Hall v. Shumard et al
ORDER adopting 53 Report and Recommendations; granting in part and denying in part 41 Motion to Dismiss; adopting 97 Report and Recommendations; granting in part and denying in part 60 Motion to Dismiss for Failure to State a Claim; by Judge R. Brooke Jackson on 2/21/17. (jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 15-cv-01949-RBJ-MJW
SHUMARD, Lt., FNU, in his individual capacity,
MONAREZ, Lt., FNU, in his individual capacity,
BUTZ, C.O., FNU, in his individual capacity,
CATES, C.O., FNU, in his individual capacity,
JOHN OLIVER, Warden, in his individual and official capacity,
D. RHODES, in his individual and official capacity, and
FEDERAL BUREAU OF PRISONS, in its official capacity,
This matter is before the Court on defendants Lieutenant Shumard, Lieutenant Monarez,
Correctional Officer Butz, and Correctional Officer Cates’ motion to dismiss [ECF No. 41];
defendants Warden Oliver, Special Investigative Agent Rhodes, and the Federal Bureau of
Prisons’ (BOP) motion to dismiss [ECF No. 60]; and the respective recommendations of
Magistrate Judge Michael J. Watanabe [ECF Nos. 53, 97]. Judge Watanabe recommends that
this Court grant in part and deny in part defendants Shumard, Monarez, Butz, and Cates’ motion,
ECF No. 53 at 6, and grant defendants Oliver, Rhodes, and the BOP’s motion, ECF No. 97 at 9.
His recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.
R. Civ. P. 72(b).
A detailed summary of the procedural and factual background of this case was provided
in Judge Watanabe’s reports. In brief, plaintiff Carl Hall alleges that he was physically and
sexually assaulted by defendants Shumard, Monarez, Butz, and Cates on August 28, 2014. ECF
No. 40 ¶¶ 28–55. He views this alleged attack as retaliation for repeatedly filing grievances with
the prison about staff mistreatment of him. Id. ¶¶ 29–40. He also asserts that defendants Oliver,
Rhodes, and the BOP failed to investigate the alleged assault and failed to protect him afterward
by not placing him in protective custody, and instead transferring him to the United States
Penitentiary Administrative Maximum Facility (ADX) without regard for the effects of that
facility’s extreme solitary confinement on his mental health. ECF No. 40, Ex. 1 ¶¶ 87–90, 101–
Mr. Hall’s Second Amended Complaint raises four causes of action based on these
events. Specifically, he claims to have suffered violations of his Eight Amendment rights due to
(1) defendants Shumard, Monarez, Butz, and Cates’ use of excessive force against him, (2)
defendants Oliver and Rhodes’ failure to protect him from abuse, and (3) the BOP’s failure to
provide him with adequate mental health treatment. ECF No. 40 ¶¶ 27–77; ECF No. 40, Ex. 1 ¶¶
78–114. He also claims retaliation by defendants Shumard, Monarez, Butz, Cates, Oliver, and
Rhodes for filing grievances with the prison, which violates his First Amendment rights. ECF
No. 40 ¶ 29. These constitutional claims are brought against the federal officer defendants under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
against the BOP under 28 U.S.C. § 1331.
Defendants have moved to dismiss these claims. ECF Nos. 41, 60. Judge Watanabe
recommended that this Court grant defendants’ motions insofar as Mr. Hall seeks damages based
on First Amendment retaliation; grant the motions with respect to defendants Oliver, Rhodes,
and the BOP; and deny the motions with respect to the remaining claims against defendants
Shumard, Monarez, Butz, and Cates. ECF No. 53 at 6; ECF No. 97 at 10. Mr. Hall has objected
to several portions of these recommendations, first pro se, ECF No. 76, and later through
counsel, ECF No. 113.
STANDARD OF REVIEW
A. Magistrate Judge Recommendation.
When a magistrate judge makes a recommendation on a dispositive motion, the district
court “must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is sufficiently specific if it
“focus[es] the district court’s attention on the factual and legal issues that are truly in dispute.”
