FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD LEE POLLARD,
Plaintiff-Appellant,
v.
No. 07-16112
THE GEO GROUP, INC.,
D.C. No.
Erroneously Sued As WACKENHUT
CORRECTIONS CORPORATION, dba CV-01-06078-
Taft Correctional Institution; OWW(WMW)
MARGARET MINNECI; JONATHAN E. OPINION
AKANNO; ROBERT SPACK; BOB D.
STEIFER; BECKY MANESS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
October 7, 2009—San Francisco, California
Filed June 7, 2010
Before: Procter Hug, Jr. and Richard A. Paez,
Circuit Judges, and Jane A. Restani,* Judge.
Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Restani
*The Honorable Jane A. Restani, Chief Judge of the United States
Court of International Trade, sitting by designation.
8141
8146 POLLARD v. GEO GROUP, INC.
COUNSEL
John F. Preis, University of Richmond School of Law, Rich-
mond, Virginia, and Charles Francis Carbone, San Francisco,
California, for the plaintiff-appellant.
Michael Kenneth Johnson, Lewis, Brisbois, Bisgaard &
Smith, LLP, San Francisco, California, for defendants-
appellees Wackenhut/The GEO Group, Inc., Margaret Min-
neci, Robert Spack, Bob D. Steifer, and Becky Maness.
David J. Wilson, Manning & Marder Kass Ellrod Ramirez
LLP, Los Angeles, California, for defendant-appellee Jona-
than E. Akanno.
POLLARD v. GEO GROUP, INC. 8147
OPINION
PAEZ, Circuit Judge:
Plaintiff-Appellant Richard Lee Pollard, a federal inmate,
appeals the district court’s order dismissing his Eighth
Amendment claims against employees of a private corpora-
tion operating a federal prison under contract with the Bureau
of Prisons.1 This appeal presents the question of whether the
implied damages action first recognized in Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), allows a federal prisoner to recover for vio-
lations of his constitutional rights by employees of private
corporations operating federal prisons. We conclude that it
does.
I. BACKGROUND
The GEO Group, Inc. (GEO), under contract with the fed-
eral Bureau of Prisons (BOP), has operated the Taft Correc-
tional Institution (TCI) since December 1997.2 Pollard is a
federal inmate who, in 2001 and 2002, was incarcerated at
TCI. During his imprisonment, Pollard slipped on a cart left
in a doorway and had to be seen by the prison’s medical staff.3
He was x-rayed, diagnosed with possible fractures of both
elbows, and placed in a bilateral sling. He was then referred
to an orthopedic clinic outside the prison.
Before transporting Pollard to the clinic, a GEO employee
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
At the time Plaintiff-Appellant Pollard was incarcerated at TCI, the
Geo Group, Inc., was known as Wackenhut Corrections Corporation.
3
As the district court dismissed Pollard’s suit pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be
granted, we must accept as true all allegations in Pollard’s complaint and
construe them in the light most favorable to him. See Resnick v. Hayes,
213 F.3d 443, 447 (9th Cir. 2000).
8148 POLLARD v. GEO GROUP, INC.
directed him to don a jumpsuit. Pollard told the employee that
putting his arms through the sleeves of the jumpsuit would
cause him excruciating pain, but he was nonetheless required
to put it on. Two employees also forced Pollard to wear a
“black box” mechanical restraint device on his wrists despite
Pollard’s complaints about severe pain. An outside orthope-
dist diagnosed Pollard with serious injuries to his elbows and
recommended that his left elbow be put into a posterior splint
for approximately two weeks. Upon returning to TCI, Pollard
was told that, due to limitations in staffing and facilities, his
elbow would not be put into a posterior splint. Pollard claims
that, in the following weeks, he was unable to feed or bathe
himself and that the GEO employees failed to make alterna-
tive arrangements for him. He further alleges that he was
required to return to work before his injuries had healed and
was again forced to wear the “black box” restraint when
returning to the outside orthopedic clinic for a follow-up
appointment.
Pollard subsequently filed a pro se complaint in the United
States District Court for the Eastern District of California,
alleging violations of his Eighth Amendment rights and seek-
ing money damages under Bivens. His first amended com-
plaint named GEO and eight individuals as defendants. Seven
of these individuals were employees of GEO at the time of
Pollard’s injuries.4 The eighth, Marshall Lewis, was a doctor
employed by the Pacific Orthopedic Medical Group, which
GEO had hired to treat Pollard. GEO was subsequently dis-
missed from the suit due to the Supreme Court’s holding in
Correctional Services Corp. v. Malesko, 534 U.S. 62 (2001),
that private prison corporations are not subject to Bivens lia-
bility. See Order Dismissing Complaint With Leave to Amend
4
The seven GEO employee defendants were Raymond Andrews, Mar-
garet Minneci, Jonathan Akanno, Robert Spack, Bob Steifer, Everett
Uzzle and Becky Maness.
POLLARD v. GEO GROUP, INC. 8149
at 2, Pollard v. Wackenhut, No. CV-F-01-6078 (E.D. Cal.
Mar. 7, 2002).5
Pollard’s suit against the remaining defendants was
assigned to a magistrate judge for screening pursuant to 28
U.S.C. § 1915A(a). The Magistrate Judge issued proposed
findings and a recommendation that Pollard’s suit be dis-
missed under 28 U.S.C. § 1915A(b)(1) for failure to state a
claim. Specifically, the Magistrate Judge concluded that a
Bivens cause of action was not available to Pollard for two
reasons: (1) state law provided him with alternative remedies
for his injuries in the form of a tort action for negligence or
medical malpractice; and (2) although under contract with the
federal government, the GEO employees did not act under
color of federal law. Pollard did not file objections to the
Magistrate Judge’s recommendation, and the district court
adopted it in full and dismissed Pollard’s complaint.
Shortly thereafter, Pollard, now represented by counsel,
filed a motion to vacate the judgment. That motion requested
that the dismissal be vacated for the limited purpose of allow-
ing Pollard to assert objections to the Magistrate Judge’s find-
ings and recommendation, thereby preserving his right to
appeal. The district court did not rule on the motion. Pollard
ultimately filed a timely notice of appeal, which was served
on the Acting Executive Assistant at TCI, but not on any of
the individually named defendants personally. Before this
5
We note that it is unclear whether Pollard appeals this dismissal. After
GEO was dismissed from the litigation, Pollard nevertheless continued to
name the organization as a defendant, although the later district court
orders do not address GEO’s liability. On appeal, Pollard has again named
GEO, but his briefs are focused solely on the GEO employees’ liability.
Whether or not GEO is properly a party to this appeal, any liability is
squarely foreclosed by Malesko, 534 U.S. at 63-64, 74 (holding that
Bivens should not be extended to allow recovery against a private corpora-
tion operating a halfway house under contract with the BOP). Thus, we
affirm the district court’s dismissal of Pollard’s claims against The GEO
Group, Inc.
8150 POLLARD v. GEO GROUP, INC.
court, only five of the original eight individual defendants
filed an opposition brief.6
We review de novo a district court’s grant of a motion to
dismiss under 28 U.S.C. § 1915A. Resnick, 213 F.3d at 447.
II. PROCEDURAL CHALLENGES
The GEO employees initially argue that we should dismiss
this appeal because: (1) they were never served with Pollard’s
opening brief and (2) Pollard failed to enter objections to the
Magistrate Judge’s findings and recommendation and thereby
forfeited his right to appeal. We are not convinced by either
of these arguments, which we address in turn.
First, the GEO employees argue that because they were not
served with a copy of Pollard’s opening brief, this court lacks
jurisdiction over this appeal.7 Fed. R. App. Proc. 25(b) pro-
vides: “Unless a rule requires service by the clerk, a party
must, at or before the time of filing a paper, serve a copy on
the other parties to the appeal or review. Service on a party
represented by counsel must be made on the party’s counsel.”
It is undisputed that Pollard only served his opening brief on
Dale Patrick, identified as the Acting Executive Assistant for
TCI.
Fed. R. App. P. 3(a)(2) provides that “[a]n appellant’s fail-
ure to take any step other than the timely filing of a notice of
6
Raymond Andrews was not included in Pollard’s appeal from the dis-
trict court’s judgment, Everett Uzzle passed away in March 2008, and
there is no evidence that physician Marshall Lewis was ever served in the
original lawsuit or this appeal.
7
The GEO employees also point out that they were never served with
the notice of appeal, but concede that under Fed. R. App. P. 3, such a fail-
ure does not affect the validity of the appeal. We agree, especially in light
of the liberal construction Fed. R. App. P. 3 is due. Smith v. Barry, 502
U.S. 244, 248 (1992) (“Courts will liberally construe the requirements of
Rule 3.”).
POLLARD v. GEO GROUP, INC. 8151
appeal does not affect the validity of the appeal, but is ground
only for the court of appeals to act as it considers appropriate,
including dismissing the appeal.” See Azizian v. Federated
Dep’t Stores, 499 F.3d 950, 961 (9th Cir. 2007) (noting, in the
context of a violation of Fed. R. App. P. 7, that Fed. R. App.
P. 3(a)(2) grants to this court’s “sound discretion” whether to
dismiss an appeal). In deciding whether such a deficiency
warrants dismissal, we are entitled to consider whether Pol-
lard’s failure resulted in prejudice to the GEO employees or
to this court. See Everest & Jennings, Inc. v. E & J Mfg. Co.,
263 F.2d 254, 262 (9th Cir. 1959) (holding that, because the
opposing party could demonstrate no prejudice, a failure to
file briefs in accordance with court rules did not warrant dis-
missal); Recinos De Leon v. Gonzales, 400 F.3d 821, 822 (9th
Cir. 2005) (published order) (considering prejudice to the
opposing party and to the court in deciding whether to dismiss
an appeal based on the late filing of a brief).
[1] The GEO employees have not alleged—nor can we
surmise—any prejudice resulting from Pollard’s failure to
comply strictly with the requirements of Rule 25(b). Pollard’s
counsel has provided the court with an affidavit (and accom-
panying telephone records) declaring that he contacted GEO
and was specifically instructed by a representative of GEO’s
General Counsel to send legal correspondence to TCI. We
have no reason to doubt that Pollard’s counsel was so
instructed, as the same law firm represents GEO and the indi-
vidually named defendants on appeal. Indeed, the appellees’
answering brief was filed on behalf of all those parties (other
than the physician not employed by GEO, Marshall Lewis).8
Thus, we exercise our discretion under Fed. R. App. P. 3(a)(2)
and decline to dismiss this appeal for this alleged deficiency.
8
We further note that GEO and its employees were twenty-one months
late in filing their answering brief. In a motion before this court—filed
over a year after their answering brief was due—appellees argued that the
district court lacked personal jurisdiction and that this court therefore
lacked jurisdiction to consider the appeal. That motion was denied—and
GEO was ordered to file an answering brief—in April 2009.
