Opinion
Civil Action 20-cv-01094-RBJ-NRN
05-06-2021
LESLEY T. OWENS, Plaintiff, v. UNITED STATES OF AMERICA, C. LEWIS, Counselor, and MANSFIELD, Case Manager, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR DISMISSAL IN PART (DKT. #73)
N. REID NEUREITER, United States Magistrate Judge
This matter is before the Court on Defendants' Motion for Dismissal in Part, Dkt. #73. Plaintiff responded, Dkt. #77, Defendants replied, Dkt. #78. Plaintiff also submitted, without leave of the Court, a sur-reply, Dkt. #81. The Court heard argument from the parties at a Telephonic Motion Hearing on April 21, 2021. Dkt. #80. Having taken judicial notice of the file, considered the submissions and arguments of the parties, as well as the applicable law, and for the reasons outlined below, the Court recommends that Defendants' motion be DENIED.
BACKGROUND
The following facts are from Plaintiff's Third Amended Complaint, (“TAC, ” Dkt. #71) and presumed true for purposes of this Recommendation under Fed.R.Civ.P. 12(b)(6).
Mr. Owens is an inmate of the Federal Bureau of Prisons (“BOP”) at the United States Penitentiary in Florence, Colorado (“USP). Defendants Lewis and Mansfield are BOP employees who work at USP. On February 1, 2019, Mr. Owens told Defendants Lewis and Mansfield that he has been given a “medical duty status” because needed to be assigned a lower bunk as a result of an injured knee. Id. at 11-13. Mr. Owens again told Defendants Lewis and Mansfield, on February 12, 2019, that he had a “medical duty status” form, which was dated February 11, 2019, and he gave them a copy of the form. The form specifically indicated that Mr. Owens was supposed to be assigned a lower bunk. Id. at 18. In addition, Mr. Owens alleges that Defendants Lewis and Mansfield generated and signed an Individualized Reentry Plan dated February 12, 2019, Dkt. #71 at 19, that indicated he had a “lower bunk required” assignment that began in December 2018. Despite this, Lewis and Mansfield assigned Mr. Owens to an upper bunk. Id. at 12-13. On February 13, 2019, during the night, Mr. Owens fell off the upper bunk while attempting to climb down, sustained a head injury and cracked elbow, and re-injured his knee. Id. at 13. After he was treated for his injuries, Mr. Owens was put back in his cell on an upper bunk. Fearing he would fall and hurt himself again, Mr. Owens slept on the floor for several nights until he was assigned a lower bunk. Id. at 16.
Pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Plaintiff brings a claim for deliberate indifference to his serious medical needs in violation of the Eighth Amendment against the Individual Defendants. Pursuant to the Federal Tort Claims Act (“FTCA”), Plaintiff also brings two claims against the United States: (1) negligence; and (2) violation of Colorado's Premises Liability Act, Colo. Rev. Stat. Ann. § 13-21-115 (“CPLA”).
Defendants seek dismissal of Mr. Owens' Bivens claim against the Individual Defendants and the CPLA claim against the United States. Defendants argue that Plaintiff's claim for deliberate indifference under the Eighth Amendment should be dismissed because there is no Bivens remedy available and because Defendants Lewis and Mansfield are entitled to qualified immunity. Defendants also argue that Plaintiff failed to state a claim under CPLA. Thus, even if the Court were to recommend that the motion be granted, Mr. Owens still has an FTCA claim against the United States.
LEGAL STANDARD
I. Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts must accept well-pled allegations as true, purely conclusory statements are not entitled to this presumption. Id. at 678, 681. Therefore, so long as the plaintiff pleads sufficient factual allegations such that the right to relief crosses “the line from conceivable to plausible, ” he has met the threshold pleading standard. Twombly, 550 U.S. at 556, 570.
II. Bivens
In Bivens v. Six Unknown Fed. Narcotics Agents, the Supreme Court recognized “an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).
The Supreme Court has recognized the Bivens remedy in only three cases: (1) Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (a Fourth Amendment unreasonable search and seizure claim); (2) Davis v. Passman, 442 U.S. 228 (1979) (a Fifth Amendment equal protection claim concerning gender discrimination); and (3) Carlson v. Green, 100 S.Ct. 1468, 1472 (1980) (an Eighth Amendment failure to provide adequate medical treatment claim). “These three cases-Bivens, Davis, and Carlson-represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution itself.” Ziglar v. Abbasi, - U.S. -, 137 S.Ct. 1843, 1855 (2017).
