Full opinion text
Order; Dissent to Order by Judge BEA; Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge RESTANI. ORDER The majority opinion is amended as follows: 1. At slip op. 8168, n.15, [607 F.3d at 597 n. 15], the final sentence of the footnote is amended to read: < Furthermore, as discussed above, Malesko also relied on the fact that the plaintiff was not seeking recovery against an individual officer. See id. at 73-74, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456. > 2. At slip op. 8177, [607 F.3d at 602], the following sentence < Unfortunately, under the current Bivens regime, asymmetries will remain irrespective of whether we recognize or deny a Bivens cause of action here.> is amended to read: < Unfortunately, under the current Bivens regime, asymmetries may remain irrespective of whether we recognize or deny a Bivens cause of action here.> 3. At slip op. 8177, [607 F.3d at 602], the paragraph beginning < Unlike officers employed ... > is amended to read: < Unlike officers employed by public prisons, the GEO employees may not be entitled to qualified immunity, and as a result, prisoners asserting claims against them may be able to recover more often than their counterparts in governmentally run prisons. Compare Richardson, 521 U.S. at 401, 117 S.Ct. 2100 (holding that employees of privately operated state prisons are not entitled to qualified immunity), with Butz v. Economou, 438 U.S. 478, 501, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (holding that “federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers” (emphases removed)), and Holly, 434 F.3d at 294 (stating that employees of privately operated federal prisons are not entitled to qualified immunity). We need not decide the issue of qualified immunity here.> The dissenting opinion is amended as follows: At slip op. 8191, [607 F.3d at 611], in the last textual sentence before the Conclusion, the phrase <are not entitled to qualified immunity> is amended to read: <may not be entitled to qualified immunity> The amended opinion and amended dissent are filed concurrently with this order. With those amendments, Judges Hug and Paez voted to deny the petition for panel rehearing. Judge Restani voted to grant the petition for panel rehearing. The petition for panel rehearing is DENIED. Judge Paez voted to deny the petition for rehearing en banc and Judge Hug so recommended. Judge Restani recommended that the petition for rehearing en banc be granted. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35. The petition for rehearing en banc is DENIED.
BEA, Circuit Judge, dissenting from the denial of rehearing en banc, joined by KOZINSKI, Chief Judge, and O’SCANNLAIN, GOULD, TALLMAN, CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges: The panel majority — over a vigorous dissent by Chief Judge Restani of the Court of International Trade — extends and grants a Bivens claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees. It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh. Further, it disregards the Supreme Court’s narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. Because such an unprecedented opinion demands further review, I respectfully dissent from the denial of rehearing en banc. I. The panel majority erred in unjustifiably recognizing a new Bivens action where adequate, and arguably superior, state remedies exist. In its forty-year Bivens history, the Supreme Court has never provided a Bivens claim for relief to a person who — like the plaintiff in this case, Richard Lee Pollard — had adequate state tort remedies. In its most recent consideration of whether to extend Bivens, the Court distilled four decades of jurisprudence into a two-part test: [T]he decision whether to recognize a Bivens remedy may require two steps. 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 common-law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation. Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (emphasis added) (citation and internal quotation marks omitted). A look at the three cases in which the Supreme Court has allowed a Bivens recovery reveals the emphasis the Court, and in turn, our sister circuits, have placed on the requirement that there be a lack of alternative state common law or statutory remedies. The Court has recognized two, and only two, contexts that permit recovery under Bivens: “to provide an otherwise nonexistent cause of action against individual [federal] 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 [federal] officer’s unconstitutional conduct.” Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Neither circumstance is present in this case. In Bivens, the Court created an implied cause of action for the homeowner for a warrantless, but consensual, entry and a nonconsensual search of his apartment, in violation of his Fourth Amendment rights. The drug agents’ alleged conduct was egregious; they manacled the plaintiff in front of his wife and children, searched his entire apartment, and threatened to arrest his entire family. Bivens, 403 U.S. at 389, 91 S.Ct. 1999. However, the Court noted that, since Bivens consented to the federal agents entering his home, his act precluded a state tort claim for trespass. Id. at 394, 91 S.Ct. 1999. Thus, absent a right of action implied by the Court from the Constitution, Bivens would have had no means by which to vindicate his Fourth Amendment rights against unreasonable searches and seizures by recovery of damages, and through recovery of damages to deter the individual officers from engaging in such egregious conduct in the future. Next, in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court created an implied cause of action under the Fifth Amendment for a female office worker who alleged gender discrimination while working for Congressman Otto Passman of Louisiana. The Court noted that the plaintiff had no cause of action under Louisiana law for gender discrimination, and because the defendant was no longer in office, injunctive relief against the ex-Congressman would have been futile. Id. at 245, 99 S.Ct. 2264. Given the need for “an otherwise nonexistent cause of action,” Malesko, 534 U.S. at 70, 122 S.Ct. 515, the Court created an implied cause of action for monetary relief. Davis, 442 U.S. at 248, 99 S.Ct. 2264. The last, and most recent, application of Bivens liability before the Court occurred thirty years ago in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). In Carlson, the administratrix of the estate of a deceased federal prisoner brought an action alleging that prison officials had violated the prisoner’s Eighth Amendment rights by exhibiting deliberate indifference to the prisoner’s serious medical needs — precisely the claims made here by Pollard. The prisoner was alleged to have died as a result. Under Indiana’s tort law, the prisoner’s cause of action for his pain and suffering did not