Opinion
Civil No. 97-1457-KI
February 1, 2001
Leonard R. Berman, Beaverton, Oregon, for plaintiff.
Craig J. Casey, Assistant United States Attorney, Portland, Oregon, for defendant.
OPINION
Before the court is the motion for summary judgment (#69) by defendants United States of America and William Gatten. For the reasons set forth below, I grant in part and deny in part the motion.
FACTS
Plaintiff Robert Evans Mahler was convicted of the crime of Illegally Exporting A Defense Article, in violation of 22 U.S.C. § 2778 and 22 C.F.R. § 121.1, 127.1, for which he received an eighteen-month prison term with a three-year term of supervision to follow. He was incarcerated at the Federal Prison Camp ("FPC") in Sheridan, Oregon, from July 27, 1995 to July 11, 1996, except for a short period when he was incarcerated, for his own protection, in the Federal Detention Center ("FDC") Special Housing Unit ("SHU") during an investigation regarding an article allegedly written by him.
Before being incarcerated, Mahler had severe joint disease caused by athletics in school. He had already had numerous operations. Defendants assert that Mahler chose not to have knee replacement surgery while in prison, although he planned such surgery both before and during his incarceration. Mahler asserts that he did seek surgery while incarcerated but was told it was not available.
On September 21, 1995, Mahler was seen by Dr. Leroy Peel, a prison physician. Dr. Peel gave him a Medical Duty Status Report that stated in the remarks section "Requests have bunk assignment on 1st floor — due to DJD both knees." "DJD" means degenerative joint disease.
Gatten has been a Correctional Counselor at Sheridan since 1990. His duty is to act as a liaison between inmates and other staff within the institution. Mahler was on his caseload from July 30, 1995 until October 8, 1995 (a period of 69 days).
While on Gatten's caseload, Mahler was "medically cleared" except for the requirement of a lower bunk, which Mahler had while on Gatten's caseload. Gatten asserts that he was never aware of the above-referenced Medical Duty Status Report from Dr. Peel. Mahler asserts that, on or about September 22, 1995, he gave Gatten both the Medical Duty Status Report signed by Dr. Peel and his own written request for a first-floor assignment, yet he was not reassigned to a first-floor location. Gatten states that he received neither document.
On December 20, 1995, Mahler was removed from the FPC and placed in Administrative Detention ("AD") in the SHU of the FDC. Prior to being placed in AD, Mahler was given an Administrative Detention order signed by Lieutenant Kyle Olsen that stated "You're being placed into administrative detention for investigation into your possible involvement in writing a newspaper article wherein another inmate has labeled you — or was labeled a pedophiliac." Mahler remained in AD from December 20, 1995 until January 2, 1996. Thereafter, Mahler was assigned to bunk 104 in the J1 unit of the FDC until January 31, 1996. Mahler was then reassigned to Unit 5 at the FPC from January 31, 1996 until July 11, 1996, at which time he was released to a halfway house. During his assignment to Unit 5 at the FPC, he was assigned to an upper bunk for only 6 days, from January 31, 1996 until February 6, 1996. During his other time at Unit 5, he was assigned to a lower bunk. During the period he had an upper bunk, Gatten was not Mahler's Correctional Counselor.
After this litigation commenced, Mahler was examined by John M. Colletti, M.D. Dr. Colletti took a medical history from Mahler and examined him. Dr. Colletti found that Mahler suffered from advanced degenerative joint disease. Mahler had numerous injuries to his knees and had multiple surgical procedures in the late 1960's and early 1970's when he was athletically active. Dr. Colletti opined that Mahler experienced some additional pain during the course of his incarceration due to the need to climb stairs when he had second-level living accommodations.
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S.Ct. 375 (1999).
DISCUSSION
I. Nature of Complaint
Mahler's Amended Complaint, drafted by counsel, was filed on January 15, 1999 and states that it is brought pursuant to the Federal Torts Claim Act, 28 U.S.C. § 1346 (b), and the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. The caption of the Amended Complaint includes the word "Bivens," which I interpret as an indication that Mahler seeks to hold an individual federal employee (Gatten) liable for deprivation of his constitutional rights, pursuant toBivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Under this theory of liability, I note that Mahler also seeks to hold liable "Twenty John Does."
In their motion for summary judgment, defendants provide a useful analysis of Mahler's Amended Complaint, which is somewhat convoluted. The Amended Complaint is divided into two parts. The first part sets forth bare factual allegations about the conduct of prison staff. The second part makes statements in the form of five brief "counts" relating to the first part of the Amended Complaint.
