Holly v. Scott

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICKY LEE HOLLY, 

Plaintiff-Appellee,

v.  No. 05-6287

WILLIE SCOTT; GADDY LASSITER,

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Louise W. Flanagan, Chief District Judge.

(CA-03-640-5-FL)

Argued: September 19, 2005

Decided: January 12, 2006

Before WILKINSON and MOTZ, Circuit Judges, and

R. Bryan HARWELL, United States District Judge for the

District of South Carolina, sitting by designation.

Reversed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Harwell joined. Judge Motz wrote a separate opinion

concurring in the judgment.

COUNSEL

Mark Allen Davis, WOMBLE, CARLYLE, SANDRIDGE & RICE,

Raleigh, North Carolina, for Appellants. James Phillip Griffin, Jr.,

NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,

Raleigh, North Carolina, for Appellee.

2 HOLLY v. SCOTT

OPINION

WILKINSON, Circuit Judge:

We granted interlocutory review in this case to decide whether

individual employees of a privately operated prison face Eighth

Amendment liability under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and its progeny

for allegedly providing inadequate medical care to a federal inmate.

We decline to extend the Bivens cause of action to these circum-

stances, both because the actions of the private prison employees are

not fairly attributable to the federal government and because the

inmate has adequate remedies under state law for his alleged injuries.

We therefore reverse the district court’s order denying defendants’

motion to dismiss.

I.

Plaintiff Ricky Lee Holly is a federal inmate at Rivers Correctional

Institution, a privately run facility in North Carolina operated by the

GEO Group, Inc. under contract with the federal Bureau of Prisons.

Defendant Willie Scott serves as Rivers’ warden, and defendant

Gaddy Lassiter works as a physician there. Scott and Lassiter are both

employed directly by GEO, and thus the only link between their

employment and the federal government is GEO’s contract with the

BOP.

Holly is a diabetic. He contends that since arriving at Rivers in

August 2002, defendants have failed to provide him with adequate

medical care for his condition. According to Holly, the medical staff

at Rivers has ignored his complaints that his insulin dosage was insuf-

ficient, which resulted in frequent blackouts. He suggests that the lack

of attention to his medical needs stems, at least in part, from failure

to request his medical records from another facility where he had

been incarcerated previously. He further claims that in retaliation for

a written complaint regarding the medical department, Lassiter

ordered that he be locked in the medical unit for twenty-four days and

threatened to keep him there for the remainder of his sentence.

HOLLY v. SCOTT 3

After unsuccessfully seeking relief through an administrative

scheme provided by Rivers, Holly filed a pro se complaint against

Scott and Lassiter in federal district court. The district court read

Holly’s complaint as alleging a violation of his Eighth Amendment

rights and stating a Bivens cause of action for damages.

Defendants filed a motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6), arguing that Bivens and its progeny

do not support a cause of action against individual employees of a pri-

vate correctional facility. The district court denied the motion, finding

that Holly’s claim satisfied the three preconditions for a Bivens rem-

edy as specified in Hall v. Clinton, 235 F.3d 202, 204 (4th Cir. 2000).

Congress had neither created an exclusive statutory remedy nor

expressly precluded money damages, and the district court found no

"special factors counselling hesitation in the absence of affirmative

action by Congress." Hall, 235 F.3d at 204 (internal quotation marks

omitted). We subsequently granted defendants’ petition for an inter-

locutory appeal.

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

under Rule 12(b)(6).1 Anita’s New Mexico Style Mexican Food, Inc.

v. Anita’s Mexican Foods Corp., 201 F.3d 314, 319 (4th Cir. 2000).

II.

In Bivens, the Supreme Court held that "violation of [the Fourth

Amendment] by a federal agent acting under color of his authority

gives rise to a cause of action for damages," despite the absence of

any federal statute creating liability. 403 U.S. at 389. Carlson v.

Green, 446 U.S. 14 (1980), extended Bivens to recognize an implied

damages action against federal prison officials for violation of the

Eighth Amendment. The question in this case is whether Carlson

should itself be extended to allow a similar remedy against employees

of a private corporation operating a prison.

1

There is no need for us to review the denial of defendants’ 12(b)(1)

motion, because our jurisdiction over Holly’s complaint is readily appar-

ent. Whether a remedy exists for a plaintiff alleging a violation of his

constitutional rights is itself a question of federal law sufficient to confer

federal jurisdiction. See Bell v. Hood, 327 U.S. 678, 683-85 (1946).

4 HOLLY v. SCOTT

Holly contends that a judicially implied cause of action for dam-

ages in his case follows logically from Bivens and Carlson. We dis-

agree. The Bivens cause of action is not amenable to casual extension.

Indeed, quite the opposite is true.

The Supreme Court has "responded cautiously to suggestions that

Bivens remedies be extended into new contexts." Schweiker v. Chil-

icky, 487 U.S. 412, 421 (1988). "In [over] 30 years of Bivens jurispru-

dence [the Court has] extended its holding only twice." Correctional

Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). The first time was

in Davis v. Passman, 442 U.S. 228 (1979), where the Court recog-

nized that a female deputy administrative assistant could claim dam-

ages under the Fifth Amendment’s Due Process Clause against a

Congressman who had fired her on the basis of her gender. The sec-

ond was Carlson’s extension of Bivens to Eighth Amendment suits

against federal prison officials. 446 U.S. 14.

Since the Carlson decision in 1980, the Court has consistently

declined to extend Bivens beyond these well-demarcated boundaries.

See Bush v. Lucas, 462 U.S. 367 (1983) (no Bivens action for

employee who suffered adverse employment action allegedly in viola-

tion of First Amendment because Congress had provided remedial

scheme); United States v. Stanley, 483 U.S. 669 (1987) (no Bivens

action arising out of military service); Schweiker, 487 U.S. 412 (no

Bivens action for alleged due process violation in denying Social

Security benefits because Congress had set up a remedial scheme);

Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994) (no Bivens

action against federal agency); Malesko, 534 U.S. 61 (no Bivens

action against private corporation operating federal correctional facil-

ity).

