Opinion
C.A. No. 00-011 T
January 30, 2001
Report and Recommendation
Plaintiff George A. Sarro, III, pro se, has filed a Complaint in which he seeks relief under 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). He alleges a deprivation of his Constitutional rights under the Fifth and Eighth Amendments. Plaintiff names as defendants the Donald Wyatt Detention Center, Cornell Corrections, Inc., Victor Liburdi, Captain Lorenzo, Chief Maguire, and Jennifer Egan. Cornell Corrections of Rhode Island, Inc., has moved to dismiss the Complaint in its entirety pursuant to Rules 12(b)(2), (4), (5), and (6), and Rule 4(m) of the Federal Rules of Civil Procedure. Cornell Corrections of Rhode Island, Inc., has supplied the Court with affidavits for consideration in support of its motion. The plaintiff has objected to the instant motion.
Cornell Corrections of Rhode Island, Inc., is not named as a defendant nor was that entity served with process. Cornell Corrections of Rhode Island, Inc., is a wholly owned subsidiary of Cornell Companies, Inc.
This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a Report and Recommendation. For the reasons that follow, I find that there is a want of subject mater jurisdiction and the instant claim should be dismissed. Cornell Corrections of Rhode Island's motion to dismiss should be treated as a motion for summary judgement, and I find that the same be granted. See Fed.R.Civ.P. 12(b); Moody v. Town of Weymouth, 805 F.2d 30, 31 (1st Cir. 1986). I further find that the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), (4), and (5) and Rule 4(m) should be denied. I have considered plaintiffs complaint, Cornell Corrections' motions to dismiss and supporting affidavits, the objection thereto, and the applicable law. I have determined that a hearing is not necessary.
I. Jurisdiction
Plaintiff seeks to invoke the subject matter jurisdiction of this Court pursuant to 28 U.S.C. § 1331 and § 1343(a)(3) by filing a Complaint allegedly pursuant to either Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, and/or 42 U.S.C. § 1983. However, the Court, sua sponte, in this instant case, raises the question of the existence of subject matter jurisdiction. See Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326 (1986). In sum, the record before the Court shows that the defendants are a private corporation and private individuals. The defendants are not government officials, agents, or employees, state or federal. Accordingly, I find that there is no subject matter jurisdiction over the instant claim since the undisputed facts demonstrate that the jurisdictional predicate for the instant § 1983 or Bivens claim is based upon the purely private action of the defendants. Accordingly, summary judgement should be granted in favor of the defendants. My reasoning follows.
Although the plaintiff has filed this action only pursuant to Bivens, I will also consider whether this action may be brought pursuant to 42 U.S.C. § 1983 since the plaintiff claims that the defendants acted under the "color of state law". The court notes that the state courts remain available to entertain plaintiffs claims against private persons who wrongfully deprive him of adequate medical care or commit an assault and battery.
The Court provided the plaintiff and the defendants with notice and an opportunity to respond to this issue.
II. Background
A. Plaintiff's Complaint
During the time relevant to the instant Complaint, plaintiff avers that he was detained at Donald Wyatt Detention Center ("Wyatt") in Central Falls, Rhode Island. In January, 1997, plaintiff asserts that "serious racial tension" began to spread through the Wyatt facility. Plaintiff alleges that during that time frame, some "white inmates were assaulted by black inmates."
The details of plaintiffs allegations are these:
1. During this time of purported racial tension, plaintiff was showering in a common area when a fight broke out between a black inmate and a white inmate. Although plaintiff was not involved in the fight, he was handcuffed and placed into a holding cell in the Receiving and Discharging unit ("RD unit"). Because of this, plaintiff avers that it was believed by the black inmates at Wyatt that the plaintiff was involved with, or connected to, the fight. Plaintiff thereafter received threats from some black inmates, and accordingly, he requested to be placed in protective custody. Plaintiffs request was not granted. Plaintiff was, however, assigned to a different unit, identified as the "E-pod".
2. Within one hour of plaintiffs arrival in the E-pod, plaintiff received numerous threats from black inmates there. Plaintiff promptly reported these threats to numerous officers, names of which he is unaware, and again requested to be placed in protective custody. Plaintiff then spoke with Captain Lorenzo about being placed in protective custody. Captain Lorenzo denied his request.
3. Thereafter, the plaintiff was moved into another unit, identified as the "C-pod". Plaintiff agreed to stay in the C-pod after he was informed by an unknown officer that he would be locked in his cell on a protective lock-down status. While in the C-pod, plaintiff again received numerous threats from black inmates. Plaintiff alleges that officers at the facility were aware of these threats since they had witnessed them first hand.
4. On January 18, 1997, defendant Officer Carrol opened plaintiffs cell door and ordered the plaintiff to shower and to clean his cell. Plaintiff addressed his concern for his safety at that time to defendant Carrol, and Carrol assured the plaintiff he would be safe. However, while the plaintiff was outside his cell, plaintiff alleges a "planned" fire drill sounded. At that time, Officer Carrol left the plaintiff unattended and at the "mercy of the black inmates." Plaintiff was then "viciously beaten" by the black inmates. Following the attack, plaintiff was escorted to the RD unit.
