Opinion
Civil Action 20-cv-03658-CNS-MDB
12-27-2023
LENNIS JAMES HILL, Plaintiff, v. WADE, USP Lieutenant, ANTHONY, Lieutenant, and GONZALEZ, USP Investigator Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARITZA DOMINGUEZ BRASWELL, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants Wade, Anthony, and Gonzalez's Motion to Dismiss. ([“Motion”], Doc. No. 55.) Plaintiff Hill has responded, and Defendants have replied. ([“Response”], Doc. No. 63; [“Reply”], Doc. No. 64.) For the following reasons, the Court recommends GRANTING this Motion.
Initially, Plaintiff's Complaint included allegations against three additional Defendants. However, the Honorable Charlotte Sweeney dismissed all claims against the additional Defendants for lack of subject matter jurisdiction. (Doc. No. 46.)
SUMMARY FOR PRO SE PLAINTIFF
The Court recommends dismissing your remaining claim filed under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Recent decisions by the U.S. Supreme Court and the Tenth Circuit have limited when a Bivens remedy is available, and your case does not qualify for an available remedy. This is only a high-level summary of the Court's decision. It does not contain all the relevant information. The actual decision and reasoning are provided below, along with details about your right to object to this decision.
BACKGROUND
Plaintiff, currently an inmate at a U.S. Penitentiary in Beaumont, Texas, initially filed his Complaint about an incident that occurred while he was an inmate at a U.S. Penitentiary in Florence, Colorado. (Doc. No. 1.) In his second amended Complaint, Plaintiff asserts a Bivens claim against Defendants who were correctional officers at the Florence Penitentiary-alleging Defendants violated his Eighth Amendment rights through deliberate indifference to his medical needs. (Doc. No. 6 at 7-9.)
The Amended Complaint states that on January 25, 2019, Defendants refused to take Plaintiff to a medical unit after another inmate assaulted him and injured his jaw. (Id. at 7.) Instead, after reviewing video footage of the incident, Defendants placed Plaintiff and the other inmate in the Special Housing Unit (“SHU”). (Id.) Plaintiff “pleaded with [Defendants] with a broken jaw and great pain” to get him medical help, but they refused. (Id. at 8.) For six days, Plaintiff remained in the SHU without medical attention, resulting in “unimaginable pain” and starvation due to his inability to “eat the solid food he was being given[.]” (Id.) During this time, Plaintiff also spat blood “in the presence of several officers to demonstrate his injury[,]” and spoke with Defendant Anthony to “expres[s] his concern and pain,” but Anthony responded that “[Plaintiff ]should stay out of trouble.” (Id. at 8-9.) Only after a nurse intervened did Plaintiff receive medical attention, which revealed an infection as well as a broken jaw “hanging on by a single nerve” that required surgery. (Id. at 8.) Lastly, Plaintiff alleges Defendants “attempted to cover up this atrocity by dropping the investigation and abruptly tranferring [sic] him.” (Id. at 9.)
Defendants seek dismissal of Plaintiff's claim because (1) Congress is better suited to create a remedy since this case presents a new context; and (2) multiple special factors, including the availability of alternative remedies, preclude relief. (Doc. No. 55 at 4-5.) Plaintiff responds that the U.S. Supreme Court has already recognized a deliberate indifference claim under the Eighth Amendment. (Doc. No. 63 at 3.)
Defendants also filed a prior motion to dismiss, but the Honorable Regina Rodriguez denied the motion without prejudice and allowed Defendants to refile. (Doc. No. 32.)
LEGAL STANDARD
I. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In ruling on a motion under Rule 12(b)(6), a court accepts all well-pleaded facts as true and views the allegations in the light most favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). However, the plaintiff bears the burden of presenting a complaint with enough factual details to suggest entitlement to relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Indeed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Ultimately, the Court assesses “whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
In applying the above principles, this Court is mindful that Plaintiff proceeds pro se and thus affords his papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261, 1268 F.3d 855, 864 n.1 (10th Cir. 2019). But the Court cannot and does not act as his advocate, United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).
II. Bivens
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the U.S. Supreme Court established “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, 446 U.S. 14 (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, 582 U.S. 120, 131 (2017).
To determine entitlement to a Bivens remedy for a claim outside of Bivens, Davis, or Carlson, the Supreme Court adopted a two-step approach. Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). First, a court is to examine whether the claim arises in a new context, which broadly encompasses any claims “different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. (internal quotations omitted). If so, the second step involves determining whether “there are special factors counselling hesitation in the absence of affirmative action by Congress.” Ziglar, 582 U.S. at 136 (internal quotations omitted).
