F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
May 17, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CO RN ELIUS E. PEO PLES,
Plaintiff - Appellant,
v. Nos. 04-3071 & 04-3124
CCA DETEN TION CENTERS; FRED
LAW RENCE, W arden; RO GER
M OORE, Sr., Assistant W arden;
JAM ES PERRY, Chief of Security;
JAY FOSKETT, Captain of Security;
C ORREC TIO N S C OR PO RA TION OF
AM ERICA; ANDRE FO RD, Chief of
Security; JACQ UELY N BA NKS,
Assistant W arden; BRUCE
ROBERTS, Lieutenant Classification
Personnel; GARY FU LLER, Legal
Services for Prisoners,
Defendants - Appellees.
A PPE AL S FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D . C t. N os. 03-CV-3129-KHV, 02-CV-3298-CM )
Cornelius E. Peoples, pro se, in 04-3124.
Amanda H. Frost, (Brian W olfman, with her on the briefs), Public Citizen
Litigation Group, W ashington, D.C., for Plaintiff-Appellant in No. 04-3071.
M ichael P. Crow (M artha Burnett Crow, with him on the briefs), Crow, Clothier
& Bates, Leavenworth, Kansas, for Defendants-Appellees in Nos. 04-3071 & 04-
3124.
Before TA CH A, Chief Circuit Judge, BA LD OC K and EBEL, Senior Circuit
Judges, KELLY, HE N RY, BR ISC OE, LUCERO, M U RPH Y, HA RTZ,
O’BRIEN, M cCO NNELL, and TYM KOVICH, Circuit Judges.
PE R C U RIA M .
These matters are before us following the court’s grant of rehearing en
banc. Cornelius E. Peoples originally filed two separate complaints for damages
pursuant to Bivens v. Six U nknown Federal Narcotics Agents, 403 U.S. 388
(1971). In those matters, he alleged his constitutional rights were violated during
his pretrial detention at a privately run prison under contract with the United
States M arshals Service. Both district courts denied relief. See Peoples v. CCA
Detention Ctr., 2004 W L 2278667 (D.Kan. M ar. 26, 2004)(Peoples II); Peoples v.
CCA Detention Ctr., 2004 W L 74317 (D.Kan. Jan. 15, 2004)(Peoples I). They
did so, however, on different grounds.
In Peoples I, the district court dismissed the complaint for lack of subject
matter jurisdiction. See Peoples v. CCA Detention Ctr., 2004 W L 74317 at *7. In
Peoples II, the court took jurisdiction over the Bivens claims but ultimately
dismissed the lawsuit for failure to state a claim upon which relief could be
granted pursuant to Fed.. R. Civ. P. 12(b)(6). Peoples v. CCA Detention Ctr.,
2004 W L 2278667 at *7. A panel of this court affirmed the judgments denying
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relief. In doing so, however, it determined both district courts had the requisite
subject matter jurisdiction to consider M r. Peoples’ claims. Peoples v. CCA
Detention Centers, 422 F.3d 1090, 1096 (10th Cir. 2005). The panel was divided
on the issue whether M r. Peoples could maintain an action against the individual
defendants, all of whom were employees of Corrections Corporation of America.
Id. at 1108. W e subsequently granted rehearing en banc, and in accordance with
our local rule, the judgment was vacated, the mandate stayed, and the cases were
restored as pending appeals. 10th Cir. R. 35.6. The court did not vacate the
panel opinion. See id. (noting that the “panel decision is not vacated unless the
court so orders.”).
On this rehearing, we have determined unanimously that the district courts
had subject matter jurisdiction over these claims. Accordingly, that portion of the
panel decision stands, and the district court judgment in Peoples I is reversed
with respect to that issue. See Peoples, 422 F.3d at 1095–96. W e are evenly
divided, however, for substantially the same reasons as are set forth in the panel’s
majority and dissenting opinions, on the question whether a Bivens action is
available against employees of a privately-operated prison. Because there is no
majority on the en banc panel, the district court’s ruling in Peoples II on this
issue is affirmed by an equally divided court. See Zuni Pub. Sch. Dist. No. 89 v.
U.S. Dept. of Ed., 437 F.3d 1289 (10th Cir. 2006); United States v. Rivera, 874
F.2d 754 (10th Cir. 1989). That portion of the original panel opinion addressing
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this issue is, therefore, vacated and lacks precedential value. See Peoples, 422
F.3d at 1096–1108.
As a consequence of our conclusions, the judgment in appeal number 04-
3071, Peoples I, is REVERSED, and that matter is remanded to the United States
District Court for the District of Kansas with instructions to conduct additional
proceedings in light of our opinion regarding the court’s subject matter
jurisdiction. For the reasons stated, the judgment of the United States District
Court for the District of Kansas in appeal number 04-3124, Peoples II, is
AFFIR M ED.
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