Malesko v. Correctional Serv. Corp.

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7995
• Citation: 229 F.3d 374
• Parties: (2nd Cir. 2000) JOHN E. MALESKO, Plaintiff-Appellant, v. CORRECTIONAL SERVICES CORPORATION, formerly known as Esmor Correctional Services Inc. and "JOHN DOES #1 TO JOHN DOES #10," inclusive, the names of said John Doe Defendants are presently unknown but intended to indicate officers and managers and guards of the corporate defendant, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 374

229 F.3d 374 (2nd Cir. 2000)

JOHN E. MALESKO, Plaintiff-Appellant, v. CORRECTIONAL SERVICES CORPORATION, formerly known as Esmor Correctional Services Inc. and "JOHN DOES #1 TO JOHN DOES #10," inclusive, the names of said John Doe Defendants are presently unknown but intended to indicate officers and managers and guards of the corporate defendant, Defendants-Appellees.

Docket No. 99-7995

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: April 19, 2000

Decided: October 06, 2000

Appeal from a judgment of the United States District Court for the Southern District of New York (Martin, Judge). The district court dismissed Malesko's complaint against the Correctional Services Corporation ("CSC") on the grounds that: (1) Malesko could not assert against CSC, a private corporation acting on behalf of the federal government, the cause of action set forth in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), which provides a damage remedy for violations of constitutional rights by federal agents, and (2) CSC could invoke government contractor immunity to such a claim in any event. The district court also dismissed Malesko's Bivens claims against an individual CSC employee as untimely and, for the same reason, denied Malesko's motion for leave to amend the complaint to substitute additional CSC employees for "DOE" defendants. We agree with the district court's decisions as to the individual defendants, but we find that the court erred in dismissing the complaint as to CSC.

Affirmed in part; vacated and remanded in part.

STEVEN PASTERNAK, Pasternak, Feldman & Plutnick, P.A., Livingston, NJ, for plaintiff-appellant.

GEORGE P. STASIUK, Clifton Budd & DeMaria, LLP, New York, NY (George F. Brenlla, on the brief), for defendants-appellees.

Before: POOLER and SOTOMAYOR, Circuit Judges.^*

SOTOMAYOR, Circuit Judge:

Plaintiff-appellant John E. Malesko appeals from the July 28, 1999 judgment of the United States District Court for the Southern District of New York (Martin, Judge) dismissing his complaint against defendant-appellee Correctional Services Corporation ("CSC") and a specifically named CSC employee, and denying him leave to file a second amended complaint. For the reasons that follow, we vacate the district court's dismissal of the claims against CSC. We affirm, however, the district court's dismissal of Malesko's claim against the individual CSC employee as time-barred and the denial of leave to file the second amended complaint on the same ground.

BACKGROUND

On December 3, 1992, following his conviction for federal securities fraud, Malesko was sentenced to eighteen months imprisonment under the supervision of the Federal Bureau of Prisons ("BOP"). While in the custody and care of BOP, Malesko was diagnosed with a heart condition, which was treated with prescription medication. On February 2, 1994, Malesko was transferred to Le Marquis Community Corrections Center, a halfway house where he was to serve out the balance of his sentence. The halfway house is operated on behalf of BOP by CSC, a private corporation.

Malesko was assigned to living quarters on the fifth floor of the halfway house and was permitted to use the elevator to travel from the lobby to his room. On or about March 1, 1994, however, CSC allegedly instituted a policy requiring inmates residing below the sixth floor to use only the staircase to travel from the first-floor lobby to their rooms. Despite CSC's policy, Malesko claims that he was permitted to use the elevator because CSC staff knew of his medical condition. According to Malesko, however, on March 28, 1994, a CSC employee prevented him from using the elevator to go from the lobby to his room on the fifth floor. The employee instead directed Malesko to climb the staircase, even though Malesko reminded the employee of his heart condition. While climbing the stairs, Malesko suffered a heart attack, fell, and injured himself. Malesko also claims that approximately ten days prior to this incident, he had run out of the medication prescribed for his heart condition, and that CSC had failed to replenish his medication as of that date.

