Opinion
Civil Action 22-cv-02854-PAB-MDB
01-03-2024
PRINCE E. JONES, Plaintiff, v. USA, FEDERAL BUREAU OF PRISONS, JENNIFER SEROSKI, and B. FOSTER Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARITZA DOMINGUEZ BRASWELL UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on two motions: (1) Defendants United States of America, Federal Bureau of Prisons (“BOP”), Jennifer Seroski, and B. Foster's Motion to Dismiss the Second Amended Prisoner Complaint (ECF No. 25), ([“Motion to Dismiss”], Doc. No. 47); and (2) Plaintiff Prince E. Jones' Motion for Appointment of Counsel, ([“Motion to Appoint Counsel”], Doc. No. 16.) Plaintiff has responded and Defendants have replied to the Motion to Dismiss. ([“Plaintiff's Response”], Doc. No. 59; [“Defendants' Reply”], Doc. No. 61.) Additionally, Defendants responded to the Motion to Appoint Counsel indicating no opposition, ([“Defendants' Response”], Doc. No. 37), and no reply has been filed. Having carefully considered the issues, the Court RECOMMENDS that the Motion to Dismiss be GRANTED IN PART and DENIED IN PART, and it DENIES the Motion to Appoint Counsel.
PRO SE SUMMARY
The Court recommends partial dismissal of your Second Amended Complaint.
Specifically, the Court recommends dismissing the following: Bivens claims against Defendants Seroski and Foster; Fifth and Eighth Amendment official capacity claims against Defendants BOP, Seroski, and Foster; and your Federal Tort Claims Act (“FTCA”) claims for confiscation of property and under the Accardi doctrine. However, the Court is not recommending dismissal of your FTCA claim for medical malpractice, which means that if the presiding judge accepts this Recommendation, your medical malpractice claim will proceed. Also, at this time the Court is denying your motion for appointment of counsel because the circumstances do not warrant it. This is only a high-level summary of this Court's decision and does not contain all the relevant information. The full decision is set forth below, along with details about your right to object to this decision.
BACKGROUND
Plaintiff, currently an inmate at the United States Penitentiary, Administrative Maximum Facility (“ADX”) in Florence Colorado, asserts multiple claims related to his transfer to ADX. (Doc. No. 25 at 2-6.) The named Defendants are Seroski, a physician's assistant; Foster, a Special Investigative Services technician; the BOP, and the United States. (Id.)
According to the allegations, when Plaintiff arrived at ADX, Defendant Seroski “refused to provide [him] with a medical assessment of his known documented medical needs” and denied him a “[f]ull [p]hysical” examination even though she was aware Plaintiff had not undergone a “full physical in over 6 years.” (Id. at 6-7, 10.) Additionally, Plaintiff alleges that despite numerous requests, he has yet to receive a physical examination. (Id. at 6.) Plaintiff also alleges Defendant Seroski subsequently “issued [P]laintiff a Medicated Scalp Shampoo[,]” instructing him to use it as “lotion for his body[.]” (Id. at 7.) This resulted in “a chemical burn to his body skin[,]” causing his “skin to bleed from cracking,” and inflicting “serious pain[.]” (Id.) Plaintiff then requested treatment for the chemical burns, but his “request was rejected[,]” leaving him to “suffer the pain from the injuries with no treatment or care[.]” (Id.)
Additionally, Plaintiff alleges that during his transfer to ADX, Defendant Foster allegedly “confiscated two of Plaintiffs personal books and documents[,]” even though Plaintiff was “entitled to mail home any personal property” that was not allowed at the prison. (Id. at 9,12.) Shortly thereafter, Plaintiff filed the operative Complaint asserting: (1) two Fifth and Eighth Amendment claims against Defendants Seroski and Foster under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); (2) two Fifth and Eighth Amendment claims against Defendants BOP, Seroski, and Foster; and (3) three FTCA claims against the United States. (Id. at 2-14.)
In the instant Motion, Defendants request dismissal of Plaintiff's claims on the grounds that: (1) there is no Bivens remedy for Plaintiff's Fifth and Eighth Amendment claims against Defendants Seroski and Foster, and in any case, they are entitled to qualified immunity; (2) the Fifth and Eighth Amendment claims against Defendants BOP, Seroski, and Foster fail because Plaintiff has not adequately alleged any constitutional violation; and (3) the Court has no subject matter jurisdiction over Plaintiff's FTCA claims. (Doc. No. 47 at 3-15.) In response, Plaintiff contends: (1) the United States Supreme Court has already recognized a deliberate indifference claim under the Eighth and Fifth Amendments and Defendants Seroski and Foster are not entitled to qualified immunity; (2) he has sufficiently alleged violations of his constitutional rights; and (3) his FTCA claims are valid. (Doc. No. 59 at 10-16.)