The Court’s repeated reluctance to extend Bivens is not without

good reason. A Bivens cause of action is implied without any express

congressional authority whatsoever. This is hardly the preferred

course. The Supreme Court has "recently and repeatedly said that a

decision to create a private right of action is one better left to legisla-

tive judgment in the great majority of cases." Sosa v. Alvarez-

Machain, 124 S. Ct. 2739, 2762-63 (2004); see also Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938) (abandoning the idea of a substantive

federal common law). The Court has therefore on multiple occasions

HOLLY v. SCOTT 5

declined to extend Bivens because "Congress is in a better position to

decide whether or not the public interest would be served" by the cre-

ation of "new substantive legal liability." Schweiker, 487 U.S. at 426-

27 (internal quotation marks omitted); Bush, 462 U.S. at 390 (same).

Congress possesses a variety of structural advantages that render it

better suited for remedial determinations in cases such as this. Uncon-

strained by the factual circumstances in a particular case or contro-

versy, Congress has a greater ability to evaluate the broader

ramifications of a remedial scheme by holding hearings and soliciting

the views of all interested parties. See, e.g., Bush, 462 U.S. at 389.

And by debating policies and passing statutes rather than deciding

individual cases, Congress has increased latitude to implement poten-

tial safeguards — e.g., procedural protections or limits on liability —

that may not be at issue in a particular dispute.

As the last twenty-five years of Bivens jurisprudence demonstrate,

so well-suited is Congress to determine the policies pertaining to a

remedial scheme that neither the absence nor the incompleteness of

such a scheme represents an invitation for a court to step in to correct

what it may perceive as an injustice toward an individual litigant. See

Malesko, 534 U.S. at 69 (citing Bush and Lucas). Here, for example,

there are a variety of statutes authorizing the housing of federal

inmates in privately operated facilities. See, e.g., 18 U.S.C. § 4013(b)

(2000). Congress passed these statutes in the belief that private man-

agement would in some circumstances have comparative advantages

in terms of cost, efficiency, and quality of service. To add a federal

damages remedy to existing avenues of inmate relief might well frus-

trate a clearly expressed congressional policy.

In light of the governing precedents, we have stated that a plaintiff

seeking a Bivens remedy must satisfy a three-part test. "[A] court

must determine that (1) Congress has not already provided an exclu-

sive statutory remedy; (2) there are no special factors counselling hes-

itation in the absence of affirmative action by Congress; and (3) there

is no explicit congressional declaration that money damages not be

awarded." Hall, 235 F.3d at 204 (internal quotation marks omitted).

While the first and third prongs are satisfied by Congress’s silence

regarding remedies for plaintiffs in Holly’s position, Holly cannot sat-

isfy the second.

6 HOLLY v. SCOTT

III.

This case presents two "special factors counselling hesitation,"

each of which independently precludes the extension of Bivens. First,

defendants are private individuals, not government actors. Second,

Holly has an adequate remedy against defendants for his alleged inju-

ries under state law.

It is in fact an understatement to consider these "special factors

counselling hesitation." Governmental action and the lack of another

legal remedy against individual defendants represent critical justifica-

tions for the very existence of the Bivens doctrine. To judicially infer

a cause of action where these elements are absent would be to release

that doctrine from its moorings and cast it adrift.

A.

The first factor counseling hesitation is that defendants’ actions are

not "fairly attributable" to the federal government. Lugar v. Edmond-

son Oil Co., 457 U.S. 922, 937 (1982). It is uncontested that defen-

dants are employees of GEO, a wholly private corporation in which

the federal government has no stake other than a contractual relation-

ship. We decline to extend Bivens to impute liability in such circum-

stances.

1.

Whatever our power to recognize new constitutional torts, we are

not free to ignore the importance of a party’s private status in our con-

stitutional scheme. The Bill of Rights is a negative proscription on

public action — to simply apply it to private action is to obliterate "a

fundamental fact of our political order." Lugar, 457 U.S. at 937. Stat-

utory and common law, rather than the Constitution, traditionally

govern relationships between private parties. See Edmonson v. Lees-

ville Concrete Co., 500 U.S. 614, 619 (1991). By placing limits upon

the Constitution’s application, we "preserve[ ] an area of individual

freedom by limiting the reach of federal law and federal judicial

power." Lugar, 457 U.S. at 936. This area of personal freedom is one

of the important structural features of our founding document. See

Edmonson, 500 U.S. at 619.

HOLLY v. SCOTT 7

Neither we nor the Supreme Court has had occasion to consider

whether and to what extent Bivens liability may apply to private citi-

zens.2 As a threshold matter, we harbor some doubt as to whether

such liability would ever be appropriate. Each of the defendants in

Bivens, Davis, and Carlson were in the direct employ of the federal

government. See Bivens, 403 U.S. at 389 (liability for "agents of the

Federal Bureau of Narcotics"); Davis, 442 U.S. at 230 (liability for

"United States Congressman"); Carlson, 446 U.S. at 16 (liability for

"federal prison officials"). As we have already discussed, there are

ample reasons for the Court’s reluctance to expand the boundaries of

this judicially created cause of action beyond where those cases have

placed them. Moreover, the Supreme Court has recently stated that

"[t]he purpose of Bivens is to deter individual federal officers from

committing constitutional violations." Malesko, 534 U.S. at 70

(emphasis added). It is unclear how permitting a lawsuit against an

individual who is not a federal officer could serve this purpose.

We need not decide this issue now, however. Even assuming that

Bivens liability is sufficiently expansive to encompass at least some

private individuals, our constitutional scheme necessarily constrains

its scope. In the context of constitutional claims under 42 U.S.C.

§ 1983, which expressly applies to individuals acting "under color of"

state law, courts have recognized the need to limit the liability of pri-

vate persons through application of the "state action" doctrine. Lugar,

457 U.S. at 935. Under this doctrine, we "insist[ ]" as a prerequisite

to liability "that the conduct allegedly causing the deprivation of a

federal right be fairly attributable to the State." Id. at 937. By doing

so, we maintain the Bill of Rights as a shield that protects private citi-

zens from the excesses of government, rather than a sword that they

may use to impose liability upon one another. Cf. Moose Lodge No.

