Brown v. Federal Bureau of Prisons et al

Filing 100

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge of September 24, 2013 (ECF No. 92) is AFFIRMED AND ADOPTED. ORDERED that Defendants' Motion for Summary Judgment filed on August 14, 2013 (ECF No. 76) is GRANTED IN PART AND DENIED IN PART. ORDERED that Plaintiffs Motion for Summary Judgment filed on August 16, 2013 (ECF No. 79) is DENIED by Judge Wiley Y. Daniel on 01/29/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-03191-WYD-BNB
TIMOTHY DEMITRI BROWN,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES OF AMERICA, and
JOHN AND JANE DOES 1-20,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendants’ Motion for Summary Judgment
filed August 14, 2013, and Plaintiff’s Motion for Summary Judgment filed August 16,
2013. These motions were referred to Magistrate Judge Boland. A Recommendation
of United States Magistrate Judge was issued on September 24, 2013, and is
incorporated herein by reference.
It is recommended therein that Defendant’s Motion for Summary Judgment be
granted in part and denied in part; specifically, that the motion be granted as to the
remaining allegations in Claims One and Claim Four, as well as Claim Three’s
allegations regarding Freedom of Information [“FOIA”] Request Nos. 2010-04477 and
2010-11668. It is recommended that Defendants’ motion be denied as to Claim Three’s
allegations regarding FOIA Request No. 2010-03653. I note that the remaining claims

were previously dismissed by Order of January 4, 2013. Finally, Magistrate Judge
Boland recommends that Plaintiff’s Motion for Summary Judgment be denied.
On October 7, 2013, Plaintiff filed timely objections to the portion of the
Recommendation which recommended granting summary judgment as to certain of his
claims. A response to the Objections was filed on October 24, 2013, and a reply was
filed on November 6, 2013. Plaintiff’s objections necessitate a de novo determination
as to those specified proposed findings or recommendations to which objection is made
since the nature of the matter is dispositive. Fed. R. Civ. P. 72(b); 28 U.S.C.
§ 636(b)(1).
“In order to conduct a de novo review a court ‘should make an independent
determination of the issues ...; [it] ‘is not to give any special weight to the [prior]
determination.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.
1988) (quoting United States v. First City Nat. Bank, 386 U.S. 361, 368 (1967)) (internal
quotation marks omitted). While the court may place whatever reliance on the
magistrate judge’s “recommendation its merit justifies, the court must review the record
in light of its own independent judgment.” Id.
Turning to Plaintiff’s objections, Plaintiff argues generally that the Magistrate
Judge failed to consider relevant case law, applied the incorrect legal standard, failed to
consider evidence presented, found facts that were contrary to the evidence, excluded
the facts presented by Plaintiff, failed to consider the material facts of the claims, and
misapplied the law governing the issues. I address these arguments in the context of

-2-

Plaintiff’s specific objections. See Fed. R. Civ. P. 72(b)(2); see also Thomas v. Arn, 474
U.S. 140, 147-48 (1985).
Plaintiff first argues that the recommendation to grant summary judgment in favor
of Defendants on Claim One was erroneous. Claim One alleged that Plaintiff’s
placement in unwarranted psychological treatment in the Special Management Unit
[“SMU”] constitutes a tort, and that the SMU program was implemented in violation of
the Administrative Procedure Act [“APA”]. (Recommendation at 3, 16.) Magistrate
Judge Boland found that placement into the SMU was subject to the discretionary
function exception to the Federal Tort Claims Act, and is therefore barred by sovereign
immunity. (Id. at 16-18.) He based that finding on Special Management Units Program
Statement 5217.01, wherein placement in an SMU is not mandated by BOP policy but is
at the discretion of prison officials. (Id. at 18.) Magistrate Judge Boland also found that
the placement of Plaintiff into the SMU was not subject to challenge under the APA. (Id.
at 18-19.)
Plaintiff objects to the dismissal of Claim One, asserting that the SMU is an
involuntary psychological treatment program that is outside the scope of inmate
housing. Plaintiff also argues that the Court clearly erred in not applying the factors in
Sell v. United States, 539 U.S. 166 (2003), before assigning him to the SMU, and states
that since he has no mental illness the treatment could not possibly be necessary nor
appropriate. Indeed, he asserts that Defendants presented no evidence of the
appropriateness or necessity of the involuntary treatment. Finally, Plaintiff argues that
Magistrate Judge Boland erred in applying the discretionary function exception to the
-3-

