Cuevas v. USA et al
Filing
198
OPINION AND ORDER Granting in Part and Denying in Part Motion for Summary Judgment. Defendants' Motion for Summary Judgment (# 175 ) is GRANTED IN PART, insofar as judgment shall enter (at the conclusion of this case) in favor of Defendants Ro binson, Hewitt, Berg, Lee, Wadas, Marshall, Manness, and McAvoy on all claims, and DENIED IN PART, insofar as Mr. Cuevas has adequately demonstrated triable claims under the 8th Amendment and the Federal Tort claims Act sounding in intentional inflic tion of emotional distress against Defendants Manes, Rodriguez, Munoz, Gomez, Humphries, Lozano, Perkins, and Peters. The Court GRANTS the various Motions to Restrict Access (# 177 , 181 , 192 ), and the provisional restrictions placed on the af fected filings shall remain in place. Because this matter is proceeding to trial, the Court finds merit in Mr. Cuevas Motion for Appointment of Counsel (# 178 ) and the Court GRANTS that motion. The Clerk of the Court shall attempt to locate counsel who will represent Mr. Cuevas at trial on a pro bono basis. Mr. Cuevas Motion for a Stay of Decision (# 189 ) on the summary judgment motion is DENIED AS MOOT, as is Mr. Cuevas Motion for Leave to File A Surreply (# 192 , 193 ), as the Court see s nothing in the tendered surreply that would affect the reasoning herein. The parties shall begin preparation of a proposed Pretrial Order in conformance with Docket # 73, and shall contact chambers to schedule a Pretrial Conference. By Chief Judge Marcia S. Krieger on 3/19/2018. (agarc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-cv-00299-MSK-KMT
SYLVESTER CUEVAS,
Plaintiff,
v.
UNITED STATES OF AMERICA;
J. RODRIGUEZ, C/O (ADX);
MUNOZ, C/O (ADX);
LOZANO, C/O (ADX);
HEWITT, Case Manager (ADX);
MARSHALL, C/O (ADX);
PERKINS, C/O (ADX);
GOMEZ, C/O (ADX);
MCAVOY, C/O (ADX);
LEE, C/O (ADX);
MANES, C/O (ADX);
MANNESS, C/O (ADX);
WADAS, C/O (ADX);
HUMPHRIES, C/O (ADX);
ROBINSON, C/O (ADX);
BERG, C/O (ADX); and
PETERS, C/O (ADX);
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION
FOR SUMMARY JUDGMENT
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to all Defendants’1 Motion for
Summary Judgment (# 175), Mr. Cuevas’ response (# 182, 183), and the Defendants’ reply (#
1
Defendant Lee is not listed as being one of the movants in the introductory paragraph of
the Defendants’ motion. Docket # 33 appears to indicate that Defendant Lee was never served
with process in this case, and nothing indicates that Mr. Cuevas has sought to cure that defect.
1
187). There are an array of additional collateral motions that relate to the summary judgment
motion: the parties various Motions to Restrict Access (# 177, 181, 192) to various filings; Mr.
Cuevas’ Motion for Appointment of Counsel (# 178); Mr. Cuevas’ Motion for a Stay of Decision
(# 189) on the Defendants’ motion, and the Defendants’ response (# 194); and Mr. Ceuvas’
Motion for Leave to File a Surreply (# 191, 193), and the Defendants’ response (# 195). The
Court addresses those collateral motions at the conclusion of this Order.
FACTS
The Court summarizes preliminary facts here and elaborates as appropriate in its analysis.
Mr. Cuevas is an inmate in the custody of the Federal Bureau of Prisons (“BOP”). During the
pertinent times herein, Mr. Cuevas was housed at the BOP’s Administrative Maximum (“ADX”)
facility in Florence, Colorado. He alleges that, at various times, each of the individual
Defendants – ADX corrections officers – informed Mr. Cuevas’ fellow inmates of certain
sensitive information2 about Mr. Cuevas or his crimes, with the intention that those inmates
would thereafter attempt to retaliate violently against Mr. Cuevas because of the information
they had learned.
The Court orders Mr. Cuevas to show cause, within 14 days of the date of this Order, why the
claims against Defendant Lee should not be dismissed pursuant to Fed. R. Civ. P. 4(m).
2
As it did in its prior substantive ruling, the Court remains purposefully vague in
describing the nature of the information about Mr. Cuevas that is at issue here. See Docket #134
at n. 1. It is sufficient to describe the information in question as “sensitive information,” without
needing to disclose its particular nature. Doing so allows the maximum amount of public access
to this Order and other filings in this case without further disseminating the particular
information at issue. Where the Court cites to precedent relevant to this case, it does so because
of the analysis used in those cases, not necessarily because the type of information disclosed in
those cases is factually similar to the sensitive information in this case.
2
Based on these allegations, Mr. Cuevas commenced the instant action pro se.3 At this
point, Mr. Cuevas asserts the following claims: (i) a claim against each individual Defendant
under Bivens, asserting that the Defendant violated his rights under the 8th Amendment to the
U.S. Constitution’s guarantee against Cruel and Unusual Punishment; and (ii) claims against the
United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., sounding
in assault, negligence, and intentional infliction of emotional distress.
