Did You Know?

We can help you with more than just property and casualty risk reviews and insurance placement in our 5 specialized practice areas.

We also work in areas as diverse as trade credit, surety, political risk, and environmental risk transfer. And if you have employee benefit issues or need KEYMAN LIFE we would also be pleased to guide you in finding solutions.

If it involves risk we will help you find what is needed.

MERIDIAN- YOUR RISK RETHOUGHT

Contact Us Today

Call: (617) 894-3211
or
Click here to contact us

‘Criminal Justice Issues’

Liability and Private Correctional Facilities Primer PART 5: G. Martinez vs. State of California JAN 15, 1980

Monday, March 1st, 2010

Civil Rights liability under Civil Rights Act of 1871, 42 U.S.C. § 1983 involving private correctional program providers is complex. For those who wish to delve into the matter of immunity and liability and how complex can be the decisions surrounding it, this is Part 5 of a multipart presentation of case law from varying jurisdictions on the subject gleaned from The Open Jurist and other legal sources online. Scroll through the opinion to see the highlighted decision sections.  While this specific case law deals with a public employee and a question of immunity and how far liability extends involving correctional staff regarding the release of a known sex offender who later committed murder, it is an interesting examination of how the lines can be challenging in practice.  This decision resulted in support for immunity for public officials in this specific set of circumstances. But  the question of immunity in the case of non public or quasi public correctional program providers remains greyer. Private corrections is even more of a minefield than public corrections- and public corrections is no picnic.  If you wish to discuss this and other liability matters involving private corrections or quasi public corrections please reach out to us.

Meridian is a highly dynamic specialized insurance consulting group and broker with offices in Boston, MA, Newport, RI and Brookfield, CT.  We are a hard-driving group with an entrepreneurial spirit who will work tirelessly for clients.  We specialize in risk management and risk transfer issues for clients in the private criminal justice operations arena.  We hold associate membership in the American Correctional Association.

Our Mission is simple.   We seek to help our clients make the best risk and risk transfer decisions possible.  We bring market-leading service to the most creative solutions in the risk management field to ensure that each Meridian client achieves their risk objectives.

444 U.S. 277

100 S.Ct. 553

62 L.Ed.2d 481

George MARTINEZ et al., Appellants,
v.
STATE OF CALIFORNIA et al.

No. 78-1268.

Argued Nov. 5, 1979.

Decided Jan. 15, 1980.

Rehearing Denied March 3, 1980.

See 445 U.S. 920, 100 S.Ct. 1285.

Syllabus

Appellants’ decedent, a 15-year-old girl, was murdered by a parolee five months after he was released from prison despite his history as a sex offender. Appellants brought an action in a California court under state law and 42 U.S.C. § 1983, claiming that appellee state officials, by their action in releasing the parolee, subjected the decedent to a deprivation of her life without due process of law and were therefore liable in damages for the harm caused by the parolee. The trial court sustained a demurrer to the complaint. The California Court of Appeal affirmed, holding that a California statute granting public employees absolute immunity from liability for any injury resulting from parole-release determinations provided appellees with a complete defense to appellants’ state-law claims, and that appellees enjoyed quasi-judicial immunity from liability under 42 U.S.C. § 1983.

Held :

1. The California immunity statute is not unconstitutional when applied to defeat a tort claim arising under state law. Pp. 280-283.

(a) The statute, which merely provides a defense to potential state tort-law liability, did not deprive appellants’ decedent of her life without due process of law because it condoned a parole decision that led indirectly to her death. A legislative decision that has an incremental impact on the probability that death will result in any given situation cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander. P. 281.

(b) Even if the statute can be characterized as a deprivation of property, the State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from wholly arbitrary or irrational state action. The statute is not irrational because the California Legislature could reasonably conclude that judicial review of parole decisions “would inevitably inhibit the exercise of discretion” and that this inhibiting effect could impair the State’s ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prisons by holding out a promise of potential rewards. Pp. 281-283.

2. Appellants did not allege a claim for relief under federal law. Pp. 283-285.

(a) The Fourteenth Amendment protected appellants’ decedent only from deprivation by the State of life without due process of law, and although the decision to release the parolee from prison was action by the State, the parolee’s action five months later cannot be fairly characterized as state action. Pp. 284-285.

(b) Regardless of whether, as a matter of state tort law, the parole board either had a “duty” to avoid harm to the parolee’s victim or proximately caused her death, appellees did not “deprive” appellants’ decedent of life within the meaning of the Fourteenth Amendment. P. 285.

(c) Under the particular circumstances where the parolee was in no sense an agent of the parole board, and the board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger, appellants’ decedent’s death was too remote a consequence of appellees’ action to hold them responsible under § 1983. P. 285.

85 Cal.App.3d 430, 149 Cal.Rptr. 519, affirmed.

Donald McGrath, II, San Diego, Cal., for appellants.

Jeffrey T. Miller, San Diego, Cal., for appellees.

Mr. Justice STEVENS delivered the opinion of the Court.

1

The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U.S.C. § 1983.1 We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law.

2

The case arises out of the murder of a 15-year-old girl by a parolee. Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee.

3

The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969. He was first committed to a state mental hospital as a “Mentally Disordered Sex Offender not amenable to treatment” and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled. Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother. They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain “requisite formalities.” Five months after his release Thomas tortured and killed appellants’ decedent. We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious.2 Appellants prayed for actual and punitive damages of $2 million.

4

The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. 85 Cal.App.3d 430, 149 Cal.Rptr. 519 (1978). After the California Supreme Court denied appellants’ petition for a hearing, we noted probable jurisdiction. 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064.

5

* Section 845.8(a) of the Cal. Gov’t Code Ann. (West Supp. (1979)) provides:

6

“Neither a public entity nor a public employee is liable for:

7

(a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.”

8

The California courts held that this statute provided appellees with a complete defense to appellants’ state-law claims.3 They considered and rejected the contention that the immunity statute as so construed violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.4

9

Like the California courts, we cannot accept the contention that this statute deprived Thomas’ victim of her life without due process of law because it condoned a parole decision that led indirectly to her death. The statute neither authorized nor immunized the deliberate killing of any human being. It is not the equivalent of a death penalty statute which expressly authorizes state agents to take a person’s life after prescribed procedures have been observed. This statute merely provides a defense to potential state tort-law liability. At most, the availability of such a defense may have encouraged members of the parole board to take somewhat greater risks of recidivism in exercising their authority to release prisoners than they otherwise might. But the basic risk that repeat offenses may occur is always present in any parole system. A legislative decision that has an incremental impact on the probability that death will result in any given situation—such as setting the speed limit at 55-miles-per-hour instead of 45—cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander.

10

Nor can the statute be characterized as an invalid deprivation of property. Arguably, the cause of action for wrongful death that the State has created is a species of “property” protected by the Due Process Clause. On that hypothesis, the immunity statute could be viewed as depriving the plaintiffs of that property interest insofar as they seek to assert a claim against parole officials.5 But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.

11

We have no difficulty in accepting California’s conclusion that there “is a rational relationship between the state’s purposes and the statute.”6 In fashioning state policy in a “practical and troublesome area” like this, see McGinnis v. Royster410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282, the California Legislature could reasonably conclude that judicial review of a parole officer’s decisions “would inevitably inhibit the exercise of discretion,” United States ex rel. Miller v. Twomey479 F.2d 701, 721 (CA7 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102. That inhibiting effect could impair the State’s ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prison walls by holding out a promise of potential rewards. Whether one agrees or disagrees with California’s decision to provide absolute immunity for parole officials in a case of this kind, one cannot deny that it rationally furthers a policy that reasonable lawmakers may favor. As federal judges, we have no authority to pass judgment on the wisdom of the underlying policy determination. We therefore find no merit in the contention that the State’s immunity statute is unconstitutional when applied to defeat a tort claim arising under state law.

II

12

We turn then to appellants’ § 1983 claim that appellees, by their action in releasing Thomas, subjected appellants’ decedent to a deprivation of her life without due process of law.7 It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts.8 We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in Baker v. McCollan443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433, “[t]he first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws’ ” of the United States.9 The answer to that inquiry disposes of this case.

13

Appellants contend that the decedent’s right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the “State . . . of life . . . without due process of law.” Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a “duty” to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), we hold that, taking these particular allegations as true, appellees did not “deprive” appellants’ decedent of life within the meaning of the Fourteenth Amendment.

14

Her life was taken by the parolee five months after his release.10 He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90. Further, the parole board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to “deprive” someone of life by action taken in connection with the release of a prisoner on parole.11 But we do hold that at least under the particular circumstances of this parole decision, appellants’ decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as “a species of tort liability,” Imbler v. Pachtman424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.

15

The judgment is affirmed.

16

So ordered.

1

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

2

Although the complaint refers to the failure to supervise Thomas after his release, a failure to warn females in the area of potential danger, and a failure to revoke the original parole decision, the litigation has focused entirely on the original decision. The individual appellees are not alleged to have responsibility for postrelease supervision of Thomas.

3

The dismissal of appellants’ cause of action charging negligent failure to warn females in the area of danger was predicated on appellants’ concession that there was no “continuing relationship between the state and the victim,” 85 Cal.App.3d 430, 435, 149 Cal.Rptr. 519, 523 (1978), a requirement of state law.

4

“. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S.Const., Amdt. 14, § 1.

Although the question presented in the jurisdictional statement posits an Equal Protection Clause challenge to the statute, that point was not actually briefed in this Court. It was also neither raised in nor treated by the courts below. We therefore make no further reference to that challenge.

5

It is arguable, however, that the immunity defense, like an element of the tort claim itself, is merely one aspect of the State’s definition of that property interest. Recently, in considering a lawyer’s claim of immunity in a state malpractice action, we noted that

“when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.” Ferri v. Ackerman444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355.

6

Martinez says the statute, Government Code section 845.8, subdivision (a), is unconstitutional because it permits the deprivation of life, a fundamental right, without due process. He suggests the statute, if it confers absolute immunity, encouraged the actions resulting in Mary Ellen’s death and, thus, requires a compelling state interest. However, the Legislature has broad powers to control governmental tort liability limited only by the rule it not act arbitrarily (Reed v. City & County of San Francisco, 237 Cal.App.2d 23, 24, 46 Cal.Rptr. 543). The California Tort Claims Act as a whole (Gov.Code § 810 et seq.) has been found constitutional (Datil v. City of Los Angeles, 263 Cal.App.2d 655, 660-661, 69 Cal.Rptr. 788). The stated purpose of section 845.8, subdivision (a), is to allow correctional personnel to make determinations of release or parole unfettered by any fear of tort liability (Law Revision Com. com.). To impose tort liability would have a chilling effect on the decision-making process, impede implementation of trial release programs and prolong incarceration unjustifiably for many prisoners. There is a rational relationship between the state’s purposes and the statute.” 85 Cal.App.3d, at 437, 149 Cal.Rptr., at 524.

The opinion of the California Court of Appeal does not expressly mention the Federal Constitution. But it is clear from appellants’ response to the demurrer that they were relying on “a federally protected right to life under the Constitution of the United States.” Record 59.

7

We note that the California courts accepted jurisdiction of this federal claim. That exercise of jurisdiction appears to be consistent with the general rule that where

” ‘an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court.’ “ Testa v. Katt330 U.S. 386, 391, 67 S.Ct. 810, 813, 91 L.Ed. 967, quoting Claflin v. Houseman93 U.S. 130, 137, 23 L.Ed. 833.

See also Aldinger v. Howard427 U.S. 1, 36, n. 17, 96 S.Ct. 2413, 2430, n. 17, 49 L.Ed.2d 276 (BRENNAN, J., dissenting);Grubb v. Public Utilities Comm’n281 U.S. 470, 476, 50 S.Ct. 374, 377, 74 L.Ed. 972. We have never considered, however, the question whether a State must entertain a claim under § 1983. We note that where the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim. Testa v. Katt, 330 U.S., at 394, 67 S.Ct., at 814. But see Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969).

8

“Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.” Hampton v. Chicago484 F.2d 602, 607 (CA7 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471.

9

Baker v. McCollan, 443 U.S., at 140, 99 S.Ct., at 2692. Although there was a dissent in that case, the issue that divided the Court was, assuming the plaintiff had been deprived of constitutionally protected liberty, what process was due. There was no disagreement with the majority’s methodology of isolating the particular constitutional infringement complained of. Since we decide here that the State did not “deprive” appellants’ decedent of a constitutionally protected right, we need not reach the question whether a lack of “due process” was adequately alleged by the reference to a failure to observe “requisite formalities.” It must be remembered that even if a state decision does deprive an individual of life or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual’s right to due process.

10

Compare the facts in Screws v. United States325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, where local law enforcement officials themselves beat a citizen to death.

11

We reserve the question of what immunity, if any, a state parole officer has in a § 1983 action where a constitutional violation is made out by the allegations.

Liability and Private Correctional Facilities Primer Part 4: CARLSON VS. CONKLIN et al Defendants Johnson, P :United States Court of Appeals 6th Circuit -March 12, 1987

Thursday, January 7th, 2010

Liability involving private correctional program providers is complex. For those who wish to delve into it further, this is Part 4 of a multipart presentation of case law from varying jurisdictions on the subject gleaned from The Open Jurist and other legal sources online. Scroll through the opinion to see the highlighted decision sections.  This Court of Appeals decision resulted in a reversal of the lower court’s denial of the defendant’s motion to dismiss. While the outcome did not end up ruling on qualified immunity, as other issues took the fore, the outcome was by no means certain during the process. Again here is an example of a case involving the actions of a  parolee in a halfway house led to a correctional figure being exposed to potential liability.  What is certain is private corrections is even more of a minefield than public corrections- and public corrections is no picnic.  If you wish to discuss this and other liability matters involving private corrections or quasi public corrections please reach out to us.