However, the Supreme Court also recently clarified that while the two-step approach “inform[s] a court's analysis of a proposed Bivens claim . . . those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert v. Boule, 596 U.S. 482, 493 (2022). In essence, “[a] court faces only one question [in conducting a Bivens inquiry]: whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Id. at 496 (quoting Ziglar, 582 U.S. at 136).
The Tenth Circuit has interpreted the Supreme Court's clarification as a change to the existing two-step Bivens framework. Silva v. United States, 45 F.4th at 1134, 1139. In Silva, the Tenth Circuit highlighted that the key takeaway from the Supreme Court's decision is that “courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs[.]'” Id. at 1141 (quoting Egbert, 596 U.S. at 494) (emphasis in original).
In short, when analyzing Plaintiff's Bivens claim, this Court must first determine if the relief requested is a remedy already captured by Bivens, Davis, or Carlson. If so, then Plaintiff is entitled to a Bivens remedy. But if not, the Court must determine whether either of two independent considerations apply-(1) whether Congress is better positioned to create a remedy in this context and (2) whether the government has already provided an alternative remedy. If either applies, the Court must recommend disposing of the Bivens claim.
ANALYSIS
I. Is Plaintiff's requested relief already captured by Bivens, Davis, or Carlson?
Defendant contends the underlying facts in this case are meaningfully different from the prior cases recognizing a Bivens remedy. Defendant further contends special factors suggest that judicial intrusion here is not appropriate. (Doc. No. 55 at 6.) Plaintiff argues the Supreme Court already recognized a similar Eighth Amendment deliberate indifference claim under Bivens. (Doc. No. 63 at 3-6.)
The Eighth Amendment to the United States Constitution protects a prisoner's right to “humane conditions of confinement including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from serious bodily harm” and requires prison officials to be “guided by contemporary standards of decency.” Thompson v. Lengerich, 798 Fed.Appx. 204, 209 (10th Cir. 2019) (quotation omitted).
Prison officials violate this standard when they are deliberately indifferent to an inmate's serious medical needs. Id. Deliberate indifference has both an objective and a subjective component. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The objective component is met if the deprivation is “sufficiently serious[,]” meaning the medical need “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (quotations omitted). “The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Crowson v. Washington Cnty., 983 F.3d 1166, 1178 (10th Cir. 2020) (internal quotations omitted); see also Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (“subjective component [of a deliberate indifference claim] is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm”) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Moreover, in determining whether a case differs in a meaningful way the Court may consider:
[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.Ziglar, 582 U.S. at 140.
The Court first acknowledges the similarities between this case and Carlson, with both cases involving a medical injury and an Eighth Amendment deliberate indifference claim. 446 U.S. at 14. However, recent guidance from the Supreme Court and the Tenth Circuit emphasize that factual similarities and “parallel circumstances” no longer suffice to warrant a Bivens remedy. See Egbert, 596 U.S. at 501; see also Silva, 45 F.4th at 1137 (“[a] claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.”) (quotation omitted). In fact, Plaintiff's claim is similar to deliberate indifference claims this Court and other district courts have found to arise in a new context. See, e.g., Mohamed v. Santisteven, No. 21-cv-02676-NYW-MDB, 2023 WL 6376709, at *10 (concluding Court could not use the “case's broad similarities with Carlson to conclude that Plaintiff's Bivens claims do not arise in a new context simply because they are based on deliberate indifference to his serious medical needs”); Bettis v. Grijalva, 21 Civ. 7505 (GWG), 2023 WL 4141869, at *6 (finding plaintiff's allegations arose in a new context distinct from Carlson where plaintiff alleged “he was ignored while his injuries left him with blood in his urine” and that he “did not receive medical attention until having a sonogram a month after [the] assault); Locke v. Root, No. 21-3051-DDC-JPO, 2023 WL 2914184, at *6 (D. Kan. Apr. 12, 2023) (a prison nurse ignoring repeated requests from plaintiff for medical attention after injuries sustained and ongoing pain caused by assault was a meaningfully different context than Carlson). Thus, Plaintiffs reliance on cases decided before the Supreme Court and Tenth Circuit's recent guidance is inapposite. (See Doc. No. 63 at 7 (relying on district court case from 2020; id. at 9 (relying on Tenth Circuit case from 2020.)
Therefore, given the Supreme Court's explicit instruction on the low threshold for finding a new context, this case is sufficiently distinguishable from Carlson. 446 U.S. at 16. Carlson concerned an extreme case where prison officials were sued for failing to treat a prisoner's chronic asthma, resulting in the prisoner's death. Id. By contrast, Plaintiff's claim focuses on correctional officers' failure to take him to a medical unit-not the failure of medical personnel to treat his injury. (Doc. No. 6 at 7.) See Ziglar, 582 U.S. at 140. Nor does Plaintiff allege he had a chronic medical condition, and he admits his injury was ultimately treated. (Id.) Finally, Plaintiff does not allege Defendants were aware that with his injury, Plaintiff faced a “substantial risk of serious harm and disregard[ed] that harm by failing to take reasonable measures[.]” Mohamed v. Jones, No. 20-CV-02516-RBJ-NYW, 2022 WL 523440, at *21 (D. Colo. Feb. 22, 2022). These distinctions render Plaintiff's claim meaningfully different from Carlson. See Ziglar, 582 U.S. at 148 (noting “even a modest extension is still an extension”).
