Pollard v. Geo Group, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD LEE POLLARD, 

Plaintiff-Appellant,

v.

No. 07-16112

THE GEO GROUP, INC.,

D.C. No.

Erroneously Sued As WACKENHUT

CORRECTIONS CORPORATION, dba  CV-01-06078-

Taft Correctional Institution; OWW(WMW)

MARGARET MINNECI; JONATHAN E. OPINION

AKANNO; ROBERT SPACK; BOB D.

STEIFER; BECKY MANESS,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

October 7, 2009—San Francisco, California

Filed June 7, 2010

Before: Procter Hug, Jr. and Richard A. Paez,

Circuit Judges, and Jane A. Restani,* Judge.

Opinion by Judge Paez;

Partial Concurrence and Partial Dissent by Judge Restani

*The Honorable Jane A. Restani, Chief Judge of the United States

Court of International Trade, sitting by designation.

8141

8146 POLLARD v. GEO GROUP, INC.

COUNSEL

John F. Preis, University of Richmond School of Law, Rich-

mond, Virginia, and Charles Francis Carbone, San Francisco,

California, for the plaintiff-appellant.

Michael Kenneth Johnson, Lewis, Brisbois, Bisgaard &

Smith, LLP, San Francisco, California, for defendants-

appellees Wackenhut/The GEO Group, Inc., Margaret Min-

neci, Robert Spack, Bob D. Steifer, and Becky Maness.

David J. Wilson, Manning & Marder Kass Ellrod Ramirez

LLP, Los Angeles, California, for defendant-appellee Jona-

than E. Akanno.

POLLARD v. GEO GROUP, INC. 8147

OPINION

PAEZ, Circuit Judge:

Plaintiff-Appellant Richard Lee Pollard, a federal inmate,

appeals the district court’s order dismissing his Eighth

Amendment claims against employees of a private corpora-

tion operating a federal prison under contract with the Bureau

of Prisons.1 This appeal presents the question of whether the

implied damages action first recognized in Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), allows a federal prisoner to recover for vio-

lations of his constitutional rights by employees of private

corporations operating federal prisons. We conclude that it

does.

I. BACKGROUND

The GEO Group, Inc. (GEO), under contract with the fed-

eral Bureau of Prisons (BOP), has operated the Taft Correc-

tional Institution (TCI) since December 1997.2 Pollard is a

federal inmate who, in 2001 and 2002, was incarcerated at

TCI. During his imprisonment, Pollard slipped on a cart left

in a doorway and had to be seen by the prison’s medical staff.3

He was x-rayed, diagnosed with possible fractures of both

elbows, and placed in a bilateral sling. He was then referred

to an orthopedic clinic outside the prison.

Before transporting Pollard to the clinic, a GEO employee

1

We have jurisdiction pursuant to 28 U.S.C. § 1291.

2

At the time Plaintiff-Appellant Pollard was incarcerated at TCI, the

Geo Group, Inc., was known as Wackenhut Corrections Corporation.

3

As the district court dismissed Pollard’s suit pursuant to 28 U.S.C.

§ 1915A(b)(1) for failure to state a claim upon which relief may be

granted, we must accept as true all allegations in Pollard’s complaint and

construe them in the light most favorable to him. See Resnick v. Hayes,

213 F.3d 443, 447 (9th Cir. 2000).

8148 POLLARD v. GEO GROUP, INC.

directed him to don a jumpsuit. Pollard told the employee that

putting his arms through the sleeves of the jumpsuit would

cause him excruciating pain, but he was nonetheless required

to put it on. Two employees also forced Pollard to wear a

“black box” mechanical restraint device on his wrists despite

Pollard’s complaints about severe pain. An outside orthope-

dist diagnosed Pollard with serious injuries to his elbows and

recommended that his left elbow be put into a posterior splint

for approximately two weeks. Upon returning to TCI, Pollard

was told that, due to limitations in staffing and facilities, his

elbow would not be put into a posterior splint. Pollard claims

that, in the following weeks, he was unable to feed or bathe

himself and that the GEO employees failed to make alterna-

tive arrangements for him. He further alleges that he was

required to return to work before his injuries had healed and

was again forced to wear the “black box” restraint when

returning to the outside orthopedic clinic for a follow-up

appointment.

Pollard subsequently filed a pro se complaint in the United

States District Court for the Eastern District of California,

alleging violations of his Eighth Amendment rights and seek-

ing money damages under Bivens. His first amended com-

plaint named GEO and eight individuals as defendants. Seven

of these individuals were employees of GEO at the time of

Pollard’s injuries.4 The eighth, Marshall Lewis, was a doctor

employed by the Pacific Orthopedic Medical Group, which

GEO had hired to treat Pollard. GEO was subsequently dis-

missed from the suit due to the Supreme Court’s holding in

Correctional Services Corp. v. Malesko, 534 U.S. 62 (2001),

that private prison corporations are not subject to Bivens lia-

bility. See Order Dismissing Complaint With Leave to Amend

4

The seven GEO employee defendants were Raymond Andrews, Mar-

garet Minneci, Jonathan Akanno, Robert Spack, Bob Steifer, Everett

Uzzle and Becky Maness.

POLLARD v. GEO GROUP, INC. 8149

at 2, Pollard v. Wackenhut, No. CV-F-01-6078 (E.D. Cal.

Mar. 7, 2002).5

Pollard’s suit against the remaining defendants was

assigned to a magistrate judge for screening pursuant to 28

U.S.C. § 1915A(a). The Magistrate Judge issued proposed

findings and a recommendation that Pollard’s suit be dis-

missed under 28 U.S.C. § 1915A(b)(1) for failure to state a

claim. Specifically, the Magistrate Judge concluded that a

Bivens cause of action was not available to Pollard for two

reasons: (1) state law provided him with alternative remedies

for his injuries in the form of a tort action for negligence or

medical malpractice; and (2) although under contract with the

federal government, the GEO employees did not act under

color of federal law. Pollard did not file objections to the

Magistrate Judge’s recommendation, and the district court

adopted it in full and dismissed Pollard’s complaint.

Shortly thereafter, Pollard, now represented by counsel,

filed a motion to vacate the judgment. That motion requested

that the dismissal be vacated for the limited purpose of allow-

ing Pollard to assert objections to the Magistrate Judge’s find-

ings and recommendation, thereby preserving his right to

appeal. The district court did not rule on the motion. Pollard

ultimately filed a timely notice of appeal, which was served

on the Acting Executive Assistant at TCI, but not on any of

the individually named defendants personally. Before this

5

We note that it is unclear whether Pollard appeals this dismissal. After

GEO was dismissed from the litigation, Pollard nevertheless continued to

name the organization as a defendant, although the later district court

orders do not address GEO’s liability. On appeal, Pollard has again named

GEO, but his briefs are focused solely on the GEO employees’ liability.

Whether or not GEO is properly a party to this appeal, any liability is

squarely foreclosed by Malesko, 534 U.S. at 63-64, 74 (holding that

Bivens should not be extended to allow recovery against a private corpora-

tion operating a halfway house under contract with the BOP). Thus, we

affirm the district court’s dismissal of Pollard’s claims against The GEO

Group, Inc.

8150 POLLARD v. GEO GROUP, INC.

court, only five of the original eight individual defendants

filed an opposition brief.6

We review de novo a district court’s grant of a motion to

dismiss under 28 U.S.C. § 1915A. Resnick, 213 F.3d at 447.

II. PROCEDURAL CHALLENGES

The GEO employees initially argue that we should dismiss

this appeal because: (1) they were never served with Pollard’s

opening brief and (2) Pollard failed to enter objections to the

Magistrate Judge’s findings and recommendation and thereby

forfeited his right to appeal. We are not convinced by either

of these arguments, which we address in turn.

First, the GEO employees argue that because they were not

served with a copy of Pollard’s opening brief, this court lacks

jurisdiction over this appeal.7 Fed. R. App. Proc. 25(b) pro-

vides: “Unless a rule requires service by the clerk, a party

must, at or before the time of filing a paper, serve a copy on

the other parties to the appeal or review. Service on a party

represented by counsel must be made on the party’s counsel.”

It is undisputed that Pollard only served his opening brief on

Dale Patrick, identified as the Acting Executive Assistant for

TCI.

Fed. R. App. P. 3(a)(2) provides that “[a]n appellant’s fail-

ure to take any step other than the timely filing of a notice of

6

Raymond Andrews was not included in Pollard’s appeal from the dis-

trict court’s judgment, Everett Uzzle passed away in March 2008, and

there is no evidence that physician Marshall Lewis was ever served in the

original lawsuit or this appeal.

7

The GEO employees also point out that they were never served with

the notice of appeal, but concede that under Fed. R. App. P. 3, such a fail-

ure does not affect the validity of the appeal. We agree, especially in light

of the liberal construction Fed. R. App. P. 3 is due. Smith v. Barry, 502

U.S. 244, 248 (1992) (“Courts will liberally construe the requirements of

Rule 3.”).

POLLARD v. GEO GROUP, INC. 8151

appeal does not affect the validity of the appeal, but is ground

only for the court of appeals to act as it considers appropriate,

including dismissing the appeal.” See Azizian v. Federated

Dep’t Stores, 499 F.3d 950, 961 (9th Cir. 2007) (noting, in the

context of a violation of Fed. R. App. P. 7, that Fed. R. App.

P. 3(a)(2) grants to this court’s “sound discretion” whether to

dismiss an appeal). In deciding whether such a deficiency

warrants dismissal, we are entitled to consider whether Pol-

lard’s failure resulted in prejudice to the GEO employees or

to this court. See Everest & Jennings, Inc. v. E & J Mfg. Co.,

263 F.2d 254, 262 (9th Cir. 1959) (holding that, because the

opposing party could demonstrate no prejudice, a failure to

file briefs in accordance with court rules did not warrant dis-

missal); Recinos De Leon v. Gonzales, 400 F.3d 821, 822 (9th

Cir. 2005) (published order) (considering prejudice to the

opposing party and to the court in deciding whether to dismiss

an appeal based on the late filing of a brief).

[1] The GEO employees have not alleged—nor can we

surmise—any prejudice resulting from Pollard’s failure to

comply strictly with the requirements of Rule 25(b). Pollard’s

counsel has provided the court with an affidavit (and accom-

panying telephone records) declaring that he contacted GEO

and was specifically instructed by a representative of GEO’s

General Counsel to send legal correspondence to TCI. We

have no reason to doubt that Pollard’s counsel was so

instructed, as the same law firm represents GEO and the indi-

vidually named defendants on appeal. Indeed, the appellees’

answering brief was filed on behalf of all those parties (other

than the physician not employed by GEO, Marshall Lewis).8

Thus, we exercise our discretion under Fed. R. App. P. 3(a)(2)

and decline to dismiss this appeal for this alleged deficiency.

8

We further note that GEO and its employees were twenty-one months

late in filing their answering brief. In a motion before this court—filed

over a year after their answering brief was due—appellees argued that the

district court lacked personal jurisdiction and that this court therefore

lacked jurisdiction to consider the appeal. That motion was denied—and

GEO was ordered to file an answering brief—in April 2009.