Meridian is a highly dynamic specialized insurance consulting group and broker  with offices in Boston, MA, Newport, RI and Brookfield, CT.  We are a hard-driving group with an entrepreneurial spirit who will work tirelessly for clients.  We specialize in  risk management and risk transfer issues for clients in the private criminal justice operations arena.  We hold associate membership in the American Correctional Association.

Our Mission is simple.   We seek to help our clients make the best risk and risk transfer decisions possible.  We bring market-leading service to the most creative solutions in the risk management field to ensure that each Meridian client achieves their risk objectives.

Defendant Johnson was, at the time this lawsuit was filed, the Director of the Michigan Department of Corrections. He appeals the denial of his motion to dismiss plaintiff’s civil rights action brought under 42 U.S.C. Sec. 1983 (1981), arguing only that the trial court erred in denying his claim of qualified immunity. But, because we find that the plaintiff has failed to state a claim upon which relief may be granted, we reverse without reaching the qualified immunity issue.

I.

2

Plaintiff Carlson’s complaint alleged that on April 25, 1983, she was abducted, sexually assaulted, and robbed by defendant Conklin. Conklin had been convicted, in 1974, of armed robbery and assault with intent to commit armed robbery and, in 1976, of armed robbery. At the time of his assault upon the plaintiff, Conklin was serving a sentence for the 1976 armed robbery in a community corrections center, or “half-way house,” in Muskegon, Michigan.

3

The complaint also alleged that defendant Johnson, as Director of the Department of Corrections, authorized the departmental policies pursuant to which Conklin had been placed in the half-way house; that Johnson knew that dangerous prisoners, such as Conklin, were regularly being placed in such half-way houses; that it was reasonably foreseeable that the placement of prisoners, such as Conklin, in half-way houses would lead to assaults on members of the surrounding communities; that Johnson owed a duty to plaintiff “as a member of the general public” to exercise reasonable care in determining the nature of Conklin’s custody; and that such duty was violated when Johnson acted “with gross negligence and in wanton, reckless disregard of Plaintiff’s federal constitutional rights” by allowing Conklin to freely traverse public streets where he could assault and injure members of the public, such as plaintiff. Plaintiff asserted that Johnson had deprived her of “numerous rights guaranteed to her by the Federal Constitution, among these rights being Plaintiff’s 14th Amendment due process liberty interest, her federal right to bodily integrity, and her First Amendment right to freely traverse public walkways.”

4

Defendant Johnson moved to dismiss the action under Fed.R.Civ.P. 12(b)(6), on the grounds that plaintiff failed to state a claim upon which relief may be granted and that defendant was entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court denied the motion to dismiss. Johnson then filed this interlocutory appeal on the authority of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

II.

In Harlow, the Supreme Court held that:

5

“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

6

457 U.S. at 818, 102 S.Ct. at 2738. Mitchell held that, because an entitlement to qualified immunity is “an immunity from suit rather than a mere defense to liability,” 472 U.S. at 526, 105 S.Ct. at 2816, 86 L.Ed.2d at 425 (emphasis in original), “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. Sec. 1291 … notwithstanding the absence of a final judgment.” Id. at 530, 105 S.Ct. at 2817, 86 L.Ed.2d at 427. In light of the Harlow decision, this means that:

7

“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”

8

Id. at 526, 105 S.Ct. at 2816, 86 L.Ed.2d at 425.

9

Johnson’s interlocutory appeal is properly before this court because his claim of qualified immunity was denied by the district court. We need not confine our review, however, to the viability of the qualified immunity defense. See Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 61 S.Ct. 229, 232, 85 L.Ed. 189 (1940); N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 104 (3d Cir.1979); C. Wright, et al., Federal Practice and Procedure, Sec. 3921 at 17-19 (1977). In Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979), the Supreme Court observed that:

10

“Sec. 1983 imposes civil liability only upon one

11

‘Who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws….’

12

The first inquiry in any Sec. 1983 suit, therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ “

13

In reliance upon this principle, the Court in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), determined that, because the plaintiff had not stated an actionable claim under Sec. 1983, “it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law.” Id. at 284, 100 S.Ct. at 558. If the plaintiff here has failed to state a Sec. 1983 claim, Johnson’s qualified immunity defense becomes moot.

III.

14

Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), was a Sec. 1983 case against California officials responsible for paroling a dangerous sex offender, Thomas. Five months after his release on parole, Thomas tortured and killed a fifteen-year-old girl. The Court assumed,

15

“as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, wilful, wanton, and malicious.”

16

Id. at 280, 100 S.Ct. at 556. The Court determined, however, that the plaintiffs had failed to state a claim:

17

“Appellants contend that the decedent’s right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the ‘State … of life … without due process law.’ Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a ‘duty’ to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz 260, 564 P2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 NY 339, 162 NE 99 (1928), we hold that, taking these particular allegations as true, appellees did not ‘deprive’ appellants’ decedent of life within the meaning of the Fourteenth Amendment.

18

“Her life was taken by the parolee five months after his release. He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 US 232, 40 LEd2d 90, 94 SCt 1683, 71 Ohio Ops2d 474. Further, the parole board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to ‘deprive’ someone of life by action taken in connection with the release of a prisoner on parole. But we do hold that at least under the particular circumstances of this parole decision, appellants’ decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law. Although a Sec. 1983 claim has been described as ‘a species of tort liability,’ Imbler v. Pachtman, 424 US 409, 417, 47 LEd2d 128, 96 SCt 984 , it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.”

19

Id. at 284-85, 100 S.Ct. at 558-59 (footnotes omitted).

20

Martinez has been relied upon repeatedly to deny relief under Sec. 1983 where plaintiffs were harmed by criminals formerly, or never, in the custody of state officials. See, e.g., Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985); Wright v. City of Ozark, 715 F.2d 1513 (11th Cir.1983); Fox v. Custis, 712 F.2d 84 (4th Cir.1983). In the words of Judge Posner, “[T]here is no constitutional right to be protected by the state against being murdered by criminals or madmen.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982).

21

This court has approved the reasoning of these cases in Janan v. Trammell, 785 F.2d 557, 560 (6th Cir.1986), in which we upheld the dismissal of a Sec. 1983 claim against state officials alleged to have been grossly negligent in paroling the murderer of plaintiffs’ decedent:

22

“[T]he proper analysis of whether a special relationship exists between the criminal and the victim or between the victim and the state or whether there is some showing that the victim, as distinguished from the public at large, faces a special danger by the parolee’s release. In so holding, we follow other circuits that have held that absent a special relationship between the criminal and the victim or the victim and the state, no due process violation can occur.”

IV.

23

Under the Martinez analysis, Conklin’s assault upon plaintiff is “too remote a consequence of [Johnson's actions] to hold [him] responsible under the federal civil rights law.” 444 U.S. at 285, 100 S.Ct. at 559. On a Rule 12(b)(6) motion to dismiss, the allegations of plaintiff’s complaint “are taken as true,” Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 382 U.S. 172, 175, 86 S.Ct. 347, 349, 15 L.Ed.2d 247 (1965), but the plaintiff here has pleaded no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

24

The fact that Conklin had been placed in a half-way house rather than paroled does not distinguish this case from Martinez. While one purpose of incarceration is to protect the public, the various, sometimes conflicting, responsibilities state law places upon the Department of Corrections do not create any responsibility under the Federal Constitution to protect the public from convicted criminals. Because the State of Michigan has no “constitutional duty to provide such protection its failure to do so is not actionable under section 1983.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). In Humann v. Wilson, 696 F.2d 783 (10th Cir.1983), the Tenth Circuit held that the actions of a parole board in placing an inmate in a half-way house were too remote from a crime committed by the inmate while living in the half-way house to state a claim under Sec. 1983. The same result is indicated here.

25

Nor do we consider plaintiff’s allegation of other constitutional violations, other than due process violations, to distinguish this case from Martinez. The complaint fails to allege that Johnson deprived plaintiff of any constitutional rights. In Hayes v. Vessey, 777 F.2d 1149 (6th Cir.1985), this court applied Martinez in a Sec. 1983 action alleging deprivation of equal protection. We do not consider the Martinez holding to extend only to cases alleging due process violations.

26

We conclude that the district court erred in failing to dismiss plaintiff’s Sec. 1983 suit for failure to state a claim upon which relief may be granted.

V.

27

We REVERSE AND REMAND to the district court with instructions to dismiss the complaint against defendant Johnson.

Liability and Private Correctional Facilities Primer Part 3: CORRECTIONAL SERVICES CORPORATION v. JOHN E. MALESKO Supreme Court November 27,2001

Monday, November 9th, 2009

Liability involving private correctional program providers is complex. For those who wish to delve into it further, this is Part 3 of a multipart presentation of case law from varying jurisdictions on the subject gleaned from The Open Jurist and other legal sources online. Scroll through the opinion to see the highlighted decision sections.  The Supreme Court decision refuses to extend the Bivens remedy to the inmate respondent against the private correctional facility defending themselves in the original action.  This is an interesting read not the least of which is  because it gives a little history to Bivens and the courts position originally in that case which helps to paint of picture of why lower courts are examining how far Bivens might apply, if at all, to other scenarios.   The Court does note that the remedies available to the original plaintiffs under tort law are equal to or greater than Bivens.

Meridian is a highly dynamic specialized insurance consulting group and broker  with offices in Boston, MA, Newport, RI and Brookfield, CT.  We are a hard-driving group with an entrepreneurial spirit who will work tirelessly for clients. Our Mission is simple.   We seek to help our clients make the best risk and risk transfer decisions possible.  We bring market-leading service to the most creative solutions in the risk management field to ensure that each Meridian client achieves their risk objectives.

CORRECTIONAL SERVICES CORPORATION, PETITIONER
v.
JOHN E. MALESKO

No. 00-860.

Supreme Court of the United States

Argued October 1, 2001
Decided November 27, 2001

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

Syllabus

Petitioner Correctional Services Corporation (CSC), under contract with the federal Bureau of Prisons (BOP), operates Le Marquis Community Correctional Center (Le Marquis), a facility that houses federal inmates. After respondent, a federal inmate afflicted with a heart condition limiting his ability to climb stairs, was assigned to a bedroom on Le Marquis’ fifth floor, CSC instituted a policy requiring inmates residing below the sixth floor to use the stairs rather than the elevator. Respondent was exempted from this policy. But when a CSC employee forbade respondent to use the elevator to reach his bedroom, he climbed the stairs, suffered a heart attack, and fell. Subsequently, respondent filed this damages action against CSC and individual defendants, alleging, inter alia, that they were negligent in refusing him the use of the elevator. The District Court treated the complaint as raising claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, in which this Court recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights. In dismissing the suit, the District Court relied on FDIC v. Meyer, 510 U.S. 471, reasoning, inter alia, that a Bivens action may only be maintained against an individual, not a corporate entity. The Second Circuit reversed in pertinent part and remanded, remarking, with respect to CSC, that Meyer expressly declined to expand the category of defendants against whom Bivens-type actions may be brought to include not only federal agents, but also federal agencies. But the court reasoned that such private entities should be held liable under Bivens to accomplish the important Bivens goal of providing a remedy for constitutional violations.

Held: Bivens’ limited holding may not be extended to confer a right of action for damages against private entities acting under color of federal law. The Court’s authority to imply a new constitutional tort, not expressly authorized by statute, is anchored in its general jurisdiction to decide all cases arising under federal law. The Court first exercised this authority in Bivens. From a discussion of that and subsequent cases, it is clear that respondent’s claim is fundamentally different from anything the Court has heretofore recognized. In 30 years of Bivens jurisprudence, the Court has extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, e.g., Carlson v. Green, 446 U.S. 14, and to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct, e.g., Davis v. Passman, 442 U.S. 228, 245. Where such circumstances are not present, the Court has consistently rejected invitations to extend Bivens, often for reasons that foreclose its extension here. See, e.g., Bush v. Lucas, 462 U.S. 367. Bivens’ purpose is to deter individual federal officers, not the agency, from committing constitutional violations. Meyer made clear, inter alia, that the threat of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens. 510 U.S., at 485. This case is, in every meaningful sense, the same. For if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury. On Meyer’s logic, inferring a constitutional tort remedy against a private entity like CSC is therefore foreclosed. Respondent’s claim that requiring private corporations acting under color of federal law to pay for the constitutional harms they commit is the best way to discourage future harms has no relevance to Bivens, which is concerned solely with deterring individual officers’ unconstitutional acts. There is no reason here to consider extending Bivens beyond its core premise. To begin with, no federal prisoners enjoy respondent’s contemplated remedy. If such a prisoner in a BOP facility alleges a constitutional deprivation, his only remedy lies against the offending individual officer. Whether it makes sense to impose asymmetrical liability costs on private prison facilities alone is a question for Congress to decide. Nor is this a situation in which claimants in respondent’s shoes lack effective remedies. It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in government facilities. Inmates in respondent’s position also have full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief-long recognized as the proper means for preventing entities from acting unconstitutionally-and grievances filed through the BOP’s Administrative Remedy Program. Pp. 4-12.

