Watson v. Evans et al
Filing
54
MEMORANDUM AND ORDER granting 34 Motion to Dismiss for Lack of Jurisdiction or in the alternative Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 12/17/2014. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PIERRE WATSON,
Plaintiff,
vs.
Case No. 13-cv-3035-EFM
JOSH EVANS, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Pierre Watson proceeds pro se and in forma pauperis on an amended complaint
he filed while incarcerated in the United States Penitentiary in Leavenworth, Kansas. In his
amended complaint, Plaintiff seeks compensatory and punitive damages alleging violations of
his constitutional rights under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics.1
Three of the four named Defendants—USP Leavenworth Warden Lisa
Hollingsworth, Bureau of Prisons (“BOP”) Regional Counsel Richard Schott, and BOP Regional
Director Michael Nalley—have filed a Motion to Dismiss Plaintiff’s Complaint, Or in the
Alternative, for Summary Judgment (Doc. 34), which is presently before the Court. For the
following reasons, the Court grants Defendants’ motion.
1
403 U.S. 388 (1971).
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I.
Factual and Procedural Background2
Plaintiff Pierre Watson is a former federal inmate who was previously incarcerated at
USP Leavenworth. Plaintiff served a seventy month sentence for bank fraud, in violation of 18
U.S.C. §§ 1344 & 2, which was imposed by the U.S. District Court for the Eastern District of
Missouri. Plaintiff was first incarcerated with the BOP on September 30, 2009. He was
incarcerated at USP Leavenworth from June 8, 2011, through September 14, 2011.
On
December 27, 2013, he transferred to a halfway house, and was released from his federal
sentence on May 8, 2014, via good-conduct time.
Plaintiff asserts that on June 27, 2011, Senior Correctional Officer Defendant Evans
physically assaulted him causing severe face and head trauma. Plaintiff alleges that Defendant
Hollingsworth conspired with Defendant Schott and Defendant Nalley by failing to discipline
Defendant Evans for his actions against Plaintiff; by keeping Plaintiff in the Special Housing
Unit after the alleged assault; and by failing to answer grievances, letters, and correspondence
from other agencies. Plaintiff also asserts that Defendant Hollingsworth refused to answer
Plaintiff’s initial administrative remedy claim, covered up medical reports, attempted to discard
security cameras that contained footage of the alleged assault, and refused to answer grievances.
Plaintiff alleges he took the following actions in filing an administrative claim with the
BOP regarding the alleged assault and Defendants’ subsequent conduct: Plaintiff claims that on
June 29, 2011, he filed an informal resolution form at USP Leavenworth concerning medical
attention that went unanswered; Plaintiff claims that on July 16, 2011, he filed an institution-
2
Because Defendants filed an alternative motion for summary judgment, the Court has set forth the
uncontroverted facts, and they are related in the light most favorable to the non-moving party in accordance with
summary judgment procedures.
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level administrative remedy concerning being assaulted and not receiving adequate medical
attention; on August 3, 2011, Plaintiff allegedly filed an appeal to the Regional Director that was
unanswered; and on August 25, 2011, Plaintiff allegedly filed a Central Office appeal that was
unanswered.
The BOP has a four-part administrative remedy program designed to address a federal
inmate’s concerns regarding any aspect of his or her confinement. Since July 1990, the BOP has
maintained information regarding inmate administrative complaints filed under the BOP’s
Administrative Remedy Program in a national database called “SENTRY.” This database tracks
administrative grievances filed by prisoners and allows a search of claims and their subject
matters.
The administrative records in the SENTRY database are not purged and can be
searched as far back as inception of the system.
A review of Plaintiff’s administrative remedy data shows that Plaintiff filed twenty-seven
administrative remedy claims during his incarceration.
The data states that Plaintiff filed
Administrative Remedy No. 654097-R1 on August 29, 2011, to the North Central Region
concerning an “Assault by Staff.”3 This claim was rejected because (1) it was submitted to the
wrong level or office; (2) it should have been filed at the institution level before filing at the
region; and (3) Plaintiff did not attempt information resolution before submission of an
administrative remedy and/or Plaintiff did not provide necessary evidence of attempt at informal
resolution. Plaintiff also filed Administrative Remedy No. 654441-F1 on August 31, 2011, to
the institution. The claim was rejected because (1) Plaintiff did not submit his remedy through
his counselor or other authorized person; (2) Plaintiff did not submit a complete set (4
3
SENTRY Administrative Remedy Data, Doc. 35-2, p. 36.
