Gambina v. Federal Bureau of Prisons et al
Filing
48
OPINION AND ORDER GRANTING, IN PART, MOTION FOR JUDGMENT ON THE PLEADINGS: Mr. Gambina has sought leave to file a surreply 42 , which the Defendants oppose in part (#43). The Court will grant Mr. Gambin's motion and consider his tendered surre ply. The Defendants' Motion for Judgment on the Pleadings 21 is GRANTED IN PART and DENIED IN PART. All claims against Defendants Nalley and Watts are DISMISSED for lack of personal jurisdiction. Mr. Gambina's first claim for relief, sounding in deprivation of procedural Due Process, and second claim for relief, sounding in violation of the Eighth Amendment, are DISMISSED as against Defendants Davis and Madison on the grounds of qualified immunity, but t hose claims shall remain extant against the BOP to the extent they seek declaratory and injunctive relief. Mr. Gambina's third claim for relief, sounding in First Amendment retaliation, is DISMISSED in its entirety for failure to state a cognizable claim. The caption of this action is AMENDED to omit reference to Defendants Nalley, Watts, Davis, and Madison, and will proceed solely against the Federal Bureau of Prisons with regard to the Due Process and Eighth Amendment claims. by Judge Marcia S. Krieger on 9/28/11.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 10-cv-02376-MSK-KLM
RALPH GAMBINA,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
RICHARD MADISON, Counselor, United States Penitentiary Administrative Maximum, sued
in his official and individual capacities;
BLAKE DAVIS, Warden, United States Penitentiary Administrative Maximum, sued in his
official and individual capacities;
MICHAEL NALLEY, Regional Director, North Central Region, Federal Bureau of Prisons, sued
in his official and individual capacities;
HARRELL WATTS, Administrator, National Inmate Appeals, sued in his official and individual
capacities,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING, IN PART,
MOTION FOR JUDGMENT ON THE PLEADINGS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Defendants’ Motion for
Judgment on the Pleadings (# 21); Mr. Gambina’s response (# 31), and the Defendants’ reply (#
37). Mr. Gambina has sought leave to file a surreply (# 42), which the Defendant oppose in part
(# 43). The Court will grant Mr. Gambina’s motion and consider his tendered surreply.
FACTS
According to the Complaint (# 1), Mr. Gambina has been an inmate in the continuous
custody of the Federal Bureau of Prisons (“BOP”) since 1989. In 1992, Mr. Gambina was
charged with attempted escape from his facility and was transferred to the BOP facility in
1
Marion, Illinois, where he was placed in solitary confinement. Mr. Gambina proceeded to trial
on the escape charge and was acquitted by the jury.
The Complaint recites a series of allegedly retaliatory events by BOP staff that promptly
followed the acquittal, but the only event of significance to the instant matters is the fact that in
July 1993, Mr. Gambina was charged with a prison disciplinary infraction arising from precisely
the same conduct as the criminal escape charges against him. A BOP Hearing Officer found
sufficient evidence to convict Mr. Gambina of the escape charges, notwithstanding the jury’s
verdict, and recommended that Mr. Gambina be considered for placement within the Marion
facility’s control unit. A BOP administrator reviewed the Control Unit recommendation, but
found it unwarranted. The Executive Review Panel reviewed the administrator’s determination
and reversed it without comment, and in January 1994, sentenced Mr. Gambina to 60 months in
the Control Unit.
Upon the opening of the BOP’s Administrative Maximum (“ADX”) facility in Florence,
Colorado in or about 1995, Mr. Gambina was transferred to ADX. Mr. Gambina was not
provided with any hearing prior to the decision to transfer him to ADX. Mr. Gambina contends
that his incarceration at ADX is different from his incarceration at the Marion Control Unit in a
few respects. In both facilities, Mr. Gambina was housed in a single-occupancy cell for 23 hours
a day, receiving a total of five hours per week of solitary exercise in a small, enclosed outdoor
area. However, at ADX, he has a small television set in his cell, through which he may access
educational or religious programming. He is routinely strip-searched each time he enters or
leaves his cell, whether for exercise, visitations, or any other reason. He is provided two social
telephone calls per month and five non-contact visits with visitors. He has no contact with other
2
inmates and limited contact with ADX staff.
Mr. Gambina completed the 60-month Control Unit assignment in September 2002.1 At
that time, he was transferred to the Special Housing Unit at ADX, the confinement conditions of
which are identical to those discussed above, with the exception that inmates in the Special
Housing Unit do not have televisions in their cells. In July 2003, Mr. Gambina was released to
the “General Population” unit at ADX, but, despite the denomination, Mr. Gambina contends
that the conditions of confinement in General Population are not materially different than those
in the Control Unit. In the ensuing years, Mr. Gambina was housed variously in the General
Population at ADX and the Special Housing Unit, where he has been housed since mid-2008.
Mr. Gambina states that he “did not receive notice or a hearing prior to Defendants’
decision to continue to incarcerate him at the ADX following completion of his Control Unit
sentence.” He acknowledges, however, that in 2008, a policy change at the BOP entitled
inmates to a hearing prior to placement in ADX, and that in July 2010, he retroactively was
given a hearing regarding this question. He was given 4 days’ notice to prepare for the hearing,
which he participated in by telephone. The Complaint does not reveal the results of this hearing;
Mr. Gambina states merely that he “remains uncertain as to the purpose of the hearing.”
