The Fourth Circuit Court of Appeals has held that individual employees of a privately-operated prison are not subject to Eighth Amendment liability under a Bivens action. Before the Court was the defendants' appeal of a North Carolina federal district court's denial of the defendants? motion to dismiss.

Ricky Lee Holly, a prisoner at Rivers Correctional Institution, a privately-operated prison run by the GEO Group, Inc. under contract with the Federal Bureau of Prisons, alleged the defendants had failed to provide him with adequate medical care since his arrival at Rivers in August 2002.

Holly is a diabetic. He contended that medical staff ignored his complaints that his insulin dosage was insufficient, resulting in frequent black-outs. He also alleged his complaints led to retaliation in the form of being locked in the medical unit for twenty-four days with a threat that he would remain there until he completed his sentence. Holly sought to establish liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Bivens held that a "violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages," despite the absence of any federal statute creating liability. As a result, in over "30 years of Bivens jurisprudence [the Court has] extended its holding only twice."

A plaintiff seeking a Bivens remedy must satisfy a three-part test. "[A] court must determine that (1) Congress has not provided an exclusive statutory remedy; (2) there are no special factors counseling hesitation in the absence of affirmative action by Congress; and (3) there is no explicit congressional declaration that money damages not be awarded." The Fourth Circuit held that while "the first and third [tests] are satisfied by Congress's silence regarding remedies for plaintiffs in Holly's position, Holly cannot satisfy the second."

Present here were two "special factors counseling hesitation." The first factor was that the defendants were private individuals, not government actors. Thus, their actions were not "fairly attributable" to the federal government. As with 42 U.S.C. § 1983, Bivens is directed towards individuals acting "under color of" law. A prerequisite to liability is "that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the government." The Court held Bivens cannot be extended to private individuals.

The second factor was that "Holly possesses alternative '- and arguably superior -' causes of action against defendants under the state law of negligence." The Court stated that Bivens has only been extended in two circumstances. Once has been "to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct." The other was "to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally".

Where those two circumstances have not been present, the Supreme Court has "consistently rejected invitations" to enlarge the scope of the judicially-created Bivens action. Hence, the Fourth Circuit reversed the district court's order and remanded with directions to dismiss the action. See: Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), cert. denied, 126 S.Ct. 2333 (2006).

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