United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). In the absence of timely
and specific objection, “the district court may review a magistrate’s report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
B. Rule 12(b)(6).
To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While the Court must accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual
allegations such that the right to relief is raised above the speculative level, he has met the
threshold pleading standard. See Twombly, 550 U.S. at 556. “The court’s function on a Rule
12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to
assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).
C. Pro Se Party.
When a case involves a pro se party, the court will “review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v.
U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, it is not “the proper function of
the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff’s pleadings “does not
relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim
could be based.” Id. Pro se parties must “follow the same rules of procedure that govern other
litigants.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
Mr. Hall objects to Judge Watanabe’s recommendation that defendants’ motions be
granted on several grounds.
First, Mr. Hall argues that his First Amendment retaliation claim should not be dismissed
because he can present evidence to support it. ECF No. 76 at 1, 3. Mr. Hall’s pro se
submissions are very well written, but this argument misses the mark. To overcome a motion to
dismiss, Mr. Hall must show that the facts alleged, if accepted as true, state a plausible legal
claim to relief. At this stage it does not matter whether Mr. Hall possesses enough evidence to
prove his First Amendment retaliation claim at trial. Instead, the relevant question is whether
Mr. Hall’s asserting a Bivens cause of action for First Amendment retaliation states a claim upon
which relief can be granted. It does not. As Judge Watanabe explained, and Mr. Hall’s attorney
later conceded, courts have explicitly refused to recognize a Bivens claim for damages based on
an alleged violation of the First Amendment. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009); Bush v. Lucas, 462 U.S. 367, 390 (1983); Williams v. Klien, 20 F. Supp. 3d 1171, 1174
(D. Colo. 2014); see also ECF No. 113 at 3 n.5 (“Counsel for Plaintiff concurs that courts have
not recognized Bivens remedies for First Amendment violations.”). Mr. Hall does not argue that
the Court should break with precedent and recognize such a Bivens action here. Therefore, this
objection cannot stand.
Second, Mr. Hall contends that his First Amendment retaliation claim is better
understood as a viable Fifth Amendment due process claim. ECF No. 113 at 2, 5. 1 He points
out that the alleged attack came as retaliation for his attempts to use the legal process, not just for
regular speech. Id. at 2 n.3. However, it is the “First Amendment [which] prohibits a prison
official from retaliating against a prisoner for filing a lawsuit” or otherwise using the legal
system. Fogle v. Gonzales, 570 F. App’x 795, 797 (10th Cir. 2014) (unpublished). Indeed, the
First Amendment, not the Fifth, guarantees “the right of the people . . . to petition the
government for a redress of grievances.” U.S. Const. amend. I.
This and all subsequent objections are raised through counsel.
Moreover, Mr. Hall has not pled facts to state a claim for a due process violation. “A
person alleging that he has been deprived of his right to procedural due process must prove two
elements: that he possessed a constitutionally protected liberty or property interest such that the
due process protections were applicable, and that he was not afforded an appropriate level of
process.” Zwygart v. Bd. of Cnty. Comm’rs, 483 F.3d 1086, 1093 (10th Cir. 2007) (internal
quotation marks and citations omitted). As to Mr. Hall’s administrative grievances, “federal
regulations providing for an administrative remedy procedure do not in and of themselves create
a liberty interest in access to that procedure.” Rauh v. Ward, 112 F. App’x 692, 694 (10th Cir.
2004) (unpublished) (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). And even
assuming that Mr. Hall has a liberty interest in using the legal system to lodge these complaints
against prison officials, he does not allege that he has been deprived of this interest without due
process of law. Instead, this very case demonstrates that Mr. Hall has been afforded access to the
legal system. Thus, Mr. Hall’s purported Fifth Amendment claim lacks merit.
Next, Mr. Hall objects that the BOP’s holding Mr. Hall in near-total isolation violates not
only his Eighth Amendment rights, but also his First Amendment right to speak to and associate
with others. ECF No. 113 at 2, 5. This is a creative legal theory, but “theories raised for the first
time in objections to the magistrate judge’s report are deemed waived.” United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). Mr. Hall’s Second Amended Complaint makes
no mention of his speech and association rights, and he cites no cases for the notion that these
rights could overcome keeping a prisoner in solitary confinement, so this objection is waived.