The Defendants now move (# 175) for summary judgment on the claims against them,
arguing that: (i) no private right of action exists under Bivens for “failure to protect” claims of
this type in the wake of Ziglar v. Abbasi, 137 S.Ct. 1483 (2017); (ii) to the extent such a right
exists, the Defendants are entitled to qualified immunity because that right is not clearly
established; (iii) Mr. Cuevas has not come forward with evidence that each Defendant personally
participated in the constitutional violation; (iv) Mr. Cuevas has not shown that the actions he
alleges constitute an 8th Amendment violation; (v) as to Defendant Robinson, Mr. Cuevas’ claim
is untimely; (vi) any claims by Mr. Cuevas arising after August 2014 are not exhausted; (vii) Mr.
Cuevas’ FTCA claims are not properly exhausted; and (viii) Mr. Cuevas lacks sufficient
evidence to prove each of his tort claims.
ANALYSIS
A. Standard of review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
3
Mindful of Mr. Cuevas’ pro se status, the Court construes his pleadings liberally. Haines
v. Kerner, 404 U.S. 519, 520-21 (1972).
3
what facts are material and what issues must be determined. It also specifies the elements that
must be proved for a given claim or defense, sets the standard of proof and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is Agenuine@ and summary judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter
for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment
motion, a court views all evidence in the light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material
fact, no trial is required. The court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
4
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B. 8th Amendment claim
The basic contours of Mr. Cuveas’ 8th Amendment claim are well-settled. The Supreme
Court has long recognized that a prison official’s deliberate indifference to a substantial risk of
inmate-on-inmate violence violates the 8th Amendment. Farmer v. Brennan, 511 U.S. 825, 828
(1994). Gratuitously allowing the beating of one prisoner by another serves no legitimate
penological objective. Typically, to establish an 8th Amendment claim of this type, the inmate
must show that he faced an objectively substantial risk of serious harm and that the defendant
had a subjective knowledge of that risk by nevertheless recklessly disregarded it. Id. at 834.
The 10th Circuit has specifically recognized that, where a corrections officer labels an inmate as a
“snitch,” communicates that label to other inmates, and does so “aware of the obvious danger
associated with a reputation as a snitch,” an 8th Amendment violation is clearly established.
Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001).
The Defendants attack Mr. Cuevas’ 8th Amendment claim from a variety of angles, each
of which the Court discusses in turn.
1. Availability of Bivens remedy
Since Bivens v. Six Unknown Federal Narcotics Agents, 304 U.S. 388 (1971), courts have
recognized the existence of a judicially-created remedy by which persons deprived of
constitutional rights by the actions of federal agents may sue those agents for money damages.
The Supreme Court has expressly recognized Bivens claims in three specific contexts: (i)
violations of the 4th Amendment’s protections against unreasonable searches and seizures; (ii)
gender discrimination in public employment in violation of the 5th Amendment’s Due Process
5
clause; and (iii) violation of the 8th Amendment arising from a prison official’s deliberate
indifference to an inmate’s medical needs. See generally Ziglar, 137 S.Ct. at 1854 (citing cases).
Lower courts, however, extended Bivens to a much broader range of constitutional deprivations.
Over time, the Supreme Court has signaled a retreat from the notion of a broadlyavailable Bivens remedy, instead suggesting that the decision as to whether or not a damages
remedy against federal officials should lie in a given context is one to be made by Congress, not
the courts. Thus, in Ziglar, the Supreme Court formally announced that, hereafter, the Bivens
remedy would be “disfavored” and would now only be recognized in limited new contexts.
Ziglar sets forth a complex analysis that the Court must apply in deciding whether to
recognize a Bivens claim in a context beyond the three already approved by the Supreme Court.
First, the Court must consider whether the case arises in a “new context,” by considering whether
the case is “different in a meaningful way from previous Bivens cases decided by [the Supreme]
Court.” 137 S.Ct. at 1859. Numerous criteria might distinguish an existing case from past cases,
such as the rank of the officials involved, the generality or specificity of the official action, the
extent of judicial guidance on the issue confronted by the officer, and so on. If the case is indeed
a “new context,” the Court turns to the question of whether there are any “special factors
counselling hesitation [in the creation of new remedies] in the absence of affirmative action by
Congress.” The Supreme Court declined to specifically itemize these special factors, but has
indicated that they generally bear on the question of “whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the costs and benefits of allowing an
action to proceed.” Among the factors that the Court considered in Ziglar were: (i) whether the
claim is brought against the official for his or her own acts, or for others; (ii) whether the claims
“call into question the formulation and implementation of a general policy” of the official’s
6
agency; (iii) whether the litigation process would touch upon or implicate the discussion and
deliberations that led to the policy in question; (iv) whether the action challenges “standard”
agency operations or major elements of a broader government response to an unusual situation;
(v) whether separation-of-powers concerns are present; (vi) whether injunctive relief would be a
sufficient remedy in the absence of money damages; and (vii) whether Congress has created an
“alternative existing process for protecting” the injured party’s interests, among others.