The first part of the Amended Complaint makes the following allegations:
1. Throughout his imprisonment, Mahler requested lower-level (first floor as opposed to second floor) accommodations. The requests were denied by unidentified Bureau of Prison ("BOP") employees. This resulted in increased pain for Mahler and exacerbation of his medical condition.
2. On or about August 29, 1995, Mahler submitted a written request for soft-soled shoes, which request was denied. Who denied the request is not specified. Gatten is not listed as a participant.
3. On or about September 21, 1995, Dr. Peel provided Mahler with "written orders" for a first-floor bunk and "no climbing of stairs." Gatten and other unnamed officials "refused to honor the medical order." 4. On or about December 12, 1995, unnamed "Does" removed Mahler's legal files from his locker in the Special Housing Unit. It is not alleged who did so, the circumstances, or whether it was wrong to have done so. Gatten is not listed as a participant.
5. On or about December 12, 1995 and January 8, 1996, unnamed defendants (four of them) reviewed Mahler's legal files and refused to return them and assorted personal property to Mahler. No allegations are made regarding the circumstances, what the files contained, or what the property was. Likewise, no allegations are made that the review was wrong and why. Gatten is not named as a participant.
6. On or about January 1, January 9, January 16, and February 12, 1996, and continuing until Mahler's release, Mahler requested grievance procedures and was refused them. The persons who refused them, the reasons for the refusals, and the subject(s) of the grievances are not specified. Gatten is not named as a participant.
7. On December 20, 1995, five unnamed "John Does" placed Mahler in the SHU, in Administrative Detention, "for his own protection" and "because of allegations that plaintiff had been writing newspaper articles." No other details are provided and Gatten is not named as a participant.
8. On or about December 20, 1995 and January 31, 1996, while Mahler was being held in SHU and AD, unnamed defendants denied Mahler "proper reviews and hearings" under the "SFPC Bureau of Prison Program Statements, rules and guidelines." The circumstances that would require reviews and hearings are not specified, nor are the specific statements, rules, and guidelines that are implicated. Gatten is not named as a participant.
9. Apparently as a side note to the allegations described immediately above, Mahler alleges that, on or about January 31, 1996, upon release from SHU and AD, unnamed defendants told him that the proper reviews and hearings under the SFPC Bureau of Prison Program Statements, rules and guidelines were not done because the relevant personnel were "on vacation." Gatten is not named as a participant.
The second part of the Amended Complaint recites the following five "counts," based on the allegations summarized above:
1. Count 1: "Under the Federal Tort Claims Act the defendant United States is liable for the above described actions of the Sheridan Correctional Institution officials as they were acting within the scope of their employment." Assuming Mahler is alleging negligence on the part of the prison officials, there is no specificity or particularity regarding what the negligence entailed and by whom.
2. Count 2: "The actions and conduct of defendants William Gatton [sic] and as many as Twenty John Does, insofar as defendants acted or failed to act with deliberate indifference to plaintiffs health and safety, violated the right of plaintiff to be free from Cruel and Unusual Punishment under the Eighth Amendment." Mahler does not specify which conduct he is referring to here. However, given that the only factual allegation made about Gatten relates to his supposed refusal to obey a medical "order" of Dr. Peel, it appears that Mahler's Eighth Amendment claim is premised on that conduct.
3. Count 3: "The actions and conduct of defendants William Gatton [sic] and as many as Twenty John Does violated the right of plaintiff to be free from unreasonable detention, search and seizure under the Fourth Amendment and to due process of law under the Fifth Amendment for the absence of a pre-detention and/or any detention hearing." Mahler does not specify at which juncture in his incarceration a detention hearing was required. Although he mentions Gatten by name here, the earlier allegations in the Amended Complaint, as summarized above, state only that unnamed individuals placed Mahler in AD in the SHU.
4. Count 4: "The actions and conduct of defendants William Gatton [sic] and as many as Twenty John Does violated the right of plaintiff to free speech under the First Amendment by placing plaintiff in administrative detention for allegedly writing articles while in prison." Again, this statement does not follow from the first part of the Amended Complaint, in which Mahler alleges that "unnamed" defendants placed him in the SHU for his own protection.
5. Count 5: "The actions and conduct of defendants William Gatton [sic] and as many as Twenty John Does violated the right of plaintiff to Equal Protection under the Fourteenth Amendment by denying plaintiff accommodations and equipment provided to similarly situated ambulatorily-challenged fellow inmates, and subjecting plaintiff to unwarranted search, seizure and detention, not inflicted on similar inmates." Assuming that Mahler means to assert an equal protection claim under the Fifth Amendment rather than the Fourteenth Amendment, this "catch-all" claim does not tie in any of the specific factual allegations asserted in the first part of the Amended Complaint.
