Pollard v. The Geo Group Inc, 07-16112.

• Citation: 607 F.3d 583
• Decision Date: 07 June 2010
• Docket Number: No. 07-16112.,07-16112.
• Parties: Richard Lee POLLARD, Plaintiff-Appellant,v.The GEO GROUP, INC., Erroneously Sued As Wackenhut Corrections Corporation, dba Taft Correctional Institution; Margaret Minneci; Jonathan E. Akanno; Robert Spack; Bob D. Steifer; Becky Maness, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

607 F.3d 583

Richard Lee POLLARD, Plaintiff-Appellant,v.The GEO GROUP, INC., Erroneously Sued As Wackenhut Corrections Corporation, dba Taft Correctional Institution; Margaret Minneci; Jonathan E. Akanno; Robert Spack; Bob D. Steifer; Becky Maness, Defendants-Appellees.

No. 07-16112.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 7, 2009.

Filed June 7, 2010.

John F. Preis, University of Richmond School of Law, Richmond, VA, and Charles Francis Carbone, San Francisco, CA, for the plaintiff-appellant.

Michael Kenneth Johnson, Lewis, Brisbois, Bisgaard & Smith, LLP, San Francisco, CA, for defendants-appellees Wackenhut/The GEO Group, Inc., Margaret Minneci, Robert Spack, Bob D. Steifer, and Becky Maness.

David J. Wilson, Manning & Marder Kass Ellrod Ramirez LLP, Los Angeles, CA, for defendant-appellee Jonathan E. Akanno.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding. D.C. No.CV-01-06078-OWW (WMW).

Before: PROCTER HUG, JR. and RICHARD A. PAEZ, Circuit Judges, and JANE A. RESTANI,^* Judge.

Opinion by Judge PAEZ; Partial Concurrence and partial Dissent by Judge RESTANI.

PAEZ, Circuit Judge:

Plaintiff-Appellant Richard Lee Pollard, a federal inmate, appeals the district court's order dismissing his Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons.¹ This appeal presents the question of whether the implied damages action first recognized in 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), allows a federal prisoner to recover for violations of his constitutional rights by employees of private corporations operating federal prisons. We conclude that it does.

I. BACKGROUND

The GEO Group, Inc. (GEO), under contract with the federal Bureau of Prisons (BOP), has operated the Taft Correctional Institution (TCI) since December 1997.² Pollard is a federal inmate who, in 2001 and 2002, was incarcerated at TCI. During his imprisonment, Pollard slipped on a cart left in a doorway and had to be seen by the prison's medical staff.³ He was x-rayed, diagnosed with possible fractures of both elbows, and placed in a bilateral sling. He was then referred to an orthopedic clinic outside the prison.

Before transporting Pollard to the clinic, a GEO employee directed him to don a jumpsuit. Pollard told the employee that putting his arms through the sleeves of the jumpsuit would cause him excruciating pain, but he was nonetheless required to put it on. Two employees also forced Pollard to wear a “black box” mechanical restraint device on his wrists despite Pollard's complaints about severe pain. An outside orthopedist diagnosed Pollard with serious injuries to his elbows and recommended that his left elbow be put into a posterior splint for approximately two weeks. Upon returning to TCI, Pollard was told that, due to limitations in staffing and facilities, his elbow would not be put into a posterior splint. Pollard claims that, in the following weeks, he was unable to feed or bathe himself and that the GEO employees failed to make alternative arrangements for him. He further alleges that he was required to return to work before his injuries had healed and was again forced to wear the “black box” restraint when returning to the outside orthopedic clinic for a follow-up appointment.

Pollard subsequently filed a pro se complaint in the United States District Court for the Eastern District of California, alleging violations of his Eighth Amendment rights and seeking money damages under Bivens. His first amended complaint named GEO and eight individuals as defendants. Seven of these individuals were employees of GEO at the time of Pollard's injuries. ⁴ The eighth, Marshall Lewis, was a doctor employed by the Pacific Orthopedic Medical Group, which GEO had hired to treat Pollard. GEO was subsequently dismissed from the suit due to the Supreme Court's holding in Correctional Services Corp. v. Malesko, 534 U.S. 61, 62, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), that private prison corporations are not subject to Bivens liability. See Order Dismissing Complaint With Leave to Amend at 2 Pollard v. Wackenhut, No. CV-F-01-6078 (E.D.Cal. Mar. 7, 2002).⁵