229 F.3d 374, reversed.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined.

Opinion of the Court

Chief Justice Rehnquist delivered the opinion of the Court.

1

We decide here whether the implied damages action first recognized in Bivens v. Six Unknown Fed. Narcotics Agents,403 U.S. 388 (1971), should be extended to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. We decline to so extend Bivens.

2

Petitioner Correctional Services Corporation (CSC), under contract with the federal Bureau of Prisons (BOP), operates Community Corrections Centers and other facilities that house federal prisoners and detainees.1 Since the late 1980′s, CSC has operated Le Marquis Community Correctional Center (Le Marquis), a halfway house located in New York City. Respondent John E. Malesko is a former federal inmate who, having been convicted of federal securities fraud in December 1992, was sentenced to a term of 18 months’ imprisonment under the supervision of the BOP. During his imprisonment, respondent was diagnosed with a heart condition and treated with prescription medication. Respondent’s condition limited his ability to engage in physical activity, such as climbing stairs.

3

In February 1993, the BOP transferred respondent to Le Marquis where he was to serve the remainder of his sentence. Respondent was assigned to living quarters on the fifth floor. On or about March 1, 1994, petitioner instituted a policy at Le Marquis requiring inmates residing below the sixth floor to use the staircase rather than the elevator to travel from the first-floor lobby to their rooms. There is no dispute that respondent was exempted from this policy on account of his heart condition. Respondent alleges that on March 28, 1994, however, Jorge Urena, an employee of petitioner, forbade him to use the elevator to reach his fifth-floor bedroom. Respondent protested that he was specially permitted elevator access, but Urena was adamant. Respondent then climbed the stairs, suffered a heart attack, and fell, injuring his left ear.

4

Three years after this incident occurred, respondent filed a pro se action against CSC and unnamed CSC employees in the United States District Court for the Southern District of New York. Two years later, now acting with counsel, respondent filed an amended complaint which named Urena as 1 of the 10 John Doe defendants. The amended complaint alleged that CSC, Urena, and unnamed defendants were “negligent in failing to obtain requisite medication for [respondent's] condition and were further negligent by refusing [respondent] the use of the elevator.” App. 12. It further alleged that respondent injured his left ear and aggravated a pre-existing condition “[a]s a result of the negligence of the Defendants.” Ibid. Respondent demanded judgment in the sum of $1 million in compensatory damages, $3 million in anticipated future damages, and punitive damages “for such sum as the Court and/or [j]ury may determine.” Id., at 13.

5

The District Court treated the amended complaint as raising claims under Bivens v. Six Unknown Fed. Narcotics Agents, supra, and dismissed respondent’s cause of action in its entirety. App. to Pet. for Cert. 20a. Relying on our decision in FDIC v. Meyer, 510 U.S. 471 (1994), the District Court reasoned that “a Bivens action may only be maintained against an individual,” and thus was not available against petitioner, a corporate entity. App. to Pet. for Cert. 20a. With respect to Urena and the unnamed individual defendants, the complaint was dismissed on statute of limitations grounds.

6

The Court of Appeals for the Second Circuit affirmed in part, reversed in part, and remanded. 229 F.3d 374 (2000). That court affirmed dismissal of respondent’s claims against individual defendants as barred by the statute of limitations. Respondent has not challenged that ruling, and the parties agree that the question whether a Bivens action might lie against a private individual is not presented here. With respect to petitioner, the Court of Appeals remarked that Meyer expressly declined ” ‘to expand the category of defendants against whom Bivens-type actions may be brought to include not only federal agents, but federal agencies as well.’ ” 229 F.3d, at 378 (quoting Meyer, supra, at 484 (emphasis deleted)). But the court reasoned that private entities like petitioner should be held liable under Bivens to “accomplish the … important Bivens goal of providing a remedy for constitutional violations.” 229 F.3d, at 380.

7

We granted certiorari, 532 U.S. 902 (2001), and now reverse.2

8

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), we recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Respondent now asks that we extend this limited holding to confer a right of action for damages against private entities acting under color of federal law. He contends that the Court must recognize a federal remedy at law wherever there has been an alleged constitutional deprivation, no matter that the victim of the alleged deprivation might have alternative remedies elsewhere, and that the proposed remedy would not significantly deter the principal wrongdoer, an individual private employee. We have heretofore refused to imply new substantive liabilities under such circumstances, and we decline to do so here.

9

Our authority to imply a new constitutional tort, not expressly authorized by statute, is anchored in our general jurisdiction to decide all cases “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 1331. See, e.g., Schweiker v. Chilicky, 487 U.S. 412, 420-421 (1988); Bush v. Lucas, 462 U.S. 367, 373-374 (1983). We first exercised this authority in Bivens, where we held that a victim of a Fourth Amendment violation by federal officers may bring suit for money damages against the officers in federal court. Bivens acknowledged that Congress had never provided for a private right of action against federal officers, and that “the Fourth Amendment does not in so many words provide for its enforcement by award of money damages for the consequences of its violation.” 403 U.S., at 396. Nonetheless, relying largely on earlier decisions implying private damages actions into federal statutes, see id., at 397 (citing J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)); 403 U.S., at 402-403, n. 4 (Harlan, J., concurring in judgment) (“The Borak case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action”), and finding “no special factors counseling hesitation in the absence of affirmative action by Congress,” id., at 395-396, we found an implied damages remedy available under the Fourth Amendment.3

10

In the decade following Bivens, we recognized an implied damages remedy under the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and the Cruel and Unusual Punishment Clause of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980). In both Davis and Carlson, we applied the core holding of Bivens, recognizing in limited circumstances a claim for money damages against federal officers who abuse their constitutional authority. In Davis, we inferred a new right of action chiefly because the plaintiff lacked any other remedy for the alleged constitutional deprivation. 442 U.S., at 245 (“For Davis, as for Bivens, it is damages or nothing”). In Carlson, we inferred a right of action against individual prison officials where the plaintiff’s only alternative was a Federal Tort Claims Act (FTCA) claim against the United States. 446 U.S., at 18-23. We reasoned that the threat of suit against the United States was insufficient to deter the unconstitutional acts of individuals. Id., at 21 (“Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy”). We also found it “crystal clear” that Congress intended the FTCA and Bivens to serve as “parallel” and “complementary” sources of liability. 446 U.S., at 19-20.

11

Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants. In Bush v. Lucas, supra, we declined to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment. Although the plaintiff had no opportunity to fully remedy the constitutional violation, we held that administrative review mechanisms crafted by Congress provided meaningful redress and thereby foreclosed the need to fashion a new, judicially crafted cause of action. 462 U.S., at 378, n. 14, 386-388. We further recognized Congress’ institutional competence in crafting appropriate relief for aggrieved federal employees as a “special factor counseling hesitation in the creation of a new remedy.” Id., at 380. See also id., at 389 (noting that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees”). We have reached a similar result in the military context, Chappell v. Wallace, 462 U.S. 296, 304 (1983), even where the defendants were alleged to have been civilian personnel, United States v. Stanley, 483 U.S. 669, 681 (1987).

12

In Schweiker v. Chilicky, we declined to infer a damages action against individual government employees alleged to have violated due process in their handling of Social Security applications. We observed that our “decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” 487 U.S., at 421. In light of these decisions, we noted that “[t]he absence of statutory relief for a constitutional violation … does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Id., at 421-422. We therefore 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. It did not matter, for example, that “[t]he creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed.” 487 U.S., at 425. See also Bush, supra, at 388 (noting that “existing remedies do not provide complete relief for the plaintiff”); Stanley, supra, at 683 (“[I]t is irrelevant to a special factors analysis whether the laws currently on the books afford Stanley … an adequate federal remedy for his injuries” (internal quotation marks omitted)). So long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability. Chilicky, supra, at 425-427.

13

Most recently, in FDIC v. Meyer, we unanimously declined an invitation to extend Bivens to permit suit against a federal agency, even though the agency-because Congress had waived sovereign immunity-was otherwise amenable to suit. 510 U.S., at 484-486. Our opinion emphasized that “the purpose of Bivens is to deter the officer,” not the agency. Id., at 485 (emphasis in original) (citing Carlson v. Green, supra, at 21). We reasoned that if given the choice, plaintiffs would sue a federal agency instead of an individual who could assert qualified immunity as an affirmative defense. To the extent aggrieved parties had less incentive to bring a damages claim against individuals, “the deterrent effects of the Bivens remedy would be lost.” 510 U.S., at 485. Accordingly, to allow a Bivens claim against federal agencies “would mean the evisceration of the Bivens remedy, rather than its extension.” 510 U.S., at 485. We noted further that “special factors” counseled hesitation in light of the “potentially enormous financial burden” that agency liability would entail. Id., at 486.

14

From this discussion, it is clear that the claim urged by respondent is fundamentally different from anything recognized in Bivens or subsequent cases. In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct. Where such circumstances are not present, we have consistently rejected invitations to extend Bivens, often for reasons that foreclose its extension here.4

15

The purpose of Bivens is to deter individual federal officers from committing constitutional violations. Meyer made clear that the threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity, 510 U.S., at 474, 485, are indemnified by the employing agency or entity, id., at 486, or are acting pursuant to an entity’s policy, id., at 473-474. Meyer also made clear that the threat of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens. See 510 U.S., at 485 (“If we were to imply a damages action directly against federal agencies … there would be no reason for aggrieved parties to bring damages actions against individual officers. [T]he deterrent effects of the Bivens remedy would be lost”). This case is, in every meaningful sense, the same. For if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury. See, e.g., TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 464 (1993) (plurality opinion) (recognizing that corporations fare much worse before juries than do individuals); id., at 490-492 (O’Connor, J., dissenting) (same) (citing authorities). On the logic of Meyer, inferring a constitutional tort remedy against a private entity like CSC is therefore foreclosed.

16

Respondent claims that even under Meyer’s deterrence rationale, implying a suit against private corporations acting under color of federal law is still necessary to advance the core deterrence purpose of Bivens. He argues that because corporations respond to market pressures and make decisions without regard to constitutional obligations, requiring payment for the constitutional harms they commit is the best way to discourage future harms. That may be so, but it has no relevance to Bivens, which is concerned solely with deterring the unconstitutional acts of individual officers. If deterring the conduct of a policy-making entity was the purpose of Bivens, then Meyer would have implied a damages remedy against the Federal Deposit Insurance Corporation; it was after all an agency policy that led to Meyer’s constitutional deprivation. Meyer, supra, at 473-474. But Bivens from its inception has been based not on that premise, but on the deterrence of individual officers who commit unconstitutional acts.

17

There is no reason for us to consider extending Bivens beyond this core premise here.5 To begin with, no federal prisoners enjoy respondent’s contemplated remedy. If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer’s employer, the United States or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual; a remedy Meyer found sufficient, and which respondent did not timely pursue. Whether it makes sense to impose asymmetrical liability costs on private prison facilities alone is a question for Congress, not us, to decide.

18

Nor are we confronted with a situation in which claimants in respondent’s shoes lack effective remedies. Cf. Bivens, 403 U.S., at 410 (Harlan, J., concurring in judgment) (“For people in Bivens’ shoes, it is damages or nothing”); Davis, 442 U.S., at 245 (“For Davis, as for Bivens, it is damages or nothing” (internal quotaton marks omitted)). It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. Tr. of Oral Arg. 41-42, 43. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in government facilities. See Brief in Opposition 13. This case demonstrates as much, since respondent’s complaint in the District Court arguably alleged no more than a quintessential claim of negligence. It maintained that named and unnamed defendants were “negligent in failing to obtain requisite medication … and were further negligent by refusing … use of the elevator.” App. 12 (emphasis added). It further maintained that respondent suffered injuries “[a]s a result of the negligence of the Defendants.” Ibid. (emphasis added). The District Court, however, construed the complaint as raising a Bivens claim, presumably under the Cruel and Unusual Punishment Clause of the Eighth Amendment. Respondent accepted this theory of liability, and he has never sought relief on any other ground. This is somewhat ironic, because the heightened “deliberate indifference” standard of Eighth Amendment liability, Estelle v. Gamble, 429 U.S. 97, 104 (1976), would make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence, see, e.g., Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference describes a state of mind more blameworthy than negligence”).

19

This also makes respondent’s situation altogether different from Bivens, in which we found alternative state tort remedies to be “inconsistent or even hostile” to a remedy inferred from the Fourth Amendment. 403 U.S., at 393-394. When a federal officer appears at the door and requests entry, one cannot always be expected to resist. See id., at 394 (“[A] claim of authority to enter is likely to unlock the door”). Yet lack of resistance alone might foreclose a cause of action in trespass or privacy. Ibid. Therefore, we reasoned in Bivens that other than an implied constitutional tort remedy, “there remain[ed] … but the alternative of resistance, which may amount to a crime.” Id., at 395 (internal quotation marks and citation omitted). Such logic does not apply to respondent, whose claim of negligence or deliberate indifference requires no resistance to official action, and whose lack of alternative tort remedies was due solely to strategic choice.6

20

Inmates in respondent’s position also have full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program (ARP). See 28 CFR 542.10 (2001) (explaining ARP as providing “a process through which inmates may seek formal review of an issue which relates to any aspect of their confinement”). This program provides yet another means through which allegedly unconstitutional actions and policies can be brought to the attention of the BOP and prevented from recurring. And unlike the Bivens remedy, which we have never considered a proper vehicle for altering an entity’s policy, injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.

21

In sum, respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens’ core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.

22

The judgment of the Court of Appeals is reversed.

