Lead Opinion
Order; Dissent to Order by Judge BEA; Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge RESTANI.
The majority opinion is amended as follows:
1. At slip op. 8168, n.15, [607 F.3d at 597 n. 15], the final sentence of the footnote is amended to read: < Furthermore, as discussed above, Malesko also relied on the fact that the plaintiff was not seeking recovery against an individual officer. See id. at 73-74,534 U.S. 61 ,122 S.Ct. 515 ,151 L.Ed.2d 456 . >
2. At slip op. 8177, [607 F.3d at 602 ], the following sentence < Unfortunately, under the current Bivens regime, asymmetries will remain irrespective of whether we recognize or deny a Bivens cause of action here.> is amended to read: < Unfortunately, under the current Bivens regime, asymmetries may remain irrespective of whether we recognize or deny a Bivens cause of action here.>
3. At slip op. 8177, [607 F.3d at 602 ], the paragraph beginning < Unlike officers employed ... > is amended to read: < Unlike officers employed by public prisons, the GEO employees may not be entitled to qualified immunity, and as a result, prisoners asserting claims against them may be able to recover more often than their counterparts in governmentally run prisons. Compare Richardson,521 U.S. at 401 ,117 S.Ct. 2100 (holding that employees of privately operated state prisons are not entitled to qualified immunity), with Butz v. Economou,438 U.S. 478 , 501,98 S.Ct. 2894 ,57 L.Ed.2d 895 (1978) (holding that “federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers” (emphases removed)), and Holly,434 F.3d at 294 (stating that employees of privately operated federal prisons are not entitled to qualified immunity). We need not decide the issue of qualified immunity here.>
The dissenting opinion is amended as follows:
At slip op. 8191, [
The amended opinion and amended dissent are filed concurrently with this order.
With those amendments, Judges Hug and Paez voted to deny the petition for panel rehearing. Judge Restani voted to grant the petition for panel rehearing.
The petition for panel rehearing is DENIED.
Judge Paez voted to deny the petition for rehearing en banc and Judge Hug so recommended. Judge Restani recommended that the petition for rehearing en banc be granted. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.
The petition for rehearing en banc is DENIED.
Dissenting Opinion
dissenting from the denial of rehearing en banc,
The panel majority — over a vigorous dissent by Chief Judge Restani of the Court
I. The panel majority erred in unjustifiably recognizing a new Bivens action where adequate, and arguably superior, state remedies exist.
In its forty-year Bivens history, the Supreme Court has never provided a Bivens claim for relief to a person who — like the plaintiff in this case, Richard Lee Pollard — had adequate state tort remedies.
[T]he decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: the federal courts must make*847 the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.
Wilkie v. Robbins,
A look at the three cases in which the Supreme Court has allowed a Bivens recovery reveals the emphasis the Court, and in turn, our sister circuits, have placed on the requirement that there be a lack of alternative state common law or statutory remedies. The Court has recognized two, and only two, contexts that permit recovery under Bivens: “to provide an otherwise nonexistent cause of action against individual [federal] 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 [federal] officer’s unconstitutional conduct.” Corr. Serv. Corp. v. Malesko,
In Bivens, the Court created an implied cause of action for the homeowner for a warrantless, but consensual, entry and a nonconsensual search of his apartment, in violation of his Fourth Amendment rights. The drug agents’ alleged conduct was egregious; they manacled the plaintiff in front of his wife and children, searched his entire apartment, and threatened to arrest his entire family. Bivens,
Next, in Davis v. Passman,
The last, and most recent, application of Bivens liability before the Court occurred thirty years ago in Carlson v. Green,
The facts of these cases show how marked a departure is the panel majority’s opinion from established precedent.
One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of his normal opportunities for protection is under ... a duty to take reasonable action to protect them against unreasonable risk of physical harm.
Rest. (2d) Torts § 314A, see also Delgado v. Trax Bar & Grill,
To recover compensatory damages under California law, Pollard need prove only the individual defendants breached this affirmative duty, and that the breach caused him physical or emotional harm. Additionally, punitive damages are available in an ordinary negligence or medical malpractice action where plaintiff proves defendant acted with “malice” or “extreme indifference to the plaintiffs rights.” Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co.,
In at least one respect, Pollard’s remedy under state law against both jailers and doctors is actually superior to any presumed action he would have under Bivens. A Bivens plaintiff must prove the defendants acted with “deliberate indifference.” Estelle v. Gamble,
The panel majority invokes the abstract claim of “lack of uniformity” as a reason to support its assertion that the existence of state tort remedies cannot, on its own, preclude recognition of a new Bivens action. But “lack of uniformity” has been a significant part of the Court’s analysis only when the plaintiff has shown that he is barred from bringing suit for the alleged constitutional violation in one or more
Qualms about “lack of uniformity” are irrelevant where, as here, the plaintiff has an adequate, and arguably superior, tort claim under state law. The plaintiff has not shown — because he cannot — that there is any state which does not provide recovery for that most fundamental tort claim, in which one person’s negligent conduct causes physical and/or emotional harm to another. Perhaps the states, as “laboratories of democracy,” Landell v. Sorrell,
II. The panel majority creates an irreconcilable circuit split with the Fourth and Eleventh Circuits, which correctly held that Bivens does not apply where adequate state remedies exist.