The Court need not belabor the Zigler analysis here. Given Zigler’s nuanced
distinguishing of Carlson v. Green, 446 U.S. 14 (1980) (recognizing a Bivens claim under the 8th
Amendment for a state prison’s deliberate indifference to an inmate’s medical need), from
Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (refusing to recognize a Bivens
claim under the 8th Amendment for a private prison’s deliberate indifference to an inmate’s
medical need), this Court is confident that the instant case – in which the 8th Amendment is
invoked in a non-medical scenario – would also be considered a “new context” from that of
Carlson. The Court therefore turns to the question of whether there are any “special factors
counseling hesitation” in recognizing a Bivens remedy here. Although this Court is cognizant of
Zigler’s reluctance to approve Bivens claims in new contexts, the Court finds no factors here that
would caution against adopting a Bivens remedy in this particular situation. Here, Mr. Cuevas
brings claims against the particular individual officers who intentionally disclosed the sensitive
information about him to his fellow inmates; this is not a situation in which the Defendants are
named in a vicarious or representative or policymaking capacity. The Court does not understand
the Defendants to be arguing that they believed that disclosing the sensitive information about
Mr. Cuevas to other inmates was furthering some specific policy of the BOP that called for doing
so. The challenged actions are ordinary incidences of day-to-day prison operations, for which
7
there is law clearly establishing that the practice is unconstitutional, such that there is no risk that
this litigation will tread on complex matters of BOP policymaking. It does not appear that
anything other than money damages will remedy Mr. Cuevas’ situation: although he states an
intention to seek unspecified injunctive relief in addition to money damages, it is difficult to
conceive of how injunctive relief of any kind could be effective in this situation. A directive to
the Defendants to “stop disclosing the sensitive information!” cannot suffice to undo the
dissemination of the sensitive information that has already occurred or the damage to Mr.
Cuevas’ name and reputation that have resulted. In Zigler’s parlance, this, like Bivens itself, is a
case of “damages or nothing.” 137 S.Ct. at 1862.
That leaves only the question of whether Mr. Cuevas has a Congressionally-created
alternative remedy for vindicating his claims. The Defendants suggest two such remedies: resort
to the BOP’s internal Administrative Remedy program and a suit for injunctive relief.4 For
reasons set forth above, the Court rejects the latter out-of-hand: injunctive relief is simply
inadequate to un-ring this particular bell. As to the Administrative Remedy program, the
Defendants have not pointed to the particular provision of that program they contend would offer
relief to Mr. Cuevas; indeed, they have not cited to the Administrative Remedy program’s terms
at all in this portion of their argument. 28 C.F.R. § 542.10 et seq. It is by no means clear that
Mr. Cuevas could recover money damages under the Administrative Remedy program. Even if
he could, it appears that the BOP has already decided not to grant him such relief, as Mr. Cuevas
exhausted that program, without success, before commencing this suit.
Accordingly, this Court sees no reason why a Bivens remedy should not be available to
an individual like Mr. Cuevas, who sues individual officers for violating his 8th Amendment
4
The Defendants have not argued that the FTCA provides an alternative remedy, and thus,
the Court does not consider that question.
8
results by purposefully disclosing sensitive information about him to other inmates so as to
induce them towards violence against Mr. Cuevas. Such a claim is so clearly-established and
directed at the individual actions of rank-and-file prison officials that there is no reason to defer
to Congress’ decisionmaking (and the concomitant inertia) in order to decide whether a damages
remedy should lie. Even in the post-Zigler world, this case presents an appropriate one for
recognition of Bivens-type liability.
2. Qualified immunity
The Defendants have raised the defense of qualified immunity. When that defense is
raised, the burden shifts to Mr. Cuevas to establish two prongs: (i) that he has adequately
asserted a violation of a constitutional right, and (ii) the contours of that right were “clearly
established” by existing Supreme Court or 10th Circuit precedent (or the weight of authority from
other circuits) at the time of the events herein. T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir.
2017).
The Court turns to the first prong: the sufficiency of the claim asserted by Mr. Cuevas.
The Defendants argue, at some length, that they did not disclose any sensitive information about
Mr. Cuevas, or perform any of the other acts he accuses them of doing. In support of these
denials, they rely entirely on their own affidavits. But, as noted above, on summary judgment,
the Court is required to resolve all disputed facts in the light most favorable to Mr. Cuevas, and
affidavits from the Defendants contradicting evidence tendered by Mr. Cuevas simply present
issues of fact that require trial. Mr. Cuevas has tendered his own declaration, as well as
declarations from several inmates, that attest to the following acts (among others):
• Per the declaration of inmate Dawane Arthr Mallett, Defendants Manes, Rodriguez,
Munoz, Gomez, and Humphries each personally gave him the sensitive information about Mr.
Cuevas.
9
• Per the declaration of inmate Q. Ili-yaan El-Haakeem Farrakhan-Mohammed,
Defendant Lozano “asked why I talk with [Mr. Cuevas]” and proceeded to disclose the sensitive
information to him. Mr. Farrakhan-Mohammed also alleges that Defendant Rodriguez disclosed
similar information to him about Mr. Cuevas.