Mr. Gambina has been told that in order to become eligible to transfer to another facility
– and presumably, to a less-restrictive level of confinement – he must complete the ADX StepDown program, a three-year program through which inmates progress through a series of less-
1
According to Mr. Gambina, the 60-month period was extended due to ‘”BOP’s failure to
credit [him] for time served during which he declined to appear for monthly review hearings.”
His refusal to appear for the hearings was apparently based on his being involved in civil
litigation against BOP officials.
3
restrictive housing units. Mr. Gambina offers a conclusory assertion, without elaboration, that
“the program is administered in an arbitrary and capricious manner,” and notes that even
successful completion of the program does not guarantee transfer to a different facility. The
issue appears to be moot however, as Mr. Gambina explains that he cannot participate in the
program because several prison gangs have “a murder contract on [Mr. Gambina’s] life.”
Mr. Gambina asserts three causes of action: (i) a claim against the BOP under the
Administrative Procedures Act (“APA”), 5 U.S.C. § 702, and against the individual Defendants
under Bivens, alleging deprivation of a liberty interest, protected by the 5th Amendment, without
procedural due process in that his “placement and continued confinement” at ADX was
undertaken without notice or a hearing; (ii) a hybrid APA/Bivens claim that the conditions of Mr.
Gambina’s confinement amount to a violation of the 8th Amendment’s protection against cruel
and unusual punishment; (iii) a Bivens claim that Mr. Gambina’s First Amendment rights to
freedom of speech and right of access to the courts, insofar as the Defendants retaliated against
him in various ways for taking the escape charges against him to trial in 1993, for successfully
suing certain ADX guards for civil rights violations in 2006, and for making contact with his
current counsel and initiating this lawsuit.
The Defendants move (# 21) for judgment on the pleadings in their favor. Rather than
recite the various arguments urged by the Defendants here, the Court will address them as
appropriate in its analysis.
ANALYSIS
4
A. Standard of review
Motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) are adjudicated
under the same standards applicable to motions under Rule 12(b). Nelson v. State Farm Mut.
Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005). The Court treats all well-pled factual
allegations in the Complaint as true and considers them in the light most favorable to Mr.
Gambina. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), the Supreme Court clarified what constitutes a “well-pleaded fact” for purposes of a
Rule 12 analysis. A pleader is not required to set forth “detailed factual allegations,” but must
offer more than “labels and conclusions,” a “formulaic recitation of the elements of a cause of
action,” or “naked assertions devoid of further factual enhancement.” Iqbal, 129 S.Ct. at 1949.
The cases make clear that it is facts, not conclusions, that must be pled; “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions,” including “legal conclusion[s] couched as a factual allegation.” Id. at 1949-50.
B. Personal Jurisdiction
The Defendants argue that this Court lacks personal jurisdiction over Defendant Nalley,
Regional Director of the BOP’s North Central Region, located in Kansas, and Defendant Watts,
the BOP’s Administrator for National Inmate Appeals, located in Washington, D.C.
The Complaint is somewhat vague in its particular allegations against Mr. Nalley and Mr.
Watts. In the recital of the various parties, Mr. Gambina offers the largely conclusory assertion
that Mr. Nalley “has decisionmaking authority regarding transfer and placement of prisoners in
prisons operated by the BOP, including ADX, and regarding the nature of confinement of
5
prisoners,” without specifically describing the nature of that authority, and that Mr. Nalley “has
had direct involvement in denying Mr. Gambina’s prison-transfer requests,” although the
Complaint never clearly identifies the particular acts Mr. Nalley took to deny such requests.
With regard to Mr. Watts, the Complaint alleges only that he “has had direct involvement in Mr.
Gambina’s appeals of the denial of his prison-transfer requests.”
The narrative portion of the Complaint provides little additional detail. In some 67
paragraphs of substantive allegations, Mr. Nalley and Mr. Watts are specifically identified only
four times: three times noting their capacity to review inmate grievances and their failure to
grant relief to Mr. Gambina based on his grievances, Docket # 1, ¶ 44, 51, and 75, and once
stating that “by virtue of their positions,” they were aware of the nature of Mr. Gambina’s
confinement yet “failed to provide any meaningful review of Mr. Gambina’s requests for transfer
to a less restrictive environment.”
Extended analysis of the personal jurisdiction question is unnecessary. The 10th Circuit
has repeatedly held that the mere fact that individuals such as Mr. Nalley and Mr. Watts
(sometimes specifically Mr. Nalley and Mr. Watts), residing in other states, review and deny
inmate grievances for prisoners housed in Colorado is insufficient to render them subject to
personal jurisdiction in Colorado. Durham v. Hood, 412 Fed.Appx. 127, 130 (10th Cir. 2011)
(unpublished) (“The court similarly recognized that Watts and Hershberger’s2 contacts with
Colorado were completely fortuitous to the extent Mr. Durham alleged [Mr. Watts was] involved
in responding to his grievances”); Whitington v. Ortiz, 307 Fed.Appx. 179, 193-92 (10th Cir.
2
Mr. Hershberger was Mr. Nalley’s predecessor as Regional Director of the North
Central Region.
6
2009) (unpublished) (“the denial of the grievances alone is insufficient to establish personal
participation in the alleged constitutional violations”), quoting Larson v. Meek, 240 Fed.Appx.
