The United States Court of Appeals, Ninth Circuit, Pollard v. Geo Group, Inc., 607 F.3d 583 (June 7, 2010), reversed the District Court for the Eastern District of California and held that employees of a private corporation operating a prison under a federal government contract acted under color of federal law for purposes of Bivens liability. This is in direct conflict with the Fourth Circuit decision in Holly v. Scott, 434 F.3d 287, 294 (4th Cir.2006).

The Ninth Circuit held a Bivens cause of action against the private corporation’s employees for an alleged Eighth Amendment violation is available to a federal inmate. GEO Group, Inc. had a contract with Federal Bureau of Prisons to operate Taft Correctional Institute. Plaintiff Pollard fell and had injuries to his arms; he was nonetheless required to put on a jumpsuit and wear a mechanical restraint to see an outside orthopedist.

District Court dismissed the Bivens cause of action for failure to state a claim, finding state law provided alternative remedies in the form of tort actions for negligence or medical malpractice, and that federal government contractor GEO employees did not act under color of federal law.

Ninth Circuit reversed District Court and held that GEO employees acted under color of federal law for purposes of Bivens liability, intentionally breaking with the Fourth Circuit’s reasoning.

The Ninth Circuit also held that availability of a state tort remedy did not foreclose plaintiff’s ability to seek Bivens liability. This holding conflicts with both the Fourth Circuit decision and the Eleventh Circuit’s holding in Alba v. Montford, 517 F.3d 1249, 1254 (11th Cir.2008).

The Ninth Circuit expressed concern that a prisoner in a contractor run facility might be foreclosed from relief while a prisoner in a government run prison would have a cause of action. However, in fact contractor employees are not entitled to qualified immunity, so prisoners in contractor-run prisons might recover more than their counterparts in government-run prisons.

Contact government contracts attorney Karen Hindson of Hindson & Melton LLC.