• Per the declaration of inmate Jerry Lee Bustos, Mr. Lozano disclosed the sensitive
information about Mr. Cuevas to him.
• Mr. Cuevas provided his own declaration5 in support of his summary judgment
response. Docket # 182 at 96-106. This declaration is slightly more difficult to parse, as it is not
always clear when Mr. Cuevas is attesting to matters within the scope of his personal knowledge
– that is, relating actions by the Defendants that he personally witnessed – and when he is
relating events that other inmates reported witnessing. The latter evidence would be hearsay,
that is, a statement (“Inmate X told me that Defendant Y told him this sensitive information
about Mr. Cuevas”) made by a witness (Inmate X), outside of court, and offered by Mr. Cuevas
to prove the truth of the matter asserted (that Defendant Y did indeed make such a statement). A
party may not rely on hearsay evidence to overcome a motion for summary judgment. See
Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016). Nevertheless, the allegations of Mr.
Cuevas’ declaration assist the Court in determining the particular actions Mr. Cuevas attributes
to the Defendants not addressed by the other inmates’ declarations set forth above.
As to Defendant Robinson, Mr. Cuevas relates a single instance in 2012, in which Mr.
Robinson “logged on to the computer to access [Mr. Cuevas’] file,” and later “made statements
to the other officers present.” (Emphasis added.) Mr. Cuevas is careful to explain that “the fact
that Robinson read the information in the computer and made the statement[s] does not violate
plaintiff’s rights; rather, what he did after that did.” It is not clear what other acts Mr. Cuevas
accuses Mr. Robinson of taking.
Mr. Cuevas relates an instance in May 2013 in which Defendants Wadas, Marshall, and
Lee told the sensitive information to other inmates. Mr. Cuevas learned about this event from
unnamed inmates in August 2014. Because this statement is hearsay, the Court disregards it.
Mr. Cuevas cites an instance in which Defendant Berg purposefully gave Mr. Cuevas’
mail to another inmate. Mr. Cuevas and Mr. Berg then had a “verbal altercation” about it. Mr.
Cuevas does not allege that the mail itself disclosed the sensitive information or that Mr. Berg
took any other actions to disclose the sensitive information to other inmates.
Mr. Cuevas alleges that Defendant Peters “was working with Defendant Rodriguez
when” Defendant Rodriguez was actively disclosing the sensitive information to other inmates,
and that Defendant Peters “did not stop Defendant Rodriguez from committing” those acts. The
Court thus understands Mr. Cuevas’ claim against Defendant Peters to be that Defendant Peters
was aware of Defendant Rodriguez committing an unconstitutional act and that Defendant Peters
condoned or acquiesced in that act by failing to stop it. It is not entirely clear whether Mr.
5
Mr. Cuevas’ brief also makes certain assertions of fact that are not found within his
declaration. The Court addresses those additional allegations in the notes herein.
10
Cuevas had personal knowledge of these events or whether he is repeating information he
learned from others. The Court will infer that Mr. Cuevas witnessed these events firsthand: he
describes them occurring in D-Unit at a time when Mr. Cuevas was housed in that same unit.
Similarly, Mr. Cuevas asserts that Mr. Manes was disclosing sensitive information about
him to other inmates and that Defendant Perkins was present, yet “turned a blind eye to Manes’
misconduct.” The Court understands these events to have occurred during a time when Mr.
Cuevas was having “several verbal altercations” with Mr. Manes, such that Mr. Cuevas is
relating these events from his personal knowledge. (Mr. Cuevas also states that “inmates advised
me that Perkins was making the same disclosures,” but the Court disregards the statements of
these unnamed inmates as hearsay.)
Finally, Mr. Cuevas states that Defendant Hewitt accessed Mr. Cuevas’ files and
disclosed the information in question to other unnamed Defendants. Mr. Cuevas also alleges that
Mr. Hewitt “disclosed the information to an inmate who then advised me of the same.” Mr.
Cuevas is clear that Mr. Hewitt never made reference to the sensitive information in Mr. Cuevas’
presence, indicating that Mr. Cuevas lacks firsthand knowledge of Mr. Hewitt’s statements to the
inmate.
Taking this evidence in the light most favorable to Mr. Cuevas, the Court determines as
follows. As to Mr. Manes, Rodriguez, Munoz, Gomez, Humphries, and Lozano, there is
competent evidence that these Defendants specifically disclosed the sensitive information about
Mr. Cuevas to other inmates. There is also evidence in the record to suggest that these
Defendants did so with the specific subjective intention that the inmates receiving that
information would thereafter inflict violence upon Mr. Cuevas. For example, Mr. Mallett’s
affidavit states that the Defendants he identified acted “in order to instigate inmates including
myself to cause Inmate Cuevas serious harm.” Accordingly, the Court finds that Mr. Cuevas has
come forward with sufficient evidence to state an 8th Amendment claim against Defendants
Manes, Rodriguez, Munoz, Gomez, Humphries, and Lozano.
As to Mr. Peters and Mr. Perkins, Mr. Cuevas has not come forward with competent
evidence that these Defendants disclosed any sensitive information about Mr. Cuevas to other
inmates, but he does allege that they were present when other Defendants did so and that Mr.