survive his death. Hence, the administratrix had no legally protected interest to be harmed, and thus, no standing to sue on behalf of decedent’s estate. In light of the deterrence rationale in Bivens, the Court found an implied cause of action, which provided the only avenue to vindicate the decedent’s rights to damages against the individual tortfeasors. Id. at 23, 100 S.Ct. 1468. The facts of these cases show how marked a departure is the panel majority’s opinion from established precedent. Unlike Bivens, Davis, and Carlson, where the plaintiffs had no existing cause of action and no alternative state remedy, Pollard has a viable suit in state court against each of the jailor defendants under theories of intentional or negligent tort or medical malpractice. California law imposes an affirmative duty of care on jailers: One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of his normal opportunities for protection is under ... a duty to take reasonable action to protect them against unreasonable risk of physical harm. Rest. (2d) Torts § 314A, see also Delgado v. Trax Bar & Grill, 36 Cal.4th 224, 30 Cal.Rptr.3d 145, 113 P.3d 1159, 1165 n. 14 (2005) (citing provision with approval). To recover compensatory damages under California law, Pollard need prove only the individual defendants breached this affirmative duty, and that the breach caused him physical or emotional harm. Additionally, punitive damages are available in an ordinary negligence or medical malpractice action where plaintiff proves defendant acted with “malice” or “extreme indifference to the plaintiffs rights.” Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., 185 Cal.App.3d 1149, 230 Cal.Rptr. 276, 278-79 (1986). In at least one respect, Pollard’s remedy under state law against both jailers and doctors is actually superior to any presumed action he would have under Bivens. A Bivens plaintiff must prove the defendants acted with “deliberate indifference.” Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). But, in a negligence claim, a plaintiff need establish only that the jailers breached their affirmative duty of providing reasonable care. Thus, unlike the few cases in which the Court has recognized a Bivens action, Pollard already has a state forum in which to remedy the alleged unconstitutional conduct — with a lesser showing of culpability required, no less. Bivens claims were created for the situation in which the plaintiff had no other means of vindicating his constitutional rights in either state or federal court; that policy concern simply does not apply to a case, such as here, where adequate state tort remedies exist. The panel majority invokes the abstract claim of “lack of uniformity” as a reason to support its assertion that the existence of state tort remedies cannot, on its own, preclude recognition of a new Bivens action. But “lack of uniformity” has been a significant part of the Court’s analysis only when the plaintiff has shown that he is barred from bringing suit for the alleged constitutional violation in one or more statgjj. In Carlson, the plaintiff could not bring her claim because Indiana’s survivorship law did not provide her standing to sue for violations of her husband’s rights. Because other states allowed survivor claims, there was no actual uniformity unless the Court created a federal cause of action. Carlson, 446 U.S. at 25, 100 S.Ct. 1468. In Bivens, lack of uniformity — mentioned explicitly only in Justice Harlan’s concurrence — was relevant only because the plaintiff had showed that, since he had consented to the agents’ entrance into his apartment, he had no cause of action under state law. Bivens, 403 U.S. at 394, 91 S.Ct. 1999. Davis did not even address the lack of uniformity claim because the case dealt with the quintessential Bivens scenario: there was no existing cause of action, under either federal statutory or state law, for the alleged constitutional violation. Qualms about “lack of uniformity” are irrelevant where, as here, the plaintiff has an adequate, and arguably superior, tort claim under state law. The plaintiff has not shown — because he cannot — that there is any state which does not provide recovery for that most fundamental tort claim, in which one person’s negligent conduct causes physical and/or emotional harm to another. Perhaps the states, as “laboratories of democracy,” Landell v. Sorrell, 406 F.3d 159, 178 (2d Cir.2005) (Jacobs, J., dissenting from the denial of rehearing en banc), have adopted slightly different recovery caps or procedural rules, but the essence of the negligent tort claim existed as trespass on the case at common law when the forms of action were in full bloom, and exists today in all fifty states. As such, the panel’s lack of uniformity preoccupation is as imagined as is any legal support for its assertion that state law remedies cannot, on their own, preclude recognition of a Bivens action. II. The panel majority creates an irreconcilable circuit split with the Fourth and Eleventh Circuits, which correctly held that Bivens does not apply where adequate state remedies exist. The panel majority’s decision, by its own admission, creates a circuit split with the two courts of appeals which held, on indistinguishable facts, that alternative state remedies are sufficient, on their own, to preclude recognition of a new Bivens claim. In Alba v. Montford, 517 F.3d 1249 (11th Cir.2008), the Eleventh Circuit refused to recognize a Bivens action brought by a federal prisoner incarcerated in a privately-operated correctional facility against prison employees for deliberate indifference to his medical needs in violation of the Eighth Amendment. The court affirmed the district court’s 12(b)(6) dismissal on the ground that alternative remedies (state law negligence and medical malpractice claims) existed by which the prisoner could recover from the employees. Id. at 1254. In Holly v. Scott, 434 F.3d 287 (4th Cir.2006), the Fourth Circuit refused to recognize a Bivens action for a federal prisoner suing individual employees of a privately-operated prison — the very company which is a defendant-appellant here — for alleged violation of his Eighth Amendment rights in failing to provide him with adequate medical care for his diabetes. The Fourth Circuit held that Bivens did not recognize an implied right of action for an inmate who had an adequate, and arguably superior, remedy under the state law of negligence. Id. at 295. The facts of Alba and Holly are so similar to this case that the panel majority does not even try to distinguish them. These cases dealt with federal prisoners held in privately-run prisons, who alleged violations of the Eighth Amendment because of inadequate medical care, brought suit against the individual employees, and had alternative state tort claims (under negligence and medical malpractice) under which they could recover. Commendably, the