improper for the Court to allow
its decision in this case to be influenced by that predisposi-
10 See also ante, at 75 (Scalia, J., concurring) (arguing that Bivens is a
“relic of . . . heady days” and should be limited, along with Carlson v.
Green, 446 U. S. 14 (1980), and Davis v. Passman, 442 U. S. 228 (1979), to
its facts). Such hostility to the core of Bivens is not new. See, e. g., Carl-
son, 446 U. S., at 32 (Rehnquist, J., dissenting) (“[T]o dispose of this
case as if Bivens were rightly decided would in the words of Mr. Justice
Frankfurter be to start with an ‘unreality’ ”). Nor is there anything new
in the Court’s disregard for precedent concerning well-established causes
of action. See Alexander v. Sandoval, 532 U. S. 275, 294–297 (2001) (Ste-
vens, J., dissenting).

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tion. First, as is clear from the legislative materials cited
in Carlson, 446 U. S., at 19–20, see also ante, at 68, Congress
has effectively ratified the Bivens remedy; surely Congress
has never sought to abolish it. Second, a rule that has been
such a well-recognized part of our law for over 30 years
should be accorded full respect by the Members of this
Court, whether or not they would have endorsed that rule
when it was first announced. For our primary duty is to
apply and enforce settled law, not to revise that law to accord
with our own notions of sound policy.
I respectfully dissent.