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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE
ISLAND
GEORGE A. SARRO III
v.
CORNELL CORRECTIONS, INC., et al.,
C.A. No. 00-11-T
248 F. Supp. 2d 52
February 27, 2003, Decided
ERNEST C. TORRES, Chief
United States District Judge.
[*54] Introduction
George A.
Sarro III, acting pro se, brought this action pursuant to 42 U.S.C. § 1983
and/or Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), against various parties
associated with the Donald Wyatt Detention Center, a privately-operated
facility in which federal prisoners awaiting trial are incarcerated. Sarro
seeks money damages for claimed violations of his Fifth and Eighth Amendment
rights when prison guards allegedly failed to protect him from attack by fellow
inmates and failed to provide him with adequate medical treatment for his
injuries.
The case is
before the Court for consideration of Sarro's objection to a magistrate judge's
Report and Recommendation issued pursuant to 28 U.S.C. § 636(b)(1)(B). The
magistrate judge has recommended that summary judgment be granted in favor of
the defendants on the ground that they are neither state actors for the
purposes of § 1983 nor federal actors for the purposes of Bivens; and,
therefore subject matter jurisdiction is lacking.
Because I
find that none of the defendants acted under color of state law; the individual
defendants acted under color of federal law; and the corporate defendants
cannot be held liable under , Correctional Services Corp. v. Malesko, 534 U.S.
61, 151 L. Ed. 2d 456, 122 S. Ct. 515 (2001), the Recommendation is rejected
with respect to the Bivens claim against the individual defendants and the
Recommendation is accepted in all other respects.
In 1991,
Rhode Island enacted the Municipal Detention Facility Corporations Act, R.I.
Gen. Laws § 45-54-1, et seq., which authorized municipalities to create public
corporations that would own and operate detention facilities. See Lawson v.
Liburdi, 114 F. Supp. 2d 31, 33 (D.R.I. 2000). The dual purposes of the act
were to promote economic development and to provide a facility in which the
United States Marshals Service could house federal pretrial detainees. See R.I.
Gen. Laws § 45-52-2(b); Lawson, 114 F. Supp. 2d at 33.
Pursuant to that statutory
authorization, the City of Central Falls (the City) created the Central Falls
Detention Facility Corporation (CFDFC) to build and own such a facility.
CFDFC's Board of Directors consists of five unpaid members who are appointed by
the mayor. The corporation is [*55] not a part of the City. Rather it is
"an instrumentality and agency of the municipality, but has a distinct
legal existence from the municipality". R.I. Gen. Laws § 45-54-1.
Financing to construct the facility, later named the Donald F. Wyatt Detention
Center (Wyatt), came from bonds issued by the Rhode Island Port Authority. See
City of Central Falls v. Central Falls Det. Facility Corp., 1997 R.I. Super.
Lexis 24, C.A. No. 94-3939, 1997 WL 839936 at *1 (R.I. Super. June 23, 1997).,
The CFDFC
contracted with the U.S. Marshals Service to house federal pretrial detainees
at Wyatt. The CFDFC also contracted with Cornell Corrections, Inc. n1
(Cornell), a private corporation, to operate the facility and employ the staff.
See Huguenin v. Ponte, 29 F. Supp. 2d 57, 60 (D.R.I. 1998). Under the terms of
that contract, Cornell has the exclusive use of the facility and the exclusive
authority to operate it.
In 1997, Sarro was awaiting
trial on federal criminal charges and was being detained at Wyatt. Sarro
alleges that, after a fight between another white inmate and a black inmate,
Sarro reported to defendant Lorenzo that he had received numerous threats from
black inmates and he requested to be placed in protective custody. Sarro
further alleges that his request was denied and that, subsequently, defendant
Carroll, another guard, left him unattended during a fire drill at which time
he was viciously beaten by several black inmates. Finally, Sarro alleges that
defendant Egan, the programs director at Wyatt, refused to provide him proper
medical treatment for his injuries.