8152 POLLARD v. GEO GROUP, INC.

[2] Second, the GEO employees argue that dismissal is

warranted because Pollard failed to file timely objections to

the Magistrate Judge’s findings and recommendation. The

GEO employees contend that the failure to file objections

constitutes a waiver of Pollard’s right to appeal. But this court

has held that such a failure does not, “standing alone, ordinar-

ily constitute a waiver of the [appeal].” Martinez v. Ylst, 951

F.2d 1153, 1156 (9th Cir. 1991) (citing Britt v. Simi Valley

Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Rather,

Martinez counsels that failure to object to a magistrate judge’s

findings and recommendations “is a factor to be weighed in

considering the propriety of finding waiver of an issue on

appeal.” Id. Because Pollard was proceeding pro se at the

time of the alleged waiver, and because the GEO employees

have demonstrated no prejudice resulting from Pollard’s fail-

ure to file objections, we decline to exercise our discretionary

authority to dismiss this appeal.

III. DISCUSSION1.

We turn to the merits of this appeal. The district court dis-

missed Pollard’s suit pursuant to 28 U.S.C. § 1915A(b)(1) for

failure to state a claim.9 Specifically, the Magistrate Judge’s

findings and recommendation concluded that a Bivens action

was not available to Pollard because: (1) the GEO employees

do not act under color of federal law; and (2) Pollard could

pursue a claim for damages against the GEO employees under

state tort law. We address these issues in turn and conclude

that (1) the GEO employees act under color of federal law for

purposes of Bivens liability and (2) the availability of a state

tort remedy does not foreclose Pollard’s ability to seek redress

under Bivens. We recognize that the former holding directly

conflicts with the Fourth Circuit’s holding in Holly v. Scott,

9

Neither the Magistrate Judge nor the district judge reached the question

of whether Pollard’s allegations, if true, would amount to a cognizable

claim under the Eighth Amendment. We leave it to the district court, if

necessary, to make that determination upon remand.

POLLARD v. GEO GROUP, INC. 8153

434 F.3d 287, 294 (4th Cir. 2006), and the latter conflicts with

both Holly and the Eleventh Circuit’s holding in Alba v.

Montford, 517 F.3d 1249, 1254 (11th Cir. 2008).10 We discuss

our disagreement with our sister circuits infra.

1. Federal Action

[3] In Bivens, the Supreme Court recognized an implied

cause of action under the Fourth Amendment for injury

caused “by a federal agent acting under color of his authority

. . . .” 403 U.S. at 389. It is widely accepted that Bivens pro-

vides a cause of action only against an official “acting under

color of federal law.” See, e.g., Morgan v. United States, 323

F.3d 776, 780 (9th Cir. 2003) (“Morgan’s Complaint suffi-

ciently sets forth the elements of a Bivens claim by alleging

a violation of his constitutional rights by agents acting under

the color of federal law.”). Thus, the threshold question pres-

ented here is whether the GEO employees can be considered

federal agents acting under color of federal law in their pro-

fessional capacities. We conclude that they can.

We note at the outset that the one federal court of appeal

to have directly addressed the question—the Fourth Circuit—

10

The dissent suggests that this latter holding is also in conflict with

Tenth Circuit law. See Dissenting Op. at 8179 (stating that “[u]ntil now,

the federal circuits that have addressed the issue have held correctly that

a prisoner may not maintain such an action” and citing Peoples v. CCA

Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and

aff’d by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006)

(per curiam), cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063

(2006). In fact, the portion of the Tenth Circuit’s opinion addressing this

issue was vacated by an equally divided en banc panel under Tenth Circuit

rules and lacks any precedential value. Peoples, 449 F.3d at 1099 (“We

are evenly divided, however, for substantially the same reasons as are set

forth in the panel’s majority and dissenting opinions, on the question

whether a Bivens action is available against employees of a privately-

operated prison. Because there is no majority on the en banc panel, the

district court’s ruling in Peoples II on this issue is affirmed by an equally

divided court.”).

8154 POLLARD v. GEO GROUP, INC.

has held that employees of private corporations operating fed-

eral prisons are not federal actors for purposes of Bivens.

Holly, 434 F.3d at 294. See also Alba, 517 F.3d at 1254

(assuming, without deciding, that a privately operated prison

is a government actor for purposes of Bivens liability). In

Holly, as in this case, the defendants were employees of GEO,

which the Fourth Circuit described as “a wholly private cor-

poration in which the federal government has no stake other

than a contractual relationship.” 434 F.3d at 291. Reasoning

that “[a]pplication of Bivens to private individuals simply

does not find legislative sanction,” the Holly majority held

that the GEO employees were not federal actors for purposes

of Bivens. Id. at 292-94.

[4] Neither the Supreme Court nor our court has squarely

addressed whether employees of a private corporation operat-

ing a prison under contract with the federal government act

under color of federal law. That said, we have held that pri-

vate defendants can be sued under Bivens if they engage in

federal action. Schowengerdt v. Gen. Dynamics Corp., 823

F.2d 1328, 1337-38 (9th Cir. 1987) (citing Ginn v. Mathews,

533 F.2d 477 (9th Cir. 1976), abrogated on other grounds by

Rendell-Baker v. Kohn, 457 U.S. 830, 838-43 (1982)); see

also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1104

(9th Cir. 2004) (“[T]o the extent that [Plaintiff] sought recov-

ery from individual employees of the [private corporation

managing the federal prison], the case had to [be] brought as

a Bivens action.”). In determining whether a private individual

has engaged in federal action, we have looked to “state

action” principles developed by the Supreme Court in suits

brought under 42 U.S.C. § 1983. See Morse v. N. Coast

Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997)

(“[W]e apply similar tests to determine whether federal action

exists to support a Bivens claim or to determine whether State

action will permit a § 1983 cause of action.”); Mathis v. Pac.

Gas & Elec. Co., 891 F.2d 1429, 1432 n.3 (9th Cir. 1989)

(“The standards for determining whether an action is govern-

mental are the same whether the purported nexus is to the

POLLARD v. GEO GROUP, INC. 8155

state or to the federal government.”); see also Schowengerdt,

823 F.2d at 1339 n.17 (suggesting the use of § 1983 state

action tests to identify federal action in the Bivens context).

Other circuits have also recognized the similarity of the

§ 1983 and Bivens doctrines. See Williams v. Hill, 74 F.3d

1339, 1340 (D.C. Cir. 1996) (per curiam) (noting that bodies

of law relating to § 1983 and Bivens actions have been assimi-

lated in most respects); Chin v. Bowen, 833 F.2d 21, 24 (2d

Cir. 1987) (“Though the two actions are not precisely parallel,

there is a general trend in the appellate courts to incorporate

§ 1983 law into Bivens suits.” (footnote and internal quota-

tions omitted)); Morast v. Lance, 807 F.2d 926, 931 (11th Cir.

1987) (“[T]he concept of action under color of federal law for

purposes of a Bivens action is almost identical to the doctrine

of action under color of state law for purposes of a § 1983

action . . . .”). Indeed, even the Supreme Court has recognized

a connection between the two doctrines, although at a high

level of abstraction. See Hartman v. Moore, 547 U.S. 250,

254 n.2 (2006) (“Though more limited in some respects not

relevant here, a Bivens action is the federal analog to suits

brought against state officials under [§ 1983].”).

[5] In the § 1983 context, we have recognized a number of

tests for identifying state action. See Howerton v. Gabica, 708

F.2d 380, 383 (9th Cir. 1983) (describing the government

nexus test, the joint action test, the public function test and the

state compulsion test). For our purposes, the most applicable

is the “public function” test: a private entity may engage in

state action where it exercises “powers traditionally exclu-

sively reserved to the State.” Jackson v. Metro. Edison Co.,

419 U.S. 345, 352 (1974). In West v. Atkins, the Supreme

Court applied a variation of that test in concluding that private

correctional employees under contract with North Carolina

were amenable to suit under § 1983 for failing to render con-

stitutionally adequate medical care. See 487 U.S. 42, 49-51

(1988). The Court found state action present in the § 1983

action because the defendant exercised power “possessed by

8156 POLLARD v. GEO GROUP, INC.

virtue of state law and made possible only because the wrong-

doer is clothed with the authority of state law.” Id. at 49

(internal quotation marks and citation omitted). Ten years

before West, the Court had recognized an obligation on the

part of state correctional employees “to provide medical care

for those whom it is punishing by incarceration.” Estelle v.

Gamble, 429 U.S. 97, 103 (1976); see also Carlson v. Green,

446 U.S. 14, 18-19 (1980) (extending Bivens liability to fed-

eral correctional employees). In finding such an obligation

under the Constitution, the Estelle Court reasoned that “[a]n

inmate must rely on prison authorities to treat his medical

needs; if the authorities fail to do so, those needs will not be

met.” Estelle, 429 U.S. at 103.

Similarly, in evaluating whether a prison physician

employed as an independent contractor was amenable to suit

under § 1983, the West Court stated:

If [the physician] misused his power by demonstrat-

ing deliberate indifference to [the prisoner’s] serious

medical needs, the resultant deprivation was caused,

in the sense relevant for state-action inquiry, by the

State’s exercise of its right to punish [the prisoner]

by incarceration and to deny him a venue indepen-

dent of the State to obtain needed medical care.

West, 487 U.S. at 55. In reaching this conclusion, the Court

noted that “[i]t is only those physicians authorized by the

State to whom the inmate may turn” and that “[u]nder state

law, the only medical care [the prisoner] could receive for his

injury was that provided by the State.” Id. The Court rejected

the notion that, because the physician was an independent

contractor rather than a direct employee of the prison, the

state action analysis would change. Instead, the Court held

that, “[w]hether a physician is on the state payroll or is paid

by contract, the dispositive issue concerns the relationship

among the State, the physician, and the prisoner.” Id. at 56.

Thus, the Court concluded, because the private employee was

POLLARD v. GEO GROUP, INC. 8157

“fully vested with state authority to fulfill essential aspects”

of the state’s duty to provide medical care to state prisoners,

he was fulfilling a public function and was therefore amena-

ble to § 1983 liability. Id. at 57.

[6] In our view, there is no principled basis to distinguish

the activities of the GEO employees in this case from the gov-

ernmental action identified in West. Pollard could seek medi-

cal care only from the GEO employees and any other private

physicians GEO employed. If those employees demonstrated

deliberate indifference to Pollard’s serious medical needs, the

resulting deprivation was caused, in the sense relevant for the

federal-action inquiry, by the federal government’s exercise

of its power to punish Pollard by incarceration and to deny

him a venue independent of the federal government to obtain

needed medical care. On this point, West is clear.

[7] The Fourth Circuit does not share our understanding of

West. The Holly majority concluded that West’s reasoning

does not apply to privately operated federal prisons because

the relationship among the state, the physician and the pris-

oner is “very different in this case, where the correctional

facility is privately run, than in West . . . , where the state

itself was directly responsible for managing the prison.”

