Silverstein v. Federal Bureau of Prisons et al
Filing
395
ORDER plaintiffs Motion for Leave to File a Sur-Reply to Defendant's Reply [Docket No. 365] is GRANTED. Plaintiffs Sur-Reply is accepted for filing. It is furtherORDERED that plaintiffs Motion for Order to Allow Oral Argument on Defendants Mot ion for Summary Judgment [Docket No. 354] is DENIED. It is furtherORDERED that defendants Motion for Summary Judgment is GRANTED [Docket No. 296]. It is furtherORDERED that judgment shall enter in favor of defendants and against plaintiff. By Judge Philip A. Brimmer on 9/30/11.(pabsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 07-cv-02471-PAB-KMT
THOMAS SILVERSTEIN,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
JOHN VANYUR,
JOYCE CONLEY,
MICHAEL NALLEY, and
RONNIE WILEY,
Defendants.
_____________________________________________________________________
ORDER GRANTING SUMMARY JUDGMENT
_____________________________________________________________________
Plaintiff Thomas Silverstein filed this action challenging the constitutionality of
the conditions of his confinement in the federal prison system. This case is presently
before the Court on defendants’ motion for summary judgment [Docket No. 296];
plaintiff’s motion for leave to file sur-reply [Docket No. 365]; and plaintiff’s motion for
oral argument [Docket No. 354]. As threshold matters, the Court grants plaintiff’s
motion for leave to file a sur-reply and accepts plaintiff’s sur-reply for filing. The Court
denies plaintiff’s motion for oral argument.
I. BACKGROUND1
A. History of Plaintiff’s Incarceration and Conditions with the BOP
Plaintiff has been in the custody of the Federal Bureau of Prisons (“BOP”) since
1978, when he started serving a fifteen year sentence for bank robbery. Plaintiff began
his sentence at the United States Penitentiary (“USP”) in Leavenworth, Kansas. As a
result of the BOP believing that plaintiff stabbed fellow inmate Danny Atwell to death at
USP Leavenworth in February 1979, the BOP transferred plaintiff to the Control Unit at
USP Marion, Illinois. While plaintiff was housed at the Marion Control Unit, he was
accused of the 1981 murder of inmate Robert Chappelle. A jury convicted him of
conspiracy to commit murder. The Seventh Circuit upheld his conviction. See United
States v. Silverstein, 732 F.2d 1338, 1342 (7th Cir. 1984). The opinion states that
plaintiff was a member of the three-man commission governing the Aryan Brotherhood
and had killed Chappelle, a black inmate, as a favor to the Mexican Mafia. See id.
Plaintiff maintains his innocence for this crime.
In September 1982, plaintiff and Clayton Fountain murdered another inmate,
Raymond “Cadillac” Smith, a leader of the D.C. Blacks gang, in the Marion Control Unit.
Plaintiff and Fountain cut a hole in the recreation enclosure in the Control Unit and then
escaped through the hole to an area where Smith was showering. They stabbed Smith
sixty-seven times with homemade knives. The BOP believes that the murder of Smith
was intended to send a message from the Aryan Brotherhood to the D.C. Blacks, while
1
The following facts, unless otherwise indicated, are not in dispute.
2
plaintiff denies that he knew Smith was a leader of the gang until 10 years after Smith’s murder.
In October 1983, plaintiff murdered BOP Officer Merle Clutts in the Marion
Control Unit. Plaintiff was being escorted to his cell by three officers when an
accomplice handed plaintiff handcuff keys and a shank. Plaintiff unlocked his
handcuffs and stabbed Officer Clutts twenty-nine times. Plaintiff also admits this
murder.
As a result of these murders, plaintiff is serving three consecutive life sentences
plus forty-five years.
On November 2, 1983, the BOP transferred plaintiff from the Marion Control Unit
to USP Atlanta. Plaintiff was initially housed in a secure living area, but in August 1984,
BOP director Norman A. Carlson issued a memorandum (“Carlson Memo”) directing
that plaintiff be removed from Control Unit status and housed in a special unit designed
to meet his particular needs. The Carlson Memo also set several specific restrictions
on plaintiff, including placing him on “non-contact” status, limiting his visits, and
restricting his recreation and programming.
Plaintiff remained under these individualized conditions at USP Atlanta until
December 1, 1987, when he was transferred to USP Leavenworth. For the first
eighteen months at USP Leavenworth, plaintiff was housed in the basement cell where
he did not have access to hot water or outdoor recreation and often did not receive
three meals a day. After this period, plaintiff was transferred to a secure area in the
Special Housing Unit (“SHU”) at USP Leavenworth. Plaintiff’s cell in the SHU included
a 136 square foot living area with a bed, toilet, shower, sink, ten inch television, writing
area, a duress button, an indoor and outdoor recreation area, as well as a visitation
3
space. Plaintiff’s sink and shower had hot water. Plaintiff generally was allowed to
recreate for one and a half to two hours, five days a week. Plaintiff had access to
media, to reading materials, and to the law library. Plaintiff was under constant audio
and visual surveillance in his cell. Defendants admit that for all but the one to two years
of his seventeen year incarceration at USP Leavenworth, plaintiff did not have control
over the light in his cell, which was on twenty-four hours a day. Between 2001 and
2005, only staff directly responsible for plaintiff’s custody, care, and treatment were
allowed in plaintiff’s housing area and four officers were present any time plaintiff had to
leave his cell. He was transported in handcuffs, a Martin chain, a black box, and leg
irons. Plaintiff had no contact with other inmates.
On July 12, 2005, BOP transferred plaintiff from USP Leavenworth to the USP
Administrative Maximum facility, known as “ADX,” in Florence, Colorado. According to
BOP, plaintiff required transfer because USP Leavenworth changed to a medium
security facility and plaintiff required more secure confinement. The BOP maintains
that only ADX provided sufficiently secure conditions to house plaintiff. The parties
agree that ADX is the most restrictive BOP facility in the nation.
Plaintiff was initially housed in Range 13 at ADX, but on April 3, 2008, Regional
Director Nalley directed then-ADX Warden Ron Wiley to move him to a general
population cell in the D-Unit at ADX, where he remains housed today. As part of this
transfer, the BOP discontinued the special security measures imposed by the Carlson
Memo. Plaintiff was prohibited from communicating with other inmates in Range 13.
However, in the D-Unit, plaintiff can communicate with other inmates by yelling from cell
to cell. Inmates receive a minimum of two 15-minute social calls and five social visits
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per month. Cells at ADX have black-and-white TVs with sixty channels and closed
circuit programs. Each cell has a shower stall, sink, toilet, concrete stool, desk, and
shelf. Cells have lights with four brightness settings which inmates may control.
However, plaintiff’s cell remains lit by hall lights twenty-four hours a day. Inmates may
choose a “no-flesh” diet; they eat meals in their cells. Inmates have access to indoor
and outdoor recreation. On Range 13, plaintiff exercised for an average of one and a
half to two hours daily, five days a week; on the D-Unit, plaintiff receives ten hours of
recreation time per week.
Between April 4, 2008 and August 10, 2009, ADX Warden Wiley approved daily
management procedures for plaintiff in addition to the procedures for other ADX
general population inmates. On July 29, 2009, current ADX Warden Davis
discontinued plaintiff’s additional procedures. Since August 10, 2009, plaintiff has been
subject to the same procedures as all other ADX general population inmates.
Plaintiff has been eligible for parole since August 25, 1982, but the restrictive
conditions of his confinement do not affect his parole eligibility. Due to his life
sentences, plaintiff has not be entitled to statutory good time under 18 U.S.C. § 4161
since 1982. Plaintiff’s disciplinary record, in addition to the aforementioned murders,
shows assaults of three staff members, a threat to a staff member, an attempt to
escape by posing as a United States Marshal, and the discovery of weapons, handcuff
keys, and lock picks in plaintiff’s rectum. All of these offenses occurred in the 1980s.
Plaintiff has not received a citation for a disciplinary infraction since 1988.
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B. Review of Plaintiff’s Conditions of Confinement
The BOP has modified the procedure for reviewing the conditions of plaintiff’s
confinement over the years of his incarceration. The Carlson Memo, issued in 1984,
directed a series of period reviews of plaintiff while he was housed at USP Atlanta,
including a daily visit from unit staff or a physician assistant, a psychological review
every 30 days, a case review every 30 days, and a report by the Warden to the Director
every 90 days. In 1986, the BOP maintains that plaintiff began receiving in-person
reviews every six months with his unit team, during which he could raise concerns
about his conditions of confinement. Plaintiff disputes that any unit team in-person
reviews took place while he was housed in Atlanta. Between 1989 and 2003, plaintiff
received monthly screening evaluations from Dr. Donald Denny, a BOP psychologist.
