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Immigration Detainee Wins Appointed Counsel And New Trial In Brutality Suit Against CCA

by John E Dannenberg

An immigration detainee of seven years, who had unsuccessfully sued his jailer, Corrections Corporation of America (CCA) and its employees for severely beating him during a medical emergency transport, was granted a new trial with appointed counsel. The Ninth Circuit U.S. Court of Appeals held that the complexity of the case should have alerted the district court to grant the detainee's original motion for appointment of counsel, the lack of which reduced his chances of prevailing to virtually nil.

Emmanuel Agyeman, a native of Ghana deemed an illegal alien by the Immigration and Naturalization Service (INS), had been detained" since February 4, 1997. He was found deportable on July 28, 1997, but the ruling was overturned on July 23, 2002, (Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002)) and remanded for a full and fair hearing. Meanwhile, part of his unending federal detention was spent in facilities operated by private contractor CCA, where he claimed he was mistreated.

Agyeman complained that on October 11, 1998, while he was a pre-trial detainee at CCA's Central Arizona Detention Center, he was beaten by shift supervisor Captain Lopez, by Lt. Egber and by a Sgt. John Doe." Agyeman had been in full mechanical restraints preparatory for his emergency medical transport to Casa Grande Medical Center for treatment of what the Prison Medical Unit had diagnosed as cardiac arrest." Agyeman, barely conscious, apparently didn't move fast enough to satisfy his CCA jailers, who then proceeded to beat him severely. Agyeman suffered three broken teeth, loss of blood and numerous bruises - in addition to obvious pain and suffering from being locked in a cell thereafter for twelve hours, fastened to a bed in an unnatural position calculated to inflict torture.

He filed a lawsuit against CCA and its employees in June 1999. On October 5, 1999 the U.S. District Court granted him in forma pauperis status (IFP) but declared his complaint deficient in a screening order. Agyeman responded on November 5, 1999 with his first amended complaint. The case bounced back and forth, continually being trimmed back by a magistrate judge. Significant for the present case, the magistrate denied Agyeman's motion to appoint counsel because he was not experiencing difficulty... [traceable to] the complexity of the issues involved." Moreover, because the case was beyond the pleading stage, no constitutional right to counsel was at stake.

On May 3, 2003, after a 3 ½ day jury trial, Agyeman lost, and his motions for a new trial, relief under F.R.Civ.P. § 60(b )(3) and judgment notwithstanding the verdict were denied. He appealed, but the district court certified that the appeal was not taken in good faith and revoked Agyeman's IFP status.

The Ninth Circuit, however, ruled contrary and also appointed pro bono counsel for him. The question before the Ninth Circuit was, When does appointment of counsel become necessary due to the complexity of the case." (28 U.S.C. § 1915(e)(1).) Precedent held that such appointment is reserved for exceptional circumstances.

Analyzing Agyeman's case, the Ninth Circuit found a triple complexity." First, to the extent he sued the corporation CCA, the case could not be brought as a Bivens (403 U.S. 388) action because Bivens does not lie for private corporate defendants (citing Correctional Services Corp. v. Malesko, 534 U.S. 61 (2000)). Rather, Agyeman should have sued CCA under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-2680.

Alternatively, per Malesko, he could have sued in tort seeking injunctive relief.

Second, as to suing CCA employees, Agyeman was required to bring a Bivens action. And third, Agyeman's status as a detainee (non-criminal charges) gave him an enhanced status, bringing into question whether BOP rules governing transport of prisoners were even applicable to him.

Agyeman did the best he could, but inappropriately used 42 U.S.C. § 1983 for his action - a statute reserved for suing state employees. The Ninth Circuit reviewed all the places where an alert attorney would have properly steered the progressing actions, and concluded that Agyeman failed not for a bad try, but because the complexities of the case were so overwhelming as to be predictably fatal to its outcome, absent professional help. In short, they were exceptional.

The Ninth Circuit also expressed its disdain for a legal system that detained" a person on non-criminal charges for seven years, and subjected him to treatment like a dangerous criminal. Is there any warrant for shackling the feet and binding the chest of innocent detainee," the court asked? To which this writer adds, Is there any warrant to pummel a shackled prisoner suffering cardiac arrest and torture him for twelve hours," regardless of his incarceration status?

The Ninth Circuit accordingly vacated the judgment below and remanded for relitigation by appointed counsel. See: Agyeman v. Corrections Corporation of America, 390 F.3d 1101 (9th Cir. 2004).