The panel majority’s decision, by its own admission, creates a circuit split with the two courts of appeals which held, on indistinguishable facts, that alternative state remedies are sufficient, on their own, to preclude recognition of a new Bivens claim. In Alba v. Montford,
In Holly v. Scott,
III. Conclusion
For the first time in this country’s history, this court has created a “freestanding” federal cause of action against private company employees where adequate, and arguably superior, state remedies are available. As the panel majority contends, it is conceivable that there could be some constitutional violations for which there are no existing, alternative remedies under state tort law. If Bivens has any remaining vitality, those are the types of cases to which it was meant to apply. But 1^is is demonstrably not one of those cases. Pollard has adequate, alternative state remedies through which he can vindicate his constitutional rights. By recognizing an implied cause of action in this instance, the panel extends Bivens far beyond its carefully prescribed contours and places this circuit in direct conflict with each of the other circuits to address the issue. To my mind, such a remarkable opinion merited a second look en banc. I must dissent.
OPINION
Plaintiff-Appellant Richard Lee Pollard, a federal inmate, appeals the district court’s order dismissing his Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons.
I. BACKGROUND
The GEO Group, Inc. (GEO), under contract with the federal Bureau of Prisons (BOP), has operated the Taft Correctional Institution (TCI) since December 1997.
Before transporting Pollard to the clinic, a GEO employee directed him to don a jumpsuit. Pollard told the employee that putting his arms through the sleeves of the jumpsuit would cause him excruciating pain, but he was nonetheless required to put it on. Two employees also forced Pollard to wear a “black box” mechanical restraint device on his wrists despite Pollard’s complaints about severe pain. An outside orthopedist diagnosed Pollard with serious injuries to his elbows and recommended that his left elbow be put into a posterior splint for approximately two weeks. Upon returning to TCI, Pollard was told that, due to limitations in staffing and facilities, his elbow would not be put into a posterior splint. Pollard claims that, in the following weeks, he was unable to feed or bathe himself and that the GEO employees failed to make alternative arrangements for him. He further alleges that he was required to return to work before his injuries had healed and was again forced to wear the “black box” restraint when returning to the outside orthopedic clinic for a follow-up appointment.
Pollard subsequently filed a pro se complaint in the United States District Court for the Eastern District of California, alleging violations of his Eighth Amendment rights and seeking money damages under Bivens. His first amended complaint named GEO and eight individuals as defendants. Seven of these individuals were employees of GEO at the time of Pollard’s injuries.
Pollard’s suit against the remaining defendants was assigned to a magistrate judge for screening pursuant to 28 U.S.C. § 1915A(a). The Magistrate Judge issued proposed findings and a recommendation that Pollard’s suit be dismissed under 28 U.S.C. § 1915A(b)(l) for failure to state a claim. Specifically, the Magistrate Judge
Shortly thereafter, Pollard, now represented by counsel, filed a motion to vacate the judgment. That motion requested that the dismissal be vacated for the limited purpose of allowing Pollard to assert objections to the Magistrate Judge’s findings and recommendation, thereby preserving his right to appeal. The district court did not rule on the motion. Pollard ultimately filed a timely notice of appeal, which was served on the Acting Executive Assistant at TCI, but not on any of the individually named defendants personally. Before this court, only five of the original eight individual defendants filed an opposition brief.
We review de novo a district court’s grant of a motion to dismiss under 28 U.S.C. § 1915A. Resnick,
II. PROCEDURAL CHALLENGES
The GEO employees initially argue that we should dismiss this appeal because: (1) they were never served with Pollard’s opening brief and (2) Pollard failed to enter objections to the Magistrate Judge’s findings and recommendation and thereby forfeited his right to appeal. We are not convinced by either of these arguments, which we address in turn.