777 (10th Cir. 2007); Hill v. Pugh, 75 F. App'x 715, 719 (10th Cir. 2003) (“federal prison
officials may be hauled into court simply because they have regional and national supervisory
responsibilities over facilities within a forum state”). To the extent that Mr. Gambina’s
allegations in the Complaint turn on Mr. Nalley and Mr. Watts’ denial of his grievances, these
cases alone make clear that no basis for personal jurisdiction exists.
In his response to the Defendants’ motion, Mr. Gambina offers a different argument. He
contends that “Mr. Nalley has the discretion to either accept or reject a recommendation to place
and to continue to hole Mr. Gambina in solitary confinement,” that both men “authored and
signed refusals to approve Mr. Gambina’s prison-transfer requests,” and that they “failed to
meaningfully review the circumstances of Mr. Gambina’s solitary confinement at the ADX.”
However, the Complaint makes no such allegations. The paragraphs of the Complaint cited by
Mr. Gambina in support of this contention are the same ones quoted above; in each instance, the
allegation in the Complaint is either nothing more than a conclusory assertion that Mr. Nalley or
Mr. Watts have “decisionmaking authority” or “direct involvement” with Mr. Gambina’s facility
assignment, without identifying what that authority or involvement consists of, or an assertion
that appears to indicate that the “authority” or “involvement” in question is a result of their
having reviewed and denied Mr. Gambina’s grievances.
The Court finds no well-pled facts in the Complaint that would indicate that Mr. Nalley
or Mr. Watts’ contacts with Colorado are anything other than the fortuitous result of Mr.
Gambina being housed in a facility in Colorado. Under these circumstances, the Court lacks
7
personal jurisdiction over Mr. Nalley and Mr. Watts, and the claims against them are dismissed.
C. Statute of limitation
Next, the Defendants argue that Mr. Gambina’s first and third claims for relief are barred
by the statute of limitation. The Defendants construe Mr. Gambina’s first claim seeking
declaratory and injunctive relief relating to his 1995 transfer to ADX as arising under the
Administrative Procedures Act (“APA”), 5 U.S.C. § 702, and is thus subject to a six-year statute
of limitations. 28 U.S.C. § 2401(a). With regard to Mr. Gambina’s Bivens claim for First
Amendment retaliation, the Defendants contend that such claim is subject to a two-year statute
of limitations, such that Mr. Gambina’s claims that various acts retaliated against him for
winning acquittal in is criminal trial in 1993 or in a civil claim in 2006 are untimely.
Mr. Gambina offers several arguments in response. First, he invokes the “continuing
violations doctrine” for the proposition that the Court can “look backwards to the entirety of a
continuing wrong to assess its cumulative effect, so long as an injurious act falls within the
statute of limitations period. Citing Burkley v. Corr. Healthcare Mgmt. of Okla., 141 Fed.Appx.
714, 176 (10th Cir. 2005). This Court disagrees. Burkley noted that “there is some dispute over
whether the continuing violation doctrine applies with respect to § 1983 suits” by inmates but
“assum[ed] without deciding” that the doctrine might apply, only to find that the inmate there
had not demonstrated facts warranting its application. Id.
More recently, the court clarified the application of the doctrine to circumstances like
those presented here. In Fogle v. Slack, 419 Fed.Appx. 860, 862 (10th Cir. 2011) (unpublished),
the court considered the application of the doctrine to claims by a state inmate that his
assignments to administrative segregation were undertaken without adequate due process
8
protections. The court again acknowledged that it was not prepared to definitively rule whether
the doctrine applied in § 1983 cases, but it found that “each segregation decision was of a
discrete nature,” such that application of the continuing violation doctrine was inappropriate. Id.
at 864-65. Cases from the District of Colorado have similarly found that inmate classification
decisions constitute discrete events, each subject to its own statute of limitations rather than a
“continuing” one. Matthews v. Wiley, 744 F.Supp.2d 1159, 1169-70 (D. Colo. 2010) (“Mr.
Matthews' transfer to ADX in 1995 was clearly a single discrete event, the continuing violation
doctrine does not apply”); Rezaq v. Nalley, 2008 WL 5172363 (D.Colo. Dec. 10, 2008) (slip
op.).
This Court’s decision in Georgacarakos v. Wiley, 2008 WL 4216265 (D.Colo. Sept. 12,
2008) (slip op.), on which Mr. Gambina relies, is distinguishable. There, the inmate alleged that
he was being held at ADX despite being eligible for assignment to a medium-security institution
based on his “classification score” under a BOP policy. The BOP sought to dismiss that claim as
untimely, arguing that a classification score was calculated at the time the inmate was first
incarcerated and thus, any contention that he should not be held at ADX because of that
classification score was untimely. This Court found that argument unpersuasive, noting that “it
is not clear whether the fixing of his classification level is a one-time event or how frequently his
eligibility for a less-secure classification is revisited.” Id. at *12. It went on to conclude that
the inmate could maintain a claim challenging the present calculation of his security level,
insofar as “every day he his improperly held at a more restrictive level” than is warranted under
BOP policies would constitute an actionable constitutional violation. Id. Georgacarakos must
be read in context: the Court was not finding that Mr. Georgacarakos could necessarily challenge
9
the propriety of a classification decision made many years ago; any doubt on that point may be
resolved by examining the Court’s analysis of the timeliness of the inmate’s remaining claims,
each of which examined whether the conduct being challenged was a discrete event in the past
(such that the statute of limitations would begin running at the time of the event) or whether the
conduct being challenged was a continuously-present condition of confinement (such that a
challenge to those conditions would not be rendered untimely simply because the inmate had
been exposed to those same conditions for a lengthy period of time without raising a challenge).
