POLLARD v. THE GEO GROUP, INC

PER CURIAM.

The appellant, Kevin Cook, was convicted of first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975, and was sentenced pursuant to the Habitual Felony Offender Act to life imprisonment. This appeal followed.

The State's evidence tended to show the following: On February 26, 2008, at approximately 9:00 p.m., an individual the victim, S.W., later identified as Cook, came through the front door of her residence, jumped on her as she was sitting on a sofa near the door, and attempted to rip off the T-shirt she was wearing. When Cook was unsuccessful in ripping the T-shirt off he pulled out a knife and tried to cut the shirt off. S.W. testified that while Cook was holding her down he kept repeating that he wanted to "f — her" and "e — her." (R. 188-89.) During the struggle, Cook hit S.W. in the head with a lamp and she struck him with a candleholder. S.W.'s dog also grabbed Cook's pants leg and S.W. began throwing things at Cook. Cook then left through the front door. As he was leaving he said, "`I'll be back after you, you white b —'" and "`I'm not through with you yet.'" (R. 191.) S.W. sustained injures to her head and cuts as a result of the attack.

Cook did not testify at trial. The defense called Dr. Barry Collins, a physician who treated Cook while he was incarcerated at the Talladega County jail. Dr. Collins testified that he was called to the jail on April 3, 2009, to examine Cook because Cook was on suicide watch. He stated that Cook had a history of schizophrenia with bipolar tendencies and that he had been treated for those disorders. Dr. Collins prescribed Thorazine, an antipsychotic; Depakote, a mood stabilizer; Cogentin, for the side effects of the Thorazine; and Prozac for depression because Cook had taken those medications in the past. He stated that if Cook was not taking his medications, he would not know the difference between right or wrong. However, on cross-examination, Dr. Collins testified that, at the time that he evaluated Cook in the jail after the instant offense, he believed that Cook understood right from wrong. When asked if he had any knowledge concerning Cook's mental state at the time of the offense, Dr. Collins testified:

"Given his prior history and that schizophrenia has less than a 13 percent remission rate, I would assume that he would still be schizophrenic based — when I saw him that day that he still displayed flights of ideas being he was schizophrenic on that day, that he had the same mental illness that he's been diagnosed with over the last several years."

(R. 270.) When asked about Cook's actions during the burglary, Dr. Collins said that Cook may have been experiencing a manic episode.

On appeal, Cook raises one issue. He argues that the circuit court erred in denying his pretrial motion for a court-ordered mental evaluation to determine his mental competency at the time of the offense. The State asserts that the trial court did not abuse its discretion in denying Cook's request for a mental evaluation.

Section § 15-16-21, Ala. Code 1975, provides, in pertinent part:

"If any person charged with any felony is held in confinement under indictment and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity. . . ."

Rule 11.2(a)(2), Ala. R.Crim. P., provides:

"Mental Condition at Time of Offense. If the defendant has timely raised a defense of `not guilty by reason of mental disease or defect' either by the entry of a plea or by filing a pre-trial motion pursuant to Rule 15, the court on its own motion may order, or the defendant, the defendant's attorney, or the district attorney may move for an examination into the defendant's mental condition at the time of the offense."

The United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), first recognized that an indigent defendant may be entitled to the assistance of a mental-health expert. The court stated:

[ W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right."

(Emphasis added.) Alabama courts have consistently followed the Ake v. Oklahoma holding:

"[A]n indigent defendant is constitutionally entitled to a psychological expert provided at the State's expense where the defendant demonstrates to the trial court that his or her sanity at the time of the offense could be a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 86, 105 S.Ct. 1087, 1097-98, 84 L.Ed.2d 53 (1985). Where an evaluation by a psychologist or psychiatrist is constitutionally required, such an expert may be appointed under Rule 11.3(a), Ala. R.Crim. P.; Isom v. State, 488 So.2d 12, 13 (Ala.Cr.App. 1986)."

"Before the trial judge suspends the normal course of criminal proceedings and conducts a jury inquiry into the `fact of sanity' there must come to his attention factual data, or allegations of factual data, tending to show `reasonable ground to doubt [the accused's] sanity.'"

