Opinion
Civil Action 21-cv-01135-RM-KLM
08-04-2023
MICHAEL R. LITTLE, Plaintiff, v. R. ARRIOLA, MRS. MONTES, MR. MONTES, F. AMALLA MR. AZZEZ, N. BAILEY, J. BRINSON, J. MEDINA, MR. EACKER, T. HERRERA, MR. MORALES, MR. REXFORD, MR. ROMAIN, MR. QUINTANA, MR. SAINT, MR. WATSON, K. MORROW, MR. WALTHALL, and MR. BUTKOVICH, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix, United States Magistrate Judge
This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [#51] (the “Motion to Dismiss”) and Defendants' Motion for Partial Summary Judgment for Failure to Exhaust [#52] (the “Motion for Partial Summary Judgment”) (collectively the “Motions”). The Motions [#51, #52] have been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). See [#56]. Having reviewed the Motions [#51, #52], the entire case file and being sufficiently advised, the Court respectfully recommends that the Motion to Dismiss [#51] be granted for the reasons set forth below. In so finding, the Court notes that even though Plaintiff has not filed responses to the Motion [#51, 52], see Section I, infra, the Court has examined the allegations in the Complaint and determined that Plaintiff has not stated a claim upon which relief can be granted. See Issa v. Comp USA, 354 F.3d 1174, 1177-1178 (10th Cir. 2003). In light of the recommendation to grant the Motion to Dismiss [#51], it is respectfully recommended that Defendants' Motion for Partial Summary Judgment [#52] be denied as moot.
“[#51]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's electronic case filing and management system (CM/ECF). This convention is used throughout this Recommendation.
I. Introduction
As discussed above, Plaintiff, who proceeds as a pro se litigant, did not file a timely response to the Motions [#51, #52] which have been pending for almost a year and a half. By way of background, the Court issued an Order to Show Cause [#63] on January 20, 2023, ordering Plaintiff to respond by February 3, 2023. Id Plaintiff filed a “Reply to Order to Show Cause” [#65] on February 6, 2023, advising the Court that he had not received copies of the Motions [#51, #52] and requesting copies. Id. at 1-2. Accordingly, the Court ordered that the Clerk of Court send Plaintiff copies of the Motions [#51, #52], and ordered that Plaintiff respond to the Motions [#51,#52] by March 10, 2023. See Order [#69]. The Order to Show Cause was discharged. Id.
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [a] plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Plaintiff did not file Responses to the Motions. Instead, Plaintiff filed a Letter [#71] on February 21, 2023, stating, among other things, that the officials at USP Victorville where Plaintiff was then incarcerated do not follow policies regarding legal mail, allegedly in order to impede litigation; that there are no remedies for Plaintiff as to that issue; and that Plaintiff was not provided the Motions that were mailed to him, despite signing for that mail. Id. at 1-2. By Order [#75] of May 17, 2023, when responses had still not been filed to the Motions by Plaintiff, the Court directed the Bureau of Prisons (“BOP”) to inquire into why Plaintiff was not provided a copy of the Motions [#51, #52], and to make every reasonable effort to ensure that Plaintiff received a copy of those Motions and, going forward, all legal mail that he is entitled to. Order [#75] at 3. Counsel for the BOP were also directed to file an update with the Court once counsel received information in response to these inquiries, or within 30 days, whichever is earlier. Id. On June 24, 2023, the BOP responded by stating that Plaintiff had been moved to a new facility, USP Beaumont, and confirmed that he had received a copy of the Motions, including through hand delivery by the USP Beaumont staff. Response [#79] at 4 6. The BOP also stated that steps have been taken to ensure that Plaintiff receives all legal mail in the future. Id.
Based on the BOP's Response [#79] and having heard nothing further from Plaintiff as to this issue, the Court assumes that Plaintiff has received the Motions [#51, #52]. On June 20, 2023, the Court ordered Plaintiff to file responses to the Motion to Dismiss [#51] and Partial Motion for Summary Judgment [#52] by July 20, 2023. Minute Order [#80]. On June 12, 2023, Plaintiff filed a Notice of Change of Address [#78] but has not filed responses to the Motions [#51, #52].