Pollard's suit against the remaining defendants was assigned to a magistrate judge for screening pursuant to 28 U.S.C. § 1915A(a). The Magistrate Judge issued proposed findings and a recommendation that Pollard's suit be dismissed under 28 U.S.C. § 1915A(b)(1) for failure to state a claim. Specifically, the Magistrate Judge concluded that a Bivens cause of action was not available to Pollard for two reasons: (1) state law provided him with alternative remedies for his injuries in the form of a tort action for negligence or medical malpractice; and (2) although under contract with the federal government, the GEO employees did not act under color of federal law. Pollard did not file objections to the Magistrate Judge's recommendation, and the district court adopted it in full and dismissed Pollard's complaint.

Shortly thereafter, Pollard, now represented by counsel, filed a motion to vacate the judgment. That motion requested that the dismissal be vacated for the limited purpose of allowing Pollard to assert objections to the Magistrate Judge's findings and recommendation, thereby preserving his right to appeal. The district court did not rule on the motion. Pollard ultimately filed a timely notice of appeal, which was served on the Acting Executive Assistant at TCI, but not on any of the individually named defendants personally. Before this court, only five of the original eight individual defendants filed an opposition brief.⁶

We review de novo a district court's grant of a motion to dismiss under 28 U.S.C. § 1915A. Resnick, 213 F.3d at 447.

II. PROCEDURAL CHALLENGES

The GEO employees initially argue that we should dismiss this appeal because: (1) they were never served with Pollard's opening brief and (2) Pollard failed to enter objections to the Magistrate Judge's findings and recommendation and thereby forfeited his right to appeal. We are not convinced by either of these arguments, which we address in turn.

First, the GEO employees argue that because they were not served with a copy of Pollard's opening brief, this court lacks jurisdiction over this appeal.⁷ Fed. R.App. Proc. 25(b) provides: “Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party's counsel.” It is undisputed that Pollard only served his opening brief on Dale Patrick, identified as the Acting Executive Assistant for TCI.

Fed. R.App. P. 3(a)(2) provides that “[a]n appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.” See Azizian v. Federated Dep't Stores, 499 F.3d 950, 961 (9th Cir.2007) (noting, in the context of a violation of Fed. R.App. P. 7, that Fed. R.App. P. 3(a)(2) grants to this court's “sound discretion” whether to dismiss an appeal). In deciding whether such a deficiency warrants dismissal, we are entitled to consider whether Pollard's failure resulted in prejudice to the GEO employees or to this court. See Everest & Jennings, Inc. v. E & J Mfg. Co., 263 F.2d 254, 262 (9th Cir.1959) (holding that, because the opposing party could demonstrate no prejudice, a failure to file briefs in accordance with court rules did not warrant dismissal); Recinos De Leon v. Gonzales, 400 F.3d 821, 822 (9th Cir.2005) (published order) (considering prejudice to the opposing party and to the court in deciding whether to dismiss an appeal based on the late filing of a brief).

The GEO employees have not alleged-nor can we surmise-any prejudice resulting from Pollard's failure to comply strictly with the requirements of Rule 25(b). Pollard's counsel has provided the court with an affidavit (and accompanying telephone records) declaring that he contacted GEO and was specifically instructed by a representative of GEO's General Counsel to send legal correspondence to TCI. We have no reason to doubt that Pollard's counsel was so instructed, as the same law firm represents GEO and the individually named defendants on appeal. Indeed, the appellees' answering brief was filed on behalf of all those parties (other than the physician not employed by GEO, Marshall Lewis).⁸ Thus, we exercise our discretion under Fed. R.App. P. 3(a)(2) and decline to dismiss this appeal for this alleged deficiency. Second, the GEO employees argue that dismissal is warranted because Pollard failed to file timely objections to the Magistrate Judge's findings and recommendation. The GEO employees contend that the failure to file objections constitutes a waiver of Pollard's right to appeal. But this court has held that such a failure does not, “standing alone, ordinarily constitute a waiver of the [appeal].” Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.1983)). Rather Martinez counsels that failure to object to a magistrate judge's findings and recommendations “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Id. Because Pollard was proceeding pro se at the time of the alleged waiver, and because the GEO employees have demonstrated no prejudice resulting from Pollard's failure to file objections, we decline to exercise our discretionary authority to dismiss this appeal.

III. DISCUSSION.

We turn to the merits of this appeal. The district court dismissed Pollard's suit pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. ⁹...