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Related legal case

Agyeman v. Corrections Corporation of America

390 F.3d 1101

United States Court of Appeals, Ninth Circuit.

Emmanuel Senyo AGYEMAN, Plaintiff-Appellant,
Assistant Shift Supervisor; Valadez, Unit Manager; D. Rivas, Assistant
Warden; Laurence, Chief of Security; H. Mohn, Disciplinary Hearing Officer;
John Gluch, Warden; Samberg, Warden; Sarah Cannon, Internal Controls
Officer; Lopez, Shift Supervisor; Calderon, Defendants-Appellees.

No. 03-16068.

Argued and Submitted Nov. 1, 2004.
Filed Dec. 6, 2004.

Background: Pretrial detainee brought Bivens action against private corporation the operated correctional facility for United States and that corporation's employees. The United States District Court for the District of Arizona, Paul G. Rosenblatt, J., declined to appoint counsel for detainee and entered judgment in favor of defendants. Detainee appealed.

Holding: The Court of Appeals, Noonan, Circuit Judge, held that complexity of action was exceptional circumstance that warranted appointment of
Vacated and remanded.

*1102 Ilana Rubel and Anjali Kumar, San Francisco, CA, for the plaintiff-appellant.

Daniel P. Struck, Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-99-01366-PGR.

Before: B. FLETCHER, NOONAN, and THOMAS, Circuit Judges.

NOONAN, Circuit Judge:

Emmanuel Senyo Agyeman appeals the judgment of the district court in this Bivens action in favor of the defendant employees of the Corrections Corporation of America. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Holding that the district court abused its discretion in declining to appoint counsel for Agyeman, we vacate the judgment and remand.

Agyeman, a native of Ghana, entered the United States in 1988. In 1991, he married a United States citizen, Barbara Levy, who subsequently filed an application for adjustment of his status. Barbara Levy, because she was hospitalized, was unable to attend an INS-scheduled interview, and the adjustment was denied. On July 28, 1997, he was found deportable by an immigration judge, and the decision was affirmed by the Board of Immigration appeals. On July 23, 2002, in Agyeman v. INS, 296 F.3d 871 (9th Cir.2002), from which the foregoing facts are taken, we reversed the Board of Immigration Appeals, holding that Agyeman had not received a full and fair hearing, and remanded.

Meanwhile, on February 4, 1997, prior to the immigration judge's ruling, Agyeman had been detained by the Immigration and Naturalization Service (the INS) and thereafter placed in custody in various correctional institutions, some of them operated by the Corrections Corporation of America (the Corrections Corporation), a private company employed by the federal government. On June 10, 1999, he initiated this litigation in response to the treatment he received from his custodians. On October 25, 1999, Agyeman was allowed to proceed in forma pauperis. In a Screening Order dated that day, the district court pointed out various glaring deficiencies in his complaint. In response, on November 5, 1999, Agyeman filed his first amended complaint. On February 9, 2000, several of his claims were dismissed by the court without prejudice. His motion to file a second amended complaint was affirmatively recommended by the magistrate judge to whom the case had been assigned, but only after the excision of several claims and defendants. These recommendations were adopted by the district court on January 4, 2001.

Earlier, on November 13, 2000, the magistrate judge had denied without prejudice Agyeman's motion to appoint counsel. The magistrate judge stated: "Plaintiff has failed to show that any difficulty he is experiencing in attempting to litigate this case is derived from the complexity of the issues involved." No constitutional right *1103 to counsel was at stake, the magistrate judge ruled, because the "case is beyond the pleading stage."

At the center of Agyeman's case were these allegations:
On October 11, 1998, Plaintiff, a pretrial detainee, at Corrections Corporation of America, Central Arizona Detention Center in Florence Arizona was beaten by Captain Lopez, the Shift Supervisor, Lt. Egber and a Sgt. "John Doe". Whilst in full mechanical restraints in preparation for being transported to Casa Grande Medical Center in an Emergency the Prison Medical Unit believed was a cardiac arrest,
Plaintiff was nonetheless knocked to the floor by Captain Lopez, Lt. Egber and a Sgt. "John Doe" for refusing to comply with an order and wasting their time. Plaintiff barely was conscious.
Plaintiff suffered pain and anguish; three broken teeth; loss of blood and several bruises. Plaintiff suffered torture from being restrained in an unnatural position in a locked cell and fastened to a bed for several hours (At least 12 hours) calculated to inflict pain.
Agyeman's motion to file a third amended complaint was denied.

