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A Final Frontier in Prisoner Litigation: Does Bivens Extend to
Employees of Private Prisons Who Violate the Constitution?

“[N]o iron curtain [exists] between the Constitution and the prisons of this
country.”1
I.

INTRODUCTION

Over the past few decades, corporate America has accrued influence and
power in a most unlikely arena: the nation’s prison system.2 States and the
federal government, citing economic and logistical advantages, have enlisted
corporations to construct, staff, and operate their correctional facilities.3 As the
federal inmate population skyrockets, the federal government’s reliance on
prison corporations has become pronounced in recent years.4 The industry’s
success produced controversy, as critics have argued that the corporations’
focus on profitability compromises inmate welfare.5 The news media reports of
abusive conditions in private prisons corroborate these suspicions.6
Coincident with the rise of private prisons, inmates began suing private
prison employees for alleged constitutional violations.7 These inmates filed

1. Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974).
2. See MARTIN P. SELLERS, THE HISTORY AND POLITICS

OF PUBLIC PRISONS: A COMPARATIVE
ANALYSIS 47-48 (1993) (discussing private sector’s involvement in prison operations); see also Douglas C.
McDonald, Private Penal Institutions, 16 CRIME & JUST. 361, 379-81 (1992) (explaining history of private
involvement in corrections).
3. See Sarah Armstrong, Bureaucracy, Private Prisons, and the Future of Penal Reform, 7 BUFF. CRIM.
L. REV. 275, 294 (2003) (summarizing governments’ motivation to privatize prisons); Charles W. Thomas &
Charles H. Logan, The Development, Present Status, and Future Potential of Correctional Privatization in
America, in PRIVATIZING CORRECTIONAL INSTITUTIONS 213, 217-18 (Gary W. Bowman et al. eds., 1994)
(explaining federal government’s use of correctional corporations to accommodate inmate population surplus).
4. See McDonald, supra note 2, at 381-92 (describing federal government’s extensive use of private
prisons); David Crary, Federal Business Helps Private Prisons Rebound, CHARLESTON GAZETTE & DAILY
MAIL, July 31, 2005, at 6A (noting federal government’s increased use of private prisons between 2000 and
2005).
5. See Sasha Abramsky, Incarceration, Inc.: Private Prisons Thrive on Cheap Labor and the Hunger of
Job-Starved Towns, THE NATION, July 19, 2004, at 22 (asserting prison corporations more interested in profits
than prisoners’ rights); see also Developments in the Law, A Tale of Two Systems: Cost, Quality, and
Accountability in Private Prisons, 115 HARV. L. REV. 1868, 1871-79 (2002) [hereinafter Developments in the
Law] (summarizing critiques of prison privatization).
6. See infra notes 69-71 and accompanying text (summarizing news media accounts of prison abuse).
7. See, e.g., Holly v. Scott, 434 F.3d 287 (4th Cir. 2006); Peoples v. CCA Det. Ctr (Peoples II), No.
Civ.A. 02-3298-CM, 2004 WL 2278667 (D. Kan. Mar. 26, 2004), aff’d by an equally divided court, 449 F.3d
1097 (10th Cir. 2006) (en banc); Jama v. U.S. I.N.S., 343 F. Supp. 2d 338 (D.N.J. 2004); Sarro v. Cornell
Corr., Inc., 248 F. Supp. 2d 52 (D.R.I. 2003).

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suit pursuant to Bivens, a cause of action that exposes “federal agent[s] acting
under color of [their] authority” to monetary damages for violating an
individual’s constitutional rights.8 The lower courts were divided on whether
the inmates could maintain these suits, some allowing the claims and others
barring them.9 The courts’ dissention appears inevitable given the Supreme
Court’s tendency to “explain[] its approach to Bivens claims in a variety of
ways” since it first implied the cause of action in 1971.10 Recently, in
Correctional Services Corp. v. Malesko,11 the Supreme Court complicated
matters further by drastically limiting the circumstances under which courts
may extend the Bivens action.12 Divergent interpretations of this decision and
its predecessors gave rise to the current split among lower courts.13
This Note begins by surveying the history of private prisons and explaining
the federal government’s recent move toward privatization.14 After reviewing
various remedies available to inmates, this Note examines the evolution of the
Bivens remedy.15 It then explores key decisions by three courts regarding
whether inmates held in private prisons may sue prison employees under
Bivens.16 Finally, this Note argues that courts should extend Bivens to
privately-incarcerated federal inmates, but concludes that a recent Supreme
Court decision regarding Bivens may foreclose this option.17
II. PRISON PRIVATIZATION: A BRIEF HISTORY
Private individuals and entities have long had a hand in administering
America’s penal system.18 After the Civil War, southern states privatized
correctional functions to defray penal costs and satisfy the urgent need for labor
generated by emancipation.19 The states criminalized petty crimes, imprisoned
8. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971).
9. Compare Sarro, 248 F. Supp. 2d at 59-63 (allowing inmate’s Bivens suit against private prison
employee), with Holly, 434 F.3d at 296-97 (rejecting inmate’s Bivens claim against private prison employee).
10. Peoples v. CCA Det. Ctr., 422 F.3d 1090, 1102 (10th Cir. 2005), vacated in part on reh’g by 449 F.3d
1097 (10th Cir. 2006) (en banc).
11. 534 U.S. 61 (2001).
12. See id. at 72-74 (holding inmates’ Bivens claim untenable because alternative state-law and
administrative remedies available).
13. See infra Part IV (discussing lower court decisions regarding private prison employees’ susceptibility
to Bivens suits).
14. See infra Part II (surveying involvement of private parties and entities in U.S. corrections).
15. See infra Part III (explaining state-law, administrative, and constitutional remedies inmate plaintiffs
may pursue); infra Part III.B.ii (explaining Bivens and subsequent Supreme Court decisions concerning
Bivens’s applicability and limitations).
16. See infra Part IV (summarizing court decisions for and against extending Bivens to inmates held in
private prisons).
17. See infra Part V (endorsing extension of Bivens to federal inmates in claims against private prison
officers).
18. See McDonald, supra note 2, at 367-92 (chronicling involvement of private firms in penal systems).
19. See McDonald, supra note 2, at 380-81 (discussing shift in state and private party roles in adult
corrections administration). See generally William A. Trine, Annotation, Litigating Civil Rights Violations by

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former slaves who violated these revised laws, and then leased the inmates to
private individuals and entities who put them to work.20 In an arrangement that
typified these convict leasing programs, a Kentuckian merchant
offered to pay the state . . . all prisoners in the Frankfort prison, which had been
ineffectively run and was costly to the state. In return for the right to work
these convicts at hard labor, Scott [the merchant] would feed, clothe, and house
them, as well as pay the state one-half of the net profit he might make from the
21
use of the convict labor.

Although this account observed that “no allegations of ill treatment were
reported,” indescribable inmate abuses plagued most convict leasing
programs.22 Ultimately, many states outlawed these programs, but private
corrections firms re-emerged during the mid-twentieth century, offering lowsecurity correctional services.23 States and the federal government relied on
corporations to operate halfway houses and residential treatment programs, as
well as detain illegal aliens awaiting deportation.24 Corporations also supplied
prisons with discrete services relating to health care, counseling, vocational
training, education, maintenance, and food provisions.25
Social and economic forces propelled private firms to the next tier of
corrections, namely high-security jails and prisons.26 Beginning in the mid1970s and continuing through the Reagan and Clinton administrations, the
governments’ war against crime and illegal drugs netted thousands of
criminals.27 Simultaneously, law enforcement officials assumed a hard-line
stance against criminal offenders, favoring incarceration over disproved

For-Profit Private Prisons, 2 ASS’N OF TRIAL LAWYERS OF AM. 1489 (2006).
20. See Sharon Dolovich, State Punishments and Private Prisons, 55 DUKE L.J. 437, 451-52 (2005)
(discussing use of “convict leasing”). For example, the Mississippi legislature amended its larceny statute in
1876 to subject otherwise petty criminals, most of whom were former slaves, to long prison terms. Id. at 452.
21. See McDonald, supra note 2, at 380 (describing convict lease arrangement).
22. See McDonald, supra note 2, at 380; Dolovich, supra note 20, at 452-53 (citing abuse and inadequate
living conditions among inmate leasing programs’ deficiencies).
23. See infra text accompanying note 24 (explaining services private firms offered governments initially).
24. See McDonald, supra note 2, at 382 (discussing return of private participation in prison operations);
id. at 362 (explaining enduring relationship between government and private industries). In 1989, private
organizations controlled 60% of the country’s psychiatric hospitals and two-thirds of its juvenile correctional
facilities; in 1991, 75% of persons undergoing residential drug treatment lived in private facilities. Id. These
institutions stand apart from correctional facilities because they provide health services and other assistance to
clients and patients while prisons protect the public and punish criminals. Id. at 363. The industry’s
involvement in psychiatric and juvenile facilities appears less objectionable than its association with prisons
because the former improve their residents’ welfare while the latter exact their residents’ punishment. Id. at
363.
25. See McDonald, supra note 2, at 361-62 (describing peripheral involvement of private firms in
correctional facilities).
26. See infra text accompanying notes 27-28 (summarizing forces prompting private corrections industry
to expand corrections services).
27. See Thomas & Logan, supra note 3, at 214-15 (explaining state and federal governments’ pursuit of
anti-crime legislation and mandatory sentencing).

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rehabilitative methods.28
These measures boosted inmate populations
nationwide, but governments could not build detention facilities to keep pace
with this growing demand.29 Moreover, states with strained budgets could ill
afford additional construction costs.30 To illustrate, between 1988 and 1989,
the national prison population increased at a rate demanding the construction of
approximately one 700-bed jail and one 1,600-bed prison every day for the
entire year at a cost of $115 million weekly and $5.98 billion annually.31 In
1985, building a new high-capacity, medium-security facility could cost nearly
$140 million, or $240 million in 2003 dollars.32
Unable to keep pace with exploding prison populations, federal and state
governments sought aid from private firms.33
In this new climate, industry’s role evolved as corporations began owning
and controlling prisons outright.34 As one commentator explained, privatizing
prison ownership and control exploited Corporate America’s collective
experience with running large, people-centered operations:
[t]he government is not going to give us better prisons, better programs, or
better personnel. It has tried but it can’t . . . . So it is time to get government
out of the prison business. Who could take over? The same people who run
other large institutions such as hospitals and colleges. The same people who
have developed techniques for serving thousands of meals and for housing
travelers. The same people who run most of the job training programs in this
35
Country: Private Industry.

28. See Thomas & Logan, supra note 3, at 214-15 (explaining governments’ new posture towards
criminal offenders). Incarceration gained popularity among law enforcement officials after research exposed
the shortcomings of rehabilitative methods. Id. at 215.
29. See Dana C. Joel, The Privatization of Secure Adult Prisons, in PRIVATIZING CORRECTIONAL
INSTITUTIONS 51, 52 (Gary W. Bowman et al. eds., 1994) (explaining state’s economic burden coinciding with
inmate population surge).
30. See infra text accompanying notes 31-32 (quantifying the burden rising prison populations placed on
federal government’s correctional system).
31. See Thomas & Logan, supra note 3, at 216 (discussing prison population increase). During the same
one-year period, the national prison population increased by 84,466 prisoners. Id.
32. See Dolovich, supra note 20, at 456 n.62 (discussing costs of building new prisons).
33. See Thomas & Logan, supra note 3, at 218 (observing prevalence of government outsourcing of
public services prior to correctional privatization movement). Historically, state and federal governments relied
on private firms to provide non-penal essential public services, including waste disposal, building maintenance,
public transportation, and child day-care. Id.; see also Alexander M. Holsinger & Tom Hughes, Correctional
Services Corporation v. Malesko: Boss, “They Can’t Hurt You Now”, 14 CRIM. JUST. POL. REV. 451, 453
(2003) (explaining prison privatization gained popularity when government privatized other functions). The
Federal Bureau of Prisons (BOP) is authorized statutorily to house federal inmates in private correctional
facilities. 18 U.S.C. § 4013(b) (2000). Privatization “stirred up competition in a field long the purview of
largely unaccountable state bureaucrats.” See Abramsky, supra note 5, at 23.
34. See McDonald, supra note 2, at 364-67 (outlining degrees of private involvement in corrections).
Public and private involvement in correctional administration assumes various forms: prisons may be private,
privately owned but publicly operated, government-owned but privately operated, or fully public. Id.
35. See SELLERS, supra note 2, at 47 (arguing for privatization of industry by professionals equipped to
handle prisons).

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Indeed, prison corporations could build facilities more quickly than the
federal government and use inventive architectural designs and technology to
prevent escapes and control inmate behavior.36 Observers debated whether
governments saved money by ceding responsibility to private firms.37 More
critically, they argued that the governments’ focus on cost-savings, in
conjunction with industry’s desire to realize a profit, yielded an inevitable
tension:
[i]f the state is to reduce the cost of its prisons through contracting out to the
private sector, the contract price must be less than the total cost the state would
otherwise incur in operating the facility. And if private providers are likewise
to make money on the venture, they must spend less to run the prisons than the
contract price provides. For such arrangements to be remunerative for both
parties, therefore, private prisons must be run at a considerably lower cost than
the state would otherwise incur. At the same time, contractors must not allow
either the quality of conditions of confinement or inmate safety to drop below
38
existing levels . . . .

In the end, enough states viewed privatization positively to sustain the
corrections industry for years.39
Recently, however, the industry’s state prison business slowed.40 Between
December 2000 and December 2005, the number of state inmates held in
private prisons increased just 7%.41 Corrections Corporation of America
(CCA), a leading correction firm, spent $106 million constructing a prison in
the California desert, but the facility sat empty after no contract with the state
materialized.42 The industry viewed CCA’s failure in California as a
bellwether of declining state-generated business.43 Several forces slowed the

36. See Abramsky, supra note 5, at 23 (explaining advantages of private prison construction); Joel, supra
note 29, at 57-59 (same). CCA’s chief executive commented that the federal government, unlike the private
prison sector, must “plan eight years in advance” to increase prison capacity. See Crary, supra note 4, at 6A;
see also McDonald, supra note 2, at 393-94 (noting appeal of private sector’s financial and operational
arrangements to federal and state governments).
37. Compare Bill Deener, Prison Companies’ Stocks See Hefty Gains, DALLAS MORNING NEWS, Jan. 18,
2005, at 3D (estimating 10-15% savings due to privatization), with Tracy F.H. Chang & Douglas E.
Thompkins, Corporations Go to Prisons: The Expansion of Corporate Power in the Correctional Industry, 27
LAB. STUD. J. 45, 51-52 (2002) (deeming cost reductions associated with privatization “miniscule” and arguing
they compromise quality), and McDonald, supra note 2, at 394-404 (surveying cost-effectiveness research and
concluding findings ambivalent).
38. See Dolovich, supra note 20, at 460 (noting economic challenges private prisons face).
39. See Abramsky, supra note 5, at 23-24 (demonstrating upsurge in prison privatization by states in
1990s).
40. See Crary, supra note 4, at 6A (reporting prison business trends).
41. See BUREAU OF JUSTICE STATISTICS, BULLETIN: PRISONERS IN 2005 5 (2006) [hereinafter PRISONERS
IN 2005], available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf.
42. Joseph T. Hallinan, Bailed Out: Shaky Private Prisons Find Vital Customer in Federal Government,
WALL ST. J., Nov. 6, 2001, at A1 (describing disappointment among private prison corporations). A zealous
prison guards’ union and a stagnate prison population bear partial blame for CCA’s struggle. Id.
43. See infra text accompanying notes 44-45 (explaining industry’s declining successes in other states).