23

It is so ordered.

24

Scalia, J., filed a concurring opinion, in which Thomas, J., joined.

25

Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.

Notes:

1

Petitioner is hardly unique in this regard. The BOP has since 1981 relied exclusively on contracts with private institutions and state and local governments for the operation of halfway house facilities to help federal prisoners reintegrate into society. The BOP contracts not only with for-profit entities like petitioner, but also with charitable organizations like Volunteers for America (which operates facilities in Indiana, Louisiana, Maryland, Minnesota, New York, and Texas), the Salvation Army (Arkansas, Florida, Illinois, North Carolina, Tennessee, and Texas), Progress House Association (Oregon), Triangle Center (Illinois), and Catholic Social Services (Pennsylvania).

2

The Courts of Appeals have divided on whether FDIC v. Meyer, 510 U.S. 471 (1994), forecloses the extension of Bivens to private entities. Compare Hammons v. Norfolk Southern Corp., 156 F.3d 701, 705 (CA6 1998) (“Nothing in Meyer prohibits a Bivens claim against a private corporation that engages in federal action”), with Kauffman v. Anglo-American School of Sofia,28 F.3d 1223, 1227 (CADC 1994) (“[Under] Meyer’s conclusion that public federal agencies are not subject to Bivens liability, it follows that equivalent private entities should not be liable either”). We hold today that it does.

3

Since our decision in Borak, we have retreated from our previous willingness to imply a cause of action where Congress has not provided one. See, e.g., Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 188 (1994); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688 (1979); id., at 717-718 (Rehnquist, J., concurring). Just last Term it was noted that we “abandoned” the view of Borak decades ago, and have repeatedly declined to “revert” to “the understanding of private causes of action that held sway 40 years ago.” Alexander v. Sandoval, 532 U.S. 275, 287 (2001).

4

Justice Stevens’ claim that this case does not implicate an “extension” of Bivens, post, at 2, 8 (dissenting opinion), might come as some surprise to the Court of Appeals which twice characterized its own holding as “extending Bivens liability to reach private corporations.” 229 F.3d 374, 381 (CA2 2000). See also ibid. (“Bivens liability should extend to private corporations”).

5

Justice Stevens claims that our holding in favor of petitioner portends “tragic consequence[s],” post, at 6, and “jeopardize[s] the constitutional rights of . . . tens of thousands of inmates,” post, at 7. He refers to examples of cases suggesting that private correctional providers routinely abuse and take advantage of inmates under their control. Post, at 7, n. 9 (citing Brief for Legal Aid Society of New York as Amicus Curiae 8-25). See also Brief for American Civil Liberties Union as Amicus Curiae 14-16, and n. 6 (citing and discussing “abundant” examples of such abuse). In all but one of these examples, however, the private facility in question housed state prisoners-prisoners who already enjoy a right of action against private correctional providers under 42 U.S.C. 1983. If it is true that the imperatives for deterring the unconstitutional conduct of private correctional providers are so strong as to demand that we imply a new right of action directly from the Constitution, then abuses of authority should be less prevalent in state facilities, where Congress already provides for such liability. That the trend appears to be just the opposite is not surprising given the BOP’s oversight and monitoring of its private contract facilities, see Brief for United States as Amicus Curiae 4-5, 24-26, which Justice Stevens does not mention.

6

Where the government has directed a contractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense. Boyle v. United Technologies Corp., 487 U.S. 500(1988). The record here would provide no basis for such a defense.

26

Justice Scalia, with whom Justice Thomas joins, concurring.

27

I join the opinion of the Court because I agree that a narrow interpretation of the rationale of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), would not logically produce its application to the circumstances of this case. The dissent is doubtless correct that a broad interpretation of its rationale would logically produce such application, but I am not inclined (and the Court has not been inclined) to construe Bivens broadly.

28

In joining the Court’s opinion, however, I do not mean to imply that, if the narrowest rationale of Bivens did apply to a new context, I would extend its holding. I would not. Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action-decreeing them to be “implied” by the mere existence of a statutory or constitutional prohibition. As the Court points out, ante, at 5, and n. 3, we have abandoned that power to invent “implications” in the statutory field, see Alexander v. Sandoval, 532 U.S. 275, 287 (2001). There is even greater reason to abandon it in the constitutional field, since an “implication” imagined in the Constitution can presumably not even be repudiated by Congress. I would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980)) to the precise circumstances that they involved.

29

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

30

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Court affirmatively answered the question that it had reserved in Bell v. Hood, 327 U.S. 678 (1946): whether a violation of the Fourth Amendment “by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” 403 U.S., at 389 (emphasis added). Nearly a decade later, in Carlson v. Green, 446 U.S. 14(1980), we held that a violation of the Eighth Amendment by federal prison officials gave rise to a Bivens remedy despite the fact that the plaintiffs also had a remedy against the United States under the Federal Tort Claims Act (FTCA). We stated: “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” 446 U. S., at 18 (emphasis added).

31

In subsequent cases, we have decided that a Bivens remedy is not available for every conceivable constitutional violation.1 We have never, however, qualified our holding that Eighth Amendment violations are actionable under Bivens. See Farmer v. Brennan, 511 U.S. 825 (1994); McCarthy v. Madigan, 503 U.S. 140 (1992). Nor have we ever suggested that a category of federal agents can commit Eighth Amendment violations with impunity.

32

The parties before us have assumed that respondent’s complaint has alleged a violation of the Eighth Amendment.2The violation was committed by a federal agent-a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government. Thus, the question presented by this case is whether the Court should create an exception to the straightforward application of Bivens and Carlson, not whether it should extend our cases beyond their “core premise,” ante, at 9. This point is evident from the fact that prior to our recent decision in FDIC v. Meyer, 510 U.S. 471 (1994), the Courts of Appeals had consistently and correctly held that corporate agents performing federal functions, like human agents doing so, were proper defendants in Bivens actions.3

33

Meyer, which concluded that federal agencies are not suable under Bivens, does not lead to the outcome reached by the Court today. In that case, we did not discuss private corporate agents, nor suggest that such agents should be viewed differently from human ones. Rather, in Meyer, we drew a distinction between “federal agents” and “an agency of the Federal Government,” 510 U. S., at 473. Indeed, our repeated references to the Federal Deposit Insurance Corporation’s (FDIC) status as a “federal agency” emphasized the FDIC’s affinity to the federal sovereign. We expressed concern that damages sought directly from federal agencies, such as the FDIC, would “creat[e] a potentially enormous financial burden for the Federal Government.” Id., at 486. And it must be kept in mind that Meyer involved the FDIC’s waiver of sovereign immunity, which, had the Court in Meyer recognized a cause of action, would have permitted the very sort of lawsuit that Bivens presumed impossible: “a direct action against the Government.” 510 U.S., at 485.4

34

Moreover, in Meyer, as in Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker v. Chilicky, 487 U.S. 412 (1988), we were not dealing with a well-recognized cause of action. The cause of action alleged in Meyer was a violation of procedural due process, and as the Meyer Court noted, “a Bivens action alleging a violation of the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in others.” 510 U.S., at 484, n. 9. Not only is substantive liability assumed in the present case, but respondent’s Eighth Amendment claim falls in the heartland of substantive Bivens claims.5

35

Because Meyer does not dispose of this case, the Court claims that the rationales underlying Bivens-namely, lack of alternative remedies and deterrence-are not present in cases in which suit is brought against a private corporation serving as a federal agent. However, common sense, buttressed by all of the reasons that supported the holding in Bivens, leads to the conclusion that corporate agents should not be treated more favorably than human agents.

36

First, the Court argues that respondent enjoys alternative remedies against the corporate agent that distinguish this case from Bivens. In doing so, the Court characterizes Bivens and its progeny as cases in which plaintiffs lacked “any alternative remedy,” ante, at 8. In Bivens, however, even though the plaintiff’s suit against the Federal Government under state tort law may have been barred by sovereign immunity, a suit against the officer himself under state tort law was theoretically possible. Moreover, as the Court recognized in Carlson, Bivens plaintiffs also have remedies available under the FTCA. Thus, the Court is incorrect to portray Bivens plaintiffs as lacking any other avenue of relief, and to imply as a result that respondent in this case had a substantially wider array of non-Bivens remedies at his disposal than do other Bivens plaintiffs.6 If alternative remedies provide a sufficient justification for closing the federal forum here, where the defendant is a private corporation, the claims against the individual defendants in Carlson, in light of the FTCA alternative, should have been rejected as well.7

37

It is ironic that the Court relies so heavily for its holding on this assumption that alternative effective remedies-primarily negligence actions in state court-are available to respondent. See ante, at 10-12. Like Justice Harlan, I think it “entirely proper that these injuries be compensable according to uniform rules of federal law, especially in light of the very large element of federal law which must in any event control the scope of official defenses to liability.” Bivens, 403 U.S., at 409 (opinion concurring in judgment). And aside from undermining uniformity, the Court’s reliance on state tort law will jeopardize the protection of the full scope of federal constitutional rights. State law might have comparable causes of action for tort claims like the Eighth Amendment violation alleged here, see ante, at 10-11, but other unconstitutional actions by prison employees, such as violations of the Equal Protection or Due Process Clauses, may find no parallel causes of action in state tort law. Even though respondent here may have been able to sue for some degree of relief under state law because his Eighth Amendment claim could have been pleaded as negligence, future plaintiffs with constitutional claims less like traditional torts will not necessarily be so situated.8

38

Second, the Court claims that the deterrence goals of Bivens would not be served by permitting liability here. Ante, at 8-9 (citing Meyer). It cannot be seriously maintained, however, that tort remedies against corporate employers have less deterrent value than actions against their employees. As the Court has previously noted, the “organizational structure” of private prisons “is one subject to the ordinary competitive pressures that normally help private firms adjust their behavior in response to the incentives that tort suits provide-pressures not necessarily present in government departments.” Richardson v. McKnight, 521 U.S. 399, 412 (1997). Thus, the private corporate entity at issue here is readily distinguishable from the federal agency in Meyer. Indeed, a tragic consequence of today’s decision is the clear incentive it gives to corporate managers of privately operated custodial institutions to adopt cost-saving policies that jeopardize the constitutional rights of the tens of thousands of inmates in their custody.9

39

The Court raises a concern with imposing “asymmetrical liability costs on private prison facilities,” ante, at 10, and further claims that because federal prisoners in Government-run institutions can only sue officers, it would be unfair to permit federal prisoners in private institutions to sue an “officer’s employer,” ibid. Permitting liability in the present case, however, would produce symmetry: both private and public prisoners would be unable to sue the principal (i.e., the Government), but would be able to sue the primary federal agent (i.e., the government official or the corporation). Indeed, it is the Court’s decision that creates asymmetry-between federal and state prisoners housed in private correctional facilities. Under 42 U.S.C. 1983 a state prisoner may sue a private prison for deprivation of constitutional rights, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937 (1982) (permitting suit under 1983 against private corporations exercising “state action”), yet the Court denies such a remedy to that prisoner’s federal counterpart. It is true that we have never expressly held that the contours of Bivens and 1983 are identical. The Court, however, has recognized sound jurisprudential reasons for parallelism, as different standards for claims against state and federal actors “would be incongruous and confusing.” Butz v. Economou, 438 U.S. 478, 499 (1978) (internal quotation marks omitted); cf. Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government”). The value of such parallelism was in fact furthered by Meyer, since 1983 would not have provided the plaintiff a remedy had he pressed a similar claim against a state agency.

40

It is apparent from the Court’s critical discussion of the thoughtful opinions of Justice Harlan and his contemporaries, ante, at 5, and n. 3, and from its erroneous statement of the question presented by this case as whether Bivens “should be extended” to allow recovery against a private corporation employed as a federal agent, ante, at 1, that the driving force behind the Court’s decision is a disagreement with the holding in Bivens itself.10 There are at least two reasons why it is improper for the Court to allow its decision in this case to be influenced by that predisposition. First, as is clear from the legislative materials cited in Carlson, 446 U.S., at 19-20, see also ante, at 6, Congress has effectively ratified the Bivens remedy; surely Congress has never sought to abolish it. Second, a rule that has been such a well-recognized part of our law for over 30 years should be accorded full respect by the Members of this Court, whether or not they would have endorsed that rule when it was first announced. For our primary duty is to apply and enforce settled law, not to revise that law to accord with our own notions of sound policy.

41

I respectfully dissent.

Notes:

1

See, e.g., FDIC v. Meyer, 510 U.S. 471 (1994); Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v. Lucas, 462 U.S. 367(1983); Chappell v. Wallace, 462 U.S. 296 (1983).

2

Although it might have challenged the sufficiency of respondent’s constitutional claim, see ante, at 10-11, petitioner has not done so. See Tr. of Oral Arg. 55 (acknowledgment by petitioner that the complaint states an Eighth Amendment violation). Its petition for certiorari presented the single question whether a Bivens cause of action for damages “should be implied against a private corporation acting under color of federal law.” Pet. for Cert. (i).

3

See Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (CA9 1987); Reuber v. United States, 750 F.2d 1039 (CADC 1984); Gerena v. Puerto Rico Legal Servs., Inc., 697 F.2d 447 (CA1 1983); Dobyns v. E-Systems, Inc., 667 F.2d 1219 (CA5 1982); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392 (CA6 1975). It is true that one court has overruled its Circuit precedent in light of Meyer and held that Meyer dictates the exclusion of all corporate entities from Bivens liability. Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (CADC 1994). However, as another court has explained, that conclusion is in no way compelled by Meyer. See Hammons v. Norfolk Southern Corp., 156 F.3d 701 (CA6 1998).