Procedural History
On January 7, 2000, Sarro, acting pro se, filed a complaint
against Wyatt, Cornell, and various employees working at Wyatt, including Lorenzo,
Carroll, and Egan. Sarro seeks compensatory and punitive damages pursuant to
Bivens and § 1983 for what he alleges were violations of his Eighth and Fifth
Amendment rights resulting from the individual defendants' "deliberate
indifference" to his "health and safety."
On June 21, 2000, Cornell moved to dismiss pursuant to Rules
12(b)(2), (4), (5) and Rule 4(m) of the Federal Rules of Civil Procedure, for
alleged deficiencies in process and the service of process, and, pursuant to
Rule 12(b)(6), for failure to state a claim upon which relief can be granted.
That motion was referred to a magistrate judge for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B).
The magistrate judge sua sponte raised the issue of subject
matter jurisdiction and ordered the individual defendants to file affidavits
stating whether they were employed by any governmental entity, state or
federal. The defendants submitted an affidavit, stating that, at all relevant
times, the individual defendants were employed by Cornell Corrections of Rhode
Island, Inc. Sarro submitted a letter, stating his belief that because he was a
federal prisoner in the custody of the U.S. Marshal, the individual defendants
were employed by the federal government.
The magistrate judge recommended that the claims against Wyatt
be dismissed on the ground that there was no such legal entity. He also
recommended that the motion to dismiss with respect to the remaining defendants
be denied to the extent that it was based on alleged insufficiencies in process
and the service of process. There has been no objection to either [*56] of
those recommendations. The magistrate judge treated the motion to dismiss
pursuant to Rule 12(b)(6) as a motion for summary judgment and recommended that
it be granted on the ground that subject matter jurisdiction was lacking
because the defendants had not acted under color of federal law within the
meaning of Bivens or state law within the meaning of § 1983.
Sarro objected and, because of the importance and complexity of
the issues presented and because no court has yet decided whether a guard at a
privately-operated facility housing federal prisoners is amenable to suit under
Bivens, this Court appointed counsel to represent Sarro. This Court also granted
the American Civil Liberties Union leave to file an amicus brief.
While the objection was pending, Sarro's counsel filed an
amended complaint adding CFDFC as a defendant and asserting claims for
negligence. While that complaint is not, now, the subject of the Court's
consideration, it will be affected by the rulings made with respect to the
magistrate judge's Report & Recommendation.
Standard of Review
Recommendations by a magistrate judge are reviewed de novo. 28
U.S.C. § 636(b)(1)(C). Since the recommendation, here, is that summary judgment
be entered, the applicable standard of review is found in Rule 56(c) of the
Federal Rules of Civil Procedure.
Rule 56(c) provides for the entry of summary judgment when the
"pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). Material facts are those "that
might affect the outcome of the suit under governing law." Morrissey v.
Boston Five Cents Savings Bank, 54 F.3d 27, 31 (1st Cir. 1995). A dispute as to
a material fact is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. Id. In determining whether summary
judgment is appropriate, the court views the evidence and all inferences that
may fairly be drawn from it in the light most favorable to the nonmoving party.
Id. at 29.
Bivens Liability
Although
the Supreme Court has held that a private corporation operating a prison is not
subject to suit under Bivens, Malesko, 534 U.S. at 73, no Circuit has yet
addressed whether a federal prisoner incarcerated at a privately-operated
facility may maintain a Bivens action against guards and other individuals
employed at that facility; and, at first blush, the decisions of the Supreme
Court that bear on that issue appear to
be irreconcilable.
The Supreme Court has held
that a federal officer acting under color of federal law may be liable for
damages for violating the constitutional
rights of another. Bivens, 403 U.S. at 397. On the other hand, the Court
has expressed reluctance to apply Bivens in cases where alternative remedies
are available. Malesko, 534 U.S. at 73.
In the
prison context, Malesko held that a prisoner at a privately-operated prison
cannot bring a Bivens action against the entity that runs the facility because,
among other things, that would give the prisoner greater rights than those
enjoyed by prisoners at publicly-operated prison facilities. Id. at 71-72.
