Alba v. Montford, No. 06-14508.

• Decision Date: 22 February 2008
• Docket Number: No. 06-14508.
• Citation: 517 F.3d 1249
• Parties: Luis Francisco ALBA, Plaintiff-Appellant, v. Susan MONTFORD, Joan Roy, Michael V. Pugh, John Nmi Gluch, Fnu Littman, Clara Yawn, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

517 F.3d 1249

Luis Francisco ALBA, Plaintiff-Appellant, v. Susan MONTFORD, Joan Roy, Michael V. Pugh, John Nmi Gluch, Fnu Littman, Clara Yawn, Defendants-Appellees.

No. 06-14508.

United States Court of Appeals, Eleventh Circuit.

February 22, 2008.

Michael N. Loebl (Court-Appointed), Fulcher Hagler, LLP, Augusta, GA, for Alba.

Stephen E. Curry, Curry Law Firm, Augusta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before BIRCH, CARNES and COX, Circuit Judges.

COX, Circuit Judge:

This appeal presents the narrow question of whether a federal prisoner incarcerated in a privately operated prison may pursue a Bivens action against employees of the private prison for allegedly violating his Eighth Amendment right to medical treatment. The district court held that he cannot. We affirm.

I. Background

Luis Francisco Alba, a federal prisoner, filed a pro se civil rights complaint while incarcerated at the McRae Correctional Facility in McRae, Georgia. McRae is a private facility owned and operated by Corrections Corporation of America ("CCA"). CCA operates the prison under a contract with the Federal Bureau of Prisons ("BOP").

According to his complaint, Alba underwent surgery for a benign goiter in his throat while at McRae. Alba alleges that the surgery damaged his vocal cords, and, that despite repeated requests, he was not given appropriate post-operative treatment. Alba sued individual CCA employees,¹ but not CCA. He specifically alleges that the Defendants, acting pursuant to CCA policy, refused to schedule thyroplasty surgery, a corrective procedure which a throat specialist suggested that Alba undergo. He alleges that the Defendants refused to authorize the surgery because CCA considered the surgery "elective" in order to contain medical costs. He alleges that, by refusing to schedule the thyroplasty, the Defendants acted with deliberate indifference to his medical needs in violation of the Eighth Amendment. In his complaint, Alba seeks money damages and an order directing the Defendants to perform the thyroplasty.

Because Alba was proceeding in forma pauperis, his complaint was screened pursuant to 28 U.S.C. § 1915A.² The screening magistrate judge issued a report and recommendation that Alba's complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted.³ Although Alba sought relief under 42 U.S.C. § 1983, the magistrate judge interpreted his complaint as asserting a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), noting that § 1983 provides a right of action to remedy unconstitutional state, not federal, conduct. The magistrate judge found that Alba's complaint failed to state a Bivens claim because Alba had adequate remedies in state court against the Defendants, by way of negligence or medical malpractice actions.

The district court concurred with the magistrate judge's recommendation and overruled Alba's objections to it. Like the magistrate judge, the court held that Alba sought relief under Bivens and that he failed to state a claim for relief under Bivens because he had adequate state court remedies. Thus, the court dismissed Alba's complaint and action.⁴ Alba appeals with the aid of appointed counsel. Alba is no longer incarcerated, and, according to the Defendants, has likely been deported to Colombia, South America.⁵

II. Issue on Appeal and Standard of Review

The only issue on appeal is whether the district court erred in dismissing Alba's complaint for failure to state a claim upon which relief can be granted. We review dismissal under § 1915(e)(2)(B)(ii) de novo and view the allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir.2003). The standards governing dismissals under Rule 12(b)(6) apply to § 1915(e)(2)(B)(ii). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997). Finally, pro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998).

III. Discussion

In Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, the Supreme Court for the first time implied a right of action for damages against federal officials in the absence of an act of Congress authorizing such an action. In that case, federal narcotics agents entered Bivens' home, handcuffed and arrested him, searched the home "from stem to stern," and threatened to arrest his entire family. The agents also interrogated and strip searched Bivens after taking him to the courthouse. He later sued, alleging that the agents violated his Fourth Amendment right to be free from unreasonable search and seizure. Id. at 389, 91 S.Ct. at 2001.

