Opinion
CIVIL ACTION NO. 06-40090-GAO.
September 27, 2007
OPINION AND ORDER
I . Introduction
The plaintiff, Coy Phelps, is confined at the Federal Medical Center in Devens, Massachusetts ("FMC Devens"). In 1986 he was found not guilty only by reason of insanity in the United States District Court for the Northern District of California on charges of possessing, manufacturing, and placing pipe bombs at five San Francisco locations, in violation of 26 U.S.C. § 5861(d) and (f), and 18 U.S.C. § 844(f) and (I). Subsequently, Phelps was civilly committed to the custody of the Attorney General following a hearing pursuant to 18 U.S.C. §§ 4243 and 4247. Since that time, Phelps has been housed at and transferred between the FMCs in Springfield, Missouri; Rochester, Minnesota; and Butner, North Carolina, until his most recent transfer to FMC Devens in November, 2004.
In May 2006, Phelps filed a complaint naming the following FMC Devens officials as defendants: Disciplinary Hearing Officer Darren Bracy; Unit Manager David Taylor; Medical Officer Howard Haas; Correctional Officer Jason Lapier; Warden David Winn, and Correctional Officer Sony Bunn.
II. Phelps' Claims
In his complaint, Phelps asserted three causes of action underBivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and in March 2007, Phelps amended his complaint to add a fourth cause of action under Bivens. Throughout his claim, Phelps' overarching argument is that as a civilly committed person and not a "prisoner," the Federal Bureau of Prisons ("BOP") lacks the authority to confine him. The defendants have moved to dismiss all claims.
Although Phelps amended his complaint after the date of the defendants' motion to dismiss, apparently Phelps served the defendants with his amended complaint when he first filed his motion to amend his complaint, and accordingly the defendants' motion to dismiss addresses the operative amended complaint.
As a threshold matter, the defendants place great weight on the Prisoner Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e, arguing that its three-strikes provision and exhaustion requirement prevent this Court from hearing the merits of Phelps' claim. However, Phelps, as a civilly committed person pursuant to 18 U.S.C. § 4243, does not meet the PLRA's definition of "prisoner," which "means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." See 42 U.S.C. § 1997e(h); Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000). Accordingly, the PLRA does not apply to Phelps, and this Court may entertain the merits of his claims.
A. Phelps' First and Fourth Causes of Action
Phelps' first cause of action complains about a false disciplinary charge filed by Lapier, objects to a disciplinary hearing on the grounds of a lack of jurisdiction, and recites how Bracy tried, unsuccessfully, to charge Phelps with a disciplinary infraction and became angered when it appeared Phelps was right, shouting at and threatening Phelps. Phelps claims that "Bracy was callously indifferent to the status of Phelps as being a[n] unconvicted civilly committed mental patient who could not be treated as a convicted prisoner and who could not, lawfully, be disciplined or punished." (Am. Compl. at 20, ¶ 6.)
Bracy also vociferously rejected Phelps' assertion that he was designated by Dr. Haas to "single room only status" and brought Phelps to Dr. Haas, who "did not deny giving the status and he did not confirm giving the status," but said that he did not remember saying that. (Am. Compl. at 20, ¶ 7.) Phelps claims that Dr. Haas does not exercise his own judgment but rather "rubber stamps the wishes of the administration." (Am. Compl. at 20, ¶ 7.) Phelps claims that Bracy's belligerence caused him angina and he "had to take nitroglycerine tablets to stabilize."(Am. Compl. at 21, ¶ 7.) Bracy did not punish Phelps, but referred the matter back to the Unit Discipline Committee ("UDC") to set the punishment. Phelps claims this was unlawful because the UDC lacked jurisdiction over Phelps, and therefore had no authority to refer the matter to Bracy, nor did Bracy have the authority to refer it back. Phelps alleges that Bracy "angrily told Phelps to shut up or he would put him in disciplinary segregation." (Am. Compl. at 21 ¶ 9.)
Phelps' fourth cause of action complains about verbal abuses directed at him by Officer Sony Bunn, as a result of which he had an angina attack. Phelps alleges that Bunn "engaged in a diatribe against Phelps issuing threats of bodily injury to Phelps," yelled and swore at Phelps, and "assumed a combat position and tensed his body and shifted his weight forward as if imminently ready to hit Phelps." (Am. Compl. at 25.)