II. Claims Actually At Issue
In support of their motion for summary judgment, defendants attempt in their briefs to address every possible claim raised by the Amended Complaint and assert that each has fatal deficiencies. In his response, Mahler fails to respond to many of defendants' arguments and concedes others. For instance, Mahler concedes that he has no Bivens case against any of the "John Does" and that all of them may be dismissed. Plaintiffs Amended Response, p. 14. This concession leaves only Gatten as a Bivens defendant. This limitation, combined with the fact that Mahler's response only presses a subset of the allegations and theories of liability set forth in the Amended Complaint, significantly reduces the claims that are actually being litigated by the parties. They are as follows:
1. Eighth Amendment claim (cruel and unusual punishment) against Gatten personally (Bivens claim) for (1) his failure to follow Dr. Peel's "order" for a lower-level assignment; and (2) his failure to act on Mahler's request for a lower-level assignment.
2. FTCA Claim against the United States for its employees' negligence in assigning and maintaining Mahler in second-floor accommodations.
acknowledge that Mahler has also stated an equal protection claim, based on the allegation that other inmates who used canes had first-level accommodations. Mahler, however, provides no evidence that his condition was of the same severity as those who were placed in such accommodations, nor does he allege the protected class in which he would fall.
In short, what is clear from Mahler's response is that this is not a case about soft-soled shoes, seizure of personal property, the availability of grievance procedures, or whether Mahler received pre- or post-detention hearings. This is a case about whether the United States and one of its employees are liable for not accommodating Mahler's degenerative joint disease. With the exception of such "accommodation" claims, summary judgment is granted against all of Mahler's claims that are addressed by defendants in their memoranda and any other claims that can be construed from the Amended Complaint.
In regard to the last claim listed (i.e., that Mahler's rights under the Fourth and Fifth Amendments were violated when he did not receive pre- or post-detention hearings regarding placement into the SHU (see Count III)), Mahler does make a reference to that claim in his Amended Response. However, the reference is only made in the context of his FTCA claim against the government. Amended Response, p. 14. Given that the claim is in the nature of an intentional tort committed by prison employees (other than Gatten), the FTCA does not apply. Regardless Mahler's claim appears to be groundless in light of Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir. 2000) (incarcerated plaintiff had no protected liberty interest in being free from confinement in the SHU).
III. Merits of the Claims
In response to both the Bivens claim against Gatten and the FTCA claim against the government, defendants assert defenses premised on the assumption that the alleged decision not to follow Dr. Peel's "order" and/or Mahler's written request for first-floor accommodations was an exercise of Gatten's or other correctional officers' discretion. Such an argument is persuasive on its face regarding an inmate request, but requires a closer look when there is an allegation that a correctional counselor chose to disobey a medical "order" from a prison physician. Thus, a logical place to start is to determine whether Dr. Peel's "order" can be fairly construed as such.
As noted in the factual summary, the Medical Duty Status Report issued by Dr. Peel stated in the remarks section "Requests have bunk assignment on 1st floor — due to DJD both knees." By its language, the statement is equivocal and can be fairly construed as a request rather than a directive. Furthermore, the transcript from the deposition of Dr. Peel demonstrates that, while he did make the request, he did not believe it was his call to determine if Mahler was to be placed in first-floor accommodations. Peel Dep., pp. 14, 66. Rather, it is a discretionary call on the part of the prison staff given institutional considerations. Id. at 65-66. Nonetheless, an inference can be drawn from Dr. Peel's testimony that, in the absence of institutional considerations, his request was to be followed by a correctional counselor: "Well, what happens is that I request it. If the counselor says we can't do it for security reasons or for some other reason that he has, why, then he has the privilege of calling me and saying look, we've got a little bit of a problem here in the request. So it does not necessarily stand as an order." Id. at 17. Given Dr. Peel's testimony, on which both Mahler and defendants rely, I find that defendants are eligible for the defenses that they raise.
A. FTCA Claim Against the United States
The United States contends that recovery against it is barred due to the discretionary function exception to the FTCA ( 28 U.S.C. § 2680 (a)).
The FTCA is a limited waiver of sovereign immunity. The discretionary function exception established by 28 U.S.C. § 2680 (a) preserves the sovereign immunity of the United States with respect to "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." When the discretionary function exception applies, the FTCA claim must be dismissed for lack of subject matter jurisdiction. Sigman v. United States, 217 F.3d 785, 793 (9th Cir. 2000).
