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May v. Segovia

United States District Court, D. Colorado

January 3, 2017

BILLY F. MAY, Plaintiff,


          Nina Y. Wang, United States Magistrate Judge

         This 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.


         The 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] [#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].

         On 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].

         The 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[2] 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.[3][#42 at ¶¶ 2-3].

         First, 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].

         Second, 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.].

         Finally, 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.[4][Id. at 4].

         Defendants 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.


         I. Rule 12(b)(1)

         Federal 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.

         A 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.

         II. Rule 12(b)(6)

         Under 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).

         “To 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).

         III. Qualified Immunity

         “The 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).

         “To 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 ...

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