LEGAL STANDARDS
I. Motion to Dismiss
Federal Rule of Civil Procedure Rule 12(b)(1) allows a court to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Such dismissal is not a judgment on the merits of a plaintiff's case; rather, it is a determination that a court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations in the complaint. Creek Red Nation, LLC v. Jeffco Midget Football Ass'n., Inc., 175 F.Supp.3d 1290, 1293 (D. Colo. 2016). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking[,]” Caballero v. Fuerzas Armadas Revolucionarias de Colombia, 945 F.3d 1270, 1273 (10th Cir. 2019) (quotation omitted), and the dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).
Challenges to subject matter jurisdiction may take two forms-a facial attack or a factual attack-each with distinct analytical frameworks. U.S. v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). A facial challenge focuses on the sufficiency of the allegations in the complaint. Id. In resolving a facial challenge, “the district court must accept the allegations in the complaint as true.” Id. By contrast, a factual challenge allows a party to “go beyond allegations contained in the complaint and challenge the facts upon which subject matter depends.” Id. (quotation omitted). In addressing a factual challenge to subject matter jurisdiction, “the court does not presume the truthfulness of the complaint's factual allegations, but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (citation and quotations omitted); see also Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (“a court's reference to evidence outside the pleadings does not convert the motion into a Rule 56 motion”). The burden of establishing subject matter jurisdiction lies with the party asserting it. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005).
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). When ruling on such a motion, 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 evaluates “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).
C. PRO SE Litigants
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. Motion to Appoint Counsel
Whether to appoint pro bono counsel in a civil case is a determination left to the sound discretion of the district court. Dona't v. Amazon.com/Kindle, 482 F.Supp.3d 1137, 1145 (D. Colo. 2020). The court is not authorized to appoint counsel-instead, the court can only ask an attorney to take the case. Moaz v. Denver Int'l Airport, 747 Fed.Appx. 708, 711 (10th Cir. 2018). In deciding whether to request counsel for a civil litigant, the court should evaluate “the merits of a [litigant's] claims, the nature and complexity of the factual issues, and the [litigant's] ability to investigate the facts and present his claims.” Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted); accord D.C.COLO.LAttyR 15(f)(1)(B)(i)-(iv) (outlining factors the court should consider in determining whether to appoint pro bono counsel). Ultimately, the burden is on the applicant to demonstrate that his claim is sufficiently meritorious to warrant appointment of counsel. Hill, 393 F.3d at 1115. “Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court's decision be overturned.” Id. (citation omitted).
ANALYSIS
The Motion to Dismiss seeks dismissal of individual capacity claims under Bivens, official capacity claims under the Fifth and Eighth Amendments, and FTCA claims. The Court addresses each in turn, then moves on to the Motion to Appoint Counsel.
I. Motion to Dismiss
A. Individual Capacity Claims Under Bivens
Defendants first argue that there is no Bivens remedy available for Plaintiff's Fifth and Eighth Amendment claims against Defendants Seroski and Foster in their individual capacities because these claims arise in new contexts and the government has already provided alternative remedies. (Doc. No. 47 at 3-8.) Plaintiff broadly disputes these arguments and references cases where the Supreme Court has recognized Fifth and Eighth Amendment Bivens claims. (Doc. No. 59 at 10-12.)
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the 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 must 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). 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.
If the case does arise in a new context, the second step involves determining whether there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Id. at 136 (internal quotations omitted).
The Supreme Court recently clarified that the two-step approach often converges into 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, 492 (2022). In other words, “[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 (emphasis in original) (quoting Ziglar, 582 U.S. at 136).
The Tenth Circuit has interpreted the Supreme Court's clarification as altering the two-step Bivens framework. Silva v. U.S., 45 F.4th 1134, 1139 (10th Cir. 2022). In Silva, the Tenth Circuit highlighted that the key takeaway from the Supreme Court's decision in Egbert 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 (emphasis in original) (quoting Egbert, 596 U.S. at 494).
In short, when analyzing Plaintiff's Bivens claim, this Court must first determine if the relief requested is already recognized by Bivens, Davis, or Carlson. If so, then Plaintiff is entitled to a Bivens remedy. But if not, the Court considers: (1) whether Congress is better positioned to create a remedy in this context; or (2) whether the government has already provided an alternative remedy. If either applies, the Court must dispose of the Bivens claim.
