Labor & Employment Law

Employees of private federal prison can be liable to prisoner under Bivens (2-1)

In Pollard v. The GEO Group (9th Cir 06/07/2010) the 9th Circuit (2-1) brushed aside cases from other circuits to hold that employees of private federal prison can be liable to a prisoner under Bivens v. Six Unknown Named Agents, 403 US 388 (1971).

Pollard, a federal inmate, sued employees of a private corporation operating a federal prison under contract with the Bureau of Prisons, claiming violation of his 8th amendment rights. The suit was brought under Bivens v. Six Unknown Named Agents, 403 US 388 (1971), which allows a claim for money damages against federal employees for violation of constitutional rights. The 9th Circuit, in contrast to other circuits, held that the suit may proceed.

Pollard is an inmate at a federal prison operated by The GEO Group under contract with the Bureau of Prisons. Pollard claimed that GEO employees violated the 8th amendment by physically mistreating him following an injury. The 9th Circuit made two central holdings:

(1) Although the US Supreme Court has held that private prison corporations are not subject to Bivens liability, the GEO employees were acting under color of federal law for purposes of Bivens liability. [Contra: Holly v. Scott, 434 F3d 294 (4th Cir 2006).] This is by analogy to cases under 42 USC 1983 in which private correctional employees under contract with a state may be liable for failing to render constitutionally adequate medical care. The theory is that private employees operate "under color of law" because confinement of prisoners "is a fundamentally public function."

(2) The court rejected the argument that Pollard's Bivens action is foreclosed because of the availability of a tort claim (negligence) under California law. [Contra: Holly v. Scott; Alba v. Montford, 517 F3d 1249 (11th Cir 2008).] Existence of such an alternative remedy, especially one not created by Congress, is not an absolute bar. Also, barring a Bivens claim would mean that federal officials' liability for constitutional wrongs would be subject to non-uniform rules from state to state.

The DISSENT would have followed the law of the other circuits, especially where an adequate state law remedy exists.

My view:
(1) An obvious candidate for review by the US Supreme Court.
(2) Probably a correct opinion.

Full post as published by Ross' Employment Law Blog on June 07, 2010 (boomark / email).