8152 POLLARD v. GEO GROUP, INC.
[2] Second, the GEO employees argue that dismissal is
warranted because Pollard failed to file timely objections to
the Magistrate Judge’s findings and recommendation. The
GEO employees contend that the failure to file objections
constitutes a waiver of Pollard’s right to appeal. But this court
has held that such a failure does not, “standing alone, ordinar-
ily constitute a waiver of the [appeal].” 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)). Rather,
Martinez counsels that failure to object to a magistrate judge’s
findings and recommendations “is a factor to be weighed in
considering the propriety of finding waiver of an issue on
appeal.” Id. Because Pollard was proceeding pro se at the
time of the alleged waiver, and because the GEO employees
have demonstrated no prejudice resulting from Pollard’s fail-
ure to file objections, we decline to exercise our discretionary
authority to dismiss this appeal.
III. DISCUSSION1.
We turn to the merits of this appeal. The district court dis-
missed Pollard’s suit pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim.9 Specifically, the Magistrate Judge’s
findings and recommendation concluded that a Bivens action
was not available to Pollard because: (1) the GEO employees
do not act under color of federal law; and (2) Pollard could
pursue a claim for damages against the GEO employees under
state tort law. We address these issues in turn and conclude
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. We recognize that the former holding directly
conflicts with the Fourth Circuit’s holding in Holly v. Scott,
9
Neither the Magistrate Judge nor the district judge reached the question
of whether Pollard’s allegations, if true, would amount to a cognizable
claim under the Eighth Amendment. We leave it to the district court, if
necessary, to make that determination upon remand.
POLLARD v. GEO GROUP, INC. 8153
434 F.3d 287, 294 (4th Cir. 2006), and the latter conflicts with
both Holly and the Eleventh Circuit’s holding in Alba v.
Montford, 517 F.3d 1249, 1254 (11th Cir. 2008).10 We discuss
our disagreement with our sister circuits infra.
1. Federal Action
[3] In Bivens, the Supreme Court recognized an implied
cause of action under the Fourth Amendment for injury
caused “by a federal agent acting under color of his authority
. . . .” 403 U.S. at 389. It is widely accepted that Bivens pro-
vides a cause of action only against an official “acting under
color of federal law.” See, e.g., Morgan v. United States, 323
F.3d 776, 780 (9th Cir. 2003) (“Morgan’s Complaint suffi-
ciently sets forth the elements of a Bivens claim by alleging
a violation of his constitutional rights by agents acting under
the color of federal law.”). Thus, the threshold question pres-
ented here is whether the GEO employees can be considered
federal agents acting under color of federal law in their pro-
fessional capacities. We conclude that they can.
We note at the outset that the one federal court of appeal
to have directly addressed the question—the Fourth Circuit—
10
The dissent suggests that this latter holding is also in conflict with
Tenth Circuit law. See Dissenting Op. at 8179 (stating that “[u]ntil now,
the federal circuits that have addressed the issue have held correctly that
a prisoner may not maintain such an action” and citing Peoples v. CCA
Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and
aff’d by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006)
(per curiam), cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063
(2006). In fact, the portion of the Tenth Circuit’s opinion addressing this
issue was vacated by an equally divided en banc panel under Tenth Circuit
rules and lacks any precedential value. Peoples, 449 F.3d at 1099 (“We
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.”).
8154 POLLARD v. GEO GROUP, INC.
has held that employees of private corporations operating fed-
eral prisons are not federal actors for purposes of Bivens.
Holly, 434 F.3d at 294. See also Alba, 517 F.3d at 1254
(assuming, without deciding, that a privately operated prison
is a government actor for purposes of Bivens liability). In
Holly, as in this case, the defendants were employees of GEO,
which the Fourth Circuit described as “a wholly private cor-
poration in which the federal government has no stake other
than a contractual relationship.” 434 F.3d at 291. Reasoning
that “[a]pplication of Bivens to private individuals simply
does not find legislative sanction,” the Holly majority held
that the GEO employees were not federal actors for purposes
of Bivens. Id. at 292-94.
[4] Neither the Supreme Court nor our court has squarely
addressed whether employees of a private corporation operat-
ing a prison under contract with the federal government act
under color of federal law. That said, we have held that pri-
vate defendants can be sued under Bivens if they engage in
federal action. Schowengerdt v. Gen. Dynamics Corp., 823
F.2d 1328, 1337-38 (9th Cir. 1987) (citing Ginn v. Mathews,
533 F.2d 477 (9th Cir. 1976), abrogated on other grounds by
Rendell-Baker v. Kohn, 457 U.S. 830, 838-43 (1982)); see
also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1104
(9th Cir. 2004) (“[T]o the extent that [Plaintiff] sought recov-
ery from individual employees of the [private corporation
managing the federal prison], the case had to [be] brought as
a Bivens action.”). In determining whether a private individual
has engaged in federal action, we have looked to “state
action” principles developed by the Supreme Court in suits
brought under 42 U.S.C. § 1983. See Morse v. N. Coast
Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997)
(“[W]e apply similar tests to determine whether federal action
exists to support a Bivens claim or to determine whether State
action will permit a § 1983 cause of action.”); Mathis v. Pac.
Gas & Elec. Co., 891 F.2d 1429, 1432 n.3 (9th Cir. 1989)
(“The standards for determining whether an action is govern-
mental are the same whether the purported nexus is to the
POLLARD v. GEO GROUP, INC. 8155
state or to the federal government.”); see also Schowengerdt,
823 F.2d at 1339 n.17 (suggesting the use of § 1983 state
action tests to identify federal action in the Bivens context).
Other circuits have also recognized the similarity of the
§ 1983 and Bivens doctrines. See Williams v. Hill, 74 F.3d
1339, 1340 (D.C. Cir. 1996) (per curiam) (noting that bodies
of law relating to § 1983 and Bivens actions have been assimi-
lated in most respects); Chin v. Bowen, 833 F.2d 21, 24 (2d
Cir. 1987) (“Though the two actions are not precisely parallel,
there is a general trend in the appellate courts to incorporate
§ 1983 law into Bivens suits.” (footnote and internal quota-
tions omitted)); Morast v. Lance, 807 F.2d 926, 931 (11th Cir.
1987) (“[T]he concept of action under color of federal law for
purposes of a Bivens action is almost identical to the doctrine
of action under color of state law for purposes of a § 1983
action . . . .”). Indeed, even the Supreme Court has recognized
a connection between the two doctrines, although at a high
level of abstraction. See Hartman v. Moore, 547 U.S. 250,
254 n.2 (2006) (“Though more limited in some respects not
relevant here, a Bivens action is the federal analog to suits
brought against state officials under [§ 1983].”).
[5] In the § 1983 context, we have recognized a number of
tests for identifying state action. See Howerton v. Gabica, 708
F.2d 380, 383 (9th Cir. 1983) (describing the government
nexus test, the joint action test, the public function test and the
state compulsion test). For our purposes, the most applicable
is the “public function” test: a private entity may engage in
state action where it exercises “powers traditionally exclu-
sively reserved to the State.” Jackson v. Metro. Edison Co.,
419 U.S. 345, 352 (1974). In West v. Atkins, the Supreme
Court applied a variation of that test in concluding that private
correctional employees under contract with North Carolina
were amenable to suit under § 1983 for failing to render con-
stitutionally adequate medical care. See 487 U.S. 42, 49-51
(1988). The Court found state action present in the § 1983
action because the defendant exercised power “possessed by
8156 POLLARD v. GEO GROUP, INC.
virtue of state law and made possible only because the wrong-
doer is clothed with the authority of state law.” Id. at 49
(internal quotation marks and citation omitted). Ten years
before West, the Court had recognized an obligation on the
part of state correctional employees “to provide medical care
for those whom it is punishing by incarceration.” Estelle v.
Gamble, 429 U.S. 97, 103 (1976); see also Carlson v. Green,
446 U.S. 14, 18-19 (1980) (extending Bivens liability to fed-
eral correctional employees). In finding such an obligation
under the Constitution, the Estelle Court reasoned that “[a]n
inmate must rely on prison authorities to treat his medical
needs; if the authorities fail to do so, those needs will not be
met.” Estelle, 429 U.S. at 103.
Similarly, in evaluating whether a prison physician
employed as an independent contractor was amenable to suit
under § 1983, the West Court stated:
If [the physician] misused his power by demonstrat-
ing deliberate indifference to [the prisoner’s] serious
medical needs, the resultant deprivation was caused,
in the sense relevant for state-action inquiry, by the
State’s exercise of its right to punish [the prisoner]
by incarceration and to deny him a venue indepen-
dent of the State to obtain needed medical care.
West, 487 U.S. at 55. In reaching this conclusion, the Court
noted that “[i]t is only those physicians authorized by the
State to whom the inmate may turn” and that “[u]nder state
law, the only medical care [the prisoner] could receive for his
injury was that provided by the State.” Id. The Court rejected
the notion that, because the physician was an independent
contractor rather than a direct employee of the prison, the
state action analysis would change. Instead, the Court held
that, “[w]hether a physician is on the state payroll or is paid
by contract, the dispositive issue concerns the relationship
among the State, the physician, and the prisoner.” Id. at 56.
Thus, the Court concluded, because the private employee was
POLLARD v. GEO GROUP, INC. 8157
“fully vested with state authority to fulfill essential aspects”
of the state’s duty to provide medical care to state prisoners,
he was fulfilling a public function and was therefore amena-
ble to § 1983 liability. Id. at 57.
[6] In our view, there is no principled basis to distinguish
the activities of the GEO employees in this case from the gov-
ernmental action identified in West. Pollard could seek medi-
cal care only from the GEO employees and any other private
physicians GEO employed. If those employees demonstrated
deliberate indifference to Pollard’s serious medical needs, the
resulting deprivation was caused, in the sense relevant for the
federal-action inquiry, by the federal government’s exercise
of its power to punish Pollard by incarceration and to deny
him a venue independent of the federal government to obtain
needed medical care. On this point, West is clear.
[7] The Fourth Circuit does not share our understanding of
West. The Holly majority concluded that West’s reasoning
does not apply to privately operated federal prisons because
the relationship among the state, the physician and the pris-
oner is “very different in this case, where the correctional
facility is privately run, than in West . . . , where the state
itself was directly responsible for managing the prison.”
Holly, 434 F.3d at 294. Curiously, the Fourth Circuit’s read-
ing of West suggests that independent contractors are state
actors when directly hired by the state, but that employees of
an independent contractor are not state actors because they are
not hired by the state. We cannot subscribe to such an illogi-
cal reading of West. As Judge Motz noted in her concurrence
in Holly, West itself rejected the notion that “by adding an
additional layer, the government can contract away its consti-
tutional duties.” Id. at 299 n.1 (Motz, J., concurring in the
judgment). Instead, West makes clear that “ ‘[c]ontracting out’
care ‘does not relieve’ the government of its ‘constitutional
duty’ to provide adequate care or ‘deprive inmates of the
means to vindicate their Eighth Amendment rights.’ ” Id.