Peters and Mr. Perkins did nothing to stop it. Courts recognize that officials “have an affirmative
11
duty to intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Weigel v. Broad, 544 F.3d 1143, 1153 n. 4 (10th Cir.
2008). If an official is present when a constitutional violation is occurring, knows or has reason
to know that the violation is occurring, and has a realistic opportunity to intervene to prevent the
harm from occurring, he or she is obligated to do so. Id. Drawing all reasonable inferences in
favor of Mr. Cuevas, the Court will assume that Mr. Peters and Mr. Perkins had the ability to
stop their co-workers from further disseminating the information about Mr. Cuevas to additional
inmates, but that they failed to do so. This is sufficient to state a claim against Mr. Peters and
Mr. Perkins sounding in acquiescence to an 8th Amendment violation.
Mr. Cuevas accuses Mr. Robinson and Mr. Hewitt only of accessing BOP computer files
about him and conveying information – presumably, the sensitive information at issue here – to
other Defendants.6 Mr. Cuevas does not allege that Mr. Robinson or Mr. Hewitt specifically did
so with the intention or expectation that the other Defendants would disclose the information to
inmates in an attempt to harm Mr. Cuevas, and the Court will not assume a nefarious intent when
innocent motivations or carelessness are equally (if not more) plausible from the record. Thus,
the Court finds that Mr. Cuevas has not adequately alleged an 8th Amendment claim against Mr.
Robinson or Mr. Hewitt.
The remaining Defendants –Berg, Lee, Wadas, Marshall, Manness, and McAvoy – are
not the subjects of competent evidence demonstrating that they personally participated in any
6
In Mr. Cuevas’ brief, he makes generalized statements that he “disputes” Mr. Hewitt’s
denial of passing on the sensitive information to inmates, and points the Court to “plaintiff’s
verified complaint” as evidence. The Court notes that, in Mr. Cuevas’ deposition, he states that
although he “know[s Mr. Hewitt] told other inmates [the sensitive information],” but admits that
“I don’t have proof that he did it. . . My claim is that he did, but I don’t have proof of it.” The
Court finds these allegations insufficient to demonstrate a genuine dispute of fact as to Mr.
Hewitt’s involvement in disclosing the information to other inmates.
12
disclosure of sensitive information about Mr. Cuevas to other inmates.7 Thus, Mr. Cuevas has
not stated a claim against these Defendants.
Accordingly, the Court grants summary judgment to Defendants Robinson, Hewitt, Berg,
Lee, Wadas, Marshall, Manness, and McAvoy, and finds that Mr. Cuevas has adequately stated
an 8th Amendment claim against Defendants Manes, Rodriguez, Munoz, Gomez, Humphries,
Lozano, Perkins, and Peters.
The Court then turns to the second prong of the qualified immunity analysis, examining
whether the constitutional deprivation claimed by Mr. Ceuvas was “clearly established.” As
noted above, the “clearly established” analysis examines whether there was existed precedent, at
the time of the challenged events, that recognized a constitutional violation in similar
circumstances. Courts are required to conduct the “clearly established” analysis at a “high degree
of specificity,” rather than in generalities. District of Columbia v. Wesby, 138 S.Ct. 577, 590
(2018). However, the specificity requirement is not so exacting that “the very action in question
[must have] previously been held unlawful.” Ziglar, 137 S.Ct. at 1866.
In Benefield, the 10th Circuit cited prior precedent in which it “specifically held that
labeling an inmate a snitch . . . constitutes deliberate indifference to the safety of that inmate,”
7
Mr. Cuevas’ brief asserts only that unspecified portions of his verified complaint
establish that Mr. Marshall, Wadas, Robinson, and Berg informed inmates of the sensitive
information. A party opposing summary judgment may not rest on allegations in his pleadings,
but must come forward with specific evidence to support those contentions. BancOklahoma
Mortgage Group v. Capital Title Co., 194 F.3d 1089, 1097-98 (10th Cir. 1999).
Mr. Cuevas’ brief concedes that there may be some uncertainty as to whether the Mr.
McAvoy the Defendants identify “might not be the same McEvoy or McAvoy whom Plaintiff
has asserted the claims against.” In any event, even Mr. Cuevas’ brief makes no specific
allegations regarding the conduct of (any) Mr. McAvoy.
Mr. Cuevas’ brief makes a passing comment that Mr. Manness “did in fact fail to stop
other Defendants from committing the complained of acts when they did them in his presence,”
but does not provide any further details about the circumstances in which this occurred. The
Court therefore rejects this allegation as insufficiently conclusory and not based on Mr. Cuevas’
personal knowledge.
13
and further declared that “this issue was well-established” as of the defendants’ conduct in 1998.
241 F.3d at 1271; see also Brown v. Narvais, 265 Fed.Appx. 734, 736 (10th Cir. 2008). The
Defendants here do not dispute that Benefield establishes, as a general proposition, that officials
purposefully disclosing sensitive information about an inmate to other inmates constitutes a
clearly-established violation of the 8th Amendment. However, they argue that Benefield is not
applicable in this context, because of the peculiar security configurations that exist at ADX.