1. Is Plaintiff's requested relief already recognized under Bivens , Davis , or Carlson ?
The Court first considers whether Plaintiff's Fifth or Eighth Amendment claims seek relief already recognized in prior Bivens contexts.
a. Fifth Amendment Bivens Claim-Foster
Defendants argue that Plaintiff's Fifth Amendment claim against Defendant Foster, alleging wrongful confiscation of property, should be dismissed. Specifically, Defendants allege the underlying facts in this case present a new context because the Supreme Court has not recognized a procedural due process or takings claim as a Bivens remedy. (Doc. No. 47 at 5-6.) Plaintiff generally disputes this argument. (Doc. No. 59 at 10-11.)
The Second Amended Complaint does not clearly state whether Plaintiff is asserting a claim under the Fifth Amendment's Takings Clause or Due Process Clause. (See generally Doc. No. 25.) But because a takings claim involves “private property . . . taken for public use without just compensation[,]” and Plaintiff does not allege that the taking of his books and legal documents were for public use or that he was not properly compensated-the Court interprets Plaintiff's Fifth Amendment claim under the Due Process Clause. U.S. Const. amend. V. In any case, either claim would present a new Bivens context.
Plaintiff's Fifth Amendment claim presents a new Bivens context for several reasons.
First, this case involves a different type of “official action” compared to Carlson, Davis, and Bivens. Plaintiff seeks to impose liability on a Special Investigative Services technician for confiscating property, as opposed to a prison official's medical treatment of an inmate like in Carlson, a police officer's arrest of a suspect like in Bivens, or a congressman's firing of staff like in Davis. Second, although the Supreme Court previously extended a Fifth Amendment Due Process claim in Davis, it did so under different circumstances than here. Davis, 442 U.S. at 23031. In Davis, the Supreme Court recognized a Bivens remedy for gender discrimination under the Fifth Amendment Due Process Clause when a Congressman fired his female secretary. Id.
However, in this case, Plaintiff alleges a violation of his “property right interest” and “right to due process” due to confiscation of his personal books and documents during his transfer to ADX. (Doc. No. 25 at 9.) So, unlike in Davis, Plaintiff's claim does not involve gender discrimination or unlawful termination. Thus, despite basing his claim on the same constitutional provision as in Davis, the “superficial similarities are not enough to support the judicial creation of a cause of action.” Egbert, 596 U.S. at 495; Malesko, 534 U.S. at 74 (rejecting a Bivens remedy for procedural due process claim brought by a federal inmate); Louis-El v. Ebbert, 448 F.Supp.3d 428, 439-40 (M.D. Penn. 2020) (finding that a prisoner's Fifth Amendment Due Process violation for the withholding of prisoner property arose in a new context for Bivens purposes).
b. Eighth Amendment Bivens Claim-Seroski
Defendants also argue the Eighth Amendment claim against Defendant Seroski introduces a new context because the underlying facts of this case differ from Carlson. (Doc. No. 47 at 6.)
Plaintiff alleges Defendant Seroski violated his Eighth Amendment rights by “refus[ing] to provide [him] with a medical assessment of his known documented medical needs upon arrival at the ADX,” denying his request for a full physical exam, and providing a “medicated scalp shampoo” which caused “a chemical burn[,]” Plaintiff's “skin to bleed from cracking,” and “serious pain.” (Doc. No. 25 at 7.)
The Eighth Amendment 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).
As Carlson is the only of the three Bivens cases addressing the Eighth Amendment, the Court's analysis focuses on this case. In Carlson, prison officials were sued for failing to treat an inmate's asthma which resulted in the inmate's death. See Carlson, 446 U.S. at 16 and n.1. By contrast, Plaintiff's Eighth Amendment claim concerns Defendants' alleged mistreatment of Plaintiff's skin condition. Indeed here, Plaintiff admits his injury was treated through prescribed medication, albeit inadequately. Moreover, unlike in Carlson, this case does not involve a fatality due to lack of medical treatment, but rather discomfort, pain, and dissatisfaction with the course of treatment chosen by Defendants. The Court, therefore, finds this claim is not sufficiently similar to Carlson.
Additionally, the facts in Plaintiff's case are similar to other Eighth Amendment cases 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 (court could not use “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 (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 received 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) (prison nurse ignoring repeated requests from plaintiff for medical attention after physical injuries was a meaningfully different context than Carlson).
Therefore, the Court concludes Plaintiff's Eighth Amendment claim against Defendant Seroski constitutes a new Bivens request that is not already recognized by Supreme Court precedent. See Ziglar, 582 U.S. at 147 (“even a modest extension is still an extension”).
2. Must the Court dispose of these new context Bivens claims?
Since Plaintiff's Fifth and Eighth Amendment claims request relief outside of recognized Bivens contexts, the Court now considers: (1) whether Congress is better positioned to create a remedy; or (2) whether the government has already provided an alternative remedy. The Court agrees with Defendants that Plaintiff's access to the BOP Administrative Remedy Program is an alternative remedy that precludes relief here. (Doc. No. 47 at 5, 8.)
