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Margaret Minneci et al. v. Richard Lee Pollard et al.

Oral argument transcript · No. 10-1104 · October Term 2011 · argued November 1, 2011 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 10-1104, Minneci v. Pollard. Mr. Franklin. ORAL ARGUMENT OF JONATHAN S. FRANKLIN ON BEHALF OF THE PETITIONERS

Jonathan S. Franklin: Mr. Chief Justice, and may it please the Court: Over the last three decades, the Court has made clear that Bivens remedies are disfavored and will only be authorized in narrow situations where there are no adequate alternative means for redressing a plaintiff's injuries and no other factor counsels hesitation. Respondent has satisfied neither criterion. He has not shown that he lacked a traditional tort remedy for the injuries of which he complains, and Petitioners' status as employees of a private contractor, rather than the government, at a minimum gives rise to factors counseling hesitation.

Justice Ginsburg: We go back to what you said initially; that is, if there's no alternative remedy, Bivens fills the gap. Suppose we had a case just like Carlson, only the State law allows survivor actions. In Carlson, Alderson Reporting Company Official I thought the rule emerging from Carlson is that prison personnel in Federal prisons are subject to Bivens liability, and we don't look in each case to see whether there could have been a State tort.

Jonathan S. Franklin: Well, the rule --

Justice Ginsburg: Is that so?

Jonathan S. Franklin: In -- the rule -- the Carlson rule still applies, Your Honor, because that involved actual Federal Government employees. And since Carlson, Congress has pre-empted all tort claims against them. So, whether Indiana law now -- which has been amended, but whether Indiana law provides a remedy or doesn't is immaterial, because Congress has pre-empted all tort claims against actual employees of the government. But these -- this case involves -- the Petitioners are not employees of the government. They are employees of a private contractor. And under the Westfall Act, what Congress did was pre-empt all claims against actual government officials while preserving Bivens remedies. But it did the opposite for employees of private contractors. For them, there are adequate alternative tort remedies. And it's virtually undisputed in this case that there was such a remedy here. And they are deliberately -- Congress expressly Alderson Reporting Company Official excluded them from the category of employees against whom it preserved Bivens remedies. So, yes, in the Carlson situation, there is still a Bivens claim because Congress has expressly preserved that. But here we have a different congressional policy that we are, in effect, asking the Court to embrace here. What Congress did in the Westfall Act is it said what in effect we are asking this Court to recognize and what we believe the Court has recognized in cases like Malesko, and that is, where there are adequate alternative tort -- excuse me -- where there are no adequate --

Justice Kagan: Well, suppose, Mr. Franklin, that there weren't. I mean, I think you have a good case about California law here. But suppose we were in a State where the law was very different from what California's law appears to be, where there was no special duty recognized for jailors and, indeed, where the basic negligence tort was unavailable to inmates because there was a finding of -- a holding of the State supreme court that there was no duty on the part of jailors to inmates. What would happen then?

Jonathan S. Franklin: In that hypothetical instance -- and we do think it's hypothetical -- we think that Alderson Reporting Company Official would be a different case, and the Court could in that circumstance say there are no adequate alternative remedies. But the reason we think it's entirely hypothetical is there has nothing been shown in the briefing of this Court, and as the Ninth Circuit dissenters made clear, that any State doesn't afford the bedrock cause of negligence. And that cause, as the Court held in Malesko quite expressly, is not only adequate to redress any actions that would violate the Eighth Amendment, but it's actually superior.

Justice Kagan: But is your answer --

Justice Ginsburg: Mr. Franklin, there were some references to Mississippi law that seem to be inconsistent with the notion that all States would provide an adequate remedy.

Jonathan S. Franklin: I believe that reference, if I'm correct, comes from an amicus brief, and that law does not -- would not on its face prohibit an action against a private managed prison holding Federal prisoners. These laws -- and the Mississippi law is an example; there's a New York law. Those apply to State government officials. They're similar to the Westfall Act, but on a State level. They immunize State government officials from claims, but those claims would be subject to 1983 actions. Here we have a privately Alderson Reporting Company Official managed prison holding Federal prisoners.

Justice Ginsburg: Is it -- and it might hold State prisoners as well.

Jonathan S. Franklin: I'm sorry.

Justice Ginsburg: It might hold -- some private facilities will take State prisoners as well as Federal prisoners.

Jonathan S. Franklin: There has been some representation, that we don't disagree with, that there might be some facilities that have State prisoners and --

Justice Ginsburg: And if they do have State prisoners, the State prisoner would have recourse to, not Bivens, but 1983.

Jonathan S. Franklin: Most likely, Your Honor, yes, if it's under --

Justice Ginsburg: So, you have two prisoners, identical mistreatment, and one gets a Federal remedy and the other doesn't.

Jonathan S. Franklin: The other actually gets what the Court in Malesko described as a superior remedy. The prisoner -- the Federal prisoner has, in that sense, a remedy that's beyond the Eighth Amendment, that goes --

Justice Kennedy: Can you tell me why it is Alderson Reporting Company Official that you care in this suit? If you're telling us, oh, don't worry, there's going to be liability and probably perhaps even more extensive liability than in Bivens, what difference does it make? Bivens doesn't give you attorneys' fees. Now, it's true that the Federal question may get you into Federal court.

Jonathan S. Franklin: Well, I have several answers to that. First, Your Honor, my clients care very deeply in this case because, as the district court held, if there's no Bivens remedy, this case is dismissed. This case was dismissed on the lack of a Bivens remedy --

Justice Kennedy: Just because of the statute of limitations?

Jonathan S. Franklin: It's way too late now, 10 years after the incident, for them to now assert State law claims. So, we do care. And, in fact, that was the same situation that was in Malesko. In Malesko, you had a virtually identical situation, where the --

Justice Kennedy: If we're looking -- if we're looking forward beyond this case --

Jonathan S. Franklin: Right.

Justice Kennedy: -- and there's no statute of limitation problem, does it really make any difference that he have this second cause of action that's just -- Alderson Reporting Company Official

Jonathan S. Franklin: It makes a --

Justice Kennedy: -- (a) duplicative or (b) arguably narrow, more narrow?

Jonathan S. Franklin: Well, two points. I'd like to first say that the Court in Malesko adopted the principle that if there is an alternative remedy, that's not a reason for piling on a Federal remedy; that's a reason not to. But in a practical sense --

Justice Kennedy: But why? What --

Jonathan S. Franklin: I understand --

Justice Kennedy: What difference does it make?