First, the GEO employees argue that because they were not served with a copy of Pollard’s opening brief, this court lacks jurisdiction over this appeal.
Fed. R.App. P. 3(a)(2) provides that “[a]n appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.” See Azizian v. Federated Dep’t Stores,
The GEO employees have not alleged — nor can we surmise — any prejudice resulting from Pollard’s failure to comply strictly with the requirements of Rule 25(b). Pollard’s counsel has provided the court with an affidavit (and accompanying telephone records) declaring that he contacted GEO and was specifically instructed by a representative of GEO’s General Counsel to send legal correspondence to TCI. We have no reason to doubt that Pollard’s counsel was so instructed, as the same law firm represents GEO and the individually named defendants on appeal. Indeed, the appellees’ answering brief was filed on behalf of all those parties (other than the physician not employed by GEO, Marshall Lewis).
Second, the GEO employees argue that dismissal is warranted because Pollard failed to file timely objections to the Magistrate Judge’s findings and recommendation. The GEO employees contend that the failure to file objections constitutes a waiver of Pollard’s right to appeal. But this court has held that such a failure does not, “standing alone, ordinarily constitute a waiver of the [appeal].” Martinez v. Ylst,
III. DISCUSSION
We turn to the merits of this appeal. The district court dismissed Pollard’s suit pursuant to 28 U.S.C. § 1915A(b)(l) for failure to state a claim.
1. Federal Action
In Bivens, the Supreme Court recognized an implied cause of action under the Fourth Amendment for injury caused “by a federal agent acting under color of his authority....”
We note at the outset that the one federal court of appeal to have directly addressed the question — the Fourth Circuit — has held that employees of private corporations operating federal prisons are not federal actors for purposes of Bivens. Holly,
Neither the Supreme Court nor our court has squarely addressed whether employees of a private corporation operating a prison under contract with the federal government act under color of federal law. That said, we have held that private defendants can be sued under Bivens if they engage in federal action. Schowengerdt v. Gen. Dynamics Corp.,
Other circuits have also recognized the similarity of the § 1983 and Bivens doctrines. See Williams v. Hill,
In the § 1983 context, we have recognized a number of tests for identifying state action. See Howerton v. Gabica,
Similarly, in evaluating whether a prison physician employed as an independent con
If [the physician] misused his power by demonstrating deliberate indifference to [the prisoner’s] serious • medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish [the prisoner] by incarceration and to deny him a venue independent of the State to obtain needed medical care.
West,
In our view, there is no principled basis to distinguish the activities of the GEO employees in this case from the governmental action identified in West. Pollard could seek medical care only from the GEO employees and any other private physicians GEO employed. If those employees demonstrated deliberate indifference to Pollard’s serious medical needs, the resulting deprivation was caused, in the sense relevant for the federal-action inquiry, by the federal government’s exercise of its power to punish Pollard by incarceration and to deny him a venue independent of the federal government to obtain needed medical care. On this point, West is clear.
The Fourth Circuit does not share our understanding of West. The Holly majority concluded that West’s reasoning does not apply to privately operated federal prisons because the relationship among the state, the physician and the prisoner is “very different in this case, where the correctional facility is privately run, than in West ..., where the state itself was directly responsible for managing the prison.” Holly,
Nor do we find convincing the Fourth Circuit’s reliance on Richardson v. McKnight,
In Richardson, the Court explained that qualified immunity applies only where “a tradition of immunity was so firmly rooted in the common law ... that Congress would have specifically so provided had it wished to abolish the doctrine.”
Contrary to the Fourth Circuit’s understanding, the Richardson Court’s observation that private individuals “were heavily involved in prison management during the 19th century,”
Likewise, in the § 1983 context, our sister circuits have routinely recognized that imprisonment is a fundamentally public function, regardless of the entity managing the prison. The Fifth Circuit, for example, has held that “confinement of wrongdoers — though sometimes delegated to private entities — is a fundamentally governmental function. These [private] corporations and their employees are therefore subject to limitations imposed by the Eighth Amendment.” Rosborough v. Mgmt. & Training Corp.,
In accord with West and other federal courts of appeal, we hold that there is but one function at issue here: the government’s power to incarcerate those who have been convicted of criminal offenses. We, decline to artificially parse that power into its constituent parts — confinement, provision of food and medical care, protection of inmate safety, etc. — as that would ignore that those functions all derive from a single, public function that is the sole province of the government: “enforcement of state-imposed deprivation of liberty.” Richardson,
Finally, we note that in Malesko, the Supreme Court explicitly left open the possibility that private prison employees could act under color of federal law and therefore face Bivens liability. The Court, in holding that a corporate entity operating a federal prison could not be subject to Bivens liability, noted that “the question whether a Bivens action might lie against a private individual is not presented here.” Malesko,
The Court recognizes that the question whether a Bivens action would lie against the individual employees of a private corporation like Correctional Services Corporation (CSC) is not raised in the present case. Both CSC and [Malesko] have assumed Bivens would apply to [private prison employees], and the United States as amicus maintains that such liability would be appropriate under Bivens.... [T]he reasoning of the Court’s opinion relies, at least in part, on the availability of a remedy against employees of private prisons.