III. Qualified Immunity
“Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). When a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). “The plaintiff must demonstrate on the facts alleged both that the defendant violated his constitutional or statutory rights, and that the right was clearly established at the time of the alleged unlawful activity.” Id. (citing Pearson, 555 U.S. at 231). Raising a qualified immunity defense in a motion to dismiss “subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Sayed v. Virginia, 744 Fed.Appx. 542, 545-46 (10th Cir. 2018) (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)). A reviewing court has discretion to address either prong first. Pearson, 555 U.S. at 236.
IV. Pro Se Litigants
When a case involves pro se litigants, courts will review their “pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff's pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Id. Pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation marks and citations omitted).
ANALYSIS
I. Availability of Bivens Remedy
Defendants argue that there is no Bivens remedy available for Plaintiff's claims. “Whether a Bivens action exists for a given constitutional violation must be decided on a case-by-case basis.” Burton-Bey v. United States, 100 F.3d 967 (10th Cir. 1996) (citing Beattie v. Boeing Co., 43 F.3d 559, 564 (10th Cir. 1994)). “[E]xpanding the Bivens remedy is now a ‘disfavored' judicial activity.” Ziglar, 137 S.Ct. at 1857. “If [a] case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court, then the context is new.” Id. at 1859. “[E]ven a modest extension is still an extension.” Id. at 1864. A court may consider the following factors in determining whether a case might differ in a meaningful way:
[T]he rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.Id. at 1860.
Defendants argue that Mr. Owens' claim differs from those in the Carlson case because the defendants in Carlson case were medical personnel and Defendants here are not. The distinction between medical and nonmedical personnel does not strike the court as a meaningful one in this context. See Minneci v. Pollard, 132 S.Ct. 617, 623 (2012) (declining to extend Bivens remedy to prison officials who worked for private prison, noting that “ Carlson . . . was a case in which a federal prisoner sought damages from personnel employed by the government, not personnel employed by a private firm.”); Smith v. United States, 561 F.3d 1090, 1104 (10th Cir. 2009) (applying Bivens to inmate's claim that prison officials knew there was asbestos in area of prison where inmate was working); Ajaj v. Fed. Bureau of Prisons, No. 15-CV-00992-RBJ-KLM, 2017 WL 219343, at *3 (D. Colo. Jan. 17, 2017) (distinguishing Smith and finding Bivens remedy was not available for first and fifth amendment claims, while noting “[t]he Fourth and Eighth amendments are the ‘core' of Bivens”).
Rather, Mr. Owens' claims for deliberate indifference to a serious medical need are the same as those asserted in Carlson, and the constitutional right at issue is the same. In Carlson, the United States Supreme Court found that a Bivens remedy was available against federal prison officials for failure to provide adequate medical treatment under the Eighth Amendment. 446 U.S. 14. While the defendants in Carlson were medical personnel, Defendants have not cited, and the Court has not found, any persuasive or controlling authority to indicate that a Carlson-type claim for deliberate indifference to serious medical needs cannot be asserted under Bivens against nonmedical personnel.
Defendants also argue that Mr. Owens' claim is not a deliberate indifference to serious medical need claim, but is more like conditions of confinement claims, and that there is no Bivens remedy for conditions of confinement claims. The Court agrees that a Bivens remedy is likely not available for conditions of confinement claims. See Rios v. Redding, No. 20-CV-01775-MEH, 2021 WL 365840, at *3 (D. Colo. Feb. 3, 2021) (distinguishing Carlson from failure to protect claims, noting that other courts in this District have found that failure to protect claims “constitute new contexts”). Defendants cite numerous cases from courts in this district that address the availability of a Bivens remedy for conditions of confinement claim. The Court has reviewed the cases cited by Defendants and finds that none of them deal with claims that are similar to Mr. Owen's claim. For example, Defendants cite Abdo v. Balsick, No. 18-CV-01622-KMT, 2019 WL 6726230 (D. Colo. Dec. 11, 2019), reconsideration denied sub nom. Abdo v. United States, No. 18-CV-01622-KMT, 2020 WL 227747 (D. Colo. Jan. 15, 2020), for the proposition that allegations against “non-medical prison officials” for failure to render medical aid would require an extension of Carlson type claims to find a remedy available under Bivens. In the Abdo case, the plaintiff inmate “sought treatment solely for injuries that he sustained when prison guards responded to a perceived safety threat by using deterrent spray.” 2019 WL 6726230, at *6. Magistrate Judge Tafoya went on to note that she found no “controlling authority holding that prison guards can be liable under Carlson for deliberate indifference to the medical needs of an inmate stemming entirely from official action taken in response to a prison disturbance.” Id. This characterization of the plaintiff's claims in Abdo differs significantly from the facts alleged by Mr. Owens, which involve the failure to comply with a documented instruction by medical personnel that Mr. Owens should be assigned to a lower bunk. As such, the Court does not find Abdo applicable here.