Plaintiff often raised the issue of the conditions of his confinement with Dr. Denny or at
periodic SHU reviews.
On April 29, 1991, BOP Director Quinlan modified the Carlson Memo’s directives
to add an additional annual review by the BOP’s Executive Staff, consisting of 16
individuals. In November 2004, the Executive Staff replaced its annual review of
plaintiff’s conditions with six month in-person reviews with the BOP’s North Central
Regional Director, the Assistant Director of Correctional Programs, and the prison’s
Executive Staff (including the Warden, Associate Warden, and Captain). The other
reviews required by the Carlson Memo remained unchanged. Defendants maintain that
Cynthia Ashman, plaintiff’s case manager at USP Leavenworth from 1994 to 2005,
prepared monthly progress reports for him and visited him at least four times per
month. Plaintiff disputes that Ms. Ashman visited him that frequently. Ms. Ashman also
6
attended six-month reviews with the warden, captain regional representative, and
psychologist. Defendants state that the purpose of these reviews was to discuss with
plaintiff any changes in his sentence, educational status, medical concerns, and
program goals, while plaintiff argues the purpose of these meetings was only to direct
him as to which programming he should complete.
After plaintiff’s transfer to ADX, the BOP modified these various reviews. At
ADX, plaintiff receives an in-person review every six months with members of the
BOP’s executive panel (Regional Director and Assistant Director of Correctional
Programs), the ADX Warden, the Associate ADX Warden, and members of plaintiff’s
unit team. Plaintiff can raise any concerns about the conditions of his confinement at
these six-month reviews.
Currently, the BOP reviews the status of inmates through what it terms
“classification,” “program reviews,” and “progress reports.” According to the BOP,
classification generally occurs within four weeks of an inmate’s arrival at his designated
prison. Plaintiff received initial classifications upon his arrival at both USP Leavenworth
and ADX.
Subsequent team meetings are called “program reviews” and ordinarily occur at
least once every six months. Inmates are expected to attend program reviews.
Defendants maintain that these reviews are intended to monitor and evaluate an
inmate’s progress in all areas and provide inmates an opportunity to raise concerns
about anything related to their confinement. Plaintiff disputes that program reviews are
meaningful and argues that these meetings are only intended to tell inmates what
television programming to watch. Plaintiff argues these meetings last only a minute or
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two and often involve a case manager simply leaving a pre-filled form under plaintiff’s
door while he is recreating. Defendants claim that inmates are given forty-eight hours
notice before scheduled program reviews, while plaintiff disputes that he is given any
prior notice. Between July 1992 and September 2010, plaintiff received 46 program
reviews.
The BOP also monitors plaintiff’s incarceration through progress reports, which it
prepares every three years. These reports are a comprehensive account of an inmate’s
history, including past and current status. Inmates are given a copy of their progress
reports. Plaintiff received progress reports every three years. The monthly reports
generated by the wardens at USP Leavenworth and briefly at ADX were the equivalent
of progress reports.
ADX employs a step-down unit program (“Step-Down Program”) which allows
inmates housed there to progress through stratified levels of restrictive housing.
Inmates in the program progress from general population to J-Unit, K-Unit and then D/B
Unit. The ADX Institution Supplement FLM 5321.06I(1), Change Notice 01 (“2009
Institution Supplement”) currently governs the operation of the Step Down Program.
Eligibility to be evaluated by the Step-Down Screening Committee (“Committee”) for
entry into the program is assessed at an inmate’s program review every six months. An
inmate is eligible to enter the program if he meets four factors: (1) six or twelve months
(depending on his current assignment) of clear conduct; (2) active participation in and
completion of all programs recommended by his team; (3) positive behavior, including
respectful and appropriate conduct toward staff and other inmates; and (4) positive
overall institutional adjustment, including personal hygiene and cell sanitation. Inmates
8
who meet these criteria are referred to a Step-Down Screening Committee
(“Committee”) for consideration. Under the 2009 Institution Supplement, the Committee
considers thirteen factors in deciding whether to admit an inmate to the program.
However, plaintiff disputes that the Committee actually considers these factors,
contending that the main factor the Committee considers is whether an inmate has
mitigated the reasons for his placement at ADX. This factor has been removed from
the 2009 Institution Supplement. The ADX Warden makes the final decision whether to
admit an inmate into the program.
On May 18, 2009, Warden Wiley denied plaintiff admission into the Step-Down
Program and the J-Unit under a previous Institution Supplement. Wiley stated that the
factors which led to plaintiff’s placement at ADX had not been sufficiently mitigated.
Plaintiff challenged this decision through the administrative remedy program. On
October 28, 2009, the Committee denied plaintiff admission to J-Unit, citing his
membership in the Aryan Brotherhood and the fact that the BOP only recently removed
his daily management procedures. Plaintiff then administratively challenged this
decision. On July 6 and October 20, 2010, the Committee again denied plaintiff
admission to J-Unit. The Committee cited plaintiff’s continued commitment to the Aryan
Brotherhood and association with its members.
C. Review of Plaintiff’s Placement at ADX
Placement of inmates in ADX’s general population is currently governed by a
2009 Memorandum from Regional Director Nalley (“Nalley Memo”). The Nalley Memo
allows placement of inmates at ADX who meet either of two criteria: (1) the inmate’s
placement in other correctional facilities creates a risk to institution security and good
9
order, or poses a risk to the safety of any individual; and/or (2) as a result of the
inmate’s status, either before or after incarceration, the inmate could not be safely
housed in the general population of another institution. On September 9, 2009, the
BOP gave written notice of a hearing to retroactively address plaintiff’s placement at
ADX, which notice explained plaintiff’s rights and the procedures to be used in the
hearing. On September 15, 2009, a hearing administrator conducted plaintiff’s
placement hearing. Plaintiff made an oral and written statement and offered supporting
documents. After the hearing, the hearing officer issued a written report recommending
that plaintiff remain at ADX. Plaintiff received a copy of this report. The hearing officer
based her recommendation on plaintiff’s killing of three inmates and a correctional
officer as well as his attempted escape from a BOP institution. Plaintiff contends that,
despite the Nalley Memo’s directive for hearing administrators to rely only on reliable
evidence, the hearing officer relied on unreliable evidence such as plaintiff’s Wikipedia
page. Plaintiff also argues that the hearing was meaningless because its outcome was
predetermined. On October 2, 2009, Nalley accepted the recommendation and plaintiff
received a copy.
D. Plaintiff’s Dangerousness
Plaintiff and defendants dispute the extent to which plaintiff’s continued
confinement in extremely restrictive conditions is necessary. For ten years, BOP
psychology staff has rated plaintiff as a “low” risk of violence. Defendants maintain that
this low rating was tied to his continued confinement in isolated conditions and is not a
predictor of plaintiff’s potential behavior in a less restrictive environment. Defendants
do not dispute that the most predictive demographic of future dangerousness is a
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criminal’s age and that, at age 59, plaintiff is of advanced age. Nor do defendants
dispute that plaintiff has been a model inmate for twenty-three years, has had no
infractions since 1988, and that there are many ways plaintiff could have acted out and
been given an incident report notwithstanding his restrictive conditions of confinement.
Plaintiff has publicly apologized to Officer Clutts’ family.
Defendants maintain that plaintiff’s membership in the Aryan Brotherhood
(“A.B.”), a violent prison gang, is a key factor requiring his continued incarceration in
restrictive conditions. According to defendants, plaintiff is a validated member of the
A.B. who “made his bones” by murdering Danny Atwell. After Atwell’s murder, plaintiff
became a leader of the A.B. Plaintiff claims he never murdered Atwell, but does not
dispute that he was at one point a leader of the A.B. Plaintiff disputes that he continues
to be a member of any gang.
Defendants see plaintiff’s membership in the A.B. as continuing and permanent
since A.B. members are not allowed to leave the gang. Under defendants’
understanding of the A.B., plaintiff may be asked at any time to perform violent tasks for
the gang, even if he has been inactive and out of contact for years. Defendants state
that A.B. members who are asked to perform a task and refuse to perform it are beaten
or killed. Plaintiff counters with evidence that older or sick members of the A.B. are no
longer asked to perform tasks for the organization and that some A.B. members are
able to turn down assignments without violent retribution.