panel majority simply admits that its holding with regard to alternative remedies “conflicts with both Holly and the Eleventh Circuit’s holding in Alba.” Pollard v. The GEO Group, Inc., 607 F.3d 583, 588 (9th Cir.2010). The panel’s explanation for this disagreement reduces to a policy judgment that plaintiffs in this situation should have another forum in which to pursue these claims even though an adequate state remedy exists. Whatever may be the merits of that policy judgment, it is for Congress, not for us, to make. III. Conclusion For the first time in this country’s history, this court has created a “freestanding” federal cause of action against private company employees where adequate, and arguably superior, state remedies are available. As the panel majority contends, it is conceivable that there could be some constitutional violations for which there are no existing, alternative remedies under state tort law. If Bivens has any remaining vitality, those are the types of cases to which it was meant to apply. But 1^is is demonstrably not one of those cases. Pollard has adequate, alternative state remedies through which he can vindicate his constitutional rights. By recognizing an implied cause of action in this instance, the panel extends Bivens far beyond its carefully prescribed contours and places this circuit in direct conflict with each of the other circuits to address the issue. To my mind, such a remarkable opinion merited a second look en banc. I must dissent. OPINION PAEZ, Circuit Judge: Plaintiff-Appellant Richard Lee Pollard, a federal inmate, appeals the district court’s order dismissing his Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons. This appeal presents the question of whether the implied damages action first recognized in 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), allows a federal prisoner to recover for violations of his constitutional rights by employees of private corporations operating federal prisons. We conclude that it does. I. BACKGROUND The GEO Group, Inc. (GEO), under contract with the federal Bureau of Prisons (BOP), has operated the Taft Correctional Institution (TCI) since December 1997. Pollard is a federal inmate who, in 2001 and 2002, was incarcerated at TCI. During his imprisonment, Pollard slipped on a cart left in a doorway and had to be seen by the prison’s medical staff. He was x-rayed, diagnosed with possible fractures of both elbows, and placed in a bilateral sling. He was then referred to an orthopedic clinic outside the prison. Before transporting Pollard to the clinic, a GEO employee directed him to don a jumpsuit. Pollard told the employee that putting his arms through the sleeves of the jumpsuit would cause him excruciating pain, but he was nonetheless required to put it on. Two employees also forced Pollard to wear a “black box” mechanical restraint device on his wrists despite Pollard’s complaints about severe pain. An outside orthopedist diagnosed Pollard with serious injuries to his elbows and recommended that his left elbow be put into a posterior splint for approximately two weeks. Upon returning to TCI, Pollard was told that, due to limitations in staffing and facilities, his elbow would not be put into a posterior splint. Pollard claims that, in the following weeks, he was unable to feed or bathe himself and that the GEO employees failed to make alternative arrangements for him. He further alleges that he was required to return to work before his injuries had healed and was again forced to wear the “black box” restraint when returning to the outside orthopedic clinic for a follow-up appointment. Pollard subsequently filed a pro se complaint in the United States District Court for the Eastern District of California, alleging violations of his Eighth Amendment rights and seeking money damages under Bivens. His first amended complaint named GEO and eight individuals as defendants. Seven of these individuals were employees of GEO at the time of Pollard’s injuries. The eighth, Marshall Lewis, was a doctor employed by the Pacific Orthopedic Medical Group, which GEO had hired to treat Pollard. GEO was subsequently dismissed from the suit due to the Supreme Court’s holding in Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), that private prison corporations are not subject to Bivens liability. See Order Dismissing Complaint With Leave to Amend at 2, Pollard v. Wackenhut, No. CV-F-01-6078 ’(E.D.Cal. Mar. 7, 2002). Pollard’s suit against the remaining defendants was assigned to a magistrate judge for screening pursuant to 28 U.S.C. § 1915A(a). The Magistrate Judge issued proposed findings and a recommendation that Pollard’s suit be dismissed under 28 U.S.C. § 1915A(b)(l) for failure to state a claim. Specifically, the Magistrate Judge concluded that a Bivens cause of action was not available to Pollard for two reasons: (1) state law provided him with alternative remedies for his injuries in the form of a tort action for negligence or medical malpractice; and (2) although under contract with the federal government, the GEO employees did not act under color of federal law. Pollard did not file objections to the Magistrate Judge’s recommendation, and the district court adopted it in full and dismissed Pollard’s complaint. Shortly thereafter, Pollard, now represented by counsel, filed a motion to vacate the judgment. That motion requested that the dismissal be vacated for the limited purpose of allowing Pollard to assert objections to the Magistrate Judge’s findings and recommendation, thereby preserving his right to appeal. The district court did not rule on the motion. Pollard ultimately filed a timely notice of appeal, which was served on the Acting Executive Assistant at TCI, but not on any of the individually named defendants personally. Before this court, only five of the original eight individual defendants filed an opposition brief. We review de novo a district court’s grant of a motion to dismiss under 28 U.S.C. § 1915A. Resnick, 213 F.3d at 447. II. PROCEDURAL CHALLENGES The GEO employees initially argue that we should dismiss this appeal because: (1) they were never served with Pollard’s opening brief and (2) Pollard failed to enter objections to the Magistrate Judge’s findings and recommendation and thereby forfeited his right to appeal. We are not convinced by either of these arguments, which we address in turn. First, the GEO employees argue that because they were not served with a copy of Pollard’s opening brief, this court lacks jurisdiction over this appeal. Fed. R.App. Proc. 25(b) provides: “Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party’s counsel.” It is undisputed that Pollard only served his opening brief on Dale Patrick, identified as the Acting Executive Assistant for TCI. Fed. R.App. P. 3(a)(2) provides that “[a]n appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.” See Azizian