At arraignment, Cook entered a plea of not guilty by reason of mental disease or defect, and he requested that he be permitted to undergo a mental evaluation. The circuit court conducted a hearing on the motion. During the hearing, Cook's counsel introduced medical records from the Alabama Department of Corrections. The prison records showed that Cook had received psychotropic medications while incarcerated on a previous offense and that he had a history of "depressed feelings" and "paranoid ideas," as well as "diagnosis [of] schizophrenia, bipolar." (R. 7-8.) The records also showed that Cook was "intellectual functioning borderline[,] memory, borderline." (R. 9.) Trial counsel also stated that Cook had a "history of [taking] psychotropic medication and previous psychiatric hospitalizations." (R. 9.) Counsel stated:

"I don't know if he really understands the — I guess, the gravity of the charges that are against him, but also his mental state at the time that this was committed. I believe that he was on medication up until the time be was released from St. Clair. And once he was out, he was not on any medication."

(R. 10.) Counsel also informed the court that Cook's cousin had told her that he picked Cook up when he was released from St. Clair Correctional Facility, shortly before the burglary, and that he believed that Cook was not taking his medications at that time.

At the conclusion of the hearing, the circuit court informed the parties that it would review the records counsel had introduced at the hearing. Thereafter, the circuit court entered the following order denying the motion for a mental evaluation:

"This matter coming on before the Court on the 26th day of January 2009 based on [Cook's] Motion for Court ordered Mental Examination; the presence of the District Attorney; the presence of counsel for the Defendant; counsel for [Cook] introducing Defendant's Exhibit # 1 containing medical records from the Alabama Department of Corrections and a prior Forensic Evaluation Report dated the 25th of February, 1998; statements made in open court; the Court having taken judicial knowledge of its file; and upon consideration thereof, the Court finds as follows:

"1. [Cook] previously had before the Circuit Court of Talladega County, Alabama Case No. CC-1997-079 for Burglary in the First Degree, and Case No. CC-1997-080 for Attempted Burglary in the Second Degree. These cases were before then Presiding Circuit Judge Jerry Fielding. Judge Fielding ordered a mental evaluation of [Cook] and subsequently received a report that clearly indicated that [Cook] was able to assist his counsel in the defense of these cases and was not suffering from a severe mental disease or defect.

"2. Subsequent to the disposition of the aforesaid two cases before Judge Fielding, [Cook] had a case before the undersigned Circuit Judge and no request was made for a mental evaluation. Subsequent to that case, [Cook] had two felony cases before Judge Fielding and no request was made for a mental examination. Subsequent to those two cases, [Cook] had a felony case before Judge William E. Hollingsworth, III and no request was made for a mental examination.

"3. The Court has reviewed the medical records from the Alabama Department of Corrections that were introduced as Defendant's Exhibit # 1. The Court's review included the prior Forensic Evaluation Report of [Cook]. This Court finds that there are no reasonable grounds for a mental examination of [Cook] and the Motion is due to be denied."

(C. 14-15.) Subsequently, Cook filed a motion for funds for an expert psychologist or psychiatrist and a motion to continue. (C. 17-22.) The case action summary sheet does not indicate that the circuit court formally ruled on those motions; however, it appears that the circuit court believed that it had denied the motions.

Before Cook would be entitled to a mental evaluation to inquire into his competency at the time of the offense, he was required to show reasonable grounds to doubt his competency. See Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. 1087. This standard was met in this case. The record shows that Cook pleaded not guilty by reason of mental disease or defect, that Cook's prison medical records reflected that he had a history of schizophrenia, that he had been treated and was taking medications for that condition while he was incarcerated, and that shortly before the burglary he was released from prison and may not have been taking his medication. "Before the trial judge suspends the normal course of criminal proceedings and conducts a jury inquiry into the `fact of sanity' there must come to his attention factual data, or allegations of factual data, tending to show `reasonable ground to doubt [the accused's] sanity.'" Brinks, 465 F.2d at 450.

The circuit court had sufficient facts before it from which to conclude that there were reasonable grounds to doubt Cook's mental competency at the time of the offense. Indeed, the record shows that Cook's mental health was a significant factor at his trial. The circuit court abused its discretion in denying Cook's motion for a mental evaluation. "[T]he evidence presented to the trial court warranted further inquiry into [the defendant's] mental competence." Ex parte Gordon, 556 So.2d 363, 365 (Ala. 1988). Cook is entitled to a new trial. See Ake v. Oklahoma, 470 U.S. at 87, 105 S.Ct. 1087.