The BOP Administrative Remedy Program allows inmates to seek formal review of an issue relating to any aspect of their confinement, including medical treatment. See 28 C.F.R. §§ 542.10-542.19; see also Noe v. U.S., No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *8 (D. Colo. Dec. 14, 2022) (BOP remedy available to plaintiff for his medical negligence claim), report and recommendation adopted, 2023 WL 179929 (D. Colo. Jan. 13, 2023). The BOP also offers an administrative tort claims procedure for inmates to file a claim related to damaged or lost property. See 28 C.F.R. §§ 543.30-543.32.
Both the Supreme Court and Tenth Circuit have recognized that filing grievances through the BOP Administrative Remedy Program serves as an alternative means to address unconstitutional conduct in prisons. See Malesko, 534 U.S. at 74; K.B. v. Perez, 664 Fed.Appx. 756, 759 (10th Cir. 2016). Courts emphasize this administrative process allows inmates to bring alleged unconstitutional actions and policies by BOP officials to the attention of the BOP, preventing their recurrence. See Mohamed v. Jones, No. 20-cv-02516-RBJ-NYW, 2022 WL 523440, at *10 (D. Colo. Feb. 22, 2022); Malesko, 534 U.S. at 74 (finding BOP's administrative remedy scheme was adequate for inmate seeking relief under Bivens).
Here, Plaintiff had access to the BOP's Administrative Remedy Program and utilized the administrative process to file grievances related to the allegations in this case. Indeed, Plaintiff explicitly stated in his Second Amended Complaint that he “exhausted every available administrative remedies [sic]” and attached correspondence showing the grievances and subsequent appeals he filed. (Doc. No. 59 at 8, 22-27.) Documents attached to Plaintiff's Response show that Plaintiff filed administrative claims for damages related to the treatment of his skin condition and mishandling of his property. (Id. at 24-28.) Regarding the medical treatment, the BOP conducted an investigation and, in a letter dated July 27, 2022, stated there was “a clear progression of clinical assessments and treatment in accordance with evidence based standard of care[.]” (Id. at 24.) And in response to Plaintiff's property claim, the BOP denied the relief requested and concluded that “an investigation of [Plaintiff's] claim revealed that [he] did not suffer any property loss or damage as a result of the negligent acts or omissions” of BOP employees. (Id. at 28.) While Plaintiff argues this process did not provide him with adequate relief, (Id. at 8), he fails to allege any facts showing how/why the process was inadequate. See Allen v. Reynolds, 475 Fed.Appx. 280, 283 (10th Cir. 2012) (adequate administrative remedy where Plaintiff did not allege facts to show “that the process was faulty or unresponsive”). Therefore, the BOP Administrative Remedy Program offered an adequate alternate remedy to address Plaintiff's grievances. Thus, the Court declines to extend a Bivens remedy here, and the Fifth and Eighth Amendment claims against Defendants Foster and Seroski in their individual capacities should be dismissed.
The Court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and documents subject to judicial notice-including public records from administrative proceedings. Hodgson v. Farmington City, 675 Fed.Appx. 838, 840-41 (10th Cir. 2017); see also JP Morgan Trust Co. Nat. Ass'n v. Mid-America Pipeline Co., 413 F.Supp.2d 1244, 1263 (D. Kan. 2006) (“The motion relied on administrative rulings which are properly the subject of judicial notice that the court may consider in resolving a motion to dismiss.”)
Because no Bivens remedy exists, there is no need to address Defendants' arguments that qualified immunity might apply. Yang v. Mayorkas, No. 20-cv-01806-RM-KMT, 2021 WL 1200682, at *12 n.11 (D. Colo. Feb. 25, 2021) (“If no private right of action exists against the defendants in their individual capacities, then a qualified immunity . . . analysis would be unnecessary.”) (quotation omitted), report and recommendation adopted, 2021 WL 1192965 (D. Colo. Mar. 30, 2021); Medina v. Danaher, 445 F.Supp.3d 1367, 1370 (D. Colo. 2020) (“Whether a Bivens remedy exists for [plaintiff's] claims is antecedent to the question of whether defendant is entitled to qualified immunity.”) (alterations omitted).
B. Official Capacity Claims
The Court next addresses Defendants' arguments that the claims against Defendants BOP, Seroski, and Foster in their official capacities lack merit because Plaintiff has not adequately alleged a Fifth or Eighth Amendment constitutional violation. (Doc. No. 47 at 8.) According to Plaintiff, Defendants violated his Fifth Amendment right by “confiscate[ing] two of [his] personal books and documents” during his transfer to ADX. (Doc. No. 25 at 9.) He also alleges Defendants violated his Eighth Amendment by not conducting a full physical examination, mistreating his skin condition, and neglecting to follow up after the provided treatment provided caused Plaintiff's skin to “bleed from cracking” and “serious pain[.]” (Id. at 67.)