Holly, 434 F.3d at 294. Curiously, the Fourth Circuit’s read-

ing of West suggests that independent contractors are state

actors when directly hired by the state, but that employees of

an independent contractor are not state actors because they are

not hired by the state. We cannot subscribe to such an illogi-

cal reading of West. As Judge Motz noted in her concurrence

in Holly, West itself rejected the notion that “by adding an

additional layer, the government can contract away its consti-

tutional duties.” Id. at 299 n.1 (Motz, J., concurring in the

judgment). Instead, West makes clear that “ ‘[c]ontracting out’

care ‘does not relieve’ the government of its ‘constitutional

duty’ to provide adequate care or ‘deprive inmates of the

means to vindicate their Eighth Amendment rights.’ ” Id.

(quoting West, 487 U.S. at 55-56).

8158 POLLARD v. GEO GROUP, INC.

Nor do we find convincing the Fourth Circuit’s reliance on

Richardson v. McKnight, 521 U.S. 399 (1997). See Holly, 434

F.3d at 293. Contrary to the Fourth Circuit’s holding, that

case does not stand for the proposition that private prison

employees never act under color of federal or state law. See

id. Indeed, the Court in Richardson expressly noted that it did

“not address[ ] whether the defendants are liable under § 1983

even though they are employed by a private firm.” 521 U.S.

at 413. Rather, the Court there addressed only the question of

whether private prison guards at state prisons are entitled to

qualified immunity when sued for constitutional violations,

not whether those guards acted under color of federal or state

law. See id. As other cases confirm, the immunity question is

fundamentally distinct from the governmental action question

we encounter here. See Wyatt v. Cole, 504 U.S. 158, 168-69

(1992) (holding that “private defendants” were not entitled to

qualified immunity, but remanding for a determination of

whether they were liable as government actors); Jensen v.

Lane County, 222 F.3d 570, 580 (9th Cir. 2000) (holding that

a private physician, contracting with a county psychiatric hos-

pital, was liable as a state actor but was not entitled to quali-

fied immunity).

In Richardson, the Court explained that qualified immunity

applies only where “a tradition of immunity was so firmly

rooted in the common law . . . that Congress would have spe-

cifically so provided had it wished to abolish the doctrine.”

521 U.S. at 403 (internal quotation marks and citation omit-

ted). The Court noted that, although private individuals had

operated correctional facilities in the 18th and 19th centuries,

those individuals did not historically enjoy qualified immu-

nity. Id. at 404-07. Because there was therefore no “ ‘firmly

rooted’ tradition of immunity applicable to privately

employed prison guards,” those private guards were not enti-

tled to qualified immunity. Id. at 404, 412.

Contrary to the Fourth Circuit’s understanding, the Rich-

ardson Court’s observation that private individuals “were

POLLARD v. GEO GROUP, INC. 8159

heavily involved in prison management during the 19th centu-

ry,” 521 U.S. at 405, does not mean that private prison guards

exercise a power that is not “traditionally exclusively reserved

to the State” under the public function test for identifying

state action. Holly, 434 F.3d at 293. The Holly majority

looked to the “operation of the prison, not the fact of [the pris-

oner’s] incarceration,” to conclude that private prison guards

did not perform a traditionally public function. Id. The Holly

majority, however, does not provide, nor can we identify, any

support for such a distinction. The relevant function here is

not prison management, but rather incarceration of prisoners,

which of course has traditionally been the State’s “exclusive

prerogative.” Rendell-Baker, 457 U.S. at 842 (internal quota-

tion marks and citation omitted). West reflects this under-

standing that the relevant function is incarceration, explaining

that a prisoner’s injury from inadequate medical care would

be “caused, in the sense relevant for state-action inquiry, by

the State’s exercise of its right to punish [the prisoner] by

incarceration.” 487 U.S. at 55.

[8] Likewise, in the § 1983 context, our sister circuits have

routinely recognized that imprisonment is a fundamentally

public function, regardless of the entity managing the prison.

The Fifth Circuit, for example, has held that “confinement of

wrongdoers—though sometimes delegated to private entities

—is a fundamentally governmental function. These [private]

corporations and their employees are therefore subject to limi-

tations imposed by the Eighth Amendment.” Rosborough v.

Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003)

(per curiam). Likewise, the Sixth Circuit has held that private

prison employees “perform[ ] the ‘traditional state function’

of operating a prison.” Street v. Corr. Corp. of Am., 102 F.3d

810, 814 (6th Cir. 1996); see also Skelton v. Pri-Cor, Inc.,

963 F.2d 100, 102 (6th Cir. 1991) (per curiam); Ancata v.

Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.

1985). And, in his dissent in Richardson, Justice Scalia,

joined by three other Justices, noted that “private prison man-

agement firms, who perform the same duties as state-

8160 POLLARD v. GEO GROUP, INC.

employed correctional officials, . . . exercise the most palpa-

ble form of state police power.” Richardson, 521 U.S. at 414

(Scalia, J., dissenting).

[9] In accord with West and other federal courts of appeal,

we hold that there is but one function at issue here: the gov-

ernment’s power to incarcerate those who have been con-

victed of criminal offenses. We decline to artificially parse

that power into its constituent parts—confinement, provision

of food and medical care, protection of inmate safety, etc.—

as that would ignore that those functions all derive from a sin-

gle public function that is the sole province of the govern-

ment: “enforcement of state-imposed deprivation of liberty.”

Richardson, 521 U.S. at 416 (Scalia, J., dissenting) (noting

that this function is “a prototypically governmental func-

tion”). Because that function is “traditionally the exclusive

prerogative of the [government],” it satisfies the “public func-

tion” test under Rendell-Baker. 457 U.S. at 842 (internal quo-

tation marks and citation omitted).

Finally, we note that in Malesko, the Supreme Court explic-

itly left open the possibility that private prison employees

could act under color of federal law and therefore face Bivens

liability. The Court, in holding that a corporate entity operat-

ing a federal prison could not be subject to Bivens liability,

noted that “the question whether a Bivens action might lie

against a private individual is not presented here.” Malesko,

534 U.S. at 65. The dissent, authored by Justice Stevens, con-

firmed that this question remained open:

The Court recognizes that the question whether a

Bivens action would lie against the individual

employees of a private corporation like Correctional

Services Corporation (CSC) is not raised in the pres-

ent case. Both CSC and [Malesko] have assumed

Bivens would apply to [private prison employees],

and the United States as amicus maintains that such

liability would be appropriate under Bivens. . . .

POLLARD v. GEO GROUP, INC. 8161

[T]he reasoning of the Court’s opinion relies, at least

in part, on the availability of a remedy against

employees of private prisons.

Id. at 79 n.6 (Stevens, J., dissenting) (internal citation omit-

ted). Thus, despite the contrary holding in the Fourth Circuit,

we conclude that the GEO employees act under color of fed-

eral law for purposes of Bivens liability.11

2. Availability of a Bivens Remedy

Even where defendants have engaged in federal action, we

do not always allow Bivens suits to go forward. We begin

with a review of the Supreme Court’s evolving Bivens juris-

prudence to help illuminate when we will recognize an

implied right of action against individuals engaged in federal

action.

In Bivens, the Supreme Court “recognized for the first time

an implied private action for damages against federal officers

alleged to have violated a citizen’s constitutional rights.”

Malesko, 534 U.S. at 66. In the years following Bivens, the

Court recognized a Bivens cause of action on only two occa-

sions. In Davis v. Passman, 442 U.S. 228, 248-49 (1979), the

Court held that the plaintiff stated a cause of action for money

damages against her former employer, a member of the

United States Congress, for employment discrimination in

violation of the Due Process Clause of the Fifth Amendment.

The following year, in Carlson v. Green, 446 U.S. 14, 24

(1980), the Court held that a federal inmate could bring suit

11

We note that the GEO employees may also qualify as federal actors

under the “nexus” test as articulated by Brentwood Academy v. Tennessee

Secondary School Athletic Ass’n, 531 U.S. 288 (2001). That test asks

whether “there is such a close nexus between the State and the challenged

action that seemingly private behavior may be fairly treated as that of the

State itself.” Brentwood, 531 U.S. at 295 (internal quotations omitted).

Given the clear applicability of the “public function” test, we need not

undertake this analysis.

8162 POLLARD v. GEO GROUP, INC.

for money damages against federal prison officials under the

Eighth Amendment.

Since Carlson and Davis, the Supreme Court has “consis-

tently refused to extend Bivens liability to any new context or

new category of defendants.” Malesko, 534 U.S. at 68.

Indeed, the Court has “rejected invitations to extend Bivens”

in every new factual and legal context presented after Carl-

son. Id. at 70; see, e.g., id. at 63 (declining to allow an implied

right of action for an inmate alleging Eighth Amendment vio-

lations against a private corporation operating a federal

prison); FDIC v. Meyer, 510 U.S. 471, 473 (1994) (declining

to allow an implied right of action against a federal agency);

Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (declining to

allow an implied right of action for disabled persons who

were allegedly denied Social Security benefits in violation of

the Fifth Amendment); Bush v. Lucas, 462 U.S. 367, 368

(1983) (declining to allow an implied right of action for a fed-

eral employee allegedly disciplined in violation of the First

Amendment); Chappell v. Wallace, 462 U.S. 296, 297 (1983)

(declining to allow an implied right of action for military per-

sonnel alleging racial discrimination by superior officers).

Although Bivens remains intact, it is apparent that the era Jus-

tice Scalia referred to as the “heady days in which [the

Supreme] Court assumed common-law powers to create

causes of action” is no more. Malesko, 534 U.S. at 75 (Scalia,

J., concurring).

The Court’s most recent consideration of whether to extend

Bivens distills its prior three decades of jurisprudence into a

two part test:

[O]ur consideration of a Bivens request follows a

familiar sequence, and on the assumption that a con-

stitutionally recognized interest is adversely affected

by the actions of federal employees, the decision

whether to recognize a Bivens remedy may require

two steps. In the first place, there is the question

POLLARD v. GEO GROUP, INC. 8163

whether any alternative, existing process for protect-

ing the interest amounts to a convincing reason for

the Judicial Branch to refrain from providing a new

and freestanding remedy in damages. But even in the

absence of an alternative, a Bivens remedy is a sub-

ject of judgment: the federal courts must make the

kind of remedial determination that is appropriate for

a common-law tribunal, paying particular heed, how-

ever, to any special factors counselling hesitation

before authorizing a new kind of federal litigation.

Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (internal quota-

tions and citations omitted). Applying Wilkie’s two-part test,

we hold that a Bivens cause of action is available here.

a. Application of the Wilkie Two-Part Test

[10] Under Wilkie, we first must identify whether “any

alternative, existing process for protecting the interest

amounts to a convincing reason for the Judicial Branch to

refrain from providing a new and freestanding remedy in

damages.” Id. Second, even in the absence of an alternative,

we must look to any “special factors counselling hesitation

before authorizing a new kind of federal litigation.” Id. (inter-

nal quotation marks and citation omitted). We address each

issue in turn and conclude that Pollard should be entitled to

pursue his Eighth Amendment claim against the GEO

employees.