Accordingly, Cook's conviction is hereby reversed and this case is remanded to the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur; MAIN, J., dissents, with opinion.

MAIN, Judge, dissenting.

I respectfully dissent from the per curiam opinion reversing Cook's conviction for first-degree burglary and remanding the case.

Cook was charged by indictment with first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975. Cook argues that the circuit court erred in denying his pretrial motion for a court-ordered mental evaluation to determine his mental competency at the time of the offense. The per curiam opinion has set out the applicable law, and my analysis is in accordance with those legal principles.

In my opinion, Cook did not meet his burden of showing a reasonable ground to doubt his competency at the time that he committed the burglary of S.W.'s residence. His motion for a mental evaluation was supported by medical records from the Alabama Department of Corrections indicating that he had previously received psychiatric treatment for depression, paranoia, and schizophrenia while he was incarcerated as the result of other convictions. However, as for Cook's competency at the time he committed the burglary, Cook's counsel stated that, although she believed Cook could assist with his defense, she believed that Cook did not understand the seriousness of the offense. She also informed the court that Cook's cousin believed that Cook was not taking his medications after his release from St. Clair Corrections. Although Cook's cousin was present during the hearing on the motion, he did not testify. Instead, Cook's counsel informed the court that the cousin's testimony would simply be that he had picked Cook up on his release from St. Clair Correctional Facility and that he believed that Cook was not taking his medications at that time. At the conclusion of the hearing, the circuit court indicated that it would review the records and enter an order, stating as follows:

"THE COURT: Thank you very much. What I'm going to do is I'm going to take it under advisement and peruse these records and determine what's in them. And that's what prompted me to inquire before because of the fact that I know that it's sort of puzzling that he was ordered to Taylor Hardin [Secure Medical Facility] back in the `90s, got a report, after the report came in, he pled guilty to two felonies. And then he's been not only before Judge Fielding subsequent to that, he's been before Judge Hollingsworth and he's been before me, and there's been no indication of any mental disease or defect and three separate judges have found him to be competent and proceeded to take his pleas and sentence him in those particular cases. And I can tell you, if I had felt like in 2001 that he had a severe mental disease or defect and couldn't assist his lawyer when he was before me, it would give me cause and I'm sure it would have done the same thing in front of Judge Hollingsworth and Judge Fielding. And that's why I was interested in seeing whether or not any motions had been filed in those particular cases. And you did a great job getting his records from the Department of Corrections. But I've got to look at them and look back at the report."

(R. 12-13.). Thereafter, as set out in the per curiam opinion, the circuit court fashioned a detailed written order setting out its reasons for denying the request for a court-ordered mental evaluation. (C. 14-15.)

I do not believe that the trial court abused its discretion in denying Cook's request for a mental examination because Cook failed to present evidence at the hearing on the motion generating reasonable grounds to doubt his mental competency at the time of the offense. Further, I do not believe that the sole witness the defense called at trial provided sufficient reasonable grounds as to Cook's mental competency at the time of the offense. Dr. Barry Collins, who evaluated Cook on April 3, 2009, after the offense but before trial, indicated that Cook understood right from wrong when he examined him on that one occasion at the jail. He stated that he had no opinion concerning Cook's mental condition in February 2008, at the time the offense was committed, because he treated Cook only that one time while he was in jail on a suicide watch. During the evaluation, Cook denied having suicidal thoughts and admitted that he cut himself because he wanted to be moved because the cell he was in was too crowded. He stated that Cook may have been in a manic episode when he committed the burglary given Cook's prior diagnosis of schizophrenia with bipolar tendencies. Dr. Collins prescribed antipsychotic medication for Cook in April 2009. However, Dr. Collins indicated that Cook made a decision to cut himself to be removed from his crowded cell before he was medicated, which he stated was a goal-oriented decision on Cook's part.

I believe the circuit court is in a better position than an appellate court to rule on a request for a mental evaluation by virtue of its ability to hear and see the evidence and to observe the defendant. In this case, the only testimony presented at the hearing was Cook's attorney's assertion that Cook did not understand the gravity of the charges against him and that he expected Cook's cousin to testify that he believed that Cook was not taking his medications on the date he was released from prison, which was approximately one month before the burglary occurred.

