Custard v. Allred et al
RECOMMENDATION AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTIONS FOR MISCELLANEOUS RELIEF. The Court RECOMMENDS that Defendant's Motion to Dismiss 74 be granted. Court enters order denying 92 Motion for He aring/Conference; denying 119 Motion to Correct, and granting 117 Motion to Correct, to the extent Plaintiff seeks to submit "Exhibit 10" to supplement his Response to Defendant's Motion to Dismiss and correct Docket No. 112 to read "Rescission of Court Order", by Magistrate Judge Craig B. Shaffer on 01/26/15. (Attachments: # 1 Unpublished case law)(nmarb, )
United States Court of Appeals, Tenth Circuit.
James BURTON-BEY, Plaintiff-Appellant,
UNITED STATES of America; W. Scott, Warden, USP Leavenworth; T. Hostmeyer,
Correctional Officer, USP Leavenworth, Defendants-Appellees.
Nov. 12, 1996.
Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
ORDER AND JUDGMENT FN*
FN* This order and judgment is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and conditions of
10th Cir. R. 36.3.
*1 After examining the briefs and appellate record, this panel has determined unanimously that
oral argument would not materially assist the determination of this appeal. See Fed. R.App. P.
34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered submitted without oral argument.
Plaintiff James Burton-Bey appeals the district court's order granting summary judgment in favor
of defendants on his Bivens and Federal Tort Claims Act (FTCA) claims. We affirm.
While in custody at the U.S. Penitentiary in Terre Haute, Indiana, Burton purchased a dark blue
Dallas Cowboys cap through approved prison channels. Subsequent to this purchase, the Bureau
of Prisons had adopted a regulation prohibiting the issuance or sale of dark blue or black clothing
items to prisoners. Burton was transferred to the U.S. Penitentiary in Leavenworth, Kansas, and
prison officials there confiscated the cap after inventorying his personal property. After an
aborted administrative remedial action, plaintiff filed an administrative claim for damages under
the FTCA, 29 U.S.C. § 2675(a), which was denied. He then initiated this action, alleging his cap
had been confiscated in violation of his Fifth Amendment procedural due process rights, and
seeking damages under the FTCA.
We review the grant of summary judgment de novo, applying the same legal standard used by
the district court pursuant to Fed.R.Civ.P. 56(c). Summary judgment should be granted where,
taking the facts in the light most favorable to the non-moving party, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Wolf v. Prudential
Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995).
I. Bivens claim.
Plaintiff claims defendants deprived him of property without due process of law, in violation of
the Fifth Amendment. His claim is based on the assumption that a procedural due process claim
can form the basis of a Bivens action. This assumption is open to question. In Bivens v. Six
Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), the Supreme
Court held a violation of the Fourth Amendment “by a federal agent acting under color of his
authority gives rise to a cause of action for damages consequent upon his unconstitutional
conduct.” Plaintiff had no reasonable expectation of privacy giving rise to a Fourth Amendment
claim. See Hudson v. Palmer, 468 U.S. 517, 522-29 (1984).
The Supreme Court has extended Bivens to actions for violations of the equal protection
component of the Fifth Amendment Due Process Clause. Davis v. Passman, 442 U.S. 228
(1979). However, not all due process violations provide a basis for a Bivens action. See
Schweiken v. Chilicky, 487 U.S. 412, 429 (1988). Whether a Bivens action exists for a given
constitutional violation must be decided on a case-by-case basis. See Beattie v. Boeing Co., 43
F.3d 559, 564 (10th Cir.1994). However, we need not reach the issue of whether Bivens should
be extended to plaintiff's procedural due process claim because we conclude plaintiff suffered no
violation of his rights under the Fifth Amendment Due Process Clause for which he could
recover if such an action were recognized.
*2 Neither a claim that defendants acted negligently nor a claim that defendants acted
intentionally and without authority can provide plaintiff with an actionable Bivens claim. If
defendants failed to issue the cap to plaintiff as a result of their negligence, there would be no
unconstitutional deprivation of property. See Daniel v. Williams, 474 U.S. 327 (1986)
(negligence of federal agent resulting in property loss not constitutional deprivation). Plaintiff
also claims defendants acted beyond their authority in intentionally retaining his cap.