-3-
carbonized copies) of the request or appeal form; (3) Plaintiff did not attempt information
resolution before submission of an administrative remedy and/or Plaintiff did not provide
necessary evidence of attempt at informal resolution; (4) Plaintiff may only submit one lettersized continuation page; and (5) Plaintiff’s request was untimely. The rejection also informed
Plaintiff that that the matter was referred to an appropriate department for review.
Plaintiff filed this lawsuit on February 28, 2013. He subsequently filed an amended
complaint on January 21, 2014, alleging violations of his Eighth Amendment rights and seeking
compensatory and punitive damages as authorized by Bivens. The Court issued summons for all
four Defendants. Although Defendants Schott and Nalley were properly served, the process
packets for Defendants Hollingworth and Evans were returned unexecuted.
Defendant
Hollingsworth, however, still sought and obtained authority for representation in this suit by the
Department of Justice.4 Defendants Hollingsworth, Schott, and Nalley then filed a Motion to
Dismiss Plaintiff’s Complaint Or in the Alternative for Summary Judgment (Doc. 35).
II.
Analysis
Plaintiff brings this action under Bivens alleging violations of his Eighth Amendment
rights. In Bivens, the Supreme Court recognized an implied private right of action for money
damages by victims seeking relief against federal agents who committed constitutional violations
in the performance of their official duties.5 A Bivens action is the federal counterpart to actions
4
Defendant Evans has not sought representation from the Department of Justice, and as of the date of this
Order, he still has not been served. Accordingly, Defendant Evans has not joined in Defendant Hollingsworth,
Schott, and Nalley’s Motion to Dismiss, Or in the Alternative, Motion for Summary Judgment.
5
403 U.S. at 396-97.
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brought against state officials under 42 U.S.C. § 1983.6 “A plaintiff asserting a claim under
Bivens must show the violation of a valid constitutional right by a person acting under color of
federal law.”7
Plaintiff asserts claims against Defendants Hollingsworth, Schott, and Nalley in both
their official and individual capacities. Defendants contend that Plaintiff’s claims against them
in their official capacity should be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject
matter jurisdiction.
Defendants also contend that Plaintiff’s claims against them in their
individual capacity should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim, or in the alternative, the Court should grant summary judgment in their favor. The Court
first will address Plaintiff’s claims against Defendants in their official capacity and then
Plaintiff’s claims against Defendants in their individual capacity.
A.
Official Capacity Claims
1. Rule 12(b)(1) Standard
Under Rule 12(b)(1), a court may dismiss a complaint based on lack of jurisdiction over
the subject matter of the complaint. Because federal courts are courts of limited jurisdiction,
they presume a lack of jurisdiction.8 Plaintiffs bear the burden of alleging sufficient facts to
overcome this presumption.9
6
Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006). Because a Bivens suit and a § 1983 suit are equivalent,
this Court cites to both Bivens and § 1983 cases as authority.
7
Deville v. Crowell, 2011 WL 4526772, at *4 (D. Kan. Sept. 28, 2011).
8
Marcus v. Kan. Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999).
9
Id.
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Rule 12(b)(1) motions generally take two forms.10 The first form is a facial attack on the
complaint’s allegations as to subject matter jurisdiction.11 In reviewing this form, a court must
accept the allegations in the complaint as true.12 The second form is a factual attack, which goes
beyond the allegations in the complaint, and challenges the facts upon which subject matter
jurisdiction depends.13
When reviewing a factual attack, a court may not presume the
truthfulness of the complaint’s factual allegations.14 A court has wide discretion to review
outside documents, such as affidavits.15
2. Lack of Subject Matter Jurisdiction
To the extent Plaintiff has asserted claims against Defendants in their official capacity,
these claims are construed as claims against the United States.16 Sovereign immunity shields the
federal government and its agencies from suit absent a waiver.17 “It is axiomatic that the United
States may not be sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.”18 A plaintiff has the burden to show that the federal government has waived
10
Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995).