However, in Richardson v. McKnight, the Supreme Court held that the guards at a
privately-operated prison are not entitled to qualified immunity under § 1983,
a holding that seemingly results in more favorable treatment for prisoners in
these facilities because, unlike prisoners in publicly-operated [*57]
facilities, their claims would not be subject to the defense of qualified
immunity. 521 U.S. 399, 412, 138 L. Ed. 2d 540, 117 S. Ct. 2100 (1997).
Nevertheless, upon closer examination, these
"conflicts" turn out to be more apparent than real; and, in any
event, the Supreme Court has made it plain that whether a prisoner at a
privately-operated prison may maintain a Bivens action against individuals
employed at the prison is an open question. Malesko, 534 U.S. at 65 (parties
agree that the question whether a Bivens action might lie against a private
individual is not presented here). If anything, the dissent in Malesko suggests
that such an action may be maintained. Id. at 79 n.6 (Stevens, J., dissenting)
(both parties and the United States as amicus acknowledge that the individual
guards would appropriately be liable under Bivens); see Richardson, 521 U.S. at
413 ("we have focused only on questions of § 1983 immunity and have not
addressed whether the defendants are liable under § 1983 even though they are
employed by a private firm.").
I. Bivens and § 1983
Bivens held
that a "federal agent acting under color of his authority" may be
liable for money damages when he engages in conduct that violates an
individual's Fourth Amendment rights even though there is no federal statute
expressly authorizing an award of damages. 403 U.S. at 392, 396-97.
Since then, the Supreme Court has extended Bivens to cases involving Fifth
Amendment and Eighth Amendment violations as well. See Davis v. Passman, 442
U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979); Carlson v. Green, 446 U.S.
14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980).
Although
Bivens applies only to those acting under color of federal law and § 1983
applies only to those acting under color of state law, the rationale underlying
Bivens is similar to Congress' rationale in enacting § 1983. The objective in
both instances is to make government actors who misuse their governmental
authority liable for the consequences of their misdeeds and to provide adequate
redress to individuals whose constitutional rights are violated by such
conduct.
However,
because there is no statute that expressly authorizes damage awards against
federal actors, the Supreme Court has been reluctant to imply such a remedy
except where necessary to deter and/or redress violations of fundamental
constitutional rights. See Bush v. Lucas, 462 U.S. 367, 374-78, 76 L. Ed. 2d
648, 103 S. Ct. 2404 (1983).
Consequently, Bivens actions,
generally, have been allowed only in cases where there is no indication of a
contrary Congressional intent and there are no "special factors counseling
hesitation" Id. at 378.
A contrary
federal intent may be inferred "when Congress provides an alternative
remedy . . . [or] by statutory language, by clear legislative history, or
perhaps even by the statutory remedy itself. . . ." Id.
Among the special factors that may counsel hesitation are:
conflict with federal fiscal policy; the existence of a comprehensive remedial
scheme providing meaningful remedies created by Congress; and the unique
structure and nature of the military. Schweiker v. Chilicky, 487 U.S. 412,
421-23, 101 L. Ed. 2d 370, 108 S. Ct. 2460 (1988); United States v. Stanley,
483 U.S. 669, 683-84, 97 L. Ed. 2d 550, 107 S. Ct. 3054 (1987); Chappell v.
Wallace, 462 U.S. 296, 304, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983); Bush, 462
U.S. at 380-81, 388.
[*58] II. Liability of
Private Parties
The
magistrate judge cited two reasons for recommending that summary judgment be
entered in favor of the defendants with respect to the Bivens claims. First, he
concluded that only federal officers are subject to suit under Bivens. Second,
he concluded that, even if a Bivens action could be maintained against private
parties, the defendants, in this case, "did not act under the 'color of
federal law.'" Sarro v. The Donald Wyatt Det. Center, 2001 U.S. Dist. Lexis
2375, C.A. No. 00-11, 2001 WL 210265, at *6 (D.R.I. Jan. 30, 2001) (Magistrate
Judge's Report & Recommendation). This Court disagrees with both of those
conclusions.
In deciding
that only federal officers are subject to suit under Bivens, the magistrate
judge relied on a footnote in Fletcher v. Rhode Island Hosp. Trust Nat'l Bank,
496 F.2d 927, 932 n.8 (1st Cir. 1974) stating that, "there is no cause of
action against private parties acting under color of federal law or
custom." That reliance on Fletcher is misplaced for several reasons.