(i) Wilkie Part One: Alternative Existing Processes

The GEO employees argue that because Pollard can pursue

a state law negligence action for damages, he has an “alterna-

tive, existing process” for protecting his interests and thus

should not be afforded a Bivens remedy.12 The Magistrate

12

In Malesko, the Court noted that one of the plaintiff’s alternative exist-

ing processes for seeking a remedy was his “full access to remedial mech-

8164 POLLARD v. GEO GROUP, INC.

Judge agreed, stating in his recommendation and findings that

“[i]n light of the existing alternative remedies available to

[Pollard], the court finds that extending Bivens would not pro-

vide [Pollard] with an otherwise nonexistent cause of action.”

Neither the Ninth Circuit nor the Supreme Court has ever

addressed whether the existence of a state remedy, alone, is

sufficient to displace the Bivens remedy. We conclude that the

mere availability of a state law remedy does not counsel

against allowing a Bivens cause of action.

In evaluating whether alternative, potential remedies pre-

clude a Bivens action, the Court has consistently stressed that

only remedies crafted by Congress can have such a preclusive

effect. For example, in Carlson, the Court held that where

“defendants show that Congress has provided an alternative

anisms established by the BOP.” 534 U.S. at 74. Although GEO

employees’ counsel could not identify at oral argument whether there were

any BOP administrative remedies available to Pollard, it would appear that

none exist. The BOP’s Administrative Remedy Program applies to those

incarcerated in BOP facilities and half-way houses operated under contract

with the BOP. 28 C.F.R. § 542.10(b) (2002). It does not apply to individu-

als confined in “other non-federal facilities.” Id. Thus, according to a

report released by the Department of Justice in 2008:

[t]he Administrative Remedy Program is administered differently

for inmates in private facilities. Should an inmate at a private

facility wish to appeal a local decision, the inmate may file with

the local institution. Inmates who wish to grieve a specific BOP

matter (which is limited to classification, designation, sentence

computation, reduction of sentence, removal or disallowance of

Good Conduct Time, or issues directly involving BOP staff) may

utilize the progressive BOP administrative remedy process avail-

able to all federal inmates.

U.S. Dep’t of Justice, Legal Resource Guide to the Federal Bureau of Pris-

ons 35 (2010), available at http://www.bop.gov/news/PDFs/legal_guide.

pdf. As Pollard’s claim does not fall within any of the “specific BOP mat-

ter[s],” he does not have a BOP administrative remedy under 28 C.F.R.

§ 542.10. Nor did GEO employees’ counsel identify any administrative

remedies provided by the corporation itself. In sum, whatever effect the

BOP remedies may have had on the Malesko Court’s determination of the

propriety of extending Bivens, it is irrelevant here.

POLLARD v. GEO GROUP, INC. 8165

remedy which it explicitly declare[s] to be a substitute for

recovery directly under the Constitution and view[s] as

equally effective,” no Bivens remedy is available. Carlson,

446 U.S. at 18-19. Likewise, in Bush v. Lucas, the Court held

that the Bivens remedy for an alleged First Amendment viola-

tion was precluded by an “elaborate remedial system that has

been constructed step by step” by Congress. 462 U.S. at 388;

see Schweiker, 487 U.S. at 425 (holding that a remedial

scheme created by Congress, even if incapable of addressing

all of plaintiff’s injuries, precluded a Bivens action).

In Malesko, however, the Court implicitly suggested that

non-congressionally created remedies might displace Bivens.

See 534 U.S. at 70. There, the Court noted that it had consis-

tently declined to extend Bivens except where the extension

would “provide an otherwise nonexistent cause of action

against individual officers alleged to have acted unconstitu-

tionally, or [would] provide a cause of action for a plaintiff

who lacked any alternative remedy for harms caused by an

individual officer’s unconstitutional conduct.” Id. (emphasis

in original). The GEO employees, like the Fourth and Elev-

enth Circuits, place great weight on this “any alternative rem-

edy” language. They argue that it shows that state tort law can

preclude a Bivens remedy. See Alba, 517 F.3d at 1253-55;

Holly, 434 F.3d at 295-97.13 Wilkie, however, demonstrates

that this reads too much into the Court’s words in Malesko.

[11] In Wilkie, the Court made clear that the mere exis-

13

The dissent also misreads Malesko to hold that “[t]he availability of

an adequate alternative remedy should end the analysis [of whether to

extend Bivens].” Dissenting Op. at 8187. Malesko, however, did not set

forth any such blanket rule. Rather, Malesko reasoned that because the

plaintiff had alternative remedies against individual officers—and because

he was not seeking recovery against an individual officer—allowing plain-

tiff to proceed with an implied cause of action would not serve the core

deterrence goals of Bivens. See 534 U.S. at 73-74. Here, however, Pollard

is seeking a remedy against an individual officer, and thus Malesko is not

controlling.

8166 POLLARD v. GEO GROUP, INC.

tence of an alternative state remedy, alone, did not preclude

a Bivens action. There, the Court noted that the plaintiff had

“alternative, existing” remedies for the alleged violation of his

Fifth Amendment rights, including state tort remedies, admin-

istrative claims against the Bureau of Land Management, and

tort claims under the Federal Tort Claims Act. 551 U.S. at

553-54. Even though the plaintiff undoubtedly had a “tort

remedy” available to him, the Court concluded that because

“the forums of defense and redress open to [the plaintiff] are

a patchwork, an assemblage of state and federal, administra-

tive and judicial benches applying regulations, statutes and

common law rules,” “[i]t would be hard to infer that Congress

expected the Judiciary to stay its Bivens hand, but equally

hard to extract any clear lesson that Bivens ought to spawn a

new claim.” Id. at 551, 554. Thus, the mere existence of a

potential state law claim did not suffice to preclude a Bivens

action.

Instead, the Wilkie opinion requires that we not simply

inquire into the existence of alternative remedies generally,

but rather that we ask whether “any alternative, existing pro-

cess for protecting the interest amounts to a convincing rea-

sons for the Judicial Branch to refrain from providing a new

and freestanding remedy in damages.” Id. at 550. For two rea-

sons, state court remedies, alone, do not amount to such a

“convincing reason.”

[12] First, as Wilkie implies and the Court has repeatedly

recognized, we consider alternative remedies because the

judicially created Bivens remedy should yield to congressio-

nal prerogatives under basic separation of powers principles.

Id. at 554 (looking to alternative remedies for evidence that

“Congress expected the Judiciary to stay its Bivens hand”);

see also Malesko, 534 U.S. at 69 (“So long as the plaintiff

ha[s] an avenue for some redress, bedrock principles of sepa-

ration of powers foreclose[ ] judicial imposition of a new sub-

stantive liability.”); Schweiker, 487 U.S. at 423 (“When the

design of a Government program suggests that Congress has

POLLARD v. GEO GROUP, INC. 8167

provided what it considers adequate remedial mechanisms for

constitutional violations . . . we have not created additional

Bivens remedies.”); Bush, 462 U.S. at 378 (“When Congress

provides an alternative remedy, it may . . . indicate its intent

. . . that the Court’s power should not be exercised.”); Carl-

son, 446 U.S. at 23 (“The question whether [an] action for

violations by federal officials of federal constitutional rights

should be left to the vagaries of the laws of the several States

admits of only a negative answer in the absence of a contrary

congressional resolution.”). So too has this circuit recognized

the importance of deferring to Congress in this arena. See W.

Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116,

1123 (9th Cir. 2009) (finding remedies available under the

Administrative Procedure Act indicative of congressional

intent to displace Bivens); Libas Ltd. v. Carillo, 329 F.3d

1128, 1130 (9th Cir. 2003) (noting that a Bivens claim can be

precluded when Congress either provides an alternative rem-

edy or provides a mechanism for relief it considers adequate

to remedy constitutional violations); Berry v. Hollander, 925

F.2d 311, 314 (9th Cir. 1991) (“So long as Congress’ failure

to provide money damages, or other significant relief, has not

been inadvertent, courts should defer to its judgment.” (inter-

nal quotation marks omitted)).

[13] Second, the Court has recognized that the policy “ob-

vious[ly]” motivating Bivens was “that the liability of federal

officials for violations of citizens’ constitutional rights should

be governed by uniform rules.” Carlson, 446 U.S. at 23. In

Carlson, the Court made a point of noting that the plaintiff’s

action would have failed under the survivorship law of the

forum state. Id. at 17 n.4. The Court emphasized that “only a

uniform federal rule of survivorship will suffice to redress the

constitutional deprivation here alleged and to protect against

repetition of such conduct.” Id. at 23. As we recently noted in

Castaneda v. United States, 546 F.3d 682, 701 (9th Cir.

2008), overruled on other grounds by Hui v. Castaneda, No.

08-1529 (May 3, 2010),14 “the remedies we and the Supreme

14

Although involving Bivens claims against federal officers, Hui v. Cas-

taneda was ultimately decided solely on the issue of absolute immunity

under 42 U.S.C. 233(a). It therefore has no direct bearing on this case.

8168 POLLARD v. GEO GROUP, INC.

Court have held to preclude Bivens . . . applied uniformly

throughout the republic.” Although Castaneda is no longer

good law, this observation was not addressed by the Supreme

Court and comports with our analysis of the Court’s Bivens juris-

prudence.15 See Schweiker, 487 U.S. at 414 (holding that

Social Security regulations and procedures precluded a Bivens

action); Bush, 462 U.S. at 368 (holding that federal civil ser-

vice regulations precluded a Bivens remedy).

[14] If we were to allow state tort law to preclude a Bivens

action for Pollard and similarly situated prisoners, the liability

of federal officials for constitutional violations would no lon-

ger be governed by uniform rules. The substance, procedural

requirements, and remedies of state tort law—especially with

regard to causes of action for negligence and medical

malpractice—vary widely from state to state. For example,

assuming Pollard were to bring a claim for medical malprac-

tice under California law, the cap on his non-economic dam-

ages would be $250,000. See Cal. Civ. Code § 3333.2. But,

under Oregon law (where Pollard was transferred in the midst

of this litigation), Pollard’s medical malpractice claim would

not be subject to the state’s non-economic damages cap. See

Lakin v. Senco Prods., 987 P.2d 463 (Or. 1999) (holding that

non-economic damages cap mandated by Or. Rev. Stat.

§ 31.710(1) is unconstitutional as applied to common-law

negligence claims). Likewise, the statute of limitations for

bringing his suit under California law would be three years

after the date of his injury or one year after he discovered the

injury, whichever came first. See Cal. Civ. Proc. Code

§ 340.5. But Oregon law would require Pollard to bring his

15

The dissent contends that Malesko disproves this rule, arguing that

“the Court declined to recognize a Bivens action because of state reme-

dies.” Dissenting Op. at 8184 (emphasis added). That is not Malesko’s

holding. Malesko also relied on administrative remedies fashioned by the

BOP—which apply uniformly across federal prisons—in reaching its

holding. See 534 U.S. at 74. Furthermore, as discussed above, Malesko

also relied on the fact that because the plaintiff was not seeking recovery

against an individual officer. See id. at 73-74.