Id. at 79 n. 6,
2. Availability of a Bivens Remedy
Even where defendants have engaged in federal action, we do not always allow Bivens suits to go forward. We begin with a review of the Supreme Court’s evolving Bivens jurisprudence to help illuminate when we will recognize an implied right of action against individuals engaged in federal action.
In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitu
Since Carlson and Davis, the Supreme Court has “consistently refused to extend Bivens liability to any new context or new category of defendants.” Malesko,
The Court’s most recent consideration of whether to extend Bivens distills its prior three decades of jurisprudence into a two part test:
[0]ur consideration of a Bivens request follows a familiar sequence, and on the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.
Wilkie v. Robbins,
a. Application of the Wilkie Two-Part Test
Under Wilkie, we first must identify whether “any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial
(i) Wilkie Part One: Alternative Existing Processes
The GEO employees argue that because Pollard can pursue a state law negligence action for damages, he has an “alternative, existing process” for protecting his interests and thus should not be afforded a Bivens remedy.
In evaluating whether alternative, potential remedies preclude a Bivens action, the Court has consistently stressed that only remedies crafted by Congress can have such a preclusive effect. For example, in Carlson, the Court held that where “defendants show that Congress has provided an alternative remedy which it explicitly declarefs] to be a substitute for recovery directly under the Constitution and view[s] as equally effective,” no Bivens remedy is available. Carlson,
In Wilkie, the Court made clear that the mere existence of an alternative state remedy, alone, did not preclude a Bivens action. There, the Court noted that the plaintiff had “alternative, existing” remedies for the alleged violation of his Fifth Amendment rights, including state tort remedies, administrative claims against the Bureau of Land Management, and tort claims under the Federal Tort Claims Act.
Instead, the Wilkie opinion requires that we not simply inquire into the existence of alternative remedies generally, but rather that we ask whether “any alternative, existing process for protecting the interest amounts to a convincing reasons for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. at 550,
First, as Wilkie implies and the Court has repeatedly recognized, we consider alternative remedies because the judicially created Bivens remedy should yield to congressional prerogatives under basic separation of powers principles. Id. at 554,
Second, the Court has recognized that the policy “obviousfly]” motivating Bivens was “that the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules.” Carlson,
If we were to allow state tort law to preclude a Bivens action for Pollard and similarly situated prisoners, the liability of federal officials for constitutional violations would no longer be governed by uniform rules. The substance, procedural requirements, and remedies of state tort law— especially with regard to causes of action for negligence and medical malpractice—
The Bivens inquiry turns in part on “bedrock principles of separation of powers,” Malesko,
(ii) Wilkie Part Two: “Special Factors Counselling Hesitation”
Wilkie’s second step requires us to “weight ] reasons for and against the creation of a new cause of action, the way common law judges have always done.”
(a) Feasibility
Pollard alleges a basic Eighth Amendment cause of action under Bivens. Since Carlson, courts have regularly recognized this type of action against federal prison officials, and the applicable standards are clear. See, e.g., Powell v. Lennon,
By contrast, the regime the GEO employees propose- — -allowing a Bivens cause of action to go forward only where a plaintiff would otherwise have no alternative remedy — would likely be difficult to administer. The Eighth Amendment protects against conditions of confinement that “involve the wanton and unnecessary infliction of pain ... [or are] grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes v. Chapman,
These are not isolated examples, and the inquiry becomes even more complicated when a prisoner alleges an Eighth Amendment violation as the result of a combination of factors that may not, on their own, constitute a violation of state tort law. See Wilson v. Seiter,
The dissent argues that these obvious difficulties are irrelevant because Pollard’s
(b) Deterrence
The Court has also looked to whether extending Bivens would undermine the “core purpose” of an implied cause of action: deterring individual officers from committing constitutional violations. Malesko,
In Meyer, the Court declined to extend Bivens to permit suit against a federal agency, reasoning that plaintiffs could be expected to always choose to sue the federal agency over an individual who could assert qualified immunity as an affirmative defense.
