Inmate Can Sue Agents of Private Prison Operator

(CN) - Employees of a private company hired to run a federal prison can be sued for allegedly violating an inmate's constitutional rights, the 9th Circuit ruled on an issue that has yet to be "squarely addressed" by the Supreme Court.

Richard Lee Pollard, an inmate at a federal prison run by the private company GEO Group, slipped on a cart left in a doorway and injured both elbows.

As GEO employees were preparing to transport him to an outside orthopedic clinic, he said they made him wear a jumpsuit and a "black box" wrist restraint, despite his claim that both would cause him excruciating pain.

Pollard sued GEO and its employees for allegedly violating his Eighth Amendment protection against cruel and unusual punishment.

He cited the Supreme Court's landmark Bivens ruling, in which the justices held that a federal prisoner can recover damages from government agents for constitutional violations.

The district court dismissed Pollard's suit for two reasons. First, the court ruled that state law gave him other options for recovering damages, such as a negligence claim or a medical malpractice claim. Second, it ruled that although the private employees were under contract with the federal government, they were not acting under federal law.

On appeal, a three-judge panel for the 9th Circuit reviewed the Bivens ruling and concluded that the Supreme Court recognized an implied cause of action for injury caused by "a federal agent acting under his authority."

The panel said the threshold question presented in Pollard's case was whether the GEO employees can be considered federal agents acting professionally under the color of federal law.

"We conclude that they can," the 2-1 majority ruled.

"Neither the Supreme Court nor our court has squarely addressed whether employees of a private corporation operating a prison under contract with the federal government act under color of federal law," Judge Richard Paez wrote for the San Francisco-based panel. "That said, we have held that private defendants can be sued under Bivens if they engage in federal action."

In a partial dissent, Judge Jane Restani agreed with the decision to dismiss GEO from the case, but argued that a Bivens claim against private employees should likewise be dismissed.

She warned that 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 exemptions in statutes or in the common law."

"I would join other circuits in concluding that a Bivens cause of action is not available against employees of privately run prison corporations where, as here, state tort laws provide a remedy," Restani wrote.

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