POLLARD v. GEO GROUP, INC. 8169

suit within two years of discovering the injury. See Or. Rev.

Stat. § 12.110(4). We need not belabor the obvious point that

state tort remedies are anything but “uniform.”

[15] The Bivens inquiry turns in part on “bedrock princi-

ples of separation of powers,” Malesko, 534 U.S. at 69, but

concluding that a Bivens cause of action must yield to state

tort law does little to demonstrate deference to congressional

prerogatives. Thus, we conclude that state remedies alone are

insufficient to displace a Bivens remedy under the first prong

of the Wilkie test.

(ii) Wilkie Part Two: “Special Factors Counselling

Hesitation”

Wilkie’s second step requires us to “weigh[ ] reasons for

and against the creation of a new cause of action, the way

common law judges have always done.” 551 U.S. at 554. In

other words, we must look to any “special factors counselling

hesitation before authorizing a new kind of federal litigation.”

Id. at 550 (internal quotation marks and citation omitted). The

Court has emphasized that we must differentiate “special”

factors from “any” factors. McCarthy v. Madigan, 503 U.S.

140, 151 (1992), superseded by statute, Prison Litigation

Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321, as

recognized in Booth v. Churner, 532 U.S. 731, 740-41 (2001).

Although the Court has never compiled an exhaustive list of

these “special” factors, some that the Court has previously

considered include: (1) whether it is feasible to create a work-

able cause of action, Wilkie, 551 U.S. at 555; (2) whether

extending the cause of action would undermine Bivens’s

deterrence goals, Malesko, 534 U.S. at 70-71; (3) whether an

extension of Bivens would impose asymmetric liability costs

on privately operated facilities as compared to government-

operated facilities, id. at 72; and (4) whether unique attributes

of an area, like the military, give reason to infer that congres-

sional inaction is deliberate, see Chappell, 462 U.S. at 304.

As the Court has already recognized a Bivens cause of action

8170 POLLARD v. GEO GROUP, INC.

for inmates in government-run federal prisons, it appears that

prisons do not have the types of unique attributes that coun-

seled against recognizing a Bivens action for claims against

the military in Chapell. Nor did the Court allude to any such

unique attributes in Malesko. Thus, we address only the first

three of these considerations.

(a) Feasibility

[16] Pollard alleges a basic Eighth Amendment cause of

action under Bivens. Since Carlson, courts have regularly rec-

ognized this type of action against federal prison officials, and

the applicable standards are clear. See, e.g., Powell v. Lennon,

914 F.2d 1459 (11th Cir. 1990); Berg v. Kincheloe, 794 F.2d

457 (9th Cir. 1986); Gardner v. Wilson, 959 F. Supp. 1224,

1228 (C.D. Cal. 1997); Lowrance v. Coughlin, 862 F. Supp.

1090 (S.D.N.Y. 1994). There is no need for the district court

to craft new standards or remedies to address Pollard’s claims.

Accordingly, there are no feasibility concerns that would

counsel hesitation under Wilkie.

By contrast, the regime the GEO employees propose—

allowing a Bivens cause of action to go forward only where

a plaintiff would otherwise have no alternative remedy—

would likely be difficult to administer. The Eighth Amend-

ment protects against conditions of confinement that “involve

the wanton and unnecessary infliction of pain . . . [or are]

grossly disproportionate to the severity of the crime warrant-

ing imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347

(1981). But many acts meeting that standard may not be cov-

ered by state tort law. For example, a prison inmate deprived

of access to a toilet for several days would have a strong case

against prison officers under Bivens. See DeSpain v. Uphoff,

264 F.3d 965, 974 (10th Cir. 2001) (concluding that exposure

to human waste, even for 36 hours, would constitute a suffi-

ciently serious deprivation to violate Eighth Amendment); see

also Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007)

(per curiam) (citing numerous cases on minimum level of

POLLARD v. GEO GROUP, INC. 8171

hygiene required by the Eighth Amendment). But, although

tort law imposes a duty on those with custody of another to

protect that person “against unreasonable risk of physical

harm,” Restatement (Second) of Torts § 314A(1)(a), (4)

(1965), it is unclear whether deprivation of a toilet would

amount to “physical harm.” Likewise, it is unclear whether a

deprivation of outdoor exercise would amount to a tort viola-

tion, despite our conclusion that such deprivation constitutes

an Eighth Amendment violation in certain circumstances. See

Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979).

Nor is it apparent whether a prisoner could recover under

state law for the denial of “basic necessities such as socks, toi-

let paper, and soap.” See Irabor v. Perry County Corr. Ctr.,

No. 06-0483-BH-C, 2008 WL 1929965, at *2 (S.D. Ala. Apr.

30, 2008). Although a district court considering a constitu-

tional claim based on such injuries stated that the plaintiff had

“adequate state tort remedies available . . . including, but not

limited to, negligence and wantonness,” id. at *4, we find it

somewhat less obvious which theory of state tort law, if any,

would provide the plaintiff in that case with an opportunity

for relief. A plaintiff might also seek to recover under an

intentional infliction of emotional distress theory of recovery,

but that cause of action has its own problems given that prison

disciplinary measures regularly cause emotional distress by

design.

These are not isolated examples, and the inquiry becomes

even more complicated when a prisoner alleges an Eighth

Amendment violation as the result of a combination of factors

that may not, on their own, constitute a violation of state tort

law. See Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some

conditions of confinement may establish an Eighth Amend-

ment violation ‘in combination’ when each would not do so

alone, but only when they have a mutually enforcing effect

that produces the deprivation of a single, identifiable human

need such as food, warmth, or exercise—for example, a low

cell temperature at night combined with a failure to issue

8172 POLLARD v. GEO GROUP, INC.

blankets.” (emphasis omitted)). Indeed, this very problem of

identifying whether state common law provides a remedy is

likely to arise any time constitutional and state common law

regulate similar conduct in different ways.

The dissent argues that these obvious difficulties are irrele-

vant because Pollard’s injuries are “certainly . . . covered by

state tort law.” Dissenting Op. at 8189. But this decision will

have implications far beyond Pollard’s suit. Under the GEO

employees’ proposed framework, as adopted by the dissent, in

each case a court would need to identify whether state reme-

dies provide relief for the plaintiff’s particular claim. While

in some instances that may prove an easy task, in others, like

those identified above, it may be quite difficult. For questions

of first impression, it would require a federal court to exam-

ine: (1) state common law, (2) state statutes, (3) state adminis-

trative regulations, (4) state constitutional provisions, (5)

procedural requirements attendant to each alternative claim

(including statutes of limitations, exhaustion requirements,

etc.), and (6) the existence of a cause of action to enforce state

law. Furthermore, under the GEO employees’ proposed

framework, courts would potentially need to consider whether

a plaintiff’s claims would be frustrated by any viable defenses

under state law. For example, a privately operated prison

might assert the “government contractor” defense if sued

under state tort law. See Boyle v. United Techs. Corp., 487

U.S. 500 (1988) (recognizing a defense immunizing federal

contractors from liability where the contractor has conformed

its behavior to precise government specifications and, if nec-

essary, has warned the government of risks posed by those speci-

fications).16 Thus, unless such defenses are assessed prior to

16

The dissent states that there “is no reason to think that . . . the govern-

ment contractor defense . . . is applicable here.” Dissenting Op. at 8189.

But there is no way to know on the record before us whether or not that

is the case. Cf. Malesko, 534 U.S. at 74 n.6 (noting that “[t]he record here

would provide no basis for [the government contractor] defense”). The

district court did not require GEO or its employees to file any response to

POLLARD v. GEO GROUP, INC. 8173

dismissing a Bivens action because of alternative state reme-

dies, a prisoner in a privately operated facility may be fore-

closed from relief, even though a prisoner housed in a

governmentally run prison would have a cause of action. But,

in the context of prisoner litigation, a court would often be

required to make these types of determinations before the

defendant has asserted any defenses or made any filing what-

soever (as was the case here). See 28 U.S.C. § 1915A (requir-

ing federal courts to pre-screen prisoner civil rights claims).17

It is also worth noting that, in light of the ever-rising percent-

age of federal inmates incarcerated in private prison facilities,

federal courts would be increasingly asked to make these

types of determinations.18

Pollard’s suit before determining that his Bivens claim was precluded by

alternative state tort remedies. This is not unusual. Under 28 U.S.C.

§ 1915A, when a Bivens action is filed by a prisoner, the district court

must pre-screen any such complaints and dismiss those actions that fail to

state a claim upon which relief can be granted. Because the GEO employ-

ees were not required to respond to Pollard’s complaint, we have no idea

whether they could pursue the government contractor defense were Pol-

lard’s claims to be tried under state tort law. Nor do the GEO employees

have any incentive to make such an argument at this stage of the litigation,

as their argument rests on the existence of adequate alternative remedies

under state tort law which would be foreclosed by the successful invoca-

tion of such a defense. Thus, the GEO employees may have a complete

defense to liability under state tort law or they may not; we simply don’t

know.

17

Another, closely related, example of one of these potential defenses is

federal preemption. See Saleh v. Titan Corp., 580 F.3d 1, 11-13 (D.C. Cir.

2009) (holding that plaintiff’s state law tort actions against private military

contractors working for the federal government were preempted by federal

law).

18

According to the United States Justice Department’s statistics, as of

year-end 2000, 10.7% of all federal prisoners were held in privately oper-

ated prisons. Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners

in 2008 17, 38 (Dec. 2009), available at http://bjs.ojp.usdoj.gov/content/

pub/pdf/p08.pdf (recording 145,416 total federal prisoners as of December

31, 2000, of which 15,524 were housed in privately operated prisons). As

of year-end 2008, that percentage was 16.5%, thus showing an increase of

almost 6% in those eight years alone. Id. (recording 201,280 total federal

prisoners as of December 31, 2008, of which 33,162 were housed in pri-

vately operated prisons).

8174 POLLARD v. GEO GROUP, INC.

[17] In sum, a Bivens cause of action for prisoners’ Eighth

Amendment claims would be fairly straightforward to apply.

By contrast, it would be difficult to administer a regime where

Bivens claims were allowed to proceed only when state law

would offer no remedy. While these observations are by no

means dispositive of the question here presented, under Wilkie

we are bound to consider them in deciding whether to allow

a “new” cause of action to proceed, “the way common law

judges have always done.” 551 U.S. at 554.

(b) Deterrence

[18] The Court has also looked to whether extending

Bivens would undermine the “core purpose” of an implied

cause of action: deterring individual officers from committing

constitutional violations. Malesko, 534 U.S. at 74. Allowing

a Bivens action to go forward here would not undermine that

core purpose.

