Pollard v. the GEO Group, Inc.
629 F.3d 843
9th Cir.2010Background
- Pollard, a federal inmate at Taft Correctional Institution operated by GEO under a BOP contract, sues GEO employees for Eighth Amendment violations.
- Pollard allegedly suffered elbow injuries after a fall; he was forced to wear a restrictive 'black box' device and to don a painful jumpsuit during treatment.
- GEO allegedly failed to provide a posterior elbow splint due to staffing/facility limits and later compelled Pollard to work while injured.
- Pollard filed a pro se Bivens action against GEO and seven individual defendants; GEO was later dismissed following Malesko v. Corrections Corp. of Am.
- The district court dismissed under 28 U.S.C. § 1915A(b)(1) for failure to state a claim, concluding Pollard had state-law remedies and that GEO acted not under color of federal law.
- The Ninth Circuit held GEO employees act under color of federal law and that Wilkie’s two-step test supports a Bivens claim against the GEO employees, reversing in part and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GEO employees acted under color of federal law. | Pollard argues GEO employees are federal actors due to contract and prison context. | GEO contends private employees cannot be federal actors for Bivens purposes. | Yes; GEO employees act under color of federal law. |
| Whether a Bivens remedy is precluded by existing state tort remedies. | State negligence/medical malpractice remedies do not preclude Bivens here. | Existence of state remedies precludes federal Bivens action. | State remedies do not by themselves preclude Bivens; Wilkie analysis supports Bivens here. |
| Whether Wilkie's two-part test supports recognizing a Bivens action here. | Two-part Wilkie test weighs lack of adequate alternatives and policy factors in favor of Bivens. | Existence of state remedies and policy concerns counsel hesitation or denial of Bivens. | Wilkie factors favor recognizing a Bivens remedy against GEO employees. |
| Whether recognizing a Bivens action here would create a circuit split. | Pollard's claim aligns with other circuits' approach recognizing Bivens when appropriate. | Conflicts with Fourth and Eleventh Circuits' decisions; undermines uniformity and Congress's role. | Court adopts ruling that avoids a circuit split by permitting Bivens here. |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (U.S. 1971) (establishes implied damages action against federal officers)
- Davis v. Passman, 442 U.S. 228 (U.S. 1979) (implied Fifth Amendment action by former employee)
- Carlson v. Green, 446 U.S. 14 (U.S. 1980) (prisoner may recover against federal officials under Eighth Amendment)
- Malesko v. Corrections Corp. of Am., 534 U.S. 61 (U.S. 2001) (limits extending Bivens to private corporations; discusses state remedies)
- Wilkie v. Robbins, 551 U.S. 537 (U.S. 2007) (two-part Wilkie test for recognizing new Bivens actions)
- West v. Atkins, 487 U.S. 42 (U.S. 1988) (private contractors can be state actors under §1983 analysis)
- Holly v. Scott, 434 F.3d 287 (4th Cir. 2006) (private prison employees not entitled to Bivens remedy (circuit split))
- Alba v. Montford, 517 F.3d 1249 (11th Cir. 2008) (Eleventh Circuit holds no Bivens where state remedies exist)