Peoples v. CCA Detention Centers

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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