In Meyer, the Court declined to extend Bivens to permit suit

against a federal agency, reasoning that plaintiffs could be

expected to always choose to sue the federal agency over an

individual who could assert qualified immunity as an affirma-

tive defense. 510 U.S. at 485. To the extent that aggrieved

parties would have “less incentive to bring a damages claim

against individuals, ‘the deterrent effects of the Bivens rem-

edy would be lost.’ ” Malesko, 534 U.S. at 69 (quoting Meyer,

510 U.S. at 485). Thus, Meyer concluded that allowing a

Bivens claim against federal agencies “would mean the evis-

ceration of the Bivens remedy, rather than its extension.” 510

U.S. at 485.

In Malesko, the Court echoed this reasoning in concluding

that allowing Bivens suits to proceed against private prison

corporations would undermine the deterrent effects of Bivens.

534 U.S. 70-71. According to the Court, “if a corporate defen-

dant is available for suit, claimants will focus their collection

efforts on it, and not the individual directly responsible for the

POLLARD v. GEO GROUP, INC. 8175

alleged injury.” Id. at 71 (citing the plurality opinion and Jus-

tice O’Connor’s dissent in TXO Prod. Corp. v. Alliance Res.

Corp., 509 U.S. 443, 464 (1993), for the proposition that cor-

porations fare much worse before juries than do individuals).

Thus, recognizing that corporations would likely bear the

lion’s share of responsibility for Bivens damages if subject to

an implied cause of action under the Constitution, the Court

concluded that the deterrence goals of Bivens would be under-

mined by such an extension. Whatever deterrent effect a suit

against a corporation may have, the Supreme Court explicitly

rejected the notion that corporate deterrence is relevant to the

core deterrence goals of Bivens. Id. (stating that corporate

deterrence “has no relevance to Bivens, which is concerned

solely with deterring the unconstitutional acts of individual

officers”).

[19] The instant case does not present the same problems.

It simply cannot be disputed that allowing Bivens suits against

private prison employees would not undermine Bivens’s goal

of deterring unconstitutional acts by individuals. The dissent

argues that state tort remedies are “superior” to a Bivens rem-

edy here, Dissenting Op. at 8183, and that allowing Pollard to

bring a Bivens action would not serve Bivens’ goal of deter-

rence, Dissenting Op. 8190-91. We disagree. It is true that

state tort remedies may often serve to deter unconstitutional

conduct, and that it may be easier to prevail on such a claim

than on an Eighth Amendment Bivens claim. Indeed, in an

action to recover damages for personal injuries under state

tort theories such as negligence or medical malpractice, the

plaintiff would not be required to prove deliberate indiffer-

ence, as required to establish an Eighth Amendment violation.

See Estelle, 429 U.S. at 104. But while we acknowledge that

the elements of a state tort claim may not be as demanding,

we are not prepared to say that Bivens would have no mar-

ginal deterrent effect against individual employees of GEO.

For instance, in some states, a prisoner in Pollard’s position

must submit a declaration by a physician attesting that the suit

8176 POLLARD v. GEO GROUP, INC.

is not frivolous. See, e.g., Nev. Rev. Stat. § 41A.071 (“If an

action for medical malpractice . . . is filed in the district court,

the district court shall dismiss the action, without prejudice,

if the action is filed without an affidavit, supporting the alle-

gations contained in the action, submitted by a medical expert

who practices or has practiced in an area that is substantially

similar to the type of practice engaged in at the time of the

alleged malpractice.”). It is unclear how a prisoner like Pol-

lard, who filed this claim in forma pauperis, would be able to

secure such a declaration. The Eleventh Circuit in Alba con-

cluded that a similar certification requirement in Georgia did

not render the inmate’s state remedies ineffective because it

merely placed him in “the same shoes as anyone else in Geor-

gia filing a professional malpractice claim,” under “no stricter

rules than the rest of Georgia’s residents.” 517 F.3d at 1255.

But federal courts have long recognized that inmates proceed-

ing pro se are not in the “same shoes” as other citizens. See,

e.g., Houston v. Lack, 487 U.S. 266, 275 (1988) (creating the

more lenient “prison mailbox rule”—deeming a document

filed by a pro se prisoner “filed” as of the time the prisoner

delivers it to prison authorities for mailing (rather than the

time it is received by the court)—because “whereas the gen-

eral rule has been justified on the ground that a civil litigant

who chooses to mail a notice of appeal assumes the risk of

untimely delivery and filing, a pro se prisoner has no choice

but to hand his notice over to prison authorities for forwarding

to the court clerk” (citation omitted)).

[20] Additionally, Bivens may allow for recovery of

greater damages in some cases than a state tort law remedy.

As discussed infra, were Pollard to bring a claim for medical

malpractice under California law, there would be a cap on the

amount of non-economic damages he could recover. See Cal.

Civ. Code § 3333.2. There is no similar cap on non-economic

damages under Bivens. Thus, for a truly egregious case of

neglect or abuse, a medical professional at a privately oper-

ated prison would face significantly greater liability under

Bivens than state tort law. Furthermore, to be entitled to puni-

POLLARD v. GEO GROUP, INC. 8177

tive damages under California law, a plaintiff must demon-

strate “oppression, fraud, or malice.” Cal. Civ. Code § 3294.

By contrast, once a plaintiff has successfully met the “deliber-

ate indifference” standard under the Eighth Amendment—

requiring that the conduct be “wanton,” Wilson v. Seiter, 501

U.S. 294, 302 (1991) there is little more that such a plaintiff

would need to prove to establish a convincing argument for

an award of punitive damages. These significant differences

in the potential liability faced by privately operated federal

prisons are prime examples of the “marginal deterrence” that

Bivens offers. Thus, we do not find that this “special factor”

counsels hesitation.

(c) Asymmetrical Liability Costs

The Court has also expressed concerns about imposing

asymmetric liability costs on privately operated facilities as

compared to government-operated facilities. Malesko, 534

U.S. at 72. We are equally concerned about issuing a decision

that will yield disparate rights and remedies among inmates in

private and public prisons. Unfortunately, under the current

Bivens regime, asymmetries will remain irrespective of

whether we recognize or deny a Bivens cause of action here.

[21] Unlike officers employed by public prisons, the GEO

employees will not be entitled to qualified immunity, and as

a result, prisoners asserting claims against them may be able

to recover more often than their counterparts in governmen-

tally run prisons. See Richardson, 521 U.S. at 401 (holding

that employees of privately operated state prisons are not enti-

tled to qualified immunity). This asymmetry is clearly an

undesirable outcome. Cf. Butz v. Economou, 438 U.S. 478,

501 (1978) (“Surely, federal officials should enjoy no greater

zone of protection when they violate federal constitutional

rules than do state officers.”)

[22] On the other hand, if we conclude that Pollard cannot

bring a suit under Bivens, then only inmates in public prisons

8178 POLLARD v. GEO GROUP, INC.

will be able to vindicate their constitutional rights. Prisoners

would thereby have entirely different rules governing their

rights depending upon whether they are incarcerated in a pub-

lic or private prison (and, for that matter, in which state the

private prison is located). This outcome is equally undesir-

able. As asymmetries will persist irrespective of the outcome

of this case, this consideration does not counsel hesitation in

recognizing a Bivens remedy here.

IV. CONCLUSION

[23] We conclude that Pollard’s suit under Bivens against

the GEO employees for alleged violations of his Eighth

Amendment rights should be allowed to proceed. We reach

that conclusion because (1) the GEO employees act “under

color of federal law” for purposes of Bivens liability; and (2)

a faithful application of Wilkie’s two-part test counsels that

state tort remedies alone are insufficient to displace Bivens

and there are no “special factors counselling hesitation” in

allowing Pollard’s suit to proceed. We therefore reverse and

remand to the district court for further proceedings consistent

with this opinion. To the extent Pollard’s appeal seeks to chal-

lenge the district court’s dismissal of GEO from the lawsuit,

we affirm the district court’s disposition as to that issue.

AFFIRMED IN PART, REVERSED IN PART,

REMANDED.

RESTANI, Judge, concurring in part and dissenting in part:

I agree that the district court properly dismissed GEO from

the lawsuit and that employees of a private corporation oper-

ating a federal prison are federal government actors. I con-

clude, however, that we would err by creating a split in the

law of the various circuits by holding that a prisoner may

maintain a cause of action under Bivens v. Six Unknown

POLLARD v. GEO GROUP, INC. 8179

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), against such employees where adequate state law

remedies exist. Until now, the federal circuits that have

addressed the issue have held correctly that a prisoner may

not maintain such an action. See Alba v. Montford, 517 F.3d

1249 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008); Holly v.

Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168

(2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir.

2005), vacated in relevant part and aff’d by equally divided

en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam),

cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063 (2006).

The evolution of the U.S. Supreme Court’s Bivens jurispru-

dence confirms that this Court should follow their lead.

I. The Supreme Court has limited Bivens to cases in

which no alternative remedy is available against the

federal actor who committed the wrong.

The majority overlooks the reality that the Supreme Court

has recognized Bivens causes of action only where federal

officials, by virtue of their position, enjoy impunity, if not

immunity, from damages liability because of gaps or exemp-

tions in statutes or in the common law. See Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 70 (2001). In Bivens, the Supreme

Court recognized an implied cause of action for damages

under the Fourth Amendment against federal agents who ille-

gally searched the plaintiff’s home and arrested him. 403 U.S.

at 389, 397. The Court acknowledged that a trespass tort

action, which requires resistance that the plaintiff could not

lawfully exert against federal agents, was unlikely to succeed

because the agents obtained permission to enter the home. Id.

at 394-95.

The Supreme Court has only extended Bivens twice, “to

provide an otherwise nonexistent cause of action against indi-

vidual officers alleged to have acted unconstitutionally, or to

provide a cause of action for a plaintiff who lacked any alter-

native remedy for harms caused by an individual officer’s

8180 POLLARD v. GEO GROUP, INC.

unconstitutional conduct.” Malesko, 534 U.S. at 70. First, the

Court recognized a Bivens action under the equal protection

component of the Fifth Amendment Due Process Clause

against a former Congressman who had fired one of his

employees based on her sex, Davis v. Passman, 442 U.S. 228

(1979), because the employee “lacked any other remedy for

the alleged constitutional deprivation,” Malesko, 534 U.S. at

67. As the statute protecting federal employees from sex-

based discrimination, 42 U.S.C. § 2000e-16(a), does not

extend to such congressional employees, and the employee

did not have any cause of action under state law, “there [were]

available no other alternative forms of judicial relief.” Davis,

442 U.S. at 245 & n.23, 247. Davis, like Bivens, involved “a

plaintiff in search of a remedy.” Malesko, 534 U.S. at 74; see

Davis, 442 U.S. at 245 (“For Davis, as for Bivens, it is dam-

ages or nothing.” (internal quotation marks and citation omit-

ted)). In both cases, “the plaintiffs’ injuries would have gone

entirely unredressed without an implied constitutional reme-

dy.” Holly, 434 F.3d at 295.