Greatly summarized, their argument is that because inmates at ADX never have physical contact
with fellow inmates, the risk of inmate-on-inmate violence contemplated by Benefield is not
present at ADX. The Defendants argue that, in the absence of precedent extending Benefield to
the ADX context, the 8th Amendment violation alleged by Mr. Cuevas here is not “clearly
established” by the factually-distinguishable holding in Benefield.
The Court has previously rejected this argument in its prior ruling, and does so again for
several reasons. First, there is a genuine dispute of fact as to whether the circumstances at ADX
are as secure as the Defendants assert. Although the Defendants contend that there is no way in
which a fellow inmate could physically attack Mr. Cuevas, several items of evidence in the
record suggest that Mr. Cuevas’ physical safety is not so assured. In his declaration, Mr. Mallett
recites an offer made to him by Defendant Rodriguez, who suggested that ADX staff “would
leave the recreation cage door open so I could get out of my cage when they were escorting
Cuevas to or from rec and kill him. They said that they would not intervene.” Thus, even if
ADX’s procedures were flawlessly designed to protect Mr. Cuevas from contact with other
inmates, there is evidence that the Defendants themselves could and would engage in conduct
that would purposefully undermine those designs and place Mr. Cuevas at risk of harm. There is
also indirect evidence that suggests that, ADX’s security procedures notwithstanding, special
14
efforts are made by ADX staff to segregate certain inmates from one another. As the
Defendants’ brief recites, “an inmate with a documented separation from another inmate will not
be placed on the same range of a housing unit and, if space permits, the separated inmates will
not be assigned to the same housing unit.” Were ADX as secure as the Defendants represent, and
the inmates so assuredly untouchable by their peers, there would be little reason to bother
separating troublesome pairs or groups – certainly, no harm could come of housing them
together.
Moreover, there is ample evidence that, despite ADX’s security protocols, there are
opportunities for inmates to assault one another during routine operations. The Defendants
themselves cite to a statement from an inmate that “It’s normal practice for inmates to spit [at]
and throw feces on [ ] the inmates they want moved from the range.” It is undisputed that a
fellow inmate threw snowballs and spit at Mr. Cuevas during a recreation session,8 and although
the Defendants insist that fencing between the recreation pens prevented anything from hitting
Mr. Cuevas during that incident, the Defendants admit that Mr. Cuevas was sent to Health
Services for an assessment following the incident, demonstrating staff’s concerns that Mr.
Cuevas’ could have been injured by that assault. Mr. Cuevas’ own filings assert that, on one
occasion, an inmate “was stabbed through the recreational cage by another inmate,” and that
“inmates [have] assaulted others with blow darts-type weapons laced with feces.” Thus, even
when ADX security is functioning properly, there remains the risk that inmates targeted for
8
The Defendants point out that, by Mr. Cuevas’ own admission, this incident was not
related to the sensitive information that was disclosed about him, but rather, a conflict about
whether Mr. Cuevas would participate in passing along communications between inmates within
his housing unit. The Court considers this incident only to demonstrate that inmates can assault
each other during recreation periods, regardless of the reasons that trigger the assault.
15
retaliation, like Mr. Cuevas, may be subjected to physical and projectile assaults from fellow
inmates.
Finally, even assuming that security at ADX is so impregnable that Mr. Cuevas was
completely free from harm while he was housed there, the record reflects that ADX is not a
permanent destination for most prisoners. Indeed, during the lifespan of this litigation, Mr.
Cuevas was transferred from ADX to a less-restrictive BOP facility in Atlanta. Other prisoners
who were once housed at ADX, including, ostensibly, prisoners who learned of the sensitive
information about Mr. Cuevas from the Defendants, have also been transferred out of ADX,
allowing the sensitive information about Mr. Cuevas to travel to other facilities as well. Mr.
Cuevas states that, since arriving in Atlanta, he has been confronted by fellow inmates who are
aware of his status because of the disclosures the Defendants made during his time at ADX, and
that he is now at risk of assault there as well.9 Thus, the mere fact that ADX is a more secure
facility than most (or indeed, all) other prisons does not suggest that, there, inmates can be
induced to retaliate against one another without any adverse consequences whatsoever. As such,
there is no basis to conclude that the rule clearly established in Benefield applies with any less
force to ADX. Accordingly, the Court finds that Benefield clearly establishes the existence of
the constitutional violation in this context as well, and the remaining Defendants’ qualified
immunity argument is without merit.
3. Exhaustion
Finally, the Defendants suggest that, to the extent Mr. Cuevas relies upon events
occurring after August 2014, his 8th Amendment claims are unexhausted. Failure to exhaust is
9
Mr. Cuevas also alleges that at least one fellow inmate at ADX intimated that retaliation
against Mr. Cuevas could take the form of harming Mr. Cuevas’ family outside of prison. This,
too, is a potential consequence of the Defendants’ actions that all of ADX’s security measures
cannot ameliorate.
16
an affirmative defense on which the Defendants bear the burden of proof. Tuckel v. Grover, 660
F.3d 1249, 1254 (10th Cir. 2011). The Defendants have come forward with evidence that Mr.