11
Id. at 1002.
12
Id.
13
Id. at 1003.
14
Id.
15
Id.
16
See Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989) (“When an action is against named
individual defendants, but the acts complained of consist of actions taken by defendants in their official capacity as
agents of the United States, the action is in fact one against the United States.”)
17
Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999).
18
United States v. Mitchell, 463 U.S. 206, 212 (1983).
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sovereign immunity.19 Any waiver of governmental immunity must be narrowly construed in
favor of the government.20 It will not be implied.21
The United States has not waived its sovereign immunity for constitutional misconduct.22
Therefore, Bivens claims are not actionable against the United States, federal agencies, or public
officials acting in their official capacities.23 Accordingly, Plaintiff’s claims against Defendants
Hollingsworth, Schott, and Nalley in their official capacity are barred by sovereign immunity.
B.
Individual Capacity Claims
1. Rule 56 Standard
Both parties provide evidence outside the pleadings, and therefore, the Court construes
Defendants’ Motion to Dismiss under Rule 12(b)(6) as one for summary judgment under Rule
56. 24
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.25
A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the
19
See Normandy Apartments, Ltd. vs. U.S. Dep’t of Housing & Urban Dev., 554 F.3d 1290, 1295 (10th Cir.
20
See Lane v. Pena, 518 U.S. 187, 192 (1996).
21
Id.
2009).
22
See FDIC v. Meyers, 510 U.S. 471, 477-78 (1994) (holding actions for constitutional torts may not lie
against the United States).
23
Id.; see also Farmer v. Perrill, 275 F.3d 958, 963 (2001).
24
See Fed. R. Civ. P. 12(d) (stating that if “matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary judgment under Rule 56”); Wells v. Shalala, 228 F.3d
1137, 1140 n. 1 (10th Cir. 2000); see also Marquez v. Cable One, Inc., 463 F.3d 1118, 1121 (10th Cir. 2006)
(finding that the plaintiff had “explicit notice” where the motion’s title referenced summary judgment in the
alternative and the motion included materials outside the pleadings).
25
Fed. R. Civ. P. 56(c).
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proffered evidence permits a reasonable jury to decide the issue in either party’s favor.26 The
movant bears the initial burden of proof and must show the lack of evidence on an essential
element of the claim.27 If the movant carries this initial burden, the nonmovant that bears the
burden of persuasion at trial may not simply rest on its pleading but must instead “set forth
specific facts” that would be admissible in evidence in the event of trial from which a rational
trier of fact could find for the nonmovant.28 These facts must be clearly identified through
affidavits, deposition transcripts, or incorporated exhibits—conclusory allegations alone cannot
survive a motion for summary judgment.29
The Court views all evidence and reasonable
inferences in the light most favorable to the party opposing summary judgment.30
Plaintiff is proceeding pro se. The Court therefore reviews his pleadings, including those
related to Defendants’ motion, “liberally and holds them to a less stringent standard than those
drafted by attorneys.”31 The Court, however, cannot assume the role of advocate for the pro se
litigant.32 Likewise, Plaintiff’s pro se status does not relieve him from the obligation to comply
with procedural rules, including the Federal Rules of Civil Procedure.33
26
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
27
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)).
28
Id. (citing Fed. R. Civ. P. 56(e)).
29
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
30
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
31
Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (quotations omitted).
32
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[W]e do not believe it is the proper function of
the district court to assume the role of advocate for the pro se litigant.”).
33
Murray v. City of Tahlequah, Okla., 312 F.3d 1196, 1199 n.2 (10th Cir. 2002).
