United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR SUMMARY JUDGMENT
S. Krieger Chief United States District Judge
MATTER comes before the Court pursuant to all
Defendants' Motion for Summary Judgment (#
175), Mr. Cuevas' response (# 182,
183), and the Defendants' reply
(# 187). There are an array
of additional collateral motions that relate to the summary
judgment motion: the parties various Motions to Restrict
Access (# 177, 181, 192) to various filings;
Mr. Cuevas' Motion for Appointment of Counsel (#
178); Mr. Cuevas' Motion for a Stay of Decision
(# 189) on the Defendants' motion, and
the Defendants' response (# 194); and
Mr. Ceuvas' Motion for Leave to File a Surreply
(# 191, 193), and the Defendants'
response (# 195). The Court addresses those
collateral motions at the conclusion of this Order.
Court summarizes preliminary facts here and elaborates as
appropriate in its analysis. Mr. Cuevas is an inmate in the
custody of the Federal Bureau of Prisons (“BOP”).
During the pertinent times herein, Mr. Cuevas was housed at
the BOP's Administrative Maximum (“ADX”)
facility in Florence, Colorado. He alleges that, at various
times, each of the individual Defendants - ADX corrections
officers - informed Mr. Cuevas' fellow inmates of certain
sensitive information about Mr. Cuevas or his crimes, with the
intention that those inmates would thereafter attempt to
retaliate violently against Mr. Cuevas because of the
information they had learned.
on these allegations, Mr. Cuevas commenced the instant action
pro se. At this point, Mr. Cuevas asserts the
following claims: (i) a claim against each individual
Defendant under Bivens, asserting that the Defendant
violated his rights under the 8th Amendment to the
U.S. Constitution's guarantee against Cruel and Unusual
Punishment; and (ii) claims against the United States under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671 et seq., sounding in assault,
negligence, and intentional infliction of emotional distress.
Defendants now move (# 175) for summary
judgment on the claims against them, arguing that: (i) no
private right of action exists under Bivens for
“failure to protect” claims of this type in the
wake of Ziglar v. Abbasi, 137 S.Ct. 1483 (2017);
(ii) to the extent such a right exists, the Defendants are
entitled to qualified immunity because that right is not
clearly established; (iii) Mr. Cuevas has not come forward
with evidence that each Defendant personally participated in
the constitutional violation; (iv) Mr. Cuevas has not shown
that the actions he alleges constitute an 8th
Amendment violation; (v) as to Defendant Robinson, Mr.
Cuevas' claim is untimely; (vi) any claims by Mr. Cuevas
arising after August 2014 are not exhausted; (vii) Mr.
Cuevas' FTCA claims are not properly exhausted; and
(viii) Mr. Cuevas lacks sufficient evidence to prove each of
his tort claims.
Standard of review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v.
Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989).
A factual dispute is “genuine” and summary
judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
moving party does not have the burden of proof at trial, it
must point to an absence of sufficient evidence to establish
the claim or defense that the non-movant is obligated to
prove. If the respondent comes forward with sufficient
competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to
produce sufficient competent evidence to establish its claim
or defense, then the movant is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
8th Amendment claim
basic contours of Mr. Cuveas' 8th Amendment
claim are well-settled. The Supreme Court has long recognized
that a prison official's deliberate indifference to a
substantial risk of inmate-on-inmate violence violates the
8th Amendment. Farmer v. Brennan, 511
U.S. 825, 828 (1994). Gratuitously allowing the beating of
one prisoner by another serves no legitimate penological
objective. Typically, to establish an 8th
Amendment claim of this type, the inmate must show that he
faced an objectively substantial risk of serious harm and
that the defendant had a subjective knowledge of that risk by
nevertheless recklessly disregarded it. Id. at 834.
The 10th Circuit has specifically recognized that,
where a corrections officer labels an inmate as a
“snitch, ” communicates that label to other
inmates, and does so “aware of the obvious danger
associated with a reputation as a snitch, ” an
8th Amendment violation is clearly established.
Benefield v. McDowall, 241 F.3d 1267, 1271
(10th Cir. 2001).
Defendants attack Mr. Cuevas' 8th Amendment
claim from a variety of angles, each of which the Court
discusses in turn.
Availability of Bivens remedy
Bivens v. Six Unknown Federal Narcotics Agents, 304
U.S. 388 (1971), courts have recognized the existence of a
judicially-created remedy by which persons deprived of
constitutional rights by the actions of federal agents may
sue those agents for money damages. The Supreme Court has
expressly recognized Bivens claims in three specific
contexts: (i) violations of the 4th
Amendment's protections against unreasonable searches and
seizures; (ii) gender discrimination in public employment in
violation of the 5th Amendment's Due Process
clause; and (iii) violation of the 8th Amendment
arising from a prison official's deliberate indifference
to an inmate's medical needs. See generally
Ziglar, 137 S.Ct. at 1854 (citing cases). Lower courts,
however, extended Bivens to a much broader range of
time, the Supreme Court has signaled a retreat from the
notion of a broadly-available Bivens remedy, instead
suggesting that the decision as to whether or not a damages
remedy against federal officials should lie in a given
context is one to be made by Congress, not the courts. Thus,
in Ziglar, the Supreme Court formally announced
that, hereafter, the Bivens remedy would be
“disfavored” and would now only be recognized in
limited new contexts.
sets forth a complex analysis that the Court must apply in
deciding whether to recognize a Bivens claim in a
context beyond the three already approved by the Supreme
Court. First, the Court must consider whether the case arises
in a “new context, ” by considering whether the
case is “different in a meaningful way from previous
Bivens cases decided by [the Supreme] Court.”