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industry’s state growth. Many state legislatures bowed to the industry’s
opponents, including prison guard unions, bar associations, and lawyers groups,
who all lobbied to curb privatization.44 Further, states eased the sentencing
laws that propelled prison privatization during previous decades, thus reducing
demand for prison beds.45 Violence, escapes, declines in prison population
growth rates, and questions about privatization’s true cost-savings also
contributed to the industry’s downturn.46 By the end of the twentieth century,
CCA “teetered near bankruptcy.”47
The federal government, facing a fast-rising inmate population, reversed the
industry’s misfortunes.48 Between 1995 and 2005, the federal inmate
population grew about 7% annually, compared with a 2.5% climb in the state
prison population.49 Private facilities benefited enormously from the surge in
federal inmates: between December 2000 and December 2005, the number of
federal inmates held in private facilities rose 74%, compared to a 7% increase
on the state level.50 Further, data suggests that federal facilities, which
operated at 34% above capacity by December 2005, cannot withstand the crush
of federal inmates.51
The federal prison population exploded as a result of several forces.
Increases in unemployment rates, racial tensions, and income inequalities
landed more citizens in prison.52 Toughened sentencing laws for drug-related
offenses also contributed to the boom, as 57% of federal inmates in 2003 were
drug offenders, compared to just 30% in 1984.53 More significantly, the Bush
administration’s aggressive immigration policies and its post-September 11th
“War on Terror” altered the federal detention landscape.54 The federal
44. See Chang & Thompkins, supra note 37, at 53-54 (chronicling various groups’ lobbying efforts aimed
at halting prison privatization).
45. See Hallinan, supra note 42, at A1 (noting decline in prison population).
46. See Crary, supra note 4, at 6A (discussing forces causing downturn in prison industry).
47. Crary, supra note 4, at 6A.
48. See Crary, supra note 4, at 6A (linking private prisons’ business surge to federal government’s
soaring prison needs); Deener, supra note 37, at 3D (discussing strong stock performance of private prison
companies). Recently, new federal contracts revived CCA’s business; the company doubled its federal inmate
population between 2001 and 2005 to 18,200 inmates, 29% of its inmate population. Crary, supra note 4, at
6A.
49. See PRISONERS IN 2005, supra note 41, at 2 tbl.1 (comparing federal and state prison populations).
Between 1995 and 2005, the federal inmate population increased from 89,538 inmates to 179,220 inmates. Id.
During the same period, the states’ inmate population grew from 989,004 inmates to 1,259,905 inmates. Id.
50. See PRISONERS IN 2005, supra note 41, at 5 (comparing increases in private and public prison
populations).
51. See PRISONERS IN 2005, supra note 41, at 8 (quantifying operating capacities among prison systems).
52. See Chang & Thompkins, supra note 37, at 47 (explaining sociopolitical origins of increasing
incarceration rates). Criminologists have found that incarceration rates fluctuate according to unemployment
rates, income inequalities, racial conflicts, and political conservatism. Id.
53. Judith Greene, Bailing-Out Private Jails, in PRISON NATION: THE WAREHOUSING OF AMERICA’S
POOR 142 (Tara Herivel & Paul Wright eds., 2003) (quantifying increased incarceration for drug-related
offenses).
54. See Teresa A. Miller, Blurring the Boundaries between Immigration and Crime Control after

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government tightened the country’s borders, enabling it to ensnare and
imprison thousands of illegal immigrants.55 The Bureau of Immigration and
Customs Enforcement (ICE) contracted with private facilities to house these
detainees.56 Between 1995 and 2005, the number of detainees held in private
prisons on ICE’s behalf increased by 263%.57
The federal government’s dependence on private prisons has benefited
corrections corporations enormously.
In January 2007, CCA and its
competitor, Cornell Companies, Inc., signed four-year contracts with the
federal government worth $119.6 million and $268.8 million, respectively.58
Evidencing further that “crime pays,” Forbes noted that CCA’s earnings per
share increase 130% in 2006.59 Such deals and corporate earnings explain why
investors watch private prison firms closely and bet on crime-level increases.60
Forbes commented that, fortunate for CCA and its investors, “criminals are
never in short supply and there aren’t enough bars to put them behind.”61
In light of the prison industry’s explosive growth, experts have debated how
prison privatization affects inmate welfare.62 Privatization opponents contend
poor officer training and lower pay scales jeopardize inmate welfare.63 They
argue further that the corporate focus on economy can yield troubling results.64

September 11th, 25 B.C. THIRD WORLD L.J. 81, 110-11 (2005) (linking federal prison population increase to
“heightened enforcement of immigration law” before and after September 11, 2001).
55. See Crary, supra note 4, at 6A (tying immigrant detainee influx to post-September 11th border control
regulations); Meredith Kolodner, Private Prisons Smiling Over Illegal Immigration, INT’L HERALD TRIBUNE,
July 20, 2006 (discussing corporation’s business increase associated with immigration reform). Detention of
individual U.S immigration officials increased three-fold between 1995 and 2005, and federal anti-terrorism
legislation, passed in December 2004, requires 40,000 beds by 2010 to accommodate aliens awaiting
deportation. Id. Looking forward, the “echo” generation, comprised of the Baby Boomers’s grandchildren, is
approaching the age at which statistics show its members will begin committing crimes. See Deener, supra
note 37, at 3D (ascribing investor confidence in prison corporations to “echo” generation’s anticipated criminal
activity).
56. See PRISONERS IN 2005, supra note 41, at 10 (citing population statistics for private prisons under
contract with ICE).
57. See PRISONERS IN 2005, supra note 41, at 10 (citing ICE’s increased reliance on private facilities to
accommodate detainees).
58. Associate Press, Corrections Corp. Wins Federal Contract Worth Up to $111.9M to House Inmates,
INVESTREND, Jan. 19, 2007.
59. Amanda Schupak, The Best of the Best, FORBES, Jan. 8, 2007, at 96 (reviewing CCA’s 2006 earnings).
60. See generally Deener, supra note 37 (attributing increased stock prices to anticipated crime increases).
University of North Florida criminologist Michael Hallett commented that “[w]e’ve gotten so extreme in
overusing incarceration that we have for-profit industries with an interest in high crime rates.” Crary, supra
note 4, at 6A.
61. See Schupak, supra note 59, at 96 (reporting CCA expands prisons ahead of demand intentionally).
62. Compare infra notes 63-68 and accompanying text (explaining opposition to private prisons because
of profit motives’ effects on inmates’ welfare and rights), with McDonald, supra note 2, at 408-10 (concluding
prison privatization not objectionable).
63. See Crary, supra note 4, at 6A (summarizing critical arguments alleging privatization jeopardizes
inmate welfare); Dan Shingler, Prisoners for Profit?, ALBUQUERQUE TRIB., July 26, 2004, at B1 (citing aspects
of critical opposition to correctional privatization).
64. See Dolovich, supra note 20, at 461.

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They point, for example, to the private prison in Youngstown, Ohio, where
prison officials received maximum-security inmates from an overcrowded
public prison and “reclassified” them as medium security inmates in order “to
fill the beds,” circumventing security requirements.65 Supporters, on the other
hand, argue that privatization heightens the accountability of those who interact
with prisoners on a daily basis.66 They argue that judges and juries, with little
patience for corporate wrongdoing, subject companies to heightened scrutiny
when prisoners allege mistreatment.67 Moreover, proponents argue that market
incentives, such as the need to avoid negative publicity and protect shareholder
value, deter corporate misconduct.68 Neither side can ignore, however, the
65. See Dolovich, supra note 20, at 461 (explaining scheme employed by Youngstown prison operator).
The Youngstown prison also experienced increased inmate-on-inmate assaults and the death of one inmate
who, due to a bed shortage, was forced to reside with men who had threatened his life. Id.
66. See Developments in the Law, supra note 5, at 1878-79 (highlighting arguments supporting
privatization).
67. See Developments in the Law, supra note 5, at 1879-80 (noting juries’ historic hostility toward
corporate defendants and corporations’ lack of sovereign immunity).
68. Compare Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 81 n.9 (2001) (Stevens, J., dissenting)
(observing corporations’ devotion to stockholders affects prisoner welfare adversely), with Richardson v.
McKnight, 521 U.S. 399, 418-19 (1997) (Scalia, J., dissenting) (arguing market pressures do not compromise
prisoner welfare). See also Robin Miller, Annotation, Rights of Prisoners in Private Prisons, 119 A.L.R. 5TH
1, § 7 (2004-05) (summarizing Malesko Court’s determination of liability deterring wrongdoing). Miller notes
that, in Malesko, the Supreme Court
rejected the contention that implying a suit against private corporations acting under color of federal
law is still necessary to advance the core deterrence purpose of Bivens, in that, because corporations
respond to market pressures and make decisions without regard to constitutional obligations,
requiring payment for the constitutional harms they commit is the best way to discourage future
harms. That may be so, the Court replied, but it has no relevance to Bivens, which is concerned
solely with deterring the unconstitutional acts of individual officers.
Id. Justice Scalia, dissenting in Richardson, disputes Justice Stevens’s assessment of how corporate pressures
affect inmate well-being:
it is fanciful to speak of the consequences of ‘market’ pressures in a regime where public officials
are the only purchaser, and other people’s money the medium of payment. Ultimately, one prisonmanagement firm will be selected to replace another prison-management firm only if a decision is
made by some political official not to renew the contract. This is a government decision, not a
market choice.
Richardson, 521 U.S. at 418-19 (Scalia, J., dissenting) (citations omitted). Further, Scalia rejected the lower
court’s conclusion that
officers of private prisons are more likely than officers of state prisons to violate prisoners’
constitutional rights because they work for a profit motive . . . . The [lower court] offered no
evidence to support its bald assertion that private prison guards operate with different incentives than
state prison guards, and gave no hint as to how prison guards might possibly increase their
employers’ profits by violating constitutional rights. One would think that private prison managers,
whose § 1983 damages come out of their own pockets, as compared with public prison managers,
whose § 1983 damages come out of the public purse, would, if anything, be more careful in training
their employees to avoid constitutional infractions. And in fact, States having experimented with

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news media’s reports of abuse at private prisons.69 In Texas, poorly trained
employees of a private jail, who had only forty hours of classroom training,
were videotaped “forcing prisoners to crawl, kicking them, and encouraging
dogs to bite them.”70 Other “cost-conscious” operators have been accused of
failing “to provide adequate meals, staffing, and sanitation” and “failing to
attend to the medical needs of an indigent prisoner because, in part, the prisoner
could not pay for his treatment.”71
III. INMATES’ REMEDIES
Public scrutiny, along with the federal government’s renewed interest in
private prisons, invite inquiry into inmates’ legal rights. The District Court of
Massachusetts court explained that prisoners, “as a marginalized group,”
require judicial protection because
[they] are not a sympathetic minority; certainly in this country, there are few
places where a politician will win votes by standing up for the rights of
prisoners. Few prisoners have any substantial wealth with which to influence
elections or even public policy debates, and . . . the prison population draws

prison privatization commonly report that the overall caliber of the services provided to prisoners
has actually improved in scope and quality.
Id. at 421-22.
69. See Denver “Cowboy” Guards Must Remain in Jail, Judge Says, ROCKY MOUNTAIN NEWS, July 3,
2003, at 32A (reporting conviction of prison guards for violating inmates’ civil rights); Ken Johnson, Jail
Guard Given Prison Sentence, PATRIOT LEDGER, Mar. 10, 2004, at 10 (reporting prison sentence in detainee
beating cover-up); Jason Van Derbeken & Susan Sward, Probe of Chief’s Son Called Unusual, S.F. CHRON.,
Dec. 7, 2003, at A29 (alleging prisoners endured repeated civil rights violations); Press Release, Bureau of
Prisons, Three Former Federal Bureau of Prison Guards Sentenced for Violating Inmates’ Civil Rights (Nov.
21, 2003). In 2003, a federal jury convicted three Bureau of Prison employees of civil right violations. Press
Release, Bureau of Prisons, supra. In furtherance of the conspiracy, the convicted guards fabricated reports of
injury to themselves and falsely reported inmate prison misconduct to legitimize their use of unnecessary force.
Id. In another episode, prisoners’ rights advocates allege that John J. Geoghan, the defrocked priest convicted
of child molesting who was murdered by a fellow inmate in 2003, sustained daily abuse at the hands of
correctional guards who defecated in his cell, knocked into him, and called him “Lucifer” and “Satan.” Farah
Stockman & Anne Barnard, Group Assails Geoghan Guards, Says Prison Culture Fosters Harassment,
BOSTON GLOBE, Aug. 29, 2003, at A1 (reporting the inmate was “‘suffering daily’ at the hands of correctional
officers”). These advocates contend that the abuse resulted in Geoghan’s transfer to the prison’s maximum
security unit, where he was eventually killed by another inmate. Id. Prison officials attribute the cause of death
to Geoghan’s disciplinary problems but recognize that data on inmate abuse is scarce. Id. State officials admit
that prison superintendents receive several complaints weekly from prisoners, prisoners’ families, and lawyers,
but that many of the complaints are “vague, unsubstantiated, or even made up by disgruntled prisoners.” Id.
See generally Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980) (summarizing officer-inmate abuse in Texas
penal system), aff’d in part and rev’d in part on other grounds, 679 F.2d 1115 (5th Cir. 1982), amended in part
and vacated in part, 688 F.2d 266 (5th Cir. 1982).
70. See Prison Privatization is no Panacea, HARTFORD COURANT, Aug. 24, 1997, at C2; see also Kim
Bell, Texas Jail says Incident was Overblown, ST. LOUIS POST-DISPATCH, Aug. 26, 1997, at 1A.
71. See Douglas W. Dunham, Note, Inmates’ Rights and the Privatization of Prisons, 86 COLUM. L. REV.
1475, 1495 (1986) (recounting allegations of improper treatment and care levied against private prison
operators).

