New opinion: Third Circuit deeply skeptical that private prison staff can’t be sued as federal actors

This opinion issued yesterday. I’m posting this the day after because yesterday my wife had surgery to repair the collarbone she broke in a mountain biking crash (she’s the tough one in the family) and caretaking precluded blogging.

Davis v. Samuels, Jr.—prisoner rights—partial reversal—Jordan

A man confined in a private prison that holds foreign nationals facing deportation sued the prison after it denied his request to let him get married. His suit raised several claims, all of which the district court dismissed. Yesterday the Third Circuit reversed in part.

[Disclosure: I provided some assistance to the appellant’s counsel in preparing for oral argument.]

One claim sought money damages under Bivens for violation of his right to marry. The district court dismissed that claim on the theory that the private prison administrators were not federal actors, despite acting under contract with the federal government. The Third Circuit expressed “deep[] skepticism” about that reasoning, but affirmed dismissal on the alternative ground that Bivens shouldn’t be extended to right-to-marry claims.

Another claim alleged a conspiracy to discriminate per 42 USC § 1983(3). The district court dismissed the 1983 claim applying the standard that applies to conspiracies by private actors, but the Third Circuit held that it was error to apply that standard to an alleged conspiracy involving both private and governmental actors.

The district court also dismissed various claims against governmental defendants, sua sponte, for failure to serve them, without considering whether to extend the time for service. The Third Circuit vacated that ruling as an abuse of discretion.

The appellants raised various other claims which the district court dismissed where the Third Circuit affirmed, including a 1983 claim for lack of state rather than federal action and 1981 and 2000d claims for lack of plausible allegations of national-origin discrimination.

Joining Jordan were Restrepo and Greenberg. Arguing counsel were Stephen Fogdall of Schnader Harrison for the would-be marriers and Laura Irwin of the WDPA US Attorney’s office and Thomas Specht of Marshall Dennehy for the defendants.