Because the events challenged by the Defendants as untimely here are discrete events,
Georgacarakos offers Mr. Gambina no relief.
Thus, although Mr. Gambina may timely challenge the procedural sufficiency of the July
2010 “retroactive” ADX assignment hearing, and may challenge the constitutionality of the
conditions of confinement to which he is subjected, his challenge to the 1995 decision to transfer
him to ADX is untimely. Similar reasoning compels the conclusion that his challenge to
“retaliatory” acts occurring in 1993 and 2006 are untimely under a two-year Bivens limitations
period. Each alleged act of retaliation was a discrete act with a readily-ascertainable date of
occurrence, and thus, not suitable for application of the continuing violation doctrine.
Accordingly, to the extent the first and third claims for relief seek to challenge events occurring
outside the otherwise applicable statute of limitations, those claims are dismissed as untimely.
D. Due Process claim
Finally, the Defendants contend that each of Mr. Gambina’s substantive claims fail to
adequately state a cognizable claim for relief. Once again, the Court evaluates these claims by
treating the well-pled allegations in the Complaint as true.
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First, the Court turns to the Due Process claim. This claim asserts that Mr. Gambina was
denied procedural Due Process when BOP officials conducted a hearing in July 2010 to ascertain
whether he should remain3 in ADX. The Defendants contend that Mr. Gambina fails to state a
Due Process claim for two major reasons: (i) the conditions of his confinement do not pose an
atypical and significant hardship, such that he has a constitutionally-protected liberty interest in
avoiding assignment to ADX; and (ii) Mr. Gambina received all the procedural protections to
which he was entitled.
To sufficiently plead a procedural Due Process claim, Mr. Gambina must adequately
allege two elements: (i) that he was deprived of a constitutionally-protected liberty or property
interest, and (ii) the procedures followed by the BOP in depriving him of that interest were
constitutionally insufficient. Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011). Turning to the
question of whether Mr. Gambina possesses a liberty interest in not being assigned to ADX, an
inmate possesses a liberty interest in avoiding transfer to (or retention in) more adverse
conditions of confinement only when those conditions represent an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Wilkinson v. Austin,
545 U.S. 209, 221-23 (2005).
The Defendants argue that the 10th Circuit and the District of Colorado have determined
that the conditions of confinement in ADX do not pose an atypical and significant hardship
compared to conditions in other prisons, and that, as a matter of law, inmates at ADX do not
possess a liberty interest in avoiding assignment to/retention in the facility. The Court finds that
3
The Complaint contends that the 2010 hearing was intended to retroactively determine
whether Mr. Gambina should have been transferred to ADX back in 1995.
11
this argument unavailing for several reasons. First, most of the cases cited by the Defendants
were appeals from rulings on motions for summary judgment, where both parties were given the
opportunity to fully address the broad panoply of restrictions and privileges that applied to the
inmate in question. See e.g. Jordan v. Federal Bureau of Prisons, 191 Fed.Appx. 639, 652 (10th
Cir. 2006) (unpublished) (“prison officials provided substantial evidence inmates segregated in
administrative maximum confinement experience restrictions and conditions comparable to those
of general population inmates”); Georgacarakos v. Wiley, 2010 WL 1291833 at *11 (D.Colo.
Mar. 30, 2010) (slip op.) (“[The BOP]'s affidavit describes in some detail the conditions of
confinement experienced by the Plaintiff in the General Population unit of ADX”).
In contrast, the Defendants’ motion arises under Rule 12, allowing the Court to consider
only the allegations in the Complaint. Without a full understanding of the particular conditions
that apply to Mr. Gambina – from both Mr. Gambina and the BOP – the Court is reluctant to
conclude that, as a matter of law, the conditions of his confinement can never give rise to a
liberty interest. These cases also demonstrate that, contrary to what one might expect, the
conditions of confinement at ADX are not identical as to all inmates or over all periods of time,
further highlighting the appropriateness of deferring thorough examination of the liberty interest
question until discovery and a full factual record can be completed.
Moreover, the Court notes that the 10th Circuit has never squarely held that the conditions
of confinement at ADX do not give rise to a liberty interest. In Jordan, the inmate was housed at
ADX for a period of four years during an investigation into his alleged role in a prison murder.
191 Fed.Appx. at 644. Among the reasons that the 10th Circuit found his conditions not to
implicate a liberty interest was the fact that “his confinement was not indefinite but instead
12
limited to the duration of the pending murder investigation.” Id. at 652. The fact of the ongoing
investigation weighed in the 10th Circuit’s evaluation of the degree to which such conditions
were “atypical,” as “[i]t is not ‘atypical’ for a prisoner to be in segregation while his or her
participation in violent conduct inside the prison wall is investigated.” Id. at 653. By contrast,
Mr. Gambina’s tenure at ADX is not necessarily limited by the duration of a pending
investigation; rather, it appears that Mr. Gambina will remain subject to confinement at ADX
until either his sentence is complete or BOP officials invoke their discretion to transfer him to a
less-restrictive environment. This Court cannot say, at this stage of the litigation, that the
inquiry into whether Mr. Gambina experiences an atypical and significant hardship with regard
to his circumstances will necessarily track the analysis of Mr. Jordan’s conditions.
