Williams v. Aulepp et al

Filing 137

MEMORANDUM AND ORDER granting 71 Defendants Kristine Aulepp, Justin Blevins, Glenna Crews, Shannon Phelps, John Johnson, Jarad Herbig, Carol Witt, Michael Manley, Scott Stanley, Claude Maye, and Paul Leonhard's Joint Motion to Dismiss; denying 127 Plaintiff Anthony D. Williams's Motion for Extension of Time to a File Response as to 71 ; denying 128 Plaintiff Anthony D. Williams's Motion to Appoint Counsel; denying 130 Plaintiff Anthony D. Williams's Motion for Conti nuance Under Fed. R. Civ. P. 56(f)(d); granting in part 131 Plaintiff Anthony D. Williams's Motion to Enlarge Page Limit; granting in part 133 Plaintiff Anthony D. Williams's Motion for Leave to Supplement and/or Grant Placeholder Moti on Filed to Satisfy His Opposition Deadline to Defendants Summary Judgment Motion. The clerk is directed to enter a judgment of dismissal in favor of all named Defendants, as to all of Plaintiff's claims. Signed by District Judge John W. Broomes on 11/6/2018. Mailed to pro se party Anthony D. Williams at Devens FMC by regular mail. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY D. WILLIAMS,
Plaintiff,
v.

Case No. 16-3044-JWB

KRISTINE AULEPP, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the court on Defendants’ joint Motion to Dismiss (Doc. 71), and on
Plaintiff’s Motion for Extension of Time (Doc. 127), Motion to Appoint Counsel (Doc. 128),
Motion to Continue (Doc. 130), Motion to Enlarge Page Limit (Doc. 131), and Motion for Leave
to Supplement (Doc. 133.) The motions have been adequately briefed (Docs. 129, 132, 134, 135,
136), and the court is prepared to rule. For the reasons stated herein, Defendants’ Motion to
Dismiss (Doc. 71) is GRANTED with respect to all remaining claims and parties. Plaintiff’s
various motions (Docs. 127, 128, 130, 131, 133) are DENIED or GRANTED IN PART as further
described herein.
I. Background
Plaintiff is an inmate in the custody of the United States Bureau of Prisons (BOP) serving
a 324-month sentence for conspiracy to possess with intent to distribute cocaine base. His projected
release date, with application of good conduct time, is November 1, 2022. His pro se Amended
Complaint (Doc. 18) asserted twenty-four separate counts against various federal officials, mostly
BOP employees at the United States Penitentiary (USP) at Leavenworth, Kansas. (Doc. 18). See
also Doc. 19 (accompanying affidavit). The claims primarily challenged the adequacy of medical

care provided to Plaintiff, alleged the Defendants retaliated against Plaintiff for filing grievances,
and claimed Defendants unlawfully seized Plaintiff’s property. The complaint cited Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Federal Tort
Claims Act (FTCA), 28 U.S.C. § 1346, and 42 U.S.C. §§ 1985 and 1986 as bases for the court’s
subject-matter jurisdiction. Judge Crow screened the Amended Complaint and dismissed various
counts, in whole or in part, as well as various Defendants.1 (Doc. 25.) He also dismissed the FTCA
and §§ 1985 and 1986 claims, leaving only Bivens claims, and only as to the following counts: 69, 12, 13 (as to Defendant Glenna Crews only), 14 (as to Defendant Jarad Herbig only), 15 (as to
Defendant Paul Leonhard only), 16 (as to Defendants Claude Maye and John Johnson only), and
19 (only as to the denial of a “bottom bunk pass”). (Doc. 25.) These counts allege deliberate
indifference to Plaintiff’s medical needs in violation of the Eighth Amendment (Counts 6, 7, and
19), violation of First Amendment rights (Counts 8 and 9), retaliation for exercising First
Amendment rights (Counts 12 through 16), and denial of due process in violation of the Fifth
Amendment (Counts 13 through 16).
On September 11, 2017, Defendants filed a joint motion to dismiss the Amended
Complaint. (Doc. 71.) Plaintiff responded by filing approximately ten motions seeking discovery,
extensions of time, and other relief. On January 9, 2018, Judge Melgren denied Plaintiff’s requests
and stated that Plaintiff’s response to the motion to dismiss was due January 23, 2018. (Doc. 100.)
Plaintiff responded by filing numerous additional motions over the following months, including
additional motions for extension of time.
On May 21, 2018, after the case was transferred to the undersigned judge, the court found
that Defendants’ motion to dismiss should be converted to a summary judgment motion because

1

The order dismissed Defendants Lynch, Samuels, Witt, Connors, John/Jane Doe, Clark, and the United States. (Doc.
25 at 26.)

2

it relied on various attached exhibits. (Doc. 125.) The court gave notice to the parties and granted
Defendants until June 15, 2018, to file a supplemental brief with any additional exhibits.2 The
court granted Plaintiff until July 6, 2018, to file a response brief with exhibits. (Id. at 2.) The court
denied Plaintiff’s various other motions and cautioned him that “no further extensions of time to
respond to Defendants’ motion will be granted.” (Id.)
Plaintiff responded by filing an additional motion for extension of time (Doc. 127), a
motion to appoint counsel (Doc. 128), and a motion for continuance (Doc. 130). On July 16, 2018,
Plaintiff filed a motion to enlarge page limits (Doc. 131), a motion for leave to supplement (Doc.
133), and an 87-page response to the motion for summary judgment accompanied by a 49-page
affidavit and other exhibits. (Doc. 132.)
II. Preliminary Motions (Docs. 127, 128, 131, and 133.)
On June 26, 2018, Plaintiff filed a motion (Doc. 127) for extension of time to respond to
Defendants’ summary judgment motion. The facts asserted by Plaintiff warrant no further
extension of time. Plaintiff has had ample time to file his response and he fails to show that
discovery is necessary to the filing of his response. Plaintiff has not demonstrated cause for any
further extensions. Additionally, the court will deny the motion as moot because Plaintiff has now
filed a response brief (Doc. 132.)
Plaintiff also filed a motion to appoint counsel (Doc. 128), the fourth such motion he has
filed in this case. There is no constitutional right to appointment of counsel in civil cases. Durre v.
Dempsey, 869 F.3d 543, 547 (10th Cir. 1989). In considering a motion for appointment of counsel
under 28 U.S.C. § 1915, the court considers the merits of a prisoner's claims, the nature and
complexity of the factual and legal issues, and the prisoner's ability to investigate the facts and

2

Defendants subsequently elected to stand on their initial brief and exhibits. (Doc. 126 at 2.)

3

present his claims. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
(citations omitted). The court will deny Plaintiff’s current request for largely the same reasons
cited by Judge O’Hara in denying Plaintiff’s previous motion for counsel. (See Doc. 91 at 2.) At
this stage, Plaintiff has not shown that the merits of his claims warrant appointment of counsel.
Additionally, the claims deal with facts and issues with which Plaintiff has significant familiarity,
and he has demonstrated an ability to gather facts and present his claims to the court. His motion
for appointment of counsel is accordingly denied.
Plaintiff’s motion to enlarge page limits (Doc. 131) is granted with respect to Plaintiff’s
87-page response brief (Doc. 132), but is otherwise denied.
Plaintiff’s motion for leave to supplement asserted that Plaintiff only “file[d] half of his
opposition” in the summary judgment response because the court has not ruled on his other
motions. (Doc. 133 at 2.) Plaintiff asked that he be allowed to file his remaining opposition and
exhibits “in the next seven (7) to fourteen (14) days.” (Id. at 3.) Plaintiff filed an additional brief
on August 6, 2018, with exhibits attached. (Doc. 136). The court will consider the latter brief and
exhibits as a supplement to Plaintiff’s response to summary judgment. Accordingly, Plaintiff’s
motion for leave to supplement (Doc. 133) is granted to that extent, but is otherwise denied.
Plaintiff has not demonstrated that he cannot present facts essential to his opposition to summary
judgment without further extensions or discovery.
III. Defendants’ Motion for Summary Judgment (Doc. 71.)
1. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A fact is “material” when it is essential to the claim, and an issue of fact is “genuine”

