Vega, Jr v. United States of America et al

Filing 91

ORDER granting dft Pioneer Human Service's et al 52 Motion for Summary Judgment; granting in part and denying in part dft USA's 63 Motion for Summary Judgment by Judge Ricardo S Martinez.(RS)cc Vega

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JUAN D. VEGA, JR.,
Plaintiff,

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CASE NO. C11-632-RSM
ORDER ON MOTIONS

v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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I. INTRODUCTION

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Plaintiff Juan D. Vega, Jr., proceeding pro se, filed this action against the United States

18 of America; Pioneer Human Services (“Pioneer”) - a private corporation that owns and manages
19 a residential re-entry center in Seattle, Washington called the Pioneer Fellowship House
20 (“PFH”); and several individuals employed by each of these defendants. Plaintiff asserts fifteen
21 causes of action arising from his removal from the re-entry house and placement back in federal
22 detention. Before the Court are Pioneer’s motion for summary judgment (Dkt. # 52) and federal
23 Defendants’ motion for summary judgment (Dkt. # 63). For the reasons set forth below,
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ORDER ON MOTIONS - 1

1 Pioneer’s motion (Dkt. # 52) is GRANTED and federal Defendants’ motion (Dkt. # 63) is
2 GRANTED in part and DENIED in part.
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II. BACKGROUND

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The parties are familiar with the facts of the case which are not repeated here. On

6 December 2, 2011, the Court dismissed several of Plaintiff’s claims under Fed. R. Civ. P.
7 12(b)(6) and denied dismissal as to Plaintiff’s constitutional, negligence, and discrimination
8 claims. Dkt. # 34. In January, Defendants filed a joint motion to stay discovery. Dkt. # 43.
9 Defendants offered that they would each file a motion to dismiss in the near future asking the
10 Court to dismiss all Bivens claims on the grounds of qualified immunity. Id. The Court granted
11 Defendants’ motion and found that because Defendants’ motions to dismiss would be based
12 solely upon Plaintiff’s amended complaint, discovery was unnecessary. Dkt. # 46.
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In April and May, Defendants decided to take a different course of action and filed

14 motions for summary judgment raising a variety of legal issues and relying upon documentary
15 evidence, including Plaintiff’s inmate file. See Dkt. # # 52 & 63. In the meantime, Plaintiff
16 moved for discovery. See Dkt. # 51. On June 28, 2012, the Court denied Plaintiff’s motion for
17 leave to conduct discovery and his motion for leave to file a second amended complaint. See Dkt.
18 # 80. Consistent with the Defendants’ previous representations to the Court, the Court construes
19 Defendants’ motions for summary judgment as motions for judgment on the pleadings under
20 Fed. R. Civ. P. 12(c). In deciding Defendants’ motions, the Court will rely on the facts as
21 pleaded by Plaintiff in his amended complaint. Id.
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ORDER ON MOTIONS - 2

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III. DISCUSSION

2 A. Standard
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A Rule 12(c) motion on the pleadings is subject to the same standard as a Rule 12(b)(6)

4 motion. Fed. R. Civ. P. 12(b)(6); 12(c); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192
5 (9th Cir.1989); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). In considering
6 a Rule 12(b)(6) motion to dismiss, the Court must determine whether the plaintiff has alleged
7 sufficient facts to state a claim for relief which is “plausible on its face.” Ashcroft v. Iqbal, 556
8 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
9 claim is facially plausible if the plaintiff has pled “factual content that allows the court to draw
10 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
11 Twombly, 550 U.S. at 556). In making this assessment, the Court accepts all facts alleged in the
12 complaint as true, and makes all inferences in the light most favorable to the non-moving party.
13 Baker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations
14 omitted); Fajardo, 179 F.3d at 699. The Court is not, however, bound to accept the plaintiff’s
15 legal conclusions. Iqbal, 556 U.S. at 678. While detailed factual allegations are not necessary,
16 the plaintiff must provide more than “labels and conclusions” or a “formulaic recitation of the
17 elements of a cause of action.” Twombly, 550 U.S. at 555.
18 B. Plaintiff’s Constitutional Claims
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Plaintiff contends that the individual federal Defendants conspired with Pioneer

20 employees to draft a false incident report and unlawfully transfer him from PFH to FDC SeaTac
21 because he was a litigious black male. Plaintiff ultimately alleges that the Defendants violated
22 his First, Fourth, Fifth and Eight Amendments rights. Plaintiff’s Constitutional claims are best
23 interpreted as claims arising under Bivens v. Six Unknown Named Agents of Fed. Bureau of
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ORDER ON MOTIONS - 3

1 Narcotics, 403 U.S. 388 (1971) because all of the Defendants are either federal personnel or staff
2 of a re-entry center under contract with the federal government. Bivens “recognized for the first
3 time an implied private action for damages against federal officers alleged to have violated a
4 citizen's constitutional rights.” Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001).
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Bivens provides a remedy against individual federal actors for constitutional violations.

