Virginia Appellate News & Analysis © 2006



The Fourth Circuit has declined to apply the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971) to employees of a hospital at a privately operated prison. The case is Holly v. Scott, and arose at Rivers Correctional Institution in North Carolina. Rivers is operated by a private company, GEO Group, Inc., under a contract with the federal Bureau of Prisons. The district court had denied the motion to dismiss filed by the defendants, who are the warden of the prison and a doctor at the hospital, deciding that the prisoner had asserted a sufficient factual basis for a Bivens action.

The appellate court reverses today, January 12, finding that the tenuous nexus between the defendants and the federal government, based solely on a contract between the Bureau and their employer, is not sufficient to establish government action. The opinion is authored by Judge Wilkinson, joined by Judge Designate Harwell of the District of South Carolina. Judge Motz issues a separate concurring opinion.


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