Phelps' first and fourth causes of action fail to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). To the extent that the first cause of action challenges his treatment by BOP officials being improper because he is a civilly committed person rather than a "prisoner," such a claim lacks merit and provides no basis for relief under Bivens. Phelps was committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4243, which requires that the Attorney General, if unable to cause a State to assume responsibility, must hospitalize a civilly committed person such as Phelps for treatment in a "suitable facility." A "suitable facility" is defined as "a facility that is suitable to provide care or treatment given the nature of the offense and the characteristics of the defendant." 18 U.S.C. § 4247(a)(2). Phelps' objections are categorical, rather than related to any specific aspects of FMC Devens, and therefore he is precluded from raising this issue because he has already unsuccessfully litigated this issue in other federal courts. See Lynch v. Merrell-National Lab.'s, 830 F.2d 1190, 1192 (1st Cir. 1987) (noting that "the traditional requirement of mutuality has been eliminated to permit a defendant to invoke estoppel against a plaintiff who lost on the same issue to an earlier defendant.");Phelps v. United States Bureau of Prisons, 62 F.3d 1020 (8th Cir. 1995) (holding that a federal medical center is a "suitable facility" for Phelps within the meaning of 18 U.S.C. 4243 and 4247); Phelps v, United States, 831 F.2d 897 (9th Cir. 1987) (holding that § 4243 is not unconstitutionally vague and overbroad).
The remainder of Phelps' allegations in his first and fourth causes of action are best construed as an attempt to claim a violation of his Fifth or Eighth Amendment rights for being caused emotional and physical distress by being subjected to verbal abuse by Bracy and Bunn. In order to maintain a Bivens action, a plaintiff must allege an injury to a clearly established constitutional right by a federal official. See Siegert v. Gilley, 500 U.S. 226, 233-34 (1991). Allegations of emotional damage by verbal harassment alone are not sufficient to state a claim under the Eighth Amendment. See e.g., Barney v. Pulsipher, 143 F.3d 1299, 1310 n. 11 (10th Cir. 1998); Shabazz v. Cole, 69 F.Supp.2d. 177, 199 (D. Mass. 1999); Duran v. Duval, 1998 WL 765726, *3 (D. Mass. 1998); Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y. 1998). Under the Fifth Amendment, the verbal abuse must shock the conscience or violate an identified liberty or property interest protected by the due process clause to give rise to a claim. See Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir. 1991). Phelps' emotional or dignitary injury which results solely from verbal harassment does not rise to the level of "conscience shocking," nor does it implicate any fundamental right, and therefore Phelps does not state a Fifth Amendment claim under Bivens upon which relief can be granted. See id. at 7.
Phelps also alleges that the verbal abuse and belligerence of Bracy caused him "to suffer an angina attack," for which he had to "take nitroglycerine tablets to stabilize," and that "the attack immobilized Phelps for the remainder of the day, that night, and most of the following day as well as causing Phelps to suffer, and endure, the pain of the attack." (Am. Compl. at 21, ¶ 7.) As to Bunn, Phelps edited his fourth cause of action describing the incident with Bun to add, "(Bun caused Phelps to suffer an angina attack)." However, this does not transform the verbal abuse itself into a violation of a constitutional right so as to give rise to a Bivens claim.
Even were the angina attack, if caused by Bracy's verbal abuse, sufficient to violate Phelps' constitutional rights, Bracy and Bunn would be entitled to qualified immunity. Federal officials are entitled to the same qualified immunity from suit underBivens as state officials are from suit under § 1983. See Harlow v. Fitzgerald, 457 U.S. 800, 809 (1982). They are entitled to qualified immunity unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." See id. at 818-89. This requires that, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). As already discussed, verbal abuse alone does not violate any constitutional right. Phelps does not allege that either defendant intended for him to suffer an angina attack, nor even that they knew this might happen to Phelps. Accordingly, even if the angina attacks constituted a physical injury flowing from Bracy's and Bunn's respective verbal abuses that are sufficient to violate a constitutional right, Phelps makes no allegations that Bracy, Bunn, or a reasonable person would have known this. See Harlow, 457 U.S. at 818-19. Therefore, Phelps' first cause of action fails to state a claim upon which relief can be granted and must be DISMISSED. See Fed.R.Civ.P. 12(b)(6).