4

if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.
Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the initial
burden of proof and must show the lack of evidence on an essential element of the claim. Thom v.
Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)). The nonmovant must then bring forth specific facts showing a
genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court
views all evidence and reasonable inferences in the light most favorable to the nonmoving party.
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
2. Uncontroverted facts.
Exhaustion of Administrative Remedies. The PLRA provides that a confined prisoner
cannot bring an action “with respect to prison conditions” under any federal law “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The BOP has a
four-part administrative remedy to address inmate complaints concerning any aspect of
confinement. (Doc. 72-2 at 3) (citing BOP Program Statement 1330.18, Administrative Remedy
Program, available at www.bop.gov.). See also 28 C.F.R. § 542.10 et seq. (regulations adopting
administrative procedures). Under that program, an inmate is first required to attempt informal
resolution. If that is unsuccessful, the inmate must submit a formal written Administrative Remedy
Request to the Warden of the institution within 20 days of the incident. See 28 C.F.R. § 542.14. If
the inmate is not satisfied with the Warden’s response, he may submit an appeal to the appropriate
Regional Director within 20 days. (There are certain exceptions, such as disciplinary decisions by
a Discipline Hearing Officer, which may be appealed directly to the Regional Director.) An inmate
not satisfied with the Regional Director’s response may appeal to the General Counsel within 30
days. Appeal to the General Counsel is the final administrative appeal. Id. § 542.15. The foregoing

5

time limits may be extended when an inmate shows a valid reason for delay. Id. Also, inmates may
have another person (including outside sources such as family) assist them in preparing a Request
or an Appeal. Id. § 542.16.
The BOP maintains a nationwide computer database of inmate complaints under the
Administrative Remedy Program known as SENTRY, that tracks inmate complaints and appeals.
(Doc. 72-2 at 4.) A search of SENTRY shows Plaintiff has filed 411 administrative remedies and
appeals since his transfer to USP Leavenworth on October 23, 2013, including 113 appeals to the
National Appeals Administrator. (Id. at 5.) Although Plaintiff has clearly been able to exhaust
remedies on a multitude of claims, Defendants cite evidence that he did not do so with respect to
some of the allegations he now asserts. Specifically, Defendants cite evidence that Plaintiff did not
exhaust a claim that Defendant Maye violated his First Amendment rights by threatening him on
or about March 25, 2014, or by transferring him out of USP Leavenworth (Counts 9, 16). (Id. at
8-10; Doc. 72-2 at 101-02.) They cite evidence that Plaintiff did not exhaust remedies as to
allegations that Defendant Leonhard used a racial slur (Count 15). (Id. at 8-9; Doc. 72-2 at 88, 93.)
Finally, Defendants cite evidence that Plaintiff did not exhaust remedies as to claims that
Defendant Johnson retaliated by transferring Plaintiff from USP Leavenworth (Count 16.) (Id. at
9-10; Doc. 72-2 at 101-02.)
Defendant Justin Blevins. Commander Justin Blevins served as USP Leavenworth’s Health
Services Administrator while Plaintiff was at USP Leavenworth. He was a member of the Public
Health Service and was providing medical services within the scope of his employment at all times
relevant to this suit. (Docs. 72 at 10, 72-2 at 74.)
Medical treatment at USP Leavenworth. Prior to his incarceration, Plaintiff suffered from
multiple medical conditions, including a foreshortened gut due to a gunshot wound in

6

approximately 1995, removal of a kidney, and a gunshot injury to his leg. Plaintiff asserts that he
also underwent surgery for a stomach ulcer. Since the start of his incarceration in 1998, Plaintiff
has suffered from chronic abdominal pain. He has repeatedly sought treatment for abdominal pain
at each of the numerous federal institutions where he has been housed. He has also filed grievances
at each of these institutions, alleging that the medical care he received for his pain was inadequate.
In 2010, while he was housed at a facility in California, Plaintiff suffered a ruptured gallbladder
and had to have emergency surgery. (Doc. 132-1 at 1-5.)
On April 6, 2012, while Plaintiff was housed at a facility in Oregon, he received an
esophagogastroduodenoscopy (EGD) and colonoscopy with biopsies, which revealed a normal
post-surgical stomach with Billroth II Anastomomosis. The post-operative diagnosis indicated a
normal colon with no ulcers, inflammation, polyps or diverticula, and the terminal ileum also
appeared normal. The medical provider noted that Plaintiff had heartburn that was presumably
caused by bile reflux, although it did not appear to create any notable gastropathy or esophagitis.
(Doc. 75 at 3-4.) Plaintiff was prescribed a special diet consisting of six small meals a day, no red
meat, and a bland diet. (Id. at 17-22.) The special diet order was set to expire on January 1, 2014.
Plaintiff had issues complying with his special diet. At La Tuna FCI in Texas, where
Plaintiff was housed prior to arrival at USP Leavenworth, a nurse noted on August 31, 2013:
Inmate states that he had been told 3 times to change his [commissary] purchases
and continues to purchase spicy, acidic food that are [sic] not correlated and AMA
of a bland diet. Upon shake down of inmate’s cell in [Special Housing Unit] on
8/30/13, 3 large bags full of items from food services stashed under bed containing
apples, tuna, bread, and snickers. [sic] Plan is to [discontinue] 6 meals/day. Inmate
may resume bland diet as per self but [without] extra meals that are not being eaten.
Doc. 75 at 23. The note was co-signed by a medical provider.
On September 10, 2013, Plaintiff received a consultation with a dietician upon a referral of
the Regional Medical Director at La Tuna because of Plaintiff’s complaints of stomach pain and
7

acid reflux. The dietician recorded that Plaintiff admitted being noncompliant with his medication
(omeprazole and simethicone) and his diet. The provider’s note stated that Plaintiff would benefit
from a bland diet consisting of six small meals per day, but it was “imperative that he is also
compliant with medications and commissary purchases.” The note indicated that Plaintiff
acknowledged understanding “that if he hoards snacks again the snack order will be
[discontinued.]” (Doc. 75 at 25.)
Plaintiff was transferred from FCI La Tuna to USP Leavenworth on October 23, 2013.
Upon arrival, a complete intake screening was performed, and Plaintiff was instructed on how to
obtain medical services. During this encounter, Plaintiff was prescribed cyanocobalamin for
malabsorption syndrome and lisinopril for hypertension. Plaintiff was again placed on a special
diet of six small, bland meals per day and no red meat, which was scheduled to expire on October
22, 2014. (Doc. 76 at 3; Doc. 75 at 32.) Plaintiff was permitted to self-select the no-red-meat and
bland diet options from the available menu at the regularly scheduled meals. He was also provided
three snacks per day, which may have included peanut butter and crackers or bread, in compliance
with options outlined in the BOP’s policies.
On October 23, 2013, Robert King, D.O. (not named as a Defendant in this action)
discontinued Plaintiff’s prescriptions for omeprazole and simethicone, with a note that Plaintiff
would be referred to the commissary for those medications. (Doc.75 at 33.) He did so because of
standards in the BOP’s National Drug Formulary, which includes a list of medications that BOP
medical staff consider to be quality and cost-effective medications for inmates. Pursuant to the
Formulary, stomach and heartburn medications (including simethicone and omeprazole) are
available over-the-counter (OTC) for purchase by inmates at the commissary. The Formulary
provides that inmates are to purchase their stomach medications through the commissary unless

