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Cuevas v. United States

United States District Court, D. Colorado

March 19, 2018

SYLVESTER CUEVAS, Plaintiff,
v.
UNITED STATES OF AMERICA; J. RODRIGUEZ, C/O ADX; MUNOZ, C/O ADX; LOZANO, C/O ADX; HEWITT, Manager ADX; MARSHALL, C/O ADX; PERKINS, C/O ADX; GOMEZ, C/O ADX; MCAVOY, C/O ADX; LEE, C/O ADX; MANES, C/O ADX; MANNESS, C/O ADX; WADAS, C/O ADX; HUMPHRIES, C/O ADX; ROBINSON, C/O ADX; BERG, C/O ADX; and PETERS, C/O ADX; Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court pursuant to all Defendants'[1] 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.

         FACTS

         The 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[2] 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.

         Based on these allegations, Mr. Cuevas commenced the instant action pro se.[3] 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.

         The 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.

         ANALYSIS

         A. Standard of review

         Rule 56 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).

         If the 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.

         If the 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).

         B. 8th Amendment claim

         The 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).

         The Defendants attack Mr. Cuevas' 8th Amendment claim from a variety of angles, each of which the Court discusses in turn.

         1. Availability of Bivens remedy

         Since 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 constitutional deprivations.

         Over 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.

         Ziglar 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.

         The 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.

         That 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.[4] 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.

         Accordingly, 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 Bivens-type liability.

         2. Qualified immunity

         The 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 ...


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