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largely from groups who are already marginalized in our society, including the
72
poor, the mentally ill, and to a frightening degree, racial minorities.

Affirming the need to afford inmates judicial protection and permit them to
vindicate constitutional injuries, the Supreme Court has warned that “no iron
curtain [exists] between the Constitution and prisons of this country.”73
A. State Law and Administrative Remedies
Federal inmates detained in private prisons enjoy expansive state-law
remedies when challenging the unconstitutional conduct of prison employees
and operating entities.74 For instance, inmates may sue employees and—under
the theory of respondeat superior—prison corporations for common-law and
statutory torts.75 By filing these state tort claims, inmates avoid the having to
comply with the Federal Prison Litigation Reform Act (PLRA), which requires
inmates to exhaust administrative remedies before filing a § 1983 suit or any
other federal suit.76 Further, private prison inmates who sue in state court avoid
the Federal Tort Claims Act (FTCA),77 which, at least according to its critics,
imposes “limits, exclusions, and procedural requirements” that hamstring state
tort claims.78
72. Kane v. Winn, 319 F. Supp. 2d 162, 175-76 (D. Mass. 2004) (citation omitted). The District of
Massachusetts recognized further that “[u]nlawful physical violence at the hands of prison guards certainly
occurs, [but] for obvious reasons reliable statistics are hard to come by.” Id. at 184.
73. Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). The Supreme Court has also explained that “[t]he
Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (citation omitted).
74. See infra notes 75-78 and accompanying text (describing state-law remedies available to inmates).
75. See Trine, supra note 19, at III.1 (explaining state remedies available to private prison inmates).
76. See Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (2000). Section 1997e(a) provides
that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” Id. Section 1997e’s exhaustion requirement applies to federal and
state inmates held in both private and public facilities. See Boyd v. Corr. Corp. of Am., 380 F.3d 989, 993 (6th
Cir. 2004) (applying exhaustion requirement to inmates detained in private state prisons); Ross v. County of
Bernalillo, 365 F.3d 1181, 1184 (10th Cir. 2004) (holding exhaustion requirement applies to inmates held in
privately-operated state and federal prisons); Butler v. Gardner, 71 F. App’x 510, at *1-2 (6th Cir. July 30,
2003) (dismissing federal inmate’s § 1983 suit against private prison corporation and officers for failure to
exhaust); Murphy v. Jones, 27 F. App’x 826, at *1 (9th Cir. 2001) (dismissing state inmates’ § 1983 claim for
failure to exhaust); Lavista v. Beeler, 195 F.3d 254, 256 (6th Cir. 1999) (concluding statute requires all
prisoners exhaust administrative remedies before bringing Bivens claim in federal court). Further, § 1997e
applies to both § 1983 and Bivens suits. See Murphy, 27 F. App’x at *1 (rejecting state inmate’s § 1983 suit for
failure to exhaust administrative remedies); Lavista, 195 F.3d at 256 (requiring federal inmate to exhaust
administrative remedies before bringing Bivens suit in federal court); Garrett v. Hawk, 127 F.3d 1263, 1265
(10th Cir. 1997) (holding § 1997(e) exhaustion requirements applies to Bivens suits brought by federal
prisoners against federal officials), abrogated on other grounds by Booth v. Churner, 532 U.S. 731 (2001). The
statute’s exhaustion requirement applies to plaintiffs seeking money damages otherwise unavailable in
administrative channels. See Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001) (barring Bivens claims
to inmate seeking money damages who failed to exhaust administrative remedies).
77. Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2000).
78. Brief for the United States as Amicus Curiae Supporting Petitioner, Corr. Servs. Corp. v. Malesko,

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Private prison inmates may also pursue relief through administrative
The Federal Bureau of Prisons, for example, offers an
channels.79
Administrative Remedy Program (ARP), that allows federal inmates “to seek
formal review of an issue relating to any aspect of his/her own confinement.”80
Under the ARP, aggrieved inmates approach staff to resolve their concerns
informally before filing requests for formal administrative action.81 The PLRA
requires federal inmates to follow the ARP to fulfill the statute’s exhaustion
requirement.82
B. Constitutional Remedies: Section 1983 and the Bivens Remedy
In addition to using state and administrative remedies, inmates may
challenge unconstitutional actions and policies through constitutionally based
remedies.83 To vindicate constitutional injuries, inmates in state prisons invoke
42 U.S.C. § 1983, while inmates in federal prisons rely on the Bivens cause of
action.84 Plaintiffs use § 1983 and Bivens to challenge conditions of their
confinement, not the fact of their confinement.85 The contours of these

534 U.S. 61 (2001) (No. 00-860), 2001 WL 558228, at *24 n.14 (citing limitations FTCA imposes on state tort
claims).
79. See infra notes 80-82 and accompanying text (explaining administrative remedies available to
inmates).
80. U.S. DEP’T OF JUSTICE, FED. BUREAU OF PRISONS, ADMINISTRATIVE REMEDY PROGRAM, PROGRAM
STATEMENT 1330.13 (stating Bureau’s policies and procedures).
81. See 28 C.F.R. § 542.13 (2006) (outlining Administrative Remedy Program procedures).
82. See 42 U.S.C. § 1997e(a) (2000); see also Porter v. Nussle, 534 U.S. 516, 523 (2002); Davis v.
Keohane, 835 F.2d 1147, 1148 (6th Cir. 1987) (explaining administrative remedy exhaustion requirement).
83. See Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75 VA. L. REV. 1117,
1119 (1989) (explaining constitutional damages claims available against state and federal officials).
84. See generally 42 U.S.C. § 1983 (2000); Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). Section 1983 provides, in relevant part,
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.
§ 1983. The Seventh Circuit further explains that
[i]f the prisoner is seeking what can be fairly described as a quantum change in the level of
custody—whether outright freedom, or freedom subject to the limited reporting and financial
constraints of bond or parole or probation, . . . then habeas corpus is his remedy. But if he is seeking
a different program or location or environment, then he is challenging the conditions rather than the
fact of his confinement and his remedy is under civil rights law . . . .
Glaus v. Anderson, 408 F.3d 382, 386-87 (7th Cir. 2005) (citing Graham v. Broglin, 922 F.2d 379, 381 (7th
Cir. 1991) (citations omitted)).
85. See Glaus, 408 F.3d at 386-87 (explaining appropriate uses of Bivens and § 1983).

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remedies track each other closely, but not identically.86 As such, “courts have
generally relied upon the principles developed in the case law applying section
1983 to establish the outer limits of a Bivens claim against federal officials.”87
i.

The “State Action” Requirement

Both § 1983 and Bivens liability extend only to persons who act under color
The “state action” doctrine
of state or federal law, respectively.88
circumscribes this requirement, demanding that the “conduct allegedly causing
the deprivation of a federal right be fairly attributable to the State.”89 State
action may arise when a private entity or person exercises a public function
“traditionally exclusively reserved to the state.”90 In the § 1983 context,
several lower courts maintain that the conduct of private prisons and their
employees constitutes state action.91 The Supreme Court has not adopted this
view expressly, however, it declared recently that state inmates held in private
prisons “already enjoy a right of action against private correctional providers”
under § 1983.92 Further, the Supreme Court recognizes that private actors may
be state actors for § 1983 purposes.93 Despite these decisions and the
86. See Hartman v. Moore, 126 S. Ct. 1695, 1700 n.2 (2006) (deeming Bivens action the “federal analog
to suits brought against state officials under” § 1983); Glover v. Eight Unknown D.E.A. Agents/Drug Task
Force Agents From Birmingham, Ala. Task Force, No. 06-13061, 2007 WL 559805, at *2 (11th Cir. Feb. 23,
2007) (explaining “Bivens actions are analogous to § 1983 actions, and we will generally apply § 1983 law to
Bivens cases”); Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (noting although Bivens and § 1983 share
features, the Supreme Court has never deemed remedies identical). For example, in Wilson v. Lane, the
Supreme Court explained that both Bivens and § 1983 plaintiffs may seek money damages for Fourth
Amendment violations, and that the “qualified immunity analysis is identical under either cause of action.” 526
U.S. 603, 609 (1999).
87. Wrench Transp. Systems, Inc. v. Bradley, No. 05-3498, 2006 WL 3749594, at *2 (3d Cir. Dec. 21,
2006) (quoting Schrob v. Catterson, 948 F.2d 1402, 1409 (3rd Cir. 1991)).
88. Richardson v. McKnight, 521 U.S. 399, 402 (1997) (noting § 1983 “imposes liability only where a
person acts ‘under color’ of state law”); Bivens, 403 U.S. at 392 (imposing damages liability on “federal agent
acting under color of his authority”).
89. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (establishing “state action” doctrine
standard). The “state action” limitation “maintain[s] the Bill of Rights as a shield that protects private citizens
from the excesses of government, rather than a sword that they may use to impose liability upon one another.”
Holly, 434 F.3d at 292.
90. Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
91. See, e.g., Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (deeming private
prison firms and their employees state actors subject to § 1983 suit); Street v. Corr. Corp. of Am., 102 F.3d
810, 814 (6th Cir. 1996) (same); Palm v. Marr, 174 F. Supp. 2d 484, 487-88 (N.D. Tex. 2001) (same); Giron v.
Corr. Corp. of Am., 14 F. Supp. 2d 1245, 1250 (D.N.M. 1998) (holding private prison employee state actor for
§ 1983 purposes).
92. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 n.5 (2001); see also Richardson, 521 U.S. at 412, 413
(denying qualified immunity to private prison employees without deciding whether the employees were state
actors for liability purposes). Dissenting in Richardson, Justice Scalia and two others protested the Court’s
distinguishing of public and private prison employees. Id. at 414 (Scalia, J., dissenting). They argued that the
majority’s decision makes public and private prison employees “indistinguishable in the ultimate source of
their authority over prisoners, and indistinguishable in the powers that they possess over prisoners, and
indistinguishable in the duties that they owe toward prisoners . . . .” Id. at 422.
93. See Lugar, 457 U.S. at 939 (articulating tests under which private persons held to act under color of

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consensus among courts in § 1983 cases, lower courts remain divided on
whether private prisons employees are “federal actors” under Bivens.94 The
Federal District Court for the District of Rhode Island found state action by
looking at the historical involvement of private corporations in prisons and
reasoning that prison corporations execute a function “traditionally” performed
by the state.95 This court found persuasive the holdings in § 1983 cases on the
same issue.96 Conversely, the Fourth Circuit concluded no state action existed
in prison corporations, citing the prison employees’ status as private employees
and historical evidence showing that operating prisons is not an “exclusively”
public function.97
ii. Section 1983
Inmates incarcerated in state prisons may bring § 1983 suits to challenge the
conditions of their confinement.98 To establish a claim under § 1983, an inmate
must establish that a state actor, acting under color of law, deprived the inmate
of a right secured by the Constitution or federal law.99 Section 1983 suits
typically involve alleged First or Eighth Amendment violations based on prison
officials’ failure to protect inmates from their peers, failure to provide adequate
medical care, and use of excessive force.100 Notably, § 1983 addresses the
conduct of state actors, not federal actors.101 Congress did not pass anything

state law). Cf. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970) (asserting “to act ‘under color’ of law
does not require that the accused be an officer of the state”).
94. Compare Sarro v. Cornell Corr., Inc., 248 F. Supp. 2d 52, 60-61 (D.R.I. 2003) (deeming private
prison employees federal actors in Bivens claim), and Jama v. U.S. I.N.S., 343 F. Supp. 2d 338, 363 (D.N.J.
2004) (following reasoning in Sarro without discussion), with Holly v. Scott, 434 F.3d 287, 293 (4th Cir. 2006)
(concluding private prison employee is not a state actor), and Alba v. Montford, No. CV 305-159, 2006 WL
2085432, at *4 (S.D. Ga. Jul. 24, 2006) (following Holly in holding private prison employees not governmental
actors). Cf. Peoples v. CCA Det. Ctr., 422 F.3d 1090, 1102 (10th Cir. 2005) (holding Bivens claim against
private prison employee untenable without addressing state action issue), vacated in part on reh’g by 449 F.3d
1097 (10th Cir. 2006) (en banc).
95. See Sarro, 248 F. Supp. 2d at 60-61 (finding government’s “traditional” involvement in corrections
sufficient to satisfy “public function” test).
96. See Sarro, 248 F. Supp. 2d at 61 (finding state action holding “consistent with the weight of authority
holding [private prison employees] to be state actors” under § 1983).
97. See Holly, 434 F.3d at 291-94 (listing argument opposing state action finding).
98. See Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (entertaining § 1983
suit by state prison inmate alleging Eighth Amendment violation).
99. See West v. Atkins, 487 U.S. 42, 48-49 (1988) (enunciating showing of rights violation required in a §
1983 action).
100. See, e.g., Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (holding, in Bivens suit, failure to protect
constitutes Eighth Amendment violation); Hudson v. McMillian, 503 U.S. 1, 4 (1992) (holding, in § 1983 suit,
excessive physical force violates Eighth Amendment); Estelle v. Gambel, 429 U.S. 97, 104 (1976) (holding, in
Bivens suit, deliberate indifference to serious medical needs amounts to Eight Amendment violation).
101. See Dist. of Columbia v. Carter, 409 U.S. 418, 424-25 (1973) (asserting “actions of the Federal
Government and its officers are at least facially exempt from [§ 1983’s] proscriptions.”); McCloskey v.
Mueller, 446 F.3d 262, 271 (1st Cir. 2006) (explaining “a section 1983 claim ordinarily will not lie against a
federal actor”).