Plaintiff’s earlier involvement with the A.B. and its current relevance is not the
BOP’s only concern. Defendants also believe that, as recently as December 2010, an
A.B. sympathizer reached out to plaintiff via his blog, asking in code for permission to
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provide an act. Plaintiff responds that this message was not a code at all, but rather a
family friend asking for permission to start a Facebook page for plaintiff.
E. Plaintiff’s Health
Plaintiff presents evidence both of the detrimental psychological effects of his
isolated confinement and of allegedly inadequate medical care he has received while
incarcerated. Defendants respond with evidence that plaintiff’s health has been
adequately cared for throughout his incarceration at the BOP.
As for plaintiff’s mental health, plaintiff presents expert evidence that individuals
in solitary confinement experience similar symptoms, including appetite and sleep
disturbances, anxiety, panic, paranoia, hallucinations, self-mutilations, hypersensitivity,
cognitive dysfunction, hopelessness, suicidal ideation, and withdrawal. Plaintiff has
experienced disrupted sleep and insomnia since his incarceration in Atlanta and which
continues to the present. Defendants do not dispute that plaintiff, who had no prior
mental health history, has now been diagnosed with Anxiety Disorder. Plaintiff reported
various symptoms of psychological distress to BOP officials over the years, including
his hopelessness, troubles with concentration, memory loss, and depression. BOP
staff noted plaintiff’s symptoms and attributed many of them to his isolation and other
conditions of confinement. Plaintiff tested positive for cognitive impairment on Mini
Mental Status Exams conducted by two doctors. In 1997, plaintiff requested an
evaluation for cognitive impairments he was experiencing as a result of his isolation, but
BOP has not conducted such an evaluation.
As for plaintiff’s physical health, the parties agree that, since plaintiff’s arrival at
ADX in July 2005, BOP and non-BOP medical staff have evaluated him approximately
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35 times. Plaintiff has been diagnosed with a heart murmur, rectal
bleeding/hemorrhoids, and Hepatitis C. Plaintiff claims that, although the BOP knew
plaintiff suffered a heart murmur in 1983, it did not examine him in regard to this
condition until after he filed this lawsuit. Defendants state that in February 2010 a
specialist recommended no further treatment for this condition. Plaintiff claims he has
received inadequate treatment for his Hepatitis C; defendants respond that he is on a
wait list to receive such treatment, which he does not need at this time. Finally, the
parties dispute whether plaintiff has been inappropriately denied surgery to alleviate the
pain from his hemorrhoids.
F. Procedural Background
Plaintiff filed the complaint in this case on November 28, 2007 [Docket No. 1].
He filed the second amended complaint [Docket No. 158] on May 14, 2009. On March
23, 2010, the Court issued an order on defendants’ motions to dismiss [Docket No.
261]. As a result of this order, only two of plaintiff’s claims remain.
Plaintiff’s first claim is a Fifth Amendment due process claim challenging the
constitutionality of the conditions of his confinement beginning in 1983 and the process
he has received relative to the continuation of those conditions between that point and
today. Plaintiff’s first claim is brought against the BOP and individual defendants
Vanyur, Conley, Nalley, and Wiley. Plaintiff’s fourth claim is an Eighth Amendment
Claim alleging cruel and unusual punishment and surviving only against the BOP. As
relief for these alleged violations, plaintiff seeks equitable relief, in the form of
declarations and injunctions, and monetary relief, in the form of nominal, compensatory,
and punitive damages.
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II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of
Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A
disputed fact is “material” if under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.
2001). Only disputes over material facts can create a genuine issue for trial and
preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to the non-moving party. Id.;
see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
III. ANALYSIS
A. Statute of Limitations
Plaintiff seeks declaratory and injunctive relief in the form of an order altering the
conditions of his confinement. See Docket No. 158 (Second Amended Complaint) at
38. This relief appears to be part of both of his remaining claims. Defendants argue
that a six year statute of limitations applies to this relief pursuant to 28 U.S.C.
§ 2401(a), which provides that: “Except as provided by chapter 71 of title 41, every civil
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action commenced against the United States shall be barred unless the complaint is
filed within six years after the right of action first accrues.” Defendant argues that
plaintiff’s Fifth and Eighth Amendment claims accrued in November 1983, when the
BOP made the decision to place plaintiff in isolation and under special safety
restrictions and, thus, more than six years has expired since his claims accrued.
In its order on the motions to dismiss, the Court found that a six-year statute of
limitations did not bar plaintiff’s claims for equitable relief because “the alleged injuries
continue” and plaintiff’s “claim for injunctive relief is prospective.” See Docket No. 261
at 18. The Court sees no reason to reconsider this earlier order. See Been v. O.K.
Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007) (“district courts generally remain free
to reconsider their earlier interlocutory orders”). Defendants are correct that the sixyear limitations period in Section 2401(a) applies to claims for equitable relief against
the United States. See Urabazo v. United States, 1991 WL 213406, at *2 (10th Cir.
Oct. 21, 1991) (applying 2401(a) to claim for declaratory relief). However, plaintiff’s
claims for equitable relief are primarily tied to his current conditions and, therefore,
accrued when those conditions were imposed. See Urabazo, 1991 WL 213406, at *2
(“A cause of action ‘first accrues’ for purposes of 28 U.S.C. § 2401(a) ‘when all the
events have occurred which fix the alleged liability of the United States and entitle the
claimant to institute an action.’”). Those conditions were imposed within six years of his
filing suit, as plaintiff was only moved to ADX in July 2005 and then moved from ADX’s
Range 13 to general population in April 2008. Therefore, the Court finds that plaintiff’s
claims for equitable relief are not time-barred.
15
Plaintiff seeks nominal, compensatory, and punitive damages against the
individual defendants in his first claim, which alleges a violation of his due process
rights pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). This
claim is subject to the two-year limitations period applicable to Bivens claims in
Colorado. See Turner v. Schultz, 130 F. Supp. 2d 1216, 1221 (D. Colo. 2001). In its
order on the defendants’ motions to dismiss, the Court held that, because plaintiff’s
claim incorporated defendants’ activities after his transfer to ADX, it was timely. See
Docket No. 261 at 19. Plaintiff was transferred to ADX on July 12, 2005 and he filed his
suit on November 18, 2007, over two years after his transfer. Thus, only actions taken
by defendants after November 18, 2005, that is between plaintiff’s transfer to ADX and
his placement in general population, fall within this period.
In its earlier order, the Court reserved ruling on the question of whether the
continuing violation doctrine might allow plaintiff to recover damages for defendants’
actions preceding the two-year period. See id. at 19 n.1. The continuing violation
doctrine has its origin in discrimination law and allows a “Title VII plaintiff to challenge
incidents that occurred outside the statutory time limitations of Title VII if such incidents
are sufficiently related and thereby constitute a continuing pattern of discrimination.”
Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). This equitable doctrine “is
premised on the equitable notion that the statute of limitations should not begin to run
until a reasonable person would be aware that his or her rights have been violated” and,
therefore, fails “if the plaintiff knew, or through the exercise of reasonable diligence
would have known, she was being discriminated against at the time the earlier events
16
occurred.” Davidson v. America Online, Inc., 337 F.3d 1179, 1184 (10th Cir. 2003)
(quotations omitted).
The Tenth Circuit has not extended the continuing violation doctrine to Bivens
claims and it has explicitly reserved ruling on its applicability to § 1983 claims alleging
constitutional violations by state actors. See Brock v. Herbert, 2011 WL 3154230 at *3,
(10th Cir. July 27, 2011); Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011). The
Tenth Circuit has held that the doctrine does not apply to § 1981 claims alleging racial
discrimination, reasoning that the doctrine is tied to the relatively short time period in
which Title VII plaintiffs must file administrative charges, a requirement not present for
§ 1981 claims. See Thomas v. Denny’s, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997). At
least one district court in the Tenth Circuit has extended this reasoning to find that the
doctrine does not apply to § 1983 claims. See Barrett v. Philpot, 2009 WL 211687 at *4
(E.D. Okla. Jan. 29, 2009), rev’d on other grounds, 356 F. App’x 193 (10th Cir. 2009).
On the other hand, this Court has applied the doctrine to a prisoner’s Bivens claims that
are highly analogous to the claims asserted by plaintiff here. See Georgacarakos v.
Wiley, No. 07-cv-01712-MSK-MEH, 2008 WL 4216265, at *12-13 (D. Colo. Sept. 12,
2008) (applying continuing violation doctrine to plaintiff’s claims that defendants
conspired to hold him at a security classification more restrictive than the one for which
he was eligible and that he was held in constitutionally insufficient conditions).