1. Fifth Amendment Official Capacity Claim
To state a Fifth Amendment due process claim, Plaintiff must allege facts plausibly showing that: (1) he possesses a protected liberty interest of which he has been deprived; and (2) the procedures followed in addressing his liberty interest were constitutionally insufficient. Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
In the context of prisons, the Supreme Court has established that a liberty right exists only where an interference with that right would impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995); see also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). The inquiry focuses on the “nature of the deprivation” rather than the “language of a particular regulation.” Sandin, 515 U.S. at 481. And, as relevant here, the availability of a prison administrative remedy procedure to challenge an intentional deprivation of property precludes a federal due process claim. Williams v. Mestas, 355 Fed.Appx. 222, 224 (10th Cir. 2009).
In this case, the Court cannot conclude that Plaintiff has adequately alleged a constitutionally protected interest in his books and documents. To establish a constitutionally protected liberty interest in his property, Plaintiff must show the confiscation of his books and documents resulted in an “atypical and significant hardship[.]” See Sandin, 515 U.S. at 484; Steffey, 461 F.3d at 1221. However, Plaintiff's allegations fall short, as he has not alleged adverse consequences beyond the general constraints of incarceration. Despite briefly mentioning the property consisted of “legal documents[,]” Plaintiff does not further describe the property, or how losing the property significantly impacted his day-to-day life or caused significant hardship. (Doc. No. 25 at 9). Additionally, courts in this district have previously dismissed an “impoundment of property claim [as] it does not inevitably affect the duration of [a plaintiff's] sentence[.]” Davis v. Fox, 17-cv-00679-GPG, 2017 WL 4004434, at *1; see also Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012) (In the prison context, the due process clause safeguards “only a narrow range of protected liberty interests.”).
Plaintiff also has not shown that the procedure utilized to confiscate the books and documents was inadequate under the circumstances. Swarthout, 562 U.S. at 219. This is because Plaintiff had an adequate post-deprivation remedy available-the BOP Administrative Remedy Program. See Williams, 355 Fed.Appx. at 224; Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation of property does not constitute a violation of the Due Process Clause “if a meaningful postdeprivation remedy for the loss is available”); see also Malesko, 534 U.S. at 74 (recognizing BOP Administrative Remedy Program considered adequate remedy). As discussed, Plaintiff acknowledges he used and exhausted all available administrative remedies. (Doc. No. 59 at 8.) See Wilson v. U.S., 29 Fed.Appx. 495, 497 (10th Cir. 2002) (inmate failed to demonstrate a Fifth Amendment due process violation based on an intentional loss of his personal property where inmate was afforded an administrative remedy). And although Plaintiff appears to suggest the administrative remedy process was inadequate, he fails to explain the inadequacies or detail what, if anything, prevented him from going through a proper BOP remedy process. See Requena, 893 F.3d at 1212-13 (recognizing that a plaintiff “must plead facts showing that his state [post-deprivation] remedy was inadequate”) (alteration in original and quotations omitted). Plaintiff's failure to substantiate his allegations is particularly significant considering “Tenth Circuit jurisprudence demonstrates that control of the amount of papers an inmate has in his or her cell by the correctional facility does not violate the Fifth Amendment.” Eusi v. Martinez, No. 10-cv-01795-PAB-MEH, 2011 WL 4502072, at * 7 (D. Colo. June 7, 2011).
Because Plaintiff does not demonstrate how the confiscation of his personal property violated his Fifth Amendment rights, the claims against Defendants BOP, Foster, and Seroski in their official capacities, should be dismissed.
2. Eighth Amendment Official Capacity Claim
The Eighth Amendment is violated when prison officials act with deliberate indifference to a serious risk of harm to inmate health or safety. Thompson, 798 Fed.Appx. at 209. Deliberate indifference has both an objective and a subjective component. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). To satisfy the objective component, a prisoner must allege that 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 satisfied “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, 839 (1994)).