First, the
quoted statement was only dictum. Fletcher did not involve a Bivens claim.
Rather, it dealt with a § 1983 claim against a bank that was alleged to have
wrongfully deducted amounts from the plaintiff's checking accounts. The First
Circuit rejected the plaintiff's contention that the bank acted "under
color of state law" simply because it was regulated by the state. Thus,
the statement about the liability of a private party acting under color of
federal law was unrelated to the Court's holding and the Court did not
articulate any basis or reason for that statement.
Second,
since Fletcher was decided, the First Circuit appears to have implicitly
recognized that a private party acting under color of federal law may be liable
under Bivens. See Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d
447 (1st Cir. 1983). In Gerena, a lawyer sued for damages resulting from the
termination of his employment by a private nonprofit corporation organized
under the laws of the Commonwealth of Puerto Rico. The plaintiff asserted
claims under § 1983 and the United States Constitution. The Court upheld the
dismissal of the "federal action" but did so only after exhaustively
analyzing whether the defendant corporation satisfied the requirements of any
of the applicable tests for determining when a private party can be considered
a government actor. Thus, Gerena apparently assumed that a private corporation
can be a government actor; and, therefore, liable for damages for federal
constitutional violations. See Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp.
2d 282, 306 (D. Mass. 1999) (noting that in Gerena the First Circuit seemed to
assume without deciding that a Bivens action could lie against a private party
acting under color of federal law).
Indeed, that assumption would be consistent with the holdings of
most courts that have considered the question. Yeager v. General Motors Corp.,
265 F.3d 389, 398-99 (6th Cir. 2001) (holding that General Motors would be
liable under Bivens if it acted under color of federal law, but finding
voluntary contractual relationship insufficient to establish federal action);
Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698
(6th Cir. 1996) (holding that private attorneys acting in concert with federal
marshals were federal actors for the purposes of a Bivens action); Schowengerdt
v. General Dymanics Corp., 823 F.2d 1328, 1337-38 (9th Cir. 1987) (holding that
the private status of a party will not defeat a Bivens claim, provided that the
defendant engaged in federal action); Dobyns v. E-Systems, 667 F.2d 1219,
1227-28 (5th Cir. 1982) (holding that a private organization which played
dominant role in United States' Sinai Field Mission acted under color of
federal law); [*59] Yiamouyiannis v. Chemical Abstract Serv., 521 F.2d 1392,
1393 (6th Cir. 1975) (finding plaintiff stated a valid Bivens claim against
private employer receiving federal funds); Heinrich, 62 F. Supp. 2d at 307
(holding that Bivens extends to actions against private parties who act under
color of federal law); Alexander v. Pennsylvania Dept. of Banking,1994 U.S.
Dist. Lexis 5183, C.A. No. 93-5510, 1994 WL 144305, at *3 (E.D. Pa. Apr. 21,
1994) (holding that private defendants acing in concert with government can be
considered federal agents and thus liable under Bivens); but see Kauffman v.
Anglo-American School of Sofia, 307 U.S. App. D.C. 356, 28 F.3d 1223, 1227
(D.C. Cir. 1994) (holding no Bivens actions against private entities).
That
assumption, also would be consistent with the Supreme Court's holding that, for
purposes of § 1983, a private party exercising state authority may be deemed to
act under color of state law. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922,
939, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982); Flagg Brothers, Inc. v. Brooks,
436 U.S. 149, 157, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978); Burton v.
Wilmington Parking Auth., 365 U.S. 715, 724-25, 6 L. Ed. 2d 45, 81 S. Ct. 856
(1961).
III. The "Federal
Actor" Requirement
As already
noted, Bivens applies to constitutional violations committed by private parties
only if they act "under color of federal law"; or, put another way,
only if the parties are "federal actors". The tests employed for determining whether a private party acts
under color of federal law are similar to the tests employed for determining
whether a private party acts under color of state law. Nwanze v. Phillip
Morris, Inc., 100 F. Supp. 2d 215, 220 (S.D.N.Y. 2000) (courts treat Bivens
actions and § 1983 actions as analogous for most purposes), aff'd, 2001 U.S.