Unauthorized intentional deprivation of property does not constitute a violation of the Due
Process Clause if a meaningful post-deprivation remedy for the loss is available. See Hudson,
468 U.S. at 533; Rodriguez-Mora v. Baker, 792 F.2d 1524, 1527 (11th Cir.1986). If defendants
were acting without authorization, as plaintiff claims, the FTCA would provide a postdeprivation remedy, permitting an action for conversion under Kansas law, the adequacy of
which plaintiff does not contest.
Finally, if defendants were acting pursuant to governing regulations, as the district court found,
the availability of post-deprivation remedies would be immaterial. See Logan v. Zimmerman
Brush Co., 455 U.S. 422, 435-36 (1982) (post-deprivation remedies inadequate where
deprivation of property caused by conduct pursuant to established procedure). However, in such
a case, defendants' actions “would be within the outer perimeter of [their] duties and would not
have violated any clearly established constitutional right and therefore [they] would be immune
from suit.” Rodriguez-Mora, 792 F.2d at 1527.
Whether defendants acted negligently, intentionally and without authority, or pursuant to
governing regulations, plaintiff could make no claim for a violation of his due process rights.
Defendants were entitled to summary judgment on plaintiff's Bivens claim.
II. Federal Tort Claims Act claim.
Kansas law recognizes an action in conversion for “an unauthorized assumption and exercise of
the right of ownership over goods or personal chattels belonging to another, to the alteration of
their condition or the exclusion of the owner's rights.” Watkins v. Layton, 324 P.2d 130
(Kan.1958). The FTCA permits the United States to be held liable for certain tort claims “in the
same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C.
§ 2674. Conversion claims are permitted under the FTCA. See 28 U.S.C. § 2680(h).
Defendants' refusal to issue plaintiff's cap after inventorying his personal property and
confiscation of the cap were not unauthorized. Bureau of Prisons regulation P.S. 5580.03
provides: “Inmates shall not be issued or permitted to purchase any clothing items which are
dark blue or black.” 5580.03(5)(b). “Contraband includes material prohibited ... by regulation.”
5580.03(6)(a). “Staff shall seize any item in the institution which has been identified as
contraband.” 5580.03(7)(a). The regulation also provides for circumstances in which a
transferred inmate cannot retain personal property: “Personal property permitted in the sending
institution, but not in the receiving institution, shall either be retained at the sending institution or
be mailed to a destination of the inmate's choice.” 5580.03(9)(c). Plaintiff was offered the option
of sending the cap to an address of his choice. Defendants were entitled to summary judgment on
plaintiff's FTCA claim.
*3 Plaintiff's request to proceed in forma pauperis on appeal is DENIED and this appeal is
DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The mandate shall issue
Burton-Bey v. U.S.
100 F.3d 967 (Table), 1996 WL 654457 (C.A.10 (Kan.))
United States District Court,
Kevin Raynell Williams, Plaintiff,
Captain Klien, Individually and in his official capacity as captain, C.O. J. Sander, Individually
and in his official capacity as correctional officer, C.O. Dockins, Individually and in his official
capacity as correctional officer, C.O. Royal, Individually and in his official capacity as
correctional officer, C.O. Price, Individually and in his official capacity as correctional officer,
and C.O. Koch, Individually and in his official capacity as correctional officer, Defendants.
Civil Action No. 12–cv–01580–REB–BNB
February 24, 2014
Background: Federal inmate brought Bivens action against various prison officials, alleging due
process violation and First Amendment retaliation, as related to his complaints about sleep
deprivation and penalties that followed his complaints. Defendants moved to dismiss.
Holdings: The District Court, Blackburn, J., adopting one report and recommendation of Boyd
N. Boland, United States Magistrate Judge, 2013 WL 7628827, and adopting in part and
rejecting in part another report and recommendation of same magistrate, 2013 WL 7661569, held
(1) dismissal for failure to prosecute was warranted on claims against correctional officer;
(2) inmate's Bivens claim against prison official, alleging First Amendment retaliation and
seeking damages, was barred;
(3) inmate stated Bivens claim against prison official, alleging First Amendment retaliation and
seeking declaratory and injunctive relief; and
(4) prison official was not entitled to qualified immunity on inmate's First Amendment retaliation
claim seeking declaratory and injunctive relief.