v. Federated Dep’t Stores, 499 F.3d 950, 961 (9th Cir.2007) (noting, in the context of a violation of Fed. R.App. P. 7, that Fed. R.App. P. 3(a)(2) grants to this court’s “sound discretion” whether to dismiss an appeal). In deciding whether such a deficiency warrants dismissal, we are entitled to consider whether Pollard’s failure resulted in prejudice to the GEO employees or to this court. See Everest & Jennings, Inc. v. E & J Mfg. Co., 263 F.2d 254, 262 (9th Cir.1959) (holding that, because the opposing party could demonstrate no prejudice, a failure to file briefs in accordance with court rules did not warrant dismissal); Recinos De Leon v. Gonzales, 400 F.3d 821, 822 (9th Cir.2005) (published order) (considering prejudice to the opposing party and to the court in deciding whether to dismiss an appeal based on the late filing of a brief). The GEO employees have not alleged — nor can we surmise — any prejudice resulting from Pollard’s failure to comply strictly with the requirements of Rule 25(b). Pollard’s counsel has provided the court with an affidavit (and accompanying telephone records) declaring that he contacted GEO and was specifically instructed by a representative of GEO’s General Counsel to send legal correspondence to TCI. We have no reason to doubt that Pollard’s counsel was so instructed, as the same law firm represents GEO and the individually named defendants on appeal. Indeed, the appellees’ answering brief was filed on behalf of all those parties (other than the physician not employed by GEO, Marshall Lewis). Thus, we exercise our discretion under Fed. R.App. P. 3(a)(2) and decline to dismiss this appeal for this alleged deficiency. Second, the GEO employees argue that dismissal is warranted because Pollard failed to file timely objections to the Magistrate Judge’s findings and recommendation. The GEO employees contend that the failure to file objections constitutes a waiver of Pollard’s right to appeal. But this court has held that such a failure does not, “standing alone, ordinarily constitute a waiver of the [appeal].” Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.1991) (citing Britt v. Simi Valley Unified Sch. Dist, 708 F.2d 452, 454 (9th Cir.1983)). Rather, Martinez counsels that failure to object to a magistrate judge’s findings and recommendations “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Id. Because Pollard was proceeding pro se at the time of the alleged waiver, and because the GEO employees have demonstrated no prejudice resulting from Pollard’s failure to file objections, we decline to exercise our discretionary authority to dismiss this appeal. III. DISCUSSION We turn to the merits of this appeal. The district court dismissed Pollard’s suit pursuant to 28 U.S.C. § 1915A(b)(l) for failure to state a claim. Specifically, the Magistrate Judge’s findings and recommendation concluded that a Bivens action was not available to Pollard because: (1) the GEO employees do not act under color of federal law; and (2) Pollard could pursue a claim for damages against the GEO employees under state tort law. We address these issues in turn and conclude that (1) the GEO employees act under color of federal law for purposes of Bivens liability and (2) the availability of a state tort remedy does not foreclose Pollard’s ability to seek redress under Bivens. We recognize that the former holding directly conflicts with the Fourth Circuit’s holding in Holly v. Scott, 434 F.3d 287, 294 (4th Cir.2006), and the latter conflicts with both Holly and the Eleventh Circuit’s holding in Alba v. Montford, 517 F.3d 1249, 1254 (11th Cir.2008). We discuss our disagreement with our sister circuits infra. 1. Federal Action In Bivens, the Supreme Court recognized an implied cause of action under the Fourth Amendment for injury caused “by a federal agent acting under color of his authority....” 403 U.S. at 389, 91 S.Ct. 1999. It is widely accepted that Bivens provides a cause of action only against an official “acting under color of federal law.” See, e.g., Morgan v. United States, 323 F.3d 776, 780 (9th Cir.2003) (“Morgan’s Complaint sufficiently sets forth the elements of a Bivens claim by alleging a violation of his constitutional rights by agents acting under the color of federal law.”). Thus, the threshold question presented here is whether the GEO employees can be considered federal agents acting under color of federal law in their professional capacities. We conclude that they can. We note at the outset that the one federal court of appeal to have directly addressed the question — the Fourth Circuit — has held that employees of private corporations operating federal prisons are not federal actors for purposes of Bivens. Holly, 434 F.3d at 294. See also Alba, 517 F.3d at 1254 (assuming, without deciding, that a privately operated prison is a government actor for purposes of Bivens liability). In Holly, as in this case, the defendants were employees of GEO, which the Fourth Circuit described as “a wholly private corporation in which the federal government has no stake other than a contractual relationship.” 434 F.3d at 291. Reasoning that “[application of Bivens to private individuals simply does not find legislative sanction,” the Holly majority held that the GEO employees were not federal actors for purposes of Bivens. Id. at 292-94. Neither the Supreme Court nor our court has squarely addressed whether employees of a private corporation operating a prison under contract with the federal government act under color of federal law. That said, we have held that private defendants can be sued under Bivens if they engage in federal action. Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1337-38 (9th Cir.1987) (citing Ginn v. Mathews, 533 F.2d 477 (9th Cir.1976), abrogated on other grounds by Rendell-Baker v. Kohn, 457 U.S. 830, 838-43, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)); see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1104 (9th Cir.2004) (“[T]o the extent that [Plaintiff] sought recovery from individual employees of the [private corporation managing the federal prison], the case had to [be] brought as a Bivens action.”). In determining whether a private individual has engaged in federal action, we have looked to “state action” principles developed by the Supreme Court in suits brought under 42 U.S.C. § 1983. See Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir.1997) (“[W]e apply similar tests to determine whether federal action exists to support a Bivens claim or to determine whether State action will permit a § 1983 cause of action.”); Mathis v. Pac. Gas & Elec. Co., 891 F.2d 1429, 1432 n. 3 (9th Cir.1989) (“The standards for determining whether an action is governmental are the same whether the purported nexus is to the state or to the federal government.”); see also Schowengerdt, 823 F.2d at 1339 n. 17 (suggesting the use of § 1983 state action tests