App. Lexis 7502, 2001 WL 409450 (2d. Cir. Apr. 23, 2001).
These tests include the "direct links" test, Lebron v.
Nat'l Railroad Passenger Corp., 513 U.S. 374, 397-400, 130 L. Ed. 2d 902, 115
S. Ct. 961 (1995) (a direct link
between private corporation and federal government establishes that corporation
acted under color of federal law); the public function test, Rendell-Baker v.
Kohn, 457 U.S. 830, 842, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982) (a private
party performing a function traditionally the exclusive prerogative of the
government is a government actor); the nexus test, Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974) (a
private party is a state actor when there is a sufficiently close nexus between the government and the
challenged action of the private party that the action of the private party is
fairly treated as that of the government itself); and the symbiotic
relationship test, Burton, 365 U.S. at 862 (a private party is a state actor
when the government has so far insinuated itself into a position of
interdependence with that party that the government must be recognized as a
joint participant in the challenged activity).
The magistrate judge concluded that the defendants in this case
are not federal actors under any of these tests. This Court disagrees with that
conclusion for several reasons.
First, these tests do not purport to exhaust the field of
circumstances under which a private individual may be considered a federal
actor by establishing a finite number rigidly circumscribed pigeon holes within
which particular conduct of a particular individual must precisely fit. Rather,
the tests merely identify the factors that courts have applied in different
contexts. See Lugar, 457 U.S. at 939. Because some of the factors are very
similar, the tests may overlap. For example, it may not always be possible
[*60] to draw a bright-line distinction between a private party who has a
sufficiently close nexus to government that his acts may be attributed to the
government and a private party that has such a symbiotic relationship with the
government in performing a governmental function that the private party may be
viewed as a joint participant.
Here, the defendants could be classified as
federal actors under several of these tests, but there is no need to go beyond
the public function test. Under the public function test, a private party may
be deemed a government actor if that party exercises "powers traditionally
exclusively reserved to the government.
" Jackson, 419 U.S. at 352.
The
magistrate judge concluded that, because correctional facilities never have
been operated exclusively by the government, the defendants are not federal
actors. However, there is some question as to whether exclusivity is required.
The opinion in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 114 L. Ed. 2d
660, 111 S. Ct. 2077 (1991), a case decided by the Supreme Court after Jackson,
suggests that an activity may satisfy the public function test if it is
performed under the aegis of governmental authority. Thus, Edmonson held that
private litigants are state actors for purposes of § 1983 when they exercise
peremptory challenges even though, as the dissent noted, jury selection never
has been an exclusively governmental prerogative. See Giron v. Corr. Corp. of
America, 14 F. Supp. 2d 1245, 1248 (D.N.M. 1998).
Even if
the function must be one that traditionally has been exclusively performed by
the government, the incarceration of individuals accused of committing crimes
is such a function. In concluding that it was not, the magistrate judge relied
on the Supreme Court's observation in Richardson, that "correctional
functions have never been exclusively public." 521 U.S. at 405. However,
the fact that the function of detaining individuals charged with crimes,
sometimes, has been delegated to and performed by private parties does not prevent the function,
itself, from being an exclusively governmental function.
Indeed, Richardson itself recognized that the mere fact that,
historically, some prisons have been privately operated has little bearing on
whether the guards employed there are government actors. Richardson's observation
about private prisons was made in the
course of explaining why the Court found that privately-employed prison guards
were not entitled to the same qualified immunity enjoyed by guards employed at
publicly-operated prisons. More specifically, it was offered as support for the
determination that, historically, immunity for prison guards arose "out of
their status as public employees at common law" and not out of any
"'firmly rooted' tradition of immunity applicable to privately employed
prison guards." Id. at 404-05. Richardson went on to recognize that there
is a distinction between deciding whether there is a historical basis for
inferring that private prison guards are entitled to qualified immunity and
deciding whether they are government actors who may be held liable under § 1983.
Accordingly, Richardson expressly refrained from deciding the latter question,
saying: "we have focused only on questions of Section 1983 immunity and
have not addressed whether the defendants are liable under Section 1983 'even
though they are employed by a private firm.'" Id. at 413 (emphasis added).