8

they are indigent or, for “H2/PPIs” like omeprazole and ranitidine, unless the inmate is being
actively followed in a GI Chronic Care Clinic with documented laboratory findings for specified
conditions, including severe GERD and previous GI bypass or ulcer surgery. (Doc. 75 at 119.)
According to Defendant Aulepp, Plaintiff did not qualify under these tests. Plaintiff asserts that he
does qualify under the Formulary’s standards because, according to him, he had ulcer surgery prior
to his incarceration, a fact he allegedly told Defendant Blevins. Plaintiff thus contends he should
not have had to purchase omeprazole. (Doc. 132-1 at 22.)
On October 28, 2013, Plaintiff reported to sick call seeking a low-bunk pass, which he had
possessed at some point at La Tuna FCI, and an order for his six small meals per day. He also
reported the prior gunshot wound in his right leg. Radiology and laboratory requests were ordered
to check Plaintiff’s abdomen, right ankle, and left knee. An exam showed Plaintiff had a wellhealed scar at his ankle and no limited use of his lower right leg. A low-bunk pass was not issued
by the provider, Physician’s Assistant Michael Swann. (Doc. 75 at 34.)
The next day, October 29, 2013, Plaintiff saw Aulepp, who continued his prescriptions for
lisinopril and cyanocobalamin. Aulepp noted Plaintiff’s history of gastrointestinal problems
stemming from a foreshortened gut due to an 18-year old gunshot would, including frequent
complaints of heartburn and diarrhea. Aulepp instructed Plaintiff to continue medication for his
heartburn, which he could purchase through the commissary, and she renewed a dietician’s
recommendation for six small meals or three meals and three snacks per day. (Doc. 75 at 6, 3940.)
Defendant Stanley was Assistant Food Service Administrator at USP Leavenworth. His
duties included observing inmates to ensure dietary compliance with BOP rules. In November
2013, Stanley reported to Health Services that he saw Plaintiff give away his snack to another

9

inmate. (Doc. 76 at 5.) Plaintiff contends Stanley fabricated the story, and he cites affidavits from
two other prisoners who say they did not see him give a snack away. A November 18, 2013, Health
Services staff note entered by a registered nurse stated that a review of commissary items showed
Plaintiff is purchasing “non-bland items such as honey pepper log, goya seasoning, Cajun chicken
soup, garlic, etc. Consult with Food Service was completed. The inmate is sharing his snack sacks
that he had been receiving.” The note stated that “[d]ue to his non-compliance consult made with
Dr. Aulepp. Received orders to discontinue special diet from Food Service.” (Doc. 75 at 41.)
Aulepp approved the discontinuation of Plaintiff’s special diet arrangement on November
18, 2013. BOP guidelines for medical diets provided that special diets should be ordered only
when they are known to be effective for an inmate’s specific medical condition. They further
provided such diets may be discontinued if inmates are found to be providing special diet orders
to other inmates, are not consuming supplemental feeding orders, or are stockpiling them. (Id. at
128.) The guidelines state that Food Service staff may document noncompliance, but only the
authorizing medical provider may discontinue special or medical diets. (Id.) Aulepp states that she
discontinued Plaintiff’s medical order for six small meals per day due to Plaintiff’s noncompliance
with his special diet. Although the order was discontinued, Plaintiff was still free to self-select
bland, no-meat options from the available menu for three daily meals. While Plaintiff was at USP
Leavenworth, he gained approximately 30 pounds. He continued to purchase spicy, acidic food
items from the commissary. (Id. at 136-158.)
On November 29, 2013, Plaintiff reported to sick call complaining of burning in his
stomach. It was noted he was not buying the OTC medications as directed and that Plaintiff was
“very adamant about not buying OTC.” (Id. at 44.) He was prescribed ranitidine by PA Swann.
(Id.)

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Plaintiff reported to sick call on December 10, 2013, with concerns of arthritis in his ankle
and hip, and complaining of swelling and tingling in the right lower leg. He reported that he had
been given a low bunk pass at his prior institution. The medical provider, Dr. Jason Clark,
examined Plaintiff and told him he did not meet the criteria for low-bunk placement because his
arthritis was not to a degree that indicated accommodations. (Id. at 46-47.) On February 14, 2014,
Plaintiff was evaluated at Health Services after claiming he fell off a chair while trying to get in
his upper bunk, injuring his lower back. He was evaluated, diagnosed with a back sprain, and was
prescribed ibuprofen. (Id. at 14.) He was given a temporary low-bunk pass for seven days. (Id. at
52.)
Plaintiff complained by email on March 24, 2014, that he is “really unable to pay $14 for
omeprazole” because of a $25 monthly fine he was also paying. He was advised that there were
other, less expensive medications at the commissary, and that if his symptoms increased, he could
return to sick call for evaluation. (Id. at 53.)
On March 30, 2014, Plaintiff reported to sick call that he had pain in his abdomen with
nausea and vomiting. With Aulepp’s approval, Plaintiff was referred to St. Luke’s hospital for a
CT scan of his abdomen. (Id. at 54.) At the hospital he was given a morphine injection for pain,
medication for nausea, and fluids. The CT exam showed he had a history of extensive abdominal
surgery, but no acute intra-abdominal process was identified. Plaintiff was discharged that day
with a diagnosis of gastritis. He was prescribed pantoprazole (a PPI) and was directed to continue
his prescriptions for cyanocobalamin and lisinopril. (Id. at 67.)
Plaintiff was evaluated at Health Services the next day, March 31, 2014, and was prescribed
omeprazole for 14 days and instructed to purchase more of that medication in the commissary
thereafter if it was needed. (Id. at 10, 74.)

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On May 20, 2014, Plaintiff reported to sick call that he had been having abdominal pain
for two weeks. He was evaluated and determined to be suffering esophageal reflux, and was
prescribed simethicone tablets for seven days. Plaintiff was next seen on September 9, 2014,
complaining of tiredness and loss of appetite. The provider determined he had malabsorption
syndrome and ordered lab work, as well as radiology of Plaintiff’s spine for a complaint of lower
back pain. The test results were reviewed with Plaintiff on October 21, 2014, when his
cyanocobalamin and lisinipril prescriptions were renewed.
On April 7, 2015, Plaintiff reported to sick call complaining of abdominal pain. He was
seen by nurse David Campbell. Campbell noted Plaintiff was “very upset” about having to
purchase his own antacid medication at USP Leavenworth, asserting he had been getting his
antacids free for 15 years and did not understand why he had to pay for them now. (Doc. 75 at 91.)
Campbell continued the same treatment, advised Plaintiff to purchase the antacids in the
commissary, and told Plaintiff to return to sick call as needed. In early April 2015, Plaintiff sent
several emails to Health Services complaining of its “refusal” to treat him. He asserted that the onduty nurse did not “even get out of his chair” when examining him but simply ordered Plaintiff to
buy antacids from the commissary. Plaintiff asserted that he had purchased antacid tablets on
March 8, 2015, but they did not work and he could not tolerate the citrus flavored ones. He asked
that Health Services issue him “an antacid that will help my pain and suffering….” (Id. at 96.)
Plaintiff’s commissary records show no antacid purchases in March of 2015, although there is a
purchase of antacids indicated on April 7, 2015. Plaintiff only purchased antacids on three
occasions in the course of his confinement at USP Leavenworth.
In a visit to Health Services on April 14, 2015, Plaintiff expressed concern about not getting
omeprazole, stating he could not afford it and that ranitidine gave him gas. Dr. Clark instructed