Motion granted in part and denied in part.
*1172 Kevin Raynell Williams, Florence, CO, pro se.
Mark S. Pestal, U.S. Attorney's Office, Denver, CO, for Defendants.
ORDER CONCERNING RECOMMENDATION OF UNITED STATES MAGISTRATE
Blackburn, United States District Judge
**1 This matter is before me on the following: (1) the Recommendation of United *1173 States
Magistrate Judge [# 39] FN1 filed April 25, 2013; (2) the Defendants' Motion To Dismiss [# 42]
filed May 10, 2013; and (3) the Recommendation of United States Magistrate Judge [# 46] filed
November 7, 2013. No objections were filed concerning the first recommendation [# 39]. Both
the plaintiff and one defendant, Captain Klien, filed objections [# 54 & # 56] to the second
recommendation [# 46]. I approve and adopt the first recommendation [# 39]. I approve and
adopt the second recommendation [# 46] in part and respectfully reject it in part.
FN1. “[# 39]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court's case management and electronic case filing system (CM/ECF). I use
this convention throughout this order.
I. STANDARD OF REVIEW
 Because no objections were filed concerning the first recommendation [# 39], I review that
recommendation only for plain error. See Morales–Fernandez v. Immigration & Naturalization
Service, 418 F.3d 1116, 1122 (10th Cir.2005).FN2 Finding no error, much less plain error, in the
magistrate judge's recommended disposition, I approve and adopt the first recommendation.
FN2. This standard pertains even though plaintiff is proceeding pro se in this matter. Morales–
Fernandez, 418 F.3d at 1122.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the second
recommendation [# 46] to which any party objects. I have considered carefully the
recommendation, the objections, and the applicable case law.
 The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings more
liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
The plaintiff, Kevin Williams, is an inmate at the Federal Correctional Institution in Florence,
Colorado. In his complaint, Mr. Williams alleges that from March 2011 to March 2012, and
possibly at other times, he was awakened each night while he was sleeping. As the guards were
conducting count, they would beat on his cell door. Mr. Williams contends these actions were
taken to deprive him of adequate sleep.
Mr. Williams filed grievances concerning this conduct. On May 16, 2011, the defendant, Captain
Klien, met with the plaintiff. Allegedly, Captain Klien used “racial epithets and ... a tone of voice
that was threatening and intimidating.”
Recommendation [# 46], p. 5. According to Mr. Williams, Captain Klien threatened that he
would take Mr. William's job if Mr. Williams did not stop filing grievances. Captain Klien asked
Mr. Williams how many grievances he had filed “and said I bet your kind can't even count that
high.” Id. According to Mr. Williams, Captain Klien placed Mr. Williams in the extremely
restricted Special Housing Unit (SHU) to keep him from filing grievances. Id., p. 12. While Mr.
Williams was in the SHU, Captain Klien allegedly tolerated and encouraged efforts undertaken
by guards under Captain Klien's supervision to deprive Mr. Williams of sleep. Amended Prisoner
Complaint [# 21], p. 12. FN3
FN3. As detailed in the second recommendation [# 46], Mr. Williams alleges in his amended
complaint several other claims against other defendants.
*1174 III. ANALYSIS
**2  In the first recommendation [# 39], the magistrate judge recommends that the complaint
be dismissed as to defendant, C.O. Royal, based on Mr. William's failure to prosecute those
claims. After noting that the defendant named as C.O. Royal had not been served with a
summons and complaint, the magistrate judge ordered Mr. Williams to show cause why the
complaint should not be dismissed as to C.O. Royal based on the plaintiff's failure to prosecute.
The plaintiff did not respond. Under Fed. R. Civ. P. 41 and D.C. COLO. LCivR 41.1, dismissal
for failure to prosecute is proper in these circumstances. Thus, I approve and adopt the first
recommendation [# 39].