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2. Exhaustion of Administrative Remedies
Defendants first argue that the Court should grant summary judgment in their favor
because Plaintiff failed to exhaust his administrative remedies. The Prison Litigation Reform
Act of 1995 (“PLRA”) requires inmates to exhaust “such administrative remedies as are
available” before initiating suit over prison conditions.34 This exhaustion requirement applies to
Plaintiff’s claims brought under Bivens.35 When a prisoner fails to present claims through the
full administrative remedy process, such claims are subject to dismissal.36 In addition, “[f]ailure
to exhaust is an affirmative defense under the PLRA.”37 Accordingly, the burden of proof is on
Defendants.38
The administrative remedy process available to inmates in federal custody is the BOP’s
Administrative Remedy Program.39 Under this program, an inmate must first attempt informal
resolution of the inmate’s grievance.40 If unsuccessful, the inmate may then submit a complaint
to the Warden of the prison with a copy of the informal resolution attached.41 An inmate has
twenty days from the time of the incident to submit a complaint to the Warden.42 If the inmate
34
42 U.S.C. § 1997e(a).
35
See Porter v. Nussle, 534 U.S. 516, 525 (2002) (“[F]ederal prisoners suing under Bivens . . . , must first
exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting
a § 1983 suit.”)
36
See Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought into court.”).
37
Jones, 549 U.S. 199.
38
Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
39
See generally, 28 C.F.R. Part 542, Subpart B.
40
28 C.F.R. § 542.13
41
Id.
42
Id. § 542.14.
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is not satisfied with the Warden’s response to his complaint, he may appeal to the appropriate
Regional Director, and then finally to the Director, National Inmate Appeals, in the Office of the
General Counsel.43
Where an inmate reasonably believes a matter is sensitive and would
endanger his safety or well-being if its substance were widely known, the inmate may submit his
initial complaint directly to the Regional Manager instead of the Warden.44 The Regional
Manager may accept the request or may advise the prisoner to initiate the grievance procedure at
the local level.45
An inmate is required to comply with the BOP’s Administrative Remedy Program even if
the inmate is released during pendency of the litigation. The Tenth Circuit has held that the time
frame for determining whether a plaintiff is required to exhaust his administrative remedies
under the PLRA is whether the plaintiff was incarcerated at the time he filed suit.46 Here,
Plaintiff filed his original complaint on February 28, 2013. It is undisputed that Plaintiff was
incarcerated at the time he filed suit. Therefore, he was required to comply with the PLRA’s
exhaustion requirement.
Defendants assert that Plaintiff failed to exhaust administrative remedies on the claims he
asserts under Bivens, namely, his claims concerning the alleged assault in June 2011, the alleged
tampering of evidence, his improper placement in the Special Housing Unit, failure to respond to
grievances or correspondence from other agencies, and an overall conspiracy. Defendants have
attached two pages of entries from the SENTRY database showing Plaintiff’s administrative
43
Id. § 542.15(a).
44
Id. § 542.14(d).
45
Id.
46
Norton v. City of Martietta, 432 F.3d 1145, 1150 (10th Cir. 2005).
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remedy claims. Two of these entries—Remedy-ID Nos. 654097-R1 and 654441-F1—reference
“assault by staff” and “alleges assault by staff.”47 Plaintiff filed Remedy-ID No. 654097-R1 with
the North Central Region. It was rejected because (1) Plaintiff submitted it to the wrong office;
(2) Plaintiff should have filed the remedy at the institution level; and (3) Plaintiff did not attempt
informal resolution or provide necessary evidence of informal resolution.
Plaintiff then
submitted Remedy ID No. 654441-F1 to the institution. It was rejected because (1) Plaintiff did
not submit the remedy through his counsel or other authorized person; (2) Plaintiff did not
submit a complete set of the request appeal form; and Plaintiff did not attempt informal
resolution or provide necessary evidence of informal resolution; (3) Plaintiff may only submit
one letter-sized continuation page; and (4) Plaintiff’s request was untimely.
The Court finds the rejection of Plaintiff’s administrative claims to be hypertechnical and
not within the spirit of the PLRA. The BOP’s Administrative Remedy Program should be
enforced so that it addresses and resolves inmates’ disputes and grievances. Instead, the BOP
appears to be taking advantage of uncounseled and unrepresented inmates by rejecting their
administrative claims on trivial procedural matters. The evidence shows that Plaintiff filed his
first administrative claim with the Regional Office in accordance with the BOP’s exception that
allows inmates to file sensitive grievances at the regional level. When that was rejected, Plaintiff
filed a second administrative claim at the institution level that was once again rejected on minor
technicalities. Defendants’ reliance on minor technicalities is not enough to overcome Plaintiff’s
47
SENTRY Administrative Remedy Data, Doc. 35-2, p. 36.