Here, even assuming that the continuing violation doctrine applies to Bivens
claims, it would not apply to plaintiff’s due process claim. Plaintiff alleges that BOP
officials provided him insufficient process in determining the appropriate conditions of
his confinement over a period of nearly three decades. During this time, plaintiff was
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housed in four different correctional institutions in varying conditions. Plaintiff’s claim is
analogous to a claim recently considered by the Tenth Circuit in Fogle v. Slack, 419 F.
App’x (10th Cir. 2011). There, the plaintiff brought a due process claim under § 1983,
alleging that he “was not given proper due process before being assigned to
administrative segregation.” Id. at 862. Plaintiff had spent three years in administrative
segregation at three different state facilities. Id. The district court dismissed his claim
as untimely, holding that the continuing violation doctrine did not apply. The Tenth
Circuit affirmed, reasoning that “each segregation decision was of a discrete nature and
that, in many instances, segregation decisions were made by different decision makers
across three different correctional facilities, thus making it inappropriate to aggregate all
such decisions into one continuing violation for limitations purposes.” Id. at 864-65.
Here, too, plaintiff alleges different review schemes operating during different periods of
his incarceration involving different protocols and decision makers at different
institutions. Accordingly, the Court finds that the continuing violation is not applicable to
plaintiff’s first claim, and he may only recover damages for due process violations
beginning two years before he filed his complaint.
B. Availability of a Bivens Remedy
In their motion for summary judgment, defendants argue that, even assuming
plaintiff’s first claim is timely, a Bivens remedy is not available for the alleged violation of
plaintiff’s due process rights. “Bivens established that the victims of a constitutional
violation by a federal agent have a right to recover damages against the official in
federal court despite the absence of any statute conferring such a right.” Carlson v.
Green, 446 U.S. 14, 18 (1980). However, the Bivens remedy has only been recognized
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for a limited number of Constitutional violations. See Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971) (recognizing remedy for Fourth Amendment violations);
Carlson, 446 U.S. 14 (recognizing Bivens remedy for Eighth Amendment violations);
Davis v. Passman, 442 U.S. 228 (1979) (recognizing Bivens remedy for Fifth
Amendment equal protection claim). Thus, defendants argue that a Bivens remedy is
not available for plaintiff’s Fifth Amendment due process claim. The Court finds plaintiff
has failed to raise a genuine issue of material fact on his Fifth Amendment claim and
that defendants are entitled to summary judgment, as discussed below. The Court
therefore does not address whether a Bivens remedy would be available should plaintiff
prevail on his first claim.
C. First Claim: Due Process
Plaintiff’s first claim challenges the adequacy of the BOP and individual
defendants’ review of the conditions of his confinement under the Fifth Amendment’s
due process clause. As explained above, plaintiff’s claim is limited to the review
process applicable to his conditions after November 28, 2005, two years before he filed
his complaint. During this period, plaintiff has been held at ADX, first on Range 13 and
then in the general population. This period does not include plaintiff’s initial transfer to
ADX. In order to prevail on his due process claim, plaintiff must demonstrate both that
he has a protected liberty interest in the conditions of his confinement at ADX and that
defendants afforded him inadequate process when determining those conditions.
1. Liberty Interest
“A due process claim under the Fourteenth Amendment can only be maintained
where there exists a constitutionally cognizable liberty or property interest in which the
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state has interfered.” Stefley v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). When a
plaintiff asserts a liberty interest in avoiding more restrictive conditions of placement in
the prison context, the plaintiff must show that these conditions are an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). Sandin’s requirement
of “an atypical and significant hardship” was applied in Wilkinson v. Austin, 545 U.S.
209 (2005), where the Supreme Court held that inmates at a state Supermax facility
possessed a liberty interest based on the extreme conditions of their confinement, the
indefinite duration of their placement, and the fact that transfer to the facility
automatically disqualified an otherwise eligible inmate for parole consideration. Id. at
223-24.
Drawing on Wilkinson and Sandin, the Tenth Circuit has identified four factors
that a court may consider in determining whether a liberty interest exists in an inmate’s
conditions of confinement: “whether (1) the segregation relates to and furthers a
legitimate penological interest, such as safety or rehabilitation; (2) the conditions of
confinement are extreme; (3) the placement increases the duration of confinement, as it
did in Wilkinson; and (4) the placement is indeterminate.” Estate of DiMarco v. Wyo.
Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007).
a. Legitimate Penological Interest
As to the first DiMarco factor, defendants argue that the placement of plaintiff at
ADX serves the legitimate penological interest of safety. In support, defendants cite
plaintiff’s history of extreme violence and his membership in the Aryan Brotherhood.
Plaintiff does not dispute that he murdered Officer Clutts and fellow inmate Smith while
20
housed at the extremely restrictive Marion Control Unit. Plaintiff does, however, dispute
that this violent history requires that he continue to be housed in extremely restrictive
conditions. In order to demonstrate that the BOP’s beliefs about plaintiff’s future
dangerousness are unfounded, plaintiff presents evidence that he no longer poses a
security threat. First, plaintiff presents evidence that for ten years, BOP staff have rated
plaintiff as a “low” risk of violence. See Docket No. 321 (psychological screening
records). Defendants do not dispute this fact but add that this rating was premised on
assessments of plaintiff’s capacity to commit violence while housed in restrictive
conditions and do not indicate that he would be a similarly low risk under different
circumstances. See Docket No. 321-1 at 28 (November 30, 2001 SHU Review from Dr.
Donald Denney) (“If [plaintiff is] left in his current housing situation, there is a low risk of
violence. If he is moved to an open setting where he will be required to confront the
challenges of interpersonal relations, his risk level goes up.”).
Next, plaintiff presents evidence from psychologist Spencer Friedman, who
opines that plaintiff “presents a low risk of future violence, even if he is moved to less
isolated conditions.” See Docket No. 322-6 at 7, ¶ 34 (Friedman Decl.). Dr. Friedman’s
conclusion is based on his interviews with plaintiff, plaintiff’s age, plaintiff’s record of 25
years of good behavior, and plaintiff’s acceptance of responsibility for his actions. See
id. at 7-8, ¶¶ 35-45. Plaintiff also presents the expert report of Dr. Craig Haney, who
opines that plaintiff poses a low risk of violence for similar reasons. See Docket No.
321-17 at 51-53. Dr. Haney specifically opines that plaintiff’s restrictive conditions are
not the cause of his clean record, but that plaintiff’s compliant behavior in the face of
such psychologically stressful confinement conditions is evidence of his psychological
21
maturity and low risk of violence. See Docket No. 321-17 at 51-53. Finally, plaintiff
presents the declaration of corrections expert Steve Martin, who opines that, based on
plaintiff’s record of clear conduct, his age, and current behavior, there is no penological
justification for housing plaintiff in ADX general population. See Docket No. 320-6 at
11-12.
This evidence, at best, demonstrates that these experts might differ in their
placement of plaintiff. However, the Court “must be mindful of the primary management
role of prison officials who should be free from second-guessing or micro-management
from the federal courts.” See DiMarco, 473 F.3d at 1342. It is undisputed that plaintiff
has an extraordinarily violent history, including murders he admits to committing while
housed under highly restrictive conditions. One of these murders, that of Officer Clutts,
occurred while plaintiff was being escorted by three correctional officers. The Court,
therefore, finds that there is no genuine dispute of material fact as to defendants’
legitimate penological interest in housing plaintiff in the general population at ADX.
b. Conditions of Placement are Extreme
Plaintiff asserts that he endured extreme conditions during his incarceration on
Range 13 because regulations restricted virtually all forms of communication with other
inmates. Docket No. 321-17 at 13-14. Plaintiff argues that his conditions were atypical
because he could only communicate with others through solid concrete walls and was
restricted to non-contact visits. Id. Plaintiff maintains that the indefinite duration of this
extreme segregation makes his case analogous to Wilkinson. Docket No. 319 at 29-30.