5. Upon arriving at the RD unit, plaintiff immediately requested to be seen by a physician because he was in severe pain from the attack. Plaintiffs request was denied but he was seen by a nurse who was unable to adequately treat him. Plaintiff then was placed back into the C-pod on protective lock-down status. One day later, plaintiff was placed into punitive segregation. Plaintiff continued to complain of the injuries that he sustained in the attack but failed to receive treatment.
6. One week later, plaintiff was escorted back into the RD unit, where he was informed by Jennifer Egan, the Programs Director at Wyatt, that he was being transferred to another facility for disciplinary reasons. Plaintiff, at that point, requested that Egan provided him with the medical care that he needed for the injuries that he had allegedly sustained in the fight. Egan denied his request.
7. Plaintiff was then transferred to the Plymouth County Correctional facility, in Plymouth, Massachusetts. There, he complained to the staff of his injuries. The Plymouth staff immediately arranged for the plaintiff to be seen by a physician, and was ultimately transferred to a hospital in Boston, Massachusetts.
8. Thereafter, plaintiff was transported to the Federal Medical Center, located in Rochester, Minnesota, where he was treated for his injuries sustained in the attack.
Plaintiff has filed this instant cause of action to seek relief. Plaintiff asserts that the defendants violated his Fifth and Eighth Amendment rights of the U.S. Constitution, and seeks redress under 42 U.S.C. § 1983 or Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971).
B. The Donald Wyatt Detention Center
The Court has taken judicial notice of facts set forth in this section. All of judicially noticed facts were found in public documents, which include the cited General Laws of Rhode Island and the cited decisions from the state and federal courts. See e.g., Federal Election Commission v. Hall Tyner Election Campaign, 524 F. Supp. 955, 959 (E.D.P.A. 1981); Mid-South Grizzlies v. National Football Leaaue, 550 F. Supp. 558, 570 n. 31 (1983), citing 10 Wright Miller, Federal Practice and Procedure 2723 (1973); Latta v. Western Inv. Co., 173 F.2d 99 (9th Cir. 1949); Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
At the times relevant to the Complaint, the plaintiff was housed at the Donald Wyatt Detention Center. The Donald Wyatt Detention Center is a unique creature. On July 11, 1991, the General Assembly of the state of Rhode Island enacted the Municipal Detention Facility Corporations Act. R.I. Gen. Laws 45-54-1 et seq.; Lawson v. Liburdi, 114 F. Supp.2d 31, 33 (D.R.I. 2000). The Act had two purposes. First, to promote economic development in the state by building a prison. R.I. Gen. Laws 45-54-2 (b). Second, it would provide the United States Marshals Service space to house federal pre trial detainees. See id. The Act permitted a municipality to create a corporation that would own and operate a detention facility. Lawson, 114 F. Supp. 2d at 33.
The Municipal Detention Facility Corporations Act will hereafter be referred to as the "Act".
The city council of Central Falls passed a resolution adopting a plan, enabling Central Falls to become the only municipality to construct a prison pursuant to the Act. See City of Central Falls v. Central Falls Detention Facility Corp., C.A. No. 94-3939, 1997 WL 839936, at 1 (R.I.Super.Ct. June 23, 1997). In doing so, the city created the Central Falls Detention Facility (CFDFC), a public corporation which would own Wyatt.
The CFDFC, not the city of Central Falls, owns the Wyatt facility. See R.I. Gen. Laws 45-54-2(c).
The CFDFC is a public corporation with five members on its board of directors. See R.I. Gen. Laws 45-54-5. The members of the Board of Directors are appointed by the Mayor of the city of Central Falls and serve on a volunteer basis. Id. The corporation is not part of the city of Central Falls, but rather is "a separate legal entity with its own powers." CFDFC, 1997 WL 839936, at 6. Once the city of Central Falls voted to allow the creation of the CFDFC pursuant to the Act, it relinquished any authority over the decisions of the CFDFC, except in certain instances. Financing for the detention facility came from the state Port Authority, who issued bonds to finance the project. See CFDFC at 1.
See R.I. Gen. Laws 45-54-6(n) (1991), 45-54-8(d) (1991). These statutes set forth two instances in which the municipality may exercise authority over the CFDFC. First, if the CFDFC enters into any non-federal contracts, they must conform to the municipality's procurement requirements, if any. Second, the municipality may transfer property to the CFDFC without formality if the corporation needs the property. The municipality's authority is limited over the CFDFC to these two narrow circumstances. See CFDFC, 1997 WL 839936, at 6 (citing Vukic v. Brunelle, 609 A.2d 938, 941 (R.I. 1992)).