12

Plaintiff to continue his current medications and discussed the use criteria for proton-pump
inhibitors (PPIs) like omeprazole, indicating that Plaintiff did not qualify to obtain it free. That
same day, Plaintiff sent an email to Defendant Phelps complaining of Clark’s refusal to provide
omeprazole, saying Clark wrongfully asserted that Plaintiff had not had ulcer surgery. (Doc. 75 at
100.)
On April 24, 2015, Plaintiff was evaluated at Health Services for complaints of abdominal
pain and on his requests for a bland diet and omeprazole. The provider, Campbell, noted the
commissary indicated Plaintiff did not eat a bland diet when he had the choice to do so, and also
noted Plaintiff did not want to buy omeprazole because he had always been able to get it free. (Id.
at 102.) Plaintiff was counseled about his diet selections. Plaintiff emailed Blevins later that day,
complaining that Campbell had merely told him to try a different antacid when he complained that
the one he tried did not work, even though Plaintiff asserted that the one recommended by
Campbell “had a bad side [effect].” (Id. at 105.) Plaintiff asserted it was “cruel and unusual
punishment and is causing a financial burden when you continue to deduct money off my
person[al] account just to be told to go buy medication from [the] commissary….” (Id.)
Notwithstanding his conclusory assertion of a “financial burden,” Plaintiff cites no evidence that
he was indigent such that he could not afford to purchase stomach medications at the commissary.
(See Doc. 72-2 at 79 (Regional Director’s ruling on Plaintiff’s grievance, noting that “[a]ccording
to your electronic funds report, you are not currently on the indigent list. Therefore, purchase of
Omeprazole must be initiated by you from the commissary.”))
Count 13 – Disciplinary Hearing on Incident 2940024. Plaintiff contends his rights under
the First and Fifth Amendments were violated by Disciplinary Hearing Officer (DHO) Glenna
Crews. On September 9, 2013, Plaintiff was charged with disciplinary violations at FCI La Tuna

13

under Incident Report No. 2940024. The report alleged that when an officer attempted to move
Plaintiff from the law library and ordered him to “cuff up,” Plaintiff responded, “FUCK NO I’M
NOT GOING TO CUFF UP” and told the officer to “COME IN HERE SO I CAN FUCK YOU
UP.” (Doc. 72-5 at 9.) The report alleged that Plaintiff then threatened to “jump” the officer in the
compound and said he was going to file a grievance. Plaintiff was charged with disciplinary
violations and on September 30, 2013, a DHO at La Tuna found Plaintiff responsible for violating
Code 307 (Refusing to Obey an Order) and Code 312 (Insolence Toward a Staff Member), but
removed Code 299 (Disruptive Conduct) and Code 203 (Threatening). The DHO imposed
sanctions, but they did not include loss of good conduct time. (Id.)
Plaintiff appealed to the Regional Director, who remanded for reconsideration with
instructions. The instructions stated (among other things) that the description of the incident
supported a Code 203 violation, that Code 203 should therefore replace Code 312, and that “the
sanctions should be in compliance with policy if the incident report is upheld by the DHO” on
reconsideration. Because Plaintiff had been transferred to USP Leavenworth by that point, the
matter was assigned to DHO Crews for reconsideration.
Crews considered the evidence and found Plaintiff’s actions violated Code 203
(Threatening) and Code 307 (Refusing to Obey an Order). Code violations in the 200s were
considered more serious and included sanctions for loss of good conduct time, while violations in
the 300s did not. Crews imposed a sanction of 27 days loss of good conduct time in addition to the
sanctions Plaintiff had already served. Crews informed Plaintiff of his right to appeal. Plaintiff
appealed, and the National Inmate Appeals Administrator determined that the increase in sanctions
was improper under a policy generally prohibiting a reviewing warden or regional director from
increasing a valid sanction. The Administrator remanded for entry of an amended DHO report that

14

restored the original charges and sanctions imposed at La Tuna, with no loss of good time. An
amended report restoring the original sanctions was issued to Plaintiff on July 10, 2015. (Doc. 725 at 5.)
Count 14 – Confiscation of property. USP Leavenworth had policies in effect permitting
inmates to possess only certain property, including property authorized by staff or purchased by
the inmate at the commissary. Any other items were considered contraband, which staff was
directed to seize. Such items were inventoried and stored pending identification of the true owner
(if in doubt) or disciplinary action. Staff was directed to give the inmate a form giving the inmate
seven days to establish ownership.
On January 24, 2014, as Plaintiff attempted to pass through a metal detector on his way to
the medical department, Defendant Witt found him in possession of papers and magazines that had
the address labels torn off or that were addressed to other inmates. Witt seized them as contraband.
Plaintiff contends Witt disposed of the items without giving him a confiscation form, although he
fails to address Defendants’ evidence that Witt told Plaintiff to return on the next inmate move to
obtain a confiscation form, and that Plaintiff did not return for a form. (Doc. 72 at 23-24.) The
inmate whose address appeared on the labels was no longer at USP Leavenworth. The items were
disposed of.
USP Leavenworth also had a policy prohibiting inmates from wearing jewelry, except for
certain items including a religious medal and a non-decorative chain not exceeding $100 in value.
An inmate wanting to purchase a religious item had to buy it at the commissary or through a
chaplain-approved catalogue, with approval by the warden. On February 5, 2014, as Plaintiff was
again passing through the metal detector, Witt found Plaintiff wearing a beaded necklace with an
emblem, which appeared to be homemade and not a commissary item. Plaintiff said it was his

15

religious medallion. Witt said it was not authorized and that Plaintiff would have to send it home.
Plaintiff handed it over; it was a beaded necklace with an “NOI [Nation of Islam] emblem.” A
confiscation form was prepared on February 5 but Plaintiff refused to sign it. About four months
later, the item was disposed of because it was not claimed. (Doc. 72-8.)
Plaintiff contends Defendant Herbig “implicitly authorized, approved and knowingly
acquiesced in the unlawful seizure of my [newspapers], magazines and chain of Ms. Witt when it
was brought to his attention” and he “refused to properly investigate the retaliation claim” Plaintiff
made against Witt. (Doc. 19 at 19.) Aside from these conclusory statements, he cites no evidence
to show Herbig’s responsibility or actions with respect to these incidents.
Count 15 – Fifth Amendment claim. Plaintiff claims Leonhard made a “disrespectful
comment” while Plaintiff was attempting to talk to Herbig about a grievance over the seizure of
Plaintiff’s chain. Plaintiff says he proposed dropping the grievance if Herbig would give back the
chain, to which Leonhard allegedly stated, “That’s not going to happen.” (Doc. 19 at 27.) Plaintiff
responded by saying that he was talking to Herbig, which according to Plaintiff prompted
Leonhard to become angry and threaten to “lock your black ass up in the fucking shoe.”3 Leonhard
then allegedly “attempted to handcuff [Plaintiff] in a very aggressive way.” (Id.) Plaintiff asserts
that as a result, he was fearful of being attacked by Leonhard if he filed a grievance. Nevertheless,
Plaintiff “made it out [of] the (SIS) office without being attacked,” and immediately went to the
warden and “grieved to him what had taken place with his subordinates (SIS) Herbig and
[Leonhard].” (Id.)
Count 16 – Retaliatory Transfer. Under BOP policies, when a transfer is proposed, a Unit
Team first reviews and approves the transfer request. The request is submitted to the warden for

3

“Shoe” was a reference to the penitentiary’s Special Housing Unit.