The Court concludes Plaintiff's claim falters at least on the subjective component, if not both. Here, Plaintiff alleges he never received a full physical examination and that Defendants were deliberately indifferent to his injury resulting from the improper treatment of his skin condition. (Doc. No. 25 at 6-7.) But those allegations are contradicted by the decision to Plaintiff's request for an administrative remedy, where it is noted that Plaintiff was “counseled on [his] plan of care” and “verbaliz[ed] understanding,” and was “evaluated by the Duty Nurse” when Plaintiff “complain[ed] of his skin being dry, feeling tight and burning[.]” (Doc. No. 59 at 24, Exhibit B.) During counseling Plaintiff was directed to “increase[e] [his] water intake” and “provided a small amount of lotion.” (Id.) Thus, even if the initially prescribed medication had adverse effects, Plaintiff's own exhibits demonstrate Defendants were not deliberately indifferent to his injury. See Farmer, 511 U.S. at 844 (“prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”); see also Lane v. Klingler, 25 Fed.Appx. 781, 783 (10th Cir. 2001) (“A delay in providing medical treatment is not actionable unless it is occasioned by deliberate indifference which results in substantial harm, which has not been demonstrated here.”) (internal quotation omitted).
As noted above, Plaintiff's Response included a copy of the publicly available administrative decision denying Plaintiff's request for additional medical treatment. See Hodgson, 675 Fed.Appx. at 840-41 (10th Cir. 2017); see also Fresenius Kabi USA, LLC v. Custopharm, Inc., No. 20-cv-03254-RM-MEH, 2021 WL 651022 (D. Colo. Feb. 19, 2021) (“The Court can rely on these documents and the other administrative filings that are attached to the parties' briefs because they are part of the public record and their authenticity is not in dispute.”).
C. FTCA Claims
Defendants also seek dismissal of Plaintiff's confiscation of property, medical malpractice, and Accardi claims, which arise under the FTCA. (Doc. No. 47 at 13-15.) In response, Plaintiff contends the Court has subject matter jurisdiction over all three FTCA claims and broadly opposes Defendants' arguments. (Doc. No. 59 at 14-15.)
Generally, the United States is immune from suit and must consent to being sued before a court can have subject matter jurisdiction. U.S. v. Mitchell, 463 U.S. 206, 212 (1983). However, under the FTCA, the government waives sovereign immunity for state law tort claims, allowing suits for money damages arising from the negligent or wrongful acts of government employees. See Garling v. U.S. Env't. Prot. Agency, 849 F.3d 1289, 1294 (10th Cir. 2017). Specifically, under the FTCA, the United States may be sued
for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1) (emphasis added). Thus, the sovereign immunity waiver applies only when the claimant would have a viable claim against a private party under the laws of the state where the incident happened, here, Colorado. “Put another way, the FTCA incorporates the substantive law of the state where the tortious act or omission occurred.” Augutis v. U.S., 732 F.3d 749, 752 (7th Cir. 2013) (quotation omitted).
The Tenth Circuit has provided three guiding principles for determining if there has been a waiver under the FTCA: (1) strict construction of the waiver's scope, in favor of the sovereign; (2) narrow construction of exceptions to the FTCA; and (3) the burden is on the suing party to prove waiver. Ohlsen v. U.S., 998 F.3d 1143, 1154 (10th Cir. 2021). Although a court should never “narrow the waiver that Congress intended,” U.S. v. Kubrick, 444 U.S. 111, 118 (1979), “[a]ny ambiguities in the statutory language are to be construed in favor of immunity, so that the Government's consent to be sued is never enlarged beyond what a fair reading of the text requires.” FAA v. Cooper, 566 U.S. 284, 290 (2012) (internal quotation marks and citation omitted).
Moreover, as relevant here, the FTCA's limited waiver of immunity does not extend to claims based on “the detention of any goods, merchandise, or other property by . . . any law enforcement officers. 28 U.S.C. § 2680(c). For the purposes of the statute, “prison officials constitute ‘other law enforcement officers[.]'” Bruscino v. Pugh, 232 Fed.Appx. 763, 764 (10th Cir. 2007) (quoting 28 U.S.C. § 2680(c); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227-28 (2008) (prison officials who allegedly lost inmate's personal property during his prison transfer were law enforcement officers under § 2680(c)).
1. Confiscation of Property
Regarding the confiscation of Plaintiff's property, Defendants contend the FTCA does not waive immunity for detention of property by law enforcement officers, (Doc. No. 47 at 13), whereas Plaintiff contends the claim is proper pursuant to U.S.C. § 2680(c). (Doc. No. 59 at 15.) The Court agrees with Defendants. The FTCA's limited waiver of immunity does not cover claims based on the detention of property by any law enforcement officers, which includes prison officials like Foster. See 28 U.S.C. § 2680(c); Bruscino, 232 Fed.Appx. at 764. So, to the extent Plaintiff argues his property was unlawfully taken under the FTCA, his claim is barred. See Williams, 355 Fed.Appx. at 225 (FTCA claim against prison officials arising from mishandling of personal property during transfer to another institution was improper because claim was barred by sovereign immunity); Robinson-Bey v. Feketee, 219 Fed.Appx. 738, 741-42 (10th Cir. 2007) (FTCA did not waive sovereign immunity as to inmate's claim for lost or stolen property allegedly in possession of prison officials).