Mr. Hall also argues against dismissing his claim that the BOP itself violated his Eight
Amendment rights by transferring him to ADX despite his mental health issues. He styles this
claim as one of “deliberate indifference to serious medical needs.” ECF No. 40, Ex. 1, at *5
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). But the “deliberate indifference” standard
“mandate[s] inquiry into a prison official’s state of mind.” Wilson v. Seiter, 501 U.S. 294, 299
(1991). As Judge Watanabe explained, “An institution cannot have the ‘culpable state of mind’
required for liability on this type of claim.” ECF No. 97 at 8.
Nevertheless, construing Mr. Hall’s Second Amended Complaint liberally, he has
adequately stated a claim against the BOP for injunctive relief from its alleged violation of his
Eighth Amendment rights. The Administrative Procedure Act (APA) allows federal courts to
review final agency actions to ensure that they are not “contrary to constitutional right” or
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A)–(B). Mr. Hall’s claims readily fit within the ambit of the APA. He alleges that the
BOP’s internal policy states that prisoners “currently diagnosed as suffering from serious
psychiatric illness should not be referred for placement at . . . ADX.” ECF No. 40, Ex. 1, ¶ 105.
This policy apparently reflects BOP’s awareness that such placement “may be . . .
counterproductive” for prisoners with mental illness. Id. ¶ 103. Mr. Hall also alleges that BOP
violated this internal policy in placing him at ADX after an ADX psychologist found that
placement there is likely to “exacerbate” his mental health condition. Id. ¶ 106–07. And as
Judge Watanabe discussed, Mr. Hall alleges that he described “his mental illness to Defendant
Oliver as a reason why he should not be transferred to ADX.” ECF No. 97 at 8. The BOP is
therefore mistaken in arguing that Mr. Hall “never identifies any individual BOP provider that
specifically knew about Plaintiff’s alleged conditions and deliberately chose to ignore them.”
ECF No. 60 at 13. These allegations state a plausible claim that the BOP has violated Mr. Hall’s
constitutional rights and acted arbitrarily, and Mr. Hall can be forgiven for not citing the APA by
name in his handwritten complaint.
Last, Mr. Hall argues that his Eighth Amendment failure-to-protect claim against Warden
Oliver should not be dismissed. ECF No. 113 at 4. In Mr. Hall’s view, Warden Oliver can be
held liable for violating his Eight Amendment rights because his administrative grievances were
addressed to the warden, providing constructive knowledge of the events that led to the alleged
assault. But this allegation is not enough to support Eighth Amendment liability. “[I]n order to
establish a cognizable Eighth Amendment claim for failure to protect, a plaintiff must show that
he is incarcerated under conditions posing a substantial risk of serious harm, the objective
component, and that the prison official was deliberately indifferent to his safety, the subjective
component.” Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). Deliberate
indifference requires actual knowledge of substantial risks to the prisoner, so “[n]either
negligence nor constructive notice satisfy” this standard. Robinson v. Carr, 99 F.3d 1150, at *4
(10th Cir. 1996) (unpublished) (citing Farmer v. Brennan, 511 U.S. 825, 840–42 (1994)). And
even if the warden had direct knowledge of Mr. Hall’s complaints, that fact alone would not
establish that he knew there was a substantial risk that prison officials might retaliate against Mr.
Hall for filing these grievances. Thus, Warden Oliver could not be held liable for violating Mr.
Hall’s Eighth Amendment rights even if, as Mr. Hall alleges, he approved Mr. Hall’s transfer to
For the reasons set forth above, the Court ADOPTS Magistrate Judge Watanabe’s first
recommendation [ECF No. 53] and ADOPTS IN PART his second recommendation [ECF No.
97]. Accordingly, defendants Shumard, Monarez, Butz, and Cates’ motion to dismiss [ECF No.
41] is GRANTED IN PART and DENIED IN PART. Defendants Oliver, Rhodes, and the
BOP’s motion to dismiss [ECF No. 60] is GRANTED IN PART and DENIED IN PART. With
no claims remaining against defendants Oliver or Rhodes, those defendants are hereby dismissed
from this action.
DATED this 21th day of February, 2017.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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