In Malesko, the Court echoed this reasoning in concluding that allowing Bivens suits to proceed against private prison corporations would undermine the deterrent effects of Bivens.
The instant case does not present the same problems. It simply cannot be disputed that allowing Bivens suits against private prison employees would not undermine Bivens’s goal of deterring unconstitutional acts by individuals. The dissent argues that state tort remedies are “supe
For instance, in some states, a prisoner in Pollard’s position must submit a declaration by a physician attesting that the suit is not frivolous. See, e.g., Nev.Rev. Stat. § 41A.071 (“If an action for medical malpractice ... is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice.”). It is unclear how a prisoner like Pollard, who filed this claim in forma pauperis, would be able to secure such a declaration. The Eleventh Circuit in Alba concluded that a similar certification requirement in Georgia did not render the inmate’s state remedies ineffective because it merely placed him in “the same shoes as anyone else in Georgia filing a professional malpractice claim,” under “no stricter rules than the rest of Georgia’s residents.”
Additionally, Bivens may allow for recovery of greater damages in some cases than a state tort law remedy. As discussed infra, were Pollard to bring a claim for medical malpractice under California law, there would be a cap on the amount of non-economic damages he could recover. See Cal. Civ.Code § 3333.2. There is no similar cap on non-economic damages under Bivens. Thus, for a truly egregious case of neglect or abuse, a medical professional at a privately operated prison would face significantly greater liability under Bivens than state tort law. Furthermore, to be entitled to punitive damages under California law, a plaintiff must demonstrate “oppression, fraud, or malice.” Cal. Civ.Code § 3294. By contrast, once a plaintiff has successfully met the “deliberate indifference” standard under the Eighth Amendment — requiring that the conduct be “wanton,” Wilson v. Seiter,
(c) Asymmetrical Liability Costs
The Court has also expressed concerns about imposing asymmetric liability costs on privately operated facilities as compared to government-operated facilities. Malesko,
Unlike officers employed by public prisons, the GEO employees may not be entitled to qualified immunity, and as a result, prisoners asserting claims against them may be able to recover more often than their counterparts in governmentally run prisons. Compare Richardson,
On the other hand, if we conclude that Pollard cannot bring a suit under Bivens, then only inmates in public prisons will be able to vindicate their constitutional rights. Prisoners would thereby have entirely different rules governing their rights depending upon whether they are incarcerated in a public or private prison (and, for that matter, in which state the private prison is located). This outcome is equally undesirable. As asymmetries will persist irrespective of the outcome of this case, this consideration does not counsel hesitation in recognizing a Bivens remedy here.
IV. CONCLUSION
We conclude that Pollard’s suit under Bivens against the GEO employees for alleged violations of his Eighth Amendment rights should be allowed to proceed. We reach that conclusion because (1) the GEO employees act “under color of federal law” for purposes of Bivens liability; and (2) a faithful application of Wilkie’s two-part test counsels that state tort remedies alone are insufficient to displace Bivens and there are no “special factors counsel-ling hesitation” in allowing Pollard’s suit to proceed. We therefore reverse and remand to the district court for further proceedings consistent with this opinion. To the extent Pollard’s appeal seeks to challenge the district court’s dismissal of GEO from the lawsuit, we affirm the district court’s disposition as to that issue.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
Notes
. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
. See Richardson v. McKnight,
. And arguably a third. In Peoples v. CCA Det. Ctrs.,
. Pollard brought a Bivens action against seven employees of the GEO Group Inc., a private corporation that operates, under contract with the Bureau of Prisons, the federal prison in which Pollard was incarcerated. Pollard alleged that GEO employees violated his Eighth Amendment rights when, after sustaining injuries to both elbows in an accident in which defendants played no part, he was directed to put on a jumpsuit and wear a "black box” mechanical restraint device on his wrists, and was not provided with assistance to feed or bathe himself — all of which caused him pain and discomfort, but no residual injuries.
. Bivens was not charged with a crime, thus, suppression of the evidence at a criminal trial was not available as a deterrent against such police conduct.
. Under the Federal Tort Claims Act, only the United States could be sued, not the individual federal agents.
. The Supreme Court has also declined to imply a Bivens cause of action in new circumstances not directly related to the existence of alternative state remedies. See Maleslco,
. The Fourth Circuit also grounded its dismissal of plaintiff's Bivens action on the independent basis that the private employees of the prison were not federal actors for the purpose of Bivens. Holly,
. As mentioned in footnote 3, the panel majority's decision probably also creates a conflict with the Tenth Circuit's holding in Peoples v. CCA Det. Ctrs.,
. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. At the time Plaintiff-Appellant Pollard was incarcerated at TCI, the GEO Group, Inc., was known as Wackenhut Corrections Corporation.