For the purposes of resolving the Motions [#51, #52], the Court accepts as true all well-pled, as opposed to conclusory, allegations made in Plaintiff's Second Amended Complaint [#16]. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
At all times relevant to this case, Plaintiff was a prisoner in the custody of the United States Federal Bureau of Prisons (“BOP”) at the United States Penitentiary located in Florence, Colorado (“USP-Florence”). Second Am. Compl. [#16] at 2. Plaintiff brings claims against nineteen federal employees in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Construing the Complaint [#16] liberally, Plaintiff asserts eight claims under the First, Fifth, and Eighth Amendments, as follows:
1) First Amendment claims against Mr. Rexford (“Rexford”), a property officer, and Mr. Eacker (“Eacker”), a lieutenant, who allegedly interfered with Plaintiff's personal property, preventing him from accessing the courts and against Mr. Morales (“Morales”), a counselor, who allegedly destroyed Plaintiff's legal mail;
2) Fifth Amendment due process claims against T Herrera (“Herrera”), J. Medina (“Medina”), J. Brinson (“Brinson”), Mr. Romain (“Romain”), all correctional officers, and Mrs. Montes, who allegedly fabricated disciplinary infractions against Plaintiff;
3) Fifth Amendment equal protection claim against Defendants Walthall and Mr. Saint (“Saint”), a member of the culinary arts staff, because they allegedly denied Plaintiff entry into the culinary arts program and fired him from his job in the dish room;
4) Eighth Amendment claim against Defendants Medina, Brinson, Romain, Mr. Montes, R. Arriola (“Arriola”), F. Amalla (“Amalla”), Mr. Azzez (“Azzez”), Mr. Quintana (“Quintana”), Mr. Watson (“Watson”) and
Kammrad for allegedly using excessive force against Plaintiff during three incidents on January 15, 2019, March 27, 2020, and April 2, 2020;
5) Eighth Amendment claim against Mr. Butkovich (“Butkovich”) for allegedly failing to intervene during alleged excessive force incident on April 2, 2020.
6) Eighth Amendment claim against Defendants Herrera, Romain, and Mr. Walthall (“Walthall”), a member of the food service staff, for allegedly failing to protect Plaintiff and labeling him a “snitch;”
7) Eighth Amendment claim against Lindegren, N. Bailey (“Bailey”) and K. Morrow (“Morrow”), both nurses, for alleged deliberate indifference to Plaintiff's medical needs by falsifying medical records; and
8) Eighth Amendment claim against Lindren and Morrow for alleged deliberate indifference to Plaintiff's medical needs by denying him psychiatric and pain medication.See Second Am. Compl. [#16].
Kammrad is not an actual named Defendant in the case. The Second Complaint [#16] also references an individual named “Lindgren” who is not a named Defendant. Id. at 14. In construing Plaintiff's pro se complaint liberally, the Motion to Dismiss [#51] addresses Plaintiff's allegations against them. Id. at 3 n. 2. Accordingly, the Order also addresses the claims against these individuals for completeness of the record.
Plaintiff spells Defendant Eacker's, Defendant Quintana's, and Defendant Butkovich's names incorrectly in his Second Amended Complaint [#16]. The spellings of these Defendants names have been corrected here throughout.
III. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).
To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.”) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant Is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).
“[A] district court may not grant a motion to dismiss for failure to state a claim merely because [a party] failed to file a response.” Fournerat v. Wis. L. Rev., 420 Fed.Appx. 816, 819 (10th Cir. 2011) (quoting Issa, 354 F.3d at 1177). This is consistent with the purpose of Rule 12(b)(6) motions which is “to test ‘the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Issa, 354 F.3d at 1177 (quoting Mobley, 40 F.3d at 340). “Further, it is well established that a ‘complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Id. at 1177-78 (quoting Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)). Consequently, as noted earlier, even where a plaintiff, as here, does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a
IV. Analysis
Defendants argue that Plaintiff has no Bivens remedy in this case as Plaintiff's claims arise in a new context. Motion [#51] at 3. Defendants further argue that they are entitled to either qualified or absolute immunity, that some of Plaintiff's claims are time barred, and that Plaintiff's claims for injunctive relief must be dismissed because “such relief is not available in an action against Defendants in their individual capacities.” Id. at 3-4. The Court focuses its analysis on arguments regarding the claims for injunctive relief and the lack of a Bivens remedy, finding that these are dispositive.