16

signature, and then submitted to the Designation and Sentence Computation Center (DSCC) for
approval of a transfer for application of a “management variable” – a determination by DSCC that
a greater or lesser security level should be applied in the case of the particular inmate.
When a decrease in an inmate’s security level is indicated by the inmate’s Unit Team,
transfer of the inmate to a lower security level institution is considered pursuant to “Code 308,” a
lesser-security transfer. The inmate’s case must be referred to DSCC for transfer to a lower security
facility or for DSCC to apply a management variable.
Lesser-security transfers may also be considered with “nearer-release” transfers. Nearerrelease transfers move an inmate closer to their residence or to their ultimate release destination,
consistent with their security level. Once an inmate has been transferred within 500 miles of his
release residence, no further referrals of this type will be made. (Doc. 72-4 at 5-6.)
In February of 2015, following a periodic review, Plaintiff’s security level was lowered
from medium to low based upon a required period of good behavior. On February 19, 2015,
Plaintiff submitted a request to be transferred to a facility closer to his family in California or
Atlanta, Georgia. (See Doc. 72-4 at 26.) Plaintiff was denied a lower-security transfer on February
26, 2015, when DSCC applied a greater-security management variable that increased his security
level to medium. (Id. at 5.) In doing so, DSCC cited a disciplinary violation
Based on Plaintiff’s request for a transfer to be near family, on March 31, 2015, Johnson
submitted a nearer-release transfer request for Plaintiff to the DSCC, noting Plaintiff had requested
such a transfer. He pointed out that Plaintiff’s children live in Atlanta and that Plaintiff intended
to release to that area. (Doc. 72-4 at 28.) Maye approved the request. On April 21, 2015, DSCC
approved Plaintiff for transfer to FCI Bennettsville in South Carolina, a medium-security facility
located within 500 miles of Atlanta. Plaintiff was transferred to FCI Bennettsville on May 14,

17

2015. (Doc. 72-4 at 5-7.) Plaintiff subsequently filed a grievance because he was transferred to a
medium security facility rather than a low security one. (Id. at 24.) He contends the management
variable increase in his security level by DSCC was improper. (Doc. 132-1 at 34-35.)
3. Analysis
A. Official capacity claims. Defendants first assert that the court lacks subject matter
jurisdiction insofar as the claims are asserted against Defendants in their official capacities. (Doc.
72 at 32-33.) The Amended Complaint states that the claims are asserted against the Defendants
“in their individual and official capacities.” (Doc. 18 at 2.) With respect to official capacity claims,
Plaintiff contends the United States is a proper defendant because it would violate due process of
law for the United States to allow its employees to punish a prisoner for exercising his rights. (Doc.
132 at 47.)
Plaintiff does not controvert Defendants’ evidence that the individual Defendants were
employees of the United States and were acting in their official capacities at the time of the alleged
events. Under these facts, any official capacity claim against the Defendants is precluded. “There
is no such animal as a Bivens suit against a public official … in his or her official capacity. Instead,
any action that charges such an official with wrongdoing while operating in his or her official
capacity … operates as a claim against the United States.” Watson v. Hollingsworth, ___F. App’x
___, 2018 WL 3301445, *4 (10th Cir. 2018) (citations omitted). But “[s]overeign immunity …
shields the United States, its agencies, and its officers acting in their official capacity from suit.”
Id. (quoting Normandy Apartments, Ltd. v. U.S. Dep’t of Hous., 554 F.3d 1290, 1295 (10th Cir.
2009)). Plaintiff has identified no facts or basis for finding a waiver of sovereign immunity by the
United States. In fact, the court previously dismissed the United States from this action. (Doc. 25

18

at 26.) Accordingly, all remaining claims against the Defendants in their official capacities are
dismissed for lack of jurisdiction.
B. Exhaustion of Administrative Remedies. Defendants contend that some or all of
Counts 9, 12, 15, and 16 must be dismissed for Plaintiff’s failure to exhaust administrative
remedies. (Doc. 72 at 33) (citing the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. §
1997e(a)). In response, Plaintiff argues that administrative remedies were unavailable to him due
to actions by prison officials, such that exhaustion is not required. (Doc. 132 at 13.) Among other
things, Plaintiff argues he was “deterred from exhausting in a timely manner” by being transferred
from FCI Bennettsville to FCI Williamsburg and because officials at FCI Williamsburg
intentionally interfered “by not time-stamping” his grievances. (Id. at 15.) He alleges a number of
other conditions also kept him from exhausting remedies – including racial violence in prison,
Hurricane Harvey, “assaults … for filing grievances,” being “illegally and unlawfully confined in
segregation,” and additional prison transfers. (Id. at 17.) He contends “[t]he intentional threats,
assaults and abuse caused the administrative remedy process to become unavailable.” (Id.)
Plaintiff fails to genuinely controvert Defendant’s evidence that he failed to exhaust
administrative remedies as to portions of Counts 9, 12, 15, and 16. He contends he was prevented
from exhausting remedies by various acts of prison officials, but fails to show how any specific
act prevented him from exhausting the claims discussed above. For example, he complains about
his transfer from one South Carolina facility to another (Doc. 132 at 15), but fails to show how
that prevented him from exhausting remedies on the above claims. He also asserts that officials
retaliated or attempted to deter him form exhausting remedies, but he fails to support such
conclusory allegations with specific evidence or explain how such acts rendered him unable to
exhaust remedies. See e.g. Doc. 132 at 17-18 (Plaintiff claiming generally that “[t]he intentional

19

threats, assaults and abuse caused the administrative remedy process to become unavailable.”) For
example, he claims one official got mad at him about a grievance, used a racial epithet, and
“attempted” to handcuff him. He alleges that the act was intimidating, but Plaintiff immediately
asserted a grievance over the episode. Plaintiff’s record of exhausting administrative remedies on
a multitude of claims clearly shows the administrative process was not unavailable to him, and he
fails to cite evidence from which a reasonable factfinder could conclude that prison officials
deprived him of administrative remedies on the claims at issue. Accordingly, the portions of
Counts 9, 12, 15, and 16 discussed above will be dismissed for failure to exhaust administrative
remedies.
C. Defendant Blevins. Defendants argue that Defendant Justin Blevins is absolutely
immune from liability because he was an officer of the Public Health Service at the time alleged,
and the claims against him arise out of the performance of his medical duties. (Doc. 72 at 34-35.)
Plaintiff’s response does not appear to address this argument. (Doc. 132.)
Plaintiff’s response does not controvert Defendants’ evidence that Blevins was an
employee of the Public Health Service and that the allegedly improper medical care he rendered
was within the scope of his employment. Section 233(a) of Title 42, United States Code, precludes
a Bivens action against an employee of the Public Health Service in such circumstances. Hui v.
Castaneda, 559 U.S. 799, 806 (2010) (“Section 233(a) grants absolute immunity to PHS officers
and employees for actions arising out of the performance of medical or related functions within
the scope of their employment….”) Accordingly, the claims against Defendant Blevins will be
dismissed for lack of jurisdiction.
D. Qualified Immunity. Defendants contend that Plaintiff’s remaining claims are barred
by qualified immunity. (Doc. 72 at 36.)

20

i. Eighth Amendment claims (Counts 6, 7, and 19).
Governing standards. Counts 6 and 19 allege that Defendants Aulepp, Maye, and Phelps
violated Plaintiff’s Eighth Amendment rights by being deliberately indifferent to his medical
needs.4 Count 7 asserts an Eighth Amendment claim only against Aulepp. Plaintiff alleges that he
was denied medical care and medication when he complained of pain, that he was denied a
specialized diet prescribed by a physician, and that he was denied a pass for a bottom bunk despite
a medical condition requiring one.
The standards governing Eighth Amendment claims such as these are as follows:
A prison official’s deliberate indifference to an inmate’s serious medical needs
violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Deliberate indifference includes both an objective and a subjective component. The
objective component is satisfied if the deprivation is “sufficiently serious.” Farmer
v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). “[A] medical need is sufficiently serious ‘if it is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even
a lay person would easily recognize the necessity for a doctor’s attention.’” Hunt v.
Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Ramos v. Lamm, 639 F.2d
559, 575 (10th Cir. 1980)). The subjective component is satisfied if a prison official
“knows of and disregards an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837. The subjective component is not satisfied where the plaintiff
simply complains of an “inadvertent failure to provide adequate care, negligent
misdiagnosis, or ... difference of opinion with medical personnel regarding
diagnosis or treatment.” Clemmons v. Bohannon, 956 F.2d 1523, 1529 (10th Cir.
1992); see also Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (noting that,
“absent an extraordinary degree of neglect,” the subjective component is not
satisfied where a doctor exercises his or her “considered medical judgment”).
Jensen v. Garden. No. 18-4048, 2018 WL 5099601, at *3 (10th Cir. Oct. 19, 2018).
Defendants assert the defense of qualified immunity, arguing Plaintiff either fails to state
a valid claim under the Eighth Amendment or fails to show that Defendants’ conduct violated

4

Defendant Blevins was also named in Count 6 but, as indicated above, he is entitled to immunity under 42 U.S.C. §
233(a). See Pp.7-8.