2

The Supreme Court’s most recent Bivens decision noted that the ques-

tion of "whether a Bivens action might lie against a private individual"

was not presented. Malesko, 534 U.S. at 65. In that case, the Court held

that an inmate in a private correctional facility could not bring a Bivens

suit against the corporation operating the facility. 534 U.S. at 63. While

the Court’s logic rested in part on its conclusion that Bivens creates indi-

vidual liability rather than corporate liability, this does not answer the

expressly withheld question whether Bivens creates liability for private

individuals.

8 HOLLY v. SCOTT

107 v. Irvis, 407 U.S. 163, 172 (1972). "Without a limit such as this,"

the constitutional order would be disrupted because "private parties

could face constitutional litigation whenever they seek to rely on

some state rule governing their interactions with the community sur-

rounding them." Lugar, 457 U.S. at 937.

There exists ample reason to be even more cautious about imputing

liability to private actors under Bivens than under § 1983. Section

1983 is a congressional enactment that expressly creates liability for

"[e]very person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Colum-

bia" deprives an individual of any "rights, privileges, or immunities

secured by the Constitution" or other federal law.

Bivens, on the other hand, is a device of judicial creation. Although

it shares some features with § 1983 — e.g., the qualified immunity

analysis is the same under both, see Butz v. Economou, 438 U.S. 478,

504 (1978) — the Supreme Court "ha[s] never expressly held that the

contours of Bivens and § 1983 are identical."3 Malesko, 534 U.S. at

82 (Stevens, J., dissenting). Application of Bivens to private individu-

als simply does not find legislative sanction. Under such circum-

stances, the danger of federal courts failing "to respect the limits of

their own power," Lugar, 457 U.S. at 936-37, increases exponentially.

2.

We have recognized that there is "no specific formula" for deter-

mining whether state action is present. Hicks v. S. Md. Health Sys.

Agency, 737 F.2d 399, 402 n.3 (4th Cir. 1984) (internal quotation

marks omitted). "What is fairly attributable [to the state] is a matter

of normative judgment, and the criteria lack rigid simplicity." Brent-

wood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288,

295 (2001). While a variety of factors may bear upon the inquiry,

none is individually dispositive; instead, they serve to inform an eval-

uation of the "totality of the circumstances." Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000); see also

3

It is an open question in this circuit whether § 1983 imposes liability

upon employees of a private prison facility under contract with a state.

We need not decide that issue here.

HOLLY v. SCOTT 9

Mentavlos v. Anderson, 249 F.3d 301, 311-12 (4th Cir. 2001) (cata-

loging various approaches to determining state action).

The alleged actions of these defendants were not of a sufficiently

federal character to create constitutional liability. Defendants are not

federal officials, federal employees, or even independent contractors

in the service of the federal government. Instead, they are employed

by GEO, a private corporation. There is no suggestion that the federal

government has any stake, financial or otherwise, in GEO. See, e.g.,

DeBauche v. Trani, 191 F.3d 499, 507-08 (4th Cir. 1999) (recogniz-

ing the high degree of interdependence necessary for private enter-

prise to become state action). Nor is there any suggestion that federal

policy played a part in defendants’ alleged failure to provide adequate

medical care, or that defendants colluded with federal officials in

making the relevant decisions. See, e.g., Hicks, 737 F.2d at 403 (find-

ing private entity was not a federal actor where government did not

regulate relevant procedures, did not "control policy directives," and

had "minimal influence over [defendant’s] day-to-day functioning").

To be sure, GEO, like a great many private corporations, does busi-

ness under contract with the government. But this is not by itself

enough to subject it to constitutional liability, see Rendell-Baker v.

Kohn, 457 U.S. 830, 840-41 (1982), let alone to create such liability

for its individual private employees.

Holly argues, however, that liability exists here by virtue of the fact

that GEO’s particular business involves prisons and is thus a "public

function." The "‘public function’ theory" recognizes the existence of

"narrow circumstances" where state action arises from the "‘exercise

by a private entity of powers traditionally exclusively reserved to the

State.’" Andrews v. Fed. Home Loan Bank of Atlanta, 998 F.2d 214,

218 (4th Cir. 1993) (quoting Jackson v. Metro. Edison Co., 419 U.S.

345, 352 (1974)). Those circumstances are not present here, however.

The Supreme Court’s analysis in Richardson v. McKnight, 521 U.S.

399 (1997), precludes argument that the operation of a prison is a tra-

ditionally exclusive state function.

Richardson involved a § 1983 suit against prison guards employed

by a private prison management corporation under contract with the

state of Tennessee. Id. at 401-02. The Court did not decide whether

§ 1983 permitted such a suit and addressed only the narrow question

10 HOLLY v. SCOTT

whether the guards should receive qualified immunity. See id. at 413.

The Court decided that they should not, in part because "correctional

functions have never been exclusively public." Id. at 405. The Court’s

historical analysis revealed that the private operation of jails and pris-

ons existed in the United States in the eighteenth and nineteenth cen-

turies, id. at 405, and in England the practice dated back to the Middle

Ages, id. at 407. Therefore, under the test articulated in Jackson, the

operation of prisons is not a "public function."

Holly attempts to sidestep the analysis in Richardson in two ways.

First, he urges that the "function" to which we should look is not the

administration of a prison, but rather the power to keep prisoners

under lock and key. This argument misapprehends the proper nature

of our inquiry. In determining the presence of state action, we are not

to conduct a far-flung investigation into all of a defendant’s possible

activities, but rather must focus on "‘the specific conduct of which the

plaintiff complains.’" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982));

see also Blum, 457 U.S. at 1003 ("Faithful adherence to the ‘state

action’ requirement . . . requires careful attention to the gravamen of

the plaintiff’s complaint."). The inadequate medical care alleged in

this case unquestionably arises out of defendants’ operation of the

prison, not the fact of Holly’s incarceration. If Holly’s complaint were

in fact that he is being held unlawfully, he would have filed a statu-

tory habeas action under 28 U.S.C. § 2255, not a Bivens claim.

