Pollard v. the Geo Group Inc.

• Decision Date: 10 December 2010
• Docket Number: No. 07-16112,07-16112
• Citation: 629 F.3d 843
• 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

629 F.3d 843

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.

Amended Dec. 10, 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.

Order; Dissent to Order by Judge BEA; Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge RESTANI.

ORDER

The majority opinion is amended as follows:

1. At slip op. 8168, n.15, , the final sentence of the footnote is amended to read: Malesko also relied on the fact that the plaintiff was not seeking recovery against an individual officer. See id. at 73-74, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456.>

2. At slip op. 8177, , the following sentence < Unfortunately, under the current Bivens regime, asymmetries will remain irrespective of whether we recognize or deny a Bivens cause of action here.> is amended to read: Bivens regime, asymmetries may remain irrespective of whether we recognize or deny a Bivens cause of action here.>

3. At slip op. 8177, , the paragraph beginning is amended to read: Compare Richardson, 521 U.S. at 401, 117 S.Ct. 2100 (holding that employees of privately operated state prisons are not entitled to qualified immunity), with Butz v. Economou, 438 U.S. 478, 501, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (holding that "federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers" (emphases removed)), and Holly, 434 F.3d at 294 (stating that employees of privately operated federal prisons are not entitled to qualified immunity). We need not decide the issue of qualified immunity here.>

The dissenting opinion is amended as follows:

At slip op. 8191, , in the last textual sentence before the Conclusion, the phrase is amended to read:

The amended opinion and amended dissent are filed concurrently with this order.

With those amendments, Judges Hug and Paez voted to deny the petition for panel rehearing. Judge Restani voted to grant the petition for panel rehearing.

The petition for panel rehearing is DENIED.

Judge Paez voted to deny the petition for rehearing en banc and Judge Hug so recommended. Judge Restani recommended that the petition for rehearing en banc be granted. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is DENIED.

BEA, Circuit Judge, dissenting from the denial of rehearing en banc, joined by KOZINSKI, Chief Judge, and O'SCANNLAIN, GOULD, TALLMAN, CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges:

The panel majority—over a vigorous dissent by Chief Judge Restani of the Courtof International Trade—extends and grants a Bivens¹ claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees. ² It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh.³ Further, it disregards the Supreme Court's narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. Because such an unprecedented opinion demands further review, I respectfully dissent from the denial of rehearing en banc.

I. The panel majority erred in unjustifiably recognizing a new Bivens action where adequate, and arguably superior, state remedies exist.

In its forty-year Bivens history, the Supreme Court has never provided a Bivens claim for relief to a person who—like the plaintiff in this case, Richard Lee Pollard—had adequate state tort remedies.⁴ In its most recent consideration of whether to extend Bivens, the Court distilled four decades of jurisprudence into a two-part test:

[T]he decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: the federal courts must makethe kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.

Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (emphasis added) (citation and internal quotation marks omitted).

A look at the three cases in which the Supreme Court has allowed a Bivens recovery reveals the emphasis the Court, and in turn, our sister circuits, have placed on the requirement that there be a lack of alternative state common law or statutory remedies. The Court has recognized two, and only two, contexts that permit recovery under Bivens: "to provide an otherwise nonexistent cause of action against individual [federal] officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual [federal] officer's unconstitutional conduct." Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Neither circumstance is present in this case.

In Bivens, the Court created an implied cause of action for the homeowner for a warrantless, but consensual, entry and a nonconsensual search of his apartment, in violation of his Fourth Amendment rights. The drug agents' alleged conduct was egregious; they manacled the plaintiff in front of his wife and children, searched his entire apartment, and threatened to arrest his entire family. Bivens, 403 U.S. at 389, 91 S.Ct. 1999. However, the Court noted that, since Bivens consented to the federal agents entering his home, his act precluded a state tort claim for trespass. Id. at 394, 91 S.Ct. 1999. Thus, absent a right of action implied by the Court from the Constitution, Bivens would have had no means by which to vindicate his Fourth Amendment rights against unreasonable searches and seizures by recovery of damages, and through recovery of damages to deter the individual officers from engaging in such egregious conduct in the future.⁵

Next, in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court created an implied cause of action under the Fifth Amendment for a female office worker who alleged gender discrimination while working for Congressman Otto Passman of Louisiana. The Court noted that the plaintiff had no cause of action under Louisiana law for gender discrimination, and because the defendant was no longer in office, injunctive relief against the ex-Congressman would have been futile. Id. at 245, 99 S.Ct. 2264. Given the need for "an otherwise nonexistent cause of action," Malesko, 534 U.S. at 70, 122 S.Ct. 515, the Court created an implied cause of action for monetary relief. Davis, 442 U.S. at 248, 99 S.Ct. 2264.

The last, and most recent, application of Bivens liability before the Court occurred thirty years ago in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). In Carlson, the administratrix of the estate of a deceased federal prisoner brought an action alleging that prison officials had violated the prisoner's Eighth Amendment rights by exhibiting deliberate indifference to the prisoner's serious medical needs—precisely the claims made here by Pollard. The prisoner was alleged to have died as a result. Under Indiana's tort law, the prisoner's cause of action for his pain and suffering did not survive his death. Hence, the administratrix had no legally protected interest to be harmed, and thus, no standing to sue on behalf of decedent's estate. In light of the deterrencerationale in Bivens, the Court found an implied cause of action, which provided the only avenue to vindicate the decedent's rights to damages against the individual tortfeasors.⁶Id. at 23, 100 S.Ct. 1468.

The facts of these cases show how marked a departure is the panel majority's opinion from established precedent.⁷ Unlike Bivens, Davis, and Carlson, where the plaintiffs had no existing cause of action and no alternative state remedy, Pollard has a viable suit in state court against each of the jailor defendants under theories of intentional or negligent tort or medical malpractice. California law imposes an affirmative duty of care on jailers:

One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of his normal

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