(quoting West, 487 U.S. at 55-56).
8158 POLLARD v. GEO GROUP, INC.
Nor do we find convincing the Fourth Circuit’s reliance on
Richardson v. McKnight, 521 U.S. 399 (1997). See Holly, 434
F.3d at 293. Contrary to the Fourth Circuit’s holding, that
case does not stand for the proposition that private prison
employees never act under color of federal or state law. See
id. Indeed, the Court in Richardson expressly noted that it did
“not address[ ] whether the defendants are liable under § 1983
even though they are employed by a private firm.” 521 U.S.
at 413. Rather, the Court there addressed only the question of
whether private prison guards at state prisons are entitled to
qualified immunity when sued for constitutional violations,
not whether those guards acted under color of federal or state
law. See id. As other cases confirm, the immunity question is
fundamentally distinct from the governmental action question
we encounter here. See Wyatt v. Cole, 504 U.S. 158, 168-69
(1992) (holding that “private defendants” were not entitled to
qualified immunity, but remanding for a determination of
whether they were liable as government actors); Jensen v.
Lane County, 222 F.3d 570, 580 (9th Cir. 2000) (holding that
a private physician, contracting with a county psychiatric hos-
pital, was liable as a state actor but was not entitled to quali-
fied immunity).
In Richardson, the Court explained that qualified immunity
applies only where “a tradition of immunity was so firmly
rooted in the common law . . . that Congress would have spe-
cifically so provided had it wished to abolish the doctrine.”
521 U.S. at 403 (internal quotation marks and citation omit-
ted). The Court noted that, although private individuals had
operated correctional facilities in the 18th and 19th centuries,
those individuals did not historically enjoy qualified immu-
nity. Id. at 404-07. Because there was therefore no “ ‘firmly
rooted’ tradition of immunity applicable to privately
employed prison guards,” those private guards were not enti-
tled to qualified immunity. Id. at 404, 412.
Contrary to the Fourth Circuit’s understanding, the Rich-
ardson Court’s observation that private individuals “were
POLLARD v. GEO GROUP, INC. 8159
heavily involved in prison management during the 19th centu-
ry,” 521 U.S. at 405, does not mean that private prison guards
exercise a power that is not “traditionally exclusively reserved
to the State” under the public function test for identifying
state action. Holly, 434 F.3d at 293. The Holly majority
looked to the “operation of the prison, not the fact of [the pris-
oner’s] incarceration,” to conclude that private prison guards
did not perform a traditionally public function. Id. The Holly
majority, however, does not provide, nor can we identify, any
support for such a distinction. The relevant function here is
not prison management, but rather incarceration of prisoners,
which of course has traditionally been the State’s “exclusive
prerogative.” Rendell-Baker, 457 U.S. at 842 (internal quota-
tion marks and citation omitted). West reflects this under-
standing that the relevant function is incarceration, explaining
that a prisoner’s injury from inadequate medical care would
be “caused, in the sense relevant for state-action inquiry, by
the State’s exercise of its right to punish [the prisoner] by
incarceration.” 487 U.S. at 55.
[8] Likewise, in the § 1983 context, our sister circuits have
routinely recognized that imprisonment is a fundamentally
public function, regardless of the entity managing the prison.
The Fifth Circuit, for example, has held that “confinement of
wrongdoers—though sometimes delegated to private entities
—is a fundamentally governmental function. These [private]
corporations and their employees are therefore subject to limi-
tations imposed by the Eighth Amendment.” Rosborough v.
Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003)
(per curiam). Likewise, the Sixth Circuit has held that private
prison employees “perform[ ] the ‘traditional state function’
of operating a prison.” Street v. Corr. Corp. of Am., 102 F.3d
810, 814 (6th Cir. 1996); see also Skelton v. Pri-Cor, Inc.,
963 F.2d 100, 102 (6th Cir. 1991) (per curiam); Ancata v.
Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.
1985). And, in his dissent in Richardson, Justice Scalia,
joined by three other Justices, noted that “private prison man-
agement firms, who perform the same duties as state-
8160 POLLARD v. GEO GROUP, INC.
employed correctional officials, . . . exercise the most palpa-
ble form of state police power.” Richardson, 521 U.S. at 414
(Scalia, J., dissenting).
[9] In accord with West and other federal courts of appeal,
we hold that there is but one function at issue here: the gov-
ernment’s power to incarcerate those who have been con-
victed of criminal offenses. We decline to artificially parse
that power into its constituent parts—confinement, provision
of food and medical care, protection of inmate safety, etc.—
as that would ignore that those functions all derive from a sin-
gle public function that is the sole province of the govern-
ment: “enforcement of state-imposed deprivation of liberty.”
Richardson, 521 U.S. at 416 (Scalia, J., dissenting) (noting
that this function is “a prototypically governmental func-
tion”). Because that function is “traditionally the exclusive
prerogative of the [government],” it satisfies the “public func-
tion” test under Rendell-Baker. 457 U.S. at 842 (internal quo-
tation marks and citation omitted).
Finally, we note that in Malesko, the Supreme Court explic-
itly left open the possibility that private prison employees
could act under color of federal law and therefore face Bivens
liability. The Court, in holding that a corporate entity operat-
ing a federal prison could not be subject to Bivens liability,
noted that “the question whether a Bivens action might lie
against a private individual is not presented here.” Malesko,
534 U.S. at 65. The dissent, authored by Justice Stevens, con-
firmed that this question remained open:
The Court recognizes that the question whether a
Bivens action would lie against the individual
employees of a private corporation like Correctional
Services Corporation (CSC) is not raised in the pres-
ent case. Both CSC and [Malesko] have assumed
Bivens would apply to [private prison employees],
and the United States as amicus maintains that such
liability would be appropriate under Bivens. . . .
POLLARD v. GEO GROUP, INC. 8161
[T]he reasoning of the Court’s opinion relies, at least
in part, on the availability of a remedy against
employees of private prisons.
Id. at 79 n.6 (Stevens, J., dissenting) (internal citation omit-
ted). Thus, despite the contrary holding in the Fourth Circuit,
we conclude that the GEO employees act under color of fed-
eral law for purposes of Bivens liability.11
2. Availability of a Bivens Remedy
Even where defendants have engaged in federal action, we
do not always allow Bivens suits to go forward. We begin
with a review of the Supreme Court’s evolving Bivens juris-
prudence to help illuminate when we will recognize an
implied right of action against individuals engaged in federal
action.
In Bivens, the Supreme Court “recognized for the first time
an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.”
Malesko, 534 U.S. at 66. In the years following Bivens, the
Court recognized a Bivens cause of action on only two occa-
sions. In Davis v. Passman, 442 U.S. 228, 248-49 (1979), the
Court held that the plaintiff stated a cause of action for money
damages against her former employer, a member of the
United States Congress, for employment discrimination in
violation of the Due Process Clause of the Fifth Amendment.
The following year, in Carlson v. Green, 446 U.S. 14, 24
(1980), the Court held that a federal inmate could bring suit
11
We note that the GEO employees may also qualify as federal actors
under the “nexus” test as articulated by Brentwood Academy v. Tennessee
Secondary School Athletic Ass’n, 531 U.S. 288 (2001). That test asks
whether “there is such a close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated as that of the
State itself.” Brentwood, 531 U.S. at 295 (internal quotations omitted).
Given the clear applicability of the “public function” test, we need not
undertake this analysis.
8162 POLLARD v. GEO GROUP, INC.
for money damages against federal prison officials under the
Eighth Amendment.
Since Carlson and Davis, the Supreme Court has “consis-
tently refused to extend Bivens liability to any new context or
new category of defendants.” Malesko, 534 U.S. at 68.
Indeed, the Court has “rejected invitations to extend Bivens”
in every new factual and legal context presented after Carl-
son. Id. at 70; see, e.g., id. at 63 (declining to allow an implied
right of action for an inmate alleging Eighth Amendment vio-
lations against a private corporation operating a federal
prison); FDIC v. Meyer, 510 U.S. 471, 473 (1994) (declining
to allow an implied right of action against a federal agency);
Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (declining to
allow an implied right of action for disabled persons who
were allegedly denied Social Security benefits in violation of
the Fifth Amendment); Bush v. Lucas, 462 U.S. 367, 368
(1983) (declining to allow an implied right of action for a fed-
eral employee allegedly disciplined in violation of the First
Amendment); Chappell v. Wallace, 462 U.S. 296, 297 (1983)
(declining to allow an implied right of action for military per-
sonnel alleging racial discrimination by superior officers).
Although Bivens remains intact, it is apparent that the era Jus-
tice Scalia referred to as the “heady days in which [the
Supreme] Court assumed common-law powers to create
causes of action” is no more. Malesko, 534 U.S. at 75 (Scalia,
J., concurring).
The Court’s most recent consideration of whether to extend
Bivens distills its prior three decades of jurisprudence into a
two part test:
[O]ur consideration of a Bivens request follows a
familiar sequence, and on the assumption that a con-
stitutionally recognized interest is adversely affected
by the actions of federal employees, the decision
whether to recognize a Bivens remedy may require
two steps. In the first place, there is the question
POLLARD v. GEO GROUP, INC. 8163
whether any alternative, existing process for protect-
ing the interest amounts to a convincing reason for
the Judicial Branch to refrain from providing a new
and freestanding remedy in damages. But even in the
absence of an alternative, a Bivens remedy is a sub-
ject of judgment: the federal courts must make the
kind of remedial determination that is appropriate for
a common-law tribunal, paying particular heed, how-
ever, to any special factors counselling hesitation
before authorizing a new kind of federal litigation.
Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (internal quota-
tions and citations omitted). Applying Wilkie’s two-part test,
we hold that a Bivens cause of action is available here.
a. Application of the Wilkie Two-Part Test
[10] Under Wilkie, we first must identify 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.” Id. Second, even in the absence of an alternative,
we must look to any “special factors counselling hesitation
before authorizing a new kind of federal litigation.” Id. (inter-
nal quotation marks and citation omitted). We address each
issue in turn and conclude that Pollard should be entitled to
pursue his Eighth Amendment claim against the GEO
employees.
(i) Wilkie Part One: Alternative Existing Processes
The GEO employees argue that because Pollard can pursue
a state law negligence action for damages, he has an “alterna-
tive, existing process” for protecting his interests and thus
should not be afforded a Bivens remedy.12 The Magistrate
12
In Malesko, the Court noted that one of the plaintiff’s alternative exist-
ing processes for seeking a remedy was his “full access to remedial mech-
8164 POLLARD v. GEO GROUP, INC.
Judge agreed, stating in his recommendation and findings that
“[i]n light of the existing alternative remedies available to
[Pollard], the court finds that extending Bivens would not pro-
vide [Pollard] with an otherwise nonexistent cause of action.”