"[C]ounsel's assertion regarding [a defendant]'s lack of understanding of the proceedings, being unsupported by any evidence, was not sufficient to raise a bona fide doubt as to [the defendant's competency. See, e.g., Nelson v. State, 511 So.2d 225, 238 (Ala.Crim.App. 1986), aff'd, 511 So.2d 248 (Ala. 1987) (`In the absence of any evidence, the mere allegations by counsel that the accused is incompetent to stand trial or was insane at the time of the commission of the offense do not establish reasonable grounds to doubt a defendant's sanity which would warrant an inquiry into his competency.'). See also Frazier v. State, 758 So.2d 577, 587 (Ala.Crim. App.), aff'd, 758 So.2d 611 (Ala. 1999), and Cliff v. State, 518 So.2d 786, 791 (Ala.Crim.App. 1987)."

Therefore, in my opinion, Cook failed to meet his burden of persuasion on this matter. Accordingly, I would hold that the circuit court did not abuse its discretion in denying Cook's motion for a court-ordered mental evaluation to determine his mental competency at the time of the offense. Thus, I would affirm.

RESTANI, Judge, concurring in part and dissenting in part:

I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against such employees where adequate state law remedies exist. Until now, the federal circuits that have addressed the issue have held correctly that a prisoner may not maintain such an action. See Alba v. Montford, 517 F.3d 1249 (11th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 632, 172 L.Ed.2d 619 (2008); Holly v. Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168, 126 S.Ct. 2333, 164 L.Ed.2d 849 (2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and aff'd by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam), cert. denied, 549 U.S. 1056, 127 S.Ct. 664, 166 L.Ed.2d 521 (2006) and 549 U.S. 1063, 127 S.Ct. 687, 166 L.Ed.2d 534 (2006). The evolution of the U.S. Supreme Court's Bivens jurisprudence confirms that this Court should follow their lead.

The majority overlooks the reality that the Supreme Court has recognized Bivens causes of action only where federal officials, by virtue of their position, enjoy impunity, if not immunity, from damages liability because of gaps or exemptions in statutes or in the common law. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). In Bivens, the Supreme Court recognized an implied cause of action for damages under the Fourth Amendment against federal agents who illegally searched the plaintiffs home and arrested him. 403 U.S. at 389, 397, 91 S.Ct. 1999. The Court acknowledged that a trespass tort action, which requires resistance that the plaintiff could not lawfully exert against federal agents, was unlikely to succeed because the agents obtained permission to enter the home. Id. at 394-95, 91 S.Ct. 1999.

The Supreme Court has only extended Bivens twice, "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 unconstitutional conduct." Malesko, 534 U.S. at 70, 122 S.Ct. 515. First, the Court recognized a Bivens action under the equal protection component of the Fifth Amendment Due Process Clause against a former Congressman who had fired one of his employees based on her sex, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), because the employee "lacked any other remedy for the alleged constitutional deprivation," Malesko, 534 U.S. at 67, 122 S.Ct. 515. As the statute protecting federal employees from sex based discrimination, 42 U.S.C. § 2000e-16(a), does not extend to such congressional employees, and the employee did not have any cause of action under state law, "there [were] available no other alternative forms of judicial relief." Davis, 442 U.S. at 245 n. 23, 247, 99 S.Ct. 2264. Davis, like Bivens, involved "a plaintiff in search of a remedy." Malesko, 534 U.S. at 74, 122 S.Ct. 515; see Dams, 442 U.S. at 245, 99 S.Ct. 2264 ("For Davis, as for Bivens, it is damages or nothing." (internal quotation marks and citation omitted)). In both cases, "the plaintiffs' injuries would have gone entirely unredressed without an implied constitutional remedy." Holly, 434 F.3d at 295.