The CFDFC contracted with Cornell Corrections, Inc., a private corporation, to employ the staff and to run the day to day operations of the facility. See Huguenin v. Ponte, 29 F. Supp.2d 57 (D.R.I. 1998). Cornell Corrections has the exclusive use, possession, and control of the facility, and has exclusive authority to operate the facility. Lacedra v. Donald W. Wyatt Detention Center, C.A. No. 99-458 L, Report and Recommendation of July 3, 2000. The CFDFC also contracted with the U.S. Marshals Service to house federal pretrial detainees at the prison. See CFDFC at 6. In late 1993, the CFDFC opened the prison and named it Donald Wyatt Detention Center. See Huguenin at 59.
In 2000, Cornell Corrections, Inc., changed its name to Cornell Companies, Inc., and Cornell Corrections of Rhode Island was created. Affidavit of Wayne T. Salisbury, Jr. ¶ 3. Cornell Corrections of Rhode Island is a subsidiary of Cornell Companies, Inc. Id. The employees at the Wyatt Detention Center are now employees of the subsidiary, Cornell Corrections of Rhode Island. Id.
For purposes of clarity, this Court will refer to Cornell Corrections, Inc., as its current name Cornell Companies, Inc.
Given the plaintiffs factual allegations, 1 though 8 supra, and the mentioned factual framework, I will now examine whether the defendants maybe considered proper defendants in actions pursuant to Bivens and/or Section 1983, and maintain the subject matter jurisdiction of this Court. For the reasons that follow, I find that at the time mentioned in the Complaint, the defendants were a private corporation and private individuals. Accordingly, they are not proper defendants under eitherBivens or § 1983, and I recommend that summary judgement be granted in their favor.
III. Discussion
A. Summary Judgement Standard
Federal Rules of Civil Procedure 56(c) provides that a motion for summary judgement "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgement as a matter of law." "Material facts are those that might affect the outcome of the suit under governing law." Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). "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. (quoting Anderson, supra.). In other words, a genuine issue of material issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial. Garside v. Osco Drug. Inc., 895 F.2d 46, 48 (1st Cir. 1990)(quoting Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975)).
In ruling on a motion for summary judgement, the court must view all of the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. Id. At the summary judgement stage, there is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, no room for the judge to superimpose his own ideas of probability and likelihood." Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1St Cir. 1987).
B. Plaintiff's Allegations against Cornell Corrections Inc., Victor Liburdi, Captain Lorenzo, Officer Carrol, Chief Maguire, and Jennifer Egan.
Plaintiff, in his complaint, asserts that the defendants violated the Fifth and Eighth Amendments to the United States Constitution. However, plaintiff misplaces reliance upon these Constitutional provisions as a basis for the relief he seeks. The Bill of Rights of the United States Constitution limits the powers of the federal government and not private persons. Similarly, the Fourteenth Amendment limits the powers of state government and not the acts of private persons. Given these mentioned limitations, neither the Bill of Rights nor the Fourteenth Amendment provide an actionable basis to redress violations done by private persons. Acts done by private persons rise to the level of constitutional dimension only when such acts are done by private persons who are acting under the color of state law or by federal officials who are acting under the color of federal authority.
Here, plaintiff complains of acts done by private parties — Cornell Companies, Inc., and its then employees, Liburdi, Lorenzo, Carrol, Maguire, and Egan. For the reasons that follow, I find that Cornell Companies Inc., and the named defendant employees, are not state actors for purposes of § 1983 or federal actors for Bivens purposes.
As discussed earlier, employees at Wyatt are now employed by Cornell Corrections of Rhode Island, Inc. However, on the dates mentioned in the Complaint, the named employee defendants were employed by Cornell Companies, Inc.
1. Plaintiff's claims of a Constitutional deprivation under Bivens.
In order to maintain a Bivens action, plaintiff must set forth facts detailing a deprivation of a federally protected right done or caused by "a federal agent acting under color of federal authority." Bivens, 403 U.S. 388, 389, 91 S.Ct. 1999, 2001 (1971). The Supreme Court has never addressed the question of whether or not this judicially created cause of action can be asserted against private parties. The First Circuit has, however, interpreted Bivens to subject only federal officers to suit, stating that "there is no cause of action against private parties acting under color of federal law or custom." See Fletcher v. Rhode Island Hospital Trust National Bank, 496 F.2d 927, 932, n. 8 (1st Cir. 1974), cert. denied, 419 U.S. 1001, 95 S.Ct. 320 (1974). While several other circuits, and at least one district court within the First Circuit have disagreed with such a limitation on Bivens, Flecther remains viable in this circuit. This Court is also aware of the First Circuit's ruling in Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447, 452 (1St Cir. 1983), where the First Circuit assumed, without deciding, that a Bivens action could lie against a private person if the person acted under the color of federal law or custom. Since the First Circuit did not affirmatively assert that a Bivens action does lie against a private entity, I find that a Bivens action, a judge-made cause of action, is not as broad as a claim under 42 U.S.C. § 1983. Accordingly, I find that Bivens applies only to federal officials acting under federal authority to deprive a person of their rights under the Constitution and laws of the United States, in accordance with the First Circuit's view in Fletcher.
See Heinrich v. Sweet, 62 F. Supp.2d 282, 306 (D.Mass. 1999), noting that four different Circuit Courts of Appeal have held contrary to Fletcher that aBivens action may be asserted against a private party acting under color of federal law, and holding thatBivens does extend to such actions.