Second, Holly reads West v. Atkins, 487 U.S. 42 (1988), to suggest

that the provision of medical care to an inmate is always a public

function, regardless of what entity operates the correctional facility

where he is housed. West cannot bear the weight that Holly would

place upon it. There, the Supreme Court held that "a physician

employed by North Carolina to provide medical services to state

prison inmates[ ] acted under color of state law for purposes of

§ 1983." 487 U.S. at 54; see also Conner v. Donnelly, 42 F.3d 220

(4th Cir. 1994) (state action to treat prisoner housed in state-run facil-

ity even where physician had no contract with state and provided care

outside prison). Even assuming we would consider liability under

Bivens coextensive with § 1983 under such circumstances, West

instructs that "the dispositive issue" in the state action inquiry "con-

cerns the relationship among the State, the physician, and the pris-

HOLLY v. SCOTT 11

oner." West, 487 U.S. at 56. That relationship is very different in this

case, where the correctional facility is privately run, than in West and

Conner, where the state itself was directly responsible for managing

the prison. See West, 487 U.S. at 43-44 (noting that the "state-prison

hospital" was "operated by the State"); Conner, 42 F.3d at 221 (noting

that the question presented concerned "an inmate of a state-run

prison"); see also West 487 U.S. at 56 n.15 (recognizing that physi-

cian’s "delivery of medical care was not unaffected by the fact that

the State controlled the circumstances and sources of a prisoner’s

medical treatment").

Richardson demonstrates that this distinction between public and

private correctional facilities is critical. The state’s responsibilities are

necessarily greater when it undertakes direct authority over prisoners’

day-to-day care. We cannot conclude that provision of medical care

in a private prison is somehow a "public function" while maintaining

fidelity to Richardson that the prison’s general operation is not.

In addition to settling the issue whether defendants are liable for

performing a public function, Richardson undercuts Holly’s argument

in another respect as well. Since qualified immunity under Bivens and

§ 1983 are identical, see Butz, 438 U.S. at 504, were we to find defen-

dants potentially liable, the holding of Richardson would preclude us

from granting them a qualified immunity defense. This would put

prisoners in private facilities in a more favorable position than their

counterparts in federally operated prisons: they would be eligible to

recover damages even where the unconstitutionality of the prison offi-

cials’ conduct had not been clearly established by prior judicial deci-

sions. In the absence of statutory authority, we are reluctant to create

an anomaly whereby private defendants face greater constitutional lia-

bility than public officials. See Malesko, 534 U.S. at 71-72 (finding

"no reason . . . to consider extending Bivens" in part because "no fed-

eral prisoners enjoy [plaintiff’s] contemplated remedy").

In sum, even if there did exist circumstances where a private party

could be subject to liability under Bivens, this case does not present

them. Both judicial restraint in the creation of extra-statutory reme-

dies and the doctrine of state action compel us to refrain from extend-

12 HOLLY v. SCOTT

ing Bivens liability to the individual employees of a private

corporation operating a correctional facility.4

4

Our concurring colleague would create out of whole cloth constitu-

tional liability for private employees of a private corporation. The con-

currence sees no distinction between § 1983 and Bivens remedies, and

intermingles the caselaw of both to argue that defendants are "govern-

ment actors." But there is a world of distinction between § 1983 and

Bivens remedies. Congress has authorized the former, and Congress has

in no way authorized the latter. Contrary to the concurrence’s intimation,

therefore, it is impossible to create a "circuit split" with § 1983 cases

which do not even address the issue before this court.

Ironically, the concurrence contends the majority itself intermingles

§ 1983 and Bivens, but the concurrence misses the critical point: the

majority has used § 1983 to buttress the importance of Congress’s role,

not to undermine it. The majority has never relied on § 1983 or any other

express cause of action created by Congress to extend liability for dam-

ages under a cause of action that Congress has not seen fit to create. And

it certainly has not done so in the face of repeated Supreme Court admo-

nitions that Bivens remedies are to be carefully circumscribed. If Con-

gress wishes to adopt the concurrence’s position and extend the Bivens

cause of action to private employees of private entities, it has only to do

so. The fact that it has not done so, however, gives the concurrence no

license to use § 1983 or any other provision to create causes of action on

its own.

This intermingling of § 1983 and Bivens cases leads the concurrence

to misread Malesko. The concurrence acknowledges that Malesko "did

not reach the precise question of whether a Bivens action would lie

against individual ‘private correctional providers,’" but then asserts that

the decision nevertheless "expressly recognize[d]" that "such individuals

are government actors . . . subject to suit." Concurring Op. at 18. It relies

for this contradictory assertion on a half-sentence in a footnote suggest-

ing that private correctional employees could be liable under § 1983. See

id. (citing 534 U.S. at 72 n.5). This half-sentence did not purport to hold

that private employees were liable under § 1983, because that issue was

not before the Court. And it certainly cannot be read to imply the much

more aggressive holding that a judicially implied Bivens remedy would

extend to the private employees of a private company. See supra note 2

(noting that the Court did not intend to so hold).

Finally, we cannot agree with the concurrence’s assertion that "defen-

dants perform a public function." Concurring Op. at 18. As we have dis-

HOLLY v. SCOTT 13

B.

In addition to the issue of government action, a second independent

factor counseling hesitation is that Holly possesses alternative — and

arguably superior — causes of action against defendants under the

state law of negligence. The dangers of overreaching in the creation

of judicial remedies are particularly acute where such remedies are

unnecessary. We decline to invite such dangers by recognizing Bivens

liability here.

The Supreme Court has extended Bivens in only two circum-

stances. Malesko, 534 U.S. at 70. One has been "to provide a cause

of action for a plaintiff who lacked any alternative remedy for harms

caused by an individual officer’s unconstitutional conduct." Id. This

was the rationale both for Bivens itself and for Davis, where the plain-

tiffs’ injuries would have gone entirely unredressed without an

implied constitutional remedy. See id. at 74 (noting that each case

involved "a plaintiff in search of a remedy"); Davis, 442 U.S. at 245

(recognizing damages remedy where "[f]or Davis, as for Bivens, it is

damages or nothing") (internal quotation marks omitted); Bivens, 403

U.S. at 394 (recognizing damages remedy where state law "may be

inconsistent or even hostile" to interests protected by the Fourth

Amendment).

