SARRO v. CORNELL CORRECTIONS, INC., 248 F.Supp.2d 52 (D.R.I. 02/27/2003)

[1] United States District Court, District of Rhode Island

[2] C.A. No. 00-11-T

[3] 248 F. Supp.2d 52, 2003

[4] February 27, 2003

[5] GEORGE A. SARRO III
v.
CORNELL CORRECTIONS, INC., WYATT DETENTION CENTER, VICTOR LIBURDI, CAPTAIN LORENZO, J. CARROLL, J. MAGUIRE AND JENNIFER EGAN

[6] William M. Dolan III, Esq., Angel Taveras, Esq., Brown, Rudnick, Berlack & Israels, Llp, Providence, Ri, Michele Elisa O'Brien, Esq., Brown, Rudnick, Freed & Gesmer, Boston, Ma, for Plaintiff.

[7] George A. Sarro III, Pro se

[8] Dennis T. Grieco II, Esq., Gidley, Sarli & Marlusak, Providence, Ri, for Defendant.

[9] The opinion of the court was delivered by: Ernest C. Torres, Chief Judge.

[10] MEMORANDUM AND ORDER

[11] Introduction

[12] George A. Sarro III, acting pro se, brought this action pursuant to 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against various parties associated with the Donald Wyatt Detention Center, a privately-operated facility in which federal prisoners awaiting trial are incarcerated. Sarro seeks money damages for claimed violations of his Fifth and Eighth Amendment rights when prison guards allegedly failed to protect him from attack by fellow inmates and failed to provide him with adequate medical treatment for his injuries.

[13] The case is before the Court for consideration of Sarro's objection to a magistrate judge's Report and Recommendation issued pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge has recommended that summary judgment be granted in favor of the defendants on the ground that they are neither state actors for the purposes of § 1983 nor federal actors for the purposes of Bivens; and, therefore subject matter jurisdiction is lacking.

[14] Because I find that none of the defendants acted under color of state law; the individual defendants acted under color of federal law; and the corporate defendants cannot be held liable under Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), the Recommendation is rejected with respect to the Bivens claim against the individual defendants and the Recommendation is accepted in all other respects.

[15] Background

[16] In 1991, Rhode Island enacted the Municipal Detention Facility Corporations Act, R.I. Gen. Laws § 45-54-1, et seq., which authorized municipalities to create public corporations that would own and operate detention facilities. See Lawson v. Liburdi, 114 F. Supp.2d 31, 33 (D.R.I. 2000). The dual purposes of the act were to promote economic development and to provide a facility in which the United States Marshals Service could house federal pretrial detainees. See R.I. Gen. Laws § 45-52-2(b); Lawson, 114 F. Supp.2d at 33.

[17] Pursuant to that statutory authorization, the City of Central Falls (the City) created the Central Falls Detention Facility Corporation (CFDFC) to build and own such a facility. CFDFC's Board of Directors consists of five unpaid members who are appointed by the mayor. The corporation is not a part of the City. Rather it is "an instrumentality and agency of the municipality, but has a distinct legal existence from the municipality". R.I. Gen. Laws § 45-54-1. Financing to construct the facility, later named the Donald F. Wyatt Detention Center (Wyatt), came from bonds issued by the Rhode Island Port Authority. See City of Central Falls v. Central Falls Det. Facility Corp., C.A. No. 94-3939, 1997 WL 839936, at *1 (R.I. Super. June 23, 1997).

[18] The CFDFC contracted with the U.S. Marshals Service to house federal pretrial detainees at Wyatt. The CFDFC also contracted with Cornell Corrections, Inc.*fn1 (Cornell), a private corporation, to operate the facility and employ the staff. See Huguenin v. Ponte, 29 F. Supp.2d 57, 60 (D.R.I. 1998). Under the terms of that contract, Cornell has the exclusive use of the facility and the exclusive authority to operate it.

[19] In 1997, Sarro was awaiting trial on federal criminal charges and was being detained at Wyatt. Sarro alleges that, after a fight between another white inmate and a black inmate, Sarro reported to defendant Lorenzo that he had received numerous threats from black inmates and he requested to be placed in protective custody. Sarro further alleges that his request was denied and that, subsequently, defendant Carroll, another guard, left him unattended during a fire drill at which time he was viciously beaten by several black inmates. Finally, Sarro alleges that defendant Egan, the programs director at Wyatt, refused to provide him proper medical treatment for his injuries.

[20] Procedural History

[21] On January 7, 2000, Sarro, acting pro se, filed a complaint against Wyatt, Cornell, and various employees working at Wyatt, including Lorenzo, Carroll, and Egan. Sarro seeks compensatory and punitive damages pursuant to Bivens and § 1983 for what he alleges were violations of his Eighth and Fifth Amendment rights resulting from the individual defendants' "deliberate indifference" to his "health and safety."

[22] On June 21, 2000, Cornell moved to dismiss pursuant to Rules 12(b)(2), (4), (5) and Rule 4(m) of the Federal Rules of Civil Procedure, for alleged deficiencies in process and the service of process, and, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. That motion was referred to a magistrate judge for a Report and Recommendation pursuant to 18 U.S.C. § 636(b)(1)(B).