The Court notes that, as outlined below, there are cases in which inmates in state or locally run facilities have made claims pursuant to 42 U.S.C. §1983 against nonmedical prison officials who ignore instructions of medical personnel, and those cases have been treated as cases alleging deliberate indifference to a serious medical need. In sum, the Court does not agree that Mr. Owens asserts a conditions of confinement claim. Mr. Owens alleges that he had a serious medical need that was recognized by medical personnel and but was ignored by the Individual Defendants. This strikes the Court as the same type of claim arising out the same constitutional right that was asserted in Carlson and the Court sees no meaningful difference between the two. The Court accordingly finds that, at this stage, Mr. Owens has adequately alleged a Bivens claim against the Individual Defendants.
The Court is aware that the scope of claims an inmate can pursue under 42 U.S.C. § 1983 is more broad than those available under Bivens. See Hernandez v. Mesa, 140 S.Ct. 735, 747, (2020) (noting that the Supreme Court has “described Bivens as a ‘more limited' ‘federal analog' to § 1983”). At the same time, the Supreme Court has noted that “‘constitutional design' would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same constitutional transgression.” Carlson, 446 U.S. at 22.
II. Qualified Immunity
To avoid a defense of qualified immunity, “[t]he plaintiff must demonstrate on the facts alleged both that the defendant violated his constitutional or statutory rights, and that the right was clearly established at the time of the alleged unlawful activity.” Riggins, 1107. The Court will address whether Mr. Owens alleges sufficient facts that his constitutional rights were violated by Defendants Lewis and Mansfield and then turn to the issue of whether the right was clearly established.
The Supreme Court holds that because prisoners “must rely on prison authorities to treat [their] medical needs . . . deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). The test for deliberate indifference contains both objective and subjective elements: a prisoner must establish that he was deprived of a medical need that is, objectively, “sufficiently serious, ” and he must establish that the defendant subjectively knew of and disregarded “an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825 834, 837 (1994). A defendant knows of and disregards an excessive risk to a prisoner's health or safety when he is both “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and he actually draws that inference. Id.
Defendants argue that the TAC “alleges no facts about the Individual Defendants' state of mind, and contains no indication that either defendant had any information about the nature of the medical condition that warranted the assignment, or the risk he faced if not assigned to a lower bunk.” Dkt. #78 at 4. The Court disagrees. The TAC states that Mr. Owens advised “Mansfield and Lewis of his lower bunk medical duty status” and “showed both Defendants a copy of his lower bunk medical duty status” from the FCI health services staff. Dkt. #71 at 12. Mr. Owens also adequately alleged that both Defendants were told of his knee injury and that the prison medical staff determined that he should be assigned a lower bunk because of the knee injury. Id.
These facts, taken in a light most favorable to Mr. Owens, are sufficient at this stage to establish that the individual defendants knew of and disregarded a substantial risk of serious harm to Mr. Owens if he fell while trying to climb into or out of the upper bunk with an injured knee. See Farmer, 511 U.S. at 842 (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”).
