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A private corporation running a prison halfway house under color of federal law may be sued for violating an inmate’s constitutional rights, the 2nd U.S. Circuit Court of Appeals has ruled. In a case of first impression, the court found in Malesko v. Correctional Services Corporation, 99-7995, that a prisoner in a corporate-run halfway house had stated a cause of action against the company under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, (1971). Under Bivens, a plaintiff can hold individual federal agents liable for violations of constitutional rights. The case before the panel involved John E. Malesko, who was convicted of securities fraud in 1992, sentenced to prison, and after being diagnosed with a heart condition, was transferred to the Le Marquis Community Corrections Center, a New York City halfway house operated for the federal government by the Correctional Services Corporation (CSC). CSC’s policy in the multi-story facility was that no resident was to use the elevator if they lived below the sixth floor. In 1994, after Malesko was prevented by an employee from using the elevator to travel to his fifth-floor room, he suffered a heart attack, fell down the stairs and injured himself. Malesko, who also claimed that the CSC failed to replenish his heart medication in the 10 days leading up to the heart attack, filed a complaint in New York Southern District Court listing as defendants CSC and 10 “unknown” John Does. Judge John S. Martin, Jr. treated the complaint as raising claims under Bivens. Martin dismissed the complaint against the CSC saying that a Bivens action may only be maintained against an individual, and that the CSC was shielded from liability because the company had “contracted with the federal government to carry out a project on behalf of the government.” On the appeal, 2nd Circuit Judge Sonia Sotomayor said: “Reviewing this question de novo, we now hold that a private corporation acting under color of federal law may be subject to a Bivens claim.” “Although deterring wrongdoing by individuals is an important goal of Bivens liability, we find an extension of such liability to be warranted even absent a substantial deterrent in order to accomplish the more important Bivens goal of providing a remedy for constitutional violations,” Sotomayor said. She noted that, in any event, the court was unconvinced that “allowing Bivens claims against private corporations would undermine the deterrence purpose of Bivens.” Sotomayor also said that “even assuming a plaintiff would decline to sue the offending employee and sue only the employer, we believe that an employer facing exposure to such liability would be motivated to prevent unlawful acts by its employees.” Sotomayor said that in so ruling, the 2nd Circuit was joining four other circuit courts in finding that Bivens applies to private companies acting under color of federal law. She also said the court was “influenced strongly” by the fact that “Bivens claims and Section 1983 actions are treated as analogous for most purposes.” “The Supreme Court has made it clear that private corporations engaging in state action may be sued under Section 1983,” she said. “We see no reason not to incorporate that law into the Bivens context and permit suits against private corporations engaging in federal action. Moreover, we find that extending Bivens liability to reach private corporations furthers Bivens’ overriding purpose: providing redress for violations of constitutional rights.” The 2nd Circuit, however, dismissed Bivens claims against the individual Doe defendants as untimely. Judge Rosemary S. Pooler joined in the decision. Steven Pasternak, of Pasternak, Feldman & Plutnick in Livingston, N.J., represented Malesko. George P. Stasiuk and George F. Brenlla, of Clifton Budd & DeMario, represented the Correctional Services Corporation.

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