Second, the Supreme Court held that a prisoner could bring

a Bivens action under the Cruel and Unusual Punishments

Clause of the Eighth Amendment against federal prison offi-

cials because the prisoner’s only alternative remedy was a

claim under the Federal Tort Claims Act (“FTCA”) against

the United States. Carlson v. Green, 446 U.S. 14 (1980).

Although the FTCA applies only in instances where a private

person would be liable under state law, 28 U.S.C.

§ 1346(b)(1), it precluded state tort actions against the indi-

vidual federal officers, Holly, 434 F.3d at 296; see 28 U.S.C.

§ 2679(b)(1). Reasoning that actions against the United States

under the FTCA would not sufficiently deter unconstitutional

acts by individuals, the Court recognized a Bivens action “to

provide an otherwise nonexistent cause of action against [the

individuals].” Malesko, 534 U.S. at 70; see also id. at 74 (not-

ing that the prisoner in Carlson sought “a cause of action

against an individual officer, otherwise lacking”).

POLLARD v. GEO GROUP, INC. 8181

Thus, the Supreme Court has recognized Bivens claims

only “for want of other means of vindication,” as “Davis had

no other remedy, Bivens himself was not thought to have an

effective one, and in Carlson the plaintiff had none against

Government officials.” Wilkie v. Robbins, 551 U.S. 537, 555

(2007). As the majority notes, the Court has set forth two-step

test to determine whether to recognize new Bivens actions:

In the first place, there is the question whether any

alternative, existing process for protecting the inter-

est amounts to a convincing reason for the Judicial

Branch to refrain from providing a new and free-

standing remedy in damages. But even in the

absence of an alternative, a Bivens remedy is a sub-

ject of judgment: “the federal courts must make the

kind of remedial determination that is appropriate for

a common-law tribunal, paying particular heed, how-

ever, to any special factors counselling hesitation

before authorizing a new kind of federal litigation.”

Id. at 550 (citations omitted). Since Carlson, however, the

Court has “consistently refused to extend Bivens liability to

any new context or new category of defendants.” Malesko,

534 U.S. at 68 (declining to recognize a Bivens action against

a private corporation operating a federal prison).

II. The justifications for recognizing Bivens actions do

not apply here.

A. Adequate alternative remedies are available to

Pollard.

Here, ordinary state tort remedies for negligence or medical

negligence against the GEO employees are an adequate, alter-

native, existing process for protecting Pollard’s interest.

Where, as here, the plaintiff has an alternative remedy against

a federal official alleged to have acted unconstitutionally, the

Supreme Court has “consistently rejected invitations to extend

8182 POLLARD v. GEO GROUP, INC.

Bivens.” Malesko, 534 U.S. at 70. Unlike Bivens, in which

alternative state tort remedies were inadequate because the

plaintiff’s lack of resistance to the federal agents foreclosed

a trespass action, Pollard’s “claim of negligence or deliberate

indifference requires no resistance to official action.” Id. at

74. Additionally, employees of private prison corporations do

not enjoy impunity or immunity as to damages because of

gaps or exemptions in statutes or in the common law.

In fact, as the majority concedes, tort remedies for negli-

gence and medical negligence may be even more easily

obtained than remedies under Bivens for an Eighth Amend-

ment violation “because the heightened ‘deliberate indiffer-

ence’ standard of Eighth Amendment liability would make it

considerably more difficult for [a plaintiff] to prevail than on

a theory of ordinary negligence.”1 Malesko, 534 U.S. at 73

(citations omitted). Thus, Pollard does not lack effective rem-

edies because his “alternative remedies are at least as great,

and in many respects greater, than anything that could be had

under Bivens.” Id. at 72. The state tort remedies for negli-

gence or medical negligence are therefore a more than ade-

quate alternative, existing process for protecting Pollard’s

interest. See id. at 72-74 (declining to recognize a Bivens

action under the Eighth Amendment where the plaintiff had

alternative remedies under state tort law for negligence and

remedial mechanisms established by the Bureau of Prisons

(“BOP”)).2

1

Pollard could also sue GEO under a respondeat superior theory in tort,

even though he cannot pursue a Bivens action against GEO under

Malesko. See Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 907 P.2d 358,

360 (Cal. 1995); Chesterman v. Barmon, 753 P.2d 404, 406 (Or. 1988) (en

banc); see also Alba, 517 F.3d at 1256 n.7; Holly, 434 F.3d at 296.

2

The majority notes that the alternative BOP administrative remedies

that were available in Malesko do not appear to be available to Pollard.

Maj. Op. at 8163-64 n.12. Malesko, however, only briefly mentioned BOP

remedies and actually emphasized the availability of state tort remedies.

See 534 U.S. at 72-74. Additionally, BOP remedies are not as relevant as

tort remedies to the Bivens analysis because the BOP’s administrative

grievance remedies do not include damages. See id. at 74.

POLLARD v. GEO GROUP, INC. 8183

B. The availability of tort remedies is a convincing

reason to refrain from recognizing a new damages

remedy.

The availability of a superior alternative remedy is a con-

vincing reason for the Judicial Branch to refrain from provid-

ing a new, freestanding damages remedy. See Holly, 434 F.3d

at 295. Courts are reluctant to recognize new Bivens actions,

which are implied without any Congressional authority,

because “ ‘a decision to create a private right of action is one

better left to legislative judgment in the great majority of

cases.’ ” Id. at 289 (quoting Sosa v. Alvarez-Machain, 542

U.S. 692, 727 (2004)); see also Malesko, 534 U.S. at 67 n.3

(“[W]e have retreated from our previous willingness to imply

a cause of action where Congress has not provided one.”).

Rather, “[s]o long as the plaintiff ha[s] an avenue for some

redress, bedrock principles of separation of powers fore-

close[ ] judicial imposition of a new substantive liability.”

Malesko, 534 U.S. at 69. “The dangers of overreaching in the

creation of judicial remedies are particularly acute where such

remedies are unnecessary.” Holly, 434 F.3d at 295. Because

a Bivens action is unnecessary against the employees of a pri-

vate prison corporation, we should not recognize such an action.3

III. The availability of a state tort remedy may preclude

a Bivens action.

The majority’s conclusion that the availability of state rem-

edies is not a convincing reason for the judiciary to refrain

from recognizing a Bivens remedy is based on the faulty

premises that remedies that preclude Bivens must (1) be

crafted by Congress and (2) “appl[y] uniformly throughout

3

Although we have stated previously that “to the extent that [a plaintiff]

sought recovery from individual employees of [a private corporation man-

aging a federal prison], the case had to [be] brought as a Bivens action,”

that statement was pure dicta. Agyeman v. Corr. Corp. of Am., 390 F.3d

1101, 1104 (9th Cir. 2004).

8184 POLLARD v. GEO GROUP, INC.

the republic.” Castaneda v. United States, 546 F.3d 682, 701

(9th Cir. 2008), rev’d on other grounds sub nom. Hui v. Cas-

taneda, __ S. Ct. __, 2010 WL 1740524 (May 3, 2010). The

first is wrong because the Supreme Court actually has consid-

ered remedies not crafted by Congress, and Malesko itself is

one instance in which the Court declined to recognize a

Bivens action because of state remedies. The second is wrong

because the need for uniformity is not particularly compelling

where the persons who harmed the plaintiff are private

employees of a private entity.

A. The Supreme Court has declined to recognize a

Bivens action because of state remedies.

Recent Supreme Court precedent makes clear that a state

tort remedy may be an alternative, existing process that pre-

cludes recognition of a Bivens action. In Malesko, the Court

“consider[ed] availability of state tort remedies in refusing to

recognize a Bivens remedy.” Wilkie, 551 U.S. at 551. The

Court also has “rejected the claim that a Bivens remedy

should be implied simply for want of any other means for

challenging a constitutional deprivation in federal court.”

Malesko, 534 U.S. at 69. Thus, an alternative remedy need not

be a federal remedy. See id.; Alba, 517 F.3d at 1254.

There is some tension between Malesko and other recent

Supreme Court cases, and Carlson, which suggested that the

only kind of alternative remedy that could defeat a Bivens

claim was one provided by Congress “which it explicitly

declared to be a substitute for recovery directly under the

Constitution and viewed as equally effective.” Carlson, 446

U.S. at 18-19; see also Peoples, 422 F.3d at 1097, 1102 (not-

ing that recent cases suggest that Bivens is presumptively

unavailable, whereas Carlson suggested that a Bivens claim is

presumptively available). The tension, however, can be

resolved by understanding the Carlson formulation as a “test

for express Bivens preemption” by a statute. Castaneda, 546

F.3d at 689, rev’d on other grounds, __ S. Ct. __, 2010 WL

POLLARD v. GEO GROUP, INC. 8185

1740524. Malesko, which did not involve any statute, did not

discuss this test. The Supreme Court has determined that

alternative remedies that are not expressly authorized by Con-

gress and are not an equally effective substitute nonetheless

may preclude a Bivens remedy. See Bush v. Lucas, 462 U.S.

367 (1983). More recently, in a case in which express statu-

tory preemption was not at issue, the Supreme Court has

stated that it will not recognize a new Bivens action if “any

alternative, existing process for protecting the interest

amounts to a convincing reason for the Judicial Branch to

refrain.” Wilkie, 551 U.S. at 550 (emphasis added). Finally,

even if Carlson and Malesko are truly irreconcilable, we

should follow the most recent Supreme Court precedent,

Malesko. Holly, 434 F.3d at 303 (Motz, J., concurring in the

judgment); Peoples, 422 F.3d at 1102.

The majority’s statement that in Wilkie, the existence of an

alternative state remedy alone was not sufficient to preclude

a Bivens action, Maj. Op. at 8166, is misleading. Rather, in

Wilkie, the Supreme Court considered that the plaintiff had

“an administrative, and ultimately a judicial, process for vin-

dicating virtually all of his complaints” for torts, improper

criminal charges, unfavorable agency actions, and other

offensive behavior by the Bureau of Land Management. 551

U.S. at 551, 553. The Court, however, found that the plaintiff

functionally did not have a remedy for his true complaint

regarding the agency’s course of dealing as a whole because

“the forums of defense and redress open to [the plaintiff] are

a patchwork, an assemblage of state and federal, administra-

tive and judicial benches applying regulations, statutes and

common law rules.” Id. at 554-55. It is too much of a stretch

to infer, as the majority does, that if the plaintiff had merely

complained of one or more torts, the Court would have

reached the same result. To the contrary, the Court noted that

“when the incidents are examined one by one, [the plaintiff’s]

situation does not call for creating a constitutional cause of

action for want of other means of vindication.” Id. at 555.

Further, the Wilkie Court concluded that, even where the rem-

8186 POLLARD v. GEO GROUP, INC.

edies available are a patchwork, the need for a Bivens remedy

is not particularly compelling, as “[i]t would be hard to infer

that Congress expected the Judiciary to stay its Bivens hand,

but equally hard to extract any clear lesson that Bivens ought

to spawn a new claim.” Id. at 554.

