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Bivens Claims Against Private Prison Employees May Fail When Other Remedies Available

In an evenly divided en banc rehearing, the United States Court of Appeals for the Tenth Circuit was unable to decide whether a Bivens action is available against employees of a privately?operated prison.

In 2001, Cornelius E. Peoples, a federal pretrial detainee, was held at a Leavenworth, Kansas facility operated by Corrections Corporation of America. After being released into the general population, Peoples filed formal and informal grievances asking to be moved to a different pod due to fears that the Mexican Mafia would assault him. He was not moved and was subsequently mauled ?with padlocks, chains, and full soda cans.? Peoples was assigned to administrative segregation for a total of 13 months during his stay at Leavenworth. He did not receive written notice of the reasons for his segregation, nor did he receive a segregation hearing for five months. While segregated Peoples had no law library access but could receive case law if he had the exact citations. Peoples believed his legal phone calls were unconstitutionally monitored.

Seeking compensatory and punitive damages for the assault, Peoples brought a pro se lawsuit in the United States District Court for the District of Kansas. The Court construed the suit as a Bivens claim alleging Eighth Amendment violations. The Court then dismissed the claim (Peoples I) for lack of subject matter jurisdiction, holding that other remedies were available.

Peoples filed a second Bivens action pro se (Peoples II), claiming his Fifth Amendment due process rights were violated due to segregation without timely notice or hearing, lack of law library access, and monitoring of his attorney calls. The District Court found that, again, it lacked jurisdiction because other means of relief were available. The Court examined Peoples? claims nonetheless, assuming, arguendo, that a Bivens action was available. The Court dismissed all three claims for failure to state a claim upon which relief may be granted. Peoples appealed Peoples I with the aid of counsel, and appealed Peoples II pro se.

On de novo review in a consolidated appeal, the appellate panel affirmed both dismissals. On rehearing en banc, however, the Tenth Circuit reaffirmed the appellate panel?s decision on jurisdiction but vacated its opinion on the availability of a Bivens action.

The principal question was whether prisoners could file a Bivens action against employees of a privately?operated prison holding federal prisoners. The panel court relied heavily on Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), which noted that the U.S. Supreme Court had extended Bivens only twice, in both cases to plaintiffs who had no other cause of action against individual officers alleged to have acted unconstitutionally and to provide a cause of action for a plaintiff lacking any alternative remedy. The panel found that Peoples, in both cases, had a state?law remedy available and therefore concluded that Bivens should not be extended into this new context.

The dissenting judge on the appellate panel noted that the majority treated all causes of action as if they were interchangeable. He further argued that a state tort suit was not an adequate remedy for a constitutional violation. Moreover, the Malesko court did not address whether a claim could be brought against guards. The dissent also pointed out that the majority opinion perpetuated the asymmetry that federal prisoners held in a federal prison may sue their captors for a constitutional violation, but federal prisoners held by a corporation may not. The majority also left the availability of a Bivens remedy reliant upon the absence of state?law remedies, which vary from state to state.
Such a lack of uniformity would only serve to confuse guards and prisoners alike. The majority?s approach, according to the dissent, was dependent upon the particulars of the case because some claims may have state?law remedies where others do not. These issues undermined the deterrent value of Bivens and muddied the legal waters.

On rehearing en banc, the Tenth Circuit found that the lower court did indeed have subject matter jurisdiction. As to the question of whether a federal prisoner held in a private prison may file a Bivens action, the en banc court split evenly for essentially the same reasons argued by the panel?s majority and dissent. Peoples I was remanded to the District Court for further proceedings regarding subject matter jurisdiction. The ruling in Peoples II was affirmed. The Bivens question was vacated and therefore lacks precedential value.

Given the expansion of the private prison industry, the U.S. Supreme Court will eventually have to clarify this issue. In the meantime, plaintiffs would be well advised to bring their actions under state law whenever possible. Where impossible, a well-argued Bivens claim may prompt the U.S. Supreme Court to eventually extend Bivens to protect federal prisoners held in private prisons. See: Peoples v. CCA Detention Centers, 449 F.3d 1097 (10th Cir. 2006) (en banc), cert. denied, __ S.Ct. __, 2006 WL 2462709.

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Related legal case

Peoples v. CCA Detention Centers