A. The Claims for Injunctive Relief
Plaintiff brought this action against the officers under Bivens, seeking damages from them in their individual capacity. See Second Am. Compl. [#16]- at 2-5. Plaintiff also seeks injunctive relief in the form of a court order terminating certain officers involved in the incidents at issue. Id. at 17. Injunctive relief is not, however, available from Defendants sued in their individual capacity under Bivens. Davis v. Passman, 442 U.S. 228, 245 (1979) (holding “as for Bivens, ‘it is damages or nothing'”) (quoting Bivens, 403 U.S. at 410); Ross v. Hayden, No. 19-cv-01427-MEH, 2021 WL 810106, at *4 (D. Colo. Mar. 3, 2021) (finding “equitable relief is not available under a Bivens action.”); Matthews v. Wiley, 744 F.Supp.2d 1159, 1167 (D. Colo. 2010) (“The injunctive relief [Plaintiff] seeks is not within the authority of the Defendants in their individual capacities.”).
Accordingly, it is recommended that the Motion to Dismiss [#51] be granted as to the request for injunctive relief, and this claim be dismissed.
B. Whether the Bivens Claims Should be Dismissed
In Bivens, the Supreme Court created an implied claim for damages which permitted the plaintiff to recover damages from federal agents who had allegedly violated his Fourth Amendment rights by entering the plaintiff's home, placing him in manacles in front of his wife and children, and threatening his entire family before searching his apartment. Id., 403 U.S. at 389; see also Silva v. United States, 45 F.4th 1134, 1138 (10th Cir. 2022). “Reasoning that state law remedies were inadequate to rectify constitutional injuries and that ‘no special factors counseled] hesitation in the absence of affirmative action by Congress', id. at 395-96, the Court fashioned an implied claim for damages for plaintiff Bivens despite the clear absence of textual support in the Fourth Amendment or authorization from Congress.” Silva, 45 F.4th at 1138 (quotation omitted).
The Supreme Court then expanded the implied damages remedy from Bivens in two additional cases. In Davis, the Court held that Bivens extended to a claim by a former congressional aide against her former employer for discrimination based on her gender in violation of the Fifth Amendment's Due Process Clause. Id., 442 U.S. at 242-248. Shortly thereafter, the Supreme Court held that Bivens allowed a prisoner to sue a prison official who was deliberately indifferent to his medical needs in violation of the Eighth Amendment's Cruel and Unusual Punishment Clause. Carlson v. Green, 446 U.S. 14, 18-20 (1980). “Thus, by the early 1980s, the Supreme Court had fashioned a claim for damages in three constitutional contexts: the Fourth Amendment's Search and Seizure Clause, the Fifth Amendment's Due Process Clause, and the Eighth Amendment's Cruel and Unusual Punishment Clause.” Silva, 45 F.4th at 1138.
However, in the decades since Bivens was decided, the Court has “progressively chipped away at the decision-to the point that very little of its original force remains.” Silva, 45 F.4th at 1139; see also Egbert v. Boule, 142 S.Ct. 1793, 1799-1800 (2022) (listing cases where the Court has declined to extend Bivens). The Supreme Court has made clear that while not “dispens[ing] with Bivens altogether,” recognizing a cause of action under Bivens is a “disfavored judicial activity.” Egbert, 142 S.Ct. at 1803; see also Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). In fact, the Tenth Circuit interprets the Supreme Court's decision in Egbert as not only holding that Bivens is a ‘disfavored judicial activity,' but rather ‘is an action that is impermissible in virtually all circumstances.'” Patton v. Suddoth, No. 22-cv-00310-RMR-KLM, 2023 WL 143024, at *2 (D. Colo. Jan. 10, 2023) (quoting Silva, 45 F.4th at 1140).
The analysis of whether a Bivens remedy exists involves a two-part inquiry where “a court asks first whether the case presents a new Bivens context -i.e., is it meaningfully different from the three cases in which the Court has implied a damages action....” Egbert, 142 S.Ct. at 1803 (quotation omitted). The second inquiry is whether there are “special factors” indicating that the judiciary is at least arguably less equipped than Congress “to weigh the costs and benefits of allowing a damages action to proceed.” Id. (quotation omitted). “If there is even a single ‘reason to pause before applying Bivens in a new context,' a court may not recognize a Bivens remedy.” Id. (quoting Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020)). Despite the two-part inquiry, the query as to whether a Bivens remedy exists “often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. The Court now turns to Plaintiff's claims.