to identify federal action in the Bivens context). Other circuits have also recognized the similarity of the § 1983 and Bivens doctrines. See Williams v. Hill, 74 F.3d 1339, 1340 (D.C.Cir.1996) (per curiam) (noting that bodies of law relating to § 1983 and Bivens actions have been assimilated in most respects); Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.1987) (“Though the two actions are not precisely parallel, there is a general trend in the appellate courts to incorporate § 1983 law into Bivens suits.” (footnote and internal quotations omitted)); Morast v. Lance, 807 F.2d 926, 931 (11th Cir.1987) (“[T]he concept of action under color of federal law for purposes of a Bivens action is almost identical to the doctrine of action under color of state law for purposes of a § 1983 action .... ”). Indeed, even the Supreme Court has recognized a connection between the two doctrines, although at a high level of abstraction. See Hartman v. Moore, 547 U.S. 250, 254 n. 2, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (“Though more limited in some respects not relevant here, a Bivens action is the federal analog to suits brought against state officials under [§ 1983].”). In the § 1983 context, we have recognized a number of tests for identifying state action. See Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir.1983) (describing the government nexus test, the joint action test, the public function test and the state compulsion test). For our purposes, the most applicable is the “public function” test: a private entity may engage in state action where it exercises “powers traditionally exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). In West v. Atkins, the Supreme Court applied a variation of that test in concluding that private correctional employees under contract with North Carolina were amenable to suit under § 1983 for failing to render constitutionally adequate medical care. See 487 U.S. 42, 49-51, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The Court found state action present in the § 1983 action because the defendant exercised power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 49, 108 S.Ct. 2250 (internal quotation marks and citation omitted). Ten years before West, the Court had recognized an obligation on the part of state correctional employees “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (extending Bivens liability to federal correctional employees). In finding such an obligation under the Constitution, the Estelle Court reasoned that “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle, 429 U.S. at 103, 97 S.Ct. 285. Similarly, in evaluating whether a prison physician employed as an independent contractor was amenable to suit under § 1983, the West Court stated: If [the physician] misused his power by demonstrating deliberate indifference to [the prisoner’s] serious • medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish [the prisoner] by incarceration and to deny him a venue independent of the State to obtain needed medical care. West, 487 U.S. at 55, 108 S.Ct. 2250. In reaching this conclusion, the Court noted that “[i]t is only those physicians authorized by the State to whom the inmate may turn” and that “[u]nder state law, the only medical care [the prisoner] could receive for his injury was that provided by the State.” Id. The Court rejected the notion that, because the physician was an independent contractor rather than a direct employee of the prison, the state action analysis would change. Instead, the Court held that, “[w]hether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner.” Id. at 56, 108 S.Ct. 2250. Thus, the Court concluded, because the private employee was “fully vested with state authority to fulfill essential aspects” of the state’s duty to provide medical care to state prisoners, he was fulfilling a public function and was therefore amenable to § 1983 liability. Id. at 57, 108 S.Ct. 2250. In our view, there is no principled basis to distinguish the activities of the GEO employees in this case from the governmental action identified in West. Pollard could seek medical care only from the GEO employees and any other private physicians GEO employed. If those employees demonstrated deliberate indifference to Pollard’s serious medical needs, the resulting deprivation was caused, in the sense relevant for the federal-action inquiry, by the federal government’s exercise of its power to punish Pollard by incarceration and to deny him a venue independent of the federal government to obtain needed medical care. On this point, West is clear. The Fourth Circuit does not share our understanding of West. The Holly majority concluded that West’s reasoning does not apply to privately operated federal prisons because the relationship among the state, the physician and the prisoner is “very different in this case, where the correctional facility is privately run, than in West ..., where the state itself was directly responsible for managing the prison.” Holly, 434 F.3d at 294. Curiously, the Fourth Circuit’s reading of West suggests that independent contractors are state actors when directly hired by the state, but that employees of an independent contractor are not state actors because they are not hired by the state. We cannot subscribe to such an illogical reading of West. As Judge Motz noted in her concurrence in Holly, West itself rejected the notion that “by adding an additional layer, the government can contract away its constitutional duties.” Id. at 299 n. 1 (Motz, J., concurring in the judgment). Instead, West makes clear that “ ‘[contracting out’ care ‘does not relieve’ the government of its ‘constitutional duty’ to provide adequate care or ‘deprive inmates of the means to vindicate their Eighth Amendment rights.’ ” Id. (quoting West, 487 U.S. at 55-56,108 S.Ct. 2250). Nor do we find convincing the Fourth Circuit’s reliance on Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997). See Holly, 434 F.3d at 293. Contrary to the Fourth Circuit’s holding, that case does not stand for the proposition that private prison employees never act under color of federal or state law. See id. Indeed, the Court in Richardson expressly noted that it did “not address[ ] whether the defendants are liable under § 1983 even though they are employed by a private firm.” 521 U.S. at 413, 117 S.Ct. 2100. Rather, the Court there addressed only the question of whether private prison guards at state prisons are entitled to qualified immunity when sued for constitutional violations, not whether those guards acted under color of federal or state law. See id. As other cases confirm, the immunity question is fundamentally distinct from the governmental action question we encounter here. See Wyatt v. Cole, 504 U.S. 158, 168-69, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (holding that “private defendants” were not entitled to qualified immunity, but remanding for a determination of whether they were liable as government actors); Jensen v. Lane County, 222 F.3d 570, 580 (9th Cir.2000) (holding that a private physician, contracting with a county psychiatric hospital, was liable as a state actor but was not entitled to qualified immunity). In Richardson, the Court explained that qualified immunity applies only where “a tradition of immunity was so firmly rooted in the common law ... that Congress would have specifically so provided had it wished to abolish the doctrine.” 