As a preliminary matter, no court in the Tenth Circuit has held that the conditions
at ADX, regardless of the unit, are extreme. In fact, the courts that have addressed
22
ADX conditions on summary judgment have found that such conditions were not
atypically extreme. See Jordan v. Federal Bureau of Prisons, 191 F. App’x 639, 651-52
(10th Cir. 2006) (finding no liberty interest in conditions imposed during five-year
administrative confinement in the ADX control unit); Saleh v. Federal Bureau of Prisons,
Nos. 05-cv-02467-PAB-KLM, 06-cv-01747-PAB-KLM, 07-cv-00021-PAB-KLM, 2010 WL
5464294 (D. Colo. Dec. 29, 2010) (no liberty interest in conditions imposed in the ADX
general population unit); Georgacarakos v. Wiley, No. 07-cv-01712-MSK-MEH, 2010
WL 1291833, at *11-13 (D. Colo. March 30, 2010) (finding no liberty interest in
conditions imposed in the ADX general population unit); Rezaq v. Nalley, No. 07-cv02483-LTB-KLM, 2010 WL 5157317 (D. Colo. Dec. 14, 2010) (conditions in the ADX
general population unit do not implicate a liberty interest). However, because plaintiff
was housed on Range 13, the above cases are not completely on point. Nevertheless,
plaintiff’s conditions of incarceration at Range 13 do not differ significantly from inmates
in the general population. Both sets of inmates have control over the lights in their
cells; televisions, showers, and sinks in their cells; access to outdoor recreation; the
ability to have non-contact social visits; contact with prison staff; and two fifteen-minute
phone calls per month. Docket No. 321-17 at 13-17.
Given these facts, plaintiff’s sole contention rests on the assertion that, because
he had no communication with other inmates while at Range 13, see Docket No. 32117 at 14, he was subject to harsher conditions than inmates in ADX’s general
population. Docket No. 296-8 at 10-11, ¶ 34. In this regard, plaintiff relies on
Wilkinson’s finding that the limitation on almost all human contact could be a liberty
interest because it creates an atypical and significant hardship within the correctional
23
context. Wilkinson, 545 U.S. at 224. However, the Court finds plaintiff’s contention that
he has a liberty interest from the thirty months he spent on Range 13 unavailing.
In Wilkinson, the inmates could not hold conversations from cell to cell, had
restricted visits, and were deprived of almost all human contact. Wilkinson, 545 U.S. at
214. In contrast, while on Range 13, plaintiff could communicate with prison staff, have
phone conversations, and have social visits. Docket No. 321-17 at 14. Additionally,
Wilkinson does not stand for the proposition that a limitation on almost all human
contact standing alone creates a liberty interest. See id. at 224. On the contrary, it was
the combination of solitary confinement, the rarity of social visits, the inability to control
the lights within a cell, and the lack of outdoor exercise for an indefinite period which
the Supreme Court found was an “atypical and significant hardship.” Id. Wilkinson
acknowledged that “any of these conditions standing alone might not be sufficient to
create a liberty interest.” Id. Moreover, Wilkinson recognized that most, if not all, of
these conditions would be present in the majority of solitary confinement facilities and
limited its holding to the two factors that made the Ohio facility an outlier – the indefinite
duration of segregation and the inmates’ ineligibility for parole. Id. Thus, in Wilkinson,
the Court was not solely concerned with the inmates’ lack of social contact, but rather
the inmates’ complete deprivation for an indefinite period of any environmental or
sensory stimuli. Id.
In this case, unlike the inmates in Wilkinson, plaintiff cannot maintain that he is
completely deprived of all environmental or sensory stimuli because he can exercise
outdoors, communicate with prison staff, watch television, and control the lights within
his cell. Docket No. 321-17 at 15. Moreover, plaintiff’s reliance on thirty months
24
without contact with other inmates is inapposite because other courts within the district
have upheld similar inmate restrictions for comparable periods of time. See Jordan,
191 F. App’x at 652 (finding that five years in administrative detention not a liberty
interest because he had contact with staff, length of sentence not affected, and his
confinement was not indefinite); Villarreal v. Harrison, 1999 WL 1063830, at *2 (10th
Cir. Nov. 23, 1999) (two-year duration of administrative detention, even with conditions
involving restricted telephone privileges and eating alone in cell, did not establish a
liberty interest); Chappell v. McKune, 1999 WL 1079618 (10th Cir. Nov. 30, 1999)
(1000 days in administrative segregation does not give rise to a liberty interest). Thus,
because plaintiff’s prison conditions are not analogous to those in Wilkinson, plaintiff’s
claim that he endured extreme conditions during his thirty months in Range 13 is
without merit. Apart from the ability to communicate with other inmates, plaintiff’s
conditions at Range 13 are in almost every respect identical to those in the D-Unit
which have never been found to violate due process. Saleh, 2010 WL 5464294, at *4
(citing cases). For the reasons listed above, plaintiff’s claim that his conditions of
incarceration in ADX’s general population unit are extreme is also denied.
Plaintiff’s next claim is that the duration of his segregation gives rise to a liberty
interest. Docket No. 319 at 29. Some Tenth Circuit cases have held that the duration
of confinement in administrative segregation alone may create a liberty interest. See
Payne v. Friel, 266 F. App’x 724, 728 (10th Cir. 2008) (finding duration of confinement
by itself may be an “atypical and significant hardship”); Jordan, 191 F. App’x at 651-53
(finding that long periods spent in administrative segregation could be atypical if not
justified by sufficient extenuating circumstances); see also Wilkerson v. Stalder, 329
25
F.3d 431, 436 (5th Cir. 2003) (30 years in lockdown – 23 hours a day in isolation –
might give rise to a Sandin “atypical and significant” hardship); Shoats v. Horn, 213
F.3d 140, 144 (3d Cir. 2000) (finding that an inmate in administrative custody for eight
years, confined to his cell 23 hours a day, five days a week, and 24 hours a day, two
days a week, with contact only with guards implicates a liberty interest); Fogle v.
Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006) (reversing district court’s dismissal of
complaint as frivolous where court concludes that there was no arguable basis that a
three-year period of administrative segregation where prisoner was in his cell all but five
hours a week and denied outdoor activities, was not “atypical”) However, in this case
the duration of plaintiff’s confinement does not sufficiently distinguish the length of his
administrative segregation from Jordan (five years), Georgacarakos (seven), and Rezaq
(thirteen years).2 As the court in Rezaq remarked, “while the length of time is
instructive, it does not impact the fact that the conditions at issue here are simply not as
restrictive as those in Wilkinson.” Rezaq, 2010 WL 5157313, at *11. Therefore, the
Court finds that because the length of plaintiff’s administrative segregation does not
create an atypical and significant hardship, there is no genuine dispute of material fact
and plaintiff’s conditions of incarceration are not extreme.
2
The duration of isolation may lead to a different result if it appears that the
inmate is placed in segregation purely as a form of punishment. See Sandin, 515 U.S.
at 487. However, where as here, given that plaintiff’s segregation is not punishment for
unacceptable behavior, but serves the penological goal of safety, the duration of
confinement becomes less important. See Rezaq, 2011 WL 5157313, at *11 n.13.
26
c. Placement Increases Duration
There is no evidence that placement at ADX increases the duration of plaintiff’s
sentence, a fact which was relevant to the Supreme Court’s decision in Wilkinson. See
545 U.S. at 224. Plaintiff admits that his eligibility for parole is not affected by his
placement in ADX. Therefore, the Court finds that there is no genuine dispute of
material fact regarding this factor, which weighs against finding a liberty interest.
d. Placement is Indefinite
Plaintiff asserts that there is a disputed issue of fact as to whether his placement
at ADX is indefinite. Docket No. 319 at 31. Plaintiff insists that the various reviews he
receives from the BOP are meaningless and perfunctory. Id. Plaintiff argues that,
despite his ongoing eligibility for the Step-Down Program, defendants admitted that
there is no timetable for his acceptance and it was uncertain if plaintiff would ever be
allowed into the program. Docket No. 320-18 at 2.
To evaluate this claim, plaintiff’s assertion must be separated into two relevant
time periods: (1) plaintiff’s confinement at Range 13 from November 18, 2005 until April
6, 2008; and (2) plaintiff’s current confinement in ADX’s general population unit.
Plaintiff’s first claim is tantamount to an assertion that, when he was confined in Range
13, his confinement was indefinite because he did not know whether he would ever be
transferred to a general population unit. However, this argument is placing the cart
before the horse because plaintiff must first establish whether confinement in Range 13
creates an atypical and significant hardship when compared to confinement in ADX’s
general population. As already noted, the BOP had a valid penological interest for
27
plaintiff’s confinement at Range 13, his incarceration in that unit did not increase his
sentence, and the differences in conditions within Range 13 and the ADX general
population (i.e. the general population is allotted 5 more hours of outdoor recreation
and the inmates may communicate with one another) are not extreme. Thus, plaintiff’s
sole basis for asserting a liberty interest is to show that his confinement within Range
13 was indefinite because the reviews at Range 13 were perfunctory and a “sham.”