This is not to say that Mr. Gambina is likely to succeed on his Due Process claim. Since
Wilkinson was decided in 2005, it does not appear that any circuit court has ever found that the
conditions of confinement at the highest-security facilities rise to the “atypical and significant
hardship” standard. See generally Ajaj v. U.S., 294 Fed.Appx. 575, 586 (10th Cir. 2008) (“like
the majority of our sister Courts of Appeal, we have never held the conditions, duration or
restrictions of the detentions presented on appeal created a liberty interest”); Townsend v. Fuchs,
522 F.3d 765, 772 (7th Cir. 2008) (explaining that “most solitary confinement facilities” present
“ordinary incidents of prison life that inmates have no liberty interests in avoiding”). But the
fact that Mr. Gambina faces difficult obstacles or long odds of success does not warrant
dismissal of his claims; rather, the question of whether Mr. Gambina possesses a liberty interest
in avoiding assignment to ADX is one that must await more complete factual development.
Accordingly, the Court denies the Defendants’ request to dismiss Mr. Gambina’s Due Process
13
claims at this stage.
Second, the Defendants contend that the process provided to Mr. Gambina in conjunction
with the July 2010 hearing (as described in the Complaint) was sufficient, as a matter of law, to
satisfy Mr. Gambina’s constitutional rights. Extended discussion of this argument is
unnecessary. In Wilkinson, the Supreme Court addressed the types of procedural protections that
would be sufficient before a prison official assigned an inmate to a “Supermax” facility like
ADX. The Complaint admits that Mr. Gambina was given some advance notice of the July 2010
hearing and was given an opportunity to state his position with regard to his proposed
assignment/retention at ADX, two components that Wilkinson deems “among the most important
procedural mechanisms.” Id. at 226. However, in Wilkinson, the Supreme Court noted that the
state required that “the decisonmaker provide a short statement of reasons” justifying placement.
Id. at 226. Without expressly finding such a statement to be a requirement of procedural Due
Process, the Court signaled a belief that such a statement “guards against arbitrary
decisionmaking while also providing the inmate a basis for objection before the next
decisionmaker or in a subsequent classification review.” Id. A reasonable reading of Wilkinson
suggests that a statement of the reasons for approving ADX placement would be a necessary
component of procedural Due Process. Mr. Gambina’s Complaint implies that no decision was
ever made, as Mr. Gambina “remains uncertain as to the purpose of the hearing.” Accordingly,
the Court cannot say that, on the strength of the allegations in the Complaint alone, that the
Defendants are entitled to dismissal of Mr. Gambina’s procedural Due Process claim.
However, the Court agrees with the Defendants that they, as individuals, are entitled to
qualified immunity on Mr. Gambina’s claims for monetary damages against them. A
14
government official sued for monetary damages is entitled to qualified immunity unless the
plaintiff can show both that the official’s actions violated a constitutional right and that the
contours of that right were “clearly established” under existing law at the time of the deprivation.
Pearson v. Callahan, 555 U.S. 223, 231 (2009). With regard to a showing that each individual
Defendant violated Mr. Gambina’s constitutional rights, the Court notes that Mr. Gambina’s
Complaint makes no effort whatsoever to indicate which Defendant or Defendants personally
participated in the conduct giving rise to the alleged Due Process deprivation. It is not clear, for
example, how Mr. Davis personally committed acts that deprived Mr. Gambina of his Due
Process rights, nor whether Mr. Madison engaged in those same acts or different acts. Mr.
Gambina’s Complaint appears to assume that all Defendants are equally responsible for having
jointly engaged in all acts against him, even though the basis for that conclusion is unstated and,
frankly, somewhat implausible.4 Although Mr. Gambina has alleged conduct that can reasonably
be imputed to the Federal Bureau of Prisons, such that his Due Process claim may proceed to the
extent it seeks injunctive relief, his failure to adequately allege non-conclusory facts showing the
nature and extent of each individual Defendant’s personal participation in the alleged
unconstitutional conduct requires that those individual Defendants be granted qualified
immunity. See e.g. Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir. 1996). Mr. Gambina’s Due
Process claim will proceed against the BOP only, with injunctive relief the only remedy at issue.
E. Eighth Amendment claim
4
The only specific individual mention the Complaint makes of Mr. Madison is that he “is
responsible for assisting inmates . . . in resolving complaints and distributing mail and property.”
How Mr. Madison’s pursuit of these tasks can lead to the conclusion that Mr. Madison deprived
Mr. Gambina of Due Process by confining him to ADX without adequate procedural protections
is a mystery.
15
The Defendants seek dismissal of Mr. Gambina’s claim that his conditions of
confinement violate the Eighth Amendment’s ban on cruel and inhuman punishment. The
Defendants contend, again, that the 10th Circuit has dispositively addressed this question in the
context of ADX and found no such violation.
An inmate raising an Eighth Amendment challenge is required to make a two-part
showing: (i) that the conditions of his confinement objectively “pose[ ] a substantial risk of
serious harm” to his health, safety, or well-being, and (ii) that the Defendants were subjectively
aware of this risk of harm yet manifested deliberate indifference to it. Ajaj, 293 Fed.Appx. at
578. The Court must examine the conditions of confinement “as a whole,” mindful of the
synergistic adverse effects that some conditions may have on one another, but it is but also
recognized that “overall conditions [cannot] rise to the level of cruel and unusual punishment
when no specific deprivation of a single human need exists.” Id. at 583.