Second, the Supreme Court held that a prisoner could bring a Bivens action under the Cruel and Unusual Punishments Clause of the Eighth Amendment against federal prison officials because the prisoner's only alternative remedy was a claim under the Federal Tort Claims Act ("FTCA") against the United States. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Although the FTCA applies only in instances where a private person would be liable under state law, 28 U.S.C. § 1346(b)(1), it precluded state tort actions against the individual federal officers, Holly, 434 F.3d at 296; see 28 U.S.C. 19718 § 2679(b)(1). Reasoning that actions against the United States under the FTCA would not sufficiently deter unconstitutional acts by individuals, the Court recognized a Bivens action "to provide an otherwise nonexistent cause of action against [the individuals]." Malesko, 534 U.S. at 70, 122 S.Ct. 515; see also id. at 74, 122 S.Ct. 515 (noting that the prisoner in Carlson sought "a cause of action against an individual officer, otherwise lacking").

Thus, the Supreme Court has recognized Bivens claims only "for want of other means of vindication," as " Davis had no other remedy, Bivens himself was not thought to have an effective one, and in Carlson the plaintiff had none against Government officials." Wilkie v. Bobbins, 551 U.S. 537, 555, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). As the majority notes, the Court has set forth two-step test to determine whether to recognize new Bivens actions:

In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: "the federal courts must make the kind of remedial determination that is appropriate for a commonlaw tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation."

Here, ordinary state tort remedies for negligence or medical negligence against the GEO employees are an adequate, alternative, existing process for protecting Pollard's interest. Where, as here, the plaintiff has an alternative remedy against a federal official alleged to have acted un-constitutionally, the Supreme Court has "consistently rejected invitations to extend Bivens." Malesko, 534 U.S. at 70, 122 S.Ct. 515. Unlike Bivens, in which alternative state tort remedies were inadequate because the plaintiffs lack of resistance to the federal agents foreclosed a trespass action, Pollard's "claim of negligence or deliberate indifference requires no resistance to official action." Id. at 74, 122 S.Ct. 515. Additionally, employees of private prison corporations do not enjoy impunity or immunity as to damages because of gaps or exemptions in statutes or in the common law.

In fact, as the majority concedes, tort remedies for negligence and medical negligence may be even more easily obtained than remedies under Bivens for an Eighth Amendment violation "because the heightened `deliberate indifference' standard of Eighth Amendment liability would make it considerably more difficult for [a plaintiff] to prevail than on a theory of ordinary negligence." Malesko, 534 U.S. at 73, 122 S.Ct. 515 (citations omitted). Thus, Pollard does not lack effective remedies because his "alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens" Id. at 72, 122 S.Ct. 515. The state tort remedies for negligence or medical negligence are therefore a more than adequate alternative, existing process for protecting Pollard's interest. See id. at 72-74, 122 S.Ct. 515 (declining to recognize a Bivens action under the Eighth Amendment where the plaintiff had alternative remedies under state tort law for negligence and remedial mechanisms established by the Bureau of Prisons ("BOP")).

The availability of a superior alternative remedy is a convincing reason for the Judicial Branch to refrain from providing a new, freestanding damages remedy. See Holly, 434 F.3d at 295. Courts are reluctant to recognize new Bivens actions, which are implied without any Congressional authority, because" `a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.'" Id. at 289 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 727, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)); see also Malesko, 534 U.S. at 67 n. 3, 122 S.Ct. 515 ("[W]e have retreated from our previous willingness to imply a cause of action where Congress has not provided one."). Rather, "[s]o long as the plaintiff ha[s] an avenue for some redress, bedrock principles of separation of powers forecloset[] judicial imposition of a new substantive liability." Malesko, 534 U.S. at 69, 122 S.Ct. 515. "The dangers of overreaching in the creation of judicial remedies are particularly acute where such remedies are unnecessary." Holly, 434 F.3d at 295. Because a Bivens action is unnecessary against the employees of a private prison corporation, we should not recognize such an action.

The majority's conclusion that the avail-ability of state remedies is not a convincing reason for the judiciary to refrain from recognizing a Bivens remedy is based on the faulty premises that remedies that preclude Bivens must (1) be crafted by Congress and (2) "appl[y] uniformly throughout the republic." Castaneda v. United States, 546 F.3d 682, 701 (9th Cir. 2008), rev'd on other grounds sub nom. Hui v. Castaneda, ___ U.S. ___, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010). The first is wrong because the Supreme Court actually has considered remedies not crafted by Congress, and Malesko itself is one instance in which the Court declined to recognize a Bivens action because of state remedies. The second is wrong because the need for uniformity is not particularly compelling where the persons who harmed the plaintiff are private employees of a private entity.