Jonathan S. Franklin: Let me give you --

Justice Kennedy: Who cares?

Jonathan S. Franklin: -- a practical difference that does matter for individuals in my clients' situation. If a State tort claim is brought, there is respondeat superior liability under a State court claim. And in many if not most cases, the plaintiff will choose, voluntarily choose, to sue the corporation and leave the individual out of the case. Now, the deterrent effect that Bivens is concerned with still exists because the case can be brought against the individual. However, if there's a Bivens claim, that has to be brought against the Alderson Reporting Company Official individual; it cannot be brought under respondeat superior. So, if there is a Bivens claim, as a practical matter you're going to see more and more individuals being dragged through these cases without, by the way, the recognized qualified immunity defense --

Justice Kagan: Mr. Franklin --

Jonathan S. Franklin: Yes.

Justice Kagan: -- do you have a theory about why these are brought as Bivens claims? It seems mysterious to me. If you bring it as a negligence claim, you get a lower standard of liability, negligence versus deliberate indifference.

Jonathan S. Franklin: Right.

Justice Kagan: You get vicarious liability. So, I've been trying to puzzle out, why aren't these brought as negligence claims rather than as Bivens claims?

Jonathan S. Franklin: I can't answer that question. What I can say -- well, I can try to answer it, but I can say that if the Court rules as we ask it to in this case, we think that there will not be Bivens claims, that people will bring them under the tort law. It could be that there are forms in some of these prisons that are given out that have section 1983 written on them, that Bivens is there. It could be that Alderson Reporting Company Official prisoners are not quite aware that the Westfall Act doesn't cover private contractors. But we would think that if the Court rules as we -- as we suggest it should, that there -- that the prisoners who are relatively savvy, even on a pro se basis, about their rights would then understand that they have these rights and will exercise them and that the Bivens remedy would not have to be employed willy-nilly as it was in this case. But I --

Justice Kagan: To go back to what I asked before when I hypothesized a State that didn't have adequate remedies, and you said -- well, just to pin down what you said, if there were no adequate remedies, there would be a Bivens action available?

Jonathan S. Franklin: There might be, Your Honor. There still is the factors counseling hesitation, which is the second step of the Bivens analysis. And I wouldn't want to give up that there might be factors in those cases counseling hesitation. But certainly our position is not that in a circumstance, if that arose -- and, again, we think it's hypothetical because there's no indication either that it has arisen or that it will arise -- but if it were to, our position wouldn't rule out the possibility of a Bivens claim in those circumstances. Alderson Reporting Company Official

Justice Alito: To get back to the question that Justice Ginsburg asked, is it -- is that consistent with Carlson? Because the Court in Carlson didn't say that there's a Bivens action because in this particular State there isn't a viable State action, but it might be different in another State where there is a viable State claim. It did it on basically a categorical ground.

Jonathan S. Franklin: Well, it -- as the case came to the Court in Carlson, it was undisputed that there was no adequate State law remedy, the lower courts had held. So, that was sort of the basic premise that the Court then went ahead and decided the case on. Since Carlson, we've had cases, notably Malesko, also Wilkie, which have made clear that the adequacy of remedies, including State law remedies, is a factor in the Bivens analysis and is in fact the dispositive factor in Malesko, and as in this case as well. We don't think that there is really any serious dispute in this case that there were adequate alternative remedies. Again, the deliberate indifference standard is much, much more hard -- much harder to meet than a traditional negligence standard. California law is, further, more protective of prisoners. Alderson Reporting Company Official As we understand the Respondents' position, the Court -- they would urge the Court, notwithstanding the availability of alternative remedies in this case and as far as we can tell in every foreseeable case, to create what they refer to as a categorical cause of action, one that would apply regardless of whether the remedies are adequate or not. And in our view, that would turn the Bivens jurisprudence effectively on its head. The Court has said Bivens is a narrow -- I think Justice Ginsburg at least paraphrased our argument as saying it's a gap-filling mechanism, which is what our argument is, that would apply only in those circumstances when it's necessary. Other than that, the Court has consistently deferred the matter to Congress. And that's where we think it ought to lie in this case.

Justice Alito: Does a prisoner in a State that requires the filing of a certificate of merit in a medical malpractice case have a -- have an alternative -- a viable alternative State claim --

Jonathan S. Franklin: Yes, again, that's --

Justice Alito: -- for malpractice?

Jonathan S. Franklin: We say yes. That issue is not in this case. The Eleventh Circuit in Alba expressly addressed that issue under that State's law, Alderson Reporting Company Official and said, yes, that is adequate. It's simply a procedural requirement that applies to all plaintiffs. And I would add, by the way, that --

Justice Kagan: Well, how is a prisoner supposed to satisfy that requirement?

Jonathan S. Franklin: The same way any other plaintiff is supposed to -- but what I was going to add is that when you're alleging an Eighth Amendment violation, you're talking about a claim that's by its nature very severe. You're talking about deliberate indifference to serious medical needs that constitutes the unnecessary and wanton infliction of pain. In those circumstances, we would suggest that it might even be easier to procure that kind of a declaration, but that issue was decided in Alba. So, that -- that was decided. If it comes up in another case, it can be decided there. We don't think that that would render the -- if it's -- if it's an adequate remedy for everyone else in that State and most States that have these things, then it's an adequate remedy for Bivens.

Justice Ginsburg: Did any of those courts address the problem of how the pro se prisoner is going to get an affidavit?

Jonathan S. Franklin: Well, Alba -- the Alba court Alderson Reporting Company Official is the only court that I'm aware of on the circuit level that considered it, and I believe they did address that issue and simply said that it is -- puts them on an equal footing with other plaintiffs and that that would be an adequate remedy.

Chief Justice Roberts: I don't -- I don't understand your answer to Justice Kagan. If I heard you right, you were saying, well, they're going to be able to get a certificate because it's an Eighth Amendment violation, and everything is very severe. But the point is they're going to bring a negligence action, not an Eighth Amendment action.

Jonathan S. Franklin: Right.

Chief Justice Roberts: So --

Jonathan S. Franklin: I'm talking about if the conduct -- we're comparing here between conduct that would violate the Eighth Amendment and conduct that's negligent. And I'm saying if the conduct rises to the level of an Eighth Amendment violation, which is what we're talking about in terms of the adequacy, then it would be easier, one would presume.