6 But before turning to the constitutional violations at issue, the Court must determine whether the
7 plaintiff states a colorable Bivens claim against the Pioneer Defendants who are not federal
8 agents. The Pioneer Defendants argue that a Bivens claim cannot be maintained against them, as
9 they are employees of a private re-entry house. The Court initially denied Pioneer
10 Defendants’12(b)(6) motion because under Pollard v. Geo Group, Inc., 607 F.3d 583, 588 (9th
11 Cir. 2010), employees of private entities operating under color of federal law may be liable under
12 Bivens. Dkt. # 34, p. 12. Pioneer Defendants challenge the Court’s finding in light of new
13 Supreme Court precedent. Earlier this year, the Supreme Court reversed the Ninth Circuit Court
14 of Appeal’s decision in Pollard and held that there is no implied Bivens remedy for a federal
15 prisoner seeking damages from personnel employed by a privately owned firm. Minneci v.
16 Pollard, 132 S. Ct. 617, 625-626 (2012). Because Minneci clarified that private employees acting
17 under color of federal law cannot be held liable under Bivens, Plaintiff’s Bivens claims against
18 the Pioneer Defendants are no longer colorable. Therefore, the Court grants the Pioneer
19 Defendants’ motion as to the Bivens claims.
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The individual federal Defendants named in this action seek to dismiss Plaintiff’s Bivens

21 claims on the basis of qualified immunity, which shields government officials “from liability for
22 civil damages insofar as their conduct does not violate clearly established statutory or
23 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
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ORDER ON MOTIONS - 4

1 457 U.S. 800, 818 (1982). Qualified immunity is both a defense to liability and an “entitlement
2 not to stand trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
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The Supreme Court established a two-step inquiry for evaluating qualified immunity

4 claims. Saucier v. Katz, 533 U.S. 194 (2001). The Court must determine (1) whether the facts
5 alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so,
6 whether that right was “clearly established” at the time of the defendant's alleged misconduct. Id.
7 at 201. Courts, however, may exercise discretion when deciding which of the two prongs to
8 address first in light of the circumstances of each particular case. Pearson v. Callahan, 555 U.S.
9 223, 236 (2009). The Court will first determine whether Plaintiff has claimed a deprivation of a
10 constitutional right. If the Court finds that Plaintiff has alleged a denial of a constitutional right,
11 the Court will then determine whether the right was “clearly established” at the time of the
12 alleged misconduct. Each constitutional claim is addressed below.
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Fifth Amendment Due Process Claim
The Due Process Clause of the Fifth Amendment provides individuals with two types of

15 constitutional protection against the government: substantive and procedural due process. United
16 States v. Salerno, 481 U.S. 739, 746 (1987). Substantive due process prevents deprivations of
17 protected rights, while “[p]rocedural due process imposes constraints on governmental decisions
18 which deprive individuals of ‘liberty’ or ‘property’ interests”. Mathews v. Eldridge, 424 U.S.
19 319, 332 (1976). In order to decide whether the individual federal Defendants violated
20 Plaintiff’s substantive due process rights, the Court must first determine whether Plaintiff was
21 deprived of life, liberty, or property. Here, Plaintiff claims a deprivation of his liberty interests
22 because he was transferred back to FDC against his will. The Due Process Clause, however, does
23 not protect convicted prisoners against transfer from one institution to another. Wilkinson v.
24 Austin, 545 U.S. 209, 221-222 (2005) (inmates have no liberty interest in avoiding transfer to
ORDER ON MOTIONS - 5

1 more adverse conditions of confinement). As this Court previously stated, “Plaintiff did not have
2 a ‘lawful choice’ to remain in the PFH rather than at a federal detention center.” Dkt. # 34, p.18.
3 Apart from constitutionally derived liberty rights, statutes and regulations can also create a
4 protected liberty interest. Sandin v. Conner, 515 U.S. 472, 487 (1995). Here, the federal law
5 regulating imprisonment of federal inmates states, “[t]he Bureau of Prisons shall designate the
6 place of the prisoner's imprisonment.” 18 U.S.C. § 3621(b). The language does not place any
7 limitations on BOP’s discretion in transferring inmates from one facility to another and therefore
8 creates no liberty interest entitled to protection under the Due Process Clause. Consequently,
9 neither the law on point nor the Due Process Clause itself affords Plaintiff a protected liberty
10 interest in his place of imprisonment. Since Plaintiff does not have a constitutionally protected
11 interest in his place of confinement, he could not have suffered a violation of his substantive due
12 process rights by being transferred to FDC SeaTac. Therefore, the Court grants the government’s
13 motion as to the substantive due process claim.
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Despite not having a cognizable liberty interest in the place of confinement, an inmate’s