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analogous to § 1983 to create a cause of action against federal actors who
violate the Constitution.102 The Supreme Court filled this void in Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics.103
iii. The Bivens Remedy
In Bivens, the petitioner alleged that federal agents conducted a warrantless
search of his home in violation of the Fourth Amendment’s prohibition of
unreasonable searches and seizures.104 The Supreme Court ruled that the
federal agents, acting “under color of [their] authority,” breached the
petitioner’s Fourth Amendment right.105 Finding that no statute conferred a
remedy for this constitutional injury, the Court implied a cause of action under
the Fourth Amendment and permitted the petitioner to seek money damages
from the federal agents.106
The Bivens Court outlined two circumstances precluding it from extending
the implied cause of action to other contexts. First, the Court would refuse to
extend the cause of action when faced with “special factors counseling
hesitation in the absence of affirmative action by Congress.”107 This inquiry
ensured that the judiciary did not entangle itself in decisions suitable for other
governmental branches.108 Second, the Court would refuse to extend the cause
102. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 427 (1971)
(Black, J., dissenting) (noting absence of statutory cause of action against federal officials for constitutional
violations).
103. 403 U.S. 388 (1971).
104. Id. at 389 (explaining case’s factual underpinnings). In Bivens, agents of the Federal Bureau of
Narcotics arrested the petitioner after executing a warrantless search of his home. Id. The petitioner sought
damages from each officer on account of the “humiliation, embarrassment, and mental suffering” the search
caused him. Id. at 389-90. The district court dismissed the complaint for failure to state a claim. Id. at 390.
105. Id. at 397 (holding officers’ actions violated petitioner’s Fourth Amendment rights).
106. Id. at 397 (holding officer’s unconstitutional conduct gave rise to action for damages). The Court
derived its power to imply this constitutional tort from its “general jurisdiction to decide all cases arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (2000); see also Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001) (citing § 1331 as source of Court’s power to create Bivens action). The
Bivens remedy amounts to a constitutional tort. See Malesko, 534 U.S. at 73 (referring to Bivens claim as “an
implied constitutional tort remedy”); FDIC v. Meyer, 510 U.S. 471, 476 (1994) (same). The Court has created
other non-statutory remedies for constitutional violations, such as the Ex Parte Young remedy, which entitles
plaintiffs to seek prospective injunctive relief from state officials, and the exclusionary rule, which bars from
criminal cases any evidence seized in violation of the Fourth Amendment. See Ex parte Young, 209 U.S. 123,
167-68 (1908) (establishing so-called Ex Parte Young remedy); Weeks v. United States, 232 U.S. 383, 398
(1914) (establishing exclusionary rule). Plaintiffs who invoke Bivens may proceed against federal officers in
their individual, not official, capacities. See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987)
(limiting Bivens claims to defendant federal officials sued in their individual capacities).
107. Bivens, 403 U.S. at 396 (establishing first exception for Biven claim’s applicability).
108. See Nichol, supra note 83, at 1146 (calling “Constitutional ‘independence’” the “core of . . . special
factors exception”). In later cases, the Court classified increased government financial liability and interference
with the military’s disciplinary schemes as “special factors” barring Bivens’s application. See Meyer, 510 U.S.
at 486 (deeming increase in government’s financial liability a factor counseling hesitation when creating Bivens
damages remedy); Schweiker v. Chilicky, 487 U.S. 412, 421-23 (1988) (deeming conflict with federal fiscal
policy a special factor); Chappell v. Wallace, 462 U.S. 296, 298, 304 (1983) (holding military’s disciplinary

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of action if Congress provided an equally effective substitute remedy.109
The Supreme Court has extended Bivens restrictively and recognized Bivens
actions in just two additional circumstances.110 In Davis v. Passman,111 the
Court allowed a plaintiff to seek redress for a Fifth Amendment violation under
Bivens because the plaintiff lacked another remedy.112 Later, in Carlson v.
Green,113 the Court permitted an inmate to raise an Eighth Amendment
violation under Bivens because the Court deemed the plaintiff’s alternative
remedy—a suit against the United States—less effective than the Bivens
remedy.114 Acknowledging its hesitation to extend Bivens beyond the original
Fourth Amendment context, the Court has argued that Congress stands in a
better position “to decide whether or not the public interest would be served”
structure a “special factor[] counseling hesitation” in soldier’s Bivens claim against superior officer). But see
Davis v. Passman, 442 U.S. 228, 246 (1979) (finding possible job interference not a special factor counseling
hesitation in citizen’s Bivens claim against Congressman). Special factors are case-specific and may include,
among other factors, whether a party occupies an independent status in the constitutional scheme, such that
judicial remedies against the party would be inappropriate, and whether the prospect of personal liability would
deter parties from performing their official duties. This list is not short by design, but instead reflects the
Court’s reluctance to explain what might constitute “special factors.” See Nichol, supra note 83, at 1126
(observing Court’s failure to define or illustrate “special factors” in Bivens jurisprudence).
109. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971)
(establishing second exception for Bivens claim’s applicability). To decide whether Congress created an
equally effective substitute remedy, a court may scrutinize statutory language and legislative history, searching
for evidence of such congressional intent. See Carlson v. Green, 446 U.S. 14, 19-20 (1980) (analyzing
statutory language to decipher congressional intent to pre-empt Bivens or create equally-effective alternative
remedy). For example, 28 U.S.C. § 2679(b) creates an exclusive remedy in cases involving federal employees’
operation of motor vehicles, and 42 U.S.C. § 247b(k) creates an exclusive remedy in cases involving the
manufacture of swine flu vaccines. Id. at 20. A court also may look beyond the statute’s plain text and
consider the Bivens claim’s purpose as a deterrent mechanism and whether Bivens and some remedial substitute
afford a plaintiff the same rights. Id. at 20-21 (citing additional factors employed in determining whether
Congress intended to limit respondent’s avenues of redress). When Bivens and the alleged remedial substitute
are, however, parallel and complimentary remedies, no preemption occurs and Bivens applies. Id. at 19-23
(illustrating existence of parallel and complimentary causes of action).
110. See Nichol, supra note 83, at 1118-21 (chronicling Court’s extending Bivens to Fifth Amendment and
Eighth Amendment claims). See generally Matthew G. Mazefsky, Case Note, Correctional Services Corp. v.
Malesko: Unmasking the Implied Damage Remedy, 37 U. RICH. L. REV. 639, (2003) (predicting demise of
Bivens); Andrea Robeda, Note and Comment, The Death of Implied Causes of Action: The Supreme Court’s
Recent Bivens Jurisprudence and the Effect on State Constitutional Tort Jurisprudence: Correctional Services
Corp. v. Malesko, 33 N.M. L. REV. 401 (2003) (same).
111. 442 U.S. 228 (1979).
112. Id. at 243-45 (recognizing cause of action under Fifth Amendment because, for petitioner, “it is
damages or nothing”).
113. 446 U.S. 14 (1980).
114. Id. at 18-20 (holding plaintiff’s potential FTCA claim does not preclude extending Bivens liability to
individual officer). The Carlson Court deemed Bivens a more effective remedial device than a claim against the
United States under the Federal Tort Claims Act (FTCA) because: (1) Bivens serves an individual purpose but
an action against the U.S. government would not deter future officer misconduct; (2) punitive damages are
permissible in a Bivens suit but barred in an FTCA suit; (3) jury trials are available to a Bivens plaintiff but not
to an FTCA plaintiff; and (4) “an action under the FTCA exists only if the State in which the alleged
misconduct occurred would permit a cause of action for that misconduct . . .[,] [y]et it is obvious that the
liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform
rules.” Id. at 20-23.

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by a “new substantive legal liability.”115 Justice Stevens presents an opposing
view, contending that the Court’s restrictive approach reverses a “historic
presumption favoring the provision of remedies for violations of federal
rights.”116
Since Bivens, the Supreme Court has weighed several factors when deciding
whether to extend the remedy beyond the Fourth Amendment context. For
example, the Court may defer to Congressional inaction.117 In Schweiker v.
Chilicky118 and Bush v. Lucas,119 the Court confronted claims relating to federal
statutes through which Congress established elaborate remedial mechanisms.120
Neither statute allowed persons injured by a federal agent’s alleged
constitutional violation to sue the agent for money damages.121 In each case,
the Court conceded that its ruling would leave the plaintiff with less than
“complete relief.”122 Despite this outcome, however, the Court rejected the
plaintiffs’ Bivens claims in both cases.123
115. Schweiker v. Chilicky, 487 U.S. 412, 426-27 (1988); see Sosa v. Alvarez-Machain, 542 U.S. 692, 695
(2004) (“decision to create a private right of action is better left to legislative judgment . . . .”); Bush v. Lucas,
462 U.S. 367, 390 (1983) (emphasizing Congress’s preeminent role in creating new causes of action); see also
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73 (2001) (noting reluctance to extend Bivens where alternative
remedies available); FDIC v. Meyer, 510 U.S. 471, 486 (1994) (cautioning against over-extending Bivens).
The Fourth Circuit explained that when deciding whether to create a new legal remedy, Congress, unlike the
Court, may hold hearings, debate policies, and “[implement] potential safeguards—e.g., procedural protections
or limits on liability—that may or not be at issue in a particular dispute.” Holly v. Scott, 434 F.3d 287, 290
(4th Cir. 2006).
116. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 223 (Stevens, J., dissenting). Cf.
Lumen N. Mulligan, Why Bivens Won’t Die: The Legacy of Peoples v. CCA Detention Centers, 83 DENV. U.
L. REV. 685, 687 (2006) (arguing “the Court’s post-1980 Bivens jurisprudence may be fairly characterized as a
‘slow death’ of the implied constitutional cause of action”).
117. See infra notes 120-123 and accompanying text (discussing cases where Congressional inaction
affected Court’s decision to extend Bivens).
118. 487 U.S. 412 (1983).
119. 462 U.S. 367 (1983).
120. See Schweiker, 487 U.S. at 424-29 (considering whether Social Security Act remedial mechanisms
preclude Bivens claim); Bush, 462 U.S. at 368, 380-90 (considering whether “comprehensive procedural and
substantive provisions” that govern employment relationship preclude Bivens claim).
121. See Schweiker, 487 U.S. at 425 (explaining no damages available under Social Security Act to
wrongfully discharged claimant). The Schweiker Court explained that under the Social Security system,
persons denied disability benefits “have not been given a remedy in damages for emotional distress or for other
hardships suffered because of delays in their receipt of Social Security benefits.” Id. The Bush Court observed
that “Congress has not expressly authorized the damages remedy the petitioner asks us to provide.” Bush, 462
U.S. at 373.
122. Id. (characterizing congressional remedy as “less than complete”); see also Schweiker, 487 U.S. at
425 (“[t]he creation of a Bivens remedy . . . offer[s] the prospect of relief for injuries that must now go
unredressed”). Justice Brennan, refusing to bow unconditionally to Congress’s will, wrote in his Schweiker
dissent that “[b]ecause I believe legislators of ‘normal sensibilities’ would not wish to leave such traumatic
injuries [the Schweiker plaintiffs suffered] unrecompensed, I find it inconceivable that Congress meant by mere
silence to bar all redress for such injuries.” Schweiker, 487 U.S. at 432 (Brennan, J., dissenting).
123. See id. at 429 (1988) (explaining Court could not revise Congressional remedy for wrongful
termination of disability benefits); Bush, 462 U.S. at 389-90 (holding legislative schemes governing employercivil servant relationship preclude extending Bivens). The Court’s willingness to accept incomplete relief in
these cases mirrors the Court’s position in procedural due process cases, in which the Court does not view

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The Supreme Court consistently observes that the Bivens action serves to
deter individuals, not entities, from violating the Constitution.124 In FDIC v.
Meyer,125 the Court rejected a plaintiff’s Bivens claim against the FDIC, a
federal agency.126 Similarly, in Correctional Services Corp. v. Malesko,127 the
Court refused to allow a federal inmate to sue a prison corporation.128 In each
case, the Court reasoned that if plaintiffs could sue agencies and entities under
Bivens, they would, and “[t]o the extent aggrieved parties had less incentive to
bring a damages claim against individuals, the deterrent effect of Bivens would
be lost.”129 Moreover, persons facing the specter of litigation and personal
liability are more likely, the Court has reasoned, to act within the bounds of the
Constitution.130
The Court’s opinions also reveal a preference to subject federal and state
actors and entities to symmetrical liability standards.131 The Court has claimed
that “the liability of federal officials for violations of citizens’ constitutional
rights should be governed by uniform rules.”132 For this reason, the Court may
reject a Bivens claim if it may create asymmetrical, “incongruous[,] and
confusing” standards.133 In Butz v. Economou,134 an early Bivens case, the
Court declined to impose different qualified immunity rules on Bivens and §
state-law remedies as inadequate just because they provide a plaintiff less relief than he might obtain under §
1983. See Parratt v. Taylor, 451 U.S. 527, 544 (1981), overruled on other grounds by Daniels v. Williams, 474
U.S. 327 (1986). In Parratt, the Court held that “[a]lthough the state remedies may not provide the respondent
with all the relief which may have been available if he could have proceeded under § 1983, that does not mean
that the state remedies are not adequate to satisfy the requirements of due process.” Id.
124. See infra notes 126-130 and accompanying text (discussing deterrent purpose of Bivens).
125. 510 U.S. 471, 484-86 (1994).
126. Id. at 473-74, 485-86. The Court explained that the threat of litigation will deter individual officer
misconduct despite the availability of qualified immunity, indemnification by the officer’s employer, or the
officer’s acting in according with an employer’s policy. Id. at 486.
127. 534 U.S. 61 (2001).
128. Id. at 70-71 (arguing imposing Bivens liability on private prisons undermines remedy’s goal).
129. Id. at 69-71 (citing Meyer, 510 U.S. at 485) (explaining how agency and private entity liability under
Bivens might weaken remedy’s individual deterrent effect). But see id. at 81-82 (Stevens, J., dissenting) (citing
Richardson v. McKnight, 521 U.S. 399, 412 (1997) (asserting competition causes private firms to “adjust their
behavior in response to the incentives that tort suits provide”). For this reason, Justice Stevens observed that
the prison in Malesko, a private firm, is distinguishable from the FDIC in Meyer, a government department. Id.
at 81. Justice Stevens concluded that the majority eviscerated any incentive private firms had to operate
constitutionally-compliant prisons. Id.
130. See id. at 70 (acknowledging litigation and personal liability under Bivens deter officers’ misconduct);
Carlson v. Green, 446 U.S. 14, 21 (1980) (describing as “axiomatic” notion of damages threats deterring
officers’ misconduct).
131. See Malesko, 534 U.S. at 72 (citing BOP’s immunity under Bivens as justification for rejecting Bivens
claim against prison corporation); see also Butz v. Economou, 438 U.S. 478, 499 (1978) (holding federal and
state officials in Bivens and § 1983 enjoy parallel degrees of qualified immunity). Cf. Bolling v. Sharpe, 347
U.S. 497, 500 (1954) (observing Constitution prohibits states from racially segregating schools and the federal
government is subject to same standard).
132. Carlson v. Green, 446 U.S. 14, 23 (1980).
133. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 82 (2001) (Stevens, J., dissenting) (citing Butz, 438
U.S. at 499) (explaining imposition of parallel standards on claims against state and federal actors).
134. 438 U.S. 478 (1978).