1. Whether the Claims Arise in a New Context
a. First Amendment Claims
Plaintiff alleges that Defendants Rexford and Eacker violated his First Amendment rights when they deliberately held his property, and thus denied him access to the court system. Second Am. Compl. [#16] at 6. Plaintiff further alleges that Defendant Morales violated his First Amendment rights by destroying his legal mail, causing him harm by preventing him from exhausting remedies properly. Id. Defendants aver that these First Amendment claims present a new context under Bivens and therefore Plaintiff has no implied remedy. Motion [#51] at 6-7.
As mentioned, the Supreme Court has recognized a claim for damages in three Constitutional contexts: the Fourth Amendment's Search and Seizure Clause, the Fifth Amendment's Due Process Clause, and the Eighth Amendment's Cruel and Unusual Punishment Clause. Silva, 45 F.4th at 1138. Plaintiff's First Amendment claims fall outside of this scope, thus undoubtedly presenting a new context because there is a new “constitutional right at issue[.]” See Ziglar, 582 U.S. at 139-140 (“A case might differ in a meaningful way because of . . . the constitutional right at issue . . .”). The Supreme Court has declined to extend Bivens to First Amendment claims. Egbert, 142 S.Ct. at 1807; see also Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.”). Applying this precedent to the present case, the Court finds that Plaintiff's First Amendment claims arise under a new context, and thus no Bivens remedy exists for these claims.
It is therefore recommended that the Motion to Dismiss [#51[ be granted as to the First Amendment claims, and that they be dismissed.
b. Fifth Amendment Claims
Plaintiff alleges that Defendants Brinson, Mrs. Montes, Medina, Herrera, and Romain violated his Fifth Amendment right to Due Process by allegedly falsifying disciplinary reports and fabricating infractions against Plaintiff. Second Am. Compl. [#16] at 7-9, 15. Plaintiff also avers that Defendant Saint violated his Fifth Amendment right to equal protection by allegedly denying Plaintiff entry into the culinary arts class but allowing another “ethnic/race inmate that was not [six] months infraction clear” to take the class. Id. at 13. Further, Plaintiff alleges that Defendant Walthall violated his Fifth Amendment right to equal protection by firing Plaintiff from his job in the dish room, allegedly without cause, and giving the position to “a white inmate.” Id. Defendants argue that these Fifth Amendment claims present a new Bivens context because they differ meaningfully from the previously recognized Bivens contexts. Motion [#51] at 7-9.
In Davis, a case within the Bivens expansion trilogy, the Supreme Court extended Bivens remedies to include employment discrimination based on gender under the Fifth Amendment's Due Process Clause. Davis, 442 U.S. at 244. However, the Supreme Court has declined to extend Bivens to Fifth Amendment equal protection or due process claims in the prison context. Ajaj v. United States, No. 15-cv-02849-RM-KLM, 2020 WL 747013, at *12 (D. Colo. Feb. 13, 2020). Additionally, Plaintiff's allegations involve a different type of “official action” from those alleged in Davis. Here, Plaintiff alleges that his right to due process under the Fifth Amendment was violated when Defendants falsified and fabricated disciplinary reports. Second Am. Compl. [#16] at 7-9, 15. While Plaintiff's claims and those at issue in Davis both invoke the Fifth Amendment's Due Process Clause, the Supreme Court has emphasized that “superficial similarities are not enough to support the judicial creation of a cause of action”. Egbert, 142 S.Ct. at 1805. The Court finds that Plaintiff's allegations of falsifying reports and fabricating infractions are meaningfully different from those in Davis, and therefore constitute a new context in which a Bivens remedy is not available.