Justice Kagan: But I think the question, Mr. Franklin, is really just a practical one --

Jonathan S. Franklin: Sure.

Justice Kagan: -- which is how a pro se Alderson Reporting Company Official person sitting in prison is supposed to have access to a doctor who will provide this certificate. And, I mean, maybe there would be means, but I guess I'm asking whether there would be.

Jonathan S. Franklin: I would think there would, but I don't want to say -- I don't want to argue someone else's case on that. I mean, I do think that that was an issue that was resolved, at least in the Eleventh Circuit in Alba. It's not an issue that applies in this case because there's no such certificate here in California. I do think it would be adequate. I mean, Bush v. Lucas, which is a Federal remedies case, said there were what they called "meaningful remedies." As long as there's a meaningful remedy, it's sufficient. And if Congress wants to think that there's a problem, for example, if Congress thinks there's a problem with these certificates of merit in the case of privately run facilities, then it certainly can establish a cause of action as it did in section 1983. But the Bivens doctrine is really a narrow, as we say, gap-filling doctrine. And the Court has always used it very sparingly. And the reason the Court has done that is because there is no authority for it in the language of any constitutional or statutory Alderson Reporting Company Official provision. So, the Court has always treaded very cautiously in this area. And I wouldn't rule out in that circumstance that somebody could make that argument. I -- I just don't think in this case there has been any real dispute that there's an adequate remedy. There wasn't in Malesko, and that was sufficient in that case. And we think it is sufficient in this case as well for the Court to in effect stay its Bivens hand and turn the matter if necessary over to Congress.

Justice Alito: Under the PLRA -- under the PLRA, a district judge has to perform a screening function for -- for these complaints, and is that -- is it going to be an impossible burden for district judges to ascertain the contours of State prison law, in that there apparently is not a lot of prisoner litigation under State law? Most prisoners seem to choose 1983.

Jonathan S. Franklin: Well, in this case, the magistrate judge did it. It wasn't an impossible burden for him. This was done on a prescreening. The court ruled as exactly as we are asking the Court to rule now. The court did it. The Court in Malesko did it. It wasn't difficult. If it is deemed that there's an issue there, there are various procedural mechanisms that Alderson Reporting Company Official could be employed. There could be a dismissal without prejudice, a dismissal with repleading, certification to a State court. You could stay the Bivens action. There's various things that district courts can do. But in this case, it wasn't an issue. It wasn't an issue in Malesko. We don't think it's going to be an issue in other cases either. If I may reserve the remainder of my time.

Chief Justice Roberts: Thank you, counsel. Mr. Shah. ORAL ARGUMENT OF PRATIK A. SHAH ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Pratik A. Shah: Mr. Chief Justice, and may it please the Court: The last three decades of this Court's precedents make clear that judicial extension of a Bivens remedy is not the default presumption. It is permissible only where there is no adequate alternative remedy and there are no other factors counseling hesitation. Neither criterion is satisfied here. Respondent is suing employees of a private prison corporation who, unlike their federally employed counterparts, are subject to well-established theories of tort liability but lack a recognized qualified Alderson Reporting Company Official immunity defense. Under the circumstances present here, which I submit reflect the heartland of cases alleging Eighth Amendment violations for deliberate indifference to serious medical needs, recognition of the Bivens remedy is neither necessary nor appropriate.

Justice Ginsburg: Mr. Shah, go back to what you said about lacking -- these private -- these employees of the private corporation you said lack qualified immunity. But they do have -- courts have allowed them to have a good faith defense. So, in practice, how different is that, whether they have qualified immunity or whether they have a good faith defense?

Pratik A. Shah: A couple of responses, Your Honor. First, this Court has never recognized a good faith defense. So, I wouldn't call it a recognized defense. It is true that some lower courts have applied a good faith defense. Reading those cases, it's not entirely clear exactly what the content of that good faith defense is. What is clear is that it's something less than qualified immunity. It appears in most of the cases that they're grafting on some sort of subjective element, subjective intent element, on top of what you must establish to get qualified immunity. Alderson Reporting Company Official So, whatever it is, it's something lesser than qualified immunity, and I think that in and of itself creates an asymmetry. But I think the larger point is, is that these prisoners have alternative adequate remedies under State law because they're suing a private employee rather than a government employee. The government employee is subject to the Westfall Act, and, therefore, all civil actions other than Bivens are pre-empted. And so, I think that's the fundamental difference. I think it further counsels hesitation because of the lack of a recognized immunity defense, whether that's qualified immunity or good faith.

Justice Sotomayor: Could you address the question posed earlier of what were to happen if there was a State law that gave absolute immunity to these private correctional officers, and that was the case before us. This particular State, it's undisputed, would not permit any kind of intentional or negligence suit against these officers.

Pratik A. Shah: Sure. Your Honor, in that hypothetical -- and of course, there is no suggestion in this case that any State has such a rule -- but if a State were to adopt that such rule, I think that would be a case where there is no adequate alternative remedy, Alderson Reporting Company Official because in your -- in your hypothetical, there is absolute immunity. There wouldn't be a way for the prisoner to redress -- seek redress for the gravamen of his injuries. And I think in that case, we have a very different situation, and a Bivens remedy may well be justified. But --

Justice Sotomayor: Interesting, because what you're proposing is a sort of State-by-State, circuit-by-circuit, presumably, existence of a Bivens claim or not. That's really the outcome of your position.

Pratik A. Shah: Well, yes, Your Honor, except the fact that there has been no suggestion that any State has such a draconian rule or has ever passed one. We're simply arguing for a rule that would limit Bivens to when there is no adequate State law remedy. That's clearly the case here. It's clearly going to be the case in the vast majority of Eighth Amendment prisoners. What this Court should not do is craft a default rule allowing Bivens remedies against employees of private prison corporations just to account for the hypothetical possibility that there may be a case which may or may not ever arise in which an adequate alternative is not. That turns Bivens jurisprudence on its head.

Justice Sotomayor: Then I guess the Alderson Reporting Company Official question is -- yes, when you talk about an overlap of remedies, we have said that it doesn't need to be a matching one-to-one remedy, but you do need some degree of meaningful overlap, don't you?

Pratik A. Shah: I would agree with that, Your Honor. I think -- I think --

Justice Sotomayor: So, how -- define how much or how do we describe the adequacy of that overlap?