. As the district court dismissed Pollard’s suit pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted, we must accept as true all allegations in Pollard's complaint and construe them in the light most favorable to him. See Resnick v. Hayes,
. The seven GEO employee defendants were Raymond Andrews, Margaret Minneci, Jonathan Akanno, Robert Spack, Bob Steifer, Everett Uzzle and Becky Maness.
. We note that it is unclear whether Pollard appeals this dismissal. After GEO was dismissed from the litigation, Pollard nevertheless continued to name the organization as a defendant, although the later district court orders do not address GEO’s liability. On appeal, Pollard has again named GEO, but his briefs are focused solely on the GEO employees’ liability. Whether or not GEO is properly a party to this appeal, any liability is squarely foreclosed by Malesko,
. Raymond Andrews was not included in Pollard's appeal from the district court’s judgment, Everett Uzzle passed away in March 2008, and there is no evidence that physician Marshall Lewis was ever served in the original lawsuit or this appeal.
. The GEO employees also point out that they were never served with the notice of appeal, but concede that under Fed. R.App. P. 3, such a failure does not affect the validity of the appeal. We agree, especially in light of the liberal construction Fed. R.App. P. 3 is due. Smith v. Barry,
. We further note that GEO and its employees were twenty-one months late in filing their answering brief. In a motion before this court — filed over a year after their answering brief was due — appellees argued that the district court lacked personal jurisdiction and that this court therefore lacked jurisdiction to consider the appeal. That motion was denied — and GEO was ordered to file an answering brief — in April 2009.
. Neither the Magistrate Judge nor the district judge reached the question of whether Pollard’s allegations, if true, would amount to a cognizable claim under the Eighth Amendment. We leave it to the district court, if necessary, to make that determination upon remand.
. The dissent suggests that this latter holding is also in conflict with Tenth Circuit law. See Dissenting Op. at 868-69 (stating that "[u]ntil now, the federal circuits that have addressed the issue have held correctly that a prisoner may not maintain such an action" and citing Peoples v. CCA Det. Ctrs.,
. We note that the GEO employees may also qualify as federal actors under the "nexus” test as articulated by Brentwood Academy v. Tennessee Secondary School Athletic Ass’n,
. In Malesko, the Court noted that one of the plaintiff’s alternative existing processes for seeking a remedy was his "full access to remedial mechanisms established by the BOP.”
[t]he Administrative Remedy Program is administered differently for inmates in private facilities. Should an inmate at a private facility wish to appeal a local decision, the inmate may file with the local institution. Inmates who wish to grieve a specific BOP matter (which is limited to classification, designation, sentence computation, reduction of sentence, removal or disallowance of Good Conduct Time, or issues directly involving BOP staff) may utilize the progressive BOP administrative remedy process available to all federal inmates.
U.S. Dep't of Justice, Legal Resource Guide to the Federal Bureau of Prisons 35 (2010), available at http://www.bop.gov/news/PDFs/ legal_guide.pdf. As Pollard’s claim does not fall within any of the "specific BOP matter[s],” he does not have a BOP administrative remedy under 28 C.F.R. § 542.10. Nor did GEO employees’ counsel identify any administrative remedies provided by the corporation itself. In sum, whatever effect the BOP remedies may have had on the Malesko Court's determination of the propriety of extending Bivens, it is irrelevant here.
. The dissent also misreads Malesko to hold that "[t]he availability of an adequate alternative remedy should end the analysis [of whether to extend Bivens]." Dissenting Op. at 874. Malesko, however, did not set forth any such blanket rule. Rather, Malesko reasoned that because the plaintiff had alternative remedies against individual officers — and because he was not seeking recovery against an individual officer — allowing plaintiff to proceed with an implied cause of action would not serve the core deterrence goals of Bivens. See
. Although involving Bivens claims against federal officers, Hui v. Castaneda was ultimately decided solely on the issue of absolute immunity under 42 U.S.C. 233(a). It therefore has no direct bearing on this case.