placement into involuntary psychological treatment, and that 18 U.S.C. § 4245 is a fixed
and readily ascertainable standard of conduct for officials when involuntary treatment is
considered.1
I overrule Plaintiff’s objections as to Claim One, as I agree with Magistrate Judge
Boland that the discretionary function exception bars this claim. In order for this
exception to apply, two prongs must be satisfied: (1) the governmental conduct must be
discretionary and (2) “the decision in question is one requiring the exercise of judgment
based on considerations of public policy.” Garcia v. U.S. Air Force, 533 F.3d 1170,
1176 (10th Cir. 2008). Plaintiff objects only to the first prong, arguing that the conduct is
not discretionary. He asserts a housing claim, challenging the BOP’s assignment of him
to the SMU. Defendants have shown that the BOP has discretion over prison
assignments and conditions. (See ECF No. 76 at 31-32, citing 18 U.S.C. §§ 3621,
4042, and 4081 and the Program Statement implementing the SMUs). Given the
discretionary nature of inmate housing and assignment to an SMU in particular, the
BOP meets the first prong of the discretionary function exception—that the conduct is a
“matter of choice for the acting employee.” Berkovitz v. United States, 486 U.S. 531,
536 (1988). While not objected to, I further agree with Magistrate Judge Boland that the
second prong is satisfied.
Plaintiff argues, however, that his housing assignment was not a matter of choice
because 18 U.S.C § 4245 applies to his claim due to his involuntary treatment for

1

I note that Plaintiff did not object to the portion of the Recommendation rejecting Plaintiff’s
challenge to the implementation of the SMU program under the APA, and I affirm that portion of the
Recommendation.

-4-

psychological treatment. I reject that argument. 18 U.S.C. § 4245, titled
“Hospitalization of an imprisoned person suffering from mental disease or defect”,
relates to transfer to a mental hospital without an inmate’s consent. Here, the evidence
presented by Defendants shows that the SMU is not a mental hospital or an involuntary
psychological treatment program. Instead, it is a facility for inmates who require greater
management of their interaction in order to ensure the safety, security, or orderly
operation of BOP facilities or the protection of the public. (See ECF No. 76-1, ¶ 5.) The
fact that psychological services were part of the program does not bring Plaintiff’s
placement into the SMU within the purview of 18 U.S.C. § 4245, as Plaintiff was not
transferred to a mental hospital for treatment of a mental disease or defect. Moreover,
he refused to participate in the psychological services offered in the SMU.2
Similarly, the Sell case is irrelevant because it applies to a situation where “a
defendant may be committed and forcibly medicated for the purpose of making him
competent to stand trial.” United States v. Galloway, 422 F. App’x 676, 679 (10th Cir.
2011). Plaintiff is not a defendant in a criminal case, was not committed, was not
forcibly medicated, and his case does not concern competency to stand trial.
I now turn to Claim Three against the Bureau of Prisons [“BOP”] related to the
denial of Plaintiff’s requests for information in violation of the FOIA. Plaintiff objected to
the Magistrate Judge’s recommendation regarding a single FOIA request, No. 201011668, which when narrowed by Plaintiff sought from the BOP contracts with private
companies to provide telephone and/or internet services to federal inmates.

2

The cases cited by Plaintiff are inapplicable.

-5-

(Recommendation at 7, 8, 22.) In response to the FOIA request, the BOP was asked to
conduct a search for responsive documents. (Id. at 23.) The BOP’s Trust Fund Office
“was then searched as it is primarily responsible for overseeing the inmate telephone
and email systems in BOP facilities, but this search did not yield any results.” (Id.) This
search result was communicated to OIP, which affirmed the BOP’s adequacy of search
for records. (Id. at 9-10, 23.) Magistrate Judge Boland rejected Plaintiff’s arguments
that the BOP admitted that a contract to UNISYS was a BOP record, found that the
BOP’s search efforts were reasonable, and granted summary judgment as to this FOIA
claim. (Id. 23-24.)
Plaintiff argues in his objections that Magistrate Judge Boland committed error by
failing to consider Exhibit 8 of Plaintiff’s response which he asserts contradicts
Defendants’ statements that the telephone contract is not a BOP record. Further, he
asserts that the Magistrate Judge erred in finding that the BOP did not admit to
awarding the contract, and states that it is a disputed fact as to whether the inmate
telephone contract is a BOP record which prevents summary judgment. I reject
Plaintiff’s arguments and overrule the objections. There is no evidence that the contract
is a BOP document because, as explained in the Recommendation, the statement
about this came from the GSA, not the BOP. (Recommendation at 23.) Moreover,
whether or not the BOP awarded the contract at issue is not material to the FOIA claim.
Instead, the issue is whether the BOP conducted a reasonable search.
Magistrate Judge Boland found that the search was reasonable based on the evidence
presented, and Plaintiff has not shown to the contrary.
-6-