Pratik A. Shah: I think it would be difficult to come up with a precise formulation. I think the formulation that we use in our brief is that as long as it redressed the gravamen of the prisoner's injuries. So, I think as long as it provides some meaningful relief for the injuries and in turn that would provide some deterrence to the individual employees' actions -- I think as long as those two elements are present, I think we would think that there is an adequate alternative remedy. Or, alternatively, if you wanted to use the words -- the word that this Court used in Bivens, you could approach it from the flip side and say there would not be an adequate alternative remedy where the State law is either inconsistent with or hostile to the corresponding constitutional interest. We submit in this case there's no question that there are remedies Alderson Reporting Company Official available under California State law and, as far as we know, the State law of every other State in this country that would allow --

Chief Justice Roberts: It is -- a Bivens action is unusual in the first place, but it's also unusual to say that you don't have a Federal cause of action because of something a State gives you. Do you have any other example of something like that, where the availability of Federal relief turns on the availability of alternative relief under State law?

Pratik A. Shah: Your Honor, it may not be an exact analogue, but I think Federal due process cases often will look at if someone's claims of deprivation of property, an unlawful deprivation of property, in violation of process -- the Federal court may often look at what are the available State law procedures to provide redress for that claim before it would impose or find a violation of Federal due process. So, I think there are analogues where Federal courts do look at the availability of State law remedies and look at their adequacy before determining whether a Federal law remedy is necessary. And this Court has done that. And the Court did it in Malesko, I think is the best example in the Bivens context of where Alderson Reporting Company Official the Court looked at alternative State remedies and said that, hey, look, the availability of these other remedies counsel against the imposition of a Bivens remedy.

Justice Kagan: What is the theory behind that, Mr. Shah? I mean it's an obvious theory when Congress has provided an alternative remedial system, which is a separation of powers theory. But what's the theory about looking to State law for these kinds of alternative remedies?

Pratik A. Shah: Two responses, Your Honor. While I agree the separation of powers problem is much more heightened when Congress acts, I think there is still a separation of powers issue even when Congress has not acted. That is, the Court should be hesitant before -- before implying a judicial -- a cause of action for damages under the Constitution, given that it's typically been Congress's province to do so. But, beyond that, the rationales -- there have been two rationales that have been given by this Court in its -- in its Bivens jurisprudence for implying such a remedy. One is the need to provide some meaningful relief. We submit when there is an alternative State remedy, that rationale has been satisfied. Alderson Reporting Company Official The other rationale this Court has offered is provide some deterrence to the actions of an individual employee or officer. We also submit that when there is a State tort damages remedy available, that rationale too will be accomplished. The three cases in which this Court has recognized a Bivens remedy, Bivens itself, Davis, and Carlson, those two factors were not present. There was either no alternative remedy at all or, at least as in Carlson, no alternative remedy against the individual officer.

Justice Alito: What would you propose that the Court say about the degree of adequate State remedy that is necessary? Just -- what we have here in California is enough and not go any further or --

Pratik A. Shah: I think the Court should start with that. Certainly, here there hasn't been any dispute that there would be -- any real serious dispute that there would be an adequate alternative remedy. I think the Court could also say that, as long as the adequate alternative remedy addresses the gravamen of the prisoner's injuries, that should be sufficient. And I think it could give content to that by looking at the two rationales this Court has offered for Bivens.

Justice Alito: Suppose that a State did for Alderson Reporting Company Official claims against private prisons and private prison guards what I understand New York has done with respect to State-run prisons; in other words, that you eliminate any claim against individual prison employees or guards and give the prisoner just a tort claim against the State. Would that be adequate?

Pratik A. Shah: I think that would be a tougher case. And, of course, I assume in your hypothetical that that's -- that that would also apply to Federal prisoners and federally contracted prisons, and it's difficult to figure out what the State's interests --

Justice Alito: Not a claim against the State. I misspoke. A claim -- only a claim against the company that runs the prison.

Pratik A. Shah: Your Honor, again I think that would be a more difficult hypothetical because the rational about individual deterrence of the individual officer may not be as strong in that hypothetical. But, once again, no State has such a rule, and it's difficult to imagine a State's incentive to adopt such a rule because it's not coming out of the State's pockets. These are federally contracted prisons, contracted by BOP and run by private prison corporations.

Justice Ginsburg: What about the character of the claim? If it's a Bivens claim, it's a Alderson Reporting Company Official constitutional claim. It's an Eighth Amendment claim. And if you're looking to State remedies, that's an ordinary tort remedy with no constitutional involvement.

Pratik A. Shah: Your Honor, it is true, the labels are different and there's going to be different meaning to those remedies. But from the prisoner's standpoint, the rationale behind Bivens was to provide some damages relief. From the prisoner's standpoint, it's not going to matter, I would submit, whether that -- those damages are procured under State law or under a constitutionally implied action. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Preis. ORAL ARGUMENT OF JOHN F. PREIS ON BEHALF OF THE RESPONDENTS

John F. Preis: Mr. Chief Justice, and may it please the Court: The question before the Court today is whether a Federal prisoner's access to constitutional remedies should turn on the mere happenstance of where the prisoner is detained. The Petitioners' chief argument is that privately held Federal prisoners should not have an Eighth Amendment damages remedy because they have remedies under State law. This argument suffers Alderson Reporting Company Official from two flaws. First, it misconceives this Court's Bivens jurisprudence; second, it misconceives the nature of State remedies available to prisoners.

Justice Sotomayor: Why are State remedies -- what of your clients' claims could not be vindicated under State law? And why is a Bivens action superior to a negligence action in California?

John F. Preis: Your Honor, with regard to the claims that can't be vindicated under State law, we think it's likely that his medical malpractice claims, the claims against the doctors, could be vindicated. We don't think the law is clear in -- excuse me -- in California that his other claims, the deprivation of nutrition and hygiene, forced labor at some point before he was -- his injuries were healed, that those would necessarily be covered. We admit there's a chance, as we did in our brief, that it's possible the California Supreme Court could say, well, there has been an intermediate appellate court who has decided this. We take on guidance that and believe these remedies would be covered. But there's nothing here that could -- that could assure this Court that that's the way it will work out. With regards to why Bivens are superior, Alderson Reporting Company Official Bivens are superior when there's no State cause of action. So, there will be some cases, as we concede, where a State cause of action is available. The reason Mr. Pollard brings a Federal cause of action in this case is because it's not clear that State remedies are certainly available. And I think the certainty is an important thing for this Court to remember. The issue before Bivens itself was whether or not this Court should adopt a system of State remedies. And the --

Justice Breyer: The specific case where the State remedy is not available is?