137 S.Ct. at 1859. Numerous criteria might distinguish an
existing case from past cases, such as the rank of the
officials involved, the generality or specificity of the
official action, the extent of judicial guidance on the issue
confronted by the officer, and so on. If the case is indeed a
“new context, ” the Court turns to the question
of whether there are any “special factors counselling
hesitation [in the creation of new remedies] in the absence
of affirmative action by Congress.” The Supreme Court
declined to specifically itemize these special factors, but
has indicated that they generally bear on the question of
“whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh
the costs and benefits of allowing an action to
proceed.” Among the factors that the Court considered
in Ziglar were: (i) whether the claim is brought
against the official for his or her own acts, or for others;
(ii) whether the claims “call into question the
formulation and implementation of a general policy” of
the official's agency; (iii) whether the litigation
process would touch upon or implicate the discussion and
deliberations that led to the policy in question; (iv)
whether the action challenges “standard” agency
operations or major elements of a broader government response
to an unusual situation; (v) whether separation-of-powers
concerns are present; (vi) whether injunctive relief would be
a sufficient remedy in the absence of money damages; and
(vii) whether Congress has created an “alternative
existing process for protecting” the injured
party's interests, among others.
Court need not belabor the Zigler analysis here.
Given Zigler's nuanced distinguishing of
Carlson v. Green, 446 U.S. 14 (1980) (recognizing a
Bivens claim under the 8thAmendment for a
state prison's deliberate indifference to an inmate's
medical need), from Correctional Services Corp. v.
Malesko, 534 U.S. 61 (2001) (refusing to recognize a
Bivens claim under the 8th Amendment for
a private prison's deliberate indifference to an
inmate's medical need), this Court is confident that the
instant case - in which the 8th Amendment is
invoked in a non-medical scenario - would also be considered
a “new context” from that of Carlson.
The Court therefore turns to the question of whether there
are any “special factors counseling hesitation”
in recognizing a Bivens remedy here. Although this
Court is cognizant of Zigler's reluctance to
approve Bivens claims in new contexts, the Court
finds no factors here that would caution against adopting a
Bivens remedy in this particular situation. Here,
Mr. Cuevas brings claims against the particular individual
officers who intentionally disclosed the sensitive
information about him to his fellow inmates; this is not a
situation in which the Defendants are named in a vicarious or
representative or policymaking capacity. The Court does not
understand the Defendants to be arguing that they believed
that disclosing the sensitive information about Mr. Cuevas to
other inmates was furthering some specific policy of the BOP
that called for doing so. The challenged actions are ordinary
incidences of day-to-day prison operations, for which there
is law clearly establishing that the practice is
unconstitutional, such that there is no risk that this
litigation will tread on complex matters of BOP policymaking.
It does not appear that anything other than money damages
will remedy Mr. Cuevas' situation: although he states an
intention to seek unspecified injunctive relief in addition
to money damages, it is difficult to conceive of how
injunctive relief of any kind could be effective in this
situation. A directive to the Defendants to “stop
disclosing the sensitive information!” cannot suffice
to undo the dissemination of the sensitive information that
has already occurred or the damage to Mr. Cuevas' name
and reputation that have resulted. In Zigler's
parlance, this, like Bivens itself, is a case of
“damages or nothing.” 137 S.Ct. at 1862.
leaves only the question of whether Mr. Cuevas has a
Congressionally-created alternative remedy for vindicating
his claims. The Defendants suggest two such remedies: resort
to the BOP's internal Administrative Remedy program and a
suit for injunctive relief. For reasons set forth above, the
Court rejects the latter out-of-hand: injunctive relief is
simply inadequate to un-ring this particular bell. As to the
Administrative Remedy program, the Defendants have not
pointed to the particular provision of that program they
contend would offer relief to Mr. Cuevas; indeed, they have
not cited to the Administrative Remedy program's terms at
all in this portion of their argument. 28 C.F.R. §
542.10 et seq. It is by no means clear that Mr.
Cuevas could recover money damages under the
Administrative Remedy program. Even if he could, it appears
that the BOP has already decided not to grant him such
relief, as Mr. Cuevas exhausted that program, without
success, before commencing this suit.
this Court sees no reason why a Bivens remedy should
not be available to an individual like Mr. Cuevas, who sues
individual officers for violating his 8th
Amendment results by purposefully disclosing sensitive
information about him to other inmates so as to induce them
towards violence against Mr. Cuevas. Such a claim is so
clearly-established and directed at the individual actions of
rank-and-file prison officials that there is no reason to
defer to Congress' decisionmaking (and the concomitant
inertia) in order to decide whether a damages remedy should
lie. Even in the post-Zigler world, this case
presents an appropriate one for recognition of
Defendants have raised the defense of qualified immunity.
When that defense is raised, the burden shifts to Mr. Cuevas
to establish two prongs: (i) that he has adequately asserted
a violation of a constitutional right, and (ii) the contours
of that right were “clearly established” by
existing Supreme Court or 10th Circuit precedent
(or the weight of authority from ...