Mr. Gambina contends that various conditions at ADX combine to render his
confinement unconstitutional. Among other things, ADX cells are small (87 square feet), and
configured to minimize access to natural light and the ability of prisoners to communicate with
one another. Inmates spend nearly all of their time in their cells, receiving only five hours of
outdoor exercise per week, and that exercise takes place in enclosed, single-occupancy exercise
areas approximately ten steps wide. Inmates are permitted to have two 15-minute social
telephone calls per month and five non-contact social visits, although inmates are strip-searched
before and after any social visit.
In Ajaj, the 10th Circuit addressed an ADX inmate’s claim that his conditions of
confinement – specifically, “limitations on his property rights, mail, access to telephones, and
16
recreation”; “lock-down for 23 hours per day in extreme isolation”; “imposition of discipline for
minor offenses”; “noise”; “lights which remain on in his cell 24 hours per day”; and “indefinite
confinement at ADX” – violated his Eighth Amendment rights. 293 Fed.Appx. at 582.
Affirming a grant of summary judgment to the BOP on Mr. Ajaj’s Eighth Amendment claim, the
10th Circuit found that Mr. Ajaj could not demonstrate that the conditions of confinement
objectively posed a substantial risk to his safety or health. The court explained that “save
Plaintiff’s allegations regarding his access to exercise, the conditions of confinement he avers do
not, even taken together, constitute the sort of significant departure from the healthy habilitative
environment that the state is required to provide to its inmates.” Id. (The Court went on to
conclude that a denial of any outdoor recreation for a full year “is not sufficiently serious to
implicate the Eighth Amendment.” Id. at 584.)
Mr. Gambina argues that cases such as Ajaj are not determinative of the Eighth
Amendment question because Mr. Ajaj did not raise, and the 10th Circuit did not consider, the
question of whether those conditions come to violate the Eighth Amendment once inmates are
exposed to them for lengthy periods of time.5 For example, in Barney v. Pulsipher, 143 F.3d
5
Mr. Gambina also offers a highly-abbreviated alternative argument: a factor in the
Eighth Amendment analysis is whether the conditions of confinement are “grossly
disproportionate to the severity of the crime warranting punishment.” Silverstein, 704 F.Supp.2d
at 1098, citing Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996). The Supreme Court
has recognized that the Eighth Amendment can be implicated in “the rare case” where a
comparison of “the gravity of the offense and the severity of the sentence” yield a gross
disproportionality, Graham v. Florida, 130 S.Ct. 2011, 2021-22 (2010), but these cases are
inapposite to Mr. Gambina’s situation. These cases – examining laws permitting juveniles to be
sentenced to life without parole for non-violent crimes or “three-strikes” laws calling for lengthy
prison terms for minor theft offenses – are of an entirely different quantum than Mr. Gambina’s
case, where he was initially incarcerated for armed bank robbery and two escape attempts, and
his assignment to ADX was allegedly incident to a third attempted escape attempt (for which Mr.
Gambina was acquitted of criminal charges but found guilty in a prison disciplinary proceeding
17
1299, 1312-13 (10th Cir. 1998), the court noted that “an important factor in determining whether
conditions of confinement meet constitutional standards is the length of the incarceration.” It
explained that “a filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days
and intolerably cruel for weeks or months.” Id., citing Hutto v. Finney, 437 U.S. 678, 686-87
(1978); see also DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (noting that “the severity
and duration of deprivations” work in inverse proportion).
The Court has some doubt that this argument is tenable. In the cases cited by Mr.
Gambina, the length of incarceration was considered to determine whether the inmate suffered
the conditions for too brief a length of time to constitute an Eighth Amendment violation.
Barney, 143 F.3d at 1313 (inmates subjected to “a filthy cell, inadequate lighting and ventilation,
lack of enclosures around the shower and toilet, unappetizing food, and no access to recreational
facilities” for only two days did not amount to an Eight Amendment violation, as “far worse
conditions fail to state a claim because of the brief nature of the incarceration”); Craig v. Eberly,
164 F.3d 490, 495 (10th Cir. 1998) (reversing grant of summary judgment because it was
disputed whether inmate suffered exposure to an overcrowded and unsanitary cell and minimal
exercise opportunities for a period of weeks or a period of months; “the difference between
enduring harsh conditions for seven weeks versus six months may be constitutionally
significant”). Here, there is no indication that the court in Ajaj found the conditions in ADX to
with a lesser standard of proof) and extended by Mr. Gambina’s admitted refusal to appear at
certain review hearings.
18
be constitutional by virtue of the fact that Mr. Ajaj’s exposure to them was only brief.6 (Indeed,
the “indefinite” nature of Mr. Ajaj’s confinement at ADX was one of the conditions expressly
recited by the court.) Moreover, the Court has some doubt that the potentially-significant
distinction between “seven weeks” and “six months” in Craig retains that potential significance
when the difference is a period of “several years” for Mr. Ajaj and “many years” for Mr.
Gambina.7
Nevertheless, the Court is reluctant to conclude that Mr. Gambina’s allegations fail as a
matter of law. A close reading of Ajaj suggests that the primary human need focused on in that
case was the lack of access to outdoor exercise. The trial court found that although Mr. Ajaj
“took issue with numerous conditions of confinement, his summary judgment response
referenced record evidence only in regard to his limited ability to exercise outdoors and his
indefinite confinement at ADX.” 293 Fed.Appx. at 583. In its ruling, the only issue the 10th
6
The decision indicates that Mr. Ajaj had been at ADX since 2002, a period of six years
at the time the decision was written.