John F. Preis: Your Honor, I'm not aware of any particular case where a State --

Justice Breyer: No, no, no, no. Your --

John F. Preis: Oh, excuse me.

Justice Breyer: Your allegation which you believe states a valid claim under Bivens action but not under State law is?

John F. Preis: The claims that we say do not have a State law --

Justice Breyer: I don't understand specifically what they are. I mean, it sounds to me that if a person (a) deliberately starves somebody to death, for example, or deliberately gives him something Alderson Reporting Company Official which will make him sick when he eats it, that that would at least be negligence and would arise under ordinary State tort law. So, I'm curious to know what your claim is that does not arise under ordinary State tort law?

John F. Preis: Your Honor, I think at the starkest example, if it was the case that somebody actually starved someone --

Justice Breyer: No, give me -- don't answer my -- forget my hypothetical. Tell me your specific claim that does not arise under State tort law. That's all I want to know. Which is the same question I heard -- I just didn't hear the answer to.

John F. Preis: Oh, excuse me, Your Honor.

Justice Breyer: I heard the answer in general.

John F. Preis: Okay.

Justice Breyer: I want to know specifically what you say they did to your client that doesn't make out a State tort claim.

John F. Preis: He brings four claims that he think alleges an Eighth Amendment violation. One is the medical malpractice, which we concede is likely available; the other three, we do not find sufficient evidence in California law that there will certainly be Alderson Reporting Company Official a remedy.

Justice Breyer: I heard you say --

John F. Preis: And those three are --

Justice Breyer: -- that. I just want to know what it is physically you say the defendant did to your client, so that I can evaluate your statement that California gives no tort remedy for that.

John F. Preis: Your Honor --

Justice Breyer: Sorry, I don't mean to sound irritated, but I just have trouble getting my question across.

John F. Preis: Understood, Your Honor. Mr. Pollard was deprived of adequate food and hygiene. A second claim, he was --

Justice Breyer: All right. They failed to give him adequate food for what? So he could live, or for what?

John F. Preis: Well, yes, adequate nutrition. I'm not saying to the point of death, but --

Justice Breyer: They gave him -- and if a person in California who has charge of -- of a ward or someone fails adequately to nourish that ward, you're saying California tort law gives no remedy?

John F. Preis: I'm saying there's no evidence that it does, Your Honor. I think it -- Alderson Reporting Company Official

Justice Breyer: I would call it like negligence, you give a remedy. If it's not negligent, it's deliberate? Or what?

John F. Preis: Your Honor, I think I would put -- I think the best way to approach that question is to look at the shoes of an attorney. When if someone comes in and says I was deprived of these benefits that I was entitled to and I was suffered a harm, the question would be for the lawyer as well, I'll go read the case --

Justice Sotomayor: You can't --

Justice Scalia: The lawyer would say, I can't find a starving case in California; so, you must not have a cause of action. Is that what the lawyer would say?

John F. Preis: No, I think the lawyer would say, I can't be certain. I haven't found a case --

Justice Breyer: It seems odd to me because the Eighth Amendment says cruel and unusual punishment. So, you have to have a cruel treatment. And where a person deliberately or negligently subjects someone else to cruel treatment, my -- my law school recollection of many years ago is that there ordinarily is a tort action. So, that's what I'd like you -- I'm Alderson Reporting Company Official suspicious of your statement that there isn't.

John F. Preis: Yes, Your Honor.

Justice Breyer: Therefore, I ask for some elaboration of that.

Justice Scalia: What do you have besides starving? What -- what else? (Laughter.)

John F. Preis: The other claims were, after he suffered his injuries, he was put back on his work detail before his injuries were healed. He was also, immediately after being injured, forced to sort of endure excessive security measures, forced to wear particular handcuffs that pushed his arms in a -- in a way that was -- caused extraordinary pain and was unnecessary.

Justice Kagan: Can I ask you the same question that I asked Mr. Franklin? Because it just doesn't make any sense to me. The gravamen of this claim is a medical malpractice claim. Why aren't your State law remedies better? You have vicarious liability, and all you have to prove is negligence. Why wasn't this brought as a State law claim?

John F. Preis: Your Honor, I think there's two parts to that, two answers I would give. First, Mr. Pollard was put in a Federal prison by the Federal Alderson Reporting Company Official Government. He often has access -- actually only has access to Federal law books. When he sees himself injured, he thinks this is presumably a Federal case. So, I think there is a certain ethic or, at least, practice, is how that works. Now, why wouldn't medical malpractice work here?

Justice Kagan: Well, that would be false consciousness that we can correct, right?

John F. Preis: Excuse me, Your Honor, I missed the beginning.

Justice Kagan: I mean, if the -- if the true appropriate remedy, and the better remedy from your client's point of view, is a State law action, we should just say bring a State law action.

John F. Preis: Well, we think that prisoners should have access to the State law action, and when there's cause of action available, it might indeed be a better remedy. But I think in terms of whether or not medical malpractice works here, it will work in terms of deterring the medical professionals, but we have multiple defendants in this case, not all of them -- of which would be culpable under -- or liable under a medical malpractice regime. How do we handle the other prisoners -- excuse me -- the other defendants? Alderson Reporting Company Official So, I think you're focused in terms of the remedies available, and I would concede, of course, that's important to the -- to the prisoner. But, of course, the Court is concerned with deterrence in these cases. So, I want to return to Justice Breyer's question, if I might. The gravamen of this case is that in ordinary cases, most of the time -- and the Court is required in this case to figure how big is that "most of the time"? Is it 99 percent of time? Is it 80 percent of the time? And that's what we simply don't have evidence on in this case. And I want to point --

Justice Breyer: When I went to law school, which was many years ago, instead of talking about, like, starvation cases or medical malpractice, they talked about a general thing called negligence.

John F. Preis: Yes.

Justice Breyer: And it seemed to apply to doctors, and then it was medical malpractice, and it applied to others, and -- and is there something here that wouldn't fall in that general kind of rubric or the general terms of California tort law?

John F. Preis: Your Honor, I guess your --

Justice Breyer: And I know, I don't want you just to repeat yourself. Alderson Reporting Company Official

John F. Preis: No --

Justice Breyer: So, I guess I have the best answer I have.