Docket No. 319 at 33. However, plaintiff does not contest that upon arrival at ADX he
received a classification interview and while in Range 13 he received six program
reviews. Docket No. 296 at 12, ¶¶ 69-71; Docket No. 319 at 7, ¶¶ 69-71. Further,
plaintiff does not challenge that he was transferred from Range 13 to the ADX general
population based on the recommendation of Dr. Conley after a semi-annual review on
December 18, 2007. Docket No. 296-4 at 14, ¶¶ 40-45; Docket No. 296 at 8, ¶¶ 35-47;
Docket No. 319 at 5, ¶¶ 35-47. Consequently, the Court finds that plaintiff’s claim that
confinement in Range 13 was indefinite is without merit because he was given periodic
reviews and these reviews eventually led to his transfer to a less restrictive unit.
The second time period relevant to plaintiff’s claim that his placement at ADX is
indefinite is his current detention in ADX’s general population. Other courts that have
addressed this issue have found that incarceration in ADX’s general population is not
indeterminate because inmates receive periodic reviews. See Georgacarakos, 2010
WL 1291833, at *13 (finding that the existence of the Step-Down Unit Program provides
a definite benchmark for plaintiff’s exit from ADX even if it took almost thirteen years to
get accepted to the program); Georgacarakos, 2011 WL 940803, at *11; Rezaq, 2010
WL 5157313, at *13 (conditions of confinement at ADX general population units–those
28
imposed on inmates who are excluded from the step-down program–do not give rise to
a liberty interest).
After reviewing the evidence, the Court finds that plaintiff was given adequate
review and therefore his claim that confinement in ADX’s general population is
indefinite is without merit. Plaintiff’s reviews for admission into the step-down program
were guided by the 2009 Institution Supplement (FLM 5321.06I(1)) and occurred at
least once every six months. Docket No. 296-4 at 24-26. The 2009 Institution
Supplement designates thirteen factors that prison officials must consider when making
a determination of whether an inmate can enter the step-down program. The 2009
Institution Supplement requires that, if a prisoner is denied admission, he must be
given: (1) the reasons for his denial in writing; and (2) a chance to appeal the warden’s
decision. Docket No. 296-4 at 29. Since his transfer to the general population, plaintiff
has had four referrals to the step-down program: May 18, 2009; November 17, 2009;
July 6, 2010, and October 20, 2010. Docket No. 296-4 at 118-24. In these reviews,
plaintiff was provided with specific reasons why his admission into the step-down
program was denied as well as the goals plaintiff had to achieve in order to receive
admission into the program. Id. Moreover, although plaintiff’s admission to the step
down program was denied, his daily management restrictions were gradually removed
and, since August 10, 2009, plaintiff is subject to the same procedures as all other ADX
general population inmates. Docket No. 296-16 at 4.
Additionally, even though plaintiff meets the qualifications to enter into the stepdown program, defendant’s failure to admit plaintiff does not give rise to an atypical and
significant hardship. Defendants have highlighted the need to proceed carefully given
29
plaintiff’s history, but nevertheless have gradually loosened plaintiff’s restrictions. The
Court does not believe that plaintiff’s reviews are rendered meaningless simply because
plaintiff has not been approved for the step down process during his first three years in
the general population. See Rezaq, 2010 WL 5157313, at *13 (finding that the
existence of the step-down program provides a definite benchmark for plaintiff’s exit
from ADX even if plaintiff was only accepted after almost thirteen years).3
In this case, the Court finds that there is no genuine material dispute that
plaintiff’s confinement is not indefinite because plaintiff is given regular reviews, the
opportunity to present objections, and specific reasons for the denial of his applications.
See Saleh, 2010 WL 5464294, at *5; Rezaq, 2010 WL 5157313, at *14 (to rise to a
level of a liberty interest, “the circumstances of confinement must create a virtual dead
end for the prisoner in order for due process guarantees to be operative.”).
2. Adequacy of Process
Given that the Court has found plaintiff failed to raise a genuine issue that his
incarceration at ADX implicates a liberty interest, there is no need to consider whether
3
The Court notes that the 2009 Institution Supplement meets the standard set
forth in Toevs v. Reid, 646 F.3d 752 (10th Cir. 2011), where the Tenth Circuit set forth
the requirements of a meaningful review for entrance into stratified prison programs. In
Toevs, the court found that the admission process into a stratified program provided
inmates with a liberty interest. Id. at 759. The court held that a three-tiered level of
review with notice to inmates and an ability to present evidence satisfied due process.
Id. However, the court found that the prisoners did not have a meaningful review
because their feedback was couched in terms of stock language such as
“circumstances have not changed.” Id. Thus, the court found that the reviews needed
to provide reasons for inmates failure to progress and recommend programs to guide
the inmates future behavior. Id. Here, the 2009 Institution Supplement considers
thirteen factors and provides the inmates with written reports for denials and a chance
to appeal. Docket No. 296-4 at 23-27.
30
plaintiff has been provided with sufficient due process protections. See Rezaq, 2010
WL 5157313, at *14 (citing Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994)).
3. Qualified Immunity
Because the Court finds that plaintiff has failed to raise a material issue of fact
on his Fifth Amendment claim and will dismiss that claim, it need not address the
individual defendants’ argument that they are entitled to qualified immunity on this
claim. See Jordan, 191 Fed. App’x at 652.
D. Fourth Claim: Cruel and Unusual Punishment
Plaintiff’s fourth claim asserts a violation of the Eighth Amendment’s prohibition
on cruel and unusual punishment against the BOP. In determining whether conditions
are cruel and unusual, courts do not apply a “static test” but look to “the evolving
standards of decency that mark the progress of a maturing society” to gauge whether
conditions are unconstitutional or only “part of the penalty that criminal offenders pay for
their offenses against society.” Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981)
(quotation omitted). To prevail on his claim that the current conditions of his
confinement are cruel and unusual, plaintiff must satisfy a two-prong test. First, he
must establish an objective component by showing that “he is incarcerated under
conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825,
832 (1994). Second, he must establish a subjective component by showing that the
defendants imposed or continued these conditions with a “sufficiently culpable state of
mind,” that is, with “deliberate indifference” to his health or safety. Id.
Plaintiff’s fourth claim survives only against the BOP and because the
government has not waived its sovereign immunity, plaintiff’s relief is limited to
31
injunctive relief. See Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1233
(finding that prisoner’s claim for injuctive relief–premised on violations of his Eight
Amendment rights–was not barred by sovereign immunity). Moreover, although plaintiff
alleges that he has faced serious risk of harm based in part on his isolation for over
twenty-eight years, the Court will focus its Eighth Amendment inquiry on conditions
imposed after plaintiff’s transfer to ADX in July 2005. The Court finds that plaintiff’s
confinement at USP Leavenworth is inconsequential to his ongoing Eighth Amendment
claim insofar as plaintiff seeks injunctive relief because nothing in plaintiff’s supporting
documents suggests that he is likely to be subject to those conditions again. See Saleh
v. U.S., No. 09-cv-02563-PAB-KLM, 2011 WL 2682728, at *6 (D. Colo. July 8, 2011)
(dismissing First Amendment injunctive relief based on plaintiff’s transfer to another
correctional facility); Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir. 2006) (“Plaintiff
seeking prospective relief must show more than past harm or speculative future
harm.”).
1. Objective Component
The objective component of an Eighth Amendment claim is satisfied by proof of
a deprivation that is “objectively, sufficiently serious.” Farmer, 511 U.S. at 834
(quotation omitted). Plaintiff argues that a deprivation need not create a risk of serious
harm so long as it creates a risk of unnecessary harm. See Docket No. 319 at 20. The
Court disagrees. None of the cases plaintiff cites in identifying this “strand of the Eighth
Amendment doctrine” obviate the need for proof of a sufficiently serious deprivation.
See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’”)
32
(emphasis added) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)); Rhodes v.
Chapman, 452 U.S. 337, 347-48 (1981) (finding that consequences of double-celling of
inmates “did not inflict pain, much less necessary and wanton pain”); Hope v. Pelzer,
536 U.S. 730, 738 (2002) (finding defendants subjected plaintiff to “a substantial risk of
physical harm” by tying him to a hitching post for 7 hours); Roper v. Simmons, 543 U.S.
551 (2005) (addressing death penalty); Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th
Cir. 1996) (Eighth Amendment prohibits “wrongdoing [] objectively harmful enough to
establish a constitutional violation”) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
Thus, the Court addresses whether plaintiff has introduced sufficient evidence of
an objectively serious deprivation or risk of harm so as to survive summary judgment.