Neither the Ninth Circuit nor the Supreme Court has ever
addressed whether the existence of a state remedy, alone, is
sufficient to displace the Bivens remedy. We conclude that the
mere availability of a state law remedy does not counsel
against allowing a Bivens cause of action.
In evaluating whether alternative, potential remedies pre-
clude a Bivens action, the Court has consistently stressed that
only remedies crafted by Congress can have such a preclusive
effect. For example, in Carlson, the Court held that where
“defendants show that Congress has provided an alternative
anisms established by the BOP.” 534 U.S. at 74. Although GEO
employees’ counsel could not identify at oral argument whether there were
any BOP administrative remedies available to Pollard, it would appear that
none exist. The BOP’s Administrative Remedy Program applies to those
incarcerated in BOP facilities and half-way houses operated under contract
with the BOP. 28 C.F.R. § 542.10(b) (2002). It does not apply to individu-
als confined in “other non-federal facilities.” Id. Thus, according to a
report released by the Department of Justice in 2008:
[t]he Administrative Remedy Program is administered differently
for inmates in private facilities. Should an inmate at a private
facility wish to appeal a local decision, the inmate may file with
the local institution. Inmates who wish to grieve a specific BOP
matter (which is limited to classification, designation, sentence
computation, reduction of sentence, removal or disallowance of
Good Conduct Time, or issues directly involving BOP staff) may
utilize the progressive BOP administrative remedy process avail-
able to all federal inmates.
U.S. Dep’t of Justice, Legal Resource Guide to the Federal Bureau of Pris-
ons 35 (2010), available at http://www.bop.gov/news/PDFs/legal_guide.
pdf. As Pollard’s claim does not fall within any of the “specific BOP mat-
ter[s],” he does not have a BOP administrative remedy under 28 C.F.R.
§ 542.10. Nor did GEO employees’ counsel identify any administrative
remedies provided by the corporation itself. In sum, whatever effect the
BOP remedies may have had on the Malesko Court’s determination of the
propriety of extending Bivens, it is irrelevant here.
POLLARD v. GEO GROUP, INC. 8165
remedy which it explicitly declare[s] to be a substitute for
recovery directly under the Constitution and view[s] as
equally effective,” no Bivens remedy is available. Carlson,
446 U.S. at 18-19. Likewise, in Bush v. Lucas, the Court held
that the Bivens remedy for an alleged First Amendment viola-
tion was precluded by an “elaborate remedial system that has
been constructed step by step” by Congress. 462 U.S. at 388;
see Schweiker, 487 U.S. at 425 (holding that a remedial
scheme created by Congress, even if incapable of addressing
all of plaintiff’s injuries, precluded a Bivens action).
In Malesko, however, the Court implicitly suggested that
non-congressionally created remedies might displace Bivens.
See 534 U.S. at 70. There, the Court noted that it had consis-
tently declined to extend Bivens except where the extension
would “provide an otherwise nonexistent cause of action
against individual officers alleged to have acted unconstitu-
tionally, or [would] provide a cause of action for a plaintiff
who lacked any alternative remedy for harms caused by an
individual officer’s unconstitutional conduct.” Id. (emphasis
in original). The GEO employees, like the Fourth and Elev-
enth Circuits, place great weight on this “any alternative rem-
edy” language. They argue that it shows that state tort law can
preclude a Bivens remedy. See Alba, 517 F.3d at 1253-55;
Holly, 434 F.3d at 295-97.13 Wilkie, however, demonstrates
that this reads too much into the Court’s words in Malesko.
[11] In Wilkie, the Court made clear that the mere exis-
13
The dissent also misreads Malesko to hold that “[t]he availability of
an adequate alternative remedy should end the analysis [of whether to
extend Bivens].” Dissenting Op. at 8187. Malesko, however, did not set
forth any such blanket rule. Rather, Malesko reasoned that because the
plaintiff had alternative remedies against individual officers—and because
he was not seeking recovery against an individual officer—allowing plain-
tiff to proceed with an implied cause of action would not serve the core
deterrence goals of Bivens. See 534 U.S. at 73-74. Here, however, Pollard
is seeking a remedy against an individual officer, and thus Malesko is not
controlling.
8166 POLLARD v. GEO GROUP, INC.
tence of an alternative state remedy, alone, did not preclude
a Bivens action. There, the Court noted that the plaintiff had
“alternative, existing” remedies for the alleged violation of his
Fifth Amendment rights, including state tort remedies, admin-
istrative claims against the Bureau of Land Management, and
tort claims under the Federal Tort Claims Act. 551 U.S. at
553-54. Even though the plaintiff undoubtedly had a “tort
remedy” available to him, the Court concluded that because
“the forums of defense and redress open to [the plaintiff] are
a patchwork, an assemblage of state and federal, administra-
tive and judicial benches applying regulations, statutes and
common law rules,” “[i]t would be hard to infer that Congress
expected the Judiciary to stay its Bivens hand, but equally
hard to extract any clear lesson that Bivens ought to spawn a
new claim.” Id. at 551, 554. Thus, the mere existence of a
potential state law claim did not suffice to preclude a Bivens
action.
Instead, the Wilkie opinion requires that we not simply
inquire into the existence of alternative remedies generally,
but rather that we ask whether “any alternative, existing pro-
cess for protecting the interest amounts to a convincing rea-
sons for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.” Id. at 550. For two rea-
sons, state court remedies, alone, do not amount to such a
“convincing reason.”
[12] First, as Wilkie implies and the Court has repeatedly
recognized, we consider alternative remedies because the
judicially created Bivens remedy should yield to congressio-
nal prerogatives under basic separation of powers principles.
Id. at 554 (looking to alternative remedies for evidence that
“Congress expected the Judiciary to stay its Bivens hand”);
see also Malesko, 534 U.S. at 69 (“So long as the plaintiff
ha[s] an avenue for some redress, bedrock principles of sepa-
ration of powers foreclose[ ] judicial imposition of a new sub-
stantive liability.”); Schweiker, 487 U.S. at 423 (“When the
design of a Government program suggests that Congress has
POLLARD v. GEO GROUP, INC. 8167
provided what it considers adequate remedial mechanisms for
constitutional violations . . . we have not created additional
Bivens remedies.”); Bush, 462 U.S. at 378 (“When Congress
provides an alternative remedy, it may . . . indicate its intent
. . . that the Court’s power should not be exercised.”); Carl-
son, 446 U.S. at 23 (“The question whether [an] action for
violations by federal officials of federal constitutional rights
should be left to the vagaries of the laws of the several States
admits of only a negative answer in the absence of a contrary
congressional resolution.”). So too has this circuit recognized
the importance of deferring to Congress in this arena. See W.
Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116,
1123 (9th Cir. 2009) (finding remedies available under the
Administrative Procedure Act indicative of congressional
intent to displace Bivens); Libas Ltd. v. Carillo, 329 F.3d
1128, 1130 (9th Cir. 2003) (noting that a Bivens claim can be
precluded when Congress either provides an alternative rem-
edy or provides a mechanism for relief it considers adequate
to remedy constitutional violations); Berry v. Hollander, 925
F.2d 311, 314 (9th Cir. 1991) (“So long as Congress’ failure
to provide money damages, or other significant relief, has not
been inadvertent, courts should defer to its judgment.” (inter-
nal quotation marks omitted)).
[13] Second, the Court has recognized that the policy “ob-
vious[ly]” motivating Bivens was “that the liability of federal
officials for violations of citizens’ constitutional rights should
be governed by uniform rules.” Carlson, 446 U.S. at 23. In
Carlson, the Court made a point of noting that the plaintiff’s
action would have failed under the survivorship law of the
forum state. Id. at 17 n.4. The Court emphasized that “only a
uniform federal rule of survivorship will suffice to redress the
constitutional deprivation here alleged and to protect against
repetition of such conduct.” Id. at 23. As we recently noted in
Castaneda v. United States, 546 F.3d 682, 701 (9th Cir.
2008), overruled on other grounds by Hui v. Castaneda, No.
08-1529 (May 3, 2010),14 “the remedies we and the Supreme
14
Although involving Bivens claims against federal officers, Hui v. Cas-
taneda was ultimately decided solely on the issue of absolute immunity
under 42 U.S.C. 233(a). It therefore has no direct bearing on this case.
8168 POLLARD v. GEO GROUP, INC.
Court have held to preclude Bivens . . . applied uniformly
throughout the republic.” Although Castaneda is no longer
good law, this observation was not addressed by the Supreme
Court and comports with our analysis of the Court’s Bivens juris-
prudence.15 See Schweiker, 487 U.S. at 414 (holding that
Social Security regulations and procedures precluded a Bivens
action); Bush, 462 U.S. at 368 (holding that federal civil ser-
vice regulations precluded a Bivens remedy).
[14] If we were to allow state tort law to preclude a Bivens
action for Pollard and similarly situated prisoners, the liability
of federal officials for constitutional violations would no lon-
ger be governed by uniform rules. The substance, procedural
requirements, and remedies of state tort law—especially with
regard to causes of action for negligence and medical
malpractice—vary widely from state to state. For example,
assuming Pollard were to bring a claim for medical malprac-
tice under California law, the cap on his non-economic dam-
ages would be $250,000. See Cal. Civ. Code § 3333.2. But,
under Oregon law (where Pollard was transferred in the midst
of this litigation), Pollard’s medical malpractice claim would
not be subject to the state’s non-economic damages cap. See
Lakin v. Senco Prods., 987 P.2d 463 (Or. 1999) (holding that
non-economic damages cap mandated by Or. Rev. Stat.
§ 31.710(1) is unconstitutional as applied to common-law
negligence claims). Likewise, the statute of limitations for
bringing his suit under California law would be three years
after the date of his injury or one year after he discovered the
injury, whichever came first. See Cal. Civ. Proc. Code
§ 340.5. But Oregon law would require Pollard to bring his
15
The dissent contends that Malesko disproves this rule, arguing that
“the Court declined to recognize a Bivens action because of state reme-
dies.” Dissenting Op. at 8184 (emphasis added). That is not Malesko’s
holding. Malesko also relied on administrative remedies fashioned by the
BOP—which apply uniformly across federal prisons—in reaching its
holding. See 534 U.S. at 74. Furthermore, as discussed above, Malesko
also relied on the fact that because the plaintiff was not seeking recovery
against an individual officer. See id. at 73-74.
POLLARD v. GEO GROUP, INC. 8169
suit within two years of discovering the injury. See Or. Rev.
Stat. § 12.110(4). We need not belabor the obvious point that
state tort remedies are anything but “uniform.”