The other rationale for extension of Bivens has been "to provide an

otherwise nonexistent cause of action against individual officers

alleged to have acted unconstitutionally." Malesko, 534 U.S. at 70.

This was the rationale behind Carlson, where relief was available

only against the government itself, and not against the individual tort-

feasors. See id. at 74 (noting that in Carlson "a cause of action against

cussed, Richardson rather than West is controlling when a privately run

correctional facility is at issue. With all due respect to the concurrence,

we lack the power to displace Richardson’s determination of historical

fact that "correctional functions have never been exclusively public." 521

U.S. at 405. And we likewise lack the power to imply private causes of

action for damages against private individuals in private facilities with-

out congressional input and to the utter exclusion of the legislative func-

tion.

14 HOLLY v. SCOTT

an individual officer" was "otherwise lacking"); Carlson, 446 U.S. at

21 (discussing the fact that the plaintiff’s Federal Tort Claims Act

remedy did not allow for recovery against the individual officers

responsible for violating his rights).

But "where [these two] circumstances are not present," the Court

has "consistently rejected invitations" to enlarge the scope of the judi-

cially created Bivens remedy. Malesko, 534 U.S. at 70. Neither cir-

cumstance is present here. Holly does not contest that state law

provides him with an "alternative remedy" and that this alternative

remedy includes a "cause of action against individual officers." North

Carolina law in fact supplies Holly with multiple potential claims

against the individual defendants. See, e.g., Summey v. Barker, 573

S.E.2d 534, 536 (N.C. Ct. App. 2002) (suit by hemophiliac detainee

for, inter alia, negligence, medical negligence, and cruel and unusual

punishment, based upon authorities’ and doctors’ failure to properly

treat his nosebleed). These claims include the possibility of recover-

ing punitive damages if he can prove by clear and convincing evi-

dence that defendants’ conduct was willful, wanton, or malicious.

N.C. Gen. Stat. § 1D-15 (2003). In addition to his causes of action

against the individual defendants, he can also sue GEO under a

respondeat superior theory. See Johnson v. Lamb, 161 S.E.2d 131,

137 (N.C. 1968).

Holly’s reliance upon Carlson as supporting his Bivens action here

is therefore unpersuasive. The key feature of Carlson was that, unlike

this case, it presented a situation where the plaintiff sought "a cause

of action against an individual officer" that was "otherwise lacking."

Malesko, 534 U.S. at 74. As opposed to the various state law causes

of action against defendants and against GEO that are available to

Holly, the Carlson plaintiff’s "only alternative" to a Bivens claim

"was a Federal Tort Claims Act (FTCA) claim against the United

States." Id. at 68; see 446 U.S. at 16-17. This placed Carlson squarely

within the circumstance where extending Bivens "provide[d] an other-

wise nonexistent cause of action against individual officers."

Malesko, 534 U.S. at 70 (emphasis removed); see also id. at 71 ("core

premise" of Bivens is the "deterrence of individual officers"); Meyer,

510 U.S. at 485 ("[T]he purpose of Bivens is to deter the officer.").

Indeed, it is precisely because an inmate in a federally run facility has

a cause of action against the government itself under the FTCA that

HOLLY v. SCOTT 15

he lacks the types of state law claims against individual defendants

that are available to Holly. See 28 U.S.C. § 1346(b)(1) (2000) (creat-

ing a cause of action against the United States for the negligence of

its employees); id. § 2679(b)(1) (precluding any other cause of action

against the federal employee under such circumstances).

We agree therefore with the only other circuit to address this issue

that an inmate in a privately run federal correctional facility does not

require a Bivens cause of action where state law provides him with

an effective remedy. See Peoples v. CCA Detention Ctrs., 422 F.3d

1090, 1103 (10th Cir. 2005). Holly already enjoys claims that an

inmate in a government-run facility would not have. In requesting that

we also grant him a Bivens claim — indeed, that we grant him a supe-

rior one in which qualified immunity is unavailable — Holly seeks

much more than is necessary to remedy his alleged injuries. This is

not a circumstance under which the extension of a judicially implied

remedy is appropriate.

IV.

The judgment of the district court is therefore reversed and the case

is remanded with directions that it be dismissed.

REVERSED

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-

ment:

The majority’s holding that private correctional employees are not

governmental actors ignores or misreads controlling Supreme Court

case law. Those cases, as well as numerous cases from other federal

courts, establish that individual private correctional providers are

government actors subject to liability as such. Accordingly, I cannot

join the majority opinion. However, because Ricky Holly possesses

an alternative remedy for his alleged injuries, no action under Bivens

v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1991), lies in this case. For that reason alone, I concur

in the judgment.

16 HOLLY v. SCOTT

I.

The strictures of the Constitution generally apply only to public

action. However, when private individuals take actions attributable to

the government, they are liable, as government actors, for damages

resulting from their constitutional violations. See, e.g., Evans v. New-

ton, 382 U.S. 296, 299 (1966) ("Conduct that is formally ‘private’

may become so entwined with governmental policies or so impreg-

nated with a governmental character as to become subject to the con-

stitutional limitations placed upon state action."). In this case, the

government has delegated its authority to the privately employed

defendants, empowering them to incarcerate, to confine, to discipline,

to feed, and to provide medical and other care to inmates who are

imprisoned by order of the federal government. The defendants are

acting as agents of the government; their actions are thus clearly

attributable to the federal government, and a prisoner must be able to

seek redress from the defendants if they cause him constitutional

injury. Therefore, if Holly had no alternative remedy for the alleged

deprivation of his constitutional rights, it seems to me that he could

certainly bring a Bivens action against these defendants.