[23] The magistrate judge sua sponte raised the issue of subject matter jurisdiction and ordered the individual defendants to file affidavits stating whether they were employed by any governmental entity, state or federal. The defendants submitted an affidavit, stating that, at all relevant times, the individual defendants were employed by Cornell Corrections of Rhode Island, Inc. Sarro submitted a letter, stating his belief that because he was a federal prisoner in the custody of the U.S. Marshal, the individual defendants were employed by the federal government.

[24] The magistrate judge recommended that the claims against Wyatt be dismissed on the ground that there was no such legal entity. He also recommended that the motion to dismiss with respect to the remaining defendants be denied to the extent that it was based on alleged insufficiencies in process and the service of process. There has been no objection to either of those recommendations. The magistrate judge treated the motion to dismiss pursuant to Rule 12(b)(6) as a motion for summary judgment and recommended that it be granted on the ground that subject matter jurisdiction was lacking because the defendants had not acted under color of federal law within the meaning of Bivens or state law within the meaning of § 1983.

[25] Sarro objected and, because of the importance and complexity of the issues presented and because no court has yet decided whether a guard at a privately-operated facility housing federal prisoners is amenable to suit under Bivens, this Court appointed counsel to represent Sarro. This Court also granted the American Civil Liberties Union leave to file an amicus brief.

[26] While the objection was pending, Sarro's counsel filed an amended complaint adding CFDFC as a defendant and asserting claims for negligence. While that complaint is not, now, the subject of the Court's consideration, it will be affected by the rulings made with respect to the magistrate judge's Report & Recommendation.

[27] Standard of Review

[28] Recommendations by a magistrate judge are reviewed de novo. 28 U.S.C. § 636(b)(1)(C). Since the recommendation, here, is that summary judgment be entered, the applicable standard of review is found in Rule 56(c) of the Federal Rules of Civil Procedure.

[29] Rule 56(c) provides for the entry of summary judgment when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those "that might affect the outcome of the suit under governing law." Morrissey v. Boston Five Cents Savings Bank, 54 F.3d 27, 31 (1st Cir. 1995). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. In determining whether summary judgment is appropriate, the court views the evidence and all inferences that may fairly be drawn from it in the light most favorable to the nonmoving party. Id. at 29.

[30] Bivens Liability

[31] Although the Supreme Court has held that a private corporation operating a prison is not subject to suit under Bivens, Malesko, 534 U.S. at 73, no Circuit has yet addressed whether a federal prisoner incarcerated at a privately-operated facility may maintain a Bivens action against guards and other individuals employed at that facility; and, at first blush, the decisions of the Supreme Court that bear on that issue appear to be irreconcilable.

[32] The Supreme Court has held that a federal officer acting under color of federal law may be liable for damages for violating the constitutional rights of another. Bivens, 403 U.S. at 397. On the other hand, the Court has expressed reluctance to apply Bivens in cases where alternative remedies are available. Malesko, 534 U.S. at 73.

[33] In the prison context, Malesko held that a prisoner at a privately-operated prison cannot bring a Bivens action against the entity that runs the facility because, among other things, that would give the prisoner greater rights than those enjoyed by prisoners at publicly-operated prison facilities. Id. at 71-72. However, in Richardson v. McKnight, the Supreme Court held that the guards at a privately-operated prison are not entitled to qualified immunity under § 1983, a holding that seemingly results in more favorable treatment for prisoners in these facilities because, unlike prisoners in publicly-operated facilities, their claims would not be subject to the defense of qualified immunity. 521 U.S. 399, 412 (1997).

[34] Nevertheless, upon closer examination, these "conflicts" turn out to be more apparent than real; and, in any event, the Supreme Court has made it plain that whether a prisoner at a privately-operated prison may maintain a Bivens action against individuals employed at the prison is an open question. Malesko, 534 U.S. at 65 (parties agree that the question whether a Bivens action might lie against a private individual is not presented here). If anything, the dissent in Malesko suggests that such an action may be maintained. Id. at 79 n. 6 (Stevens, J., dissenting) (both parties and the United States as amicus acknowledge that the individual guards would appropriately be liable under Bivens); see Richardson, 521 U.S. at 413 ("we have focused only on questions of § 1983 immunity and have not addressed whether the defendants are liable under § 1983 even though they are employed by a private firm.").

[35] Bivens and § 1983

[36] Bivens held that a "federal agent acting under color of his authority" may be liable for money damages when he engages in conduct that violates an individual's Fourth Amendment rights even though there is no federal statute expressly authorizing an award of damages. 403 U.S. at 392, 396-97. Since then, the Supreme Court has extended Bivens to cases involving Fifth Amendment and Eighth Amendment violations as well. See Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980).

[37] Although Bivens applies only to those acting under color of federal law and § 1983 applies only to those acting under color of state law, the rationale underlying Bivens is similar to Congress' rationale in enacting § 1983. The objective in both instances is to make government actors who misuse their governmental authority liable for the consequences of their misdeeds and to provide adequate redress to individuals whose constitutional rights are violated by such conduct.