Additionally, applying the same precedent, the Court finds that Plaintiff does not have a Bivens remedy for his claims allegedly invoking the equal protection component of the Fifth Amendment's Due Process Clause. While the Davis case opened the door to implied remedies for violations of the equal protection component of the Due Process Clause, see 442 U.S. at 235-36, the factual circumstances in that case are far different from those that Plaintiff alleges here. Plaintiff makes no allegations of employment discrimination based on gender, id. at 231, instead claiming that Saint's decision to deny him entry into the culinary arts program and Walthall's decision to fire him from working in the dish room constitute violations of the Fifth Amendment. Second Am. Compl. [#16] at 13-14. These allegations differ significantly from those in the Davis case, and Plaintiff's claims are against prison officials, not a member of Congress as in Davis. See id.
Accordingly, the Court finds that Plaintiff's claims under the equal protection provision and Due Process Clause of the Fifth Amendment arise in a new context, and that Plaintiff has no Bivens remedy available to him. Accordingly, it is recommended that the Motion to Dismiss [#51] be granted as to the Fifth Amendment claims, and that these claims be dismissed.
c. Eighth Amendment Claims
Finally, Plaintiff asserts five claims invoking the Eighth Amendment. Plaintiff alleges that Defendants Medina, Arriola, Brinson, Amalla, Azzez, Romain, Quintana, Watson, Mr. Montes, and Kammrad subjected him to excessive force during incidents occurring on January 15, 2019, March 27, 2020, and April 2, 2020. Second Am. Compl. [#16] at 7-11, 15. While the specific allegations are not entirely clear, Plaintiff avers that the aforementioned Defendants punched, kicked, and otherwise assaulted Plaintiff, resulting in injuries to Plaintiff's eyes, jaw, knees, wrists and ankles, and teeth. See Id. Plaintiff further alleges that Defendant Butkovich failed to intervene during the alleged excessive force incident on April 2, 2020. Id. at 9. Plaintiff avers that Defendants Herrera, Romain, and Walthall also failed to protect him from harm by labeling him a “snitch,” a potentially dangerous moniker to have when incarcerated. Id. at 12-14. Finally, Plaintiff alleges deliberate indifference to his medical needs at the hands of Lindren and Defendants Morrow and Bailey. Id. at 12, 14. Specifically, Plaintiff avers that Lindren and Defendant Morrow denied him necessary psychiatric and pain medications after surgeries, and that Lindgren and Defendants Bailey and Morrow falsified medical reports. Id. Defendants argue that these allegations present new contexts, and that Plaintiff therefore has no remedy under Bivens. Motion [#51] at
In Carlson, the Supreme Court recognized a claim for damages in the constitutional context of the Eighth Amendment's Cruel and Unusual Punishment Clause. Carlson, 446 U.S. at 20. However, the factual circumstances underlying the Carlson case are markedly different from Plaintiff's present allegations. Carlson presented an extreme circumstance where the denial of medical treatment for a known, chronic medical condition resulted in an inmate's death. Id. at 16 n.1; see also Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978) (explaining factual background of Carlson). It is clear that the Eighth Amendment issues raised here differ meaningfully from the facts underlying the Carlson case. Within the constitutional context of the Eighth Amendment, Plaintiff asserts excessive force, failure to intervene, and failure to protect claims. Second Am. Compl. [#16] at 7-15. Courts have repeatedly held that these types of claims present a new Bivens context. See Susinka v. Trujillo, No. 21-cv-01837-PAB-MEH, 2023 WL 2366730, at *6 (D. Colo. Mar. 6, 2023) (finding that plaintiff's claim for excessive force arises in a new context from Bivens, Passman, and Carlson); Millbrook v. Spitz, No. 18-cv-01962-RM-KMT, 2019 WL 5790701, at *11 (D. Colo. Aug. 29, 2019) (finding that plaintiff's Eighth Amendment excessive force claim constitutes a new Bivens context); see also Abdo v. Balsick, No. 18-cv-01622-KMT, 2019 WL 6726230, at *6 (D. Colo. Dec. 11, 2019) (finding that plaintiff's excessive force claims, deliberate indifference claims, and failure to intervene claim “differ in meaningful ways from the previous Bivens context”). Accordingly, the Court finds that Plaintiff's Eighth Amendment claims arise in a new Bivens context, thus barring Plaintiff from any implied remedy under Bivens.
