United States District Court, D. Colorado
BILLY F. MAY, Plaintiff,
JUAN SEGOVIA, and FRANK CORDOVA, Defendants.
MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge
matter comes before the Court on Defendants Juan Segovia and
Frank Cordova's Motion to Dismiss Second Amended
Complaint (the “Motion to Dismiss”). [#59, filed
March 21, 2016]. The Motion to Dismiss is before the
undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(c) and the Order of Reference dated June 3, 2015 [#25].
The Court has carefully reviewed the Motion to Dismiss and
related briefing, the entire case file, and the applicable
case law, and has determined that oral argument will not
materially assist in the resolution of this motion.
Accordingly, the Motion to Dismiss is GRANTED IN PART and
DENIED IN PART.
AND FACTUAL BACKGROUND
Court previously recounted the procedural history and factual
background of this matter in its January 19, 2016 Opinion and
Order, see [#41], and therefore, it will only be
discussed as it pertains to the instant Motion to Dismiss.
Plaintiff Billy May (“Plaintiff” or “Mr.
May”) filed a pro se prisoner complaint in
this case on February 27, 2015, while incarcerated at the
Federal Prison Camp (“FPC”) in Florence,
Colorado. [#1]. At the court's direction to
refile using the appropriate form, Mr. May filed an Amended
Complaint on March 16, 2015, asserting claims pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). [#4]. The Honorable
Lewis T. Babcock issued an order to dismiss in part and to
draw the case on March 19, 2015. [#7]. Judge Babcock
dismissed Plaintiff's claims against the Federal Bureau
of Prisons (“BOP”), as barred by sovereign
immunity, and drew Plaintiff's claims against Defendants
George Santini and Frank Cordova to the undersigned
Magistrate Judge. See [id. at 2].
January 19, 2016, this Magistrate Judge issued an Opinion and
Order addressing several pending motions in this matter,
including, inter alia, Plaintiff's Motion for
Leave of Court to File a First (sic) Amended Complaint [#31].
See [#41]. By this Order, Plaintiff's Second
Amended Complaint became the operative Complaint in this
matter. [#42]. In addition, the court denied Plaintiff's
Motion for Summary Judgment [#14]; denied as moot Defendants
Cordova and Santini's Motion to Dismiss [#23] and
Defendant Cordova's Motion to Dismiss [#32]; and denied
Plaintiff's Motion for a Hearing Regarding Sanctions for
the Bureau of Prisons Retaliatory Action [#35]. [#41].
basis of Plaintiff's claims in the operative Complaint
arise from the January 2, 2015, twenty-four (24) hour
lockdown of all FPC inmates, and from his placement in the
Special Housing Unit (“SHU”) after he refused to
take Ivermectin, a medication used to treat scabies.
See [#42 at ¶ 12, 23-24]. Mr. May appears to
allege three claims against Defendant Frank Cordova
(“Defendant Cordova” or “Mr.
Cordova”), a certified nurse practitioner, and
Defendant Juan Segovia (“Defendant Segovia” or
“Mr. Segovia”), the former Camp Administrator of
FPC.[#42 at ¶¶ 2-3].
Plaintiff alleges that Defendants Cordova and Segovia
(collectively, “Defendants”) violated the Eighth
Amendment's prohibition on cruel and unusual punishment
when BOP officials instituted a twenty-four-hour lockdown of
all FPC inmates. See [#42 at ¶¶ 12-13, 15-
16]. The lockdown was an apparent response to a scabies
outbreak at FPC; however, according to Plaintiff, BOP's
Lice and Scabies Protocol Clinical Practice directs BOP
officials to isolate infected inmates in a single cell, but
has no requirement to lockdown all inmates.
See [id. at ¶ 11]. Plaintiff continues
that, because of the lockdown, BOP officials suspended
visitation for FPC inmates, violated “well established
case law that requires inmates receive proper meals and
allowed at least one hour per day to leave their cell,
” and had no legitimate penological reason for doing
so. [Id. at ¶¶ 12, 13, 16].
Plaintiff alleges that the BOP violated the Equal Protection
Clause, because during the lockdown, it treated certain
groups of prisoners differently. [Id. at ¶ 17].
Specifically, the BOP provided medical treatment only to
infected inmates and those who worked at FPC and allowed the
working inmates to leave their cells for work, but did not
treat uninfected inmates and kept those inmates locked-down
for the entire twenty-four-hour period. [Id.].
Plaintiff avers that the BOP's motivation for this
discriminatory practice “[was] obvious, the BOP needed
healthy inmates to provide labor necessary to support the
food service, sanitation and laundry functions at the [FPC],
including feeding the BOP personnel.” [Id.].