Defendants also argue that Mr. Owens knee injury was not sufficiently serious to meet the objective test. But, the Court finds that the very fact that prison medical personnel found it necessary to indicate that Mr. Owens should be assigned a lower bunk makes it plausible that the condition is sufficiently serious to put a reasonable prison official on notice of the seriousness of the injury, particularly when the inmate brings it to the official's attention, as Mr. Owens alleges he did here. See Est. of Roundtree by & through Roundtree v. Correct Care Sols., LLC, No. 19-CV-00167-RBJ, 2021 WL 981309, at *7 (D. Colo. Mar. 16, 2021) (“Incarcerated individuals are uniquely situated in that they must rely on others-namely, prison officials-to address their medical needs.”) (citation omitted).
Finally, with respect to the question of whether the right was clearly established, as has been noted by Chief Judge Brimmer, there are cases that:
clearly establish that a prison official who disregards without justification the instructions of a medical professional regarding the care and treatment of an inmate, thereby subjecting the inmate to an excessive risk of serious harm, may be liable under the Eighth Amendment. . . . [E]xisting case law in the spring of 2010 would have put a reasonable officer on notice that disregarding the instructions of the intake nurse delegated the responsibility of performing medical assessments in such a way as to expose an inmate to an excessive risk of substantial harm could violate the Eighth Amendment.Doty v. City & Cty. of Broomfield, No. 12-CV-01340-PAB-MJW, 2013 WL 5510646, at *8 (D. Colo. Oct. 4, 2013). See also McMurry v. Caruso, No. 10 CV 1206, 2011 WL 7396314, at *13 (W.D. Mich. Dec. 29, 2011), report and recommendation adopted, No. 1:10-CV-1206, 2012 WL 560860 (W.D. Mich. Feb. 17, 2012) (“The intentional disregard of the instructions of a medical professional caring for a prisoner is the epitome of deliberate indifference.”).
Based on the foregoing, the Court finds that the defense of qualified immunity is premature, and is likely best addressed after the factual record is developed in discovery on summary judgment. See Maestas v. Lujan, 351 F.3d 1001, 1011 (10th Cir. 2003) (qualified immunity can usually be decided on summary judgment).
III. Colorado Premises Liability Act
The CPLA imposes certain duties upon landowners to those on the land depending on the claimant's status as a trespasser, licensee, or invitee. Colo. Rev. Stat. § 13-21-115(1.5)(a). Defendant concedes that as an inmate, Mr. Owens qualifies as an invitee. Carson v. Corr. Corp. of Am., No. 10-cv-01329-REB-BNB, 2011 WL 1656509, at *3 (D. Colo. May 3, 2011) (holding inmate was invitee in premises liability case and collecting cases). Under the CPLA, “an invitee may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.” Colo. Rev. Stat. § 13-21-115(3)(c)(I). The CPLA allows an invitee to recover for damages associated with a failure to protect against “dangers” of which a landowner knew or should have known. Id. § 13-21-115(3)(c)(I).
Defendants argue that Mr. Owens fails to allege facts that would establish the elements of a CPLA claim, and that specifically, Mr. Owens fails to identify any “danger” in the USP facility. Defendants assert that while the CPLA does not define “danger, ” the plain meaning of that term can be used. For example, the Colorado Court of Appeals has stated that the plain meaning to “danger” is “[p]eril; exposure to harm, loss, pain, or other negative result.” See Fleury v. IntraWest Winter Park Operations Corp., 411 P.3d 81, 85 (Colo.App. Feb. 2014) (quoting Black's Law Dictionary 450 (9th ed. 2009)). Defendants also point out that the Colorado Governmental Immunity Act defines “dangerous condition” as “a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public.” Colo. Rev. Stat. § 24-10-103(1.3).
Applying either one of the definitions suggested by Defendants, the Court finds that Mr. Owens has pled sufficient facts to make a plausible claim under the CPLA. Specifically, the Court finds that Mr. Owens alleged that the upper bunk was a dangerous condition that created an unreasonable risk to Mr. Owen of which Defendants knew in light of his medical duty status and the fact that he told them he had a knee injury that required his placement in a lower bunk. See Rodriguez-Aguirre v. United States, No. 15-CV-00465-KLM, 2016 WL 1046247, at *6 (D. Colo. Mar. 16, 2016) (declining to dismiss inmate's CLPA claim where Court found that the complaint was “sufficient to put Defendant on fair notice” of the claims).
CONCLUSION
For the above reasons, the Court hereby RECOMMENDS that Defendants' Motion for Dismissal in Part, Dkt. #73 be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Ma kin v. Colorado Dep't of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).