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1983 defendants.135 The Butz Court explained that “[t]o create a system in
which the Bill of Rights monitors more closely the conduct of state officials
than it does that of federal officials is to stand the constitutional design on its
head.”136 Later, the Court in Meyer shielded federal agencies from Bivens
suits, extending to these agencies the same protection state agencies already
enjoyed in § 1983 suits.137 Although the Meyer decision did not address
symmetry expressly, Justice Stevens observed later that Meyer furthered the
“value of parallelism.”138 Finally, in Malesko, the Court avoided creating
asymmetrical entity liability by shielding private prisons from Bivens liability
just as it previously immunized the Federal Bureau of Prisons (BOP) from
Bivens claims.139
In its most recent Bivens decision, Correctional Services Corp. v.
Malesko,140 the Court emphasized that alternative remedies may preclude a
Bivens action.141 Citing the facts underlying Davis and Carlson decisions as
touchstones, the Court explained that it would only extend Bivens “to provide
an otherwise nonexistent cause of action against individual 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 officer’s

135. Id. at 504. The Butz Court explained that
without congressional directions to the contrary, we deem it untenable to draw a distinction for
purposes of immunity law between suits brought against state officials under § 1983 and suits
brought directly under the Constitution against federal officials. The § 1983 action was provided to
vindicate federal constitutional rights. That Congress decided, after the passage of the Fourteenth
Amendment, to enact legislation specifically requiring state officials to respond in federal court for
their failures to observe the constitutional limitations on their powers is hardly a reason for excusing
their federal counterparts for the identical constitutional transgressions.
Id.

136. Id.
137. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (holding federal agencies not subject to Bivens suits).
138. See Malesko, 534 U.S. at 82 (Stevens, J., dissenting) (arguing Court’s Meyer holding illustrated
Court’s interest in imposing symmetrical liabilities).
139. See id. at 71-72. Justice Stevens, dissenting in Malesko, sought a different sort of parallelism. Id. at
81-82 (Stevens, J., dissenting). He argued that extending Bivens liability to prison corporations would still
create parallelism because “both private and public prisoners would be unable to sue the principal (i.e., the
Government), but would be able to sue the primary federal agent (i.e., the Government official of the
corporation).” Id. at 81 (explaining symmetry resulting from imposing Bivens liability on CCA). Justice
Stevens characterized the Corrections Services Corporation (CSC), the prison corporation, as a “federal agent”
employed by the BOP to execute functions that federal employees would otherwise perform. Id. at 76.
Assuming this agency status, Justice Stevens argued that extending Bivens to the CSC would be consistent with
the circuit courts’ holdings that corporate entities performing federal functions are proper Bivens defendants.
Id. Justice Steven’s reasoning relied, however, on his rejecting the majority’s holding that, per Meyer, both
public federal agencies and their equivalent private entities enjoy Bivens immunity. Id. at 77.
140. 534 U.S. 61 (2001).
141. Id. at 69 (illustrating Court grants alternative remedies substantial weight when deciding whether to
extend Bivens).

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unconstitutional conduct.”142 Accordingly, the Court rejected a federal
inmate’s Bivens claim against a prison corporation in part because the inmate
could have sought redress through other avenues: the BOP’s administrative
mechanisms; in federal court through an injunction; in state court via a
negligence action; or, the Court suggested, through a Bivens claim against the
prison’s employees.143 Further, the Court clarified that the “absence of
statutory relief for a constitutional violation . . . does not by any means
necessarily imply that courts should award money damages against the
employees responsible for the violation.”144
On several fronts, Malesko departed from earlier Bivens decisions.145 First,
the Court required “effective” alternative remedies but not alternative remedies
as “equally effective” as Bivens.146 While the Court concluded that Malesko
enjoyed alternative remedies “at least as great [as], and in many respects
greater, than anything that could be had under Bivens,” it did suggest that
alternative remedies offering incomplete relief would have produced a different
outcome.147 Second, the Malesko Court cast Bivens and its progeny as cases
where the plaintiff lacked “any alternative remedy,” again refusing to establish
any standard for the quality of the alternative remedy required to preclude a
Bivens claim.148 The Court limited its holding only by indicating that

142. Id. at 70 (listing situations permitting Bivens’s extension). The majority viewed the plaintiff as
seeking an extension of Bivens, a request the Court was disinclined to grant. Id. at 63 (stating question before
Court concerns extension of Bivens to permit recovery against private prison corporation). Justice Stevens
disagreed with the Court’s posture and argued that because the Court previously recognized the Eighth
Amendment tort in its Carlson decision, applying it in Malesko would establish a “new class of tortfeasors” but
not a “new constitutional tort.” Id. at 78 n.5 (Stevens, J., dissenting).
143. Id. at 72 (listing alternative remedies available inmates lacking remedy under Bivens). The Court did
not conclude expressly that the respondent could have sued the prison employee under Bivens, but it implied as
much by noting that he did not “timely pursue” this remedy. Id. at 72; see also id. at 79 n.6 (Stevens, J.,
dissenting) (arguing majority “relies, at least in part, on the availability of a remedy against employees of
private prisons”). Prior to Malesko, the Court had held that administrative remedies could preclude Bivens
claims. See Bush v. Lucas, 462 U.S. 367, 378 n.14, 386-88 (1983) (rejecting federal employee’s Bivens claim
because adequate redress available through administrative review mechanisms); Chappell v. Wallace, 462 U.S.
296, 304 (1983) (rejecting Bivens claim because alternative administrative remedies exist).
144. Malesko, 534 U.S. at 69 (quoting Schweiker v. Chilicky, 487 U.S. 412, 421-22 (1988)).
145. Cf. Peoples v. CCA Det. Ctr., 422 F.3d 1090, 1102 (10th Cir. 2005), vacated in part on reh’g by 449
F.3d 1097 (10th Cir. 2006) (en banc). After Malesko, the Tenth Circuit remarked the Supreme Court “has
explained its approach to Bivens claims in a variety of ways in the thirty-four years since Bivens itself was
decided.” Id.
146. Compare Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (noting plaintiff enjoyed “effective”
alternative remedies without expressing need for “equally effective” remedies), with Carlson v. Green, 446 U.S.
14, 19 (1980) (noting only “equally effective” federal statutory remedy may preclude Bivens claim), and Davis
v. Passman, 442 U.S. 228, 248 (1979) (same).
147. See Malesko, 534 U.S. at 72 (agreeing plaintiff enjoyed favorable alternative remedies).
148. See id. at 70 (original emphasis removed); see also id. at 78 (Stevens, J., dissenting) (noting Court’s
historical willingness to extend Bivens only when plaintiff lacked “any alternative remedy”). Cf. Ryan D.
Newman, Note, From Bivens to Malesko and Beyond: Implied Constitutional Remedies and the Separation of
Powers, 85 TEX. L. REV. 471, 487 n.114 (2006) (listing pre-Malesko rulings allowing Bivens claims even when
alternative remedies available).

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alternative remedies “inconsistent or hostile to” recovery under Bivens might
not preempt a Bivens action.149 Still, the decision suggests that state-law
remedies, “standing alone,” would prevent a plaintiff from bringing a Bivens
claim.150 If Malesko stands for this proposition, the Court, arguably, “has
radically departed from its past Bivens jurisprudence.”151
Justice Stevens disagreed sharply with the Malesko majority.152 In dissent,
he argued against defining “effective” alternative remedies broadly.153 He
asserted that not all alternative remedies should preclude Bivens actions, and
that “the Court’s reliance on state tort law will jeopardize the protection of the
full scope of federal constitutional rights.”154 He continued that “some
unconstitutional actions . . . may find no parallel causes of action in state tort
law.”155 Justice Stevens disagreed with the Court’s assessment of its Bivens
jurisprudence by noting that the Court had historically allowed Bivens actions
even when plaintiffs could have pursued alternative remedies.156
C. Remedies Compared
If private prison inmates can establish state action, they may find Bivens and
§ 1983 suits more effective than state-law remedies because state law may not
create liability for the conduct underlying the inmate’s § 1983 or Bivens
claim.157 Professor Jack M. Beerman of Boston University explains this
discrepancy by arguing that constitutional claims “may not have clear state law
149. Malesko, 534 U.S. at 73-74. The Malesko Court distinguished the case’s facts from those in Bivens,
where the plaintiff would have foreclosed a tort action against the officer had he admitted the officer into his
home but would have committed a crime had he refused to grant the officer entry. Id. at 73-74 (citing Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394-95 (1971)). Comparatively, the
Malesko plaintiff’s negligence or deliberate indifference claims required no resistance to official action and the
plaintiff’s lack of alternative tort remedies resulted from his strategic choice. Id.
150. Mulligan, supra note 116, at 694. “[T]he Malesko decision raises the further question of whether the
existence of alternative federal remedies, alternative state-law remedies, or both barred Mr. Malesko’s Bivens
claim.” Id. at 694-95.
151. Mulligan, supra note 116, at 695.
152. See generally Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (Stevens, J., dissenting)
153. See id. at 78-79 (rejecting majority’s view that state law and administrative remedies preempt Bivens).
154. Id. at 80 (attacking majority’s view that all alternative remedies block Bivens actions). Justice
Stevens asserted further that while the majority’s reasoning may apply in situations where plaintiffs plead
Eighth Amendment claims as negligence claims in state court, the reasoning fails when plaintiffs plead
constitutional claims that do not resemble traditional torts, like Due Process and Equal Protection violations.
Id.
155. Id. at 80.
156. Id. at 78-79 (noting availability of state tort claim directly against officer). Further, Justice Stevens
noted that all Bivens plaintiffs “have remedies available under the FTCA.” Id. at 78-79.
157. See Malesko, 534 U.S. at 80 (Stevens, J., dissenting) (claiming “some unconstitutional actions . . .
may find no parallel causes of action in state tort law”); see also Jack M. Beerman, Why Do Plaintiffs Sue
Private Parties Under Section 1983?, 26 CARDOZO L. REV. 9, 14 (2004) (discussing rationale for bringing §
1983 suits instead of state tort claims). But see Menteer v. Applebee, No. 05-3052, 196 F. App’x 624, at *2
(10th Cir. 2006) (suggesting state negligence claim, which requires lesser showing, preferable to Eighth
Amendment-based Bivens claim).

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equivalents. State law may not . . . subject privately employed . . . prison
administrators to the same restraints to which they are subjected by federal
constitutional law.”158 While state statutes may cap non-economic and punitive
damages, § 1983, and presumably Bivens, allow more liberal recovery.159
Federal courts offer longer statutes of limitation and will award attorney’s
fees.160 By suing in federal court, inmates may also avoid state-law-imposed
procedural impediments.161
D. Parties Subject to Section 1983 and Bivens Suits
While federal constitutional claims present numerous advantages over statelaw remedies, they pose one significant disadvantage: some responsible parties
stand beyond their reach. Section 1983 plaintiffs may target several categories
of “state actors,” including employees of public and private prisons.162 They
may also sue the corporations that operate private prisons.163 State correctional
agencies, however, enjoy sovereign immunity from § 1983 suits.164 Federal
inmates suing under Bivens face a more limited universe of potential
defendants. Those held in public and private prisons have no recourse under
Bivens against prison entities; federal corrections agencies enjoy sovereign
immunity and the Supreme Court has already shut the door on suits against
prison corporations.165 Employees of public prisons remain subject to Bivens

158. See Beerman, supra note 157, at 25 (quotations omitted); see also Corr. Servs. Corp. v. Malesko, 534
U.S. 80 (2001) (Stevens, J., dissenting) (noting state law may not redress injuries caused by Equal Protection
and Due Process violations).
159. See Beerman, supra note 157, at 19 (explaining state-law limits on punitive damages do not apply in §
1983 suits); Trine, supra note 19, at III.2 (explaining § 1983 imposes fewer limits on damage recovery than
state-law remedies); see also Smith v. Wade, 461 U.S. 30, 56 (1983) (holding punitive damages permissible in
§ 1983 suits); Carlson v. Green, 446 U.S. 14, 21-22 (1980) (noting Court’s decisions indicate punitive damages
available in Bivens suits).
160. See Beerman, supra note 157 at 14, 23.
161. See Beerman, supra note 157 at 14. Examples of state-law impediments include notice of claim
requirements and mandatory pre-screening for claims by inmates alleging inadequate medical care. Id. But see
Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (2000) (requiring inmates to exhaust
administrative remedies before filing federal suit).
162. See, e.g., Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (deeming private
prison employees state actors for § 1983 purposes); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.
1996) (ruling private prison employees susceptible to § 1983 suits because they act under color of state law);
Antaca v. Prison Health Servs., 769 F.2d 700, 703-04 (11th Cir. 1985) (holding private prison employees
subject to § 1983 suits because they engage in state action).
163. See Rosborough, 350 F.3d at 461 (recognizing § 1983 claim available against private prison
corporations); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (holding private prison corporation
susceptible to suit under § 1983). See generally Miller, supra note 68 (listing cases recognizing private prisons
susceptible to § 1983 suits). While the Supreme Court has not held explicitly that state inmates may sue private
prison corporations under § 1983, it has ruled that private corporations exercising state action are susceptible to
§ 1983 claims. See Lugar v. Edmunson Oil Co., 457 U.S. 922, 941-42 (1982) (permitting § 1983 suit against
private corporation exercising state action).
164. See Quern v. Jordan, 440 U.S. 332, 338-44 (1979) (ruling state agencies immune to § 1983 actions).
165. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (holding Bivens liability does not extend to

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suits but may invoke qualified immunity.166 The following table distills this
constellation of remedies:
TABLE: Categories of Defendants Subject to Bivens Suits by Federal
Inmates and § 1983 Suits by State Inmates167
PLAINTIFF
FEDERAL
DEFENDANT
STATE INMATE
INMATE
BIVENS
§ 1983
PUBLIC PRISON
Operating Entity
Officer

No168
Yes170

No169
Yes171

No172
?