See Stevens v. Morrison-Knudsen Saudi Arabia Consortium, 576 F. Supp. 516 (D.Md. 1983), aff'd, 755 F.2d 375 (4th Cir. 1985), discussing the more restrictive nature of who may be properly sued underBivens as compared to 42 U.S.C. § 1983.
This Court's view of Fletcher is consistent with other Courts' interpretation of that case. In Stevens v. Morrison-Knudson Saudia Arabia, 576 F. Supp. 516, 520 (D.Md. 1983), the district court found that "the First Circuit flatly stated that there is no federal cause of action against a private party under the color of federal law or custom." Other Courts have also interpreted Fletcher as precluding a Bivens action against a private party acting under the color of federal law or custom.See DeVargas v. Mason Hanger-Silas Mason Co., Inc., 844 F.2d 714, 720 n. 5 (10th Cir. 1988); Alexander v. Pennsylvania Dep't of Banking, No. 93-5510, 1994 WL 144305, at 3 (E.D.Pa. 1994); Lovelace v. Whitney, 684 F. Supp. 1439, 1442 n. 4 (N.D.Ill. 1988).
Here, the plaintiffs claim fails under Bivens because the defendants are not federal officials but private parties. Employees of the federal government are clearly proper Bivens defendants, as they operate as federal agents and exercise federal authority. However, the defendants in this instant case are not federal employees. Rather, they are Cornell Companies, Inc., a private corporation which was hired by the CFDFC to operate Wyatt, and named individual employees. Cornell Companies, Inc., is not affiliated in any way with the federal government. Employees at Wyatt are private parties working for a private corporation. See Lawson, 114 F. Supp.2d at 33. Accordingly, no cause of action exists against these private defendants under Bivens. See Fletcher, 496 F.2d 927, 932, n. 8 (1st Cir. 1974).
Even assuming arguendo that a Bivens action can be maintained against private corporations or private individuals, summary judgement should still be granted in favor of the defendants on plaintiffs Bivens claim since the defendants did not act under the "color of federal law".
To determine whether the defendants acted under the color of federal law, the standards employed are the same as those used for determining the existence of state action under § 1983. Miller v. Hartwood Apartments, Ltd., 689 F.2d 1239, 1243 (5th Cir. 1982). Accordingly, if aBivens action could be maintained against a private party acting under the color of federal law, plaintiffs claim will rest upon a demonstration of federal action, whether direct or indirect.
a. Direct Federal Action Under Bivens.
Although named defendants are a private corporation — Cornell Companies, Inc., and employees of its subsidiary, I shall evaluate whether Cornell Companies, Inc., is directly linked to the federal government, making it an "arm of the state" consistent with the Supreme Court's opinion in Lebron v. National Railroad Passenger Corp. 513 U.S. 374, 115 S.Ct. 961 (1995). In Lebron, the Court held that Amtrak could be considered a part of the federal government because the corporation had been created by the government to serve the government's objectives, and had since been controlled by the government through its permanent right to appoint a majority of Amtrak's board of directors. See id. at 397-401.
In the instant case, the CFDFC was created by the city of Central Falls pursuant to the Rhode Island Municipal Detention Facility Corporations Act. Lawson, 114 F. Supp. 2d at 33. While Central Falls does have the right to exert limited authority over the CFDFC (see n. 8), the CFDFC is in no way connected to the federal government. It is a Rhode Island corporation created pursuant to Rhode Island statutes. Lawson, 114 F. Supp.2d at 33. No federal control exists over this private corporation.Id. Moreover, the named defendants in this case, Cornell Companies, Inc., and the named employee defendants of its subsidiary, Cornell Corrections of Rhode Island, Inc., are not directly linked to the federal government in its operation or function. Rather, the CFDFC contracted with Cornell Companies, Inc., to manage the day to day operations of Wyatt. Id. Cornell Companies Inc., in turn, hired all of the employees.See id. The CFDFC also contracted with the U.S. Marshals Service to house prisoners at Wyatt. Id. Accordingly, the federal government does not exert control over Cornell Companies, Inc., a private corporation, its subsidiary Cornell Corrections of Rhode Island, or the named individual defendants who work at the Wyatt facility.
b. Indirect Federal Action Under Bivens.
Although private entities are not directly linked to the federal government, their actions can sometimes be regarded as governmental action for constitutional purposes. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856 (1961). To evaluate whether or not the acts of an individual constitute federal action for purposes of aBivens type claim, the Supreme Court has developed three tests: the nexus test, which focuses on the government's involvement in the activity of the private party; the symbiotic relationship test, which looks to mutual interdependence of the private party with the government; and the traditional public function test, which holds constitutionally accountable private entities performing a function that has been traditionally the exclusive domain of the state. These tests are aimed at determining the degree of government involvement in the action of the defendants, and consequently whether or not they are proper defendants under Bivens.