Cuevas did not file any relevant administrative grievances after August 2014, but, notably, they
have not identified what particular claims or assertions by Mr. Cuevas arose after August 2014.
The Court finds that such an argument fails to discharge the Defendants’ obligations under Fed.
R. Civ. P. 56(c). The rule requires a party asserting that there is no genuine dispute as to a
particular fact to cite to the particular facts in the record that demonstrate the absence of such
dispute. Here, the Defendants have had the opportunity to depose Mr. Cuevas and otherwise
discover the particular events that underlie his claims and to ascertain (specifically or generally)
the dates on which those events occurred. Because the Defendants have not come forward with
evidence establishing that those dates occurred after August 2014, the Court finds that the
Defendants have not shown that they are entitled to summary judgment on their affirmative
defense of failure to exhaust as to any of Mr. Cuevas’ claims.
C. FTCA claims
Finally, the United States, as the sole Defendant on Mr. Cuevas’ FTCA claims, moves for
summary judgment on each of those claims for the reasons set forth below.
1. Failure to exhaust
The United States contends that Mr. Cuevas failed to adequately exhaust his FTCA
claims by timely presenting them pursuant to 28 U.S.C. § 2675(a). That statute provides that no
FTCA claim may be brought “unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally denied by the agency in
writing.” (If no denial is issued within six months of the claim being filed, the statute presumes
the claim to have been denied.) The failure to present the claim as required constitutes a
17
jurisdictional defect that cannot be waived or cured by conduct during the litigation. Gabriel v.
U.S., 683 Fed.Appx. 671, 672 (10th Cir. 2017).
The United States contends that Mr. Cuevas did not make any tort claim on the BOP
relating to the FTCA claims in this case. It notes that it maintains a computerized recordkeeping
system to log tort claims presented to the agency and states that a search of that system reveals
no claim presented by Mr. Cuevas. In response, Mr. Cuevas tenders: (i) an SF-95 (the form used
for making FTCA presentments), dated July 1, 2015, addressed to the BOP’s Washington, D.C.
office; (ii) a July 27, 2015 message by Mr. Cuevas to a Mr. Wyche (an ADX counselor),
requesting that Mr. Wyche verify that Mr. Cuevas tendered a document to Mr. Wyche for
mailing to the “F.B.O.P./Tort Claims Dept.” in Washington, D.C., and initials that would appear
to be Mr. Wyche’s verifying Mr. Cuevas’ request on July 29, 2015; and (iii) a certified mail
receipt for a document sent from Denver, Colorado on July 30, 2015 and received in
Washington, D.C. on August 3, 2015. Although the United States alleges that Mr. Cuevas’
presentment should have been sent to a BOP office in Kansas, Mr. Cuevas states (and the United
States’ evidence effectively confirms) that he has sent FTCA presentments to the BOP office in
Washington, D.C. in the past and that the BOP accepted those presentments.
Under these circumstances, the Court finds that there is a genuine dispute of fact as to
whether Mr. Cuevas adequately presented his FTCA claims to the BOP, such that an evidentiary
hearing on that question is warranted. The Court will conduct that hearing at or about the time of
trial of the remaining claims in this matter. Accordingly, the Court denies the United States’
motion for summary judgment on this ground.
2. Sufficiency of the assault claim
18
The FTCA constitute a limited waiver of the United States’ sovereign immunity in
certain circumstances. Although that waiver expressly does not extend to claims for assault, the
U.S. has waived its sovereign immunity for claims arising from assaults allegedly committed by
“law enforcement officers.” 28 U.S.C. § 2680(h). The Court understands the United States here
to concede that the individual Defendants are “law enforcement officers” for purposes of this
provision, and thus, the Court finds that the U.S. has waived its sovereign immunity for purposes
of this claim. See generally Millbrook v. U.S., 569 U.S. 50 (2013) (approving FTCA assault
claim against BOP officials)
Claims under the FTCA follow the tort law of the state where the events occurred. 28
U.S.C. § 1346(b)(1); Abreu v. U.S., 468 F.3d 20, 23 (1st Cir. 2006). The elements of the tort of
assault in Colorado are: (i) that the defendant intended to make physical contact with the
defendant or place the defendant in apprehension of immediate physical contact, (ii) the plaintiff
was placed in such apprehension, and (iii) the contact was offensive. O’Hayre v. Board of
Education, 109 F.Supp.2d 1284, 1296 (D.Colo. 2000). Here, there is no evidence cited by Mr.
Cuevas that suggests that the Defendants ever physically threatened him directly – that is, that
the Defendants themselves threatened to attack Mr. Cuevas. Rather, all evidence demonstrates
that the Defendants spread the sensitive information in order to induce Mr. Cuevas’ fellow
inmates to attack him at an indeterminate point in the future. Because the anticipated physical
contact with Mr. Cuevas that was being induced by the Defendants’ action were to happen in the
indeterminate future, Mr. Cuevas has failed to adequately allege facts showing that such contact
was expected to occur “immedate[ly]” upon the Defendants’ actions of disclosing the sensitive
information. As explained in the Restatement (Second) of Torts, § 29, comment b, “[t]he
apprehension created must be one of imminent contact, as distinguished from any contact in the
19
future.” Because Mr. Cuevas has not come forward with facts showing that the Defendants were
attempting to induce other inmates to attack Mr. Cuevas immediately upon hearing the sensistive
information, the United States is entitled to summary judgment on Mr. Cuevas’ FTCA assault
claim.