Thus Richardson left it "for the District Court to determine whether,
under this Court's decision in Lugar v. Edmonson Oil Co. . . ., defendants
acted 'under color of state law.'" Id.; see United States v. Thomas, 240
F.3d 445, 448-49 (5th Cir. 2001) (holding that a guard at a privately-operated
[*61] detention center under contract with the INS was a "public
official" for purposes of Federal Bribery Statute and distinguishing
Richardson on grounds that "the policy considerations supporting private
corrections officers' not being entitled to qualified immunity are quite
different from those concerning whether they are 'public officials' for
purposes of the federal bribery statute.").
Clearly, the detention of individuals charged with committing
crimes is an exclusively governmental function. Only the government has the
authority to imprison a person and the exclusive governmental nature of that
function is not altered by the fact that, occasionally, the government may
contract to have criminal defendants incarcerated at privately-operated
institutions.
Here, Sarro
and the other individuals incarcerated at Wyatt had been arrested by federal
law enforcement agents and charged with federal crimes. They were being
detained under authority of the United States government pending disposition of
the charges against them. By law, they were in the custody of the United States
Marshal who exercised ultimate authority over them. 18 U.S.C. § 4086; 28 C.F.R.
§§ 0.111(k), 551.101 (2001). The power to detain them was derived solely and
exclusively from federal authority and the defendants, in effect, acted as the
Marshal's alter ego. The fact that the Marshal temporarily delegated the task
of detaining those prisoners to the defendants did not convert that detention
into anything other than an exclusively governmental function. See Giron, 14 F.
Supp. 2d at 1249 ("The function of incarcerating people, whether done
publically or privately, is the exclusive prerogative of the state. This is a
truly unique function and has been traditionally and exclusively reserved to
the state.").
Finding
private prison guards to be federal actors within the meaning of Bivens also is
consistent with the weight of authority holding them to be state actors within
the meaning of § 1983. Street v. Corr. Corp. of America, 102 F.3d 810,
814 (6th Cir. 1996) (private prison guards acted under color of state law for
purposes of § 1983 suit); Giron, 14 F. Supp. 2d at 1249 (private prison guard
acted under color of state law for purposes of § 1983 suit); see also Skelton
v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (private corporation
operating prison acted under color of law for purposes of § 1983); Herrera v.
County of Sante Fe, 213 F. Supp. 2d 1288, 1290 (D.N.M. 2002) (private
operator of detention center is state
actor for purposes of § 1983); Gabriel v. Corr. Corp. of America, 211 F. Supp.
2d 132, 137-38 (D.D.C. 2002) (private
corporation that operates prison can be held liable under § 1983); McCullum v.
City of Philadelphia, 1999 U.S. Dist. Lexis 10423, C.A. No. 98-5858, 1999 WL
493696, at *3 (E.D. Pa. July 13, 1999) (private company that provided food
service to prison is state actor for purposes of § 1983); Blumel v. Mylander,
919 F. Supp. 423, 426-27 (M.D.Fla. 1996) (private corporation that operated
prison is liable under § 1983).
IV. The Other Bivens Factors
A. Congressional Intent
In this case, there is no manifestation of any Congressional
intent to preclude courts from awarding damages to prisoners at
privately-operated prisons for violations of their constitutional rights to the
same extent that damages might be awarded to prisoners in publicly-operated
prisons. Congress has not provided any comprehensive scheme for redress or any
meaningful alternative remedy. See Bush, 462 U.S. at 386 (Bivens is not
applicable when Congress creates a comprehensive scheme that provides [*62]
meaningful remedies). In fact, Congress has not provided any alternative remedy
at all.
Furthermore, Sarro cannot even seek redress through the Bureau
of Prisons' Administrative Remedy Program because the program applies only to
those incarcerated in BOP facilities and half-way houses operated under
contract with the BOP. It does not apply to individuals confined in other
facilities, in general, or to Wyatt, in particular. 28 C.F.R. § 542.10 (2001)
(the ARP "does not apply to inmates confined in other non-federal
facilities"). In this respect, this case is readily distinguishable from Malesko
which involved a federal prisoner confined at a half-way house operated under
contract with the Bureau of Prisons.