See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (nexus test); Burton v. Wilmington Park Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (symbiotic relationship test); and Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764 (1982) (traditional public function test);See also Rodriguez-Garcia v. Davila, 904 F.2d 90, 96 (1st Cir. 1990).
i. The Nexus Test Under Bivens
Under the nexus test, established by the Supreme Court in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449 (1974), a finding of government action may be made when "there is a sufficiently close nexus between the [government] and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the [government] itself." Id. at 351. The mere fact of government regulation does not convert the regulated entity into the government. See id. at 350. Rather, the government "normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed that of the [government]." Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771 (1982).
Here, plaintiff avers that the defendants, Cornell Companies, Inc., Liburdi, Maguire, Lorenzo, Egan, and Carrol failed to adequately protect the plaintiff and did not provided adequate medical care to him. To establish liability under the nexus test, these alleged actions must have been done under the covert or overt direction of the government or the product of federal government involvement, Here, the federal government is in no way linked to, or responsible for, the conduct of a private corporation, Cornell Companies, Inc., and the named employee defendants. The record fails to suggest or demonstrate a connection between the federal government and the conduct of which the plaintiff complains. Accordingly, no "nexus" exists connecting Cornell Companies, Inc., or the named defendant employees of its subsidiary, Cornell Corrections of Rhode Island, Inc., here Liburdi, Maguire, Lorenzo, Egan and Carrol, to the federal government.
ii. The Symbiotic Relationship Test Under Bivens.
Under the symbiotic relationship test, established by the Supreme Court in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856 (1961), actions of a private party are attributable to the federal government if the federal government "has so far insinuated itself into a position of interdependence with the [private entity] that it must be recognized as a joint participant in the challenged activity . . ." Id. at 725, 81 S.Ct. at 862. While this test has often focused on whether or not the government shares in any profits made through its involvement with the private entity, it also should focus on the "interdependence and joint participation" of the government and the private entity. See Rodriguez-Garcia v. Davilia, 904 F.2d 90, 98 91st Cir. 1990). In determining whether such interdependence exists, the court should take into account whether the private entity performs a governmental function, whether it functions with substantial autonomy, to what extent it is financed independently of the [federal] treasury, and whether or not any judgment entered against the entity will be satisfied out of the [federal] treasury. See id. at 99.
Here, Cornell Companies, Inc., or its subsidiary, Cornell Corrections of Rhode Island, does not own the Wyatt Center. Lawson, 114 F. Supp.2d at 33. They are private corporations managing the daily functions of a prison. See id. As the Supreme Court discussed in Richardson v. McKnight, the management of prisons has never been an exclusive public function.See 521 U.S. 399, 405, 117 S.Ct. 2100, 2104 (1997) (holding that privately employed prison guards were not entitled to qualified immunity from § 1983 liability). Cornell Companies, Inc., operates with complete autonomy as the day-to-day manager of Wyatt. Lawson, 114 F. Supp.2d at 33. Cornell Companies is not financed by the federal government, nor will any judgment rendered against employees of Cornell, a private corporation, be paid out of the federal treasury. See id. at 37. Accordingly, no symbiotic relationship exists between Cornell Companies, Inc., a private corporation, the named defendant employees, here Liburdi, Maguire, Lorenzo, Carrol, and Egan, and the federal government.
iii. The Traditional Public Function Test Under Bivens.
Under the public function test, activity of a private entity is attributable to the federal government if the private entity exercises "powers traditionally reserved to the government." Jackson v. Metropolitan Edision Co., 419 U.S. 345, 95 S.Ct. 449, 454 (1974). For the actions of the private entity to be fairly attributed to the [federal government], the relevant inquiry is "not simply whether a private group is serving a public function," but "whether the function performed has been 'traditionally the exclusive prerogative of the [federal government].'" See Rodriguez-Garcia at 98 (quoting Rendell-Baker v. Kohn, 457 U.S. at 842, 102 S.Ct. at 2772).
As mentioned above, the Supreme Court expressly stated that "correctional facilities have never been exclusively public." Richardson v. McKnight, 521 U.S. at 405, 117 S.Ct. at 2104. In Richardson, the Court discussed at length the heavy involvement of private contractors in prison management throughout our nation's history, dating back to the 18th century. Id. at 405-406. As a result, the management of prisons cannot be fairly construed as a function that has traditionally been "an exclusive prerogative of the sovereign." See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 160, 98 S.Ct. 1729, 1735 (1978). "While many functions have been traditionally performed by governments, very few have been 'exclusively reserved to the [federal government]'". Id at 158 98 S.Ct. at 1734.
In Skelton v. Pri-Cor. Inc., 963 F.2d 100 (6th Cir. 1991), the Sixth Circuit has held that when a private corporation administers a state correctional facility pursuant to a contract with the state, it is a state actor for purposes of § 1983. The plaintiff in Skelton had alleged he was deprived of a Bible and access to the law library. See id. at 101. The private company that operated the prison argued that since its facility is privately operated and its workers are privately employed, there is no state action as required to sustain a § 1983 action. The Court rejected Pri Cor's attempt to avoid § 1983 liability, since it was performing a function delegated by the state.