B. The need for uniformity is not compelling here.

Uniformity of liability is sometimes important to a Bivens

analysis. In Carlson, the Supreme Court stated that “the liabil-

ity of federal officials for violations of citizens’ constitutional

rights should be governed by uniform rules” and that “[t]he

question whether [an] action for violations by federal officials

of federal constitutional rights should be left to the vagaries

of the laws of the several States admits of only a negative

answer in the absence of a contrary congressional resolution.”4

Carlson, 446 U.S. at 23. Specifically, the Court concluded

that a uniform federal rule of survivorship for Eighth Amend-

ment Bivens claims was necessary where one state’s law

would permit survival of the claims but another would not. Id.

at 23-24. Essentially, state law previously had dictated

whether the prisoner’s claim died with him.

Here, however, the need for uniformity of rules is much

less compelling. First, although employees of a private corpo-

ration operating a federal prison may be government actors,

they are not federal officials and do not have the same immu-

nities as federal officials. Second, ordinary negligence and

medical negligence causes of action are already universally

available against employees of a private corporation operating

a federal prison, and the elements of such common law-

4

Following Carlson, this Circuit in Castaneda stated that the FTCA is

an inadequate alternative to Bivens because “[w]e do not believe that Con-

gress intended to delegate to the states the mechanism by which violations

of federally established rights are remedied,” and that “[w]e are aware of

no case holding a remedial scheme that is entirely parasitic on state law

to be a substitute for a Bivens remedy.” 546 F.3d at 701, rev’d on other

grounds, __ S. Ct. __, 2010 WL 1740524.

POLLARD v. GEO GROUP, INC. 8187

derived causes of action are fundamentally the same in every

state.

Unlike in Carlson, no individual state law forecloses or

extinguishes such actions altogether, although many states

have enacted various procedural hurdles and limits on non-

economic damages in medical malpractice suits. Castaneda,

546 F.3d at 690-91, rev’d on other grounds, __ S. Ct. __,

2010 WL 1740524. The majority points to the differences

between the California and Oregon statutes of limitations and

the fact that Pollard’s medical malpractice claim would be

subject to a non-economic damages cap under California law

but not under Oregon law. Maj. Op. at 8168-69. These differ-

ences, however, should not be determinative, as an alternative

remedy need not provide complete relief for the plaintiff. See

Bush, 462 U.S. at 388. Rather, as the Eleventh Circuit has

held, “[t]hat state procedural rules complicate the filing of a

lawsuit does not mean that a plaintiff lacks any alternative

remedy for harms caused by an individual officer’s unconsti-

tutional conduct,” and procedural hurdles in filing a state

action do not “render state relief unavailable in the same vein

in which the Supreme Court held it to be unavailable in

Bivens.” Alba, 517 F.3d at 1255 (internal quotation marks and

citation omitted); see also Peoples, 422 F.3d at 1104-05 (stat-

ing that Supreme Court precedents do not mandate recogni-

tion of a Bivens action “simply because an alternative state

law claim may be subject to a punitive damages cap to which

a federal claim is not”).

IV. Special factors also counsel hesitation in recognizing

a new Bivens action.

The availability of an adequate alternative remedy should

end the analysis. The court need not look at other special fac-

tors, such as whether extending the cause of action would: (1)

be feasible, (2) serve Bivens’s deterrence goals, or (3) impose

asymmetric liability costs. In any event, these factors do

8188 POLLARD v. GEO GROUP, INC.

counsel hesitation here and certainly do not counsel in favor

of recognizing a new Bivens action, as the majority suggests.

A. Case-by-case Bivens determinations are feasible.

First, although a Bivens action under the Eighth Amend-

ment for prisoners is a workable cause of action that is recog-

nized already, allowing a Bivens action to go forward only

where a plaintiff would otherwise have no alternative remedy

is not unduly complicated. Rather, the Supreme Court appears

to prefer case-by-case determinations of whether adequate

alternative remedies exist to a blanket determination that

Bivens is available to an entire class of plaintiffs. See Wilkie,

551 U.S. at 550, 554 (stating that the first step of the Bivens

analysis involves determining “whether any alternative, exist-

ing process for protecting the interest amounts to a convincing

reason for the Judicial Branch to refrain from providing a new

and freestanding remedy in damages” and that the next step

involves “weighing reasons for and against the creation of a

new cause of action, the way common law judges have

always done”). Thus, the Supreme Court has invited federal

courts to determine whether an alleged Eighth Amendment

violation has a state law analogue and apply Bivens only if

there is no such state analogue.

Further, the current system of determining whether a state

analogue exists is easy to administer because there is unlikely

to be an instance in which an Eighth Amendment violation by

a private prison employee is not a tort. An Eighth Amendment

violation requires a “ ‘sufficiently serious’ ” condition and

“ ‘deliberate indifference’ to inmate health or safety.” Farmer

v. Brennan, 511 U.S. 825, 834 (1994). Tort law similarly

imposes a duty of care on jailers or prison employees to pro-

tect the life and health of prisoners in their custody and pro-

tect the prisoners from foreseeable harm or unreasonable risk

of physical harm. See, e.g., Giraldo v. Dep’t of Corr. &

Rehab., 85 Cal. Rptr. 3d 371, 382-87 (Cal. Ct. App. 2008);

Restatement (Second) of Torts § 314A(1)(a), (4), illus. 6

POLLARD v. GEO GROUP, INC. 8189

(1965). Breach of this duty may give rise to a negligence

claim. See Giraldo, 85 Cal. Rptr. 3d at 390.

The majority does not contend that the acts alleged here fall

into the category of acts that violate the Eighth Amendment

but are not covered by state tort law, and that is not the case.

California, Oregon, and every other state recognize the torts

of negligence and medical negligence. The tort of negligence

also covers Pollard’s allegation that the prison employees

deprived him of food while his arms were in casts, as numer-

ous cases recognize that the keeper of a jail has a common

law duty to provide prisoners with food. See, e.g., Farmer v.

State ex rel. Russell, 79 So. 2d 528 (Miss. 1955); Richardson

v. Capwell, 176 P. 205, 208 (Utah 1918); Dabney v.

Taliaferro, 25 Va. (4 Rand.) 256 (1826).

There is no reason to think that either federal preemption

or the government contractor defense, which the majority

mentions, is applicable here. No federal law expressly or

impliedly preempts or directly conflicts with a state tort of

negligence or medical malpractice here, and federal law does

not occupy the field governing private corrections employees’

actions. The government contractor defense is not likely to

apply because there is no indication that the United States

directed the GEO employees’ treatment of Pollard. See

Malesko, 534 U.S. at 74 n.6 (noting that “[t]he record here

would provide no basis for such a defense,” which is available

when “the government has directed a contractor to do the very

thing that is the subject of the claim”).5

Because the conduct at issue here certainly is covered by

state tort law, the other examples the majority posits that may

violate the Eighth Amendment of the Constitution but may

not be covered by tort law are inapposite. In any event, I am

5

Because there is no reason to think that these defenses apply, I do not

share the majority’s concern about the district court’s dismissal of the case

pursuant to 28 U.S.C. § 1915A before the defendants made any filing.

8190 POLLARD v. GEO GROUP, INC.

not convinced that any of these acts—denying a prisoner

access to a toilet and thus exposing the prisoner to human

waste for thirty-six hours, depriving a prisoner of basic neces-

sities, completely depriving a prisoner of outdoor exercise for

a period of years, and exposing a prisoner to other unhygienic

conditions—would not be covered by tort law. Rather, each

act involves a clear breach of the duty of reasonable care and

would unreasonably jeopardize a prisoner’s health. See Irabor

v. Perry County Corr. Ctr., No. 06-0483-BH-C, 2008 WL

1929965, at *2-3 (S.D. Ala. Apr. 30, 2008) (holding that a

plaintiff had adequate state tort remedies available to redress

the denial of “basic necessities such as socks, toilet paper, and

soap”); Miller v. Owsley, 422 S.W.2d 39, 43 (Mo. 1967) (rec-

ognizing that a police officer fails to act with due care if the

officer confines a prisoner in an unfit and unsanitary place);

Richardson, 176 P. at 208 (stating that the keeper of a jail has

a common law duty to keep the jail warm and sanitary); Dab-

ney, 25 Va. (4 Rand.) 256 (holding that under common law,

a jailor has a duty to provide a prisoner with necessary sup-

plies, such as fuel for heat and bed covering); see generally

M. L. Schellenger, Annotation, Civil Liability of Sheriff or

Other Officer Charged with Keeping Jail or Prison for Death

or Injury of Prisoner, 14 A.L.R.2d 353, § 9.

B. Recognizing a Bivens action here would not deter

individual officers.

Second, as the majority recognizes, state tort liability deters

private prison officials from wrongdoing and may even pro-

vide more relief for Pollard than the Eighth Amendment

would because the deliberate indifference standard for Eighth

Amendment claims creates a high bar to hurdle. Maj. Op. at

8175. This undermines the deterrence analysis. Because “[t]he

purpose of Bivens is to deter individual federal officers from

committing constitutional violations,” Malesko, 534 U.S. at

70, the purpose of Bivens is not served where, as here, state

law already allows for compensatory and punitive damages

for the same conduct, Peoples, 422 F.3d at 1105. In such an

POLLARD v. GEO GROUP, INC. 8191

instance, a Bivens action is unnecessary. See id. Further, it is

difficult to see how potential procedural differences in state

laws or between the state and federal law would figure into

deterrence as a practical matter. As discussed supra, the court

should hesitate to create an unnecessary judicial remedy. See

Holly, 434 F.3d at 295.

C. Declining to recognize a Bivens action here would

avoid concerns about asymmetrical liability costs.

Finally, declining to recognize a Bivens action here would

avoid the concerns that the Supreme Court has expressed

about imposing asymmetrical liability costs. See Malesko, 534

U.S. at 72. Although declining to recognize a Bivens action

would perpetuate an existing public-private asymmetry

because Bivens actions are permitted against federal prison

employees but not private prison employees, declining to

create a Bivens action would not “impose costs on one wrong-

doer and not another.” Peoples, 422 F.3d at 1103 (emphasis

added). By contrast, recognizing that a plaintiff may pursue

both a Bivens action and a tort action against private prison

employees may impose asymmetrical liability costs, as a

plaintiff currently may assert tort claims against private prison

employees, while Bivens actions allow for recovery from fed-

eral employees where the FTCA otherwise bars tort claims

against them. See Malesko, 534 U.S. at 72-73 (noting that

“federal prisoners in private facilities enjoy a parallel tort

remedy that is unavailable to prisoners housed in government

facilities”); see also Peoples, 422 F.3d at 1103. Indeed, as the

majority notes, plaintiffs may be able to recover from private

prison employees more often than from federal prison

employees because private prison employees are not entitled

to qualified immunity. See Richardson v. McKnight, 521 U.S.

399, 401 (1997).

V. Conclusion

I would join with other circuits in concluding that a Bivens

cause of action is not available against employees of

8192 POLLARD v. GEO GROUP, INC.

privately-run prison corporations where, as here, state tort

laws provide a remedy. Accordingly, I respectfully dissent in

part.