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efforts to comply with BOP procedure and insufficient to show that Plaintiff did not comply with
the PLRA’s exhaustion requirement regarding his assault claim.48
In addition, the Court finds that Defendants did not meet their burden to show that
Plaintiff did not exhaust his administrative remedies with respect to his claims of evidence
destruction, improper placement in the Special Housing Unit, and conspiracy. With regard to
these claims, Defendants only refer the Court to the two page attachment from the SENTRY
database showing Plaintiff’s administrative claims. The Court, however, cannot discern from
this attachment that Plaintiff failed to exhaust his remedies with respect to these claims. The
attachment only contains general labels regarding the content of Plaintiff’s claims, and several
labels describing Plaintiff’s filings contain acronyms that hold no meaning for the Court. These
labels do not provide sufficient information for the Court to determine what administrative
claims Plaintiff actually filed. Furthermore, Plaintiff has submitted evidence showing that in
claim No. 654441-F1, he specifically brought up the issue that he was improperly placed in the
Special Housing Unit. Therefore, the Court finds that Defendants have not met their burden to
show that Plaintiff failed to exhaust his administrative remedies.
2.
Qualified Immunity
Defendants next assert that they are entitled to qualified immunity on Plaintiff’s claims.
Qualified immunity protects government officials performing discretionary functions from
48
Plaintiff’s second administrative claim—No. 654441-F—was rejected in part because it was untimely.
Unlike the other reasons listed in the BOP’s rejection notices, the Court finds that timeliness may be a valid basis for
finding that an inmate did not exhaust his administrative remedies. In this case, however, there is a question of fact
regarding whether Plaintiff’s administrative claim was timely filed. Defendants’ records indicate that Plaintiff filed
his administrative claim at the institution level on August 31, 2011, which is not within the required twenty day time
period. In his response, however, Plaintiff submitted an “Administrative Remedy Request” that is labeled Case
Number 654441-F1 and shows that it was signed by Plaintiff on July 15, 2011, which is within the twenty day time
period.
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individual liability under Bivens unless their conduct violates “ ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’ ”49 To avoid summary
judgment when a defendant asserts qualified immunity, a plaintiff must show “ ‘(1) that the
defendant’s actions violated a constitutional or statutory right and (2) that the right was “clearly
established at the time of the defendant’s unlawful conduct.’ ”50
Plaintiff essentially alleges that Defendants violated his constitutional rights by failing to
discipline Defendant Evans for his alleged assault of Plaintiff, by failing to respond to various
forms of correspondence or agency grievances related to the alleged assault, and by placing him
in the Special Housing Unit after the alleged assault. Plaintiff also asserts that Defendant
Hollingsworth covered up medical reports and attempted to destroy video footage of the alleged
assault. Defendants assert that these allegations do not equate to a violation of a constitutional
right. The Court agrees.
a. Failure to Discipline
With regard to Defendants’ alleged failure to discipline Defendant Evans, Plaintiff
appears to be seeking to impose supervisor liability. Under § 1983 or Bivens, government
officials are not vicariously liable for their subordinate’s misconduct.51 Therefore, to hold a
supervisor liable for his subordinate’s unconstitutional acts, a plaintiff must show an “affirmative
link” between the supervisor and the constitutional violation.52 A showing of this “affirmative
49
Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
50
Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (quoting Medina v. Cram, 252 F.3d
1124, 1128 (10th Cir. 2001)).
51
Id. at 1151 (citing Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996)).
52
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
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link” requires more than a supervisor’s knowledge of his subordinate’s conduct.53 Instead, it
requires (1) personal involvement; (2) sufficient causal connection; and (3) culpable state of
mind.54 In sum, Ҥ 1983 [or Bivens] allows a plaintiff to impose liability upon a defendant
supervisor who creates, promulgates, implements, or in some other way possesses responsibility
of the continued operation of a policy the enforcement . . . of which ‘subjects, or causes to be
subjected’ that plaintiff ‘to the deprivation of any rights . . . secured by the Constitution.’ ”55
Here, Plaintiff has not established supervisor liability because he has not shown an
“affirmative link” between Defendants’ conduct and Defendant Evans’ alleged assault.