4

Meyer also did not address the present situation because the Court understood the plaintiff’s “real complaint” in that case to be that the individual officers would be shielded by qualified immunity, 510 U.S., at 485, a concern not present in the case before us, see Richardson v. McKnight, 521 U.S. 399, 412 (1997) (denying qualified immunity to private prison guards in a suit under 42 U.S.C. 1983).

5

The Court incorrectly assumes that we are being asked “to imply a new constitutional tort,” ante, at 4. The tort here is, however, well established; the only question is whether a remedy in damages is available against a limited class of tortfeasors.

6

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 present case. Ante, at 3. Both petitioner and respondent have assumed Bivens would apply to these individuals, and the United States as amicus maintains that such liability would be appropriate under Bivens. It does seem puzzling that Bivens liability would attach to the private individual employees of such corporations-subagents of the Federal Government-but not to the corporate agents themselves. However, the United States explicitly maintains this to be the case, and the reasoning of the Court’s opinion relies, at least in part, on the availability of a remedy against employees of private prisons. Cf. ante, at 10 (noting that Meyer “found sufficient” a remedy against the individual officer, “which respondent did not timely pursue” (emphasis added)).

7

Although the Court lightly references administrative remedies that might be available to CSC-housed inmates, these are by no means the sort of comprehensive administrative remedies previously contemplated by the Court in Bush and Schweiker.

8

The Court blames respondent, who filed his initial complaint pro se, for the lack of state remedies in this case; according to the Court, respondent’s failure to bring a negligence suit in state court was “due solely to strategic choice,” ante, at 11. Such strategic behavior, generally speaking, is imaginable, but there is no basis in the case before us to charge respondent with acting strategically. Cf. ibid. (discussing how proving a federal constitutional claim would be “considerably more difficult” than proving a state negligence claim). Respondent filed his complaint in federal court because he believed himself to have been severely maltreated while in federal custody, and he had no legal counsel to advise him to do otherwise. Without the aid of counsel, respondent not only failed to file for state relief, but he also failed to name the particular prison guard who was responsible for his injuries, resulting in the eventual dismissal of the claims against the individual officers as time barred. Respondent may have been an unsophisticated plaintiff, or, at worst, not entirely diligent about determining the identify of the guards, but it can hardly be said that “strategic choice” was the driving force behind respondent’s litigation behavior.

9

As amici for respondent explain, private prisons are exempt from much of the oversight and public accountability faced by the Bureau of Prisons, a federal entity. See, e.g., Brief for Legal Aid Society of New York as Amicus Curiae 8-25. Indeed, because a private prison corporation’s first loyalty is to its stockholders, rather than the public interest, it is no surprise that cost-cutting measures jeopardizing prisoners’ rights are more likely in private facilities than in public ones.

10

See also ante, at 1 (Scalia, J., concurring) (arguing that Bivens is a “relic of . . . heady days” and should be limited, along with Carlson v. Green, 446 U.S. 14 (1980), and Davis v. Passman, 442 U.S. 228 (1979), to its facts). Such hostility to the core of Bivens is not new. See, e.g., Carlson, 446 U.S., at 32 (Rehnquist, J., dissenting) (“[T]o dispose of this case as if Bivens were rightly decided would in the words of Mr. Justice Frankfurter be to start with an ‘unreality’ “). Nor is there anything new in the Court’s disregard for precedent concerning well-established causes of action. See Alexander v. Sandoval, 532 U.S. 275, 294-297 (2001) (Stevens, J., dissenting).

Liability and Private Correctional Facilities Primer Part 2: Smith v. Hope Village, Inc., No. 05-633 (RBW)(D.D.C. Apr. 12, 2007

Tuesday, October 27th, 2009

Liability involving private correctional program providers is complex. For those who wish to delve into it further, this is Part 2 of a multipart presentation of case law on the subject gleaned from The Insurance Defense Blog and other legal sources online. Scroll through the opinion to see the highlighted decision sections.  Keep in mind the decision does not attribute liability on the part of the private correctional facility and its staff, it simply denies the defense request for summary judgement.  Grounds for denial were that the defendant private correctional group and defendants did owe a duty to the community and the plaintiff as a matter of law. Having said that it is clear this judgment should give pause to managers in private correctional contracts since they did not have any direct control over the offender at the time of the killing and a significant period of time had passed since they did. Their argument that there was no proximate cause was also rejected and should also give pause to private correctional managers as they assess the exposure of their entities, their management and staff.

Meridian is a highly dynamic specialized insurance consulting group and broker  with offices in Boston, MA, Newport, RI and Brookfield, CT.  We are a hard-driving group with an entrepreneurial spirit who will work tirelessly for clients. Our Mission is simple.   We seek to help our clients make the best risk and risk transfer decisions possible.  We bring market-leading service to the most creative solutions in the risk management field to ensure that each Meridian client achieves their risk objectives.

In Smith v. Hope Village, Inc., No. 05-633 (RBW)(D.D.C. Apr. 12, 2007), the district court denied the defendant’s motion for summary judgment, in which the defendant had argued in part that, as a matter of law, a halfway house owes no duty to unknown parties with whom it has no relationship for harm caused by an offender previously housed at the halfway house approximately five months prior to the offender’s harmful act.

An inmate named Kelly had been released from prison into the custody of the Hope Village halfway house in December, 2001.  (Although the opinion doesn’t say, the pleadings indicate that the date was Dec. 12, 2001).  On March 7, 2002, less than three months later, Kelly was discharged from Hope Village and was placed under the supervision of the DC Court Services and Offender Supervision Agency.  About five months after that, on August 6, 2002, Kelly allegedly broke into a house in Silver Spring where he shot and killed two people — one of whom was the plaintiff’s nine year old daughter.

Kelly had a long rap sheet with numerous felonies, including one involving a loaded gun.

Plaintiff brought a wrongful death and survival action against Hope Village.  The theory of liability was that Hope Village was negligent in its supervision of Kelly, and as a result, the halfway house was responsible for his improper and untimely release into the community.  Plaintiff alleged that Hope Village knew, or should have known, of Kelly’s violations of the terms of his conditional release while at Hope Village, yet it never disciplined him.

In its motion for summary judgment, Hope Village argued, among other things, that it does not owe any legally cognizable duty to the plaintiff, or to any parties with whom it has no pre-existing relationship, for injuries resulting from Kelly’s criminal conduct five months after he was discharged from the halfway house program.  It also argued that there was no proximate cause due to a lack of foreseeability, and due to remoteness and superseding and intervening negligence.

In a lengthy opinion, Judge Walton rejected all of Hope Village’s arguments, finding that Hope Village did owe a duty to people in the local community such as the plaintiff and her daughter, and that the question of foreseeability was for the jury. Judge Walton also reinstated plaintiff’s wrongful death claim, finding that the 3 year statute of limitations under the Maryland Wrongful Death Act applied, not the shorter period of limitations under the D.C. Act.

Full post as published by Insurance Defense Blog on May 06, 2007


Liability and Private Correctional Facilities Primer Part 1: Holly vs. Scott et al US Court of Appeal 4th Circuit

Tuesday, October 27th, 2009

Liability involving private correctional program providers is complex. The key item to understand in this area is that in the US,  private correctional operators do not enjoy the same levels of immunity available to public officials  in the honest execution of their duties.  This puts an extra burden on private corrections which requires careful consideration of how the entity and its management and staff are exposed to liability. Very often the very managers who are facing this increased liability have come out of public roles in which their protections were vastly greater. This can contribute to a false sense of security and if you know the culture of corrections you can understand why.  But it is our role to protect clients and incidentally this is exactly why we believe our liability solutions should be a part of your contractual risk assessment and risk transfer program.

For those who wish to delve into private correctional liability further, this is Part 1 of a  presentation of case law on the subject gleaned from Open Jurist and other legal sources online.  The Parts are not presented in a chronological fashion but we believe we will touch on the scope of the issues over a multipart presentation and we hope it is helpful.  It is as dense argument but rich in reference and worth your time if you are interested in the nuances of the issues at hand.  The focus of this particular argument relates to federal not state issues.  Scroll through the opinion to see the highlighted decision sections.

Keep in mind the decision does not suggest the defendant could not be found liable it simply dismisses the case reversing the lower court decision as relates to points of law notably the Bivens action that the lower court had found as the core of the plaintiff’s argument.  The defendant’s motion for summary judgment under Bivens was ignored given the court’s position that they had jurisdiction to decide and dismiss the plaintiff’s case.  In dismissing the case, the court notes  that under state tort law the plaintiff has other recourse for his alleged injuries when lesser administrative alternatives failed.

Meridian is a highly dynamic specialized insurance consulting group and broker  with offices in Boston, MA, Newport, RI and Brookfield, CT.  We are a hard-driving group with an entrepreneurial spirit who will work tirelessly for clients. Our Mission is simple.   We seek to help our clients make the best risk and risk transfer decisions possible.  We bring market-leading service to the most creative solutions in the risk management field to ensure that each Meridian client achieves their risk objectives.

“Ricky Lee HOLLY, Plaintiff-Appellee,
v.
Willie SCOTT; Gaddy Lassiter, Defendants-Appellants.

No. 05-6287.

United States Court of Appeals, Fourth Circuit.

Argued September 19, 2005.

Decided January 12, 2006.

Mark Allen Davis, Womble, Carlyle, Sandridge & Rice, Raleigh, North Carolina, for Appellants. James Phillip Griffin, Jr., North Carolina Prisoner Legal Services, Inc., Raleigh, North Carolina, for Appellee.

Before WILKINSON and MOTZ, Circuit Judges, and R. BRYAN HARWELL, United States District Judge for the District of South Carolina, sitting by designation.

Reversed by published opinion. Judge WILKINSON wrote the opinion, in which Judge HARWELL joined. Judge MOTZ wrote a separate opinion concurring in the judgment.

OPINION

WILKINSON, Circuit Judge.

1

We granted interlocutory review in this case to decide whether individual employees of a privately operated prison face Eighth Amendment liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny for allegedly providing inadequate medical care to a federal inmate. We decline to extend the Bivens cause of action to these circumstances, both because the actions of the private prison employees are not fairly attributable to the federal government and because the inmate has adequate remedies under state law for his alleged injuries. We therefore reverse the district court’s order denying defendants’ motion to dismiss.

I.

2

Plaintiff Ricky Lee Holly is a federal inmate at Rivers Correctional Institution, a privately run facility in North Carolina operated by the GEO Group, Inc. under contract with the federal Bureau of Prisons. Defendant Willie Scott serves as Rivers’ warden, and defendant Gaddy Lassiter works as a physician there. Scott and Lassiter are both employed directly by GEO, and thus the only link between their employment and the federal government is GEO’s contract with the BOP.

3

Holly is a diabetic. He contends that since arriving at Rivers in August 2002, defendants have failed to provide him with adequate medical care for his condition. According to Holly, the medical staff at Rivers has ignored his complaints that his insulin dosage was insufficient, which resulted in frequent blackouts. He suggests that the lack of attention to his medical needs stems, at least in part, from failure to request his medical records from another facility where he had been incarcerated previously. He further claims that in retaliation for a written complaint regarding the medical department, Lassiter ordered that he be locked in the medical unit for twenty-four days and threatened to keep him there for the remainder of his sentence.

4

After unsuccessfully seeking relief through an administrative scheme provided by Rivers, Holly filed a pro se complaint against Scott and Lassiter in federal district court. The district court read Holly’s complaint as alleging a violation of his Eighth Amendment rights and stating a Bivens cause of action for damages.

5

Defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing thatBivens and its progeny do not support a cause of action against individual employees of a private correctional facility. The district court denied the motion, finding that Holly’s claim satisfied the three preconditions for a Bivens remedy as specified in Hall v. Clinton, 235 F.3d 202, 204 (4th Cir.2000). Congress had neither created an exclusive statutory remedy nor expressly precluded money damages, and the district court found no “special factors counselling hesitation in the absence of affirmative action by Congress.” Hall, 235 F.3d at 204 (internal quotation marks omitted). We subsequently granted defendants’ petition for an interlocutory appeal.

6

We review de novo a district court’s denial of a motion to dismiss under Rule 12(b)(6).1 Anita’s New Mexico Style Mexican Food, Inc. v. Anita’s Mexican Foods Corp., 201 F.3d 314, 319 (4th Cir.2000).

II.

7

In Bivens, the Supreme Court held that “violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages,” despite the absence of any federal statute creating liability. 403 U.S. at 389, 91 S.Ct. 1999. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), extended Bivens to recognize an implied damages action against federal prison officials for violation of the Eighth Amendment. The question in this case is whether Carlson should itself be extended to allow a similar remedy against employees of a private corporation operating a prison.

8

Holly contends that a judicially implied cause of action for damages in his case follows logically from Bivens andCarlson. We disagree. The Bivens cause of action is not amenable to casual extension. Indeed, quite the opposite is true.

9

The Supreme Court has “responded cautiously to suggestions that Bivens remedies be extended into new contexts.”Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). “In [over] 30 years of Bivensjurisprudence [the Court has] extended its holding only twice.” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). The first time was in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), where the Court recognized that a female deputy administrative assistant could claim damages under the Fifth Amendment’s Due Process Clause against a Congressman who had fired her on the basis of her gender. The second was Carlson’s extension of Bivens to Eighth Amendment suits against federal prison officials. 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15.