7
Arguably, DeSpain suggests that, because severity and duration work in “inverse
proportion,” a deprivation of minor seriousness suffered for an extremely long time might be
actionable, but DeSpain never makes such an outright assertion. However, DeSpain is somewhat
coy about how this formula functions with regard to long-term deprivations. Given the
opportunity to juxtapose “substantial deprivations of shelter, food, drinking water and sanitation”
that may be actionable under the Eighth Amendment “despite a shorter duration” with a less
substantial deprivation that occurs for a long time, the court did not contemplate the latter. 264
F.3d at 974. Instead, it states the more obvious proposition that “minor deprivations suffered for
short periods would not rise to an Eighth Amendment violation.” Id. This would appear to be a
calculated decision, as the logic of granting Eighth Amendment significance to a relatively minor
deprivation of basic necessities simply because the deprivation occurred for an extremely long
period of time is not necessarily sound.
In any event, DeSpain’s musings on this issue are dicta, as the serious nature of the
inmate’s deprivation there – a “lack of access to working toilets that led to his exposure to other
inmates’ urine and feces via the standing water” – overcame the relatively short 36-hour period
of that exposure.
19
Circuit discussed in detail was access to exercise; the remainder of Mr. Ajaj’s challenges were
quickly swept aside in a single sentence. Id. By contrast, the primary human need underlying
Mr. Gambina’s claims here is the need for human interaction, as Mr. Gambina complains that the
solitary nature of his confinement deprives him of “social contact, communications with others,
meaningful physical exercise, and environmental and sensory stimulation.” He contends that
“extreme sensory deprivation and social isolation” have “exacted a serious toll” on him over the
18 years he has been subjected to solitary confinement, first at Marion and now at ADX.
Because Mr. Gambina’s claim focuses on a different human need than the court examined in
detail in Ajaj, this Court is reluctant to treat Ajaj as conclusive on Mr. Gambina’s claim.
Accordingly, the Court finds that Mr. Gambina has – albeit barely – alleged facts sufficient to
satisfy the objective element of an Eighth Amendment claim.
The Court does not reach the second element of the claim – whether Mr. Gambina
adequately alleged that any of the individual Defendants acted with a culpable state of mind –
because the Court finds in any event that claims against the individual Defendants are barred by
qualified immunity. Mr. Gambina has not shown that an inmate’s right to be free from the kinds
of conditions of confinement existing at ADX – including long-term solitary confinement – is
“clearly established” by Supreme Court or 10th Circuit precedent or the weight of precedent in
other circuits. See Silverstein v. Federal Bureau of Prisons, 704 F.Supp.2d 1077, 1098-99
(D.Colo. 2010) (granting qualified immunity to individual defendants on Eighth Amendment
claim by ADX prisoner). If anything, a case like Ajaj, which refused to find an Eighth
Amendment violation despite allegations that the inmate was exposed to “extreme isolation” for
a period of several years, suggests just the opposite.
20
Mr. Gambina argues that cases such as Hutto v. Finney, 437 U.S. 678, (1978), are
sufficient to clearly establish an Eighth Amendment violation in this circumstance, but Hutto is
patently distinguishable. The Court need not explain how the facts of Hutto differ from those
alleged here; no reader will be particularly challenged to identify dozens of stark factual
distinctions between that case and this one. 437 U.S. at 682-83 & n. 3-6. Moreover, although
Hutto does explore the Eighth Amendment question partially by exploring the circumstances
under which inmates were subjected to punitive isolation, and states that “punitive isolation . . .
may be [unconstitutional] depending on the duration of the confinement and the conditions
thereof,” id. at 685-86, those observations have a starkly different meaning than Mr. Gambina
gives them. It is clear from Hutto that the “isolation” being referenced is not psychological
isolation that results from an inmate having no meaningful human contact. Just the opposite is
true: among the major problems in Hutto was that the “isolation cells” were overcrowded. Id. at
684 (“The situation in the punitive isolation cells was particularly disturbing . . [t]here were
twice as many prisoners as beds in some cells. And because inmates in punitive isolation are
often violently antisocial, overcrowding led to persecution of the weaker prisoners”). In short,
the problem in Hutto was that solitary confinement wasn’t solitary enough. Id. (to remedy the
unconstitutional conditions, the trial court “entered an order that placed limits on the number of
men that could be confined in one cell, required that each have a bunk, . . . and set 30 days as the
maximum isolation sentence”). Passages in Hutto may sound like they lend support to Mr.
Gambina when extracted from the factual context of the case, but when these passages are read
and understood in situ, it is obvious that Hutto fails to “clearly establish” Mr. Gambina’s right to
21
be free from long-term psychological isolation.8
Accordingly, although the Court will permit Mr. Gambina’s Eighth Amendment claim to
proceed against the BOP, giving rise to the possibility that he may ultimately obtain injunctive
relief, the Court finds that Bivens claims for monetary relief against the individual Defendants
are barred by the doctrine of qualified immunity, and those claims against Mr. Madison and Mr.
Davis are dismissed.
F. Retaliation claim
Mr. Gambina’s final substantive claim is a contention that the Defendants retaliated
8
The other case primarily relied upon by Mr. Gambina as “clearly establishing” the
Eighth Amendment right to be free from psychological isolation is Davenport v. DeRobertis, 844
F.2d 1310, 1313 (7th Cir. 1988). Although Davenport contains the statement “[it] seems pretty
obvious, that isolating a human being from other human beings year after year or even month
after month can cause substantial psychological damage,” that statement is not apropos of
anything in particular. Id. The issue in Davenport was prison officials’ challenge to a remedial
injunction that directed that inmates in solitary confinement for more than 90 days be given
“opportunity to shower at least three times each week and to exercise outside of his cell at least
five hours each week.” Id. at 1311-12 (“All that the defendants are arguing is that the most the
Constitution guarantees . . . is one hour of exercise outside the cell, and one shower, per week,
and hence that the injunction is too severe”).