Having determined the FTCA precludes relief, the Court need not address Defendants' argument that a private person would not be liable under these circumstances. See Williams, 355 Fed.Appx. at 225.
2. Medical Malpractice Claim
Next, the parties dispute whether Plaintiff adequately alleged a medical malpractice claim. (Doc. No. 47 at 14; Doc. No. 59 at 14.)
In Colorado, to assert a medical malpractice claim based on negligence, a plaintiff must establish the following elements: (1) defendant owed plaintiff a legal duty; (2) defendant breached that duty; (3) plaintiff was injured; and (4) defendant's breach of that duty was the proximate cause of plaintiff's injury. See Day v. Johnson, 255 P.3d 1064, 1068-69 (Colo. 2011).
The Court first pauses to distinguish the legal requirements of this medical malpractice claim from the Eighth Amendment constitutional violation claim. Unlike for the Eighth Amendment claim against Defendant Seroski for actions in her official capacity, where Plaintiff was required to show both a subjective and objective component, and make a showing “akin to recklessness in the criminal law[.]” Self, 439 F.3d at 1231 (quotation omitted). Here, Plaintiff must only plausibly allege that Defendant Seroski breached her legal duty to ensure he received adequate medical care for his skin condition and was the proximate cause of any alleged injury. See Day, 255 P.3d at 1068-69.
Based on this lower threshold, the Court finds that at this stage, Plaintiff has plausibly alleged his medical malpractice claim. First, it is undisputed that Defendant Seroski, as a prison official, had a legal duty to ensure Plaintiff received adequate care. (Doc. No. 25 at 6-7.) See Farmer, 511 U.S. at 832 (prison officials have a legal duty to “ensure that inmates receive adequate . . . medical care”). As to the second element, Plaintiff alleges Defendant Seroski breached her duty by issuing him a “medicated scalp shampoo” instead of a proper lotion, and directing him to use the shampoo as a “lotion for his body[.]” (Id.) As to the third element, the allegations indicate that using the shampoo caused Plaintiff to “suffer[] a chemical burn” that “caused Plaintiff's skin to bleed from cracking which caused Plaintiff serious pain[.]” (Id.) Finally, regarding the fourth element, Plaintiff alleges Defendant Seroski's breach was the proximate cause of his chemical burn and pain. (Id.) To be fair, Plaintiff's submitted exhibits show that Plaintiff was consulted on how to use the medication, including to “rinse [it] off after 15 minutes[,]” and that there was medical follow-up after Plaintiff complained the treatment was not working. (Doc. No. 59 at 24, Exhibit B.) However, this consultation and follow-up does not account for any alleged improper treatment in the first place-the basis of the medical malpractice claim. Accepting Plaintiff's allegations as true, as the Court must, they satisfy all four elements of a medical 'malpractice claim. See Casanova, 595 F.3d at 1124.
The Court is not otherwise persuaded by Defendants' arguments that Plaintiff did not allege the applicable standard of care breached by Defendant Seroski and that a “poor outcome” is insufficient for relief. (Doc. No. 47 at 14.) Defendants suggest the Court should require Plaintiff to be more specific about “when this alleged failure occurred, and how long he went without care (if at all), how severe his burns actually were, and whether they resolved without further intervention.” (Id.) However, Defendants do not cite, nor is the Court aware of, any cases requiring a more specific pleading for a medical malpractice claim under the FTCA, and the Court is reluctant to impose additional pleading requirements. So, at this stage and considering Plaintiff's pro se status, allegations that Plaintiff suffered from a painful chemical burn after being directed to use shampoo on his body instead of a lotion, can be read to suggest that Plaintiff plausibly received substandard medical care. See Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (“At [the motion to dismiss] stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.”) (emphasis in original) (internal quotation marks omitted). Even if later discovery proves otherwise, at this juncture, the allegations suffice to survive Defendants' challenge to Plaintiff's medical malpractice claim. See id.
3. Accardi Claim
Next, Defendants argue Plaintiff fails to state an Accardi claim because the challenged BOP regulations do not create an interest in or impact Plaintiff's due process rights. Doc. No. 47 at 15.) Plaintiff argues that under the Accardi doctrine, the BOP is “not following their policies and procedures” relating to “a prisoners confiscated property[,]” annual physicals, and assessment for treatment of injuries. (Doc. No. 59 at 16.)