10

Since the Carlson decision in 1980, the Court has consistently declined to extend Bivens beyond these well-demarcated boundaries. See Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (no Bivens action for employee who suffered adverse employment action allegedly in violation of First Amendment because Congress had provided remedial scheme); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (no Bivensaction arising out of military service); Schweiker, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (no Bivens action for alleged due process violation in denying Social Security benefits because Congress had set up a remedial scheme);Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (no Bivens action against federal agency); Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (no Bivens action against private corporation operating federal correctional facility).

11

The Court’s repeated reluctance to extend Bivens is not without good reason. A Bivens cause of action is implied without any express congressional authority whatsoever. This is hardly the preferred course. The Supreme Court has “recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.” Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 2762-63, 159 L.Ed.2d 718 (2004); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (abandoning the idea of a substantive federal common law). The Court has therefore on multiple occasions declined to extend Bivens because “Congress is in a better position to decide whether or not the public interest would be served” by the creation of “new substantive legal liability.” Schweiker, 487 U.S. at 426-27, 108 S.Ct. 2460 (internal quotation marks omitted); Bush, 462 U.S. at 390, 103 S.Ct. 2404 (same).

12

Congress possesses a variety of structural advantages that render it better suited for remedial determinations in cases such as this. Unconstrained by the factual circumstances in a particular case or controversy, Congress has a greater ability to evaluate the broader ramifications of a remedial scheme by holding hearings and soliciting the views of all interested parties. See, e.g., Bush, 462 U.S. at 389, 103 S.Ct. 2404. And by debating policies and passing statutes rather than deciding individual cases, Congress has increased latitude to implement potential safeguards — e.g., procedural protections or limits on liability — that may not be at issue in a particular dispute.

13

As the last twenty-five years of Bivens jurisprudence demonstrate, so well-suited is Congress to determine the policies pertaining to a remedial scheme that neither the absence nor the incompleteness of such a scheme represents an invitation for a court to step in to correct what it may perceive as an injustice toward an individual litigant. See Malesko, 534 U.S. at 69, 122 S.Ct. 515 (citing Bush and Lucas). Here, for example, there are a variety of statutes authorizing the housing of federal inmates in privately operated facilities. See, e.g., 18 U.S.C. § 4013(b) (2000). Congress passed these statutes in the belief that private management would in some circumstances have comparative advantages in terms of cost, efficiency, and quality of service. To add a federal damages remedy to existing avenues of inmate relief might well frustrate a clearly expressed congressional policy.

14

In light of the governing precedents, we have stated that a plaintiff seeking a Bivens remedy must satisfy a three-part test. “[A] court must determine that (1) Congress has not already provided an exclusive statutory remedy; (2) there are no special factors counselling hesitation in the absence of affirmative action by Congress; and (3) there is no explicit congressional declaration that money damages not be awarded.” Hall, 235 F.3d at 204 (internal quotation marks omitted). While the first and third prongs are satisfied by Congress’s silence regarding remedies for plaintiffs in Holly’s position, Holly cannot satisfy the second.

III.

15

This case presents two “special factors counselling hesitation,” each of which independently precludes the extension of Bivens. First, defendants are private individuals, not government actors. Second, Holly has an adequate remedy against defendants for his alleged injuries under state law.

16

It is in fact an understatement to consider these “special factors counselling hesitation.” Governmental action and the lack of another legal remedy against individual defendants represent critical justifications for the very existence of the Bivens doctrine. To judicially infer a cause of action where these elements are absent would be to release that doctrine from its moorings and cast it adrift.

A.

17

The first factor counseling hesitation is that defendants’ actions are not “fairly attributable” to the federal government. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). It is uncontested that defendants are employees of GEO, a wholly private corporation in which the federal government has no stake other than a contractual relationship. We decline to extend Bivens to impute liability in such circumstances.

1.

18

Whatever our power to recognize new constitutional torts, we are not free to ignore the importance of a party’s private status in our constitutional scheme. The Bill of Rights is a negative proscription on public action — to simply apply it to private action is to obliterate “a fundamental fact of our political order.” Lugar, 457 U.S. at 937, 102 S.Ct. 2744. Statutory and common law, rather than the Constitution, traditionally govern relationships between private parties. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). By placing limits upon the Constitution’s application, we “preserve[ ] an area of individual freedom by limiting the reach of federal law and federal judicial power.” Lugar, 457 U.S. at 936, 102 S.Ct. 2744. This area of personal freedom is one of the important structural features of our founding document. See Edmonson, 500 U.S. at 619, 111 S.Ct. 2077.

19

Neither we nor the Supreme Court has had occasion to consider whether and to what extent Bivens liability may apply to private citizens.2 As a threshold matter, we harbor some doubt as to whether such liability would ever be appropriate. Each of the defendants in Bivens, Davis, and Carlson were in the direct employ of the federal government.See Bivens, 403 U.S. at 389, 91 S.Ct. 1999 (liability for “agents of the Federal Bureau of Narcotics”); Davis, 442 U.S. at 230, 99 S.Ct. 2264 (liability for “United States Congressman”); Carlson, 446 U.S. at 16, 100 S.Ct. 1468 (liability for “federal prison officials”). As we have already discussed, there are ample reasons for the Court’s reluctance to expand the boundaries of this judicially created cause of action beyond where those cases have placed them. Moreover, the Supreme Court has recently stated that “[t]he purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Malesko, 534 U.S. at 70, 122 S.Ct. 515 (emphasis added). It is unclear how permitting a lawsuit against an individual who is not a federal officer could serve this purpose.

20

We need not decide this issue now, however. Even assuming that Bivens liability is sufficiently expansive to encompass at least some private individuals, our constitutional scheme necessarily constrains its scope. In the context of constitutional claims under 42 U.S.C. § 1983, which expressly applies to individuals acting “under color of” state law, courts have recognized the need to limit the liability of private persons through application of the “state action” doctrine. Lugar, 457 U.S. at 935, 102 S.Ct. 2744. Under this doctrine, we “insist [ ]” as a prerequisite to liability “that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Id. at 937, 102 S.Ct. 2744. By doing so, we maintain the Bill of Rights as a shield that protects private citizens from the excesses of government, rather than a sword that they may use to impose liability upon one another. Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). “Without a limit such as this,” the constitutional order would be disrupted because “private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.” Lugar, 457 U.S. at 937, 102 S.Ct. 2744.

21

There exists ample reason to be even more cautious about imputing liability to private actors under Bivens than under § 1983. Section 1983 is a congressional enactment that expressly creates liability for “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia” deprives an individual of any “rights, privileges, or immunities secured by the Constitution” or other federal law.

22

Bivens, on the other hand, is a device of judicial creation. Although it shares some features with § 1983 — e.g., the qualified immunity analysis is the same under both, see Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) — the Supreme Court “ha[s] never expressly held that the contours of Bivens and § 1983 are identical.”3Malesko, 534 U.S. at 82, 122 S.Ct. 515 (Stevens, J., dissenting). Application of Bivens to private individuals simply does not find legislative sanction. Under such circumstances, the danger of federal courts failing “to respect the limits of their own power,” Lugar, 457 U.S. at 936-37, 102 S.Ct. 2744, increases exponentially.

2.

23

We have recognized that there is “no specific formula” for determining whether state action is present. Hicks v. S. Md. Health Sys. Agency, 737 F.2d 399, 402 n. 3 (4th Cir.1984) (internal quotation marks omitted). “What is fairly attributable [to the state] is a matter of normative judgment, and the criteria lack rigid simplicity.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). While a variety of factors may bear upon the inquiry, none is individually dispositive; instead, they serve to inform an evaluation of the “totality of the circumstances.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir.2000); see also Mentavlos v. Anderson, 249 F.3d 301, 311-12 (4th Cir.2001) (cataloging various approaches to determining state action).

24

The alleged actions of these defendants were not of a sufficiently federal character to create constitutional liability. Defendants are not federal officials, federal employees, or even independent contractors in the service of the federal government. Instead, they are employed by GEO, a private corporation. There is no suggestion that the federal government has any stake, financial or otherwise, in GEO. See, e.g., DeBauche v. Trani, 191 F.3d 499, 507-08 (4th Cir.1999) (recognizing the high degree of interdependence necessary for private enterprise to become state action). Nor is there any suggestion that federal policy played a part in defendants’ alleged failure to provide adequate medical care, or that defendants colluded with federal officials in making the relevant decisions. See, e.g., Hicks, 737 F.2d at 403 (finding private entity was not a federal actor where government did not regulate relevant procedures, did not “control policy directives,” and had “minimal influence over [defendant's] day-to-day functioning”). To be sure, GEO, like a great many private corporations, does business under contract with the government. But this is not by itself enough to subject it to constitutional liability, see Rendell-Baker v. Kohn, 457 U.S. 830, 840-41, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), let alone to create such liability for its individual private employees.

25

Holly argues, however, that liability exists here by virtue of the fact that GEO’s particular business involves prisons and is thus a “public function.” The “`public function’ theory” recognizes the existence of “narrow circumstances” where state action arises from the “`exercise by a private entity of powers traditionally exclusively reserved to the State.’” Andrews v. Fed. Home Loan Bank of Atlanta, 998 F.2d 214, 218 (4th Cir.1993) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Those circumstances are not present here, however. The Supreme Court’s analysis in Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997), precludes argument that the operation of a prison is a traditionally exclusive state function.

26

Richardson involved a § 1983 suit against prison guards employed by a private prison management corporation under contract with the state of Tennessee. Id. at 401-02, 117 S.Ct. 2100. The Court did not decide whether § 1983 permitted such a suit and addressed only the narrow question whether the guards should receive qualified immunity.See id. at 413, 117 S.Ct. 2100. The Court decided that they should not, in part because “correctional functions have never been exclusively public.” Id. at 405, 117 S.Ct. 2100. The Court’s historical analysis revealed that the private operation of jails and prisons existed in the United States in the eighteenth and nineteenth centuries, id. at 405, 117 S.Ct. 2100, and in England the practice dated back to the Middle Ages, id. at 407, 117 S.Ct. 2100. Therefore, under the test articulated in Jackson, the operation of prisons is not a “public function.”

27

Holly attempts to sidestep the analysis in Richardson in two ways. First, he urges that the “function” to which we should look is not the administration of a prison, but rather the power to keep prisoners under lock and key. This argument misapprehends the proper nature of our inquiry. In determining the presence of state action, we are not to conduct a far-flung investigation into all of a defendant’s possible activities, but rather must focus on “`the specific conduct of which the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)); see also Blum, 457 U.S. at 1003, 102 S.Ct. 2777 (“Faithful adherence to the `state action’ requirement … requires careful attention to the gravamen of the plaintiff’s complaint.”). The inadequate medical care alleged in this case unquestionably arises out of defendants’ operation of the prison, not the fact of Holly’s incarceration. If Holly’s complaint were in fact that he is being held unlawfully, he would have filed a statutory habeas action under 28 U.S.C. § 2255, not a Bivens claim.

28

Second, Holly reads West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), to suggest that the provision of medical care to an inmate is always a public function, regardless of what entity operates the correctional facility where he is housed. West cannot bear the weight that Holly would place upon it. There, the Supreme Court held that “a physician employed by North Carolina to provide medical services to state prison inmates[ ] acted under color of state law for purposes of § 1983.” 487 U.S. at 54, 108 S.Ct. 2250; see also Conner v. Donnelly, 42 F.3d 220 (4th Cir.1994) (state action to treat prisoner housed in state-run facility even where physician had no contract with state and provided care outside prison). Even assuming we would consider liability under Bivens coextensive with § 1983 under such circumstances, West instructs that “the dispositive issue” in the state action inquiry “concerns the relationship among the State, the physician, and the prisoner.” West, 487 U.S. at 56, 108 S.Ct. 2250. That relationship is very different in this case, where the correctional facility is privately run, than in West and Conner, where the state itself was directly responsible for managing the prison. See West, 487 U.S. at 43-44, 108 S.Ct. 2250 (noting that the “state-prison hospital” was “operated by the State”); Conner, 42 F.3d at 221 (noting that the question presented concerned “an inmate of a state-run prison”); see also West 487 U.S. at 56 n. 15, 108 S.Ct. 2250 (recognizing that physician’s “delivery of medical care was not unaffected by the fact that the State controlled the circumstances and sources of a prisoner’s medical treatment”).

29

Richardson demonstrates that this distinction between public and private correctional facilities is critical. The state’s responsibilities are necessarily greater when it undertakes direct authority over prisoners’ day-to-day care. We cannot conclude that provision of medical care in a private prison is somehow a “public function” while maintaining fidelity toRichardson that the prison’s general operation is not.

30

In addition to settling the issue whether defendants are liable for performing a public function, Richardson undercuts Holly’s argument in another respect as well. Since qualified immunity under Bivens and § 1983 are identical, see Butz,438 U.S. at 504, 98 S.Ct. 2894, were we to find defendants potentially liable, the holding of Richardson would preclude us from granting them a qualified immunity defense. This would put prisoners in private facilities in a more favorable position than their counterparts in federally operated prisons: they would be eligible to recover damages even where the unconstitutionality of the prison officials’ conduct had not been clearly established by prior judicial decisions. In the absence of statutory authority, we are reluctant to create an anomaly whereby private defendants face greater constitutional liability than public officials. See Malesko, 534 U.S. at 71-72, 122 S.Ct. 515 (finding “no reason … to consider extending Bivens” in part because “no federal prisoners enjoy [plaintiff's] contemplated remedy”).