B. Second Cause of Action
Phelps' second cause of action appears to state First and Fifth Amendment based claims. Phelps alleges that Taylor, Lapier, and Lyons (not a defendant):
[C]onspired to make a false disciplinary charge against Phelps and conspired to steal the property of Phelps as a continuous history and pattern of harassment and retaliation because of Phelps' religions beliefs, political views, and philosophical ideologies. They also retaliate against Phelps because he has filed complaints against officers and staff in court."
(Am. Compl. at 22 ¶ 1.) The defendants argue that an alleged deprivation of property is not actionable, and that in any event the existence of a sufficient post-deprivation remedy (such as the Federal Tort Claims Act, 28 U.S.C. §§ 2761 et seq.) prevents there from being a Due Process Clause violation under the Fifth Amendment. (Def.'s Mem. Supp. Summ. J. at 16.) This may be true to the extent that intentional destruction of a prisoner's personal property generally does not violate due process if there is an adequate post-deprivation remedy, and that the Federal Tort Claims Act provides such a remedy. See Hudson v. Palmer, 468 U.S. 517, 536 (1984); Del Raine v. Williford, 32 F.3d 1024, 1046 (7th Cir. 1994). However, although prison officials may be able to destroy or take a prisoner's property for a good reason, or for no reason at all, without running afoul of procedural due process if there is an adequate post-deprivation remedy, this does not imply that they can take such actions for the purpose of violating a prisoner's other constitutional rights, such as those guaranteed under the First Amendment. Accordingly, Phelps' second cause of action has stated a claim upon which relief can be granted.
C. Third Cause of Action
Phelps' third cause of action fails to state a claim upon which relief can be granted according to Fed.R.Civ.P. 12(b)(6). Phelps alleges that "Warden Winn has failed to make any rule, regulation, policy, statement, or memoranda regarding the care and treatment of the unconvicted civilly committed mental patients confined at the facility," (Am. Compl. at 23, ¶ 1) and further "has failed to supervise, manage, and control his subordinates in the care and treatment of the unconvicted civilly committed mentally ill and mentally disabled." (Am. Compl. at 23, ¶ 2.) As a result, Winn's subordinates "treat the unconvicted as if convicted," and "the committed as if they were sentenced." (Am. Compl. at 23, ¶¶ 4-5.) The officers and staff willfully violate the law "in reckless disregard [for] the rights of the unconvicted civilly committed mental patients. . . ." (Am. Compl. at 23, ¶ 7.) Warden Winn has notice "of the abuses [Phelps] has suffered . . . and has not taken any corrective action to eliminate the abuses." (Am Compl. at 23, ¶ 10.)
This appears to be nothing more than a restatement of Phelps' recurring claim that his commitment to a BOP facility under 18 U.S.C. § 4243 is unlawful because he is a civilly committed person rather than a prisoner. As discussed above, this argument is meritless as well as precluded by the doctrine of collateral estoppel. To the extent that Phelps discusses any "abuses," he must make more than mere conclusory allegations to survive a motion to dismiss. Accordingly, Phelps' third cause of action fails to state a claim upon which relief may be granted.
III. Conclusion
For the foregoing reasons, the defendants' motion to dismiss (dkt. no. 16) is GRANTED with respect to the first, third, and fourth causes of action alleged by Phelps. As to Phelps' second cause of action, the allegations that Taylor and Lapier filed a false disciplinary charge and took Phelps' property because of Phelps' religious beliefs, political views, and philosophical ideologies, the defendants' motion to dismiss (dkt. no. 16) is DENIED. There are no claims remaining against defendants' Colautti, Haas, Winn, and Bunn. The only defendants remaining in this case going forward will be Taylor and Lapier.
Since Phelps' only other case that is currently past the motion to dismiss stage (Civil Action No. 05-40003-GAO) involves three different defendants and different claims, both parties' motions to consolidate that case and this one (dkt. nos. 15 and 18) are DENIED without prejudice.
It is SO ORDERED.