Plaintiff alleges that his current confinement deprives him of the following basic needs:
sleep, social interaction, environmental stimulation, and adequate medical care. The
Court will address each alleged deprivation in turn.
a. Sleep
Plaintiff states that because of his twenty-eight years in isolation he suffers from
insomnia, which increases his risk of stroke, cardiac complications, morbidity, and
mortality. Docket No. 321-4 at 4, ¶¶ 16-21. Plaintiff reports that, as a direct
consequence of his insomnia, he sleeps 4-5 hours per night, and usually takes a 1-hour
nap after lunch. Docket No. 321-4 at 38. Plaintiff further reports that he is unable to
sleep because his cell is never completely dark as light seeps in from the hallway.
Docket No. 1 at 36, ¶ 208. He concedes that he does not allege that the conditions at
ADX are per se unconstitutional; rather, he claims that the ADX conditions as applied to
33
plaintiff–based on his history--amount to an Eighth Amendment violation. Docket No.
319 at 23.
After analyzing the evidence, the Court finds that plaintiff does not face a serious
risk of harm based on a claim of sleep deprivation. Plaintiff fails to prove a direct
connection between his insomnia and his confinement at ADX since July 12, 2005.
Plaintiff’s expert alleges that “conditions of confinement may be the cause of his
insomnia, as insomnia can be caused by isolation.” Docket No. 321-4 at 5, ¶ 20
(emphasis added). Further, the expert’s opinion that insomnia may be caused by
plaintiff’s isolation is not based on the expert’s treatment of the plaintiff; rather, it relies
on generalized studies. Id. Additionally, plaintiff’s expert does not show that plaintiff’s
insomnia has led to plaintiff’s heart murmur or other health issues, but again relies on a
generalized study of non-incarcerated individuals to show that sleeplessness increases
the risk of heart diseases by 48%. Id. at ¶ 18.
Second, plaintiff’s claim that constant illumination leads to a serious deprivation
of sleep is unavailing. The fact that light enters his cell from the hall does not constitute
a serious risk of harm and is a typical incident of prison life. See Doe v. Welborn, 110
F.3d 520, 524 (7th Cir. 1997) (finding that 24-hour lighting with low-watt fluorescent
bulbs does not objectively constitute an “extreme deprivation.”). Additionally, plaintiff
admits that, despite this illumination, he is able to sleep 4-5 hours a night and take a
nap after lunch. As a result, the Court finds that constant illumination does not
objectively amount to a serious deprivation of the basic human need for sleep. See
Murray v. Edwards County Sheriff’s Dept., 248 F. App’x 993, 998 (10th Cir. 2007)
(upholding summary judgment for prison officials on grounds that the detainee failed to
34
establish that his sleep problems from continuous cell illumination were sufficiently
sever to trigger the Eighth Amendment); Hampton v. Ryan, 288 F. App’x 404, 405 (9th
Cir. 2008) (upholding district court’s grant of summary judgment where plaintiff “failed to
raise a triable issue as to whether the lighting level in his cell caused him to suffer
psychological or physical harm”).
Therefore, the Court finds that because plaintiff is able to sleep 4-5 hours a
night, has control over the lights in his cell, makes only a tenuous correlation between
insomnia and isolation, and is subject to the same restrictions at ADX that courts have
found do not violate the Eighth Amendment, plaintiff does not face an objective risk of
serious harm from sleep deprivation.
b. Social Interaction and Environmental Stimulation
Plaintiff asserts that thirty years in isolation has exposed him to a serious risk of
harm because he is deprived of significant social interaction and environmental
stimulation. Docket No. 319 at 23. Plaintiff alleges that, as a result of such
deprivations, he suffers from anxiety, memory loss and cognitive impairments. Docket
No. 296-11 at 10, ¶ 30; Docket No. 321-4 at 5, ¶ 22. Plaintiff’s expert, Dr. Haney,
supports these claims based on external studies that show that detainees held in
isolation for extended periods of time often suffer from severe psychological pain and
distress. Docket No. 321-16 at 55. Dr. Haney adds that these studies have shown that
detainees subject to isolation often exhibit appetite and sleep disturbances, anxiety,
panic, rage, loss of control, paranoia, and hallucinations. Docket No. 321-16 at 59-60.
Based on these studies, Dr. Haney opines that plaintiff’s symptoms will likely worsen if
his conditions of confinement do not improve. Docket No. 321-16 at 56.
35
Plaintiff’s assertion that he has been deprived of social interaction and
environmental stimuli is inconsistent with the record. The record shows that, since his
arrival at ADX, plaintiff can make two fifteen-minute phone calls a month, have five noncontact visits, have five hours of indoor or outdoor recreation per week, and can
communicate with the guards and other prison staff. Docket No. 296-8 at 10, ¶ 34.
Furthermore, after plaintiff’s transfer to the D-Unit, he can talk to other inmates and had
an additional five hours of outdoor or indoor recreation. Id.
Plaintiff argues that as a result of his isolation he now suffers from anxiety.
Docket No. 321-4 at ¶ 22. Medical records show that, other then anxiety, plaintiff has
denied any other mental health concerns. Docket No. 296-11at ¶ 30. Moreover, the
records show that plaintiff’s psychological complaints are promptly handled and, since
his arrival at ADX, plaintiff has had forty-nine different sessions with the psychology
department as they continue to treat his symptoms with different medications. Id. at
¶ 38.
In regard to plaintiff’s cognitive impairments, the record shows that he has
received two Mini-Mental State Exams (MMSE) that are designed to measure cognitive
impairments. Docket No. 322-6 at ¶ 18. After Dr. Williams performed plaintiff’s MMSE,
he found that plaintiff had an abnormal result but was unable to attribute the memory
impairment to plaintiff’s conditions of confinement. Docket No. 321-4 at 42. Plaintiff’s
second MMSE, performed by Dr. Friedman, revealed that plaintiff had mild cognitive
impairments, yet concluded that in combination with his anxiety it would not “necessarily
interfere with Mr. Silverstein’s functioning in a reality-oriented manner.” Docket No.
322-6 at 6, ¶ 22.
36
The record also contains an undisputed review of plaintiff’s mental state by Dr.
Bursztjan, who opined that “Mr. Silverstein shows no significant indications of having
been harmed by the restrictions placed on him at Leavenworth and ADX Florence . . . I
do not find evidence of damage to Mr. Silverstein’s mental health resulting from the
conditions of confinement.” Docket No. 296-14 at ¶ 7; Docket No. 296 at 16, ¶ 99;
Docket No. 319 at 8, ¶ 99. Dr. Bursztjan opinion goes on to state that the “safest and
most reasonable course . . . is for Mr. Silverstein to continue to negotiate the conditions
of his confinement with prison staff with whom he interacts on a daily basis” because
this will “enhance his capacity for self-control and responsibility.” Docket No. 321-16 at
7, ¶ 20. Thus, contrary to plaintiff’s assertions, the record shows that confinement in
isolation has had minimal impact on plaintiff’s mental state. It also highlights that the
BOP’s gradual loosening of restrictions is actually supported by undisputed expert
opinion.
The Court notes that no other court in the Tenth Circuit has found that the
deprivation of some “social interaction” or “environment stimulation” gives rise to a
colorable violation of the Eighth Amendment. See Hill v. Pugh, 75 F. App’x 715, 72021(10th Cir. 2003) (holding that an inmate failed to state an Eighth Amendment claim
when the inmate alleged that he incurred “sensory deprivation” because he was held in
his cell 23 hours a day); Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (finding
that lack of outdoor exercise or fresh air to breathe did not constitute a per se Eight
Amendment violation, particularly where the prisoner gets at least an hour of exercise
per week and some fresh air); McMillan v. Wiley, No. 09-cv-01709-WYD-KLM, 2011 WL
4102278, at *16 (D. Colo. Sept. 14, 2011) (plaintiff’s claim that he is deprived of
37
environmental stimulation at ADX does not satisfy the objective component of an Eight
Amendment inquiry); Sattar v. Gonzales, No. 07-cv-02698-WDM-KLM, 2009 WL
606115, at *3 (D. Colo. March 6, 2009) (finding that confinement in a cell for 23 hours a
day for five days a week was not enough for plaintiff to allege a deprivation of any
recognized basic human need for deprivation of human contact). Nevertheless, plaintiff
invites the Court to find, along with evolving notions of humanity, dignity, and decency,
that deprivation of environmental stimulation leads to a serious risk of harm in violation
of the Eight Amendment. Docket No. 323-1 at 6. However, courts require a plaintiff to
demonstrate that he has been deprived of a basic human need in order to sustain an
Eighth Amendment deprivation claim. Sattar, 2009 WL 606115, at *3; see Seiter, 501
U.S. at 347; Durham v. Lappin, No. 05-cv-01282-MSK-MEH, 2006 WL 2724091, at *24
(D. Colo. September 21, 2006) (finding that because food, shelter, clothing and warmth
were provided for inmate, sensory deprivation did not amount to cruel and unusual
punishment). Thus, without deciding whether complete isolation and deprivation of all
environmental stimuli would constitute an Eighth Amendment violation, the Court finds
that, because plaintiff has had the right to five social visits per month, two 15 minute
phone calls per month, 1.5 to 2 hours of indoor or outdoor recreation five times a week,
and has always had the ability to communicate with prison staff, he is not completely
isolated or, for that matter, does not objectively face a serious risk of harm within the
context of the Eight Amendment.