[15] The Bivens inquiry turns in part on “bedrock princi-
ples of separation of powers,” Malesko, 534 U.S. at 69, but
concluding that a Bivens cause of action must yield to state
tort law does little to demonstrate deference to congressional
prerogatives. Thus, we conclude that state remedies alone are
insufficient to displace a Bivens remedy under the first prong
of the Wilkie test.
(ii) Wilkie Part Two: “Special Factors Counselling
Hesitation”
Wilkie’s second step requires us to “weigh[ ] reasons for
and against the creation of a new cause of action, the way
common law judges have always done.” 551 U.S. at 554. In
other words, we must look to any “special factors counselling
hesitation before authorizing a new kind of federal litigation.”
Id. at 550 (internal quotation marks and citation omitted). The
Court has emphasized that we must differentiate “special”
factors from “any” factors. McCarthy v. Madigan, 503 U.S.
140, 151 (1992), superseded by statute, Prison Litigation
Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321, as
recognized in Booth v. Churner, 532 U.S. 731, 740-41 (2001).
Although the Court has never compiled an exhaustive list of
these “special” factors, some that the Court has previously
considered include: (1) whether it is feasible to create a work-
able cause of action, Wilkie, 551 U.S. at 555; (2) whether
extending the cause of action would undermine Bivens’s
deterrence goals, Malesko, 534 U.S. at 70-71; (3) whether an
extension of Bivens would impose asymmetric liability costs
on privately operated facilities as compared to government-
operated facilities, id. at 72; and (4) whether unique attributes
of an area, like the military, give reason to infer that congres-
sional inaction is deliberate, see Chappell, 462 U.S. at 304.
As the Court has already recognized a Bivens cause of action
8170 POLLARD v. GEO GROUP, INC.
for inmates in government-run federal prisons, it appears that
prisons do not have the types of unique attributes that coun-
seled against recognizing a Bivens action for claims against
the military in Chapell. Nor did the Court allude to any such
unique attributes in Malesko. Thus, we address only the first
three of these considerations.
(a) Feasibility
[16] Pollard alleges a basic Eighth Amendment cause of
action under Bivens. Since Carlson, courts have regularly rec-
ognized this type of action against federal prison officials, and
the applicable standards are clear. See, e.g., Powell v. Lennon,
914 F.2d 1459 (11th Cir. 1990); Berg v. Kincheloe, 794 F.2d
457 (9th Cir. 1986); Gardner v. Wilson, 959 F. Supp. 1224,
1228 (C.D. Cal. 1997); Lowrance v. Coughlin, 862 F. Supp.
1090 (S.D.N.Y. 1994). There is no need for the district court
to craft new standards or remedies to address Pollard’s claims.
Accordingly, there are no feasibility concerns that would
counsel hesitation under Wilkie.
By contrast, the regime the GEO employees propose—
allowing a Bivens cause of action to go forward only where
a plaintiff would otherwise have no alternative remedy—
would likely be difficult to administer. The Eighth Amend-
ment protects against conditions of confinement that “involve
the wanton and unnecessary infliction of pain . . . [or are]
grossly disproportionate to the severity of the crime warrant-
ing imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981). But many acts meeting that standard may not be cov-
ered by state tort law. For example, a prison inmate deprived
of access to a toilet for several days would have a strong case
against prison officers under Bivens. See DeSpain v. Uphoff,
264 F.3d 965, 974 (10th Cir. 2001) (concluding that exposure
to human waste, even for 36 hours, would constitute a suffi-
ciently serious deprivation to violate Eighth Amendment); see
also Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007)
(per curiam) (citing numerous cases on minimum level of
POLLARD v. GEO GROUP, INC. 8171
hygiene required by the Eighth Amendment). But, although
tort law imposes a duty on those with custody of another to
protect that person “against unreasonable risk of physical
harm,” Restatement (Second) of Torts § 314A(1)(a), (4)
(1965), it is unclear whether deprivation of a toilet would
amount to “physical harm.” Likewise, it is unclear whether a
deprivation of outdoor exercise would amount to a tort viola-
tion, despite our conclusion that such deprivation constitutes
an Eighth Amendment violation in certain circumstances. See
Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979).
Nor is it apparent whether a prisoner could recover under
state law for the denial of “basic necessities such as socks, toi-
let paper, and soap.” See Irabor v. Perry County Corr. Ctr.,
No. 06-0483-BH-C, 2008 WL 1929965, at *2 (S.D. Ala. Apr.
30, 2008). Although a district court considering a constitu-
tional claim based on such injuries stated that the plaintiff had
“adequate state tort remedies available . . . including, but not
limited to, negligence and wantonness,” id. at *4, we find it
somewhat less obvious which theory of state tort law, if any,
would provide the plaintiff in that case with an opportunity
for relief. A plaintiff might also seek to recover under an
intentional infliction of emotional distress theory of recovery,
but that cause of action has its own problems given that prison
disciplinary measures regularly cause emotional distress by
design.
These are not isolated examples, and the inquiry becomes
even more complicated when a prisoner alleges an Eighth
Amendment violation as the result of a combination of factors
that may not, on their own, constitute a violation of state tort
law. See Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some
conditions of confinement may establish an Eighth Amend-
ment violation ‘in combination’ when each would not do so
alone, but only when they have a mutually enforcing effect
that produces the deprivation of a single, identifiable human
need such as food, warmth, or exercise—for example, a low
cell temperature at night combined with a failure to issue
8172 POLLARD v. GEO GROUP, INC.
blankets.” (emphasis omitted)). Indeed, this very problem of
identifying whether state common law provides a remedy is
likely to arise any time constitutional and state common law
regulate similar conduct in different ways.
The dissent argues that these obvious difficulties are irrele-
vant because Pollard’s injuries are “certainly . . . covered by
state tort law.” Dissenting Op. at 8189. But this decision will
have implications far beyond Pollard’s suit. Under the GEO
employees’ proposed framework, as adopted by the dissent, in
each case a court would need to identify whether state reme-
dies provide relief for the plaintiff’s particular claim. While
in some instances that may prove an easy task, in others, like
those identified above, it may be quite difficult. For questions
of first impression, it would require a federal court to exam-
ine: (1) state common law, (2) state statutes, (3) state adminis-
trative regulations, (4) state constitutional provisions, (5)
procedural requirements attendant to each alternative claim
(including statutes of limitations, exhaustion requirements,
etc.), and (6) the existence of a cause of action to enforce state
law. Furthermore, under the GEO employees’ proposed
framework, courts would potentially need to consider whether
a plaintiff’s claims would be frustrated by any viable defenses
under state law. For example, a privately operated prison
might assert the “government contractor” defense if sued
under state tort law. See Boyle v. United Techs. Corp., 487
U.S. 500 (1988) (recognizing a defense immunizing federal
contractors from liability where the contractor has conformed
its behavior to precise government specifications and, if nec-
essary, has warned the government of risks posed by those speci-
fications).16 Thus, unless such defenses are assessed prior to
16
The dissent states that there “is no reason to think that . . . the govern-
ment contractor defense . . . is applicable here.” Dissenting Op. at 8189.
But there is no way to know on the record before us whether or not that
is the case. Cf. Malesko, 534 U.S. at 74 n.6 (noting that “[t]he record here
would provide no basis for [the government contractor] defense”). The
district court did not require GEO or its employees to file any response to
POLLARD v. GEO GROUP, INC. 8173
dismissing a Bivens action because of alternative state reme-
dies, a prisoner in a privately operated facility may be fore-
closed from relief, even though a prisoner housed in a
governmentally run prison would have a cause of action. But,
in the context of prisoner litigation, a court would often be
required to make these types of determinations before the
defendant has asserted any defenses or made any filing what-
soever (as was the case here). See 28 U.S.C. § 1915A (requir-
ing federal courts to pre-screen prisoner civil rights claims).17
It is also worth noting that, in light of the ever-rising percent-
age of federal inmates incarcerated in private prison facilities,
federal courts would be increasingly asked to make these
types of determinations.18
Pollard’s suit before determining that his Bivens claim was precluded by
alternative state tort remedies. This is not unusual. Under 28 U.S.C.
§ 1915A, when a Bivens action is filed by a prisoner, the district court
must pre-screen any such complaints and dismiss those actions that fail to
state a claim upon which relief can be granted. Because the GEO employ-
ees were not required to respond to Pollard’s complaint, we have no idea
whether they could pursue the government contractor defense were Pol-
lard’s claims to be tried under state tort law. Nor do the GEO employees
have any incentive to make such an argument at this stage of the litigation,
as their argument rests on the existence of adequate alternative remedies
under state tort law which would be foreclosed by the successful invoca-
tion of such a defense. Thus, the GEO employees may have a complete
defense to liability under state tort law or they may not; we simply don’t
know.
17
Another, closely related, example of one of these potential defenses is
federal preemption. See Saleh v. Titan Corp., 580 F.3d 1, 11-13 (D.C. Cir.
2009) (holding that plaintiff’s state law tort actions against private military
contractors working for the federal government were preempted by federal
law).
18
According to the United States Justice Department’s statistics, as of
year-end 2000, 10.7% of all federal prisoners were held in privately oper-
ated prisons. Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners
in 2008 17, 38 (Dec. 2009), available at http://bjs.ojp.usdoj.gov/content/
pub/pdf/p08.pdf (recording 145,416 total federal prisoners as of December
31, 2000, of which 15,524 were housed in privately operated prisons). As
of year-end 2008, that percentage was 16.5%, thus showing an increase of
almost 6% in those eight years alone. Id. (recording 201,280 total federal
prisoners as of December 31, 2008, of which 33,162 were housed in pri-
vately operated prisons).
8174 POLLARD v. GEO GROUP, INC.
[17] In sum, a Bivens cause of action for prisoners’ Eighth
Amendment claims would be fairly straightforward to apply.
By contrast, it would be difficult to administer a regime where
Bivens claims were allowed to proceed only when state law
would offer no remedy. While these observations are by no
means dispositive of the question here presented, under Wilkie
we are bound to consider them in deciding whether to allow
a “new” cause of action to proceed, “the way common law
judges have always done.” 551 U.S. at 554.
(b) Deterrence
[18] The Court has also looked to whether extending
Bivens would undermine the “core purpose” of an implied
cause of action: deterring individual officers from committing
constitutional violations. Malesko, 534 U.S. at 74. Allowing
a Bivens action to go forward here would not undermine that
core purpose.
In Meyer, the Court declined to extend Bivens to permit suit
against a federal agency, reasoning that plaintiffs could be
expected to always choose to sue the federal agency over an
individual who could assert qualified immunity as an affirma-
tive defense. 510 U.S. at 485. To the extent that aggrieved
parties would have “less incentive to bring a damages claim
against individuals, ‘the deterrent effects of the Bivens rem-
edy would be lost.’ ” Malesko, 534 U.S. at 69 (quoting Meyer,
510 U.S. at 485). Thus, Meyer concluded that allowing a
Bivens claim against federal agencies “would mean the evis-
ceration of the Bivens remedy, rather than its extension.” 510
U.S. at 485.