As the majority itself recognizes — nothwithstanding its response

to this concurrence, ante at 12 n.4, which I address post at 22-24 —

the determination of whether the defendants are governmental actors

for Bivens purposes rests on the "state action" principles developed by

the Supreme Court in cases involving liability of private persons

under 42 U.S.C. § 1983 (2000). See ante at 6, 8-9 (citing and relying

on numerous § 1983 state action cases). But what the majority fails

to recognize is that under this case law, the defendants here — indi-

vidual private prison guards — are indeed governmental actors. In

these cases, the Supreme Court has held that, in general, when a pri-

vate person acts under authority given to him by the government, or

is fulfilling an obligation or responsibility that is traditionally a public

function, his conduct will be imputed to the government and thus con-

sidered government action for purposes of imposing liability. See,

e.g., Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620

(1991); Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Lugar v.

Edmundson Oil Co., Inc., 457 U.S. 922, 937 (1982) (all cited by the

majority). Moreover, applying these principles, the Court has con-

cluded that private correctional employees are governmental actors.

HOLLY v. SCOTT 17

First, almost thirty years ago, the Court recognized an obligation

on the part of the government’s correctional employees "to provide

medical care for those whom it is punishing by incarceration." Estelle

v. Gamble, 429 U.S. 97, 103 (1976); see also Carlson v. Green, 446

U.S. 14, 18-19 (1980) (holding that the federal government has the

same obligation). The Estelle Court explained that necessity com-

pelled this holding: "[a]n inmate must rely on prison authorities to

treat his medical needs; if the authorities fail to do so, those needs will

not be met." Id. Accordingly, the Court held that an inmate could

bring a § 1983 action for Eighth Amendment violations against vari-

ous state correctional employees, including a prison physician, for

failing to provide adequate medical care. Then, almost twenty years

ago, in West v. Atkins, 487 U.S. 42, 54 (1988), the Court extended that

obligation to private correctional employees under contract with the

state, holding that a prisoner could bring a § 1983 action against a pri-

vate doctor rendering medical care to inmates because the acts of the

doctor were attributable to the government.

Tellingly, in West a majority of the Fourth Circuit had refused to

so hold, reasoning that the private doctor was not a governmental

actor. West v. Atkins, 815 F.2d 993, 994 (4th Cir. 1987) (en banc).

After noting that every other circuit to consider the question had

implicitly or explicitly rejected the Fourth Circuit’s view, the

Supreme Court unanimously reversed. West, 487 U.S. at 47-48 & n.7,

54. Moreover, the Court held that the approach of the en banc Fourth

Circuit majority misread and misunderstood prior Supreme Court pre-

cedent in its failure to recognize that a private doctor, "authorized and

obliged" by the government to treat prison inmates, is a government

actor subject to liability as such. Id. at 55.

The mere fact that the government did not directly employ the pri-

vate doctor in West did not preclude him from being a governmental

actor. The Supreme Court explained that government action derives

from the individual’s "function within the state system, not the precise

terms of his employment." Id. Under this standard, the Court found

no relevant distinction between the publicly employed doctors in

Estelle and the private doctor in West. Id. As with its public employ-

ees, the government was liable for the private doctor’s Eighth

Amendment violations because the government had invested the doc-

tor with power "to provide medical services to state prison inmates."

18 HOLLY v. SCOTT

Id. at 54. If the doctor misused that power, "the resultant deprivation

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

State’s exercise of its right to punish [the inmate] by incarceration and

to deny him a venue independent of the State to obtain needed medi-

cal care." Id. at 55. Because the private doctor was "fully vested with

state authority to fulfill essential aspects" of his duties, the doctor

must "be considered to be a state actor." Id. at 57.

So it is in this case. The defendants have been "fully vested" with

the governmental authority to "fulfill essential aspects" of their duties,

e.g., confinement and care of prisoners incarcerated by the govern-

ment. The defendants perform a public function delegated to them by

the federal government, and they assume the necessary obligations

inherent in that function. The assumption and performance of these

critical governmental duties and the role these individuals play in the

penal system surely put more at stake here than the mere "contractual

relationship" dismissed by the majority. See ante at 6. Rather, just as

in West, any alleged constitutional harm suffered by Ricky Holly was

caused "in the sense relevant for [government]-action inquiry" by the

government’s power to punish and incarcerate him, depriving him of

alternative means of care independent of the government. West, 487

U.S. at 55. And, as in West, the fact that the defendants are not direct

employees of the government does not in any way alter their funda-

mental obligations, for it is their "function within the [federal] system,

not the precise terms of [their] employment" that makes their conduct

governmental action. Id. Accordingly, again as in West, the defen-

dants are "possessed of [governmental] authority" and so must be

considered governmental actors. Id. at 56 n.15.

The Supreme Court has never retreated from its holding in West.

Indeed, only four years ago, in its most recent Bivens case, the Court

specifically acknowledged that individual private correctional provid-

ers (not just private prison doctors) are government actors. See Corr.

Servs. Corp. v. Malesko, 534 U.S. 61 (2001). In Malesko, the Court

did not reach the precise question of whether a Bivens action would

lie against individual "private correctional providers," but it did

expressly recognize that such individuals are government actors

whose conduct is attributable to the government; thus, they would, in

the appropriate case, be subject to suit on that basis. Id. at 72 n.5 (not-

HOLLY v. SCOTT 19

ing that prisoners "enjoy a right of action against private correctional

providers under 42 U.S.C. § 1983").

The majority ignores Malesko’s express acknowledgment that indi-

vidual private correctional providers are government actors and

unconvincingly dismisses the strikingly similar West precedent as

"very different." Ante at 11.1 Instead of following Malesko and West,

binding Supreme Court precedent as to the liability of private correc-

tional employees as government actors, the majority relies on a case

involving a question not presented here — whether private persons

sued as government actors under § 1983 enjoy qualified immunity for

their actions. See Richardson v. McKnight, 521 U.S. 399 (1997).