B. Other Factors Counseling Hesitation
Absent any manifestation of Congressional intent to the
contrary, courts are free to award damages for constitutional violations, but
must pay "particular heed, however, to any special factors counseling
hesitation". Bush, 462 U.S. at 378.
Here, there are no significant factors counseling hesitation.
This case is unlike those cases in which the Supreme Court has declined to
apply Bivens, because it would interfere with federal fiscal policy, civil
service regulations, the special nature of the military or other governmental
programs or policies. See id. at 379-80, 389; Chappell, 462 U.S. at 304. In
this case, there is no discernable governmental program or policy that would be
undermined by applying Bivens. On the contrary, recognizing Sarro's Bivens
claim simply would afford him the same remedies that already are available to
federal prisoners in federally operated facilities. Malesko, 534 U.S. at 71-72
("If a federal prisoner in a BOP facility alleges a constitutional
deprivation, he may bring a Bivens claim against the offending individual
officer, subject to the defense of qualified immunity."). In addition, as
already noted, it would be consistent with the fact that, under § 1983, a state
prisoner in a private prison facility may seek damages for constitutional
violations by individual guards or employees. Street, 102 F.3d at 814; Herrera,
213 F. Supp. 2d at 1289; Giron, 14 F. Supp. 2d at 1249.
C. The Effect of Malesko
In Malesko,
the Supreme Court declined to consider "extending" Bivens beyond its
"core premise" and held that a federal prisoner confined to a
half-way house operated by a private corporation pursuant to a contract with
the government could not maintain a Bivens action against the corporation. 534
U.S. at 71-72, 74. Clearly, Malesko is dispositive of Sarro's Bivens claims
against Cornell. n2 On the surface, Malesko also appears to suggest that Sarro
cannot assert a Bivens claim against the individual defendants either. However,
a closer reading of Malesko indicates otherwise. Insofar as the individual
claims are concerned, Malesko is readily distinguishable from this case in at
least three respects.
First, the
"core premise" referred to in Malesko was Bivens' purpose "to
deter individual federal officers from committing constitutional
violations" Id. at 70 (emphasis added), a purpose that the Court found
would be undermined by allowing victims to seek recompense from the corporate
employer, instead. Id. at [*63] 70-71. Here, recognizing Sarro's damages claim
against the individual defendants actually serves that "core premise"
and does not extend it.
Second, one
of the reasons cited in Malesko for not applying Bivens was that Malesko was
not a case in which the claimant lacked "effective remedies". Id. at
72. In that connection, the Court noted that redress was available under the
BOP's Administrative Remedy Program; and that, under state tort law,
"alternative remedies are at least as great, and in many respects greater,
than anything that could be had under Bivens." Id. As previously stated,
Sarro is ineligible to seek redress under the Administrative Remedy Program.
Furthermore, while Malesko indicates that the existence of state law remedies
maybe a factor to be considered, in applying Bivens, state law remedies cannot
be construed as a manifestation of Congressional intent to preclude the
application of Bivens. Indeed, making the federal remedies available to a
federal prisoner at a privately-operated institution contingent upon whether
there are adequate alternative state law remedies would require a case-by-case
analysis of state law and would cause the availability of a Bivens remedy to
vary according to the state in which the institution is located, a result that
Bivens, itself sought to avoid. Bivens, 403 U.S. at 389 (indicating that
remedies for constitutional violations should not depend on the law of the
state in which the violation occurred).
Finally,
one of the factors underlying the decision in Malesko was the desire to
maintain parity between the remedies afforded to prisoners at
privately-operated facilities and those at government-operated facilities.
Thus, in rejecting the plaintiff's Bivens claim against the private corporation
operating the prison, the Court pointedly stated that "no federal
prisoners enjoy respondent's contemplated remedy" because, while a
prisoner at a federal prison can bring a Bivens action against an individual
officer, he "may not bring a Bivens claim against the officer's employer,
the United States or the BOP." Malesko, 534 U.S. at 71-72. Refusing to
apply Bivens to a federal prisoner's claim for alleged constitutional
violations simply because that prisoner is incarcerated at a privately-operated
prison rather than a government-operated prison would deprive that prisoner of
a remedy available to prisoners at government-operated facilities, thereby
running counter to the desire for parity expressed in Malesko.