Wyatt can be easily distinguished. Here, there is no element of delegation by the federal government to Cornell Companies. Rather, the state of Rhode Island, pursuant to the Act, has allowed the creation of a corporation, the CFDFC. Lawson, 114 F. Supp.2d at 33. The CFDFC in turn built the prison, for economic needs. Id. at 33-34. The Wyatt center was constructed not as a delegation of the federal government's responsibility to house its inmates, but rather, as a money making venture. The CFDFC then contracted with Cornell Companies, Inc., to operate the facility, and CFDFC contracted with the U.S. Marshals Service to house federal detainees. Id. There is no delegation from the federal government to Cornell Companies, Inc.
Here, a private, non governmental corporation, Cornell Companies Inc., its subsidiary, Cornell Corrections of Rhode Island, and its employees operate the Wyatt Detention Center. See Lawson, 114 F. Supp.2d at 33; Wayne T. Salisbury Affidavit ¶¶ 2, 3, 4. As the Supreme Court discussed in Richardson, operating a prison has never been the "exclusive prerogative of the state." Since operating a prison a prison has never been the exclusive prerogative of the state and since Wyatt is run by a private, non governmental corporation and its employees, I find that named defendants, Cornell Companies, Inc., Victor Liburdi, Officer Carrol, Chief Maguire, Captain Lorenzo, and Jennifer Egan are not "federal actors' under the public function doctrine.
Accordingly, since the undisputed facts demonstrate that Cornell Companies Inc., Victor Liburdi, Officer Carrol, Chief Maguire, Captain Lorenzo, and Jennifer Egan are not proper defendants in a Bivens action, the jurisdiction of this court is lacking, and Cornell Corrections of Rhode Island's motion for summary judgement should be granted with respect to plaintiffs Bivens claims. I so recommend.
2. Plaintiff's Claims of a Constitutional deprivation under 42 U.S.C. § 1983.
To maintain a claim under 42 U.S.C. § 1983, the plaintiff must demonstrate that his federally protected rights have been violated by a person acting under color of state law. The statute provides, in pertinent part:
Every person who, under color of any statute . . . of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or any 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. . . . See Rodriguez-Garcia v. Davila, 904 F.2d 90, 95 (1st Cir. 1990) (citing 42 U.S.C. § 1983).
In determining whether the plaintiff can maintain a claim under § 1983, the critical question here is whether the Constitutional deprivations he alleges at the hands of the defendants can be fairly considered as state action for the. purposes of the statute. It is well settled that neither the Amendments to the Constitution nor § 1983 reach purely private actions. See Rodriguez-Garcia, 904 F.2d 90, 95 (1st Cir. 1990). As a result, the validity of plaintiffs claim hinges on a demonstration of state action, whether direct or indirect. See id. (citing Lugar v. Edmondson Oil Co., 457 U.S. at 937, 102 S.Ct. at 2753).
a. Direct State Action Under § 1983.
Although Cornell Companies, Inc., a private corporation, and employees of its subsidiary are named as defendants, the court must evaluate whether Cornell Companies, Inc., is directly linked to the state government, making it an "arm of the state" consistent with the Supreme Court's opinion in Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961 (1995). In Lebron, the Court held that Amtrak could be considered a part of the federal government because the corporation had been created by the government to serve the government's objectives, and had since been controlled by the government through its permanent right to appoint a majority of Amtrak's board of directors. See id., at 397-401.
In this instant case, the CFDFC was created by the city of Central Falls pursuant to the Rhode Island Municipal Detention Facility Corporations Act. Lawson, 114 F. Supp.2d. At 33. While Central Falls does have the right to exert limited authority over the CFDFC (see n. 8), the municipality does not maintain the same level of control that the federal government was found to exert over Amtrak in Lebron. However, the individual defendants are not even employed by the CFDFC. Lawson, 114 F. Supp.2d at 33. Rather, at the time relevant to the Complaint, they were employees of Cornell Companies, Inc. Cornell Companies, Inc. was hired by the CFDFC to manage the day-to-day operations of the Wyatt facility. See id. While connecting the CFDFC to the state government under the rationale used in Lebron is possible, there is no connection between Cornell Companies, Inc., and the state, nor a connection between the state and the named employee defendants. As a result, the defendants are not directly linked to the state government and their actions are not directly attributable to the state.
b. Indirect State Action Under § 1983.
Although private entities are not directly linked to the government, their actions can sometimes be regarded as governmental action for constitutional purposes. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856 (1961). To evaluate whether or not the acts of an individual constitute state action for the purposes of § 1983, the Supreme Court has developed three tests: the nexus test, the symbiotic relationship test, and the traditional public function test. These tests are aimed at determining the degree of state involvement in the actions of the defendants, and consequently whether or not they are proper defendants under § 1983.
i. The Nexus Test Under § 1983.
In order for the plaintiff to establish that the acts of the defendants are fairly attributable to the state under the "nexus test', the plaintiff must demonstrate a "sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453 (1974). In addition, the Supreme Court has further narrowed the type of connection which will suffice to establish a nexus, holding that "a state normally can be responsible for a private decision only when it has exercised coercive power or has provided significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786 (1982).
