F I LED

United States Court of Appeals

Tenth Circuit

May 17, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CORNELIUS E. PEOPLES,

Plaintiff - Appellant,

v.

CCA DETENTION CENTERS; FRED

LAWRENCE, Warden; ROGER

MOORE, Sr., Assistant Warden;

JAMES PERRY, Chief of Security;

JAY FOSKETT, Captain of Security;

CORRECTIONS CORPORATION OF

AMERICA; ANDRE FORD, Chief of

Security; JACQUELYN BANKS,

Assistant Warden; BRUCE

ROBERTS, Lieutenant Classification

Personnel; GARY FULLER, Legal

Services for Prisoners,

Defendants - Appellees.

Nos. 04-3071 & 04-3124

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D. Ct. Nos. 03-CV-3129-KHV, 02-CV-3298-CM)

Cornelius E. Peoples, pro se, in 04-3124.

Amanda H. Frost, (Brian Wolfman, with her on the briefs), Public Citizen

Litigation Group, Washington, D.C., for Plaintiff-Appellant in No. 04-3071.

Michael P. Crow (Martha Burnett Crow, with him on the briefs), Crow, Clothier
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& Bates, Leavenworth, Kansas, for Defendants-Appellees in Nos. 04-3071 & 04-

3124.

Before TACHA, Chief Circuit Judge, BALDOCK and EBEL, Senior Circuit

Judges, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ,

O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

PER CURIAM.

These matters are before us following the court’s grant of rehearing en

banc. Cornelius E. Peoples originally filed two separate complaints for damages

pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971). In those matters, he alleged his constitutional rights were violated during

his pretrial detention at a privately run prison under contract with the United

States Marshals Service. Both district courts denied relief. See Peoples v. CCA

Detention Ctr., 2004 WL 2278667 (D.Kan. Mar. 26, 2004)(Peoples II); Peoples v.

CCA Detention Ctr., 2004 WL 74317 (D.Kan. Jan. 15, 2004)(Peoples I). They

did so, however, on different grounds.

In Peoples I, the district court dismissed the complaint for lack of subject

matter jurisdiction. See Peoples v. CCA Detention Ctr., 2004 WL 74317 at *7. In

Peoples II, the court took jurisdiction over the Bivens claims but ultimately

dismissed the lawsuit for failure to state a claim upon which relief could be

granted pursuant to Fed.. R. Civ. P. 12(b)(6). Peoples v. CCA Detention Ctr.,

2004 WL 2278667 at *7. A panel of this court affirmed the judgments denying
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relief. In doing so, however, it determined both district courts had the requisite

subject matter jurisdiction to consider Mr. Peoples’ claims. Peoples v. CCA

Detention Centers, 422 F.3d 1090, 1096 (10th Cir. 2005). The panel was divided

on the issue whether Mr. Peoples could maintain an action against the individual

defendants, all of whom were employees of Corrections Corporation of America. 

Id. at 1108. We subsequently granted rehearing en banc, and in accordance with

our local rule, the judgment was vacated, the mandate stayed, and the cases were

restored as pending appeals. 10th Cir. R. 35.6. The court did not vacate the

panel opinion. See id. (noting that the “panel decision is not vacated unless the

court so orders.”). 

On this rehearing, we have determined unanimously that the district courts

had subject matter jurisdiction over these claims. Accordingly, that portion of the

panel decision stands, and the district court judgment in Peoples I is reversed

with respect to that issue. See Peoples, 422 F.3d at 1095–96. We are evenly

divided, however, for substantially the same reasons as are set forth in the panel’s

majority and dissenting opinions, on the question whether a Bivens action is

available against employees of a privately-operated prison. Because there is no

majority on the en banc panel, the district court’s ruling in Peoples II on this

issue is affirmed by an equally divided court. See Zuni Pub. Sch. Dist. No. 89 v.

U.S. Dept. of Ed., 437 F.3d 1289 (10th Cir. 2006); United States v. Rivera, 874

F.2d 754 (10th Cir. 1989). That portion of the original panel opinion addressing
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this issue is, therefore, vacated and lacks precedential value. See Peoples, 422

F.3d at 1096–1108. 

As a consequence of our conclusions, the judgment in appeal number 04-

3071, Peoples I, is REVERSED, and that matter is remanded to the United States

District Court for the District of Kansas with instructions to conduct additional

proceedings in light of our opinion regarding the court’s subject matter

jurisdiction. For the reasons stated, the judgment of the United States District

Court for the District of Kansas in appeal number 04-3124, Peoples II, is

AFFIRMED.