John F. Preis: Your Honor, I'll say two things to that. First, I think what you're asking me to do, and which in a sense the Court will be required to do in this case, is predict what State supreme courts will do on a regular basis. And I would suggest -- suggest that's sort of an extraordinary measure to take in a case where you have Federal prisoners, Federal constitutional rights, and Federal actors.

Justice Sotomayor: -- asking us to do is limit our inquiry to California?

John F. Preis: Excuse me.

Justice Sotomayor: Limit it to California. What -- what --

John F. Preis: I don't --

Justice Sotomayor: They're saying don't look at what other courts will do; just look at the State you're in, the place you're going to make your claim, and figure out whether your claims are covered or not covered essentially in those -- in that State.

John F. Preis: They're suggesting this Court look only at California.

Justice Sotomayor: Right. Alderson Reporting Company Official

John F. Preis: We don't think that is appropriate. This Court's view has always been that a Bivens action exists or does not exist with regards to a entire category of defendants, or the context.

Justice Scalia: Well, so, if there is one State that would not have an adequate remedy for any -- any single bad thing that could happen in prison, there's a Bivens action for everybody for everything? Is that what you're saying?

John F. Preis: Yes, Your Honor, we are.

Justice Scalia: Wow.

John F. Preis: I think if the Court were to write an opinion in that case --

Justice Scalia: I certainly wouldn't want to hold that. (Laughter.)

John F. Preis: I'm not surprised that you wouldn't want to hold that, Your Honor. (Laughter.)

Justice Breyer: I would find that rather surprising, too, actually. (Laughter.)

John F. Preis: Well --

Justice Breyer: Because I -- I think what they're asking to do is fine. On their theory, you have Alderson Reporting Company Official no problem because you go back and show to the court that there is no remedy in California for shackling a person, I guess, deliberately, with knowledge that that would cause severe pain, and if you can show that, then you're going to have your Bivens action in respect to that.

John F. Preis: Well --

Justice Breyer: That -- what they're saying is that you're not going to be able to show that; so, it doesn't worry them.

John F. Preis: Your Honor, I think that the -- the view that there's an ordinary duty of care, a duty to be reasonable, is quite a bit more complex than the Petitioners would make it out to be. Let me offer an example. In this case, in 2007 the district court dismissed Mr. Pollard's complaint. The district court said you have State remedies. Well, what was the proof for that? What was the State law remedies that existed? The only thing the district court cited in a footnote was section 1714 of California's civil code.

Justice Scalia: Who says that the burden is on the other side? Why isn't the burden on you, if you want to bring a Bivens action, on you, to show that there is not an adequate State remedy? Alderson Reporting Company Official

John F. Preis: Your Honor --

Justice Scalia: You're the plaintiff here. You're trying to bring the Federal cause of action. Our law is clear; if there's an adequate remedy we don't invent one. Why isn't it your burden to show that there is not an adequate State remedy?

John F. Preis: Your Honor, two answers to that. First of all, this Court's most recent case where it dealt with whether or not a burden should exist was Wilkie, and there, the majority of the Court said, when we look at alternative remedies, we try to figure out, quote, "whether they amount to a" -- "amount to a convincing reason for the judicial branch to refrain from providing a new and free-standing remedy." Inasmuch as there has been burden discussion in this Court's case law, it would seem to fall -- fall on the other side. Now, I think there's an important point here when we think of burdens. This case is so close to Carlson that really the burden should be on them to take it out of Carlson. I want to address Carlson for a second, if I may.

Chief Justice Roberts: Well, before you do, on page 5 of your brief you say, in the private prison setting, quote, "'a Bivens claim against the offending Alderson Reporting Company Official individual offending officer,'" end quote, is an appropriate remedy. And the quote is from Malesko.

John F. Preis: Yes.

Chief Justice Roberts: What we said in Malesko, where you quote, is that if a Federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer. Now, your friend describes that as a distortion of what we said in Malesko, and I just wanted to give you a chance to reply to what I think is a fairly serious assertion.

John F. Preis: Yes, Your Honor, and I would seriously disagree with the suggestion it's a distortion.

Chief Justice Roberts: Well, just to be clear, you quote that language -- you say "in the private prison setting"; and the language specifically says in a BOP facility.

John F. Preis: Your Honor, what the Court was speaking of in that section of its opinion was that the remedies between a BOP facility and individuals in a private facility should be similar, that it made no sense to give extra remedies to people in a private facility. And so, the Court, Justice -- Chief Justice Rehnquist at the time, was making a comparison saying Alderson Reporting Company Official there should be a general symmetry. And all we are pointing out in that quote is that inasmuch as symmetry matters, well, the Court there in Malesko had said, well, we would likely expect there to be an individual remedy.

Chief Justice Roberts: You would expect the same rule. That's your argument --

John F. Preis: Yes.

Chief Justice Roberts: -- to apply in the private prison setting. What you say is that there we explained that, in the private prison setting, a Bivens claim against the offending individual officer was the appropriate remedy.

John F. Preis: Your Honor, I guess I certainly took part of the quote and didn't use all of the quote, but I did not in any means say -- mean to --

Justice Scalia: That's known as misquoting.

John F. Preis: Well, Your Honor, I guess I would respectfully differ.

Justice Ginsburg: Would you be taking the position that even if there is an alternative State remedy, tort remedy, even so there ought to be a parallel Bivens action? Or would you say no Bivens action if all of the States have adequate tort remedies?

John F. Preis: I think, Your Honor, if this Alderson Reporting Company Official Court would -- could tell with confidence that States, in all States, provided sufficient remedies for the entire variety of Eighth Amendment violations, this Court would be certainly wise in allowing State remedies to work. But I think we're far from that situation. I want to turn, if I may --

Justice Kagan: Could you give me your best example of a State tort rule that would prevent a prisoner from bringing an Eighth Amendment claim?

John F. Preis: Excuse me, Your Honor. Could you repeat that question?

Justice Kagan: Your best example of a tort rule from any State that would preclude a -- a valid Eighth Amendment claim.

John F. Preis: In other words, the prisoner would have an Eighth Amendment claim but not a tort --

Justice Kagan: You have 50 States' worth of tort law to -- as your playground, and I want to know what tort rule would keep a prisoner with a valid Eighth Amendment claim -- would prevent him from recovering?