Plaintiff’s evidence with regard to Defendants Schott and Nalley is sparse. The only evidence
Plaintiff has submitted in regard to these Defendants is correspondence between Plaintiff or his
family and Defendants that shows Defendants Schott and Nalley became aware of the assault
after it occurred. Mere knowledge of Defendant Evans’ conduct, however, is not enough to
create supervisor liability. Furthermore, this correspondence does not show that Defendants
Schott and Nalley created or acquiesced in a policy or environment that allowed correction
officers to unlawfully assault prisoners. Defendants Schott and Nalley are therefore entitled to
qualified immunity on this issue.
With regard to Defendant Hollingsworth, Plaintiff appears to argue that she was aware of
problems with Defendant Evans and Plaintiff’s housing unit before the alleged assault. But,
Plaintiff provides no documents in support of these allegations or any specifics about Defendant
Hollingsworth’s knowledge regarding Defendant Evans or Defendant Evans’ prior conduct as a
53
Id.
54
Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (citations omitted).
55
Id. at 1199 (quoting 42 U.S.C. § 1983).
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correctional officer at USP Leavenworth. Plaintiff also relies on a Report of Incident Form to
show factual irregularities in witness statements regarding the assault. This form, however, is
not enough to impose liability, as it does not provide any evidence that Defendant Hollingsworth
personally directed Defendant Evans to assault Plaintiff, that she knew Defendant Evans was
personally assaulting Plaintiff and did not stop him, or that she ordered USP Leavenworth staff
to provide false statements regarding the assault. It also does not show that she created or
enforced a policy that encouraged correctional officers to assault prisoners at USP Leavenworth.
Therefore, Defendant Hollingsworth is entitled to qualified immunity on this issue as well.
b. Failure to Answer Administrative Remedies and General Correspondence;
Continued Placement in the Special Housing Unit
Plaintiff also asserts in his amended complaint that Defendants failed to answer certain
administrative remedies. Neither the parties nor the Court has found any authority that the
failure to respond to correspondence or grievances is a violation of a constitutional right.
Plaintiff may be alleging a claim for denial of access to the courts or to the administrative
remedy process. However, to succeed on a claim for denial of access to the courts, a prisoner
must show that a defendant’s conduct caused him actual injury by frustrating or hindering his
efforts to pursue a non-frivolous claim.56 Plaintiff’s evidence does not show that he suffered
actual injury in bringing his claim. Indeed, the fact that he filed this case and was able to file at
least two administrative claims contradicts any argument he may make that this constitutional
right was violated.
56
Boles v. Newth, 479 App’x 836, 841 (10th Cir. 2012) (citing Gee v. Pacheco, 627 F.3d 1178, 1191 (10th
Cir. 2010).
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Plaintiff’s remaining allegations against Defendants are also deficient. Specifically, the
allegation that Defendants did not respond to general correspondence from him, his family
members, or other agencies does not amount to a constitutional violation.57
Neither does
Plaintiff’s allegation that he was held in the Special Housing Unit after the assault. As the Tenth
Circuit has stated,
“[i]n the penological context, not every deprivation of liberty at the hands of
prison officials has constitutional dimension. This is so because incarcerated
persons retain only a narrow range of protected liberty interests. For example, a
liberty interest may arise when an inmate faces conditions of confinement that
impose an atypical and significant hardship . . . in relation to the ordinary
incidents of prison life.”58
The Tenth Circuit typically looks at four non-dispositive factors in determining whether certain
conditions of confinement impose an “ ‘atypical and significant hardship.’ ”59 These include
“whether (1) the segregation relates to and furthers a legitimate penological interest, such as
safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases
the duration of confinement, . . .; and (4) the placement is indeterminate.”60 Plaintiff has not
submitted any evidence showing that the conditions in the Special Housing Unit were extreme or
that the placement lengthened his sentence or was indefinite in nature. Therefore, Plaintiff fails
to allege a violation of a constitutional right with respect to his placement in the Special Housing
Unit.