To the extent that it could be argued that Plaintiff's deliberate indifference claims regarding failure to provide medical care fall within the remedy recognized in Carlson, the Court finds that Plaintiff's allegations do not rise to the extreme levels of the circumstances underlying Carlson. Unlike in Carlson, Plaintiff has not alleged allegations that come even close to the allegations in Carlson, involving the failure to treat the plaintiff for chronic, life-threating condition which Defendants were aware of and which resulted in death.
Based on the foregoing, the Court finds that Plaintiff's claims of deliberate indifference invoking the Eighth Amendment arise in a context different from Bivens or Carlson, and thus Plaintiff has no implied remedy for damages under Bivens.Accordingly, it is recommended that the Motion to Dismiss [#51] be granted as to the Eighth Amendment claims, and that they be dismissed.
In addition, to the extent the claim against Walthall could be construed as a First Amendment retaliation claim, see Second Amended Complaint [#16] at 13-14, it is subject to dismissal for the same reasons as Plaintiff's other First Amendment claims.
2. The Existence of Alternative Remedial Processes
In addition, the Court recommends that Plaintiff's Bivens claims be dismissed because alternative remedial processes are available. It is well established that a court may not fashion a Bivens remedy if Congress has already provided “an alternative remedial structure.” Egbert, 142 S.Ct. at 1804 (quoting Ziglar, 582 U.S. at 137). The Tenth Circuit has followed suit and held that courts may dispose of Bivens claims if the “Government already has provided alternative remedies that protect plaintiffs.” Silva, 45 F.4th at 1141 (quoting Egbert, 142 S.Ct. at 1804). Defendants argue, and the Court agrees, that Plaintiff has alternative processes through which he can pursue relief, therefore precluding Plaintiff's Bivens claims. Motion [#51] at 11-13.
In Silva, like in the present case, the plaintiff was incarcerated at USP-Florence and asserted excessive force claims against a BOP official. Silva, 45 F.4th at 1136. The Tenth Circuit held that “the availability of the BOP's Administrative Remedy Program offers an independently sufficient ground to foreclose [p]laintiff's Bivens claim.” Id. at 1141. The Tenth Circuit's decision in Silva effectively precludes Plaintiff's claims here. As in Silva, the BOP Administrative Remedy Program is available to Plaintiff, in which there is a formal grievance procedure. Plaintiff himself acknowledges that such administrative remedies exist. See Second Am. Compl. [#16] at 6. Accordingly, as in Silva, the Court finds that Plaintiff's access to the BOP's Administrative Remedy Program forecloses his Bivens claims. See also Patton, 2023 WL 143024, at *3 (finding that plaintiff's excessive force claim fails under Bivens because a formal grievance procedure exists).
Additionally, Defendants argue that Plaintiff has other alternatives available to him, such as relief under the Federal Torts Claims Act (“FTCA”), injunctive relief, or mandamus. Motion [#51] at 12-13. The FTCA dictates that a suit against the United States is the exclusive remedy available for individuals, like Plaintiff, who seek monetary damages resulting from the alleged negligent or wrongful acts of federal employees. See 28 U.S.C. § 2679(b)(1). The Tenth Circuit has expressly held that the FTCA is an alternative remedy by which a plaintiff may seek relief when a federal officer commits an intentional tortious act. Robbins v. Wilkie, 300 F.3d 1208, 1213 (10th Cir. 2002); see also Abdo, 2019 WL 6726230, at *7 (“The Tenth Circuit has made clear that ‘the FTCA and a Bivens claim are alternative remedies.'”)
Similarly, Plaintiff could have sought injunctive relief against Defendants in their official capacities or mandamus for his claims that could be addressed by such relief, such as his claim for interference with his legal mail, alleged firing from the dish room, and alleged denial or entry of access to the culinary arts program. Motion [#51] at 12. Plaintiff could have invoked 28 U.S.C. § 1361 to “compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Courts in this district have held that the mandamus statute is a viable alternate avenue of relief available to prisoners. See Millbrook, 2019 WL 5790701, at *10 (holding that the mandamus statute is an alternate avenue of relief for a prisoner asserting a First Amendment retaliation claim); Custard v. Allred, No. 13-cv-02296-REB-CBS, 2015 WL 328626, at *4 (D. Colo. Jan. 26, 2015) (finding that a Bivens remedy should not be allowed when “[p]laintiff could also pursue a remedy through the mandamus statute ....”); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (holding that injunctive relief is recognized as the proper means for preventing entities from acting unconstitutionally). The Tenth Circuit has held that, where alternatives such as bringing a federal suit for injunctive relief are available, authorizing an extension of Bivens remedies is not warranted. See K.B. v. Perez, 664 Fed.Appx. 56, 759 (10th Cir. 2016) (finding that authorizing a new kind of federal litigation is not warranted where plaintiff could bring federal suit for injunctive relief).