In the second recommendation [# 46], The magistrate judge recommends that the motion to
dismiss be denied as to the due process and retaliation claims asserted against Captain Klien. As
to all other claims and defendants, the magistrate judge recommends that the motion to dismiss
be granted. In his objection [# 54], Mr. Williams contends the claims against defendants other
than Captain Klien should not be dismissed. After careful consideration of the relevant record, I
overrule the objections and approve and adopt the recommendation concerning the claims
against defendants other than Captain Klien.
Addressing the claims against Captain Klien, the magistrate judge concludes that the allegations
of Mr. Williams are sufficient to allege a retaliation claim against Captain Klien, based on the
right of Mr. Williams to be free from retaliation for filing grievances, an exercise of First
Amendment rights by Mr. Williams. The magistrate judge notes also that Captain Klien does not
move to dismiss the due process claim asserted against him.
In his objection [# 56], Captain Klien contends that Mr. Williams may not assert a claim for
damages based on an alleged violation of the First Amendment under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). In addition, Captain Klien argues that the allegations of Mr. Williams do not state a
claim for First Amendment retaliation and that, in any case, Captain Klien is entitled to qualified
immunity on this claim.
A. First Amendment Bivens Claim for Damages
 Captain Klien is correct when he contends that Mr. Williams may not assert a Bivens claim
for damages based on an alleged violation of the First Amendment. The Supreme Court of the
United States has not recognized a Bivens claim for damages based on an alleged violation of the
First Amendment. Indeed, the Supreme Court has refused explicitly to acknowledge that federal
prisoners may bring a claim for monetary damages based on an alleged First Amendment
violation. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (noting that the Court has “declined to extend Bivens to a claim sounding in the First
Amendment”); Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (in
addressing a First Amendment retaliation claim by a federal employee against a supervisor, the
Court refused to recognize a right to seek damages for a First Amendment violation under
Bivens, noting availability of alternative remedies). Conceivably, the Court has not recognized
such claims in the context of claims by prison inmates because prisoners may pursue claims for
injunctive relief based on an alleged violation of the First Amendment. See Corr. Services Corp.
v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (federal inmate who may
not assert *1175 Bivens claim for damages against private prison contractor may bring suit in
federal court for injunctive relief and file grievances using Bureau of Prisons administrative
remedy program); Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389
(2007) (in claim of alleged government harassment and intimidation of landowner aimed at
extracting easement from landowner, the existence of adequate, alternative bases for pursuing a
particular claim amount “to convincing reason for the Judicial Branch to refrain from providing
new and freestanding remedy in damages”).
**3 On the other hand, the United States Court of Appeals for the Tenth Circuit has recognized
the viability of a First Amendment retaliation claim by a prison inmate. Williams v. Meese, 926
F.2d 994, 998 (10th Cir.1991) (federal prisoner alleging job transfer in retaliation for filing
grievances states a claim) ( citing Frazier v. Dubois, 922 F.2d 560, 561–62 (10th Cir.1990)
(prison officials do not have discretion to punish federal prisoner for exercising First
Amendment rights by transferring prisoner to different institution). However, these cases do not
address directly the question of whether such a claim may be brought as a Bivens claim for
Based on the foregoing authority, I respectfully reject the recommendation of the magistrate
judge to the extent the magistrate judge recommends that the motion to dismiss be denied as to
the Bivens claim for damages based on the First Amendment retaliation claim asserted by Mr.
Williams. Rather, I conclude that the motion to dismiss must be granted as to any claim for
damages included in the First Amendment claim of Mr. Williams.
B. Failure To State A Claim
 The fact that Mr. Williams may not assert a Bivens claim for damages based on a violation of
the First Amendment does not preclude him from seeking declaratory and injunctive relief. See
Corr. Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)
(federal inmate who may not assert Bivens claim for damages against private prison contractor
may bring suit in federal court for injunctive relief and file grievances using Bureau of Prisons
administrative remedy program); Simmat v. U.S. Bureau of Prisons 413 F.3d 1225, 1231–1233
(10th Cir.2005) (federal courts have jurisdiction to issue injunctions to protect rights safeguarded
by the Constitution). Captain Klien does not argue otherwise. However, Captain Klien does
argue that the allegations in the complaint are not sufficient to state a viable First Amendment
retaliation claim. I disagree.
