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Ninth Circuit Holds Private Prison Companies Can Be Sued Under Bivens for Violating Federal Prisoner’s Rights

On June 7, 2010, the U.S. Court of Appeals for the Ninth Circuit held that Richard Lee Pollard, a prisoner in the custody of the Federal Bureau of Prisons (BOP) at the Taft Correctional Institution (TCI) in California, could assert a Bivens claim against employees of a private prison company.

Pollard overcame various procedural challenges before winning the right to pursue his claim. He had alleged that while incarcerated at TCI, he slipped on a cart left in a doorway and suffered possible fractures of both elbows. Employees of GEO Group, Inc., under contract with the BOP to operate TCI, transferred him to an orthopedic clinic outside the prison. Despite Pollard’s complaints, GEO employees forced him to put his arms through his jumpsuit and to wear a “black box” restraint device on his wrists.

After diagnosing serious injuries to both of his elbows, the outside orthopedists recommend that Pollard’s left elbow be placed in a posterior splint for approximately two weeks. Pollard claimed that his elbow was not put in the proper splint by prison medical staff and that he was unable to feed or bathe himself. He also said he was forced to return to work before his injuries had healed and was again required to wear the “black box” restraint when he returned to the outside orthopedist for a follow-up appointment.

The defendants argued that Pollard’s lawsuit should be dismissed for two reasons. First, because they were never served with Pollard’s opening brief, as required by Fed.R.App.Proc. 25(b), and second, that Pollard had failed to enter objections to the Magistrate Judge’s findings and recommendation, and thereby forfeited his right to appeal. The Magistrate’s recommendation that the case be dismissed was adopted by the district court.

The Ninth Circuit failed to find those arguments persuasive, holding there was no “prejudice resulting from Pollard’s failure to comply strictly with the requirements of Rule 25(b).” The appellate court declined to dismiss on the basis of failure to file objections, because “such a failure does not, ‘standing alone, ordinarily constitute a waiver of the [appeal],’” quoting Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

The Court of Appeals also sided with Pollard on the merits of his appeal, finding that “(1) the GEO employees act under color of federal law for purposes of Bivens liability and (2) the availability of a state tort remedy does not foreclose Pollard’s ability to seek redress under Bivens.” The Ninth Circuit noted that the Supreme Court had not “squarely addressed whether employees of a private corporation operating a prison under contract with the federal government act under color of federal law,” and that the facts presented “no principled basis to distinguish the activities of the GEO employees in this case from ... governmental action.”

The Court of Appeals held that “in the Section 1983 context, our sister circuits have routinely recognized that imprisonment is a fundamentally public function, regardless of the entity managing the prison.” The Court further found that the facts of this case called for a Bivens remedy. In doing so, it cited the Supreme Court’s two-part test, including 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,” citing Wilkie v. Robbins, 551 U.S. 537 (2007). The appellate court noted that the remedies offered under the BOP’s administrative procedure did not apply under 28 C.F.R. Section 542.10, and that the existence of other state remedies did not preclude Pollard from pursuing his claim.

The Ninth Circuit concluded that Pollard’s suit under Bivens doctrine against GEO employees would be allowed to proceed, and reversed and remanded the case to the district court. However, the Court of Appeals declined to overturn the dismissal of GEO Group as a party to Pollard’s lawsuit. See: Pollard v. GEO Group, Inc., 607 F.3d 583 (9th Cir. 2010).

An amended ruling was entered by the Ninth Circuit on December 10, 2010, upon the denial of a petition for rehearing en banc, but the changes were not substantive and the outcome remained the same. See: Pollard v. The GEO Group, Inc., ___ F.3d ___ (9th Cir. 2010); 2010 WL 5028447. This decision creates a circuit split because the Fourth and Tenth Circuit Courts of Appeal have specifically held that federal prisoners held in private prisons cannot sue their private captors under Bivens and their only remedy lies in state court tort lawsuits. We expect GEO to seek review of this decision in the U.S. Supreme Court.

Pollard was represented on appeal by John F. Preis at the University of Richmond School of Law in Richmond, Virginia, and by Charles F. Carbone, an attorney in San Francisco, California.

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Related legal case

Pollard v. GEO Group, Inc.