In Accardi v. Shaughnessy, the Supreme Court established a doctrine that requires an agency to obey its own regulations. 347 U.S. 260, 266-67 (1954). However, the doctrine applies only “when an individual's due process interests are implicated” by the agency regulations. Barrie v. Fed. Aviation Admin., 16 Fed.Appx. 930, 934 (10th Cir. 2001); see also Nichols v. Reno, 931 F.Supp. 748, 751 (D. Colo. 1996) (applying Accardi doctrine where agency regulations affected an individual's due process rights).
To determine whether a due process interest has been implicated by the regulations in question, courts examine whether the regulation at issue creates an interest to be protected and defines the process due to protect it. See Nichols, 931 F.Supp. at 751. In conducting this analysis, the Court must follow the Supreme Court's guidance that although regulations may grant inmates protected due process liberty interests, “these interests will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 472.
Here, Plaintiff asserts the BOP violated the Accardi doctrine by failing to abide by its own rules and regulations pursuant to three Program Statements: 6031.04, 5580.08-2, and 553.14 3-b. (Doc. No. 25 at 12.) According to Plaintiff, the three Program Statements concern patient care and when inmates are allowed to mail home their personal property. (Id.) However, these regulations do not create an interest in or implicate Plaintiff's due process rights. See Sandin, 515 U.S. at 4721 (due process liberty interests created by prison regulations are generally limited to freedom from restraint). The Program Statements appear to be internal procedural guidelines for operating ADX, and it is well-established that “there are extensive policy reasons for the Courts to allow prison administrators wide discretion in the management of federal prisons.” Shepard v. Rangel, No. 12-cv-01108-PM-KLM, 2014 WL 7366662, at *25 (D. Colo. Dec. 24, 2014). This determination aligns with other courts' conclusions that similar alleged violations of BOP Program Statements did not implicate the Accardi doctrine. See Mazzara v. Entzel, No. 5:18CV117, 2019 WL 3366111, at *5 (N.D. W.Va. June 26, 2019) (Accardi doctrine not applicable because “even if the BOP somehow violated the provisions of Program Statement . . . [plaintiff's] term of confinement would remain the same), report and recommendation adopted, No. 5:18CV117, 2019 WL 3358394 (N.D. W.Va. July 25, 2019); Fiorito v. Entzel, No. 17-cv-2158-JFW-KES, 2019 WL 1446403, at *6 (C.D. Cal. Mar. 27, 2019) (dismissing Accardi claim because BOP program statements “do[] not have the full force and effect of law”), report and recommendation adopted, 2019 WL 1438067 (Mar. 29, 2019). Accordingly, the Court finds that Plaintiff has not established a viable claim for a due process violation under Accardi.
II. Motion to Appoint Pro Bono Counsel
The Court next addresses Plaintiff's request for appointment of counsel. (Doc. No. 16.) For several reasons the Court determines that appointing pro bono counsel is not warranted under the circumstances. First, Plaintiff appears sufficiently capable of independently advancing this case, as suggested by his ability to effectively relay the substance of his claims and his several filings, including a Certificate of Review and Motion for Preliminary Injunction. (See Docs. No. 17, 27.) See Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (explaining appointment of counsel is appropriate in “extreme case[s] where the lack of counsel results in fundamental unfairness.”). Second, this case does not present particularly complex facts or legal issues, as contrasted with other prisoner claims. See Hill, 393 F.3d at 1115. This is particularly true upon the issuance of this decision, which recommends meaningfully narrowing the claims and issues. Third, even if the Court were to appoint counsel it is unlikely any attorneys would be able to take the case, given that other Court appointments remain unfulfilled after weeks of issuing orders. See Moaz, 747 Fed.Appx. at 711. And finally, while it appears Plaintiff's claims have some merit, his claims and allegations are less severe than those filed by other prisoners and the Court must consider the extremely limited resources when it comes to pro bono appointments.
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS:
(1) Defendants Motion be GRANTED IN PART and DENIED IN PART; and
(2) The following claims in Plaintiff's Second Amended Complaint be DISMISSED IN PART with prejudice:
Although dismissal of a pro se claim is ordinarily denied without prejudice, Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010), the Court has discretion to dismiss a pro se plaintiff's complaint with prejudice where “amendment would be futile[.]” See Avery v. Wade, No. 22-4093, 2022 WL 17544077 at *1 (10th Cir. Dec. 9, 2022). Here, because the dismissed claims fail as a matter of law, any further amendment would be futile.
• Bivens individual capacity claims against Defendants Seroski and Foster;
• Fifth and Eighth Amendment official capacity claims against Defendants BOP, Seroski, and Foster;
• FTCA claims for confiscation of property and under the Accardi doctrine against the United States Additionally, the Court hereby ORDERS that Plaintiff's Motion to Appoint Counsel be DENIED without prejudice.
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).