Private Prisons and Bivens Actions: Pollard v. GEO Group, Inc.

Title 42 U.S.C. Section 1983 only provides a cause of action against state actors.  The right to sue federal officials was recognized at common law in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).  In recent years, the right to bring Bivens actions has been limited.

In Pollard v. GEO Group, Inc. (CA9) (here) an inmate in a private federal prison filed a lawsuit under Bivens.  The catch: GEO Group, Inc. is a private prison.  Under normal state action doctrine, that would be an easy issue to resolve.  Where a private party performs a traditional state function, or is granted powers ordinarily reserved solely to the state, then the private party acts under color of law.  If you or I locked people up in our basements, we'd be charged with kidnapping - even if our prisoners were convicted child molesters.  It's thus frivolous to suggest that imprisoning citizens who have been convicted of crimes is not a traditional state function.

Yet Bivens actions are odd ducks.  There has been extensive push-back against them.  Why?

If you're a realist and scholar of the law, you'd say that federal courts are hostile to constitutional torts generally.  If you drink the Federalist Society Flavor-Aid (disclosure: I was chapter president of my law student's Federalist Society), you'd say something about the judiciary limiting its role.  That federal courts have abrogated the jury's constitutionally-defined, thus expanding the judicial power in unconstitutional ways, would not be mentioned.  Once my brothers and sisters host a panel criticizing heightened pleading in Section 1983 cases, then their arguments about "judicial restraint" will be taken more seriously.  See, "Eleventh Circuit's Heightened Pleading Rule Violates Separation Of Powers Principles."

Anyhow, in Pollard the a split panel of the Ninth Circuit Court of Appeals recognized a Bivens action against a private prison:

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 provides 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 sufficientlysets forth the elements of a Bivens claim by alleginga violation of his constitutional rights by agents acting underthe color of federal law.”). Thus, the threshold question presented here is whether the GEO employees can be considered federal agents acting under color of federal law in their professionalcapacities. We conclude that they can.
As Judge Restani notes, this adds to the circuit split on the issue.  It's thus very likely that the United States Supreme Court will review this opinion.

Pollard should be a no-brainer.  If the private sector wants to perform a function that the government usually performs, then the private sector should be suable under Bivens.  Given the Supreme Court's hostility towards Bivens actions, common sense and comment decency will have an uphill climb.  See, "Alternative State Remedies in Constitutional Torts" ("In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights.")

Both congratulations and well-wishes are offered to Professor John F. Preis, plaintiff's counsel and Section 1983 Blog reader.



10:41 AM

How is this going to jive with Malesko? It seems that there, the Supreme Court held that there was no Bivens action against a private prison corporation operating a Federal Prison.