In Malesko, the Court echoed this reasoning in concluding
that allowing Bivens suits to proceed against private prison
corporations would undermine the deterrent effects of Bivens.
534 U.S. 70-71. According to the Court, “if a corporate defen-
dant is available for suit, claimants will focus their collection
efforts on it, and not the individual directly responsible for the
POLLARD v. GEO GROUP, INC. 8175
alleged injury.” Id. at 71 (citing the plurality opinion and Jus-
tice O’Connor’s dissent in TXO Prod. Corp. v. Alliance Res.
Corp., 509 U.S. 443, 464 (1993), for the proposition that cor-
porations fare much worse before juries than do individuals).
Thus, recognizing that corporations would likely bear the
lion’s share of responsibility for Bivens damages if subject to
an implied cause of action under the Constitution, the Court
concluded that the deterrence goals of Bivens would be under-
mined by such an extension. Whatever deterrent effect a suit
against a corporation may have, the Supreme Court explicitly
rejected the notion that corporate deterrence is relevant to the
core deterrence goals of Bivens. Id. (stating that corporate
deterrence “has no relevance to Bivens, which is concerned
solely with deterring the unconstitutional acts of individual
officers”).
[19] The instant case does not present the same problems.
It simply cannot be disputed that allowing Bivens suits against
private prison employees would not undermine Bivens’s goal
of deterring unconstitutional acts by individuals. The dissent
argues that state tort remedies are “superior” to a Bivens rem-
edy here, Dissenting Op. at 8183, and that allowing Pollard to
bring a Bivens action would not serve Bivens’ goal of deter-
rence, Dissenting Op. 8190-91. We disagree. It is true that
state tort remedies may often serve to deter unconstitutional
conduct, and that it may be easier to prevail on such a claim
than on an Eighth Amendment Bivens claim. Indeed, in an
action to recover damages for personal injuries under state
tort theories such as negligence or medical malpractice, the
plaintiff would not be required to prove deliberate indiffer-
ence, as required to establish an Eighth Amendment violation.
See Estelle, 429 U.S. at 104. But while we acknowledge that
the elements of a state tort claim may not be as demanding,
we are not prepared to say that Bivens would have no mar-
ginal deterrent effect against individual employees of GEO.
For instance, in some states, a prisoner in Pollard’s position
must submit a declaration by a physician attesting that the suit
8176 POLLARD v. GEO GROUP, INC.
is not frivolous. See, e.g., Nev. Rev. Stat. § 41A.071 (“If an
action for medical malpractice . . . is filed in the district court,
the district court shall dismiss the action, without prejudice,
if the action is filed without an affidavit, supporting the alle-
gations contained in the action, submitted by a medical expert
who practices or has practiced in an area that is substantially
similar to the type of practice engaged in at the time of the
alleged malpractice.”). It is unclear how a prisoner like Pol-
lard, who filed this claim in forma pauperis, would be able to
secure such a declaration. The Eleventh Circuit in Alba con-
cluded that a similar certification requirement in Georgia did
not render the inmate’s state remedies ineffective because it
merely placed him in “the same shoes as anyone else in Geor-
gia filing a professional malpractice claim,” under “no stricter
rules than the rest of Georgia’s residents.” 517 F.3d at 1255.
But federal courts have long recognized that inmates proceed-
ing pro se are not in the “same shoes” as other citizens. See,
e.g., Houston v. Lack, 487 U.S. 266, 275 (1988) (creating the
more lenient “prison mailbox rule”—deeming a document
filed by a pro se prisoner “filed” as of the time the prisoner
delivers it to prison authorities for mailing (rather than the
time it is received by the court)—because “whereas the gen-
eral rule has been justified on the ground that a civil litigant
who chooses to mail a notice of appeal assumes the risk of
untimely delivery and filing, a pro se prisoner has no choice
but to hand his notice over to prison authorities for forwarding
to the court clerk” (citation omitted)).
[20] Additionally, Bivens may allow for recovery of
greater damages in some cases than a state tort law remedy.
As discussed infra, were Pollard to bring a claim for medical
malpractice under California law, there would be a cap on the
amount of non-economic damages he could recover. See Cal.
Civ. Code § 3333.2. There is no similar cap on non-economic
damages under Bivens. Thus, for a truly egregious case of
neglect or abuse, a medical professional at a privately oper-
ated prison would face significantly greater liability under
Bivens than state tort law. Furthermore, to be entitled to puni-
POLLARD v. GEO GROUP, INC. 8177
tive damages under California law, a plaintiff must demon-
strate “oppression, fraud, or malice.” Cal. Civ. Code § 3294.
By contrast, once a plaintiff has successfully met the “deliber-
ate indifference” standard under the Eighth Amendment—
requiring that the conduct be “wanton,” Wilson v. Seiter, 501
U.S. 294, 302 (1991) there is little more that such a plaintiff
would need to prove to establish a convincing argument for
an award of punitive damages. These significant differences
in the potential liability faced by privately operated federal
prisons are prime examples of the “marginal deterrence” that
Bivens offers. Thus, we do not find that this “special factor”
counsels hesitation.
(c) Asymmetrical Liability Costs
The Court has also expressed concerns about imposing
asymmetric liability costs on privately operated facilities as
compared to government-operated facilities. Malesko, 534
U.S. at 72. We are equally concerned about issuing a decision
that will yield disparate rights and remedies among inmates in
private and public prisons. Unfortunately, under the current
Bivens regime, asymmetries will remain irrespective of
whether we recognize or deny a Bivens cause of action here.
[21] Unlike officers employed by public prisons, the GEO
employees will not be entitled to qualified immunity, and as
a result, prisoners asserting claims against them may be able
to recover more often than their counterparts in governmen-
tally run prisons. See Richardson, 521 U.S. at 401 (holding
that employees of privately operated state prisons are not enti-
tled to qualified immunity). This asymmetry is clearly an
undesirable outcome. Cf. Butz v. Economou, 438 U.S. 478,
501 (1978) (“Surely, federal officials should enjoy no greater
zone of protection when they violate federal constitutional
rules than do state officers.”)
[22] On the other hand, if we conclude that Pollard cannot
bring a suit under Bivens, then only inmates in public prisons
8178 POLLARD v. GEO GROUP, INC.
will be able to vindicate their constitutional rights. Prisoners
would thereby have entirely different rules governing their
rights depending upon whether they are incarcerated in a pub-
lic or private prison (and, for that matter, in which state the
private prison is located). This outcome is equally undesir-
able. As asymmetries will persist irrespective of the outcome
of this case, this consideration does not counsel hesitation in
recognizing a Bivens remedy here.
IV. CONCLUSION
[23] We conclude that Pollard’s suit under Bivens against
the GEO employees for alleged violations of his Eighth
Amendment rights should be allowed to proceed. We reach
that conclusion because (1) the GEO employees act “under
color of federal law” for purposes of Bivens liability; and (2)
a faithful application of Wilkie’s two-part test counsels that
state tort remedies alone are insufficient to displace Bivens
and there are no “special factors counselling hesitation” in
allowing Pollard’s suit to proceed. We therefore reverse and
remand to the district court for further proceedings consistent
with this opinion. To the extent Pollard’s appeal seeks to chal-
lenge the district court’s dismissal of GEO from the lawsuit,
we affirm the district court’s disposition as to that issue.
AFFIRMED IN PART, REVERSED IN PART,
REMANDED.
RESTANI, Judge, concurring in part and dissenting in part:
I agree that the district court properly dismissed GEO from
the lawsuit and that employees of a private corporation oper-
ating a federal prison are federal government actors. I con-
clude, however, that we would err by creating a split in the
law of the various circuits by holding that a prisoner may
maintain a cause of action under Bivens v. Six Unknown
POLLARD v. GEO GROUP, INC. 8179
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), against such employees where adequate state law
remedies exist. Until now, the federal circuits that have
addressed the issue have held correctly that a prisoner may
not maintain such an action. See Alba v. Montford, 517 F.3d
1249 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008); Holly v.
Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168
(2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir.
2005), vacated in relevant part and aff’d by equally divided
en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam),
cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063 (2006).
The evolution of the U.S. Supreme Court’s Bivens jurispru-
dence confirms that this Court should follow their lead.
I. The Supreme Court has limited Bivens to cases in
which no alternative remedy is available against the
federal actor who committed the wrong.
The majority overlooks the reality that the Supreme Court
has recognized Bivens causes of action only where federal
officials, by virtue of their position, enjoy impunity, if not
immunity, from damages liability because of gaps or exemp-
tions in statutes or in the common law. See Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 70 (2001). In Bivens, the Supreme
Court recognized an implied cause of action for damages
under the Fourth Amendment against federal agents who ille-
gally searched the plaintiff’s home and arrested him. 403 U.S.
at 389, 397. The Court acknowledged that a trespass tort
action, which requires resistance that the plaintiff could not
lawfully exert against federal agents, was unlikely to succeed
because the agents obtained permission to enter the home. Id.
at 394-95.
The Supreme Court has only extended Bivens twice, “to
provide an otherwise nonexistent cause of action against indi-
vidual officers alleged to have acted unconstitutionally, or to
provide a cause of action for a plaintiff who lacked any alter-
native remedy for harms caused by an individual officer’s
8180 POLLARD v. GEO GROUP, INC.
unconstitutional conduct.” Malesko, 534 U.S. at 70. First, the
Court recognized a Bivens action under the equal protection
component of the Fifth Amendment Due Process Clause
against a former Congressman who had fired one of his
employees based on her sex, Davis v. Passman, 442 U.S. 228
(1979), because the employee “lacked any other remedy for
the alleged constitutional deprivation,” Malesko, 534 U.S. at
67. As the statute protecting federal employees from sex-
based discrimination, 42 U.S.C. § 2000e-16(a), does not
extend to such congressional employees, and the employee
did not have any cause of action under state law, “there [were]
available no other alternative forms of judicial relief.” Davis,
442 U.S. at 245 & n.23, 247. Davis, like Bivens, involved “a
plaintiff in search of a remedy.” Malesko, 534 U.S. at 74; see
Davis, 442 U.S. at 245 (“For Davis, as for Bivens, it is dam-
ages or nothing.” (internal quotation marks and citation omit-
ted)). In both cases, “the plaintiffs’ injuries would have gone
entirely unredressed without an implied constitutional reme-
dy.” Holly, 434 F.3d at 295.
Second, the Supreme Court held that a prisoner could bring
a Bivens action under the Cruel and Unusual Punishments
Clause of the Eighth Amendment against federal prison offi-
cials because the prisoner’s only alternative remedy was a
claim under the Federal Tort Claims Act (“FTCA”) against
the United States. Carlson v. Green, 446 U.S. 14 (1980).