As noted above, Mahler seeks to hold the United States liable for its employees' negligence in (1) assigning him to second-floor accommodations, given that the government knew of his medical conditions; and (2) failing to reassign him to first-floor accommodations. Whether the discretionary function exception bars recovery for such negligence depends on two factors. First, a discretionary act must be involved. In other words, the act for which liability is sought to be imposed must involve "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322 (1991). Therefore, if "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," the discretionary function exception does not apply. Id. at 322. Second, "even assuming the challenged conduct involves an element of judgment, it remains to be decided whether that judgment is of the kind that the discretionary function exception is designed to shield." Id. at 322-23. "Because the purpose of this exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy . . ., the exception protects only governmental actions and decisions based on considerations of public policy." Id. at 323.
As demonstrated by the government in its opening brief, there is no federal statute, regulation, or policy that specifically prescribes a mandatory, non-discretionary procedure for classifying prisoners and placing them in particular accommodations. Furthermore, as discussed above, the testimony of Dr. Peel reflects the discretion that a correctional counselor such as Gatten has when he receives a "request" for particular accommodations from a prison physician. Accordingly, the applicability of the discretionary function exception to the FTCA depends on whether the nature of the decisions at issue are based on policy considerations.
"When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Id. at 324. I conclude that day-to-day decisions regarding bunk/level assignments, such as at issue in this case, are the means by which prison officials implement the more general policies regarding placement and accommodation of prisoners and that the decisions balance policy considerations such as inmate health conditions, space limitations, and security concerns. See Alfrey v. Crabtree, U.S.D.C. Oregon, Civil No. 99-63 (August 7, 2000) (in case involving alleged negligence of BOP employees in housing two inmates together, the court concluded "[T]here is no question that the defendants['] decisions were guided by policy considerations that included a need to balance inmate security with the rights of inmates to circulate and socialize, as well as the need to address other security concerns that existed at the same time as [the plaintiffs] complaint."). The discretionary function exception to the FTCA is applicable and this court lacks subject matter jurisdiction over Mahler's FTCA claim.
B. Bivens Claim Against Gatten
Gatten argues that he has qualified immunity against the Bivens claim asserted against him. The Supreme Court formulated the following objective qualified immunity standard:
[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity defense protects all government officials except those who are "plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
On summary judgment, it is the judge's function to determine the current law and decide whether that law was clearly established at the time the conduct occurred.
If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful. . . . If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.Harlow, 457 U.S. at 818-19.
The plaintiff bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct. If the plaintiff meets this burden, the defendants must prove that their conduct was reasonable even though it might have violated constitutional standards. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
Thus, when presented with a motion for summary judgment based on qualified immunity, the court must engage in a two-part analysis: (1) was the law governing the official's conduct clearly established; and (2) could a reasonable official have believed the conduct was lawful under that law? Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). The first part of the test is a question of law for the court. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995). The second part of the test is a mixed question of law and fact involving the objective inquiry of whether a reasonable officer "could have believed that his conduct was lawful in light of what he knew and the action he took." Id. Any genuine issues of material fact concerning the underlying historical facts of what the officer knew or what he did are questions of fact for the jury. Id.; Act Up!/Portland, 988 F.2d at 873. However, where the essential facts are undisputed, the reasonableness of the officer's actions is properly determined by the court. Sinaloa Lake, 70 F.3d at 1100, citing Hunter v. Bryant, 502 U.S. 224, 227-28 (1991).
For the first step of the qualified immunity analysis, there is no question that the law governing Gatten's conduct was well-established (i.e., under the Eighth Amendment, a correctional counselor cannot be deliberately indifferent to serious medical needs of a prisoner). For the second step (i.e., could a reasonable official have believed his conduct was lawful), it is important to first specify what conduct is at issue. Importantly, Mahler alleges that Gatten received and ignored both Dr. Peel's Medical Duty Status Report and Mahler's written request for first-level accommodations, while Gatten asserts he received neither. Given that factual dispute about such a key issue, summary judgment is not possible. Moreover, even if I assume Mahler's allegations are true and, accordingly, ask whether a reasonable official would have believed ignoring the requests for first-level accommodations was lawful, summary judgment would be inappropriate. As explained above, based on Gatten's and Dr. Peel's testimony, a reasonable person in Gatten's position, who was inclined to not grant the requests, would have at least contacted Dr. Peel to discuss institutional considerations that weighed against the requested accommodation. I cannot conclude that Gatten has qualified immunity and, accordingly, summary judgment is denied as to Mahler'sBivens claim against Gatten.
CONCLUSION
The motion for summary judgment (#69) by defendants United States of America and William Gatten is granted in part and denied in part.
ORDER
The motion for summary judgment (#69) by defendants United States of America and William Gatten is granted in part and denied in part.
IT IS SO ORDERED.