57
See Davis v. Ark. Valley Corr. Facility, 99 F. App’x 838, 844 (10th Cir. May 20, 2004) (finding that the
mere fact that the defendant received correspondence from the inmate concerning the alleged constitutional violation
does not implicate liability under § 1983).
58
Stallings v. Werholtz, 492 F. App’x 841, 843-44 (10th Cir. 2012) (quoting Rezaq v. Nalley, 677 F.3d
1001, 1011 (10th Cir. 2012)).
59
Id. at 844 (quoting Rezaq, 677 F.3d at 1011-12).
60
Id. (quoting Rezaq, 677 F.3d at 1012).
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c. Destruction of Evidence
Plaintiff specifically argues that Defendant Hollingsworth covered up medical reports and
attempted to destroy video footage of the assault. Plaintiff, however, has not come forward with
any evidence supporting these allegations, and standing alone, these allegations are simply
speculation that do not support the violation of a constitutional right. At most, Plaintiff may be
alleging that his due process rights were violated due to the destruction of evidence. However,
Plaintiff has not shown that he was prosecuted for his conduct during the alleged assault.61 Thus,
qualified immunity prevents Defendant Hollingsworth from being held liable for these claims.
In sum, the Court finds that Plaintiff fails to satisfy the first prong of the two-part test for
qualified immunity in that Plaintiff has not shown a violation of a constitutional right.
Accordingly, the Court finds that Defendants are entitled to qualified immunity and grants
Defendants summary judgment in their favor on this issue.
3.
Personal Participation
Defendants’ final argument is that Plaintiff’s claim regarding their failure to discipline
Defendant Evans should be dismissed for lack of personal participation. It is well established
that a defendant’s personal participation in the alleged violation of a plaintiff’s constitutional
right is an essential allegation in a Bivens action.62 To establish personal liability, a plaintiff
must show that the official caused the deprivation of a federal right. 63
61
See Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004) (“[A] defendant’s due process rights are
implicated when the state knowingly uses false testimony to obtain a conviction or withholds exculpatory evidence
from the defense.”) (citing Pyle v. Kansas, 317 U.S. 213 (1942); Brady v. Maryland, 373 U.S. 83 (1963)).
62
Deville, 2011 WL 4526772, at *5 (citing Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)).
63
Id.
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In the context of supervisor liability, which Plaintiff asserts in this case, the Court’s
analysis is similar, if not identical, to the analysis it employed in determining whether
Defendants are entitled to qualified immunity. As previously discussed, a plaintiff may only
impose liability on a defendant supervisor if that defendant-supervisor “creates, promulgates,
implements, or in some other way possesses responsibility” for the operation of a policy that
subjects the plaintiff to a deprivation of a constitutional right.64 Indeed, there must be an
“affirmative link” between the unconstitutional act of the defendant’s subordinate and the
defendant-supervisor’s adoption of a plan or policy showing their authorization or approval of
such misconduct.65
Here, the record is devoid of any proof of Defendants’ personal participation in the
alleged assault. Plaintiff does not offer any evidence that Defendants personally participated in
the assault or knew of the assault and did not take steps to stop it. Plaintiff also has not provided
any evidence that Defendants created or enforced a policy in the USP Leavenworth that
encouraged correctional officers to assault prisoners. The only evidence Plaintiff relies on is
documents that post-date the alleged assault that show that Defendants were aware of the
incident after it occurred. This is not sufficient. Therefore, the Court grants summary judgment
in Defendants’ favor on this issue as well.
64
Dodds, 614 F.3d at 1199 (citations omitted).
65
Id. at 1200-01.
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IT IS THEREFORE ORDERED that Defendants Hollingsworth, Schott, and Nalley’s
Motion to Dismiss Plaintiff’s Complaint Or, in the Alternative, for Summary Judgment (Doc. 34)
is GRANTED.
IT IS SO ORDERED.
Dated this 17th day of December, 2014.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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