Although the FTCA applies only in instances where a private
person would be liable under state law, 28 U.S.C.
§ 1346(b)(1), it precluded state tort actions against the indi-
vidual federal officers, Holly, 434 F.3d at 296; see 28 U.S.C.
§ 2679(b)(1). Reasoning that actions against the United States
under the FTCA would not sufficiently deter unconstitutional
acts by individuals, the Court recognized a Bivens action “to
provide an otherwise nonexistent cause of action against [the
individuals].” Malesko, 534 U.S. at 70; see also id. at 74 (not-
ing that the prisoner in Carlson sought “a cause of action
against an individual officer, otherwise lacking”).
POLLARD v. GEO GROUP, INC. 8181
Thus, the Supreme Court has recognized Bivens claims
only “for want of other means of vindication,” as “Davis had
no other remedy, Bivens himself was not thought to have an
effective one, and in Carlson the plaintiff had none against
Government officials.” Wilkie v. Robbins, 551 U.S. 537, 555
(2007). As the majority notes, the Court has set forth two-step
test to determine whether to recognize new Bivens actions:
In the first place, there is the question whether any
alternative, existing process for protecting the inter-
est amounts to a convincing reason for the Judicial
Branch to refrain from providing a new and free-
standing remedy in damages. But even in the
absence of an alternative, a Bivens remedy is a sub-
ject of judgment: “the federal courts must make the
kind of remedial determination that is appropriate for
a common-law tribunal, paying particular heed, how-
ever, to any special factors counselling hesitation
before authorizing a new kind of federal litigation.”
Id. at 550 (citations omitted). Since Carlson, however, the
Court has “consistently refused to extend Bivens liability to
any new context or new category of defendants.” Malesko,
534 U.S. at 68 (declining to recognize a Bivens action against
a private corporation operating a federal prison).
II. The justifications for recognizing Bivens actions do
not apply here.
A. Adequate alternative remedies are available to
Pollard.
Here, ordinary state tort remedies for negligence or medical
negligence against the GEO employees are an adequate, alter-
native, existing process for protecting Pollard’s interest.
Where, as here, the plaintiff has an alternative remedy against
a federal official alleged to have acted unconstitutionally, the
Supreme Court has “consistently rejected invitations to extend
8182 POLLARD v. GEO GROUP, INC.
Bivens.” Malesko, 534 U.S. at 70. Unlike Bivens, in which
alternative state tort remedies were inadequate because the
plaintiff’s lack of resistance to the federal agents foreclosed
a trespass action, Pollard’s “claim of negligence or deliberate
indifference requires no resistance to official action.” Id. at
74. Additionally, employees of private prison corporations do
not enjoy impunity or immunity as to damages because of
gaps or exemptions in statutes or in the common law.
In fact, as the majority concedes, tort remedies for negli-
gence and medical negligence may be even more easily
obtained than remedies under Bivens for an Eighth Amend-
ment violation “because the heightened ‘deliberate indiffer-
ence’ standard of Eighth Amendment liability would make it
considerably more difficult for [a plaintiff] to prevail than on
a theory of ordinary negligence.”1 Malesko, 534 U.S. at 73
(citations omitted). Thus, Pollard does not lack effective rem-
edies because his “alternative remedies are at least as great,
and in many respects greater, than anything that could be had
under Bivens.” Id. at 72. The state tort remedies for negli-
gence or medical negligence are therefore a more than ade-
quate alternative, existing process for protecting Pollard’s
interest. See id. at 72-74 (declining to recognize a Bivens
action under the Eighth Amendment where the plaintiff had
alternative remedies under state tort law for negligence and
remedial mechanisms established by the Bureau of Prisons
(“BOP”)).2
1
Pollard could also sue GEO under a respondeat superior theory in tort,
even though he cannot pursue a Bivens action against GEO under
Malesko. See Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 907 P.2d 358,
360 (Cal. 1995); Chesterman v. Barmon, 753 P.2d 404, 406 (Or. 1988) (en
banc); see also Alba, 517 F.3d at 1256 n.7; Holly, 434 F.3d at 296.
2
The majority notes that the alternative BOP administrative remedies
that were available in Malesko do not appear to be available to Pollard.
Maj. Op. at 8163-64 n.12. Malesko, however, only briefly mentioned BOP
remedies and actually emphasized the availability of state tort remedies.
See 534 U.S. at 72-74. Additionally, BOP remedies are not as relevant as
tort remedies to the Bivens analysis because the BOP’s administrative
grievance remedies do not include damages. See id. at 74.
POLLARD v. GEO GROUP, INC. 8183
B. The availability of tort remedies is a convincing
reason to refrain from recognizing a new damages
remedy.
The availability of a superior alternative remedy is a con-
vincing reason for the Judicial Branch to refrain from provid-
ing a new, freestanding damages remedy. See Holly, 434 F.3d
at 295. Courts are reluctant to recognize new Bivens actions,
which are implied without any Congressional authority,
because “ ‘a decision to create a private right of action is one
better left to legislative judgment in the great majority of
cases.’ ” Id. at 289 (quoting Sosa v. Alvarez-Machain, 542
U.S. 692, 727 (2004)); see also Malesko, 534 U.S. at 67 n.3
(“[W]e have retreated from our previous willingness to imply
a cause of action where Congress has not provided one.”).
Rather, “[s]o long as the plaintiff ha[s] an avenue for some
redress, bedrock principles of separation of powers fore-
close[ ] judicial imposition of a new substantive liability.”
Malesko, 534 U.S. at 69. “The dangers of overreaching in the
creation of judicial remedies are particularly acute where such
remedies are unnecessary.” Holly, 434 F.3d at 295. Because
a Bivens action is unnecessary against the employees of a pri-
vate prison corporation, we should not recognize such an action.3
III. The availability of a state tort remedy may preclude
a Bivens action.
The majority’s conclusion that the availability of state rem-
edies is not a convincing reason for the judiciary to refrain
from recognizing a Bivens remedy is based on the faulty
premises that remedies that preclude Bivens must (1) be
crafted by Congress and (2) “appl[y] uniformly throughout
3
Although we have stated previously that “to the extent that [a plaintiff]
sought recovery from individual employees of [a private corporation man-
aging a federal prison], the case had to [be] brought as a Bivens action,”
that statement was pure dicta. Agyeman v. Corr. Corp. of Am., 390 F.3d
1101, 1104 (9th Cir. 2004).
8184 POLLARD v. GEO GROUP, INC.
the republic.” Castaneda v. United States, 546 F.3d 682, 701
(9th Cir. 2008), rev’d on other grounds sub nom. Hui v. Cas-
taneda, __ S. Ct. __, 2010 WL 1740524 (May 3, 2010). The
first is wrong because the Supreme Court actually has consid-
ered remedies not crafted by Congress, and Malesko itself is
one instance in which the Court declined to recognize a
Bivens action because of state remedies. The second is wrong
because the need for uniformity is not particularly compelling
where the persons who harmed the plaintiff are private
employees of a private entity.
A. The Supreme Court has declined to recognize a
Bivens action because of state remedies.
Recent Supreme Court precedent makes clear that a state
tort remedy may be an alternative, existing process that pre-
cludes recognition of a Bivens action. In Malesko, the Court
“consider[ed] availability of state tort remedies in refusing to
recognize a Bivens remedy.” Wilkie, 551 U.S. at 551. The
Court also has “rejected the claim that a Bivens remedy
should be implied simply for want of any other means for
challenging a constitutional deprivation in federal court.”
Malesko, 534 U.S. at 69. Thus, an alternative remedy need not
be a federal remedy. See id.; Alba, 517 F.3d at 1254.
There is some tension between Malesko and other recent
Supreme Court cases, and Carlson, which suggested that the
only kind of alternative remedy that could defeat a Bivens
claim was one provided by Congress “which it explicitly
declared to be a substitute for recovery directly under the
Constitution and viewed as equally effective.” Carlson, 446
U.S. at 18-19; see also Peoples, 422 F.3d at 1097, 1102 (not-
ing that recent cases suggest that Bivens is presumptively
unavailable, whereas Carlson suggested that a Bivens claim is
presumptively available). The tension, however, can be
resolved by understanding the Carlson formulation as a “test
for express Bivens preemption” by a statute. Castaneda, 546
F.3d at 689, rev’d on other grounds, __ S. Ct. __, 2010 WL
POLLARD v. GEO GROUP, INC. 8185
1740524. Malesko, which did not involve any statute, did not
discuss this test. The Supreme Court has determined that
alternative remedies that are not expressly authorized by Con-
gress and are not an equally effective substitute nonetheless
may preclude a Bivens remedy. See Bush v. Lucas, 462 U.S.
367 (1983). More recently, in a case in which express statu-
tory preemption was not at issue, the Supreme Court has
stated that it will not recognize a new Bivens action if “any
alternative, existing process for protecting the interest
amounts to a convincing reason for the Judicial Branch to
refrain.” Wilkie, 551 U.S. at 550 (emphasis added). Finally,
even if Carlson and Malesko are truly irreconcilable, we
should follow the most recent Supreme Court precedent,
Malesko. Holly, 434 F.3d at 303 (Motz, J., concurring in the
judgment); Peoples, 422 F.3d at 1102.
The majority’s statement that in Wilkie, the existence of an
alternative state remedy alone was not sufficient to preclude
a Bivens action, Maj. Op. at 8166, is misleading. Rather, in
Wilkie, the Supreme Court considered that the plaintiff had
“an administrative, and ultimately a judicial, process for vin-
dicating virtually all of his complaints” for torts, improper
criminal charges, unfavorable agency actions, and other
offensive behavior by the Bureau of Land Management. 551
U.S. at 551, 553. The Court, however, found that the plaintiff
functionally did not have a remedy for his true complaint
regarding the agency’s course of dealing as a whole because
“the forums of defense and redress open to [the plaintiff] are
a patchwork, an assemblage of state and federal, administra-
tive and judicial benches applying regulations, statutes and
common law rules.” Id. at 554-55. It is too much of a stretch
to infer, as the majority does, that if the plaintiff had merely
complained of one or more torts, the Court would have
reached the same result. To the contrary, the Court noted that
“when the incidents are examined one by one, [the plaintiff’s]
situation does not call for creating a constitutional cause of
action for want of other means of vindication.” Id. at 555.
Further, the Wilkie Court concluded that, even where the rem-
8186 POLLARD v. GEO GROUP, INC.
edies available are a patchwork, the need for a Bivens remedy
is not particularly compelling, as “[i]t would be hard to infer
that Congress expected the Judiciary to stay its Bivens hand,
but equally hard to extract any clear lesson that Bivens ought
to spawn a new claim.” Id. at 554.