Yes173
Yes174

PRIVATE PRISON
Operating Entity
Officer

private entities acting under color of federal law); FDIC v. Meyer, 510 U.S. 471, 477 (1994) (rejecting
terminated employee’s Bivens claim against former employer FDIC for Fifth Amendment Due Process
violation).
166. See Johnson v. Fankell, 520 U.S. 911, 914-15 (1997) (noting officials who perform discretionary
function shielded from Bivens and § 1983 suits).
167. See Peoples v. CCA Det. Ctr., 422 F.3d 1090, 1111 (10th Cir. 2005) (Ebel, J., concurring in part and
dissenting in part), vacated in part on reh’g by 449 F.3d 1097 (10th Cir. 2006) (en banc).
168. See Meyer, 510 U.S. at 484-86.
169. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 64 (1989) (holding state not a “person” within
meaning of § 1983); Quern, 440 U.S. at 338-40 (holding Congress in enacting § 1983 did not abrogate states’
Eleventh Amendment immunity). When discussing state prisons, this Note refers exclusively to state prisons
operated by state agencies. Different case law governs prisons owned and operated by local governing entities,
such as counties and municipalities. Pursuant to the Supreme Court’s decision in Monell v. Dept. of Social
Services of the City of New York, local governing entities may incur § 1983 liability for constitutional
deprivations caused by their official policies, customs, or practices. 436 U.S. 658, 691 (1978). Courts apply
the Monell standard in § 1983 suits by inmates against prisons operated by local governing entities. See Payne
for Hicks v. Churchich, 161 F.3d 1030, 1043 (7th Cir. 1998) (applying Monell in § 1983 suit by inmate’s estate
against municipality operating prison); Redman v. County of San Diego, 942 F.2d 1435, 1443-44 (9th Cir.
1991) (applying Monell in § 1983 suit by pretrial detainee against county operating prison). Further, local
governing entities may incur § 1983 liability for the customs, policies, and practices of the corporations they
retain to operate their prisons. See Herrera v. County of Santa Fe, 213 F. Supp. 2d 1288, 1292 (D.N.M. 2002)
(holding Monell liability extends to county for customs and policies of prison corporation it retained).
170. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971)
(subjecting federal agents to suit for damages based on Fourth Amendment violation).
171. See 42 U.S.C. § 1983 (2000).
172. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-67 (2001) (holding prison corporations not subject
to suit under Bivens).
173. See Lugar v. Edmondson Oil. Co., 457 U.S. 922, 941-42 (1982) (allowing § 1983 suit against private
corporations engaged in state action). The Supreme Court has not held explicitly that inmates may sue officers
of private prisons under § 1983, although in Malesko the Court suggested in dicta that “state prisoners . . .
already enjoy a right of action against private correctional providers under 42 U.S.C. § 1983.” 534 U.S. at 522
n.5. Various lower courts have ruled that inmates may sue private prison operators under § 1983. See
Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003); Skelton v. Pri-Cor, Inc., 963 F.2d
100, 102 (6th Cir. 1991).

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This table reveals that the only class of defendants whose liability remains
undefined are employees of federal, privately-operated prisons. The Supreme
Court has not ruled on this question, and lower courts nationwide are divided
on the issue.175 Moreover, the court’s membership has changed considerably
since deciding Malesko, which raises questions about the present Court’s views
on the Bivens remedy and what factors it would emphasize if asked to extend
Bivens to a new context.176
IV. MAY INMATES SUE PRIVATE PRISON OFFICIALS UNDER BIVENS?
Only a few courts permit federal inmates to sue private prison officials under
Bivens.177 In Sarro v. Cornell Corrections, Inc.,178 the U.S. District Court for
the District of Rhode Island ruled that a federal inmate could sue private prison

174. The Supreme Court has not decided whether inmates may sue private prison officials under § 1983,
but several lower courts have allowed such a suit. See Rosborough, 350 F.3d at 461 (holding private prison
employees subject to § 1983 suit); Street v. Corr. Corp. of Am., 102 F.3d 810, 814-15 (6th Cir. 1996) (holding
private prison employees subject to § 1983 suit).
175. See Peoples v. CCA Detention Centers, 422 F.3d 1090, 1099 n.4 (10th Cir. 2005) (observing Supreme
Court has not decided whether Bivens extends to private prison employees), vacated in part on reh’g by 449
F.3d 1097 (10th Cir. 2006) (en banc). On this point, lowers courts have observed palpable tension in the
Court’s Bivens decisions. The Sarro court recognized an inmate’s Bivens claim after noting that “at first blush,
the decisions of the Supreme Court that bear on this issue appear to be irreconcilable.” Sarro v. Cornell Corr.,
Inc., 248 F. Supp. 2d 52, 56 (D.R.I. 2003). On the other hand, the Tenth Circuit in Peoples denied an inmate’s
Bivens claim but cautioned that “this is not to say . . . that we do not recognize the tension between [the Court’s
leading Bivens cases,] Carlson and Malesko. . . . The Court has explained its approach to Bivens claims in a
variety of ways in the thirty-four years since Bivens itself was decided.” Peoples, 422 F.3d at 1102. Reflecting
this tension, lower courts have divided on the issue of whether inmates may sue private prison employees under
Bivens. Compare Holly v. Scott, 434 F.3d 287, 296-97 (4th Cir. 2006) (denying federal inmate’s Bivens claim
against private prison officials), and Peoples, 422 F.3d at 1108 (denying federal inmate’s Bivens claim against
private prison officials), with Sarro, 248 F. Supp. 2d at 59 (recognizing federal inmate’s Bivens claim against
private prison officers), and Holly, 434 F.3d at 298-302 (Motz, J., dissenting) (arguing private prison
employees governmental actors subject to suit under Bivens), and Peoples, 422 F.3d at 1110 (Ebel, J.,
dissenting) (concluding Bivens extends to private prison employees).
176. See Warren Richey, For Supreme Court’s New Term: Rise of a New Centrist, CHRISTIAN SCI.
MONITOR, Oct. 2, 2006, at 2. Richey explains that
[l]ast term was a year of historic transition for the court with the passing of Chief Justice William
Rehnquist and the retirement of O’Connor. It marked the arrival of Mr. Roberts as chief justice and
Samuel Alito as an associate justice. The change in the high court’s roster is expected to swing the
balance of power to the right. . . . Although it is not clear how Roberts and Justice Alito will vote in
these cases, many analysts suggest they are likely to align with the court’s conservative wing,
which includes Justice Scalia. Id.
177. See Purkey v. CCA Det. Ctr., 339 F. Supp. 2d 1145, 1151 (D. Kan. 2004) (allowing federal inmates’
Bivens action against private prison employees). As noted, several courts disagree with the Purkey decision.
See Peoples v. CCA Det. Cent., 449 F.3d 1097 (10th Cir. 2006) (en banc)); Jama v. U.S. I.N.S., 343 F. Supp.
2d 338, 363 (D.N.J. 2004) (holding inmate may sue private prison guards under Bivens); Sarro, 248 F. Supp.
2d at 57-63 (same).
178. 248 F. Supp. 2d 52 (D.R.I. 2003).

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officials under Bivens for alleged constitutional deprivations.179 The Sarro case
involved an inmate held at the Donald Wyatt Detention Center (Wyatt), a
facility under contract with the U.S. Marshals Service and operated by Cornell
Corrections Inc. (Cornell).180 The plaintiff alleged that he sought protective
custody after several inmates threatened him but that prison officials
disregarded his request.181 During a fire drill, a guard left the plaintiff
unattended and several inmates beat him viciously.182 The plaintiff alleged
that, following the attack, the prison’s program director failed to provide him
with adequate medical care.183 The plaintiff sued several of Cornell’s
employees, alleging Eighth Amendment and Fifth Amendment violations.184
The Sarro court determined preliminarily that the defendant officers, though
employed by a private, non-governmental company, were federal actors for
Bivens purposes.185 Turning to Sarro’s Bivens claim, the court considered, and
failed to find, Congressional intent to preclude prisoners held in privatelyoperated facilities from seeking damages award under Bivens.186 It reasoned
that extending Bivens would not frustrate or otherwise interfere with specific
government-sponsored programs.187 The court reasoned further that extending
Bivens liability to prison officials in private federal prisons advanced Bivens’s
“core premise,” namely to deter individual officers from violating the
Constitution.188 Citing the Supreme Court’s legal parallelism argument from
Malesko, the Sarro court reasoned that its decision created parity between the
179. Id. at 56-57 (recognizing plaintiff may invoke Bivens against private prison officials).
180. Id. at 55 (establishing plaintiff as federal detainee held at for-profit correctional facility). The Wyatt
Detention Center’s history illustrates the interplay between municipalities, state governments, and private
corporations in funding, building, and operating private prisons. The Rhode Island legislature, seeking to
promote economic growth and provide a facility in which the U.S. Marshals Service could house pretrial
detainees, passed legislation authorizing municipalities to create corporations that could own and operate
detention facilities. Id. at 54. Pursuant to this statute, the City of Central Falls’s created the Central Falls
Detention Facility Corporation (CFDFC), constructed the prison, and contracted with the U.S. Marshals Service
to house detainees. Id. at 55. The CFDFC also contracted with Cornell Corrections, Inc. (Cornell), a private
prison operator, to operate Wyatt and employ its staff. Id.
181. Id. at 55 (describing plaintiff’s request for protective custody).
182. Sarro, 248 F. Supp. 2d at 55 (explaining circumstances exposing plaintiff to attack by fellow
inmates).
183. Id. (setting forth plaintiff’s allegations against prison employees)
184. Id. (establishing basis for plaintiff’s Fifth and Eighth Amendment claims against prison corporation
and its employees). Pursuant to Malesko, which bars Bivens claims against private prison operators, the court
dismissed Sarro’s claim against Cornell. Id. at 62 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71-72
(2001)).
185. See id. at 58-61 (reasoning private prison officers act under color of federal law because they perform
“public function”).
186. Sarro v. Cornell Corr., Inc., 248 F. Supp. 2d 52, 61-62 (D.R.I. 2003) (finding no congressional intent
to preclude privately held federal inmates from collecting damages under Bivens).
187. Id. at 62 (finding “no significant factors counseling hesitation”).
188. Id. at 62-63 (citing Malesko, 534 U.S. at 70) (distinguishing plaintiff’s claim against individual officer
from Malesko plaintiff’s claim against corporate employer); see also Jama v. U.S. I.N.S., 343 F. Supp. 2d 338,
362 (D.N.J. 2004) (recognizing Sarro court’s emphasis on Bivens’s “core premise”); Purkey v. CCA Det.
Cent., 339 F. Supp. 2d 1145, 1149 (D. Kan. 2004) (endorsing Sarro court’s “core premise” analysis).

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rights of prisoners at public and private prisons.189 Specifically, because
federal inmates in government-run prisons may file Bivens suits against prison
employees for constitutional violations, the court reasoned that federal inmates
in privately-run prisons ought to enjoy the same right.190
Distinguishing the case from Malesko, the Sarro court observed that the
plaintiff, unlike the Malesko plaintiff, lacked alternative remedies.191 While
agreeing with the Malesko Court that the “existence of state law remedies [may
be] a factor to be considered,” the Sarro court protested that such remedies
“cannot be construed as a manifestation of Congressional intent to preclude the
application of Bivens.”192 Allowing state-law remedies to preclude Bivens
actions would force every court hearing a Bivens claim to review state-law
remedies on a case-by-case basis.193 This outcome would, the court concluded,
yield differing application of Bivens depending on the location of a plaintiff’s
detention center.194
Following Sarro, most courts to consider the issue barred Bivens claims by
inmates against private prison officials.195 In Peoples v. CCA Detention
Centers,196 the United States District Court for the District of Kansas barred an

189. Sarro, 248 F. Supp. 2d at 63 (explaining how parallelism argument influenced Malesko Court). The
Malesko Court declined to extend Bivens because doing so would skew the rights of inmates in private and
federal prisons (i.e., it ensures that federal inmates in neither public nor private prisons may sue prison
operators under Bivens). Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001). Similarly, the Sarro ruling
aligned inmates’ rights by allowing federal inmates in private prisons, like their counterparts in public prisons,
to sue prison officials. Sarro, 248 F. Supp. 2d at 63; see also Purkey, 339 F. Supp. 2d at 1150-51 (endorsing
Sarro’s parity argument).
190. See Sarro, 248 F. Supp. 2d at 63 (equating remedy available to federal inmates in public prisons with
court’s proposed remedy for plaintiff); see also Carlson v. Green, 446 U.S. 14, 18-20 (1980) (allowing federal
inmate to sue prison official under Bivens for Eighth Amendment violation).
191. Sarro, 248 F. Supp. 2d at 63 (distinguishing remedies available to Sarro plaintiff from those available
to Malesko plaintiff). The BOP Administrative Remedy Program, while available to plaintiffs like Malesko
who resided in half-way houses under contract with the BOP, does not apply to persons like Sarro who are
detained in non-federal facilities. Id. at 62. Accordingly, the Sarro plaintiff lacked the “effective remedies”
available to the Malesko plaintiff. Id. at 63 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001)).
192. Id. (asserting state-law remedy does not evince congressional intent to preclude Bivens action).
193. See id. (summarizing consequences plaintiff would face if state law precluded Bivens action).
194. See id. (asserting Bivens intended to deter case-by-case state law analyses and inconsistent Bivens
application by state). The court argued that “remedies for constitutional violations should not depend on the
law of the state in which the violation occurred.” Id. (citing Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 389 (1971)).
195. See, e.g., Holly v. Scott, 434 F.3d 287, 296-97 (4th Cir. 2006); Soto v. Pugh, No. CV 306-092, 2007
WL 113945, at *2 (S.D. Ga. Jan. 10, 2007) (contending alternative remedies preclude Bivens action against
private prison employee); Akinsuroju v. Corr. Corp. of Am., No. CV 306-32, 2006 WL 2548075, at *3 (S.D.
Ga. Sept. 1, 2006) (refusing to extend Bivens to private prison employee because alternative remedies exist);
Brown v. Pugh, No. CV 306-25, 2006 WL 2439859, at *3 n.3 (S.D. Ga. Aug. 18, 2006); Kundra v. Johnson,
No. H-06-710, 2006 WL 1061913, at *3 (S.D. Tex. Apr. 21, 2006) (assuming court has no jurisdiction over
inmate’s Bivens claim when alternative remedies available); Peoples II, No. Civ.A. 02-3298-CM, 2004 WL
2278667 (D. Kan. Mar. 26, 2004), aff’d by an equally divided court, 449 F.3d 1097 (10th Cir. 2006) (en banc).
196. Peoples II, 2004 WL 2278667 (D. Kan. Mar. 26, 2004), aff’d by an equally divided court, 449 F.3d
1097 (10th Cir. 2006) (en banc).