521 U.S. at 403, 117 S.Ct. 2100 (internal quotation marks and citation omitted). The Court noted that, although private individuals had operated correctional facilities in the 18th and 19th centuries, those individuals did not historically enjoy qualified immunity. Id. at 404-07, 117 S.Ct. 2100. Because there was therefore no “ ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards,” those private guards were not entitled to qualified immunity. Id. at 404, 412, 117 S.Ct. 2100. Contrary to the Fourth Circuit’s understanding, the Richardson Court’s observation that private individuals “were heavily involved in prison management during the 19th century,” 521 U.S. at 405, 117 S.Ct. 2100, does not mean that private prison guards exercise a power that is not “traditionally exclusively reserved to the State” under the public function test for identifying state action. Holly, 434 F.3d at 293. The Holly majority looked to the “operation of the prison, not the fact of [the prisoner’s] incarceration,” to conclude that private prison guards did not perform a traditionally public function. Id. The Holly majority, however, does not provide, nor can we identify, any support for such a distinction. The relevant function here is not prison management, but rather incarceration of prisoners, which of course has traditionally been the State’s “exclusive prerogative.” Rendell-Baker, 457 U.S. at 842, 102 S.Ct. 2764 (internal quotation marks and citation omitted). West reflects this understanding that the relevant function is incarceration, explaining that a prisoner’s injury from inadequate medical care would be “caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish [the prisoner] by incarceration.” 487 U.S. at 55, 108 S.Ct. 2250. Likewise, in the § 1983 context, our sister circuits have routinely recognized that imprisonment is a fundamentally public function, regardless of the entity managing the prison. The Fifth Circuit, for example, has held that “confinement of wrongdoers — though sometimes delegated to private entities — is a fundamentally governmental function. These [private] corporations and their employees are therefore subject to limitations imposed by the Eighth Amendment.” Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir.2003) (per curiam). Likewise, the Sixth Circuit has held that private prison employees “perform!] the ‘traditional state function’ of operating a prison.” Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996); see also Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir.1991) (per curiam); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985). And, in his dissent, in Richardson, Justice Scalia, joined by three other Justices, noted that “private prison management firms, who perform the same duties as state-employed correctional officials, ... exercise the most palpable form of state police power.” Richardson, 521 U.S. at 414, 117 S.Ct. 2100 (Scalia, J., dissenting). In accord with West and other federal courts of appeal, we hold that there is but one function at issue here: the government’s power to incarcerate those who have been convicted of criminal offenses. We, decline to artificially parse that power into its constituent parts — confinement, provision of food and medical care, protection of inmate safety, etc. — as that would ignore that those functions all derive from a single, public function that is the sole province of the government: “enforcement of state-imposed deprivation of liberty.” Richardson, 521 U.S. at 416, 117 S.Ct. 2100 (Scalia, J., dissenting) (noting that this function is “a prototypically governmental function”). Because that function is “traditionally the exclusive prerogative of the [government],” it satisfies the “public function” test under Rendell-Baker. 457 U.S. at 842, 102 S.Ct. 2764 (internal quotation marks and citation omitted). Finally, we note that in Malesko, the Supreme Court explicitly left open the possibility that private prison employees could act under color of federal law and therefore face Bivens liability. The Court, in holding that a corporate entity operating a federal prison could not be subject to Bivens liability, noted that “the question whether a Bivens action might lie against a private individual is not presented here.” Malesko, 534 U.S. at 65, 122 S.Ct. 515. The dissent, authored by Justice Stevens, confirmed that this question remained open: The Court recognizes that the question whether a Bivens action would lie against the individual employees of a private corporation like Correctional Services Corporation (CSC) is not raised in the present case. Both CSC and [Malesko] have assumed Bivens would apply to [private prison employees], and the United States as amicus maintains that such liability would be appropriate under Bivens.... [T]he reasoning of the Court’s opinion relies, at least in part, on the availability of a remedy against employees of private prisons. Id. at 79 n. 6, 122 S.Ct. 515 (Stevens, J., dissenting) (internal citation omitted). Thus, despite the contrary holding in the Fourth Circuit, we conclude that the GEO employees act under color of federal law for purposes of Bivens liability. 2. Availability of a Bivens Remedy Even where defendants have engaged in federal action, we do not always allow Bivens suits to go forward. We begin with a review of the Supreme Court’s evolving Bivens jurisprudence to help illuminate when we will recognize an implied right of action against individuals engaged in federal action. In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Malesko, 534 U.S. at 66, 122 S.Ct. 515. In the years following Bivens, the Court recognized a Bivens cause of action on only two occasions. In Davis v. Passman, 442 U.S. 228, 248-49, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court held that the plaintiff stated a cause of action for money damages against her former employer, a member of the United States Congress, for employment discrimination in violation of the Due Process Clause of the Fifth Amendment. The following year, in Carlson v. Green, 446 U.S. 14, 24, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court held that a federal inmate could bring suit for money damages against federal prison officials under the Eighth Amendment. Since Carlson and Davis, the Supreme Court has “consistently refused to extend Bivens liability to any new context or new category of defendants.” Malesko, 534 U.S. at 68, 122 S.Ct. 515. Indeed, the Court has “rejected invitations to extend Bivens ” in every new factual and legal context presented after Carlson. Id. at 70, 122 S.Ct. 515; see, e.g., id. at 63, 122 S.Ct. 515 (declining to allow an implied right of action for an inmate alleging Eighth Amendment violations against a private corporation operating a federal prison); FDIC v. Meyer, 510 U.S. 471, 473, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (delining to allow an implied right of action against a federal agency); Schweiker v. Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (declining to allow an implied right of action for disabled persons who were allegedly denied Social Security benefits in violation of the Fifth Amendment); Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (declining to allow an implied right of action for a federal employee allegedly disciplined in violation of the First Amendment); Chappell v. Wallace, 462 U.S. 296, 297, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (declining to allow an implied right of action for military personnel alleging racial discrimination by superior officers). Although Bivens remains intact, it is apparent that the era Justice Scalia referred to as the “heady days in which [the Supreme] Court assumed common-law powers to create causes of action” is no more. Malesko, 534 U.S. at 75, 122 S.Ct. 515 (Scalia, J., concurring). The Court’s most recent consideration of whether to extend Bivens distills its prior three decades of jurisprudence into a two part test: [0]ur consideration of a Bivens request follows a familiar sequence, and on the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a Bivens remedy may require two steps. 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 common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation. Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (internal quotations and citations omitted). Applying Wilkie’s two-part test, we hold that a Bivens cause of action is available here. a. Application of the Wilkie Two-Part Test Under Wilkie, we first must identify 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.” Id. Second, even in the absence of an alternative, we must look to any “special factors counselling hesitation before authorizing a new kind of federal litigation.” Id. (internal quotation marks and citation omitted). We address each issue in turn and conclude that Pollard should be entitled to pursue his Eighth Amendment claim against the GEO employees. (i) Wilkie Part One: Alternative Existing Processes The GEO employees argue that because Pollard can pursue a state law negligence action for damages, he has an “alternative, existing process” for protecting his interests and thus should not be afforded a Bivens remedy. The Magistrate Judge agreed, stating in his recommendation and findings that “[i]n light of the existing alternative remedies available to [Pollard], the court finds that extending Bivens would not provide [Pollard] with an otherwise nonexistent cause of action.” Neither the Ninth Circuit nor the Supreme Court has ever addressed whether the existence of a state remedy, alone, is sufficient to displace the Bivens remedy. We conclude that the mere availability of a state law remedy does not counsel against allowing a Bivens cause of action. In evaluating whether alternative, potential remedies preclude a Bivens action, the Court has consistently stressed that only remedies crafted by Congress can have such a preclusive effect. For example, in Carlson, the Court held that where “defendants show that Congress has provided an alternative remedy which it explicitly declarefs] to be a substitute for recovery directly under the Constitution and view[s] as equally effective,” no Bivens remedy is available. Carlson, 446 U.S. at 18-19, 100 S.Ct. 1468. Likewise, in Bush v. Lucas, the Court held that the Bivens remedy for an alleged First Amendment violation was precluded by an “elaborate remedial system that has been constructed step by step” by Congress. 462 U.S. at 388, 103 S.Ct. 2404; see Schweiker, 487 U.S. at 425, 108 S.Ct. 2460 (holding that a remedial scheme created by Congress, even if incapable of addressing all of plaintiffs injuries, precluded a Bivens action). In Malesko, however, the Court implicitly suggested that non-congressionally created remedies might displace Bivens. See 534 U.S. at 70, 122 S.Ct. 515. There, the Court noted that it had consistently declined to extend Bivens except where the extension would “provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or [would] provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct.” Id. (emphasis in original). The GEO employees, like the Fourth and Eleventh Circuits, place great weight on this “any alternative remedy” language. They argue that it shows that state tort law can preclude a Bivens remedy. See Alba, 517 F.3d at 1253-55; Holly, 434 F.3d at 295-97. Wilkie, however, demonstrates that this reads too much into the Court’s words in Malesko. In Wilkie, the Court made clear that the mere existence of an alternative state remedy, alone, did not preclude a Bivens action. There, the Court noted that the plaintiff had “alternative, existing” remedies for the alleged violation of his Fifth Amendment rights, including state tort remedies, administrative claims against the Bureau of Land Management, and tort claims under the Federal Tort Claims Act. 551 U.S. at 553-54, 127 S.Ct. 2588. Even though the plaintiff undoubtedly had a “tort remedy” available to him, the Court concluded that 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,” “[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 551, 554, 127 S.Ct. 2588. Thus, the mere existence of a potential state law claim did not suffice to preclude a Bivens action. Instead, the Wilkie opinion requires that we not simply inquire into the existence of alternative remedies generally, but rather that we ask whether “any alternative, existing process for protecting the interest amounts to a convincing reasons for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. at 550, 127 S.Ct. 2588. For two reasons, state court remedies, alone, do not amount to such a “convincing reason.” First, as Wilkie implies and the Court has repeatedly recognized, we consider alternative remedies because the judicially created Bivens remedy should yield to congressional prerogatives under basic separation of powers principles. Id. at 554, 127 S.Ct. 2588 (looking to alternative remedies for evidence that “Congress expected the Judiciary to stay its Bivens hand”); see also Malesko, 534 U.S. at 69, 122 S.Ct. 515 (“So long as the plaintiff ha[s] an avenue for some redress, bedrock principles of separation of powers foreclose[] judicial imposition of a new substantive liability.”); Schweiker, 487 U.S. at 423, 108 S.Ct. 2460 (“When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations ... we have not created, additional Bivens remedies.”); Bush, 462 U.S. at 378, 103 S.Ct. 2404 (“When Congress provides an alternative remedy, it may ... indicate its intent ... that the Court’s power should not be exercised.”); Carlson, 446 U.S. at 23, 100 S.Ct. 1468 (“The 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.”). So too has this circuit recognized the importance of deferring to Congress in this arena. See W. Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116, 1123 (9th Cir.2009) (finding remedies available under the Administrative Procedure Act indicative of congressional intent to displace Bivens), Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir.2003) (noting that a Bivens claim can be precluded when Congress either provides an alternative remedy or provides a mechanism for relief it considers adequate to remedy constitutional violations); Berry v. Hollander, 925 F.2d 311, 314 (9th Cir.1991) (“So long as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment.” (internal quotation marks omitted)). Second, the Court has recognized that the policy “obviousfly]” motivating Bivens was “that the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules.” Carlson, 446 U.S. at 23, 100 S.Ct. 1468. In Carlson, the Court made a point of noting that the plaintiffs action would have failed under the survivorship law of the forum state. Id. at 17 n. 4, 100 S.Ct. 1468. The Court emphasized that “only a uniform federal rule of survivorship will suffice to redress the constitutional deprivation here alleged and to protect against repetition of such conduct.” Id. at 23, 100 S.Ct. 1468. As we recently noted in Castaneda v. United States, 546 F.3d 682, 701 (9th Cir.2008), overruled on other grounds by Hui v. Castaneda, — U.S. -, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010), “the remedies we and the Supreme Court have held to preclude Bivens ... applied uniformly throughout the republic.” Although Castaneda is no longer good law, this observation was not addressed by the Supreme Court and comports with our analysis of the Court’s Bivens jurisprudence. See Schweiker, 487 U.S. at 414, 108 S.Ct. 2460 (holding that Social Security regulations and procedures precluded a Bivens action); Bush, 462 U.S. at 368, 103 S.Ct. 2404 (holding that federal civil service regulations precluded a Bivens remedy). If we were to allow state tort law to preclude a Bivens action for Pollard and similarly situated prisoners, the liability of federal officials for constitutional violations would no longer be governed by uniform rules. The substance, procedural requirements, and remedies of state tort law— especially with regard to causes of action for negligence and medical malpractice— vary widely from state to state. For example, assuming Pollard were to bring a claim for medical malpractice under California law, the cap on his non-economic damages would be $250,000. See Cal. Civ. Code § 3333.2. But, under Oregon law (where Pollard was transferred in the midst of this litigation), Pollard’s medical malpractice claim would not be subject to the state’s non-economic damages cap. See Lakin v. Senco Prods., 329 Or. 62, 987 P.2d 463 (1999) (holding that non-economic damages cap mandated by Or.Rev.Stat. § 31.710(1) is unconstitutional as applied to common-law negligence claims). Likewise, the statute of limitations for bringing his suit under California law would be three years after the date of his injury or one year after he discovered the injury, whichever came first. See Cal.Civ.Proc. Code § 340.5. But Oregon law would require Pollard to bring his suit within two years of discovering the injury. See Or. Rev.Stat. § 12.110(4). We need not belabor the obvious point that state tort remedies are anything but “uniform.” The Bivens inquiry turns in part on “bedrock principles of separation of powers,” Malesko, 534 U.S. at 69, 122 S.Ct. 515, but concluding that a Bivens cause of action must yield to state tort law does little to demonstrate deference to congressional prerogatives. Thus, we conclude that state remedies alone are insufficient to displace a Bivens remedy under the first prong of the Wilkie test. (ii) Wilkie Part Two: “Special Factors Counselling Hesitation” Wilkie’s second step requires us to “weight ] reasons for and against the creation of a new cause of action, the way common law judges have always done.” 551 U.S. at 554, 127 S.Ct. 2588. In other words, we must look to any “special factors counselling hesitation before authorizing a new kind of federal litigation.” Id. at 550, 127 S.Ct. 2588 (internal quotation marks and citation omitted). The Court has emphasized that we must differentiate “special ” factors from “any ” factors. McCarthy v. Madigan, 503 U.S. 140, 151, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute, Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321, as recognized in Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Although the Court has never compiled an exhaustive list of these “special” factors, some that the Court has previously considered include: (1) whether it is feasible to create a workable cause of action, Wilkie, 551 U.S. at 555, 127 S.Ct. 2588; (2) whether extending the cause of action would undermine Bivens’s deterrence goals, Malesko, 534 U.S. at 70-71, 122 S.Ct. 515; (3) whether an extension of Bivens would impose asymmetric liability costs on privately operated facilities as compared to government-operated facilities, id. at 72, 91 S.Ct. 1999; and (4) whether unique attributes of an area, like the military, give reason to infer that congressional inaction is deliberate, see Chappell, 462 U.S. at 304, 103 S.Ct. 2362. As the Court has already recognized a Bivens cause of action for inmates in government-run federal prisons, it appears that prisons do not have the types of unique attributes that counseled against recognizing a Bivens action for claims against the military in Chappell. Nor did the Court allude to any such unique attributes in Malesko. Thus, we address only the first three of these considerations. (a) Feasibility Pollard alleges a basic Eighth Amendment cause of action under Bivens. Since Carlson, courts have regularly recognized this type of action against federal prison officials, and the applicable standards are clear. See, e.g., Powell v. Lennon, 914 F.2d 1459 (11th Cir.1990); Berg v. Kincheloe, 794 F.2d 457 (9th Cir.1986); Gardner v. Wilson, 959 F.Supp. 1224, 1228 (C.D.Cal.1997); Lowrance v. Coughlin, 862 F.Supp. 1090 (S.D.N.Y.1994). There is no need for the district court to craft new standards or remedies to address Pollard’s claims. Accordingly, there are no feasibility concerns that would counsel hesitation under Wilkie. By contrast, the regime the GEO employees propose- — -allowing a Bivens cause of action to go forward only where a plaintiff would otherw