B. The need for uniformity is not compelling here.
Uniformity of liability is sometimes important to a Bivens
analysis. In Carlson, the Supreme Court stated that “the liabil-
ity of federal officials for violations of citizens’ constitutional
rights should be governed by uniform rules” and that “[t]he
question whether [an] action for violations by federal officials
of federal constitutional rights should be left to the vagaries
of the laws of the several States admits of only a negative
answer in the absence of a contrary congressional resolution.”4
Carlson, 446 U.S. at 23. Specifically, the Court concluded
that a uniform federal rule of survivorship for Eighth Amend-
ment Bivens claims was necessary where one state’s law
would permit survival of the claims but another would not. Id.
at 23-24. Essentially, state law previously had dictated
whether the prisoner’s claim died with him.
Here, however, the need for uniformity of rules is much
less compelling. First, although employees of a private corpo-
ration operating a federal prison may be government actors,
they are not federal officials and do not have the same immu-
nities as federal officials. Second, ordinary negligence and
medical negligence causes of action are already universally
available against employees of a private corporation operating
a federal prison, and the elements of such common law-
4
Following Carlson, this Circuit in Castaneda stated that the FTCA is
an inadequate alternative to Bivens because “[w]e do not believe that Con-
gress intended to delegate to the states the mechanism by which violations
of federally established rights are remedied,” and that “[w]e are aware of
no case holding a remedial scheme that is entirely parasitic on state law
to be a substitute for a Bivens remedy.” 546 F.3d at 701, rev’d on other
grounds, __ S. Ct. __, 2010 WL 1740524.
POLLARD v. GEO GROUP, INC. 8187
derived causes of action are fundamentally the same in every
state.
Unlike in Carlson, no individual state law forecloses or
extinguishes such actions altogether, although many states
have enacted various procedural hurdles and limits on non-
economic damages in medical malpractice suits. Castaneda,
546 F.3d at 690-91, rev’d on other grounds, __ S. Ct. __,
2010 WL 1740524. The majority points to the differences
between the California and Oregon statutes of limitations and
the fact that Pollard’s medical malpractice claim would be
subject to a non-economic damages cap under California law
but not under Oregon law. Maj. Op. at 8168-69. These differ-
ences, however, should not be determinative, as an alternative
remedy need not provide complete relief for the plaintiff. See
Bush, 462 U.S. at 388. Rather, as the Eleventh Circuit has
held, “[t]hat state procedural rules complicate the filing of a
lawsuit does not mean that a plaintiff lacks any alternative
remedy for harms caused by an individual officer’s unconsti-
tutional conduct,” and procedural hurdles in filing a state
action do not “render state relief unavailable in the same vein
in which the Supreme Court held it to be unavailable in
Bivens.” Alba, 517 F.3d at 1255 (internal quotation marks and
citation omitted); see also Peoples, 422 F.3d at 1104-05 (stat-
ing that Supreme Court precedents do not mandate recogni-
tion of a Bivens action “simply because an alternative state
law claim may be subject to a punitive damages cap to which
a federal claim is not”).
IV. Special factors also counsel hesitation in recognizing
a new Bivens action.
The availability of an adequate alternative remedy should
end the analysis. The court need not look at other special fac-
tors, such as whether extending the cause of action would: (1)
be feasible, (2) serve Bivens’s deterrence goals, or (3) impose
asymmetric liability costs. In any event, these factors do
8188 POLLARD v. GEO GROUP, INC.
counsel hesitation here and certainly do not counsel in favor
of recognizing a new Bivens action, as the majority suggests.
A. Case-by-case Bivens determinations are feasible.
First, although a Bivens action under the Eighth Amend-
ment for prisoners is a workable cause of action that is recog-
nized already, allowing a Bivens action to go forward only
where a plaintiff would otherwise have no alternative remedy
is not unduly complicated. Rather, the Supreme Court appears
to prefer case-by-case determinations of whether adequate
alternative remedies exist to a blanket determination that
Bivens is available to an entire class of plaintiffs. See Wilkie,
551 U.S. at 550, 554 (stating that the first step of the Bivens
analysis involves determining “whether any alternative, exist-
ing 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” and that the next step
involves “weighing reasons for and against the creation of a
new cause of action, the way common law judges have
always done”). Thus, the Supreme Court has invited federal
courts to determine whether an alleged Eighth Amendment
violation has a state law analogue and apply Bivens only if
there is no such state analogue.
Further, the current system of determining whether a state
analogue exists is easy to administer because there is unlikely
to be an instance in which an Eighth Amendment violation by
a private prison employee is not a tort. An Eighth Amendment
violation requires a “ ‘sufficiently serious’ ” condition and
“ ‘deliberate indifference’ to inmate health or safety.” Farmer
v. Brennan, 511 U.S. 825, 834 (1994). Tort law similarly
imposes a duty of care on jailers or prison employees to pro-
tect the life and health of prisoners in their custody and pro-
tect the prisoners from foreseeable harm or unreasonable risk
of physical harm. See, e.g., Giraldo v. Dep’t of Corr. &
Rehab., 85 Cal. Rptr. 3d 371, 382-87 (Cal. Ct. App. 2008);
Restatement (Second) of Torts § 314A(1)(a), (4), illus. 6
POLLARD v. GEO GROUP, INC. 8189
(1965). Breach of this duty may give rise to a negligence
claim. See Giraldo, 85 Cal. Rptr. 3d at 390.
The majority does not contend that the acts alleged here fall
into the category of acts that violate the Eighth Amendment
but are not covered by state tort law, and that is not the case.
California, Oregon, and every other state recognize the torts
of negligence and medical negligence. The tort of negligence
also covers Pollard’s allegation that the prison employees
deprived him of food while his arms were in casts, as numer-
ous cases recognize that the keeper of a jail has a common
law duty to provide prisoners with food. See, e.g., Farmer v.
State ex rel. Russell, 79 So. 2d 528 (Miss. 1955); Richardson
v. Capwell, 176 P. 205, 208 (Utah 1918); Dabney v.
Taliaferro, 25 Va. (4 Rand.) 256 (1826).
There is no reason to think that either federal preemption
or the government contractor defense, which the majority
mentions, is applicable here. No federal law expressly or
impliedly preempts or directly conflicts with a state tort of
negligence or medical malpractice here, and federal law does
not occupy the field governing private corrections employees’
actions. The government contractor defense is not likely to
apply because there is no indication that the United States
directed the GEO employees’ treatment of Pollard. See
Malesko, 534 U.S. at 74 n.6 (noting that “[t]he record here
would provide no basis for such a defense,” which is available
when “the government has directed a contractor to do the very
thing that is the subject of the claim”).5
Because the conduct at issue here certainly is covered by
state tort law, the other examples the majority posits that may
violate the Eighth Amendment of the Constitution but may
not be covered by tort law are inapposite. In any event, I am
5
Because there is no reason to think that these defenses apply, I do not
share the majority’s concern about the district court’s dismissal of the case
pursuant to 28 U.S.C. § 1915A before the defendants made any filing.
8190 POLLARD v. GEO GROUP, INC.
not convinced that any of these acts—denying a prisoner
access to a toilet and thus exposing the prisoner to human
waste for thirty-six hours, depriving a prisoner of basic neces-
sities, completely depriving a prisoner of outdoor exercise for
a period of years, and exposing a prisoner to other unhygienic
conditions—would not be covered by tort law. Rather, each
act involves a clear breach of the duty of reasonable care and
would unreasonably jeopardize a prisoner’s health. See Irabor
v. Perry County Corr. Ctr., No. 06-0483-BH-C, 2008 WL
1929965, at *2-3 (S.D. Ala. Apr. 30, 2008) (holding that a
plaintiff had adequate state tort remedies available to redress
the denial of “basic necessities such as socks, toilet paper, and
soap”); Miller v. Owsley, 422 S.W.2d 39, 43 (Mo. 1967) (rec-
ognizing that a police officer fails to act with due care if the
officer confines a prisoner in an unfit and unsanitary place);
Richardson, 176 P. at 208 (stating that the keeper of a jail has
a common law duty to keep the jail warm and sanitary); Dab-
ney, 25 Va. (4 Rand.) 256 (holding that under common law,
a jailor has a duty to provide a prisoner with necessary sup-
plies, such as fuel for heat and bed covering); see generally
M. L. Schellenger, Annotation, Civil Liability of Sheriff or
Other Officer Charged with Keeping Jail or Prison for Death
or Injury of Prisoner, 14 A.L.R.2d 353, § 9.
B. Recognizing a Bivens action here would not deter
individual officers.
Second, as the majority recognizes, state tort liability deters
private prison officials from wrongdoing and may even pro-
vide more relief for Pollard than the Eighth Amendment
would because the deliberate indifference standard for Eighth
Amendment claims creates a high bar to hurdle. Maj. Op. at
8175. This undermines the deterrence analysis. Because “[t]he
purpose of Bivens is to deter individual federal officers from
committing constitutional violations,” Malesko, 534 U.S. at
70, the purpose of Bivens is not served where, as here, state
law already allows for compensatory and punitive damages
for the same conduct, Peoples, 422 F.3d at 1105. In such an
POLLARD v. GEO GROUP, INC. 8191
instance, a Bivens action is unnecessary. See id. Further, it is
difficult to see how potential procedural differences in state
laws or between the state and federal law would figure into
deterrence as a practical matter. As discussed supra, the court
should hesitate to create an unnecessary judicial remedy. See
Holly, 434 F.3d at 295.
C. Declining to recognize a Bivens action here would
avoid concerns about asymmetrical liability costs.
Finally, declining to recognize a Bivens action here would
avoid the concerns that the Supreme Court has expressed
about imposing asymmetrical liability costs. See Malesko, 534
U.S. at 72. Although declining to recognize a Bivens action
would perpetuate an existing public-private asymmetry
because Bivens actions are permitted against federal prison
employees but not private prison employees, declining to
create a Bivens action would not “impose costs on one wrong-
doer and not another.” Peoples, 422 F.3d at 1103 (emphasis
added). By contrast, recognizing that a plaintiff may pursue
both a Bivens action and a tort action against private prison
employees may impose asymmetrical liability costs, as a
plaintiff currently may assert tort claims against private prison
employees, while Bivens actions allow for recovery from fed-
eral employees where the FTCA otherwise bars tort claims
against them. See Malesko, 534 U.S. at 72-73 (noting that
“federal prisoners in private facilities enjoy a parallel tort
remedy that is unavailable to prisoners housed in government
facilities”); see also Peoples, 422 F.3d at 1103. Indeed, as the
majority notes, plaintiffs may be able to recover from private
prison employees more often than from federal prison
employees because private prison employees are not entitled
to qualified immunity. See Richardson v. McKnight, 521 U.S.
399, 401 (1997).
V. Conclusion
I would join with other circuits in concluding that a Bivens
cause of action is not available against employees of
8192 POLLARD v. GEO GROUP, INC.
privately-run prison corporations where, as here, state tort
laws provide a remedy. Accordingly, I respectfully dissent in
part.