21

clearly established law. (Doc. 72 at 37-39.) In Jensen, the Tenth Circuit summarized the qualified
immunity analysis as follows:
“When a defendant asserts qualified immunity at summary judgment, the burden
shifts to the plaintiff to show that: (1) the defendant violated a constitutional right
and (2) the constitutional right was clearly established.” [citing Thomson v. Salt
Lake Cty., 584 F.3d 1304, 1311 (10th Cir. 2009)] (quoting Martinez v. Beggs, 563
F.3d 1082, 1088 (10th Cir. 2009)). “In determining whether the plaintiff has met
[his] burden ... , we will construe the facts in the light most favorable to the plaintiff
....” Id. A plaintiff’s version of the facts, however, “must find support in the
record.” Id. “[M]ore specifically, ‘[a]s with any motion for summary judgment,
[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts[.]’” Id. (second, third, and fourth alterations in
original) (quoting York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.
2008)).
Jensen, 2018 WL 5099601, *2.
Analysis of qualified immunity on Eighth Amendment claims. The court first addresses
Plaintiff’s claim that it was cruel and unusual punishment for Aulepp to discontinue the order for
a special diet. The failure to provide a medically necessary diet can violate the Eighth Amendment.
Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Ayers v. Uphoff, 1 F. App’x 851, 855,
2001 WL 15543, *2 (10th Cir. 2001). But Plaintiff fails to show it was clearly established that
discontinuing an order for six small meals under the circumstances known to Aulepp was a
violation of the Eighth Amendment.
“[A] defendant cannot be said to have violated a clearly established right unless the right’s
contours were sufficiently definite that any reasonable official in the defendant’s shoes would have
understood that he was violating it.” Lee v. Tucker, 904 F.3d 1145 (10th Cir. 2018) (quoting
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)). It is uncontroverted that after discontinuation
of the special diet order, Plaintiff was still able to self-select bland, no-meat options from the
regular menu at USP Leavenworth. As such, the only question is whether it violated his Eighth
22

Amendment rights to eliminate the three daily snacks he received in addition to regular meals. The
uncontroverted facts show Plaintiff had a prior history of hoarding snacks. Plaintiff challenges the
additional allegation that he gave away a snack to another inmate at USP Leavenworth, but there
is no genuine dispute that a food service worker reported to Health Services that he had done so,
and that Aulepp’s decision to discontinue Plaintiff’s diet order was based in part upon that report.
Nor is there any dispute that Plaintiff continued to purchase spicy foods from the commissary that
were not in keeping with his dietary recommendations and that he refused to purchase and use
antacid medications as recommended by the medical staff.
BOP guidelines stated that a medical provider could terminate a supplemental feeding
order if inmates were found to be providing the snacks to other inmates, if they were not consuming
them, or if they were stockpiling them. The guidelines further provided that dietary supplements
should not be authorized if there is a documented history of patient noncompliance. (Doc. 75 at
128.) In her declaration, Aulepp stated that she terminated Plaintiff’s special diet based on his
noncompliance. She also noted that despite discontinuance of the snacks, Plaintiff gained about 30
pounds while he was at Leavenworth, and she gave her opinion that Plaintiff received appropriate
treatment for his medical conditions, including abdominal pain, during his incarceration at USP
Leavenworth. (Id. at 14.) Aulepp’s declaration does not specifically address the health risks or
consequences to Plaintiff from discontinuance of the snack order. At the same time, Plaintiff cites
no competent evidence of the health risk or consequences of discontinuing the snacks. Although
he attributes his abdominal pain to the lack of snacks, the record shows that he suffered from
abdominal pain both when he received snacks and when he did not.
Plaintiff cites no authority holding that the Eighth Amendment prohibited discontinuing an
inmate’s supplemental meals in similar circumstances. For the law to be clearly established, the

23

contours of the constitutional right at issue must be sufficiently clear that a reasonable official
would understand that what she is doing violates that right. Perry v. Durborow, 892 F.3d 1116,
1123 (10th Cir. 2018) (citations omitted.) And the contours of a right are generally only sufficiently
clear if a plaintiff: (1) identifies an on-point Supreme Court or published Tenth Circuit decision,
or (2) shows the clearly established weight of authority from other courts has found the law to be
as the plaintiff maintains. Id. Plaintiff identifies no such authority. On the contrary, some case law
from the period indicates there were circumstances in which discontinuing a special or medical
diet for noncompliance issues did not violate the Eighth Amendment. See Easley v. Dep’t of Corr.,
2013 WL 1280167, *12 (S.D. Fla. July 26, 2013) (no deliberate indifference despite
discontinuance of special diet for diabetic inmate); Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir.
2011) (no deliberate indifference where therapeutic diet temporarily revoked based on report of
inmate throwing away food and missing meals).5 The circumstances confronting Aulepp included
Plaintiff’s history of hoarding snacks, his failure to comply with dietary instructions, his failure to
procure and take antacid medication, and a report that he had given away a snack item.
Additionally, Aulepp was aware of and acted in reliance on a BOP regulation that appeared to
authorize discontinuation of the special diet order in such circumstances. Plaintiff cites no case
law showing that discontinuing a special diet order in such circumstances was a clear violation of
the Eighth Amendment. Aulepp is accordingly immune from damages under the doctrine of
qualified immunity. See White v. Pauly, 137 S. Ct. 548, 551 (2017) (for a right to be clearly
established, existing precedent must have placed the statutory or constitutional question beyond
debate). The other named Defendants are entitled to summary judgment as well, as Plaintiff fails
to show that they violated clearly established law in not preventing or altering Aulepp’s

5

The Eighth Amendment also requires a prison to provide “adequate” food to inmates. Farmer v. Brennan, 511 U.S.
825, 832 (1994). Plaintiff cites no evidence that he was not provided adequate nutrition at all times.

24

discontinuation of the special diet order. See Arocho v. Nafziger, 367 F. App’x 942, 956 (10th Cir.
2010) (warden’s reasonable reliance on judgment of prison medical staff negates liability.)
Plaintiff next contends his Eighth Amendment rights were violated by Defendants’ refusal
to provide him omeprazole free of charge. The uncontroverted facts show that Plaintiff was told
to purchase this medication from the commissary, but he refused to do so because he believed
Defendants were required to provide it to him and he considered it a financial burden. Plaintiff
fails to cite any evidence, however, that he did not have enough money to purchase the medication.
Defendants are entitled to qualified immunity on this point as well, as Plaintiff cites nothing to
show that Defendants’ conduct violated a clearly established Eighth Amendment right. Case law
has long held that the Eighth Amendment is not violated by requiring a financially-able inmate to
pay for medication. See e.g., Tijerina v. Patterson, 507 F. App’x 807, 810 (10th Cir. 2013)
(“Although a state must provide inmates with basic medical care, … we are not aware of any
authority suggesting such care must be provided free of charge with respect to prisoners who have
the ability to pay.”); Roberson v. Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999) (policy requiring
inmates to pay for their medications if they can afford to do so did not violate constitution); Andy
Li v. Contra Costa Cty., No. 16-CV-02861-EMC, 2017 WL 4861487, at *14 (N.D. Cal. Oct. 24,
2017) (“It does not offend the Constitution for prison and jail officials to require inmates to pay
for some of the costs of their medical care, so long as indigent inmates are not denied medical care
due to their indigence.”). These cases do not specifically address whether the Eighth Amendment
requires prison officials to furnish an inmate with his prescribed medications first, with the
understanding that his financial account can be debited, or whether the Eighth Amendment allows
prison officials to refuse to issue medication on the grounds that the inmate has the ability to
purchase it at a commissary. Cf. McCall v. Johnson Cty. Sherriff’s Dep’t., 71 F. App’x 30, 31 (10th