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inmate’s Bivens claims against a private prison’s officials.197 Peoples, a pretrial
detainee, resided at Leavenworth, a federal prison operated by the Corrections
Corporation of America (CCA).198 Initially, CCA staff isolated Peoples
because they believed he would flee.199 While segregated, Peoples lacked
access to the prison’s law library and endured random monitoring of most of
his communications.200 After thirteen months, CCA staff released Peoples into
the general inmate population, at which time he grew fearful that a prison gang
would attack him.201 He requested a transfer to another location within
Leavenworth, but CCA staff refused to relocate him.202 After the gang attacked
Peoples, CCA staff refused to transfer him to another prison. Soon after, the
gang struck again, attacking Peoples with chains, soda cans, and padlocks.203
Peoples sued CCA and its employees, alleging Fifth and Eighth Amendment
violations.204 The district court dismissed the Bivens suit against the individual
defendants for failure to state a claim.205 While the court arrived at its decision
by assuming arguendo that Peoples could sue the officers under Bivens, it
observed that “considering the restrictive standards the Supreme Court set forth
for maintaining a Bivens action in Malesko, this court finds that it is unlikely
plaintiff could maintain a Bivens action against the individual CCA employees,
especially when alternative remedies are available to him.”206 The Tenth
Circuit panel affirmed the district court’s dismissal without reaching a majority
opinion on the Bivens issue.207 Rehearing the case en banc, the Tenth Circuit
remained evenly divided on the same question and thus affirmed the district

197. Id. The plaintiff filed two complaints seeking damages under Bivens; the court dismissed the first for
lack of subject matter jurisdiction and the second for failure to state a claim. Peoples v. CCA Det. Ctr.
(Peoples I), No. 03-3129-KHV, 2004 WL 74317, at *7 (D. Kan. Jan 15, 2004) (dismissing case for lack of
subject matter jurisdiction over inmate’s Bivens claim), rev’d 449 F.3d 1097 (10th Cir. 2006) (en banc);
Peoples II, No. Civ.A. 02-3298-CM, 2004 WL 2278667 (D. Kan. Mar. 26, 2004) (taking jurisdiction but
dismissing inmate’s Bivens suit for failure to state claim), aff’d by an equally divided court, 449 F.3d 1097
(10th Cir. 2006) (en banc).
198. Peoples I, 2004 WL 74317, at *1, rev’d 449 F.3d 1097 (10th Cir. 2006) (en banc).
199. Id.
200. Peoples II, 2004 WL 2278667, at *4-6, aff’d by an equally divided court, 449 F.3d 1097 (10th Cir.
2006) (en banc).
201. Id.
202. Id.
203. Peoples I, 2004 WL 74317, at *7-8.
204. Peoples II, No. Civ.A. 02-3298-CM, 2004 WL 2278667, at *1 (D. Kan. Mar. 26, 2004); Peoples I,
No. 03-3129-KHV, 2004 WL 74317, at *1 (D. Kan. Jan. 15, 2004), rev’d 449 F.3d 1097 (10th Cir. 2006) (en
banc).
205. Peoples II, 2004 WL 2278667, at *7; (dismissing Bivens suit for failure to allege facts supporting due
process claim), aff’d by an equally divided court, 449 F.3d 1097 (10th Cir. 2006) (en banc).
206. Id. at *4 (reading Malesko to limit Bivens’s applicability when alternative state law remedies
available). The court assumed this point arguendo only because the Tenth Circuit had not yet considered
whether private prison inmates were subject to Bivens suits. Id.
207. See generally Peoples v. CCA Det. Ctr., 422 F.3d 1090 (10th Cir. 2006) (limiting holding to
plaintiff’s failure to state claim upon which relief could be granted), vacated in part on reh’g by 449 F.3d 1097
(10th Cir. 2006) (en banc).

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court’s ruling against Peoples.208
While the Tenth Circuit’s panel opinion lacks precedential value, its
thorough analysis—and the vigorous dissent—demand consideration. The
panel opinion relied heavily on Malesko.209 Shunning the “special factors” and
“Congressional intent” tests common in early Bivens decisions, the panel
focused on how alternative remedies affect a Bivens claim.210 The panel held
that where an alternative cause of action exists, whether based on state or
federal law, an individual cannot recover under Bivens.211 The panel affirmed
the case’s dismissal after identifying an alternative remedy in Kansas tort law,
which enabled the plaintiff to sue prison guards in negligence for injuries
caused by conduct unlawful under the Eighth Amendment.212
In dissent, Judge Ebel criticized the majority for allowing state-law remedies
to preclude the plaintiff’s Bivens claim.213 Judge Ebel would not permit all
state-law remedies to preempt Bivens claims.214 Instead, he argued, the court
should only allow a “constitutional cause of action,” not state tort claims, to
preempt a Bivens claim.215 Echoing the Sarro court’s reasoning, Judge Ebel
contended that because state law remedies vary, a plaintiff who finds relief in
one state’s tort law might be shut out by another state’s law.216 Citing Bivens,
Judge Ebel argued further that state tort remedies cannot regulate the citizenfederal agent relationship:
a remedial scheme based on state tort law “[seeks] to treat the relationship
between a citizen and a federal agent unconstitutionally exercising his authority
as no different from the relationship between two private citizens. In so doing,
[this approach] ignores the fact that power, once granted does not disappear
like a magic gift when it is wrongfully used. An agent acting—albeit
208. See Peoples v. CCA Det. Ctr., 449 F.3d 1097, 1099 (10th Cir. 2006) (en banc) (dividing on Bivens
issue and affirming district court ruling).
209. See generally Peoples v. CCA Det. Ctr., 422 F.3d 1090 (10th Cir. 2005), vacated in part on reh’g by
449 F.3d 1097 (10th Cir. 2006) (en banc).
210. Id. at 1099-1102 (exploring Supreme Court and lower court decisions in considering how alternative
remedies affect Bivens claims).
211. Id. at 1103 (ruling existing state and federal law remedies bar Bivens claims against private prison
officials).
212. Id. at 1103-05 (citing alternative remedies available to plaintiff under Kansas state law).
213. Peoples, 422 F.3d at 1109 (Ebel, J., concurring in part and dissenting in part) (criticizing majority for
treating state tort action as “adequate remedy for constitutional violation”).
214. Id. at 1108 (disagreeing with majority’s reading of Malesko).
215. Id. at 1109 (rejecting majority’s view deeming state law remedies adequate substitutes for Bivens
recovery). Judge Ebel explained that the Supreme Court created Bivens because it concluded state law
remedies were inappropriate tools for governing the unique relationship between private citizens and federal
actors. Id. at 1109 (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
391-92 (1971)). Judge Ebel argued further the Supreme Court previously had allowed a Bivens claim even
though the plaintiffs could have obtained relief against individual officers through state tort law. Id. at 1108-09
(citing Carlson v. Green, 446 U.S. 14, 24 (1980).
216. See id. at 1112-13 (noting, under majority’s ruling, “standard of liability [will] depend on the varying
contours of state law”); see also Sarro v. Cornell Corr., Inc., 248 F. Supp. 2d 52, 63 (D.R.I. 2003) (arguing
reliance on alternative state law remedies causes Bivens’s application to vary by state)

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unconstitutionally—in the name of the United States possesses a far greater
capacity for harm than an individual trespasser exercising no authority other
217
than his own.”

To allay these concerns and circumvent state law vagaries, Judge Ebel
suggested courts should subject federal officers to uniform Bivens liability
irrespective of where the officers’ alleged unconstitutional conduct occurred.218
Judge Ebel searched Malesko for support. First, he argued, the Malesko
Court rejected the plaintiff’s Bivens claim against the prison corporation
because it “assum[ed] that . . . a [Bivens] remedy would be appropriate against
the employees of [the] private prison.”219 Second, he contended that subjecting
private prison officers to Bivens would promote the legal parallelism the
Supreme Court sought in Malesko.220 He wrote that the “important policy
objective of promoting public-private symmetry” requires courts to permit
privately held inmates, like publicly held inmates, to sue officers under
Bivens.221 Judge Ebel reasoned further that by extending Bivens, the court
would deter private prison officers from acting unconstitutionally.222 Last, he
observed that the panel’s majority “significantly undercut” Bivens’s “deterrent
value” by replacing Bivens, which allows uncapped money damages against
individual officers, with incomplete state law remedies that may offer limited
recovery.223
Early in 2006, the Fourth Circuit joined the Tenth Circuit in shielding
private prison officials from Bivens liability.224 In Holly v. Scott,225 the

217. See Peoples v. CCA Det. Ctr., 422 F.3d 1109 (10th Cir. 2005) (Ebel, J., concurring in part and
dissenting in part) (citing Bivens, 403 U.S. at 391-92), vacated in part on reh’g by 449 F.3d 1097 (10th Cir.
2006) (en banc) .
218. Id. at 1112-13.
219. Id. at 1110; see Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (establishing “only remedy” for
constitutional deprivation “lies against the individual; a remedy . . . Malesko did not timely pursue.”)
220. See Peoples, 422 F.3d at 1110-13 (Ebel, J., concurring in part and dissenting in part) (citing Malesko,
534 U.S. at 66-72).
221. Id. at 1112. Judge Ebel noted a tension in Malesko “between furthering public-private symmetry and
state-federal symmetry.” Id. at 1111. The Malesko majority rejected the plaintiff’s Bivens claim against the
private prison operator because it did not permit Bivens claims by federal prisoners against the BOP, which
operates public prisons. Id. at 1110-11 (citing Malesko, 534 U.S. at 72). Conversely, the dissenting Justices in
Malesko would have recognized the plaintiff’s Bivens claim against the prison corporation—which they
considered an agent of the government and, therefore, identical to a private individual—because state prisoners
may sue private prison officers under § 1983. Id. at 1112 (citing Malesko, 534 U.S. at 81 (2001) (Stevens, J.,
dissenting)). Judge Ebel argued that recognizing an inmate’s Bivens claim against an individual officer would
resolve Malesko’s public-private and state-federal tensions by aligning the rights of state and federal prisoners
and the rights of publicly and privately held prisoners. See id. at 1111-12 (comparing Bivens and § 1983
liabilities of state, federal, public, and private individuals and entities graphically).
222. Id. at 1113 (citing Bivens’s deterrence objective and reasoning Bivens liability would deter
misconduct by private prisoner officers).
223. Id. at 1113 (noting inadequacy of state law relief).
224. See Holly v. Scott, 434 F.3d 287, 288 (4th Cir. 2006) (refusing to extend Bivens liability to private
prison employees). The Fourth Circuit decided Holly after the Fifth Circuit’s Peoples panel decision but before
the en banc decision.

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plaintiff, a federal inmate, lived at Rivers Correctional Institution, a BOP
facility operated by GEO Group, Inc (GEO).226 In his suit, he alleged the
facility’s warden and physician, both GEO employees, failed to provide
adequate medical care in violation of the Eighth Amendment.227
Resurrecting the analysis common in earlier Bivens decisions, the Holly
court refused to extend Bivens because of two “special factors counseling
hesitation.”228 Like the Peoples court, the Fourth Circuit first identified several
state-law remedies through which the plaintiff could pursue relief, such as
negligence and medical negligence claims against the officials as well as a
respondeat superior claim against GEO.229
The Holly court’s second factor—”counseling hesitation”—implicated an
issue Peoples and other courts ignored: whether private prison employees are
“federal actors” for Bivens purposes.230 The Fourth Circuit noted that although
the Malesko Court did not answer this question expressly, its “logic rested in
part on its conclusion that Bivens creates individual liability rather than
corporate liability.”231 The Supreme Court has only extended constitutional
remedies to circumstances involving state action or, in other words, conduct
“fairly attributable to the state.”232
Applying the “federal actors” test, the Fourth Circuit concluded that the
prison officers’ actions were not “fairly attributable” to the federal government
because the officers were not “federal officials, federal employees, or even
independent contractors in the service of the federal government. Instead, they

225.
226.
227.
228.

434 F.3d 287 (4th Cir. 2006).
Id. at 288 (identifying plaintiff as inmate in privately run federal prison).
Id. (citing lack of adequate medical care as basis of plaintiff’s suit against prison officials).
Id. at 290 (identifying government action and lack of other legal remedies as “special factors”); see
also supra notes 107-108 and accompanying text (explaining “special factors” inquiry used in Bivens and its
progeny).
229. See Holly, 434 F.3d at 296 (identifying available causes of action under North Carolina law).
230. Id. at 291 (finding lack of “occasion” by other courts for considering private citizen Bivens liability).
231. Id. at 291 n.2 (4th Cir. 2006) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63-65 (2001))
(concluding Malesko does not answer whether Bivens creates private individual liability).
232. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (establishing test for determining state
action); Holly v. Scott, 434 F.3d 287, 291-92 (4th Cir. 2006) (recognizing limit of state action doctrine on
private persons’ liability). The Supreme Court’s Lugar decision concerned a § 1983 suit, but the Holly court
extended the Lugar Court’s reasoning to the Bivens context. See Holly, 434 F.3d at 291-92. In Lugar, the
Supreme Court explained that
[c]areful adherence to the ‘state action’ requirement preserves an area of individual freedom by
limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its
agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major
consequence is to require the courts to respect the limits of their own power as directed against state
governments and private interests . . . . Our cases have accordingly insisted that the conduct
allegedly causing the deprivation of a federal right be fairly attributable to the State.
Lugar, 457 U.S. at 936-37.

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are employed by . . . a private corporation.”233 The court buttressed its
reasoning by noting the lack of governmental interest in the prison
corporation.234
The Fourth Circuit invoked the legal parallelism objective to support its
holding.235 The court explained that qualified immunity enjoys identical
characteristics under § 1983 and Bivens, and noted that the Supreme Court held
previously that private prison employees do not enjoy qualified immunity in §
1983 suits.236 Accordingly, the Holly court observed that extending Bivens
would advantage private prison inmates over public prison inmates because
their targets—the prison employees—could not raise a qualified immunity
defense.237 The Fourth Circuit rejected Holly’s argument that the corporation’s
business, corrections, evinced sufficient “federal action” on the employees’
part.238 It cited the historical commingling of private and public entities in the
corrections sector as evidence that the United States government does not lay
exclusive claim to corrections.239
Judge Motz, concurring in Holly, rejected the majority’s conclusion that
private prison officials are not federal actors.240 Specifically, she attacked the
majority for relying on Richardson v. McKnight,241 a § 1983 decision about
qualified immunity, to decide a Bivens liability case.242 Judge Motz contended
that the Supreme Court, when it denied qualified immunity to private prison
employees in Richardson, dealt only with “immunity from liability,” not the
employees’ liability as governmental actors.243 Judge Motz concurred in the

233.
234.
235.
236.

See Holly, 434 F.3d at 292 (explaining why defendants are not state actors).
Id.
Id. at 294.
Id. at 292-93 (citing Butz v. Economou, 438 U.S. 478, 504 (1978)) (drawing no distinction in
qualified immunity law between § 1983 and Bivens suits); see also Richardson v. McKnight, 521 U.S. 399, 401
(1997) (holding, in § 1983 suit, private prison guards not entitled to qualified immunity).
237. See Holly v. Scott, 434 F.3d 287, 294 (4th Cir. 2006). The Holly court explained this “favorable
position”: “[the inmates] would be eligible to recover damages even where the unconstitutionality of the prison
officials’ conduct had not been clearly established by prior judicial decisions.” Id.
238. Id. at 293.
239. Id.; see also supra notes 18-21 and accompanying text (explaining historical involvement of private
entities in corrections).
240. See id. at 297 (Motz, J., concurring) (claiming majority “ignores or misreads” previous Supreme
Court cases concerning state action).
241. 521 U.S. 399 (1997).
242. Holly, 434 F.3d at 299-300 ((Motz, J., concurring) (distinguishing Richardson decision, which
addressed private party immunity from liability); see Richardson v. McKnight, 521 U.S. 399, 401 (1997)
(holding private prison guards not entitled to qualified immunity under § 1983); see also supra note 92
(discussing Richardson holding).
243. See Holly v. Scott, 434 F.3d 287, 297 (4th Cir. 2006) (Motz, J., concurring). Judge Motz noted that
Supreme Court remanded Richardson for findings about the officer’s liability, but that it would not have done
so had the Court intended its holding to extend to the question of liability. Id. at 300. Further, Judge Motz
noted that numerous Supreme Court decisions support her conclusion that private prison employees are
governmental actors for Bivens purposes. Id. at 297-99 (citing West v. Atkins, 487 U.S. 42 (1998); Edmonson
v. Leesville Concrete Co., 500 U.S. 614 (1991); Rendell-Baker v. Kohn, 457 U.S. 830 (1982)).