Finally, Claim Four alleges that certain exemptions to the Privacy Act are
unconstitutionally vague. This relates to Plaintiff’s request pursuant to 5 U.S.C.
§ 552a(d)(2) that the United States Marshal Service [“USMS”] and the Federal Bureau
of Investigation [“FBI”] correct or remove information in their records regarding Plaintiff’s
alleged threat to a federal judge. The USMS and FBI responded to Plaintiff’s request by
stating that, pursuant to 5 U.S.C. § 552a(j)(2), its records regarding the alleged threat
are exempt from section 552a(d)(2). Magistrate Judge Boland found that Plaintiff failed
to set forth any competent evidence or argument to show that 5 U.S.C. § 552a(j)(2) is
void for vagueness as it “sets forth specific criteria for an agency to exempt a system of
records” and does not ‘encourage arbitrary application’”. (Recommendation at 29.) He
also found that Plaintiff failed to set forth any competent evidence or argument to show
that U.S.C. § 552a(j)(2) is unconstitutional as applied to him. (Id. at 30.) While
Magistrate Judge Boland noted Plaintiff’s claim throughout his briefs that Defendants
“disseminated the false information” (id. at 30 n. 9), he found that Plaintiff did not
provide any evidence to support this claim. (Id.)
Plaintiff asserts that Magistrate Judge Boland committed error by not applying
the relevant case law, i.e., Doe P v. Goss, 2007 U.S. Dist. Lexis 2708 (D.D.C. 2007),
and not considering the evidence. He argues that the Goss case, where the agency
fabricated information and disseminated the knowingly false information without the
plaintiff’s consent, is identical in substance to this case. Plaintiff also contends that
Magistrate Judge Boland mistakenly construed this claim as only a challenge to the
amendment of records, when this claim relates to Defendants’ fabrication and
-7-

dissemination of knowingly false information. According to Plaintiff, Defendants claim
that their exemption from the Privacy Act authorizes the fabrication and dissemination of
false material, which Plaintiff asserts renders the exemption unconstitutional. Finally,
Plaintiff argues that the Magistrate Judge erred in finding that Defendants’ exemptions
provided sufficient guidelines. Defendants’ application of the exemption to fabricated
information shows, according to Plaintiff, that there are no guidelines or standards and
that Defendants’ application is in direct contradiction to the purpose of the Privacy Act.
I reject Plaintiff’s arguments. While Plaintiff asserts it is undisputed that
Defendants fabricated information, disseminated information knowing that it was false,
and did so without Plaintiff’s consent, Magistrate Judge Boland found that he failed to
support these assertions with evidence as required in order to survive summary
judgment, as he presented no evidence that the USMS or FBI knowingly disseminated
false information. (Recommendation at 30 n. 9.) Moreover, he noted that the claim
against the DOJ employees for disseminating false information was dismissed. (Id.)
The Goss case cited by Plaintiff is inapposite, as it involved a motion to dismiss that
requires the court to assume the truthfulness of the complaint’s allegations. Finally, I
reject Plaintiff’s argument that the Privacy Act exemption at issue did not provide
sufficient guidelines, as Magistrate Judge Boland’s analysis of the exemption found that
it sets forth three specific criteria for its application. (Recommendation at 28-29.)
Accordingly, I affirm Magistrate Judge Boland’s dismissal of Plaintiff’s claim that the
Privacy Act exemption at issue is void for vagueness or unconstitutional as applied to
him.
-8-

Based upon the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge of
September 24, 2013 (ECF No. 92) is AFFIRMED AND ADOPTED. In accordance
therewith, it is
ORDERED that Defendants’ Motion for Summary Judgment filed on August 14,
2013 (ECF No. 76) is GRANTED IN PART AND DENIED IN PART. It is GRANTED as
to Claims One and Four and as to the portion of Claim Three Regarding FOIA Request
Nos. 2010-04477 and 2010-11668. It is DENIED as to the portion of Claim Three
Regarding FOIA Request No. 2010–03653. It is
FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment filed on
August 16, 2013 (ECF No. 79) is DENIED.
Dated: January 29, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

-9-