Ninth Circuit allows for Bivens suit against operator of private federal prison

Addressing an issue that has the smell of a future cert grant, a Ninth Circuit panel today in Pollard v. Geo Group, Inc., No. 07-16112 (9th Cir. June 7, 2010) (available here) allows a Bivens action to go forward against the operators of a private prison. Here is how the majority opinion starts:

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.  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 (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.

A partial dissent, which flags why this ruling may be cert worthy, starts this way:

I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against such employees where adequate state law remedies exist. Until now, the federal circuits that have addressed the issue have held correctly that a prisoner may not maintain such an action.  See Alba v. Montford, 517 F.3d 1249 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008); Holly v. Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168 (2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and aff’d by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam), cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063 (2006). The evolution of the U.S. Supreme Court’s Bivens jurisprudence confirms that this Court should follow their lead.