A. The Supreme Court has declined to recognize a Bivens action because of state remedies.

Recent Supreme Court precedent makes clear that a state tort remedy may be an alternative, existing process that precludes recognition of a Bivens action. In Malesko, the Court "considered] availability of state tort remedies in refusing to recognize a Bivens remedy." Wilkie, 551 U.S. at 551, 127 S.Ct. 2588. The Court also has "rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court." Malesko, 534 U.S. at 69, 122 S.Ct. 515. Thus, an alternative remedy need not be a federal remedy. See id.; Alba, 517 F.3d at 1254.

There is some tension between Malesko and other recent Supreme Court cases, and Carlson, which suggested that the only kind of alternative remedy that could defeat a Bivens claim was one provided by Congress "which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson, 446 U.S. at 18-19, 100 S.Ct. 1468; see also Peoples, 422 F.3d at 1097, 1102 (noting that recent cases suggest that Bivens is presumptively unavailable, whereas Carlson suggested that a Bivens claim is presumptively available). The tension, however, can be resolved by understanding the Carlson formulation as a "test for express Bivens preemption" by a statute. Castaneda, 546 F.3d at 689, rev'd on other grounds, ___ U.S. ___, 130 S.Ct. 1845, 176 L.Ed.2d 703. Malesko, which did not involve any statute, did not discuss this test. The Supreme Court has determined that alternative remedies that are not expressly authorized by Congress and are not an equally effective substitute nonetheless may preclude a Bivens remedy. See Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). More recently, in a case in which express statutory preemption was not at issue, the Supreme Court has stated that it will not recognize a new Bivens action if " any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain." Wilkie, 551 U.S. at 550, 127 S.Ct. 2588 (emphasis added). Finally, even if Carlson and Malesko are truly irreconcilable, we should follow the most recent Supreme Court precedent, Malesko. Holly, 434 F.3d at 303 (Motz, J., concurring in the judgment); Peoples, 422 F.3d at 1102.

The majority's statement that in Wilkie, the existence of an alternative state remedy alone was not sufficient to preclude a Bivens action, Maj. Op. at 861, is misleading. Rather, in Wilkie, the Supreme Court considered that the plaintiff had "an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints" for torts, improper criminal charges, unfavorable agency actions, and other offensive behavior by the Bureau of Land Management. 551 U.S. at 551, 553, 127 S.Ct. 2588. The Court, however, found that the plaintiff functionally did not have a remedy for his true complaint regarding the agency's course of dealing as a whole because "the forums of defense and redress open to [the plaintiff] are a patchwork, an assemblage of state and federal, administrative and judicial benches applying regulations, statutes and common law rules." Id. at 554-55,127 S.Ct. 2588. It is too much of a stretch to infer, as the majority does, that if the plaintiff had merely complained of one or more torts, the Court would have reached the same result. To the contrary, the Court noted that "when the incidents are examined one by one, [the plaintif[s] situation does not call for creating a constitutional cause of action for want of other means of vindication." Id. at 555, 127 S.Ct. 2588. Further, the Wilkie Court concluded that, even where the remedies available are a patchwork, the need for a Bivens remedy is not particularly compelling, as "[i]t would be hard to infer that Congress expected the Judiciary to stay its Bivens hand, but equally hard to extract any clear lesson that Bivens ought to spawn a new claim." Id. at 554, 127 S.Ct. 2588.

Uniformity of liability is sometimes important to a Bivens analysis. In Carlson, the Supreme Court stated that "the liability of federal officials for violations of citizens' constitutional rights should be governed by uniform rules" and that "[t]he question whether [an] action for violations by federal officials of federal constitutional rights should be left to the vagaries of the laws of the several States admits of only a negative answer in the absence of a contrary congressional resolution." Carlson, 446 U.S. at 23, 100 S.Ct. 1468. Specifically, the Court concluded that a uniform federal rule of survivorship for Eighth Amendment Bivens claims was necessary where one state's law would permit survival of the claims but another would not. Id. at 23-24, 100 S.Ct. 1468. Essentially, state law previously had dictated whether the prisoner's claim died with him.