31

In sum, even if there did exist circumstances where a private party could be subject to liability under Bivens, this case does not present them. Both judicial restraint in the creation of extra-statutory remedies and the doctrine of state action compel us to refrain from extending Bivens liability to the individual employees of a private corporation operating a correctional facility.4

B.

32

In addition to the issue of government action, a second independent factor counseling hesitation is that Holly possesses alternative — and arguably superior — causes of action against defendants under the state law of negligence. The dangers of overreaching in the creation of judicial remedies are particularly acute where such remedies are unnecessary. We decline to invite such dangers by recognizing Bivens liability here.

33

The Supreme Court has extended Bivens in only two circumstances. Malesko, 534 U.S. at 70, 122 S.Ct. 515. One has been “to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct.” Id. This was the rationale both for Bivens itself and for Davis, where the plaintiffs’ injuries would have gone entirely unredressed without an implied constitutional remedy. See id. at 74, 122 S.Ct. 515 (noting that each case involved “a plaintiff in search of a remedy”); Davis, 442 U.S. at 245, 99 S.Ct. 2264 (recognizing damages remedy where “[f]or Davis, as for Bivens, it is damages or nothing”) (internal quotation marks omitted);Bivens, 403 U.S. at 394, 91 S.Ct. 1999 (recognizing damages remedy where state law “may be inconsistent or even hostile” to interests protected by the Fourth Amendment).

34

The other rationale for extension of Bivens has been “to provide an otherwise nonexistent cause of action againstindividual officers alleged to have acted unconstitutionally.” Malesko, 534 U.S. at 70, 122 S.Ct. 515. This was the rationale behind Carlson, where relief was available only against the government itself, and not against the individual tortfeasors. See id. at 74, 122 S.Ct. 515 (noting that in Carlson “a cause of action against an individual officer” was “otherwise lacking”); Carlson, 446 U.S. at 21, 100 S.Ct. 1468 (discussing the fact that the plaintiff’s Federal Tort Claims Act remedy did not allow for recovery against the individual officers responsible for violating his rights).

35

But “where [these two] circumstances are not present,” the Court has “consistently rejected invitations” to enlarge the scope of the judicially created Bivens remedy. Malesko, 534 U.S. at 70, 122 S.Ct. 515. Neither circumstance is present here. Holly does not contest that state law provides him with an “alternative remedy” and that this alternative remedy includes a “cause of action against individual officers.” North Carolina law in fact supplies Holly with multiple potential claims against the individual defendants. See, e.g., Summey v. Barker, 154 N.C.App. 448, 573 S.E.2d 534, 536 (N.C.Ct.App.2002) (suit by hemophiliac detainee for, inter alia, negligence, medical negligence, and cruel and unusual punishment, based upon authorities’ and doctors’ failure to properly treat his nosebleed). These claims include the possibility of recovering punitive damages if he can prove by clear and convincing evidence that defendants’ conduct was willful, wanton, or malicious. N.C. Gen.Stat. § 1D-15 (2003). In addition to his causes of action against the individual defendants, he can also sue GEO under a respondeat superior theory. See Johnson v. Lamb, 273 N.C. 701, 161 S.E.2d 131, 137 (1968).

36

Holly’s reliance upon Carlson as supporting his Bivens action here is therefore unpersuasive. The key feature ofCarlson was that, unlike this case, it presented a situation where the plaintiff sought “a cause of action against an individual officer” that was “otherwise lacking.” Malesko, 534 U.S. at 74, 122 S.Ct. 515. As opposed to the various state law causes of action against defendants and against GEO that are available to Holly, the Carlson plaintiff’s “only alternative” to a Bivens claim “was a Federal Tort Claims Act (FTCA) claim against the United States.” Id. at 68, 122 S.Ct. 515; see 446 U.S. at 16-17, 100 S.Ct. 1468. This placed Carlson squarely within the circumstance where extendingBivens “provide[d] an otherwise nonexistent cause of action against individual officers.” Malesko, 534 U.S. at 70, 122 S.Ct. 515 (emphasis removed); see also id. at 71, 122 S.Ct. 515 (“core premise” of Bivens is the “deterrence of individual officers”); Meyer, 510 U.S. at 485, 114 S.Ct. 996 (“[T]he purpose of Bivens is to deter the officer.“). Indeed, it is precisely because an inmate in a federally run facility has a cause of action against the government itself under the FTCA that he lacks the types of state law claims against individual defendants that are available to Holly. See 28 U.S.C. § 1346(b)(1) (2000) (creating a cause of action against the United States for the negligence of its employees); id. § 2679(b)(1) (precluding any other cause of action against the federal employee under such circumstances).

37

We agree therefore with the only other circuit to address this issue that an inmate in a privately run federal correctional facility does not require a Bivens cause of action where state law provides him with an effective remedy.See Peoples v. CCA Detention Ctrs., 422 F.3d 1090, 1103 (10th Cir.2005). Holly already enjoys claims that an inmate in a government-run facility would not have. In requesting that we also grant him a Bivens claim — indeed, that we grant him a superior one in which qualified immunity is unavailable — Holly seeks much more than is necessary to remedy his alleged injuries. This is not a circumstance under which the extension of a judicially implied remedy is appropriate.

IV.

38

The judgment of the district court is therefore reversed and the case is remanded with directions that it be dismissed.

REVERSED

Notes:

1

There is no need for us to review the denial of defendants’ 12(b)(1) motion, because our jurisdiction over Holly’s complaint is readily apparent. Whether a remedy exists for a plaintiff alleging a violation of his constitutional rights is itself a question of federal law sufficient to confer federal jurisdictionSee Bell v. Hood, 327 U.S. 678, 683-85, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

2

The Supreme Court’s most recentBivens decision noted that the question of “whether a Bivens action might lie against a private individual” was not presented. Malesko, 534 U.S. at 65, 122 S.Ct. 515. In that case, the Court held that an inmate in a private correctional facility could not bring a Bivens suit against the corporation operating the facility. 534 U.S. at 63, 122 S.Ct. 515. While the Court’s logic rested in part on its conclusion that Bivens creates individual liability rather than corporate liability, this does not answer the expressly withheld question whether Bivens creates liability for private individuals.

3

It is an open question in this circuit whether § 1983 imposes liability upon employees of a private prison facility under contract with a state. We need not decide that issue here

4

Our concurring colleague would create out of whole cloth constitutional liability for private employees of a private corporation. The concurrence sees no distinction between § 1983 andBivens remedies, and intermingles the caselaw of both to argue that defendants are “government actors.” But there is a world of distinction between § 1983 and Bivens remedies. Congress has authorized the former, and Congress has in no way authorized the latter. Contrary to the concurrence’s intimation, therefore, it is impossible to create a “circuit split” with § 1983 cases which do not even address the issue before this court.

Ironically, the concurrence contends the majority itself intermingles § 1983 and Bivens, but the concurrence misses the critical point: the majority has used § 1983 to buttress the importance of Congress’s role, not to undermine it. The majority has never relied on § 1983 or any other express cause of action created by Congress to extend liability for damages under a cause of action that Congress has not seen fit to create. And it certainly has not done so in the face of repeated Supreme Court admonitions that Bivens remedies are to be carefully circumscribed. If Congress wishes to adopt the concurrence’s position and extend the Bivens cause of action to private employees of private entities, it has only to do so. The fact that it has not done so, however, gives the concurrence no license to use § 1983 or any other provision to create causes of action on its own.

This intermingling of § 1983 and Bivens cases leads the concurrence to misread Malesko. The concurrence acknowledges thatMalesko “did not reach the precise question of whether a Bivens action would lie against individual `private correctional providers,’” but then asserts that the decision nevertheless “expressly recognize [d]” that “such individuals are government actors … subject to suit.” Concurring Op. at 299. It relies for this contradictory assertion on a half-sentence in a footnote suggesting that private correctional employees could be liable under § 1983. See id. (citing 534 U.S. at 72 n. 5, 122 S.Ct. 515). This half-sentence did not purport to hold that private employees were liable under § 1983, because that issue was not before the Court. And it certainly cannot be read to imply the much more aggressive holding that a judicially implied Bivens remedy would extend to the private employees of a private company. See supra note 2 (noting that the Court did not intend to so hold).

Finally, we cannot agree with the concurrence’s assertion that “defendants perform a public function.” Concurring Op. at 299. As we have discussed, Richardson rather than West is controlling when a privately run correctional facility is at issue. With all due respect to the concurrence, we lack the power to displace Richardson’s determination of historical fact that “correctional functions have never been exclusively public.” 521 U.S. at 405, 117 S.Ct. 2100. And we likewise lack the power to imply private causes of action for damages against private individuals in private facilities without congressional input and to the utter exclusion of the legislative function.

39

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment:

40

The majority’s holding that private correctional employees are not governmental actors ignores or misreads controlling Supreme Court case law. Those cases, as well as numerous cases from other federal courts, establish that individual private correctional providers are government actors subject to liability as such. Accordingly, I cannot join the majority opinion. However, because Ricky Holly possesses an alternative remedy for his alleged injuries, no action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), lies in this case. For that reason alone, I concur in the judgment.

I.

41

The strictures of the Constitution generally apply only to public action. However, when private individuals take actions attributable to the government, they are liable, as government actors, for damages resulting from their constitutional violations. See, e.g., Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (“Conduct that is formally `private’ may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.”). In this case, the government has delegated its authority to the privately employed defendants, empowering them to incarcerate, to confine, to discipline, to feed, and to provide medical and other care to inmates who are imprisoned by order of the federal government. The defendants are acting as agents of the government; their actions are thus clearly attributable to the federal government, and a prisoner must be able to seek redress from the defendants if they cause him constitutional injury. Therefore, if Holly had no alternative remedy for the alleged deprivation of his constitutional rights, it seems to me that he could certainly bring a Bivens action against these defendants.

42

As the majority itself recognizes — nothwithstanding its response to this concurrence, ante at 294-95 n. 4, which I address post at 301-03—the determination of whether the defendants are governmental actors for Bivens purposes rests on the “state action” principles developed by the Supreme Court in cases involving liability of private persons under 42 U.S.C. § 1983 (2000). See ante at 290-91, 292-93 (citing and relying on numerous § 1983 state action cases). But what the majority fails to recognize is that under this case law, the defendants here — individual private prison guards — are indeed governmental actors. In these cases, the Supreme Court has held that, in general, when a private person acts under authority given to him by the government, or is fulfilling an obligation or responsibility that is traditionally a public function, his conduct will be imputed to the government and thus considered government action for purposes of imposing liability. See, e.g., Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (all cited by the majority). Moreover, applying these principles, the Court has concluded that private correctional employees are governmental actors.

43

First, almost thirty years ago, the Court recognized an obligation on the part of the government’s correctional employees “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (holding that the federal government has the same obligation). The Estelle Court explained that necessity compelled this holding: “[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.” Id. Accordingly, the Court held that an inmate could bring a § 1983 action for Eighth Amendment violations against various state correctional employees, including a prison physician, for failing to provide adequate medical care. Then, almost twenty years ago, in West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), the Court extended that obligation to private correctional employees under contract with the state, holding that a prisoner could bring a § 1983 action against a private doctor rendering medical care to inmates because the acts of the doctor were attributable to the government.

44

Tellingly, in West a majority of the Fourth Circuit had refused to so hold, reasoning that the private doctor was not a governmental actor. West v. Atkins, 815 F.2d 993, 994 (4th Cir.1987) (en banc). After noting that every other circuit to consider the question had implicitly or explicitly rejected the Fourth Circuit’s view, the Supreme Court unanimously reversed. West, 487 U.S. at 47-48 & n. 7, 54, 108 S.Ct. 2250. Moreover, the Court held that the approach of the en banc Fourth Circuit majority misread and misunderstood prior Supreme Court precedent in its failure to recognize that a private doctor, “authorized and obliged” by the government to treat prison inmates, is a government actor subject to liability as such. Id. at 55, 108 S.Ct. 2250.

45

The mere fact that the government did not directly employ the private doctor in West did not preclude him from being a governmental actor. The Supreme Court explained that government action derives from the individual’s “function within the state system, not the precise terms of his employment.” Id. Under this standard, the Court found no relevant distinction between the publicly employed doctors in Estelle and the private doctor in West. Id. As with its public employees, the government was liable for the private doctor’s Eighth Amendment violations because the government had invested the doctor with power “to provide medical services to state prison inmates.” Id. at 54, 108 S.Ct. 2250. If the doctor misused that power, “the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish [the inmate] by incarceration and to deny him a venue independent of the State to obtain needed medical care.” Id. at 55, 108 S.Ct. 2250. Because the private doctor was “fully vested with state authority to fulfill essential aspects” of his duties, the doctor must “be considered to be a state actor.” Id. at 57, 108 S.Ct. 2250.

46

So it is in this case. The defendants have been “fully vested” with the governmental authority to “fulfill essential aspects” of their duties, e.g., confinement and care of prisoners incarcerated by the government. The defendants perform a public function delegated to them by the federal government, and they assume the necessary obligations inherent in that function. The assumption and performance of these critical governmental duties and the role these individuals play in the penal system surely put more at stake here than the mere “contractual relationship” dismissed by the majority. See ante at 290-91. Rather, just as in West, any alleged constitutional harm suffered by Ricky Holly was caused “in the sense relevant for [government]-action inquiry” by the government’s power to punish and incarcerate him, depriving him of alternative means of care independent of the government. West, 487 U.S. at 55, 108 S.Ct. 2250. And, as in West, the fact that the defendants are not direct employees of the government does not in any way alter their fundamental obligations, for it is their “function within the [federal] system, not the precise terms of [their] employment” that makes their conduct governmental action. Id. Accordingly, again as in West, the defendants are “possessed of [governmental] authority” and so must be considered governmental actors. Id. at 56 n. 15, 108 S.Ct. 2250.