25

Cir. 2003) (it is clearly constitutionally acceptable to charge inmates a small fee for health care
where indigent inmates are guaranteed service regardless of ability to pay). Even assuming the
Eighth Amendment might prohibit the latter option of not issuing the medication (a conclusion as
to which the court offers no opinion), Plaintiff fails to show that such a right was clearly established
when Aulepp or others refused to provide him omeprazole. See e.g., Lanza v. Moclock, No. 17-cv1318, 2018 WL 3060030, *11 (M.D. Pa. June 20, 2018) (inmate’s challenge to having to purchase
pain reliever at commissary did not support Eighth Amendment claim); Knight v. Woosley, No.
18-CV-P34-JHM, 2018 WL 1512985, *4 (W.D. Ky. Mar. 26, 2018) (Eighth Amendment not
violated by requiring inmate with the ability to do so to purchase OTC medications from
commissary); Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir. 2012) (inmate had sufficient funds in
his trust fund account but opted to refuse treatment rather than part with his money; the delay in
receiving care was of his own making). Defendants are accordingly entitled to summary judgment
on this claim as well.
Plaintiff’s third claim under the Eighth Amendment is based on the denial of a bottom
bunk pass. Plaintiff contends that getting in and out of an upper bunk caused him pain due to a
prior gunshot wound and arthritis. PA Swann, who ordered x-rays of Plaintiff’s ankle and knee,
concluded from his examination that Plaintiff’s ankle scar was well healed and that he had no
limited use of his right lower leg. He did not issue a pass. Dr. Clark denied Plaintiff’s request for
a pass on December 10, 2013, after examining him and noting no vascular, musculoskeletal, or
neurologic problems. (Doc. 75 at 46.) Neither Swann nor Clark is named as a defendant in this
action. Clark concluded that Plaintiff had some traumatic arthritis but it was not present to a degree
that accommodations were indicated. Even assuming such a medical judgment was erroneous, it
will not support an Eighth Amendment claim. The deliberate indifference necessary to amount to

26

cruel and unusual punishment is not satisfied by evidence of a merely negligent misdiagnosis or a
difference of opinion with medical personnel concerning a diagnosis or treatment. Jensen v.
Garden, ___F. App’x ___, 2018 WL 5099601, *3 (10th Cir. Oct. 19, 2018). The record shows that
Swann and Clark examined Plaintiff and ordered diagnostic tests, but they ultimately exercised
their medical judgment and concluded that Plaintiff’s condition was not severe enough to warrant
a bunk pass. “[T]he subjective component [of an Eighth Amendment claim] is not satisfied, absent
an extraordinary degree of neglect, where a doctor merely exercises his considered medical
judgment.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). Plaintiff fails to cite evidence that
these medical judgments – as well as Aulepp’s asserted failure as the medical director to alter or
change their findings - were not within the bounds of reason or that they otherwise indicated
deliberate indifference to Plaintiff’s health. Plaintiff thus fails to show that Defendants’ action
concerning denial of a lower bunk pass violated clearly established law.
Insofar as Counts 6, 7, and 19 include claims and/or Defendants in addition to those
discussed above (see Docs. 18, 19), the court finds the Defendants are entitled to summary
judgment on those allegations as well. The record shows that Plaintiff sought treatment for various
complaints and that the medical staff at USP Leavenworth responded by taking steps to provide
appropriate medical care. They exercised medical judgment with respect to Plaintiff’s complaints
and provided diagnostic tests, counseling, medication, and emergency services. Defendants Maye
and Phelps, the Warden and Associate Warden, reasonably relied on the judgment of the medical
staff concerning the appropriate level of medical care for Plaintiff. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.”) No evidence has been cited to support

27

a claim that any of the Defendants violated Plaintiff’s clearly established Eighth Amendment
rights.
ii. First Amendment/ Retaliation Claims (Counts 8, 9, and 12-16)
These counts are based in whole or in part on the First Amendment. They allege that
various Defendants retaliated against Plaintiff for filing grievances by bringing disciplinary
charges against him, by “fabricat[ing] a story to have his medical… diet discontinued,” by denying
his grievances, by denying him access to the courts, and by transferring him to another institution.
The court concludes these allegations fail to state a valid claim for damages. The Supreme
Court has “declined to extend Bivens to a claim sounding in the First Amendment.” Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009). See also Reichle v. Howards, 566 U.S. 658, n.4 (2012) (“We have
never held that Bivens extends to First Amendment claims.”) In its most recent discussion of
Bivens, the Court noted it had recognized a Bivens remedy in only three circumstances: for
improper searches under the Fourth Amendment, for gender discrimination in violation of Fifth
Amendment, and for cruel and unusual punishment in violation of the Eighth Amendment. Ziglar
v. Abbasi, 137 S. Ct. 1843, 1854 (2017). Extending Bivens beyond these circumstances “is now a
‘disfavored’ judicial activity,” and should not be made available if there are “special factors
counseling hesitation in the absence of affirmative action by Congress.” Ziglar, 137 S. Ct. at 1857
(citations omitted).
There are substantial factors weighing against extension of a Bivens remedy to federal
prisoners alleging First Amendment violations of the type claimed by Plaintiff. The Supreme Court
has already recognized a Bivens remedy under the Eighth Amendment, which protects inmates
from cruel and unusual punishment (including deliberate indifference to an inmate’s health and
safety). Moreover, Congress has waived immunity for some (but not all) tortious acts under the

28

FTCA, and has also authorized the BOP to establish an extensive administrative program for
resolution of inmate grievances. Inmates thus have extensive procedural mechanisms and remedies
available for legitimate grievances. See Bush v. Lucas, 462 U.S. 367, 368 (1983) (inappropriate
to recognize Bivens remedy for federal employee claiming First Amendment retaliation because
employees have meaningful remedies); Clemmons v. United States, No. 16-cv-1305, 2018 WL
4959093, *4 (D. S.C. Oct. 15, 2018) (adoption of PLRA provides inmate remedies and indicates
Congress did not intend damage remedy; court declines to find Bivens cause of action for First
Amendment claim.) Finally, recognizing a First Amendment damages remedy in this context
could result in significant judicial interference with administration of prisons. This is especially
true where disciplinary, transfer, and grievance issues are concerned. Turner v. Safley, 482 U.S.
78, 84–85 (1987) (“Running a prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government.”) Based on these factors, the
court concludes that no Bivens remedy is available to Plaintiff on his claims against Defendants
for violation of, or retaliation under, the First Amendment. See Ealom v. United States, No. 183045-SAC, 2018 WL 1899135, *4 (D. Kan. Apr. 20, 2018) (alleged First Amendment retaliation
fails to state a claim under Bivens); Tatum v. Ladd-Smith, No. 3:18-CV-01103 (VAB), 2018 WL
5299710, at *1 (D. Conn. Oct. 25, 2018) (declining to recognize Bivens remedy on prisoner’s claim
of First Amendment interference with access to courts); Thomas v. Matevousian, No. 17-cv-01592AWI-PC, 2018 WL 5099763, * 7 (E.D. Cal. Oct. 18, 2018) (recommending against an implied
Bivens cause of action for First Amendment retaliation or First Amendment denial of access to
courts); Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018) (no Bivens remedy on
prisoner’s First Amendment claim for denial of access to courts); K.B. v. Perez, 664 F. App’x 756,