Section 1983 Liability
Section
1983 permits an individual whose constitutional rights are violated to recover
damages from the "person" responsible for the violation. 42 U.S.C. §
1983. Because there is no respondeat superior liability under § 1983,
generally, claims may be asserted only against the individual committing the
violation. However, a municipality or a private entity is a "person"
within the meaning of the statute and may be held liable if the violation can
be attributed to its own policy or custom. Herrera, 213 F. Supp. 2d at 1290;
Gabriel, 211 F. Supp. 2d at 138.
In any event, in order
to prevail, a plaintiff must show that the violation was committed "under
color of" state law. A defendant is deemed to have acted "under color
of state law" when he "exercises power 'possessed by virtue of state
law and made possible only because [he] is clothed with the authority of state
law.'" Polk County v. Dodson, 454 U.S. 312, 317-318, 70 L. Ed. 2d 509, 102
S. Ct. 445 (1981) (quoting United States v. Classic, 313 U.S. 299, 326, 85 L.
Ed. 1368, 61 S. Ct. 1031 (1941)). As already noted, in the case of a private
entity, that test is satisfied if "the private entity exercise[s] powers
which are [*64] traditionally exclusively reserved to the state." Street,
102 F.3d at 814.
This Court
is aware of only two reported cases addressing whether guards at a
privately-operated facility housing state prisoners act "under color of
state law" and both cases held that they do. Id. ("defendants were
'acting under color of state law' in that they were performing the 'traditional
state function' of operating a prison."); Giron, 14 F. Supp. 2d at 1249
(corrections officer was "acting under color of state law" because
"only the government is empowered to incarcerate a citizen and [the]
corrections officer was a state-regulated private actor performing the basics
of this function.").
In this case, Sarro is unable
to show that any of the defendants were acting under color of state law for the
simple reason that maintaining custody of federal prisoners is neither a power
"possessed by virtue of state law" nor one that has been
"traditionally exclusively reserved to the state." The authority to
maintain custody of federal prisoners is one created by federal law and
reserved solely to the federal government. Therefore, Sarro's § 1983 claims are
not viable against any of the defendants.
Conclusion
Whether or
not, as Justice Scalia states in Malesko, "Bivens is a relic of the heady
days in which this Court assumed common-law powers to create causes of
action", 534 U.S. at 524 (Scalia, J., concurring), it should be applied
consistently and even handedly unless and until it is overruled. Therefore, for
all of the foregoing reasons, the magistrate judge's recommendations are hereby
accepted in part, albeit for reasons different from those that he expressed,
and rejected in part as follows:
1. The motion of defendant Cornell Corrections to dismiss for
insufficiency of process and service of process is denied pursuant to the
magistrate judge's recommendation.
2.
The magistrate judge's recommendation that summary judgment be granted in favor
of the individual defendants with respect to the Bivens claim is rejected.
3. Summary judgment may be entered in favor of defendants Cornell
Corrections and Wyatt Detention Facility with respect to the Bivens claim for
reasons previously stated.
4. Summary judgment may enter in favor of all defendants with respect
to the § 1983 claims.
Furthermore,
the plaintiff is directed to show cause, on or before March 27 2003, why any
Bivens claims against the corporate defendants and any § 1983 claims contained
in the Amended Complaint should not be dismissed for reasons stated in this
Memorandum and Order.
IT IS SO ORDERED,
Ernest C. Torres, Chief
Judge
Date: February 27, 2003
FOOTNOTES:
n1
Cornell Corrections, Inc., later changed its name to Cornell Companies, Inc.,
and created Cornell Corrections of Rhode Island.
n2
Malesko would also be dispositive of Sarro's claim against Wyatt, if Wyatt were
an entity that could be sued. However, because Wyatt is not a legal entity, the
claims against it should be dismissed for that reason, as the magistrate judge
recommended.