Mr. Williams alleges that Captain Klien expressed his disdain for Mr. Williams and his
grievances and then arranged for continued adverse actions to be taken against Mr. Williams.
These allegations are sufficient to allege (1) that the plaintiff sought to exercise his First
Amendment rights by filing a grievance; (2) that the defendant was aware of the plaintiff's
attempt to file grievances; (3) that as a result of that awareness, the defendant took action to
impose an adverse consequence on the plaintiff; and (4) that the consequence would chill a
person of ordinary firmness from engaging in the constitutionally protected activity. These
allegations are sufficient to state a retaliation claim. See Leverington v. City of Colorado
Springs, 643 F.3d 719, 729 (10th Cir.2011); Rocha v. Zavaras, 443 Fed.Appx. 316, 318 (10th
Cir.2011). To the extent Mr. Williams asserts a First Amendment retaliation claim, I overrule the
objections of Captain Klein and approve and adopt the recommendation of the magistrate judge.
*1176 C. Qualified Immunity
  Finally, Captain Klien argues he is entitled to qualified immunity concerning the First
Amendment claim of Mr. Williams. Under the doctrine of qualified immunity, government
officials performing discretionary functions are shielded from liability for civil damages if their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would know. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982). However, qualified immunity is not a shield against a claim for injunctive
relief. See, e.g., Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir.2001). The remaining First
Amendment claim of Mr. Williams is a claim for injunctive relief. Thus, there is no viable claim
of qualified immunity.
IV. CONCLUSION & ORDERS
**4 Based on the authority cited above, I conclude that the plaintiff may not assert a First
Amendment claim for damages under Bivens. Thus, I respectfully reject that portion of the
recommendation [# 46] of the magistrate judge in which the magistrate judge recommends that
the motion to dismiss be denied as to this claim. Instead, I grant the motion to dismiss to the
extent the plaintiff asserts against Captain Klien a First Amendment claim for damages under
Bivens. Otherwise, I approve and adopt the recommendation of the magistrate judge.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [# 39] filed April 25, 2013, is
APPROVED and ADOPTED as an order of this court;
2. That under Fed. R. Civ. P. 41 and D.C.COLO.LCivR 41.1, all claims against defendant, C.O.
Royal, are DISMISSED; that C.O. Royal is DROPPED as a defendant; and that the case caption
is AMENDED accordingly;
3. That the Recommendation of United States Magistrate Judge [# 46] filed November 7, 2013,
respectfully is REJECTED to the extent the magistrate judge recommends that the Defendants'
Motion To Dismiss [# 42] filed May 10, 2013, be denied as to the First Amendment claim for
damages under Bivens.
4. That the objections [# 56] of defendant, Captain Klien, are SUSTAINED to the extent Captain
Klein objects to the recommendation that the motion to dismiss be denied as to the First
Amendment claim for damages under Bivens;
5. That otherwise, the Recommendation of United States Magistrate Judge [# 46] filed
November 7, 2013, is APPROVED and ADOPTED as an order of this court;
6. That otherwise, the objections [# 56] of defendant, Captain Klien, are OVERRULED;
7. That the objections [# 54] of the plaintiff are OVERRULED;
8. That the Defendants' Motion To Dismiss [# 42] filed May 10, 2013, is DENIED as to the due
process claim against Captain Klien and the First Amendment retaliation claim in which Mr.
Williams seeks injunctive relief;
9. That otherwise, the Defendants' Motion To Dismiss [# 42] filed May 10, 2013, is GRANTED
as to all other claims and defendants, including the First Amendment claim for damages under
10. That the defendants named as C.O. J. Sander, C.O. Dockins, C.O. Price, and C.O. Koch are
DROPPED as a defendants,*1177 and the case caption is AMENDED accordingly.
Williams v. Klien
20 F.Supp.3d 1171, 2014 WL 716982 (D.Colo.)
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