Based on the foregoing, the Court recommends that the availability of alternative remedies is another basis to dismiss the Bivens claim.
3. Whether Special Factors Counsel Judicial Restraint
Defendants further argue that “special factors counsel judicial restraint against finding a Bivens remedy” for Plaintiff's claims. Motion [#51] at 13. Defendants aver that Congress's decision not to provide a damages remedy when it enacted the Prison Litigation Reform Act of 1996 (“PLRA”) suggests an intentional decision by the legislature not to extend damages remedies to cases involving other types of prisoner mistreatment. Id. Defendants further argue that Congress is better suited than the judiciary to create a new remedy in the present context and that a heightened threat of personal liability could cause prison officials to alter their behavior or judgment, thus impeding the operations of BOP facilities. Id. at 13-14.
The Supreme Court has made clear that a Bivens remedy will not be available if there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Ziglar, 582 U.S. at 136 (quoting Carlson, 446 U.S. at 18). “Legislative action suggesting that Congress does not want a damages remedy is itself factor counseling hesitation.” Id. at 148. Congress had an opportunity to consider prisoners' rights and remedies available to prisoners when it passed the PLRA. In passing the Act, Congress did not provide for a stand-alone damages remedy against federal jailers, which is indicative of Congress's ultimate decision not to extend the implied damages remedies found in Bivens, Passman, and Carlson to other contexts. See id. at 149. The Court finds that Congress's inaction in creating a damages remedy for federal prisoners when it passed the PLRA, in addition to the Supreme Court's express decision declining to extend remedies to individuals bringing claims like Plaintiff's, counsels caution against creating a remedy in the present case.
The Court also agrees with Defendants that Congress would be better positioned to create a new remedy in this context. Motion [#51] at 13. When an issue “involves a host of considerations that must be weighed and appraised,” it should be committed to “those who write the laws” rather than “those who interpret them.” Ziglar, 582 U.S. at 135-36 (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)). The far-reaching implications of approving a Bivens remedy are evident: personal damages claims may motivate prison correctional and medical staff to accede to the demands of all inmates, with potential negative consequences to the inmate population and correctional judgment. See Egbert, 142 S.Ct. at 1804 (“uncertainty alone” about “systemwide” consequences of a Bivens remedy “is a special factor that forecloses relief”).
4. Conclusion as to Bivens Claims
Based on the foregoing, the Court finds that Plaintiff has no Bivens remedy for his claims and that the Bivens claims should be dismissed Accordingly, it is recommended that the Motion [#51] be granted as to all of Plaintiff's claims, and that this case be dismissed with prejudice against the individual Defendants. See Silva, 45 F.4th at 1142 (affirming dismissal with prejudice where a plaintiff's Bivens claim is foreclosed). Because the Court finds that no Bivens remedy exists against the individual Defendants, it need not address the arguments by Defendants that they are entitled to qualified or absolute immunity, or that certain of Plaintiff's claims are barred by the statute of limitations. Further, because the Motion to Dismiss [#51] has been granted in its entirety, the Court need not address Defendants' Motion for Partial Summary Judgment [#52] and recommends that it be denied as moot.
V. Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that the Motion to Dismiss [#51] be GRANTED. Specifically, IT IS RECOMMENDED that the claim for injunctive relief by DISMISSED WITH PREJUDICE for failure to state a claim for relief since this remedy is not available against Defendants sued in their individual capacity.
IT IS FURTHER RECOMMENDED that the Bivens claims against the individual Defendants be DISMISSED WITH PREJUDICE because Plaintiff's claims arise in a new context and no Bivens remedy exists.
IT IS FURTHER RECOMMENDED that in light of the recommendation to grant the Motion to Dismiss [#51] in its entirety, Defendants' Motion for Partial Summary Judgment [#52] be DENIED AS MOOT.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).