The Court, while observing that the Fourth Amendment did not "in so many words provide for its enforcement by an award of money damages," id. at 396, 91 S.Ct. at 2004, found that no special circumstances counseled hesitation in implying a damages action, nor had Congress provided an alternative remedy that it explicitly declared to be a substitute for recovery under the Constitution. Id. at 396-97, 91 S.Ct. at 2004-05. The Court further justified implication of a damages action on the basis that Bivens lacked an alternative state remedy to redress the Fourth Amendment violation. Surveying possible state court remedies, the Court suggested that a trespass action was unlikely to succeed against the agents, who had requested and gained permissive entry into Bivens' home through invocation of federal authority. Id. at 394-95, 91 S.Ct. at 2003-04.

The Supreme Court has extended Bivens only twice. The first extension occurred in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), in which the Court held that a former employee of a United States congressman could maintain a damages action against the congressman for violation of the Due Process Clause of the Fifth Amendment. The Court reasoned that a Bivens action was appropriate because the plaintiff lacked any other remedy. Id. at 245, 99 S.Ct. at 2277 ("[T]here are available no other alternative forms of judicial relief.").

The Court again extended Bivens in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), inferring a damages action against federal prison officials for violating a prisoner's Eighth Amendment right to adequate medical care. Notably, the Court permitted a Bivens action in Carlson even though the prisoner could have sued the United States for money damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. The Court said that in amending the FTCA to create a cause of action against the United States for intentional torts by federal law enforcement officers, 28 U.S.C. § 2680(h), Congress did not explicitly declare that it was to replace, or serve as the effective equivalent of, an action under Bivens. 446 U.S. at 19-20, 100 S.Ct. at 1472. The Court added that Bivens' goal of deterring federal officials from violating the Constitution would be better served through an action against the individual officers than it would be through an action under the FTCA against their employer, the United States. Id. at 20-21, 100 S.Ct. at 1472-73.

Apart from these two cases, the Court has refused to extend Bivens. The Court recently declined to do so in a case very similar to the one before us. In Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), the Court refused to infer a damages action against Correctional Services Corporation ("CSC"), a private corporation operating a halfway house under contract with the BOP. There, the plaintiff sued CSC and several of its employees after he suffered a heart attack while climbing a flight of stairs at the order of a CSC employee. The employee ordered the plaintiff to use the stairs, rather than the elevator, even though he was exempt for health reasons from CSC's stair-only policy applicable to inmates residing on lower floors. The individual employees were dismissed on statute of limitation grounds, and the Court noted that "the parties agree that the question whether a Bivens action might lie against a private individual is not presented here." Id. at 65, 122 S.Ct. at 518. The Court held that the plaintiff could not maintain a Bivens action against CSC primarily because the goal of Bivens was to deter "individual federal officers from committing constitutional violations," id. at 70, 122 S.Ct. at 521 (emphasis added), and not to "deter[ ] the conduct of a policymaking entity...." Id. at 71, 122 S.Ct. at 522 (discussing FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (declining to imply a damages action against the FDIC)). Resting on the logic of Meyer, the Court held that "inferring a constitutional tort remedy against a private entity like CSC is ... foreclosed." Id. at 71, 122 S.Ct. at 521.

Alba argues that extension of Bivens is justified here. First, he argues that the Defendants acted under color of federal law, and therefore, were government actors for purposes of Bivens liability. Second, he argues that no meaningful alternative remedies exist, nor does the existence of theoretical alternative remedies foreclose a Bivens action.

The Defendants argue that a Bivens action is unavailable here because there are adequate state court remedies to which Alba has access. They also argue that their actions are not attributable to the federal government because they are employed by a private company. Finally they argue that they will be unfairly disadvantaged if Bivens were applied to them because they do not enjoy qualified immunity as their federal counterparts do.

Even assuming, without deciding, that Alba's first argument is correct — that CCA is a government actor for purposes of Bivens liability — we agree with the district court...