3. Sufficiency of the negligence claim
To establish a tort claim for negligence under Colorado law, Mr. Cuevas must adduce
facts showing: (i) the existence of a duty owed by the Defendants to Mr. Cuevas, (ii) the
Defendants’ breach of that duty, (iii) a causal connection between that breach and injuries
suffered by Mr. Cuevas, and (iv) resultant damages. Hyler v. Geo-Seis Helicopters, Inc., 269
F.3d 1190, 1192 (10th Cir. 2001).
The Defendants argue that, under Colorado law, “simple negligence cannot provide the
basis for the recovery of damages for mental or emotional suffering, unless such negligence has
resulted either in physical injury or in the creation of a reasonable risk of bodily harm.” Citing
Williams v. Cont’l Airlines, Inc., 943 P.2d 10, 16 (Colo. App. 1996). The Defendants go on to
argue that because Mr. Cuevas was never actually harmed physically by a fellow inmate, he
cannot show that he faced a “risk of bodily harm.” Colorado law requires that a plaintiff
asserting negligence have suffered from physical harm: “negligence is not actionable in Colorado
unless it results in physical damage to persons or property”; fear of possible future injuries from
a latently-dangerous condition do not suffice. Adams-Arapahoe School Dist. v. GAF Corp., 959
F.2d 866, 871 (10th Cir. 1992) (emphasis in original). Mr. Cuevas’ argument in response does
not allege that he suffered any actual physical injury as a result of the Defendants’ conduct, and
reaffirms that “it is the fear of the reasonable risk of bodily harm plaintiff experiences because of
Defendants’ unlawful actions that establishes a clear negligence.” (Emphasis in original).
20
Because Colorado does not recognize the tort of negligence in the absence of an actual physical
injury to the plaintiff, the Defendants are entitled to summary judgment on Mr. Cuevas’ FTCA
negligence claim.
4. Intentional infliction of emotional distress claim
The United States proffers two arguments with regard to Mr. Cuevas’ FTCA claim
premised on intentional infliction of emotional distress. The first – that Mr. Cuevas’ has not
identified conduct that is sufficiently outrageous – the Court rejects out of hand. As Benefield
makes clear, the conduct Defendants are alleged to engaged is undoubtedly outrageous and
intolerable.
The United States also argues that, pursuant to the Prisoner Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(e), Mr. Cuevas is prevented from bringing a claim “for mental or
emotional injury suffered while in custody without a prior showing of physical injury.” The
Court need not address the question at this time. The PLRA’s “physical injury” requirement is,
fundamentally, a restriction on an inmate’s ability to recover compensatory damages; the
absence of a physical injury does not prevent suit for, for example, nominal damages.
McDaniels v. McKinna, 96 Fed.Appx. 575, 581 (10th Cir. 2004). This Court sees no reason why,
assuming Mr. Cuevas can otherwise establish the elements of intentional infliction of emotional
distress, he could not recover at least nominal damages from the United States. Accordingly, the
application of the PLRA does not result in the entry of summary judgment for the United States
on Mr. Cuevas’ FTCA claim for intentional infliction of emotional distress, and the Court will
take up the appropriate measure of damages on that claim at trial during the Charging
Conference.
21
CONCLUSION
For the foregoing reasons, the Defendants’ Motion for Summary Judgment (# 175) is
GRANTED IN PART, insofar as judgment shall enter (at the conclusion of this case) in favor
of Defendants Robinson, Hewitt, Berg, Lee, Wadas, Marshall, Manness, and McAvoy on all
claims, and DENIED IN PART, insofar as Mr. Cuevas has adequately demonstrated triable
claims under the 8th Amendment and the Federal Tort Claims Act sounding in intentional
infliction of emotional distress against Defendants Manes, Rodriguez, Munoz, Gomez,
Humphries, Lozano, Perkins, and Peters.
The Court GRANTS the various Motions to Restrict Access (# 177, 181, 192), and the
provisional restrictions placed on the affected filings shall remain in place. Because this matter
is proceeding to trial, the Court finds merit in Mr. Cuevas’ Motion for Appointment of Counsel
(# 178) and the Court GRANTS that motion. The Clerk of the Court shall attempt to locate
counsel who will represent Mr. Cuevas at trial on a pro bono basis (although Mr. Cuevas remains
responsible for all aspects of this case unless and until such counsel enters an appearance). Mr.
Cuevas’ Motion for a Stay of Decision (# 189) on the summary judgment motion is DENIED
AS MOOT, as is Mr. Cuevas’ Motion for Leave to File A Surreply (# 192, 193), as the Court
sees nothing in the tendered surreply that would affect the reasoning herein.
22
The parties shall begin preparation of a proposed Pretrial Order in conformance with
Docket # 73, and shall contact chambers to schedule a Pretrial Conference.
Dated this 19th day of March, 2018.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
23
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