The case went to trial and after three and one half days, on May 2, 2003, the jury found in favor of the defendants. On June 25, 2003, the district court denied Agyeman's motion for relief under Fed.R.Civ.P. 60(b)(3), his motion for a new trial, and his motion for judgment as a matter of law.

Agyeman appealed in forma pauperis. The district court certified that the appeal was not taken in good faith and revoked this status. A motions panel of this court reviewed the record and ruled that Agyeman was entitled to this status for this appeal. This court also granted Agyeman's motion for appointment of pro bono counsel to represent him.

In proceedings in forma pauperis, the district court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). The decision to appoint such counsel is within "the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir.1984). A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims "in light of the complexity of the legal issues involved." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)).

Agyeman's case brought against Corrections Corporation and its employees, had a triple complexity. First, to the extent that Agyeman sought to hold Corrections Corporation itself liable, the case could not be brought under Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, since Corrections Corporation is a private corporation. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (declining to apply Bivens to private corporations). Rather, Agyeman could have brought a suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § § 1346(b)(1), 2671-2680; United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). Alternatively, he could have sued the corporation directly in tort and he could have sought injunctive relief. See Malesko, 534 U.S. at 72-74, 122 S.Ct. 515 (discussing alternative options for federal prisoners in private prisons). Agyeman would have had the option of bringing this suit against Corrections Corporation by joining the latter as a defendant *1104 in the suit under the Federal Tort Claims Act and requesting the district court to exercise supplemental jurisdiction over this defendant. 28 U.S.C. § 1367; see Lester S. Jason & Robert C. Longstreth, Handling Federal Tort Claims § § 6.02-.03 (2004).

Second, to the extent that Agyeman sought recovery from individual employees of the Corrections Corporation, the case had to brought as a Bivens action. Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Third, to the extent that Agyeman's status as a person being held on noncriminal charges enhanced his rights beyond those of an ordinary criminal prisoner, an issue was presented whether the standard Bureau of Prison rules governing the transfer of prison inmates were applicable to him.

The district court in its ruling on his second amended complaint did inform Agyeman of the peculiar position of the Corrections Corporation; but the court did not give him the opportunity to use the information. As to the nature of his action against the employees, not only did Agyeman misconceive it to be a section 1983 action against state employees, but neither the magistrate judge nor the district judge caught the error. Only on appeal was it noted by counsel for Corrections Corporation. Finally, at no point did Agyeman gain access to what Corrections Corporation on appeal has argued is the decisive standard for the restraints put on him prior to transfer for treatment of his emergency medical condition: the 16 pages of the Federal Bureau of Prisons' regulations of December 23, 1996, entitled "Escorted Trips," regulations on their face applicable to felons and innocent detainees alike.

Agyeman, it is obvious from his pleadings, is literate and educated. He was able to read statutes and legal literature. But he lacks legal training. As is evident from the record, a lawyer attentive to differences would have noticed that Agyeman should have sued the employees under Bivens, and the United States and the corporation under the Federal Tort Claims Act. Instead, he was left to articulate a case where, if he had prevailed before the jury, the defendants would have successfully moved for judgment as a matter of law on the ground that they could not be sued as state actors. Without gaining access to the federal prison regulations, Agyeman could not establish that the treatment he alleged that he received was or was not contrary to what was required by the United States as to noncriminal detainees. Without a lawyer, Agyeman not only did not think of obtaining this information but did not advance any coherent theory for subjecting Corrections Corporation to liability. His case, in short, was complex. The circumstances were exceptional. The magistrate judge who ruled on Agyeman's request for counsel knew very little of the likelihood of his success on a claim that had not been properly framed.

A further fact, enhancing the exceptional character of the case, is the anomaly of incarcerating a person on noncriminal charges and confining him for seven years. Such incarceration may be a cruel necessity of our immigration policy; but if it must be done, the greatest care must be observed in not treating the innocent like a dangerous criminal. Is there any warrant for shackling the feet and binding the chest of an innocent detainee? It requires legal skill to frame this issue and distinguish Agyeman's case from that of the ordinary transferee taken by the Bureau of Prisons on an escorted trip.

Because Agyeman was denied counsel, the judgment in his case must be VACATED. The case is REMANDED for proceedings consistent with this opinion, including *1105 the appointment of counsel by the district court.

390 F.3d 1101