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majority’s opinion, however, because she endorsed its view that alternative
remedies extinguished Holly’s Bivens action.244
V. ANALYSIS
The Holly, Peoples, and Sarro decisions reveal confusion about whether
Bivens case law supports extending the Bivens remedy to inmates held in
private prisons.245 Addressing this question, the lower courts confronted a
near-impossible task; namely, reconciling the Supreme Court’s Malesko
decision with earlier Bivens decisions.246 Under the rationale advanced in some
of the Supreme Court’s decisions, exposing private prison employees to Bivens
suits appears permissible because it would create legal symmetry and honor the
remedy’s deterrent function.247 Conversely, the court’s holding in Malesko
precludes these claims because of the variety of state-law and administrative
remedies private-prison inmates may invoke.248
Only federal actors are susceptible to Bivens suits, and the Supreme Court
will likely conclude that private-prison employees meet this requirement.
Though lower courts have not considered the issue extensively in the Bivens
context, they agree that private prison employees are state actors for purposes
of § 1983.249 The Supreme Court assumed as much in Malesko when it
observed, without further discussion, that inmates held in private prisons
“already enjoy a right of action against private correctional providers” under §
1983.250 This assertion, considered in light of the prevailing view that § 1983
and Bivens are analogs, supports the inference that private prison employees are
“federal actors” under Bivens.251
Though Malesko supplies evidence that the Court would find state action in
a Bivens suit against a private prison employee, the case’s sweeping view of
preemptive alternative remedies erects a virtual gauntlet that no such claim
could survive.252 The holding departs substantially from earlier Bivens
244. See id. at 297, 303 (agreeing all alternative remedies, “[c]onstitutional and otherwise,” displace
Bivens) (citing Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v. Lucas, 462 U.S. 367 (1983)).
245. See supra Part IV (summarizing Sarro, Peoples, and Holly courts’ disagreement about whether Bivens
extends to private prison employees).
246. See infra text accompanying notes 247-259 (explaining Court’s Bivens decisions both support and
undermine exposing private prison employees to Bivens claims).
247. See infra notes 263-277 and accompanying text (arguing deterrence and legal symmetry rationales
support extending Bivens)
248. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73-74 (2001) (discussing sufficient federal, state, and
administrative remedies available to private prison inmate).
249. See supra note 91 (citing § 1983 cases concluding private prison firms and employees state actors).
250. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 n.5 (2001); see also supra note 92 (discussing denial
of qualified immunity without deciding state employee status in Richardson v. McKnight, 521 U.S. 399, 412,
413 (1997)).
251. See supra notes 86-87 and accompanying text (citing cases describing Bivens and § 1983 as analogous
remedies).
252. See Malesko, 534 U.S. at 70 (cataloguing “effective” state law and administrative remedies plaintiff

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decisions.253 Specifically, the Court in earlier cases allowed plaintiffs to pursue
Bivens claims even though plaintiffs may have also invoked state-law remedies.
In Bivens and Carlson, for example, the Court recognized Bivens claims even
though state tort claims may have redressed the plaintiffs’ injuries.254 Further,
prior to Malesko, the Supreme Court suggested that not all state-law remedies
were adequate substitutes for Bivens.255 The Malesko Court contradicted this
precedent by allowing a host of alternative remedies to bar an inmate’s claim
for damages under Bivens.256
Further, Malesko presents inconsistent views about whether inmates may sue
private prison employees under Bivens. Initially, the Malesko majority noted
that the respondent could have sued CCA’s employee under Bivens, thus
suggesting it would have accepted that claim had he pursued it.257 Justice
Stevens, in dissent, observed that
[b]oth CSC [the defendant prison corporation] and respondent have assumed
Bivens would apply to these individuals, and the United States as amicus
maintains that such liability would be appropriate under Bivens. It does seem
puzzling that Bivens liability would attach to the private individual employees
of such corporations—subagents of the Federal Government—but not to the
corporate agents themselves. However, the United States explicitly maintains
this to be the case, and the reasoning of the Court’s opinion relies, at least in
258
part, on the availability of a remedy against employees of private prisons.

In barring the respondent’s claim against CCA, the majority explained that
the respondent could remedy his injury through state law, BOP administrative
channels, or a federal suit for injunctive relief.259 This latter point, however,
frustrates the former because inmates who sue private prison employees under
Bivens have access to the same alternative remedies that precluded the
respondent’s Bivens claim against CCA.260 Thus, had the Malesko respondent
may employ to redress constitutional injury); supra text accompanying notes 141-149 (explaining Malesko test
and Court’s willingness to allow alternative remedies to displace Bivens claims).
253. See supra notes 145-151 and accompanying text (explaining how Malesko departs from earlier
Supreme Court cases concerning Bivens); supra notes 152-156 and accompanying text (summarizing Justice
Stevens’s criticism of Malesko decision).
254. See Carlson v. Green, 446 U.S. 14, 18-20 (1980) (extending Bivens despite availability of FTCA
claim against government); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
397 (1971) (allowing damages action against federal agents despite availability of state tort remedies).
255. See Bivens, 403 U.S. at 394 (reasoning that the separate interests state laws and the Constitution
protect may be “hostile or inconsistent”); see also Carlson, 446 U.S. at 23 (asserting Congress should decide
whether “vagaries of [state law]” should control suits alleging constitutional violations).
256. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72-73 (2001) (explaining remedies respondent may
pursue to vindicate alleged constitutional injury).
257. See id. at 72 (“[w]ith respect to the alleged constitutional deprivation, his only remedy lies against the
individual . . . which respondent did not timely pursue”).
258. Id. at 79 n.6 (Stevens, J., dissenting).
259. Id. at 74 (majority opinion). The Court explained that “injunctive relief has long been recognized as
the proper means for preventing entities from acting unconstitutionally.” Id.
260. See supra notes 75-82 and accompanying text (cataloguing state law and administrative remedies

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sued CCA’s employees under Bivens as the Court suggested, his claim would
have been barred by the same alternative remedies that blocked his claim
against CCA.261 This result appears untenable because it contradicts the
“logic” on which the Court relied when it barred the respondent’s claim against
CCA.262
Given the inconsistencies Malesko poses, decisions about whether inmates
may sue private prison employees under Bivens should not turn on it alone.
Other Supreme Court Bivens decisions advance considerations that favor
allowing private prison inmates to sue prison employees under Bivens.263 For
instance, subjecting private prison employees to Bivens suits would further the
remedy’s deterrent function. Employees who face the financial consequences a
Bivens action may impose—namely the prospect of paying compensatory and
punitive damages—are less likely to violate inmates’ constitutional rights.264
The Supreme Court has repeated this “deterrence” mantra in nearly every
Bivens opinion it issues, providing further evidence that the deterrent function
weighs heavily in the Court’s mind in cases seeking an extension of Bivens.265
Recently, the Court in Malesko reaffirmed that “Bivens from its inception has
been based . . . on the deterrence of individual officers who commit
unconstitutional acts.”266 The Sarro court recognized that extending Bivens to
private prison employees would deter unconstitutional conduct.267 The Holly
court disregarded the deterrence rationale, contending that it does not apply in
the absence of state action.268 The Holly court’s reasoning is unpersuasive,
though, because it relies on an incorrect conclusion that private prison

inmates may invoke to challenge conditions of confinement).
261. Malesko, 534 U.S. at 74 (citing administrative and federal remedies private prison inmates may
invoke against prison corporations).
262. See Holly v. Scott, 434 F.3d 287, 291 n.2 (4th Cir. 2006) (agreeing that the rationality of Malesko
depends on the availability of a Bivens suit against private prison employee). Even the Fourth Circuit, which
rejected an inmate’s Bivens claim against private prison employees, acknowledged that the Malesko decision’s
“logic rested in part on its conclusion that Bivens creates individual liability rather than corporate liability.” Id.
263. See supra notes 117-139 and accompanying text (summarizing factors Supreme Court considers when
deciding whether to extend Bivens to new contexts).
264. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001) (summarizing Supreme Court precedent
explicating Bivens’s deterrence function); supra notes 124-130 and accompanying text (explaining threat of
Bivens’s financial consequences deters individuals from acting unconstitutionally).
265. See, e.g., Malesko, 534 U.S. at 70 (explaining “purpose of Bivens is to deter individual officers from
committing constitutional violations”); FDIC v. Meyer, 510 U.S. 471, 485 (1994) (same); Carlson v. Green,
446 U.S. 14, 21 (1980) (same).
266. Malesko, 534 U.S. at 71.
267. See Sarro v. Cornell Corrections, Inc., 248 F. Supp. 2d 52, 62-63 (D.R.I. 2003) (explaining prospect
of Bivens liability deters private prison employees from acting unconstitutionally); see also Peoples v. CCA
Det. Ctr, 422 F.3d 1090, 1111 (10th Cir. 2005) (reasoning state tort damages accomplish Bivens’s deterrence
effect), vacated in part on reh’g by 449 F.3d 1097 (10th Cir. 2006) (en banc); Jama v. U.S. I.N.S., 343 F. Supp.
2d 338, 363 (D.N.J. 2004) (following Sarro).
268. See Holly v. Scott, 434 F.3d 287, 291 (4th Cir. 2006) (arguing deterrence rational inapplicable
because private prison employees not governmental actors); Alba v. Montford, No. CV 305-159, 2006 WL
2085432, at *4 (S.D. Ga. July 24, 2006) (same).

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employees do not exercise government action for Bivens purposes.269
Assuming private prison employees constitute federal actors under Bivens,
subjecting them to the threat of damages would promote constitutional conduct
to the same degree the Supreme Court sought when it confronted the Federal
Bureau of Narcotics agents’ misconduct in the original Bivens case.
Moreover, extending Bivens to private prison employees would create legal
symmetry between the rights of state and federal private prison inmates, as well
as federal public and private prison inmates.270 The need for symmetry derives
from Malesko, in which the Supreme Court underscored its preference for
imposing parallel liabilities on defendants in constitutional tort actions.271
Though the Malesko majority and dissent disagreed on whether the plaintiff
could sue the prison corporation under Bivens, both agreed that legal symmetry
should inform the result.272 Their disagreement centered only on the nature of
the symmetry, whether along private-public or state-federal lines.273 Allowing
a private prison inmate to sue prison employees under Bivens would create
symmetry along both axes.274 First, it would align the rights of state and
federal inmates because state inmates may currently sue employees of private
prisons under § 1983.275 Second, it would align the rights of federal public and
private inmates because federal inmates may sue public prison employees
under Bivens.276 Ruling otherwise would create asymmetrical legal rights
among inmates held in private prisons, a result the Malesko Court deemed
unacceptable.277

269. See supra notes 249-251 and accompanying text (arguing, contrary to Holly court’s findings, private
prison employees are considered federal actors for Bivens purposes).
270. See supra notes 131-139 and accompanying text (explaining Supreme Court’s preference for legal
symmetry support extending Bivens); supra text accompanying notes 220-221 (same).
271. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (asserting Congress should decide whether
private prisons should face “asymmetrical liability costs”); id. at 82 (Stevens, J., dissenting) (observing
parallelism necessary to avoid subjecting claims against state and federal actors to different standards); see also
Peoples, 422 F.3d at 1111 (Ebel, J., concurring in part and dissenting in part) (arguing full Court sought legal
symmetry when considering plaintiff’s Bivens claim against prison corporation), vacated in part on reh’g by
449 F.3d 1097 (10th Cir. 2006) (en banc).
272. See Malesko, 534 U.S. at 71 (reasoning symmetry supports rejecting plaintiff’s Bivens claim); id. at
81-82 (Stevens, J., dissenting) (arguing symmetry requires Court to recognize plaintiff’s Bivens claim); see also
supra note 221 (explaining Justices’ parallelism-based reasoning for rejecting or accepting plaintiff’s Bivens
claim).
273. See Malesko, 534 U.S. at 71 (seeking public-private symmetry); id. 81-82 (Stevens, J., dissenting)
(urging state-federal symmetry).
274. See Peoples v. CCA Det. Ctr, 422 F.3d 1090, 1110-12 (10th Cir. 2005) (Ebel, J., concurring in part
and dissenting in part) (explaining how extending Bivens would align liabilities along public-private and statefederal lines).
275. See supra note 174 and accompanying text (citing cases holding state inmates may sue private prison
employees under § 1983).
276. See supra note 170 and accompanying text (explaining federal inmates’ right to invoke Bivens against
federal officials).
277. See supra notes 131-138 and accompanying text (explaining Court’s preference for imposing
symmetrical legal liabilities).

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VI. CONCLUSION
In recent years, the federal government has relied increasingly on private
corporations to accommodate its expanding prison population.
These
companies, with vast capital resources and logistical expertise, provide service
at a level of sophistication and efficiency that the government’s own
corrections agency cannot match. Observers contend, however, that prison
corporations cannot pay equal allegiance to government customers,
shareholders, and the inmates they incarcerate. Instead, private prison inmates
endure less-than-constitutional conditions as prison managers streamline costs
to please investors and fill more beds.
In light of the corrections industry’s rise and the growing number of federal
inmates held in private prisons, the lack of clarity about these inmates’ legal
options is disconcerting. The Bivens remedy affords inmates who sustain
constitutional injury unparalleled access to complete relief in the federal forum.
Yet, in a growing number of jurisdictions, inmates must settle for something
less, namely inadequate relief in state court or before administrative bodies.
Lower courts interpret Malesko as literally barring Bivens claims against
private prison employees whenever alternative remedies of any type exist.
These courts reject Bivens claims while overlooking strong policy reasons that
support extending liability to private prison employees. Without Supreme
Court intervention on this issue, the District of Rhode Island’s decision in
Sarro seems destined to become a curiosity.
Matthew W. Tikonoff