Here, however, the need for uniformity of rules is much less compelling. First, although employees of a private corporation operating a federal prison may be government actors, they are not federal officials and do not have the same immunities as federal officials. Second, ordinary negligence and medical negligence causes of action are already universally available against employees of a private corporation operating a federal prison, and the elements of such common law-derived causes of action are fundamentally the same in every state.

Unlike in Carlson, no individual state law forecloses or extinguishes such actions altogether, although many states have en-acted various procedural hurdles and limits on non-economic damages in medical malpractice suits. Castaneda, 546 F.3d at 690-91, rev'd on other grounds, ___ U.S. ___, 130 S.Ct. 1845, 176 L.Ed.2d 703. The majority points to the differences between the California and Oregon statutes of limitations and the fact that Pollard's medical malpractice claim would be subject to a non-economic damages cap under California law but not under Oregon law. Maj. Op. at 862-63. These differences, however, should not be determinative, as an alternative remedy need not provide complete relief for the plaintiff. See Bush, 462 U.S. at 388, 103 S.Ct. 2404. Rather, as the Eleventh Circuit has held, "[t]hat state procedural rules complicate the filing of a lawsuit does not mean that a plaintiff lacks any alternative remedy for harms caused by an individual officer's unconstitutional conduct," and procedural hurdles in filing a state action do not "render state relief unavailable in the same vein in which the Supreme Court held it to be unavailable in Bivens." Alba, 517 F.3d at 1255 (internal quotation marks and citation omitted); see also Peoples, 422 F.3d at 1104-05 (stating that Supreme Court precedents do not mandate recognition of a Bivens action "simply because an alternative state law claim may be subject to a punitive damages cap to which a federal claim is not").

The availability of an adequate alternative remedy should end the analysis. The court need not look at other special factors, such as whether extending the cause of action would: (1) be feasible, (2) serve Bivens's deterrence goals, or (3) impose asymmetric liability costs. In any event, these factors do counsel hesitation here and certainly do not counsel in favor of recognizing a new Bivens action, as the majority suggests.

First, although a Bivens action under the Eighth Amendment for prisoners is a workable cause of action that is recognized already, allowing a Bivens action to go forward only where a plaintiff would otherwise have no alternative remedy is not unduly complicated. Rather, the Supreme Court appears to prefer case-by-case determinations of whether adequate alternative remedies exist to a blanket determination that Bivens is available to an entire class of plaintiffs. See Wilkie, 551 U.S. at 550, 554, 127 S.Ct. 2588 (stating that the first step of the Bivens analysis involves determining "whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages" and that the next step involves "weighing reasons for and against the creation of a new cause of action, the way common law judges have always done"). Thus, the Supreme Court has invited federal courts to determine whether an alleged Eighth Amendment violation has a state law analogue and apply Bivens only if there is no such state analogue.

Further, the current system of determining whether a state analogue exists is easy to administer because there is unlikely to be an instance in which an Eighth Amendment violation by a private prison employee is not a tort. An Eighth Amendment violation requires a" `sufficiently serious'" condition and "`deliberate indifference' to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Tort law similarly imposes a duty of care on jailers or prison employees to protect the life and health of prisoners in their custody and protect the prisoners from foreseeable harm or unreasonable risk of physical harm. See, e.g., Giraldo v. Dep't of Corr. Rehab., 168 Cal.App.4th 231, 85 Cal. Rptr.3d 371, 382-87 (2008); Restatement (Second) of Torts § 314A(1)(a), (4), illus. 6 (1965). Breach of this duty may give rise to a negligence claim. See Giraldo, 85 Cal.Rptr.3d at 390.

The majority does not contend that the acts alleged here fall into the category of acts that violate the Eighth Amendment but are not covered by state tort law, and that is not the case. California, Oregon, and every other state recognize the torts of negligence and medical negligence. The tort of negligence also covers Pollard's allegation that the prison employees deprived him of food while his arms were in casts, as numerous cases recognize that the keeper of a jail has a common law duty to provide prisoners with food. See, e.g., Farmer v. State ex rel. Russell, 224 Miss. 96, 79 So.2d 528 (1955); Richardson v. CapweU, 63 Utah 616, 176 P. 205, 208 (1918); Dabney v. Taliaferro, 25 Va. (4 Rand.) 256 (1826).