Plaintiff alleges that Defendants violated his due process
rights by placing him in the SHU in retaliation for his
refusal to take Ivermectin, despite his previous allergic
reaction to the drug. [Id. at ¶¶ 25-28].
Plaintiff maintains that his placement in the SHU violated
established BOP policy that allows inmates to refuse certain
medical treatments and, that during his twenty-eight (28) day
detention in the SHU, he received no hearing regarding this
detention. [Id. at ¶¶ 25, 28, 30]. Mr.
May's requested relief includes immediate release from
incarceration and damages of $10, 000 per day for each day
that he was wrongfully incarcerated in the SHU.[Id. at
filed their Motion to Dismiss Plaintiff's Second Amended
Complaint on March 21, 2016. [#59]. First, Defendants argue
for dismissal of Plaintiff's claims against Defendant
Cordova under Rule 12(b)(1), because Defendant Cordova is
immune from Bivens suits under the Public Health
Service Act. [Id. at 3]. In addition, Defendants
argue that they are entitled to qualified immunity and,
accordingly, the Court should dismiss Plaintiff's
operative Complaint under Rule 12(b)(6). [Id. at 3].
At the March 22, 2016 Status Conference, the Court directed
Mr. May to file his response by April 22, 2016. See
[#60]. Plaintiff filed his response on April 21, 2016, and
argues against dismissal, because genuine factual disputes
exist as to all of his claims. [#61]. Defendants filed a
reply on April 26, 2016 [#62], and the Motion to Dismiss is
ripe for resolution.
courts are courts of limited jurisdiction and, as such,
“are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc. v. Kane
Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Indeed, courts have an independent
obligation to determine whether subject matter jurisdiction
exists, even in the absence of a challenge from any party.
1mage Software, Inc. v. Reynolds & Reynolds,
Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Under Rule 12(b)(1), a court may dismiss a complaint for lack
of subject-matter jurisdiction. Doing so is not a
determination on the merits of the case; rather, it is a
decision that the court lacks the authority to adjudicate the
action. See Castaneda v. INS, 23 F.3d 1576, 1580
(10th Cir. 1994) (recognizing federal courts are courts of
limited jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). A court that lacks
jurisdiction “must dismiss the cause at any stage of
the proceeding in which it becomes apparent that jurisdiction
is lacking.” Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974). The burden of
establishing subject matter jurisdiction is on the party
asserting jurisdiction. See Id. Accordingly,
Plaintiff in this case bears the burden of establishing that
this Court has jurisdiction to hear his claims.
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: a facial attack or a factual attack. Stuart v.
Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.
2001); Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). “In reviewing a facial attack on the
complaint, a district court must accept the allegations in
the complaint as true.” Holt, 46 F.3d at 1002.
Mere conclusory allegations of jurisdiction are insufficient.
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). Nevertheless, “a court is required to convert a
Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion
or a Rule 56 summary judgment motion when resolution of the
jurisdictional question is intertwined with the merits of the
case.” Id. As explained in Holt v. United
States, “the jurisdictional question is
intertwined with the merits of the case if subject matter
jurisdiction is dependent on the same statute which provides
the substantive claim in the case.” 46 F.3d at 1002.
Rule 12(b)(6) a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However,
a plaintiff may not rely on mere labels or conclusions,
“and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (citation omitted). “The
burden is on the plaintiff to frame ‘a complaint with
enough factual matter (taken as true) to suggest' that he
or she is entitled to relief.” Id. The
ultimate duty of the court is to “determine 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).
doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Clark v. Wilson, 625 F.3d 686, 690
(10th Cir. 2015) (quoting Pearson v. Callahan, 555
U.S. 223 (2009)). The doctrine applies to government
officials in their individual, as opposed to official,
capacity, and does not attach to government entities. See
Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005).
survive a motion to dismiss based on qualified immunity, the
plaintiff must allege sufficient facts that show-when taken
as true-the defendant[s] plausibly violated his
constitutional rights, which were clearly established at the
time of violation.” Schwartz v. Booker, 702
F.3d 573, 579 (10th Cir. 2012) (citation omitted); accord
Ramirez v. Dep't of Corrs., Colo., 222 F.3d 1238,
1241 (10th Cir. 2000) (holding that a similar standard
applies in the context of a Rule 12(c) motion, and that
courts accept only well-pleaded factual allegations, not mere
conclusions). Plaintiff's Second Amended Complaint need
not contain all the necessary factual allegations to sustain
a conclusion that Defendants violated clearly established
law. See Robbins, 519 F.3d at 1249 (recognizing that
such a heightened pleading standard ...