Here, plaintiff avers that the defendants failed to properly protect the plaintiff from injury from other inmates and failed to provide adequate medical care. To establish liability under the "nexus test', these alleged actions must be done under the overt or covert direction of the state or the product of state involvement. "'The challenged action of the regulated entity . . . may be fairly treated as that of the State itself . . . only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.'" Rodriguez-Garcia v. Davila, 904 F.2d 90, 97 (1st Cir. 1990) (quoting Blum, 457 U.S. at 1004, 102 S.Ct. at 2785). Here, the state is not responsible for the conduct of the defendants, Cornell Companies, Inc., a private corporation and employees its subsidiary, Cornell Corrections of Rhode Island. There is no connection between the state and the conduct of which the plaintiff complains. Accordingly, no "nexus' exits connecting Cornell Companies, Inc., or the named employee defendants, to the state.
ii. The Symbiotic Relationship Test Under § 1983.
State action exists under the symbiotic relationship test if the acts of a private party are attributable to the state because the government "'has so far insinuated itself into a position of interdependence with [the private entity] that it must be recognized as a joint participant in the challenged activity . . . .'" Rodriguez-Garcia at 98 (quoting Burton v. Wilmington Parking Authority, 365 U.S. at 725, 81 S.Ct. at 862). While this test has often focused on whether or not the state shares in any profits made through its involvement with the private entity, it also should focus on the "interdependence and joint participation" of the state and the private entity. See Rodriguez-Garcia at 98. In determining whether such interdependence exists, the court should take into account whether the private entity performs a governmental function, whether it functions with substantial autonomy, to what extent it is financed independently of the state treasury, and whether or not any judgment entered against the entity will be satisfied out of the state treasury.See id. at 99.
Here, Cornell Companies, Inc., does not own the Wyatt Center. Lawson, 114 F. Supp.2d at 33. It is a private corporation managing the daily functions of a prison. Id. As the Supreme Court discussed in Richardson v. McKnight, the management of prisons has never been an exclusive public function. See 521 U.S. 399, 405, 1175 S.Ct. 2100, 2104, 138 (1997) (holding that privately employed prison guards were not entitled to qualified immunity from § 1983 liability). Cornell Companies, Inc., and its subsidiary, Cornell Corrections of Rhode Island, Inc., operate with complete autonomy as the day-to-day manager of Wyatt. See Lawson, at 33. Cornell Companies, Inc., is not financed by the state, nor will any judgment rendered against employees of Cornell Companies, Inc., or Cornell Corrections of Rhode Island, private corporations, be paid out of the state treasury. Accordingly, no symbiotic relationship exists between Cornell Companies, Inc., — a private corporation, or its employees, here Liburdi, Maguire, Lorenzo, Carrol, and Egan, and the state of Rhode Island.
iii. The Traditional Public Function Test Under § 1983.
In determining whether or not a private entity is a state actor for the purposes of § 1983, the courts have also considered whether or not "the private entity has exercised powers that are "traditionally the exclusive prerogative of the State.'" Blum v. Yaretsky, supra at 1005, 102 S.Ct. at 2786 (1982) (quoting Jackson v. Metropolitan Edison Co., supra at 353, 95 S.Ct. at 454). For the actions of the private entity to be fairly attributed to the state, the relevant inquiry is "not simply whether a private group is serving a public function," but "whether the function performed as been "traditionally the exclusive prerogative of the State.'" See Rodriguez-Garcia at 98 (quoting Rendell-Baker v. Kohn, 457 U.S. at 842, 102 S.Ct. at 2772).
As mentioned above, the Supreme Court expressly stated that "correctional facilities have never been exclusively public." Richardson v. McKnight, 521 U.S. at 405, 117 S.Ct. at 2104. In Richardson, the court discussed at length the heavy involvement of private contractors in prison management throughout our nation's history, dating back to the 18th century. Id. at 405-406. As a result, the management of prisons cannot be fairly construed as a function that has traditionally been "an exclusive prerogative of the sovereign." See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 160, 98 S.Ct. 1729, 1735 (1978). "While many functions have been traditionally performed by governments, very few have been 'exclusively reserved to the State.'" Id. at 158, 98 S.Ct. at 1734.
In Skelton v. Pri-Cor. Inc., 963 F.2d 100 (6th Cir. 1991), the Sixth Circuit has held that when a private corporation administers a state correctional facility pursuant to a contract with the state, it is a state actor for purposes of 1983. The plaintiff in Skelton had alleged he was deprived of a Bible and access to the law library. See id. at 101. The private company that operated the prison argued that since its facility is privately operated and its workers are privately employed, there is no state action as required to sustain a § 1983 action. The Court rejected Pri Cor's attempt to avoid 1983 liability, since it was performing a function delegated by the state.