Plaintiff’s complaints of anxiety, memory loss and cognitive impairment fail to rise
to the level of a severe risk of serious injury because they have all been diagnosed as
mild and kept under control either through medication or therapy. Docket No. 296-11 at
38
¶ 39. Plaintiff’s evidence of mental harm relies on studies performed on other
prisoners, and the record is devoid of actual instances where plaintiff personally suffers
from panic, rage, loss of control, paranoia. Additionally, Dr. Denney, plaintiff’s
psychiatrist for over a decade, labeled plaintiff as “resilient” and found that plaintiff
“maintained that sense of resilience from the move from USP Leavenworth . . . [to]
ADX.” Docket No. 296 at 33-34. Moreover, an undisputed report by Dr. Bursztjan
shows that plaintiff shows no significant indication of having being harmed by the
restrictions placed on him at ADX. Docket No. 296-14 at 4, ¶ 6. Lastly, although
plaintiff alleges that his confinement is punitive, it is clear that prison conditions may be
“restrictive and even harsh” without these conditions rising to the level of a
constitutional violation. Barney, 143 F.3d at 1311 (citation omitted). For these reasons,
plaintiff has not been deprived of any basic needs as that term was defined in Tafoya v.
Salazar, 516 F.3d 912, 916 (10th Cir. 2008).
c. Medical Care
Plaintiff alleges that he has not received adequate medical care for serious
medical ailments. Specifically, plaintiff asserts that he suffers from bleeding
hemorrhoids, Hepatitis C, and a heart murmur. Docket No. 321-4 at ¶¶ 8-9 . Plaintiff
alleges that the BOP has known about the heart murmur for a significant period and
that, even after requests made in September 2009, the BOP failed to provide plaintiff
with treatment until February 2010. Id. at ¶ 28. Plaintiff claims the BOP knew his
Hepatitis C results were positive in May 2008, yet the BOP did not commence
treatment. Rather, the BOP ordered further testing for May 2009. Docket No. 321-4 at
46. Plaintiff states that the BOP has also failed to treat his hemorrhoids promptly and
39
that he often bleeds in his cell. Id. at 34. Based on all of these events, plaintiff claims
that the BOP has failed to provide healthcare and this has led to a serious risk of harm
to his health. Docket No. 319 at 24.
Defendants counter that once plaintiff’s heart murmur was discovered, he was
treated by Dr. Stjernholm, who concluded that plaintiff’s heart was medically healthy
and did not require any further treatment. Docket No. 296-10 at ¶¶ 11-12. As for the
Hepatitis C, defendants argue that plaintiff is one of 150 ADX inmates with the disease
and, because of limited capacity, the government first provides treatment to those who
are in urgent need. Docket No. 296-10 at ¶¶ 16-17. The government insists that all
Hepatitis C patients are monitored closely and plaintiff is currently on the list for
treatment. Id. Defendants further assert that they performed plaintiff’s colonoscopy on
May 25, 2010 to determine whether his hemorrhoids were the result of colon cancer.
Id. ¶¶ 13-15. Dr. Yu, plaintiff’s surgeon, determined after a follow up in November 2010
that plaintiff did not need a hemorrhoidectomy. Id. Overall, the BOP maintains that
since his arrival at ADX, plaintiff has been evaluated by the medical staff thirty-five
different times. Docket No. 296-10 at 5-16.
To establish an 8th Amendment claim premised upon deliberate indifference to
his medical needs, an inmate must show: (1) he suffered from a serious medical need;
(2) the defendant deprived him of treatment of that need; and (3) that the defendant did
so with a sufficiently culpable state of mind. Farmer, 511 U.S. at 834. As to the first
element, a medical need is “serious” when it has been diagnosed by a physician as
requiring treatment or where the condition is so obvious that even a layperson would
recognize the need for a doctor’s attention. Sealock v. Colorado, 218 F.3d 1205, 1209
40
(10th Cir. 2000). With regard to the element of intent, “deliberate indifference” requires
a state of mind “more blameworthy than negligent,” but this can be “something less
than acts or omissions for the very purposes of causing harm or with knowledge that
harm will result.” Farmer, 511 U.S. at 835. It is a state of mind akin to recklessness
and occurs when the defendant “knows of and disregards an excessive risk to [the]
inmate['s] health or safety.” Id. at 837. It is not enough to show that a defendant
provided ineffective or even negligent medical treatment. Duffield v. Jackson, 545 F.3d
1234, 1238 (10th Cir. 2008). An Eighth Amendment violation arises only where a
defendant subjectively knows of an excessive risk to the plaintiff's safety, but
nevertheless disregards that risk. Sealock, 218 F.3d at 1209.
An Eighth Amendment violation may be based on treatment that is delayed
rather than refused. Sealock, 218 F.3d at 1210. In such circumstances, the inmate is
required to make an additional showing that the delay in receiving care caused
“substantial harm.” Id.; see also Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005).
“Substantial harm” includes lifelong handicap, permanent loss, or considerable pain.
Garret v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001).
The Court finds that plaintiff has shown that his heart murmur, hemorrhoids, and
the Hepatitis C are all objectively serious conditions such that even a layperson would
recognize the need for a doctor’s attention. Sealock, 218 F.3d at 1209. Thus the Court
will analyze whether plaintiff’s claims for deprivation of medical care, meet the Eight
Amendment’s standard for “deliberate indifference.”
41
2. Subjective Component
As noted above, for plaintiff to show that the BOP deprived him of medical care
with “deliberate indifference” he must show that the BOP was more than negligent.
DeShaney, 489 U.S. at 198 n.5. On the other hand, if plaintiff’s treatment was merely
delayed, rather than refused, he must show that the delay cause him “substantial
harm.” Mata, 427 F.3d at 751. To prove “substantial harm,” plaintiff must show some
lifelong handicap, permanent loss, or considerable pain. Garrett, 254 F.3d at 946.
In this case, plaintiff eventually received treatment for his Hepatitis C, his
hemorrhoids, and his heart murmur. Docket No. 296-10 ¶¶ 11-17. Thus, plaintiff’s
treatment merely delayed, and was not denied. Consequently, plaintiff must show that
defendants delay in this instance caused plaintiff “substantial harm.” Garret, 254 F.3d
at 950. Based on the record, the Court concludes that plaintiff was not subject to
substantial harm by the BOP’s delay in treating his heart murmur, his Hepatitis C and
his hemorrhoids. The Court relies on the fact that, after plaintiff was treated for both the
Hepatitis C and the hemorrhoids, and the treating physicians found that the conditions
were not serious and merely required constant monitoring. Docket No. 296-10 at ¶¶ 1317. The Court also notes that the record highlights that some of the delay with plaintiff’s
treatment is not a result of deliberate indifference, but may be attributed to the BOP’s
institutional constraints. Docket No. 296-10 at ¶ 16. For these reasons, the Court finds
that, although plaintiff has shown a significant risk of serious harm from his medical
ailments, plaintiff has not shown that his delayed treatment was the result of deliberate
indifference by the BOP. As a result, plaintiff’s Eight Amendment claim must fail.
42
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that plaintiff’s Motion for Leave to File a Sur-Reply to Defendant’s
Reply [Docket No. 365] is GRANTED. Plaintiff’s Sur-Reply is accepted for filing. It is
further
ORDERED that plaintiff’s Motion for Order to Allow Oral Argument on
Defendants’ Motion for Summary Judgment (Doc. 296) [Docket No. 354] is DENIED. It
is further
ORDERED that defendants’ Motion for Summary Judgment is GRANTED
[Docket No. 296]. It is further
ORDERED that judgment shall enter in favor of defendants and against plaintiff.
DATED September 30, 2011.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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