There is no reason to think that either federal preemption or the government contractor defense, which the majority mentions, is applicable here. No federal law expressly or impliedly preempts or directly conflicts with a state tort of negligence or medical malpractice here, and federal law does not occupy the field governing private corrections employees' actions. The government contractor defense is not likely to apply because there is no indication that the United States directed the GEO employees' treatment of Pollard. See Malesko, 534 U.S. at 74 n. 6, 122 S.Ct. 515 (noting that "[t]he record here would provide no basis for such a defense," which is available when "the government has directed a contractor to do the very thing that is the subject of the claim").

Because the conduct at issue here certainly is covered by state tort law, the other examples the majority posits that may violate the Eighth Amendment of the Constitution but may not be covered by tort law are inapposite. In any event, I am not convinced that any of these acts — denying a prisoner access to a toilet and thus exposing the prisoner to human waste for thirtysix hours, depriving a prisoner of basic necessities, completely depriving a prisoner of outdoor exercise for a period of years, and exposing a prisoner to other unhygienic conditions — would not be covered by tort law. Rather, each act involves a clear breach of the duty of reasonable care and would unreasonably jeopardize a prisoner's health. See Irabor v. Perry County Corr. Ctr., No. 06-0483-BH-C, 2008 WL 1929965, at *2-3 (S.D.Ala. Apr.30, 2008) (holding that a plaintiff had adequate state tort remedies available to redress the denial of "basic necessities such as socks, toilet paper, and soap"); Miller v. Owsley, 422 S.W.2d 39, 43 (Mo. 1967) (recognizing that a police officer fails to act with due care if the officer confines a prisoner in an unfit and unsanitary place); Richardson, 176 P. at 208 (stating that the keeper of a jail has a common law duty to keep the jail warm and sanitary); Dabney, 25 Va. (4 Rand.) 256 (holding that under common law, a jailor has a duty to provide a prisoner with necessary supplies, such as fuel for heat and bed covering); see generally M.L. Schellenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353, § 9.

Second, as the majority recognizes, state tort liability deters private prison officials from wrongdoing and may even provide more relief for Pollard than the Eighth Amendment would because the deliberate indifference standard for Eighth Amendment claims creates a high bar to hurdle. Maj. Op. at 866-67. This undermines the deterrence analysis. Because "[t]he purpose of Bivens is to deter individual federal officers from committing constitutional violations," Malesko, 534 U.S. at 70, 122 S.Ct. 515, the purpose of Bivens is not served where, as here, state law already allows for compensatory and punitive damages for the same conduct, Peoples, 422 F.3d at 1105. In such an instance, a Bivens action is unnecessary. See id. Further, it is difficult to see how potential procedural differences in state laws or between the state and federal law would figure into deterrence as a practical matter. As discussed supra, the court should hesitate to create an unnecessary judicial remedy. See Holly, 434 F.3d at 295.

Finally, declining to recognize a Bivens action here would avoid the concerns that the Supreme Court has expressed about imposing asymmetrical liability costs. See Malesko, 534 U.S. at 72, 122 S.Ct. 515. Although declining to recognize a Bivens action would perpetuate an existing publicprivate asymmetry because Bivens actions are permitted against federal prison employees but not private prison employees, declining to create a Bivens action would not " impose costs on one wrongdoer and not another." Peoples, 422 F.3d at 1103 (emphasis added). By contrast, recognizing that a plaintiff may pursue both a Bivens action and a tort action against private prison employees may impose asymmetrical liability costs, as a plaintiff currently may assert tort claims against private prison employees, while Bivens actions allow for recovery from federal employees where the FTCA otherwise bars tort claims against them. See Malesko, 534 U.S. at 72-73, 122 S.Ct. 515 (noting that "federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in government facilities"); see also Peoples, 422 F.3d at 1103. Indeed, as the majority notes, plaintiffs may be able to recover from private prison employees more often than from federal prison employees because private prison employees may not be entitled to qualified immunity. See Richardson v. McKnight, 521 U.S. 399, 401, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997).

I would join with other circuits in concluding that a Bivens cause of action is not available against employees of privatelyrun prison corporations where, as here, state tort laws provide a remedy. Accordingly, I respectfully dissent in part.