[38] However, because there is no statute that expressly authorizes damage awards against federal actors, the Supreme Court has been reluctant to imply such a remedy except where necessary to deter and/or redress violations of fundamental constitutional rights. See Bush v. Lucas, 462 U.S. 367, 374-78 (1983). Consequently, Bivens actions, generally, have been allowed only in cases where there is no indication of a contrary Congressional intent and there are no "special factors counseling hesitation" Id. at 378.

[39] A contrary federal intent may be inferred "when Congress provides an alternative remedy . . . [or] by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself. . . ." Id.

[40] Among the special factors that may counsel hesitation are: conflict with federal fiscal policy; the existence of a comprehensive remedial scheme providing meaningful remedies created by Congress; and the unique structure and nature of the military. Schweiker v. Chilicky, 487 U.S. 412, 421-23 (1988); United States v. Stanley, 483 U.S. 669, 683-84 (1987); Chappel v. Wallace, 462 U.S. 296, 304 (1983); Bush, 462 U.S. at 380-81, 388.

[41] Liability of Private Parties

[42] The magistrate judge cited two reasons for recommending that summary judgment be entered in favor of the defendants with respect to the Bivens claims. First, he concluded that only federal officers are subject to suit under Bivens. Second, he concluded that, even if a Bivens action could be maintained against private parties, the defendants, in this case, "did not act under the `color of federal law.'" Sarro v. The Donald Wyatt Det. Center, C.A. No. 00-11, 2001 WL 210265, at *6 (D.R.I. Jan. 30, 2001) (Magistrate Judge's Report & Recommendation). This Court disagrees with both of those conclusions.

[43] In deciding that only federal officers are subject to suit under Bivens, the magistrate judge relied on a footnote in Fletcher v. Rhode Island Hosp. Trust Nat'l Bank, 496 F.2d 927, 932 n. 8 (1st Cir. 1974) stating that, "[t]here is no cause of action against private parties acting under color of federal law or custom." That reliance on Fletcher is misplaced for several reasons.

[44] First, the quoted statement was only dictum. Fletcher did not involve a Bivens claim. Rather, it dealt with a § 1983 claim against a bank that was alleged to have wrongfully deducted amounts from the plaintiff's checking accounts. The First Circuit rejected the plaintiff's contention that the bank acted "under color of state law" simply because it was regulated by the state. Thus, the statement about the liability of a private party acting under color of federal law was unrelated to the Court's holding and the Court did not articulate any basis or reason for that statement.

[45] Second, since Fletcher was decided, the First Circuit appears to have implicitly recognized that a private party acting under color of federal law may be liable under Bivens. See Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447 (1st Cir. 1983). In Gerena, a lawyer sued for damages resulting from the termination of his employment by a private nonprofit corporation organized under the laws of the Commonwealth of Puerto Rico. The plaintiff asserted claims under § 1983 and the United States Constitution. The Court upheld the dismissal of the "federal action" but did so only after exhaustively analyzing whether the defendant corporation satisfied the requirements of any of the applicable tests for determining when a private party can be considered a government actor. Thus, Gerena apparently assumed that a private corporation can be a government actor; and, therefore, liable for damages for federal constitutional violations. See Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp.2d 282, 306 (D.Mass. 1999) (noting that in Gerena the First Circuit seemed to assume without deciding that a Bivens action could lie against a private party acting under color of federal law).

[46] Indeed, that assumption would be consistent with the holdings of most courts that have considered the question. Yeager v. General Motors Corp., 265 F.3d 389, 398-99 (6th Cir. 2001) (holding that General Motors would be liable under Bivens if it acted under color of federal law, but finding voluntary contractual relationship insufficient to establish federal action); Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698 (6th Cir. 1996) (holding that private attorneys acting in concert with federal marshals were federal actors for the purposes of a Bivens action); Schowengerdt v. General Dymanics Corp., 823 F.2d 1328, 1337-38 (9th Cir. 1987) (holding that the private status of a party will not defeat a Bivens claim, provided that the defendant engaged in federal action); Dobyns v. E-Systems, 667 F.2d 1219, 1227-28 (5th Cir. 1982) (holding that a private organization which played dominant role in United States' Sinai Field Mission acted under color of federal law); Yiamouyiannis v. Chemical Abstract Serv., 521 F.2d 1392, 1393 (6th Cir. 1975) (finding plaintiff stated a valid Bivens claim against private employer receiving federal funds); Heinrich, 62 F. Supp.2d at 307 (holding that Bivens extends to actions against private parties who act under color of federal law); Alexander v. Pennsylvania Dept. of Banking, C.A. No. 93-5510, 1994 WL 144305, at *3 (E.D.Pa. Apr. 21, 1994) (holding that private defendants acing in concert with government can be considered federal agents and thus liable under Bivens); but see Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223, 1227 (D.C. Cir. 1994) (holding no Bivens actions against private entities).

[47] That assumption, also would be consistent with the Supreme Court's holding that, for purposes of § 1983, a private party exercising state authority may be deemed to act under color of state law. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 157 (1978); Burton v. Wilmington Parking Auth., 365 U.S. 715, 724-25 (1961).