Wyatt can be easily distinguished. Here, there is no element of delegation. The State has not delegated to Cornell Companies, or its employees a function performed on behalf of the government. Rather, the state, pursuant to the Act, has allowed the creation of a corporation, the CFDFC. Lawson, 114 F. Supp.2d at 33. The CFDFC in turn built the prison, for economic needs. Id. The Wyatt center was constructed not as a delegation of the state's responsibility to house its inmates, but rather, as a money making venture. The CFDFC then contracted with Cornell to operate the facility. Id. Again, there is no delegation from the state to Cornell.
Here, a private, non governmental corporation, Cornell Companies, Inc., its subsidiary Cornell Corrections of Rhode Island, Inc., and its employees operate the Wyatt Detention Center. As the Supreme Court discussed in Richardson, operating a prison has never been the "exclusive prerogative of the state." Since operating a prison a prison has never been the exclusive prerogative of the state, since Wyatt is run by a private, non governmental corporation and its employees, and since there is no delegation by the state to house its inmates, I find that the named defendants, Cornell Companies, Inc., and the named defendant employees, are not "state actors' under the public function doctrine.
In Richardson, the Court reserved the question of whether private prison guards are state actors for purposes of § 1983. Richardson dealt only with the question of whether prison guards employed by a private firm were entitled to the same qualified immunity defense as guards employed by the state. See Richardson, 521 U.S. at 413, 117 S.Ct. at 2108. The Supreme Court held that they were not. In so doing, the Supreme Court in Richardson impliedly rejected the premise that private guards are subject to § 1983 liability by not treating private prison guards like their state employed counterparts. Thus, I find that the named defendants are not proper defendants under 42 U.S.C. § 1983, and accordingly, this court's jurisdiction is lacking. Cornell Corrections of Rhode Island's motion for summary judgement, as it pertains to plaintiffs Section 1983 claims against Cornell Companies, Inc., Victor Liburdi, Captain Lorenzo, Chief Maguire and Jennifer Egan, should be granted. I so recommend.
C. Plaintiff's Claims against the "Donald Wyatt Detention Center".
1. Section 1983 Claims.
Title 42, Section 1983 provides, in pertinent part:
Every person who, under the color of any statute . . . of any state or territory . . . subjects, or causes to be subjected, any citizen of the United States or any 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 . . . See Rodriguez-Garcia v. Davila, 904 F.2d 90, 95, (1st Cir. 1990)(citing 42 U.S.C. § 1983) (emphasis added).
Section 1983 makes actionable the conduct of "every person" who, under the color of law, causes constitutional or other certain federal statutory deprivations actionable. "Every person" as stated in 42 U.S.C. § 1983, has been interpreted by the Courts to include all natural persons, corporate entities, and associations. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978). However, it does not include a building that is not a legal entity.
Here, plaintiff has brought suit against the Donald Wyatt Detention Facility. However, the undisputed facts indicate that the Donald Wyatt Detention Facility is the name of the building where the pro se plaintiff was detained. Michael Gilliland Affidavit ¶¶ 3, 4. No legal entity exists bearing that name. Id. at 4. Accordingly, since 42 U.S.C. § 1983 does not provide for a cause of action against a building, summary judgement should be granted in favor of the defendants. I so recommend.
2. Plaintiff's Bivens Claims.
Alternatively, if plaintiffs cause of action is based upon a Bivens rationale, summary judgment should be still granted in favor of the defendants. In order to maintain a cause of action pursuant to a Bivens rationale, the plaintiff must set forth facts detailing a deprivation of a federally protected right performed by a "federal agent acting under the color of federal authority." Bivens, 403 U.S. 388, 389. 91 S.Ct. 1999, 2001 (1971). Here, plaintiff seeks to maintain a cause of action directly against the Donald Wyatt Detention Center — a building. See Gilliland Affidavit ¶¶ 3, 4. A lawsuit pursuant to Bivens simply can not be maintained against a building. Accordingly, plaintiffs claims for a Bivens action should fail, and summary judgement should be entered in favor of the defendants. I so recommend.
D. Cornell Corrections of Rhode Island's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2), (4), and (5)and Fed.R.Civ.P. 4(m).
Cornell Corrections of Rhode Island, Inc., has moved to dismiss this Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (4) and (5) and Rule 4(m). Cornell Corrections of Rhode Island asserts that the plaintiff has failed to serve the named defendants, and accordingly, is entitled to a dismissal because of a lack personal jurisdiction, insufficiency of process, and insufficiency of service of process. However, considering that the plaintiff is pro se, and I ordered the U.S. Marshals Service to serve the defendants, I recommend a denial of the motion on that basis.
IV. Conclusion
Accordingly, for the reasons stated above, I recommend that the complaint be dismissed for want of subject matter jurisdiction and that Cornell Corrections of Rhode Island's motion to dismiss the plaintiffs Complaint be treated as a motion for summary judgment and that the same be granted. I recommend that the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), (4), and (5) and Rule 4(m) be denied. Any objection to this report and recommendation must be specific and must be filed with the clerk of the court within ten days of receipt. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Company, 616 F.2d 603 (1st Cir. 1980).