The majority posits that Richardson (which, of course, predates

Malesko) "precludes argument that the operation of a prison is a tradi-

tionally exclusive state function" and that therefore, private correc-

tional providers are not government actors for purposes of imposing

liability. Ante at 9. But Richardson does nothing of the sort; the case

deals only with a private person’s immunity from liability. Richard-

son, 521 U.S. at 401, 413. That question, as the Supreme Court has

acknowledged, does not control the separate question of whether a

private party can be liable as a governmental actor. See Wyatt v. Cole,

504 U.S. 158, 168-69 (1992) (holding certain "private defendants" not

entitled to the qualified immunity afforded government officials but

remanding for determination as to whether they are liable as govern-

ment actors); see also, United States v. Thomas, 240 F.3d 445, 448-

49 (5th Cir. 2001) (holding employee of private detention center a

"public official" for purposes of the Federal Bribery Statute and dis-

tinguishing Richardson on the ground that "policy considerations sup-

1

This assertedly critical difference is that while in West the govern-

ment had a contract with the private doctor who cared for the prisoners,

here the government contracts with a private entity which in turn

employs those who care for prisoners. Ante at 11. The majority thus sug-

gests that by adding an additional layer, the government can contract

away its constitutional duties. West itself expressly rejects this disturbing

contention, instructing that "[c]ontracting out" care "does not relieve" the

government of its "constitutional duty" to provide adequate care or "de-

prive inmates of the means to vindicate their Eighth Amendment rights."

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

20 HOLLY v. SCOTT

porting private corrections officers’ not being entitled to qualified

immunity are quite different from those concerning whether they are

‘public officials’ for purposes of the federal bribery statute").

The fact is that, at least in this country, incarceration of those

charged with committing crimes is, and always has been, the province

and prerogative of the government. That historically immunity has not

been afforded those performing some correctional duties demon-

strates only that the government has delegated some of its correctional

functions to private actors. Richardson, 521 U.S. at 405-07. These

correctional functions have not been "exclusively public," id., only in

the sense that private individuals have long been empowered by the

government to fulfill the tasks involved in the fundamentally govern-

mental function of incarceration of criminals. But this government

delegation of some duties to private persons or entities does not

change the public character of the underlying function performed by

"private correctional providers," as the Court recognized in Malesko,

534 U.S. at 72 n.5.

Indeed, in Richardson itself, the Court recognized that its historical

discussion did not apply to questions of governmental action. After

concluding that the defendants lacked qualified immunity, the Rich-

ardson Court remanded for a determination of whether the defendants

were, in fact, liable as governmental actors for their operation, con-

finement, and care of inmates. Richardson, 521 U.S. at 413. If the

Court’s historical analysis of "public function" for immunity purposes

were meant to control the "public function" determination for liability

purposes — as the majority holds today — the Court would not have

needed to remand the case at all.

Certainly, incarcerating and caring for those confined by the gov-

ernment for criminal conduct is just as much a public function as

maintaining a park, Evans v. Newton, 382 U.S. 296 (1966), running

an election, Terry v. Adams, 345 U.S. 461 (1953), or operating a com-

pany town, Marsh v. Alabama, 326 U.S. 501 (1946). All of these

functions "traditionally serve[ ] the community" no matter who per-

forms them, and surely the "predominant character and purpose" of

a prison is as governmental as these other functions. Evans, 382 U.S.

at 302. Thus, those performing the fundamental governmental func-

tion at issue here, like those in Evans, Terry, and Marsh, are govern-

HOLLY v. SCOTT 21

mental actors whether publicly or privately employed and are subject

to liability as such.2

Numerous courts have so held, both before and after Richardson.

See, e.g., Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461

(5th Cir. 2003) (holding that employees of a private correctional facil-

ity perform a "fundamentally government function" — "confinement

of wrongdoers" — and so are government actors for § 1983 pur-

poses); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.

1996) (same); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703

(11th Cir. 1985) (explaining that employees of private health corpora-

tion are state actors when performing the public function of providing

required medical services to inmates); Sarro v. Cornell Corr., Inc.,

248 F. Supp. 2d 52, 60-62 (D.R.I. 2003) (holding that employees of

a private operator of a prison facility perform a government function

traditionally reserved to the government and are government actors

for Bivens purposes); Palm v. Marr, 174 F. Supp. 2d 484, 487-88

(N.D. Tex. 2001) (holding that employees of a private prison facility

exercise powers that are traditionally the exclusive prerogative of the

state and so are governmental actors for § 1983 purposes); Giron v.

Corr. Corp. of Am., 14 F. Supp. 2d 1245, 1249 (D.N.M. 1998) (hold-

ing that "[t]he function of incarcerating people, whether done publicly

or privately, is the exclusive prerogative of the state"); Kesler v. King,

29 F. Supp. 2d 356, 370-71 (S.D. Tex. 1998) (concluding that "the

incarceration of inmates . . . falls within the exclusive responsibility

of the state" and so holding that the warden of a private correctional

2

It is worth noting that, despite the majority’s "reluctan[ce] to create

an anomaly whereby private defendants face greater constitutional liabil-

ity than public officials," see ante at 11, the majority creates its own

anomaly. That is, the majority holds that even though an individual guard

employed by a private correctional facility under contract with the state

government is a governmental actor liable for his constitutional wrongs,

an individual guard employed by a private correctional facility under

contract with the federal government somehow is not. Thus the majority

places inmates in private correctional institutions under contract with a

state government "in a more favorable position than their counterparts"

in private correctional facilities under contract with the federal govern-

ment, id.; the former could bring a § 1983 action in the proper case to

recover damages for constitutional wrongs, while the latter could never

bring the analogous federal action.

22 HOLLY v. SCOTT

facility is a governmental actor subject to § 1983 liability); Nelson v.

Prison Health Servs., Inc., 991 F. Supp. 1452, 1463 (M.D. Fla. 1997)

(explaining that nurses employed by private company providing med-

ical services for a jail are considered state actors for § 1983 liability).

In holding to the contrary, the majority disregards all of this author-

ity and creates a circuit split. Indeed, like the en banc majority in

West, the majority’s view stands alone among the federal circuits

addressing this point. Cf. Rosborough, 350 F.3d at 461; Street, 102

F.3d at 814; Ancata, 769 F.2d at 703.3 Even more disturbingly, the

majority, again like the en banc majority in West, misreads and mis-

understands Supreme Court precedent. Pursuant to that precedent, the

defendants here were clearly exercising authority fairly attributable to

the government and so are government actors for liability purposes.