. The dissent contends that Malesko disproves this rule, arguing that “the Court declined to recognize a Bivens action because of state remedies." Dissenting Op. at 871 (emphasis added). That is not Malesko’s holding. Malesko also relied on administrative remedies fashioned by the BOP — which apply uniformly across federal prisons — in reaching its holding. See
. The dissent states that there "is no reason to think that ... the government contractor defense ... is applicable here.” Dissenting Op. at 874. But there is no way to know on the record before us whether or not that is the case. Cf. Malesko,
. Another, closely related, example of one of these potential defenses is federal preemption. See Saleh v. Titan Corp.,
. According to the United States Justice Department’s statistics, as of year-end 2000, 10.7% of all federal prisoners were held in privately operated prisons. Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners in
Concurrence Opinion
concurring in part and dissenting in part:
I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
I. The Supreme Court has limited Bivens to cases in which no alternative remedy is available against the federal actor who committed the wrong.
The majority overlooks the reality that the Supreme Court has recognized Bivens causes of action only where federal officials, by virtue of their position, enjoy impunity, if not immunity, from damages liability because of gaps or exemptions in statutes or in the common law. See Corr. Servs. Corp. v. Malesko,
The Supreme Court has only extended Bivens twice, “to provide an otherwise nonexistent cause of action against individual 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 officer’s unconstitutional conduct.” Malesko,
Second, the Supreme Court held that a prisoner could bring a Bivens action under the Cruel and Unusual Punishments Clause of the Eighth Amendment against federal prison officials because the prisoner’s only alternative remedy was a claim under the Federal Tort Claims Act (“FTCA”) against the United States. Carlson v. Green,
Thus, the Supreme Court has recognized Bivens claims only “for want of other means of vindication,” as “Davis had no other remedy, Bivens himself was not thought to have an effective one, and in Carlson the plaintiff had none against Government officials.” Wilkie v. Robbins,
In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.”
Id. at 550,
II. The justifications for recognizing Bivens actions do not apply here.
A. Adequate alternative remedies are available to Pollard.
Here, ordinary state tort remedies for negligence or medical negligence against the GEO employees are an adequate, alternative, existing process for protecting Pollard’s interest. Where, as here, the plaintiff has an alternative remedy against a federal official alleged to have acted unconstitutionally, the Supreme Court has “consistently rejected invitations to extend Bivens.” Malesko,
In fact, as the majority concedes, tort remedies for negligence and medical negligence may be even more easily obtained than remedies under Bivens for an Eighth Amendment violation “because the heightened ‘deliberate indifference’ standard of Eighth Amendment liability would make it considerably more difficult for [a plaintiff] to prevail than on a theory of ordinary negligence.”
B. The availability of tort remedies is a convincing reason to refrain from recognizing a new damages remedy.
The availability of a superior alternative remedy is a convincing reason for the Judicial Branch to refrain from providing a new, freestanding damages remedy. See Holly,
III. The availability of a state tort remedy may preclude a Bivens action.
The majority’s conclusion that the availability of state remedies is not a convincing reason for the judiciary to refrain from recognizing a Bivens remedy is based on the faulty premises that remedies that preclude Bivens must (1) be crafted by Congress and (2) “appl[y] uniformly throughout the republic.” Castaneda v. United States,
A. The Supreme Court has declined to recognize a Bivens action because of state remedies.
Recent Supreme Court precedent makes clear that a state tort remedy may be an alternative, existing process that precludes recognition of a Bivens action. In Malesko, the Court “considered] availability of state tort remedies in refusing to recognize a Bivens remedy.” Wilkie,
There is some tension between Malesko and other recent Supreme Court cases, and Carlson, which suggested that the only kind of alternative remedy that could defeat a Bivens claim was one provided by Congress “which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.” Carlson,
The majority’s statement that in Wilkie, the existence of an alternative state remedy alone was not sufficient to preclude a Bivens action, Maj. Op. at 861, is misleading. Rather, in Wilkie, the Supreme Court considered that the plaintiff had “an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints” for torts, improper criminal charges, unfavorable agency actions, and other offensive behavior by the Bureau of Land Management.
B. The need for uniformity is not compelling here.
Uniformity of liability is sometimes important to a Bivens analysis. In Carlson, the Supreme Court stated that “the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules” and that “[t]he question whether [an] action for violations by federal officials of federal constitutional rights should be left to the vagaries of the laws of the several States admits of only a negative answer in the absence of a contrary congressional resolution.”
Here, however, the need for uniformity of rules is much less compelling. First, although employees of a private corporation operating a federal prison may be government actors, they are not federal officials and do not have the same immunities as federal officials. Second, ordinary negligence and medical negligence causes of action are already universally available against employees of a private corporation operating a federal prison, and the elements of such common law-derived causes of action are fundamentally the same in every state.