47

The Supreme Court has never retreated from its holding in West. Indeed, only four years ago, in its most recentBivens case, the Court specifically acknowledged that individual private correctional providers (not just private prison doctors) are government actors. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). In Malesko, the Court did not reach the precise question of whether a Bivens action would lie against individual “private correctional providers,” but it did expressly recognize that such individuals are government actors whose conduct is attributable to the government; thus, they would, in the appropriate case, be subject to suit on that basis. Id. at 72 n. 5, 122 S.Ct. 515 (noting that prisoners “enjoy a right of action against private correctional providers under 42 U.S.C. § 1983″).

48

The majority ignores Malesko’s express acknowledgment that individual private correctional providers are government actors and unconvincingly dismisses the strikingly similar West precedent as “very different.” Ante at 294.1 Instead of following Malesko and West, binding Supreme Court precedent as to the liability of private correctional employees as government actors, the majority relies on a case involving a question not presented here — whether private persons sued as government actors under § 1983 enjoy qualified immunity for their actions. See Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997).

49

The majority posits that Richardson (which, of course, predates Malesko) “precludes argument that the operation of a prison is a traditionally exclusive state function” and that therefore, private correctional providers are not government actors for purposes of imposing liability. Ante at 293. But Richardson does nothing of the sort; the case deals only with a private person’s immunity from liability. Richardson, 521 U.S. at 401, 413, 117 S.Ct. 2100. That question, as the Supreme Court has acknowledged, does not control the separate question of whether a private party can be liable as a governmental actor. See Wyatt v. Cole, 504 U.S. 158, 168-69, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (holding certain “private defendants” not entitled to the qualified immunity afforded government officials but remanding for determination as to whether they are liable as government actors); see also, United States v. Thomas, 240 F.3d 445, 448-49 (5th Cir.2001) (holding employee of private detention center a “public official” for purposes of the Federal Bribery Statute and distinguishing Richardson on the ground that “policy considerations supporting private corrections officers’ not being entitled to qualified immunity are quite different from those concerning whether they are `public officials’ for purposes of the federal bribery statute”).

50

The fact is that, at least in this country, incarceration of those charged with committing crimes is, and always has been, the province and prerogative of the government. That historically immunity has not been afforded those performing some correctional duties demonstrates only that the government has delegated some of its correctional functions to private actors. Richardson, 521 U.S. at 405-07, 117 S.Ct. 2100. These correctional functions have not been “exclusively public,” id., only in the sense that private individuals have long been empowered by the government to fulfill the tasks involved in the fundamentally governmental function of incarceration of criminals. But this government delegation of some duties to private persons or entities does not change the public character of the underlying function performed by “private correctional providers,” as the Court recognized in Malesko, 534 U.S. at 72 n. 5, 122 S.Ct. 515.

51

Indeed, in Richardson itself, the Court recognized that its historical discussion did not apply to questions of governmental action. After concluding that the defendants lacked qualified immunity, the Richardson Court remanded for a determination of whether the defendants were, in fact, liable as governmental actors for their operation, confinement, and care of inmates. Richardson, 521 U.S. at 413, 117 S.Ct. 2100. If the Court’s historical analysis of “public function” for immunity purposes were meant to control the “public function” determination for liability purposes — as the majority holds today — the Court would not have needed to remand the case at all.

52

Certainly, incarcerating and caring for those confined by the government for criminal conduct is just as much a public function as maintaining a park, Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), running an election, Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), or operating a company town, Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). All of these functions “traditionally serve[ ] the community” no matter who performs them, and surely the “predominant character and purpose” of a prison is as governmental as these other functions. Evans, 382 U.S. at 302, 86 S.Ct. 486. Thus, those performing the fundamental governmental function at issue here, like those in Evans, Terry, and Marsh, are governmental actors whether publicly or privately employed and are subject to liability as such.2

53

Numerous courts have so held, both before and after Richardson. See, e.g., Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir.2003) (holding that employees of a private correctional facility perform a “fundamentally government function” — “confinement of wrongdoers” — and so are government actors for § 1983 purposes); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996) (same); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (explaining that employees of private health corporation are state actors when performing the public function of providing required medical services to inmates); Sarro v. Cornell Corr., Inc., 248 F.Supp.2d 52, 60-62 (D.R.I.2003) (holding that employees of a private operator of a prison facility perform a government function traditionally reserved to the government and are government actors for Bivens purposes); Palm v. Marr, 174 F.Supp.2d 484, 487-88 (N.D.Tex.2001) (holding that employees of a private prison facility exercise powers that are traditionally the exclusive prerogative of the state and so are governmental actors for § 1983 purposes); Giron v. Corr. Corp. of Am., 14 F.Supp.2d 1245, 1249 (D.N.M.1998) (holding that “[t]he function of incarcerating people, whether done publicly or privately, is the exclusive prerogative of the state”); Kesler v. King, 29 F.Supp.2d 356, 370-71 (S.D.Tex.1998) (concluding that “the incarceration of inmates … falls within the exclusive responsibility of the state” and so holding that the warden of a private correctional facility is a governmental actor subject to § 1983 liability); Nelson v. Prison Health Servs., Inc., 991 F.Supp. 1452, 1463 (M.D.Fla.1997) (explaining that nurses employed by private company providing medical services for a jail are considered state actors for § 1983 liability).

54

In holding to the contrary, the majority disregards all of this authority and creates a circuit split. Indeed, like the en banc majority in West, the majority’s view stands alone among the federal circuits addressing this point. Cf. Rosborough,350 F.3d at 461; Street, 102 F.3d at 814; Ancata, 769 F.2d at 703.3 Even more disturbingly, the majority, again like theen banc majority in West, misreads and misunderstands Supreme Court precedent. Pursuant to that precedent, the defendants here were clearly exercising authority fairly attributable to the government and so are government actors for liability purposes.

55

The only substantive response the majority offers to this concurrence is an argument that because § 1983 actions are statutory and Bivens actions judicially created, I err in relying on § 1983 precedent in this Bivens case. See ante at 294-95 n. 4.4 This argument utterly fails.

56

While different in origin, § 1983 and Bivens actions are identical in the respect critical here — both involve imposition of liability on governmental actors for constitutional violations. In view of the scarcity of cases discussing governmental actor status under federal law, § 1983 cases determining the liability of private persons as state actors provide valuable guidance when determining the liability of private persons as federal actors. See e.g., Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3rd Cir.2001) (explaining that a Bivens action is “the federal equivalent of the § 1983 cause of action,” and holding in a Bivens case that “[i]n order to determine whether the conduct of a private party should be attributable to the federal government, courts apply the `state action’ analysis set forth by the Supreme Court” in § 1983 cases). See also, Edmonson, 500 U.S. at 621-22, 111 S.Ct. 2077 (explaining, in a case involving a federal actor, that “certain principles of general application” should be applied to determine “whether a particular course of conduct is governmental in character”). In fact, despite its lengthy footnote criticizing me, earlier in its opinion the majority itself cites § 1983 “state action” cases as providing the principles to be followed in determining whether the private defendants here are government actors. See ante at 290-91, 292-93.

57

Indeed, the majority builds its entire holding that the defendants are not government actors on a § 1983 case. In doing so, however, the majority eschews the relevant § 1983 precedent it initially cites, and instead commits the very sin it accuses me of — “intermingling” cases from different “worlds.” Id. at 294-95 n. 4. For the majority can conclude that the defendants are not government actors only by holding that Richardson, a § 1983 qualified immunity case, “is controlling” on the very different question presented here — whether a private person is liable as a governmental actor. Id. That the majority holds a defendant’s entitlement to qualified immunity “controls” his liability — when the Supreme Court expressly refused to do so both in Wyatt and Richardson itself — speaks volumes.

58

Thus, in its attempt to counter my concurrence, the majority is forced into the untenable position of disavowing clearly relevant precedent on which it itself otherwise relies, and then finding “controlling” an inapposite case dealing with a wholly different issue. The majority must steadfastly rely on an immunity case and resolutely refuse to acknowledge the applicability of the cases dealing with the liability of government actors because to do otherwise makes the conclusion I have reached — that the defendants are indeed government actors — inescapable.

II.

59

Although Supreme Court precedent thus dictates that the defendants here are governmental actors, the Court has indicated that a court should not imply a Bivens cause of action against government actors if the plaintiff possesses an alternative remedy.5 Because Holly possesses an alternative remedy against the defendants under state tort law, I must concur in the judgment.

60

In Peoples v. CCA Detention Ctrs., 422 F.3d 1090, 1109-1111 (10th Cir.2005) (Ebel, J., concurring and dissenting), Judge Ebel forcefully set forth a contrary view — that to be sufficient to preclude a Bivens action, the alternative remedy “must be a constitutional cause of action,” and so state tort law is inadequate. Some of the language and reasoning in Bivens, 403 U.S. at 391-92, 91 S.Ct. 1999, and Carlson, 446 U.S. at 24, 100 S.Ct. 1468, support this position.

61

In the years since Bivens and Carlson, however, the Court has retreated from this view, instead limiting a Bivenscause of action to cases in which no alternative remedy — constitutional or otherwise — exists. See Malesko, 534 U.S. at 69, 122 S.Ct. 515 (noting that the Court 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”); Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (noting that “[t]he absence of statutory relief for a constitutional violation … does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation”); Bush v. Lucas, 462 U.S. 367, 386-88, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (refusing to find a Bivens cause of action because meaningful, albeit incomplete, relief was available through the administrative system created by Congress).

62

Because Holly has an alternative remedy under North Carolina tort law, this more recent Supreme Court precedent requires that we reverse the district court’s order refusing to dismiss this action.

63

I therefore concur — but only in the judgment.

Notes:

1

This assertedly critical difference is that while inWest the government had a contract with the private doctor who cared for the prisoners, here the government contracts with a private entity which in turn employs those who care for prisoners. Ante at 294. The majority thus suggests that by adding an additional layer, the government can contract away its constitutional duties. Westitself expressly rejects this disturbing contention, instructing 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.”West, 487 U.S. at 55-56, 108 S.Ct. 2250 (emphasis added).

2

It is worth noting that, despite the majority’s “reluctan[ce] to create an anomaly whereby private defendants face greater constitutional liability than public officials,”see ante at 294, the majority creates its own anomaly. That is, the majority holds that even though an individual guard employed by a private correctional facility under contract with the state government is a governmental actor liable for his constitutional wrongs, an individual guard employed by a private correctional facility under contract with the federal government somehow is not. Thus the majority places inmates in private correctional institutions under contract with a state government “in a more favorable position than their counterparts” in private correctional facilities under contract with the federal government, id.; the former could bring a § 1983 action in the proper case to recover damages for constitutional wrongs, while the latter could never bring the analogous federal action.

3

Notably, the only other circuit to consider the precise question presented here — whether an inmate can bring aBivens action against private correctional employees — does not share the majority’s view on this point. See Peoples v. CCA Detention Ctrs.,422 F.3d 1090 (10th Cir.2005). The Tenth Circuit, unlike the majority here, did not hold that the Bivens action failed because the private defendants were not governmental actors. Rather, the Tenth Circuit (adopting the same approach I do here) refused to imply a Bivens action solely because it concluded that in the case before it, an alternative remedy precluded theBivens action. Id. at 1108.

4

The majority claims that this improper “intermingling” of § 1983 andBivens cases leads me to make allegedly “contradictory” assertions about Malesko and to “create causes of action.” See ante at 294-95 n. 4. Actually it is the majority that misunderstands Malesko. There is nothing “contradictory” in noting that Malesko did not reach the precise question as to whether a Bivens action would lie against individual private correctional providers but did recognize that they are government actors, because, as the case at hand demonstrates, it may be that no Bivens action lies even when defendants are government actors. Like the Malesko Court, I “create” no “cause of action” at all, but rather conclude that no Bivens action lies here. Government action is a necessary but not sufficient pre-requisite to a Bivens action.

5

This rationale is more than sufficient to address the majority’s policy concerns with extendingBivens actions. See ante at 289-90. Thus, no policy concern requires us to become the only circuit court to hold that individual private correctional providers are not governmental actors — a holding that may have untoward and far-reaching consequences beyond the Bivens context.”

Argument copied  from Open Jurist

New Primary/Excess Insurance products for Criminal Justice Ops

Tuesday, August 25th, 2009
General Star Management Company Announce a New Primary and Excess Insurance Product for Criminal Justice Risks
01/15/2009

General Star Management Company announced a new primary and excess insurance product for criminal justice risks. In addition to traditional General Liability, Professional Liability and Incidental Medical Professional coverage, General Star also includes Sexual Misconduct protection as a standard feature in its criminal justice policies. All of these coverages, including Sexual Misconduct, are available on an occurrence or claims-made basis. Primary and excess limits up to $6 million are available for all of the above coverages, including Sexual Misconduct. Eligible classes include secure jails and prisons, as well as non-secure drug and rehab centers, half-way houses, boot camps, and protective custody centers. Prisoner transport operations and non-residential operations, such as electronic monitoring and probation services, are also eligible under this program.