On March 27, 1997, Malesko filed a pro se action against CSC in the United States District Court for the Southern District of New York, claiming violations of his rights in connection with the foregoing. Malesko did not name any specific individuals as defendants; instead, he named ten "unknown" "DOE" defendants. Malesko's complaint bore the following caption:

JOHN E. MALESKO, Plaintiff -against- CORRECTIONAL SERVICES CORPORATION FORMERLY KNOWN AS ESMOR CORRECTIONAL SERVICES INC., "JOHN DOE #1 TO JOHN DOE #10" INCLUSIVE, THE NAMES OF SAID JOHN DOE DEFENDANTS ARE PRESENTLY UNKNOWN BUT INTENDED TO INDICATE OFFICERS AND MANAGERS AND GUARDS OF THE CORPORATE DEFENDANT

On February 2, 1999, Malesko, by counsel, filed an Amended Complaint, which was identical to the initial complaint in all material respects except that it substituted Jorge Urena as "JOHN DOE DEFENDANT #1" and alleged that Urena was the CSC employee who prevented Malesko's use of the elevator on March 28, 1994 and directed Malesko to climb the stairs.¹ On February 10, 1999, CSC moved to dismiss the Amended Complaint. On February 17, 1999, Malesko cross-moved seeking to file a second amended complaint to name as "DOE" defendants additional CSC employees allegedly responsible for Malesko's injuries.

On July 28, 1999, the district court entered a judgment granting CSC's motion to dismiss the Amended Complaint, denying Malesko's motion to file a second amended complaint, dismissing the Amended Complaint as against Urena and instructing the Clerk of Court to close the case. See Malesko v. Corrections Servs. Corp., No. 97 Civ. 4080 (JSM), 1999 WL 549003 (S.D.N.Y. July 28, 1999). The district court treated Malesko's Amended Complaint as raising claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), which provides for a cause of action for damages against federal agents who violate constitutional rights.

The district court dismissed the Amended Complaint as to CSC on two grounds. First, it held that Malesko could not bring a Bivens claim against a corporation such as CSC because, according to the district court, "[a] Bivens action may only be maintained against an individual." Id. at *1. Second, the district court held that, even if Malesko could assert a Bivens claim against a private corporation, CSC was nevertheless "shielded from liability" because CSC had "contracted with the federal government to carry out a project on behalf of the government." Id.

The district court also denied Malesko's motion to file a second amended complaint naming additional specific CSC employees as defendants. The district court found that because the statute of limitations had run on Malesko's Bivens claims as of March 28, 1997 (one day after he filed his initial complaint), Malesko's subsequent assertion of such claims against additional defendants was time-barred and therefore a "futile amendment" under Fed R. Civ. P. 15. See id. at *2. The district court rejected Malesko's contention that his substitution of specifically named defendants for the "DOE" defendants should "relate back" to the filing date of his initial complaint. See id. at *2-*3.

The district court dismissed the Amended Complaint as to Urena on similar grounds, finding that the Amended Complaint substituting Urena as a defendant had been filed nearly two years after the statute of limitations had run. See id. at *3. This appeal followed.

DISCUSSION

I. Claims Against CSC

Because the district court dismissed Malesko's claims against CSC on the pleadings, we review that decision de novo, accepting as true all material factual allegations in the complaint. See Jones v. New York Div. of Military and Naval Affairs, 166 F.3d 45, 48 (2d Cir. 1999).

A. Bivens Claims and Private Corporations

We note initially that the question of whether a Bivens claim may lie against a private corporation is an issue of first impression in this Circuit. The district court dismissed Malesko's Bivens claim against CSC because it concluded that a Bivens claim may only be asserted against an individual federal agent, not against private corporations such as CSC. The district court reached this result through a purported application of the Supreme Court's decision in FDIC v. Meyer, 510 U.S. 471 (1994), which held that Bivens claims may not be brought against agencies of the federal government. See Malesko, 1999 WL 549003 at *1 (citing Meyer, 510 U.S. at 483-87). The district court did not explain why Meyer's holding regarding federal agencies precluded a Bivens claim against CSC, which is not a federal agency. Reviewing this question de novo, we now hold that a private corporation acting under color of federal law may be subject to a Bivens claim.

Although the issue is new in this Circuit, several circuit courts recognized prior to the Meyer decision that Bivens-type claims could be asserted against private corporations so long as the corporations engaged in "federal action," i.e., they acted under color of federal law. See, e.g., Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987) (holding that private corporation employed by Department of Navy to provide security services would be subject to Bivens claims if, on remand, its actions were found to constitute federal action); Gerena v. Puerto Rico Legal Serv., Inc., 697 F.2d 447 (1st Cir. 1983) (recognizing that private entities may be subject to Bivens claims, but dismissing claims at issue against legal assistance corporation because it did not engage in federal action); Dobyns v. E-Systems, Inc., 667 F.2d 1219 (5th Cir. 1982) (permitting Bivens claim against private contractor that supplied personnel, materials, transportation and services to federal government); ...