John F. Preis: Your Honor, I would note Maryland, for example. In Maryland, attacks by a prisoner on another prisoner are evaluated in terms of the liability of the warden; a lot evaluate it on a maliciousness standard. Now, the standard this Court Alderson Reporting Company Official uses in attacks by one prisoner against another is a deliberate indifference standard. The deliberate indifference standard is different. We're not arguing in this case --

Justice Scalia: I don't understand what you're talking about. Is this a suit against a prisoner who was attacked?

John F. Preis: Excuse me, Your Honor.

Justice Scalia: He's not liable unless he's malicious, or what?

John F. Preis: No, it's a suit against the warden --

Justice Scalia: The warden.

John F. Preis: -- for a failure to protect someone against attack by another prisoner.

Justice Scalia: I see. And -- and the warden is liable in Maryland, you say, only if he is malicious?

John F. Preis: The test in Maryland is maliciousness, yes.

Chief Justice Roberts: What about medical malpractice caps? Is that an issue? In other words, State law -- and I don't know how many there are; I know it's been proposed -- I think it's true in some cases will cap your recovery for medical malpractice at Alderson Reporting Company Official a particular level.

John F. Preis: Your Honor, I don't think it's a significant difference in this case. For instance, California --

Chief Justice Roberts: I was -- that was a helpful question, in the sense that -- (Laughter.)

John F. Preis: Oh, I understand. I --

Chief Justice Roberts: The Bivens action -- presumably the cap would not apply. But it applies under State law.

John F. Preis: I think there will be some cases in which the remedies will be curtailed under State law. And one could expect that the deterrent value of a State law remedy would not be available. I have a couple of minutes remaining, and I want to turn to Carlson. I think the suggestion is in this that we've -- the discussion that we have had so far is that we're asking the Court to reach out and create an extraordinary cause of action. I simply don't think that's true. This case is very similar if not the same as Carlson. In Carlson, the Court said that a Federal prisoner has a cause of action against Federal actors for a Federal constitutional right. That's what this Alderson Reporting Company Official case is. And the only distinction the Petitioners can point to is the fact that they are privately employed Federal actors as opposed to publicly employed Federal actors. So, the question becomes, is "privately employed" Federal actor a meaningful distinction from "publicly employed"? We would -- if that distinction is meaningful, we would have expected to find some discussion of it in Malesko, but the Court there paid absolutely no attention to the private status. The Court in Malesko said that Malesko, that case, was in every meaningful sense the same as FDIC v. Meyer. FDIC v. Meyer was a suit against a public agency. If the case is in every meaningful sense the same as Meyer, then it must have been what mattered to the Court in Malesko was that it was a suit against an entity, not public versus private. So, we think there's no evidence in this case that -- or, excuse me -- no -- nothing in the law that suggests this Court cares and ever has cared the distinction between public and private remedies.

Justice Ginsburg: But in Carlson, it was Bivens or no damage remedy. Here, that's not the case.

John F. Preis: Excuse me, Your Honor, I missed the first part of the question. Alderson Reporting Company Official

Justice Ginsburg: In Carlson, the Court was operating on the theory that with respect to the Federal employee, it was a Bivens remedy for damages or no remedy at all.

John F. Preis: No individual remedy.

Justice Ginsburg: Right.

John F. Preis: Yes. Yes, Your Honor.

Justice Ginsburg: And here, it is different from Carlson because there is an -- a remedy against an individual. So, we have the parallel remedies here which didn't exist in Carlson, and that makes the two cases different.

John F. Preis: Your Honor, I think it's fair to say that, in Carlson, the Court expressed a preference for an individual remedy over an entity remedy. But I don't think it's fair to say that the Court addressed in Carlson how it would compare to individual remedies. That issue actually came up in Bivens. There was an individual remedy proposed that would be available under State law, and the alternative was a remedy under the Constitution itself. So, when the Court was faced with two alternative individual actions, the Court said that we prefer the constitutional cause of action. And the reason in Bivens was we can't be certain really how State law works. Alderson Reporting Company Official

Chief Justice Roberts: Do you disagree that the -- I know you have your argument on compensation --

John F. Preis: Yes.

Chief Justice Roberts: -- but with respect to deterrence, is there any significant difference between the two causes of action? In other words, if you think the most significant aspect of Bivens is to deter constitutional violations, doesn't that work equally as well or perhaps more effectively under the State law than under Bivens?

John F. Preis: Your Honor, I think in the end the question asks me to make a 50-State assessment of how State law works, and in that sense, one can only speak in generalizations.

Chief Justice Roberts: So, your answer -- your answer is the same as under compensation, that the State law might be different or not?

John F. Preis: We think, inasmuch as a cause of action is available, with the exception, as the Court noted, of damages caps, there -- we would expect to have a similar level of deterrence, provided that damages are available.

Chief Justice Roberts: Who -- who actually ends up paying in these Bivens actions? Is it the -- I Alderson Reporting Company Official mean --

John F. Preis: What we don't know for --

Chief Justice Roberts: -- the Federal Government or an individual or --

John F. Preis: We would expect -- first of all, obviously, the liability is imposed on the individual. We would expect, as a general matter, that there would be indemnification by the corporation. The question then is, of course, whether that gets passed on to the Federal Government. And I don't think it's fair -- if the Court allows a Bivens action here, I think there's the suggestion that all of a sudden, there'll be a whole new realm of liability and costs. And that's simply not the case.

Chief Justice Roberts: I'm just looking in terms of the practical deterrence. The problem I've had with it in general, I don't know how much practical deterrence there is as if you sue the individual and the -- the individual doesn't actually pay; the government does. It seems to me perhaps more likely in the private context that the individual may get stuck with some amount of the liability if the employer just says, look, you were off doing something you weren't supposed to do; we're not going to pay for it.

John F. Preis: Your Honor, I'm not versed in Alderson Reporting Company Official the indemnification rules of private prisons, but I would expect that there will be some instances where there's indemnification. I think the general rule in terms of --

Justice Scalia: Do you think that the warden of a Maryland prison is aware that if -- if he allows one prisoner to beat up another prisoner, he is only liable for maliciousness and not for deliberate indifference, if indeed there is a difference between the two? Do you think that -- that he's threading the needle that finely, as far as -- as far as deterrence is concerned?