The only substantive response the majority offers to this concur-

rence is an argument that because § 1983 actions are statutory and

Bivens actions judicially created, I err in relying on § 1983 precedent

in this Bivens case. See ante at 12 n.4.4 This argument utterly fails.

3

Notably, the only other circuit to consider the precise question pre-

sented here — whether an inmate can bring a Bivens action against pri-

vate correctional employees — does not share the majority’s view on this

point. See Peoples v. CCA Detention Ctrs., 422 F.3d 1090 (10th Cir.

2005). The Tenth Circuit, unlike the majority here, did not hold that the

Bivens action failed because the private defendants were not governmen-

tal actors. Rather, the Tenth Circuit (adopting the same approach I do

here) refused to imply a Bivens action solely because it concluded that

in the case before it, an alternative remedy precluded the Bivens action.

Id. at 1108.

4

The majority claims that this improper "intermingling" of § 1983 and

Bivens cases leads me to make allegedly "contradictory" assertions about

Malesko and to "create causes of action." See ante at 12 n.4. Actually it

is the majority that misunderstands Malesko. There is nothing "contradic-

tory" in noting that Malesko did not reach the precise question as to

whether a Bivens action would lie against individual private correctional

providers but did recognize that they are government actors, because, as

the case at hand demonstrates, it may be that no Bivens action lies even

when defendants are government actors. Like the Malesko Court, I

"create" no "cause of action" at all, but rather conclude that no Bivens

action lies here. Government action is a necessary but not sufficient pre-

requisite to a Bivens action.

HOLLY v. SCOTT 23

While different in origin, § 1983 and Bivens actions are identical in

the respect critical here — both involve imposition of liability on gov-

ernmental actors for constitutional violations. In view of the scarcity

of cases discussing governmental actor status under federal law,

§ 1983 cases determining the liability of private persons as state

actors provide valuable guidance when determining the liability of

private persons as federal actors. See e.g., Brown v. Philip Morris

Inc., 250 F.3d 789, 801 (3rd Cir. 2001) (explaining that a Bivens

action is "the federal equivalent of the § 1983 cause of action," and

holding in a Bivens case that "[i]n order to determine whether the con-

duct of a private party should be attributable to the federal govern-

ment, courts apply the ‘state action’ analysis set forth by the Supreme

Court" in § 1983 cases). See also, Edmondson, 500 U.S. at 621-22

(explaining, in a case involving a federal actor, that "certain principles

of general application" should be applied to determine "whether a par-

ticular course of conduct is governmental in character"). In fact,

despite its lengthy footnote criticizing me, earlier in its opinion the

majority itself cites § 1983 "state action" cases as providing the prin-

ciples to be followed in determining whether the private defendants

here are government actors. See ante at 6, 8-9.

Indeed, the majority builds its entire holding that the defendants are

not government actors on a § 1983 case. In doing so, however, the

majority eschews the relevant § 1983 precedent it initially cites, and

instead commits the very sin it accuses me of — "intermingling"

cases from different "worlds." Id. at 12 n.4. For the majority can con-

clude that the defendants are not government actors only by holding

that Richardson, a § 1983 qualified immunity case, "is controlling" on

the very different question presented here — whether a private person

is liable as a governmental actor. Id. That the majority holds a defen-

dant’s entitlement to qualified immunity "controls" his liability —

when the Supreme Court expressly refused to do so both in Wyatt and

Richardson itself — speaks volumes.

Thus, in its attempt to counter my concurrence, the majority is

forced into the untenable position of disavowing clearly relevant pre-

cedent on which it itself otherwise relies, and then finding "control-

ling" an inapposite case dealing with a wholly different issue. The

majority must steadfastly rely on an immunity case and resolutely

refuse to acknowledge the applicability of the cases dealing with the

24 HOLLY v. SCOTT

liability of government actors because to do otherwise makes the con-

clusion I have reached — that the defendants are indeed government

actors — inescapable.

II.

Although Supreme Court precedent thus dictates that the defen-

dants here are governmental actors, the Court has indicated that a

court should not imply a Bivens cause of action against government

actors if the plaintiff possesses an alternative remedy.5 Because Holly

possesses an alternative remedy against the defendants under state tort

law, I must concur in the judgment.

In Peoples v. CCA Detention Ctrs., 422 F.3d 1090, 1109-1111

(10th Cir. 2005) (Ebel, J., concurring and dissenting), Judge Ebel

forcefully set forth a contrary view — that to be sufficient to preclude

a Bivens action, the alternative remedy "must be a constitutional

cause of action," and so state tort law is inadequate. Some of the lan-

guage and reasoning in Bivens, 403 U.S. at 391-92, and Carlson, 446

U.S. at 24, support this position.

In the years since Bivens and Carlson, however, the Court has

retreated from this view, instead limiting a Bivens cause of action to

cases in which no alternative remedy — constitutional or otherwise

— exists. See Malesko, 534 U.S. at 69 (noting that the Court has "re-

jected the claim that a Bivens remedy should be implied simply for

want of any other means for challenging a constitutional deprivation

in federal court"); Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)

(noting that "[t]he absence of statutory relief for a constitutional vio-

lation . . . does not by any means necessarily imply that courts should

award money damages against the officers responsible for the viola-

tion"); Bush v. Lucas, 462 U.S. 367, 386-88 (1983) (refusing to find

a Bivens cause of action because meaningful, albeit incomplete, relief

5

This rationale is more than sufficient to address the majority’s policy

concerns with extending Bivens actions. See ante at 4-5. Thus, no policy

concern requires us to become the only circuit court to hold that individ-

ual private correctional providers are not governmental actors — a hold-

ing that may have untoward and far-reaching consequences beyond the

Bivens context.

HOLLY v. SCOTT 25

was available through the administrative system created by Con-

gress).

Because Holly has an alternative remedy under North Carolina tort

law, this more recent Supreme Court precedent requires that we

reverse the district court’s order refusing to dismiss this action.

I therefore concur — but only in the judgment.