The passage in which the court references “psychological damage” is of no apparent
connection to the issues presented on appeal. Rather, it appears to be the court musing about
why the prison officials did not also appeal a jury’s verdict finding other conditions at the prison
to be violative of the Eighth Amendment. Id. at 1312-13. Read in this context, the court appears
to reach precisely the opposite conclusion than Mr. Gambina cites it for – it appears that the
court believes that the psychological isolation resulting from lengthy solitary confinement falls
within the typical incidents of prison life. After the sentence quoted above, the court goes on to
state: “Of course, it is highly probable that the experience of being imprisoned inflicts
psychological damage whether or not the prisoner is isolated, so it is only the marginal
psychological damage from segregation that is relevant. And the infliction of disutility, to
borrow a convenient economic term, is one of the objectives of criminal punishment; only if the
only objective of punishment were incapacitation could it be argued that living conditions should
be as comfortable in prison as outside.” Id. at 1313. (The court goes on to express some concern
that the jury’s findings as to unconstitutional conditions warrants the challenged injunction,
insofar as the unconstitutional conditions existed at a facility that was no longer open. Id.)
Thus, taken in context, Davenport offers no additional support to Mr. Gambina.
22
against him for exercising his First Amendment rights. As constrained by the Court’s ruling
above with regard to the statute of limitations, this Bivens claim is limited to two instances
occurring in 2010. Mr. Gambina alleges that, following his current counsel, “Defendants failed
to deliver several payments sent to Mr. Gambina by his brother.” Second, he alleges that
“following [his] continued interaction with undersigned counsel, Defendants retaliated against
Mr. Gambina by refusing to turn on the lights in Mr. Gambina’s cell for at least two weeks in
September 2010.”
The Defendants raise several arguments as to why this claim should be dismissed, but the
Court need only address two related contentions: the Complaint’s failure to allege facts showing
that any of the Defendants knew of Mr. Gambina’s protected activities and the failure to allege
any particular Defendant’s personal participation in the retaliation. As noted above, the
Complaint generically alleges that “Defendants” did various acts, but the retaliation claim
necessarily presupposes that a particular Defendant or Defendant intercepted payments destined
for Mr. Gambina or refused to turn the lights off in his cell. Mr. Gambina’s response to the
Defendants’ motion contends that because Mr. Gambina alleges that Mr. Madison “is
responsible for resolving inmate complaints and distributing mail,” he “was at least partially
responsible for failing to deliver” the payments. But this is nothing more than speculation – Mr.
Gambina does not allege that Mr. Madison is the only person that delivers mail, nor otherwise
explains why he would be “partially responsible” for someone else’s failure to deliver the
payments to Mr. Gambina. (Mr. Gambina offers no argument whatsoever as to how any of the
Defendants were responsible for refusing to turn off his lights.) Mr. Gambina’s failure to
specifically identify the Defendant or Defendants that personally participated in this conduct
23
renders his retaliation claim insufficient. Jenkins, 81 F.3d at 994-95.
Moreover, by definition, where a person alleges that another has retaliated against them
because of the person’s prior protected activity, an essential element of the claim is that the
person engaging in the retaliatory action must be shown to have had foreknowledge of that
protected activity; the Defendants cannot have intended to retaliate against Mr. Gambina for an
act that the Defendants were not aware had occurred. See Titus v. Ahlm, 297 Fed.Appx. 796, 801
(10th Cir. 2008) (unpublished). But the Complaint does not plead any facts explaining how Mr.
Gambina has reached the conclusion that any Defendant knew of his communications with his
counsel. Mr. Gambina offers only the speculation that because the Defendants are prison
officials, “when an inmate . . . arranges a call with counsel, it is beyond debate that the BOP
officials in question would know where the inmate is and what the inmate is doing.” This is
nothing more than sheer speculation (and illogically assumes that all prison officials are always
aware of all communications all inmates have with attorneys). The failure to allege specific facts
demonstrating each Defendant’s particular knowledge of Mr. Gambina’s protected activities
requires dismissal of the retaliation claim.
CONCLUSION
For the foregoing reasons, the Defendants’ Motion for Judgment on the Pleadings (# 21)
is GRANTED IN PART and DENIED IN PART. All claims against Defendants Nalley and
Watts are DISMISSED for lack of personal jurisdiction. Mr. Gambina’s first claim for relief,
sounding in deprivation of procedural Due Process, and second claim for relief, sounding in
violation of the Eighth Amendment, are DISMISSED as against Defendants Davis and Madison
on the grounds of qualified immunity, but those claims shall remain extant against the BOP to
24
the extent they seek declaratory and injunctive relief. Mr. Gambina’s third claim for relief,
sounding in First Amendment retaliation, is DISMISSED in its entirety for failure to state a
cognizable claim. The caption of this action is AMENDED to omit reference to Defendants
Nalley, Watts, Davis, and Madison, and will proceed solely against the Federal Bureau of
Prisons with regard to the Due Process and Eighth Amendment claims.
Dated this 28th day of September, 2011
BY THE COURT:
Marcia S. Krieger
United States District Judge
25
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