John F. Preis: Your Honor, I think it's always been this Court's presumption that actors, legal actors, respond to the standards of law that are imposed. I can't say --

Justice Scalia: Not at that level of -- of refinement. I mean, it seems to me that any warden knows he's subject to State tort law and that State tort law renders him liable for negligence and, indeed, for physical assaults. Some of your causes of action are intentional torts, not even negligence. I find it hard to believe that, as far as deterrence is concerned, there's a dime's worth of difference between State law and -- and the Bivens action you're asking for. Alderson Reporting Company Official

John F. Preis: Your Honor, if it's the case that there's not a dime's worth of difference, that would only be at this point. And one can expect State law to change over time. I think one of the questions propounded to Mr. Franklin or Mr. Shah was, what if a State imposed a -- or created absolute immunity? I think -- I take Your Honor's point to be that there could be a similarity at one point. And we agree that that could exist for any -- for a particular circumstance. But we don't think this Court should take the enforcement of Federal rights in Federal prisons with regard to Federal actors and set up a scheme where that's handled through State law. There's simply not a justification there. Your Honor, I'd like to address the Westfall Act. They argue strenuously that Congress has already spoken in this case. And that's simply not the case. In the -- put it this way: The FTCA and the Westfall Act deal only with Federal employees, the liability of the Federal Government for actions of Federal employees. Their argument is essentially that Congress attempted to deal with whether or not private contractors should be liable in these situations by -- by amending a statute that has nothing to do with private contractors. And that simply doesn't work. It's not -- there's no Alderson Reporting Company Official suggestion here that Congress attempted to address this situation.

Justice Ginsburg: Well, what was the purpose of making the reference to private contractors in the Westfall Act?

John F. Preis: Your Honor, the Court -- excuse me -- Congress did not make a reference to private contractors in the Westfall Act. They simply -- the Congress simply referred to employees of the United States. And the reason the Court -- excuse me -- Congress referred to employees of the United States was because the FTCA only applies, and has always only applied, to contractors -- excuse me -- employees of the United States. There would have been no reason to reach out because it would be totally beyond the specter of the FTCA itself. I think, Your Honor, there's something else to note here with regard to Congress. At most, what we're dealing with here is congressional silence. They suggest that Congress is fit to take care of this. Nobody doubts that Congress is fit to step in and take care of this at some point in time. But -- this Court's practice with regards to Bivens has been, when Congress steps in, to stand back. But here we have congressional silence. As this -- as the Court said in 2007, its most Alderson Reporting Company Official recent Bivens case was, when you're dealing -- well, excuse me -- the Wilkie case did not involve any specific congressional action. The Court viewed it essentially as congressional silence. The majority of this Court at that time said our evaluation in that instance is to figure out -- excuse me -- whether the Federal courts must make the kind of remedial determination that is appropriate for a common law tribunal. The Court at that point saw itself as a common law tribunal within the specific circumstance of whether or not a Bivens remedy should be available. That's not to say the Court should adopt some sort of roving common law power. It's simply to say where there's congressional silence and the case looks almost identical to Carlson, if not identical, that there's sufficient reason for this Court to find a Bivens cause of action here. If there's no further questions, I urge this Court to affirm the holding of the Ninth Circuit.

Chief Justice Roberts: Thank you, counsel. Mr. Franklin, you have 4 minutes remaining. REBUTTAL ARGUMENT OF JONATHAN S. FRANKLIN ON BEHALF OF THE PETITIONERS

Jonathan S. Franklin: Thank you, Mr. Chief Justice. I just wanted to correct one possible Alderson Reporting Company Official misimpression. There's no allegation here that anyone was deliberately starved. With the allegation regarding the food, his allegation in his complaint is that he -- because presumably his arms were in casts, he couldn't hold his tray in the cafeteria, and, therefore, he says, I had to buy my own food from the commissary because I didn't want to be humiliated by going to the cafeteria. We think that if that claim somehow stated a claim under the Eighth Amendment for deliberate indifference, that it would state a claim under negligence as well. And all of these claims essentially are that the prison failed to accommodate his injuries. Malesko was the same. In Malesko, the argument was: I didn't get to use an elevator because I had a pre-existing condition, and that's what caused my harm. If there is something that negligently causes harm, unreasonably causes harm, there is a remedy in California. I would also note that if it does not cause harm, there's no Bivens remedy, because Congress in the PLRA has said you cannot bring any claim, if you're a prisoner, in Federal court unless it involves physical harm.

Justice Scalia: Do you want us to hold that there's no Bivens action in California? Is that -- is that what our opinion is going to say? Alderson Reporting Company Official

Jonathan S. Franklin: I think the opinion could be as it was in Malesko: There is no Bivens action because there are alternative remedies. We think that holding as in Malesko would apply everywhere. Everybody has -- every State has a negligence cause of action. And I think one thing that crystallized the argument for me is the colloquy between Justice Scalia and -- and my friend, where I think there was an admission that what they are actually seeking is a blanket cause of action to account for any possible instance in which there is an inadequate remedy. I think it goes even further. I think they're asking for a blanket cause of action if somebody can hypothesize an interest, an issue, and even further than that, even if we can't hypothesize it, maybe somewhere along the line, something might happen. We think that's a -- flipping, turning Bivens on its head. Bivens is a narrow remedy that is only allowed when it is necessary. If those circumstances arise, they can be dealt with at that time.

Justice Ginsburg: Do you know if any of these Bivens claims have been pled in the alternative; that is, a Bivens remedy, but alternatively State law?

Jonathan S. Franklin: Yes, that does happen, Your Honor. Yes. And it happens I think relatively Alderson Reporting Company Official frequently. But in these circumstances, we would expect, if the Court rules our way, that there would be in fact resort to what are not only adequate, but superior, State law remedies and that Bivens would then be reserved for another day if something happened that might implicate it. If there are no further questions --

Justice Ginsburg: Is there diversity in this case?

Jonathan S. Franklin: There may be. I think -- I think he alleged that there was. We would agree with the other side that the domicile of a -- of a prisoner is, at least in the circuits, determined by where the prisoner had been before they were in prison, and I think this particular prisoner had been somewhere other than California. So, probably. I can't -- I can't say about the -- the amount in controversy, but probably.

Justice Ginsburg: So, you said there was a statute of limitations problem with starting new.

Jonathan S. Franklin: Yes.

Justice Ginsburg: What about, if there is diversity --

Jonathan S. Franklin: Well, the case was dismissed.

Justice Ginsburg: -- allowing an amendment?

Jonathan S. Franklin: There's no -- the case was Alderson Reporting Company Official dismissed, Your Honor, and it was appealed only on the ground of a Bivens claim. So, if that is rejected, there is no more case. There's nothing to amend.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.)