4A 4C 2006 Short Note: Private Prison Employees Cannot Be Sued Under Bivens, But It's Open Season In State Court

HOLLY v. SCOTT, 434 F.3d 287 (4th Cir. 2006), No. 05-6287, 2006 U.S.App. LEXIS 685, on appeal from USDC-NCED, filed 12 Jan 2006.

Plaintiff, an inmate serving a federal sentence, claimed that the warden and a physician of the prison were deliberately indifferent to his serious medical needs as a diabetic. The warden and the doctor were employees of GEO Group, Inc., which operated the prison under a contract with the federal Bureau of Prisons. After exhausting his administrative remedies, Plaintiff sued the warden and the doctor per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for violating his Eighth Amendment right to be free from cruel and unusual punishment. Defendants moved to dismiss for failure to state a claim, but the trial court held that private contractors of BOP could be liable under Bivens for violating inmates' civil rights. MOTION TO DISMISS DENIED.

The Fourth Circuit reasoned that Defendants' only connection with the federal government was their employer's contract to run the prison. Really, then, Defendants were private actors, not government officials, and Defendants' actions could not be fairly attributed to the federal government. Also Plaintiff had other ways to get compensation, such as state negligence law--arguably an even better remedy because negligence is easier to show than deliberate indifference, and Defendants' employer could be liable under respondeat superior. Congress neither expressly provided nor expressly forbade monetary damages for misdeeds of private prison contractors, so the Fourth Circuit would neither extend the judge-made Bivens doctrine to private contractors nor preclude inmates' state tort lawsuits. REVERSED AND REMANDED for entry of dismissal.

EDITORIAL: Okay, so it's not really a Fourth Amendment case, but Bivens was, and Bivens and Section 1983 are only means to the end of getting some kind of payback from somebody for doing something wrong. Also, I have run a few inmate medical civil rights suits, so I think this is just plain interesting. I'm not totally comfortable with the Fourth Circuit's holding that prisons are different if they're privately run, even if they're still just like government prisons with slightly different uniforms.

But then, the result is pretty good for inmates--now you don't have to run through all your grievances, or prove deliberate action, you can just sue away like any other citizen, and the contractors are liable for actuals, punitives, and respondeat superior, like any other business. I think the shade of ol' King Pyrrhus is probably rolling on the ground of Hades, laughing at GEO Group's hollow victory.