Plaintiff's claim also differs from Bivens and Davis as he is not alleging a violation of the Fifth or Fourth Amendment. See Davis, 442 U.S. 228 at 248-49 (Bivens remedy established for gender discrimination under the Fifth Amendment Due Process Clause when an administrative assistant fired by a Congressman for being a woman); Bivens, 403 U.S. 388 at 396-97 (finding cause of action under the Fourth Amendment against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him for narcotics).
Accordingly, the Court concludes Plaintiff's claim arises in a new context. See Egbert, 596 U.S. at 491 (expanding the Bivens remedy is now “a disfavored judicial activity” and “[e]ven a single sound reason to defer to Congress' is enough to require a court to refrain from creating such a remedy”) (internal quotations omitted); Silva, 45 F.4th at 1140 (Bivens “is an action that is impermissible in virtually all circumstances.”).
II. Are there alternative remedies?
Having concluded Plaintiff's claim is not an already covered Bivens remedy, the Court turns its analysis to the second of the independent reasons for dismissal-the existence of an alternative remedy. See Noe v. United States, No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *8 (D. Colo. Dec. 14, 2022) report and recommendation adopted 2023 WL 179929 (D. Colo. Jan. 13, 2023) (either one of these reasons “alone provides an ‘independent means of disposing of Bivens claims,' regardless of their context.”) (quoting Silva 45 F.4th at 1141).
The availability of the Federal Bureau of Prisons (“BOP”) Administrative Remedy Program precludes Plaintiff's Bivens claim. See id. at *9 (availability of BOP Administrative Remedy Program foreclosed availability of a Bivens remedy against BOP officials); Silva, 45 F.4th at 1140-41 (existence of BOP Administrative Remedy Program constituted an adequate alternative remedy and on its own provided sufficient ground to foreclose plaintiff's Bivens claim). The BOP Administrative Remedy Program is a formal grievance procedure that courts have repeatedly recognized as an adequate alternative remedy. See Noe, 2022 WL 18587706, at *9; Silva, 45 F.4th at 1140-41. Additionally, Plaintiff does not allege that he does not have access to the Program and/or that this alternative remedy is otherwise unavailable. See Malesko, 534 U.S. at 74 (“Inmates in respondent's position also have full access to remedial mechanisms established by the BOP, including . . . grievances filed through the BOP's Administrative Remedy Program[.]”). In any case, even if this Court were to “independently conclud[e] that the Government's procedures are “not as effective as an individual damages remedy[,]” the Court is constrained from finding a Bivens remedy here. See Egbert, 596 U.S. at 498 (quotation omitted). This is because “it [does not] matter that ‘existing remedies do not provide complete relief'” and instead, “the question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts.” Id. at 493, 498.
Given that the BOPs Administrative Remedy Program precludes Plaintiff's Bivens claim, the Court need not address Defendant's remaining arguments about additional alternative remedies. (Doc. No. 55 at 12-13.) See Adams v. Martinez, No. 22-1425, 2023 WL 5273771, at *2 (10th Cir. Aug. 16, 2023) (affirming that “the prison grievance system available to [plaintiff] ‘offers an independently sufficient ground to foreclose' his Bivens claim) (quoting Silva, 45 F.4th at 1141.)
In making this recommendation, the Court acknowledges the troubling implications of Silva and Egbert, echoing the concern of other courts that current legal precedent could shield federal officials from accountability for misconduct in prisons. See Mohamed, 2023 WL 6376709, at *10 (noting that “had the alleged events in this case occurred in a state correction facility, [plaintiff] would have at least a cognizable claim to pursue and . . . this disparity underscores the need for Congress to act.”); Noe, 2022 WL 18587706, at *9 (“a federal prison official may sadistically beat an inmate to within an inch of his life and that inmate will not have a civil remedy against that prison official-after all, the inmate may file a grievance pursuant to the BOP Administrative Remedy Program”).
CONCLUSION
Based on the above analysis, the Court RECOMMENDS that Plaintiff's claims against Defendants be DISMISSED WITH PREJUDICE.
A court can dismiss a complaint with prejudice where, as here, a “Bivens remedy [is] not available as a matter of law. Rios v. Redding, No. 20-cv-01775-MEH, 2021 WL 365840, at *3 (D. Colo. Feb. 3, 2021).
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” U.S. v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. U.S., 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).