29

759 (10th Cir. 2016) (declining to recognize Bivens remedy on First Amendment claim by family
of prisoner; noting prisoner could pursue remedy under Administrative Remedy Program);
Vanderklok v. United States, 868 F.3d 189, 209 (3d Cir. 2017) (declining to recognize Bivens
remedy on First Amendment retaliation claim against Transportation Security Administration
agent).
iii. Count 13
Count 13 alleges that Defendant Crews, a Disciplinary Hearing Officer, violated Plaintiff’s
Fifth Amendment rights when reconsidering disciplinary charges on Incident Report No. 2490024.
Plaintiff alleges that Crews imposed a greater disciplinary sanction in retaliation for his “filings
against her supervisory, co-workers and friends at USP Leavenworth.” (Doc. 19 at 28.)
The Fifth Amendment’s guarantee of due process in connection with a deprivation of
liberty or property can be implicated by actions of prison officials against federal prisoners.
Prisoners may have a protected liberty interest in freedom from actions that impose an “atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Wilkerson v. Austin, 545 U.S. 209, 221 (2005) (citation omitted.) Certain procedural protections
may also be required for actions involving the loss of good time credits or that otherwise extend a
prisoner’s sentence. See Wolff v. McDonnell, 418 U.S. 539 (1974).
For purposes of this opinion the court assumes, without deciding, that a Bivens remedy
might be available for a deprivation of a liberty or property interest in violation of the due process
clause of the Fifth Amendment. Cf. Davis v. Passman, 442 U.S. 228 (1979) (recognizing Bivens
remedy for Fifth Amendment gender discrimination claim.)
The court concludes Defendant Crews is nevertheless entitled to qualified immunity on
this claim. As an initial matter, Plaintiff cites no competent evidence that Crews in fact retaliated

30

against him because he filed grievances. Even accepting as true Plaintiff’s contested allegation that
Crews commented at the hearing that Plaintiff “liked to write up staff,” the circumstances do not
give rise to a reasonable inference of retaliation.6 Crews acted on the Regional Director’s
instructions mandating that a Code 203 violation be considered at the hearing and that the sanctions
to be imposed needed to be “consistent with policy.” The latter comment was ambiguous, and
Crews could have reasonably understood it to mean the Director was instructing that a sanction
consistent with a 200-level charge, which mandated loss of good time, should be imposed. Even
though Crews’s imposition of an increased sanction was later determined to be contrary to policy,
there is no evidence reasonably suggesting it was a product of retaliation. Moreover, the error was
remedied on appeal, and Plaintiff has failed to cite any evidence that he was deprived of a protected
liberty interest as a result of Crews’s actions. Plaintiff has thus failed to show that Crews’s actions
violated any Fifth Amendment right. In addition, Plaintiff fails to show that Crews’s actions
violated a Fifth Amendment right that was clearly established at the time. See e.g., Tatum v.
Shoemaker, No. 10-cv-00296, 2012 WL 899633, *12 (W.D. Va. Mar. 16, 2012) (“Even assuming
… that [defendant] retaliated against plaintiff for filing a grievance, such an act would not have
been a violation of clearly established [Fifth Amendment] law because … various courts have
reached different conclusions on the issue.”) Crews is accordingly entitled to summary judgment.
iv. Count 14
Count 14 alleges that Defendant Herbig violated Plaintiff’s Fifth Amendment rights by
approving of an unlawful seizure of Plaintiff’s personal property by Defendant Witt on January
24, 2014. Plaintiff claims that Witt seized a magazine, newspaper, and religious medallion from

6

Plaintiff’s filing of grievances had some relevance at the disciplinary hearing. As a defense, Plaintiff asserted that he
had previously filed a grievance against the guard who ordered him to “cuff up,” and that he feared for his safety as a
result, such that he refused to comply and requested that another officer be brought to the library to cuff him. (Doc.
72-5 at 9.)

31

him in January and February of 2014, in violation of due process, and that Herbig “implicitly
authorized, approved and knowingly acquiesced in the unlawful seizure … when it was brought to
his attention.” (Doc. 19 at 19.) Herbig also allegedly “falsified information” concerning the seizure
and failed to follow an institutional policy requiring consultation with the chaplain concerning
seizure of religious items. (Id.)
The court concludes Herbig is entitled to qualified immunity on this claim. As an initial
matter, Plaintiff fails to cite evidence showing he was deprived of property without due process of
law. Even an intentional deprivation of property does not constitute a violation of procedural due
process if an adequate post-deprivation remedy is available. See Hudson v. Palmer, 468 U.S. 517,
533 (1984). Plaintiff fails to genuinely controvert Defendants’ evidence that USP Leavenworth
had an adequate administrative remedy available to him to address the alleged deprivation of his
property. Plaintiff makes no showing that he invoked or attempted to invoke these procedures.
Moreover, Plaintiff fails to specify how Herbig personally participated in the alleged violation or
“falsified information” that caused a deprivation of property without due process. (See Doc. 1321 at 21 (Plaintiff asserting that “It was brought to my attention that … Herbig intentionally lied
and falsely [interfered] with the investigation….”)). Finally, Plaintiff fails to show that Herbig’s
actions violated clearly established Fifth Amendment law. For all of these reasons, Herbig is
entitled to summary judgment.
v. Count 15
Count 15 alleges that Defendant Leonhard violated Plaintiff’s Fifth Amendment rights by
threatening him and thereby “causing a chilling effect” on Plaintiff’s exercise of his rights. For
reasons previously stated, the court finds this claim is partially barred by Plaintiff’s failure to
exhaust remedies concerning Leonhard’s alleged use of a racial slur. To the extent it is not barred,

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Leonhard is entitled to the defense of qualified immunity. Plaintiff alleges that Leonhard
“attempted” to handcuff him and threatened to lock him up, but he cites no evidence that
Leonhard’s actions actually deprived Plaintiff of a protected liberty interest, or that his actions
violated clearly establish Fifth Amendment law.
vi. Count 16
Count 16 alleges that Defendants Johnson and Maye violated Plaintiff’s Fifth Amendment
rights by transferring him from USP Leavenworth in retaliation for filing grievances against Maye
and others. (Doc. 18 at 11; Doc. 19 at 36.)
Johnson and Maye are entitled to summary judgment on this claim for multiple reasons.
First, Plaintiff fails to cite evidence showing he exhausted administrative remedies on claims that
Johnson and Maye retaliated against him by transferring him out of USP Leavenworth or by
sabotaging an attempted transfer to a lesser-security institution. Additionally, Plaintiff cites no
evidence to reasonably support an inference that these Defendants brought about his transfer to a
medium-security facility in retaliation for Plaintiff’s filing of grievances. The uncontroverted facts
show that Plaintiff requested a nearer-release transfer and that Johnson and Maye acted to further
that request. The uncontroverted facts also show that DSCC - not Johnson or Maye – applied the
management variable and made the ultimate transfer decision. Plaintiff sets forth a complicated
theory of how Johnson and/or Maye destroyed his chances for a transfer to a lesser-security transfer
to California, but he ultimately cites only conclusory statements in support of his retaliation theory.
See Doc. 132-1 at 34 (“I was unjustly denied a near home transfer by (DSCC), by directive of …
Johnson and/or BOP.”) Plaintiff cites no competent evidence to show that Defendants’ conduct
violated his Fifth Amendment rights or that the law protecting such a right was clearly established
at the time. Defendants are thus entitled to qualified immunity on the claim.

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vii. Additional Claims
Plaintiff’s filings contain a maze of allegations and claims. The court has reviewed the
filings but finds they provide no basis for relief against any of the Defendants. To the extent any
of the allegations were not specifically discussed in this order or in prior orders, the court concludes
that the claims are without merit and that they must be dismissed.
IT IS THEREFORE ORDERED this 6th day of November, 2018, that Plaintiff’s Motion
for Extension of Time (Doc. 127), Motion to Appoint Counsel (Doc. 128), and Motion for
Continuance (Doc. 130) are DENIED;
Plaintiff’s Motion to Enlarge Page Limits (Doc. 131) and Motion for Leave to Supplement
(Doc. 133) are GRANTED IN PART to the extent stated in this order; and
Defendants’ Joint Motion to Dismiss (Doc. 71) is GRANTED. The clerk is directed to enter
a judgment of dismissal in favor of all named Defendants, as to all of Plaintiff’s claims.

___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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