Unlike in Carlson, no individual state law forecloses or extinguishes such actions altogether, although many states have enacted various procedural hurdles and limits on non-economic damages in medical malpractice suits. Castaneda,
The availability of an adequate alternative remedy should end the analysis. The court need not look at other special factors, such as whether extending the cause of action would: (1) be feasible, (2) serve Bivens’s deterrence goals, or (3) impose asymmetric liability costs. In any event, these factors do counsel hesitation here and certainly do not counsel in favor of recognizing a new Bivens action, as the majority suggests.
A. Case-by-case Bivens determinations are feasible.
First, although a Bivens action under the Eighth Amendment for prisoners is a workable cause of action that is recognized already, allowing a Bivens action to go forward only where a plaintiff would otherwise have no alternative remedy is not unduly complicated. Rather, the Supreme Court appears to prefer case-by-case determinations of whether adequate alternative remedies exist to a blanket determination that Bivens is available to an entire class of plaintiffs. See Wilkie,
Further, the current system of determining whether a state analogue exists is easy to administer because there is unlikely to be an instance in which an Eighth Amendment violation by a private prison employee is not a tort. An Eighth Amendment violation requires a “ ‘sufficiently serious’ ” condition and “ ‘deliberate indifference’ to inmate health or safety.” Farmer v. Brennan,
The majority does not contend that the acts alleged here fall into the category of acts that violate the Eighth Amendment but are not covered by state tort law, and that is not the case. California, Oregon, and every other state recognize the torts of negligence and medical negligence. The tort of negligence also covers Pollard’s allegation that the prison employees deprived him of food while his arms were in casts, as numerous cases recognize that the keeper of a jail has a common law duty to provide prisoners with food. See, e.g., Farmer v. State ex rel. Russell,
There is no reason to think that either federal preemption or the government contractor defense, which the majority mentions, is applicable here. No federal law expressly or impliedly preempts or directly conflicts with a state tort of negligence or medical malpractice here, and federal law
Because the conduct at issue here certainly is covered by state tort law, the other examples the majority posits that may violate the Eighth Amendment of the Constitution but may not be covered by tort law are inapposite. In any event, I am not convinced that any of these acts— denying a prisoner access to a toilet and thus exposing the prisoner to human waste for thirty-six hours, depriving a prisoner of basic necessities, completely depriving a prisoner of outdoor exercise for a period of years, and exposing a prisoner to other unhygienic conditions— would not be covered by tort law. Rather, each act involves a clear breach of the duty of reasonable care and would unreasonably jeopardize a prisoner’s health. See Irabor v. Perry County Corr. Ctr., No. 06-0483-BH-C,
B. Recognizing a Bivens action here would not deter individual officers.
Second, as the majority recognizes, state tort liability deters private prison officials from wrongdoing and may even provide more relief for Pollard than the Eighth Amendment would because the deliberate indifference standard for Eighth Amendment claims creates a high bar to hurdle. Maj. Op. at 866-67. This undermines the deterrence analysis. Because “[t]he purpose of Bivens is to deter individual federal officers from committing constitutional violations,” Malesko,
C. Declining to recognize a Bivens action here would avoid concerns about asymmetrical liability costs.
Finally, declining to recognize a Bivens action here would avoid the concerns that
V. Conclusion
I would join with other circuits in concluding that a Bivens cause of action is not available against employees of privately-run prison corporations where, as here, state tort laws provide a remedy. Accordingly, I respectfully dissent in part.
. Pollard could also sue GEO under a respondeat superior theory in tort, even though he cannot pursue a Bivens action against GEO under Malesko. See Lisa M. v. Henry Mayo Newhall Mem’l Hosp.,
. The majority notes that the alternative BOP administrative remedies that were available in Malesko do not appear to be available to Pollard. Maj. Op. at 860 n.12. Malesko, however, only briefly mentioned BOP remedies and actually emphasized the availability of state tort remedies. See
. Although we have stated previously that "to the extent that [a plaintiff] sought recovery from individual employees of [a private corporation managing a federal prison], the case had to [be] brought as a Bivens action,” that statement was pure dicta. Agyeman v. Corr. Corp. of Am.,
. Following Carlson, this Circuit in Castaneda stated that the FTCA is an inadequate alternative to Bivens because "[w]e do not believe that Congress intended to delegate to the states the mechanism by which violations of federally established rights are remedied,” and that ”[w]e are aware of no case holding a remedial scheme that is entirely parasitic on state law to be a substitute for a Bivens remedy.”
. Because there is no reason to think that these defenses apply, I do not share the majority's concern about the district court’s dismissal of the case pursuant to 28 U.S.C. § 1915A before the defendants made any filing.