15 procedural due process rights can be violated when a prison disciplinary hearing board convicts
16 an inmate with no evidence. Burnsworth v. Gunderson, 179 F.3d 771, 775 (9th Cir. 1999).
17 Generally, “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full
18 panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418
19 U.S. 539, 556 (1974). Nonetheless, “the minimum requirements of procedural due process”
20 require that the findings of the prison disciplinary board [be] supported by some evidence in the
21 record. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
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Plaintiff claims that the disciplinary hearing held on October 23, 2008 violated his rights

23 to a timely hearing set forth on the “FBOP’s Disciplinary Process pursuant to 28 C.F.R. §541.11
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ORDER ON MOTIONS - 6

1 and §541.15(b)”. Dkt. 24, ¶ ¶ 71, 74. Since the Court could not trace the aforementioned C.F.R.
2 cited by Plaintiff, it will construe Plaintiff’s argument under 28 C.F.R. §541.7(c) and 28 C.F.R.
3 §541.8(c) (“Unit Discipline Committee (UDC) review of the incident report” and “Discipline
4 Hearing Officer (DHO) hearing” respectively).
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Below is a timeline of relevant facts related to Plaintiff’s procedural due process claim:
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October 16, 2008: Pioneer Defendants created the allegedly false incident report;
October 17, 2008: Plaintiff was transferred to the FDC SeaTac;
October 21, 2008: Pioneer staff conducted an investigation and recommended
termination from PFH;
October 23, 2008: BOP hearing was discontinued for lack of evidence;
January 15, 2009: Plaintiff was transferred to another reentry center in Tacoma;
June 5, 2009, Plaintiff was released from BOP custody before his projected
release date of July 13, 2009.

Dkt. #24. Ordinarily, the Unit Discipline Committee (UDC) will review the incident report
“within five work days after it is issued, not counting the day it was issued, weekends, and
holidays.” 28 C.F.R. §541.7(c). Here, the incident report was created on a Thursday (October 16,
2008) and the hearing was conducted on the following Thursday (October 23, 2008). Thus, the
hearing occurred on the fifth work day after the incident report was created in compliance with
the suggested time frame.
Plaintiff also contends that individual federal Defendants relied on Pioneer’s false
incident report in deciding to transfer him back to FDC SeaTac. The government, in turn,
concedes that the BOP Discipline Hearing Officer, Randy McWilliams, did not certify the
incident report because of a lack of evidentiary support, and expunged the report on November
18, 2008. Dkt. # 63, p.6. As a result of expunging the false incident report, Plaintiff was never
convicted of a disciplinary violation. Furthermore, even if Plaintiff was convicted of a
disciplinary violation, the subsequent expungement of such conviction would remedy any due
process violation leading to the conviction. Burnsworth, 179 F.3d at 771.

ORDER ON MOTIONS - 7

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More troubling, however, is the fact that Plaintiff was transferred to FDC SeaTac on

2 October 17, 2008, almost a week before the hearing took place on October 23, 2008. It is true
3 that BOP has the discretion to “designate the place of the prisoner’s imprisonment,” which gives
4 BOP the right to transfer, not to punish, inmates without a hearing. 18 U.S.C. § 3621(b).
5 “[R]emov[al] from program and/or group activity” is listed on BOP’s regulation as an “available
6 sanction” for low, moderate and high severity level prohibited acts to be enforced after a hearing
7 by the Disciplinary Committee. 28 C.F.R. § 541.3; § 541.7(f) (if the UDC finds that an inmate
8 “committed a prohibited act(s), the UDC can impose any of the available sanctions…”).
9 Therefore, it appears that the Bureau of Prisons does not have the right to punish inmates,
10 including termination of a program, prior to a disciplinary hearing.
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In this case, if BOP transferred Plaintiff as a punishment for committing a prohibited act,

12 it should have held Plaintiff’s disciplinary hearing prior to his transfer as required under 28
13 C.F.R. § 541.7 in order to ascertain whether he actually committed a “prohibited act” under 28
14 C.F.R. § 541.3. Whether Plaintiff’s transfer was punitive or an exercise of BOP’s discretionary
15 power is a factual issue that cannot be dismissed at the pleading stage.
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Considering the discrepancies between the statute (giving BOP full discretion in

17 designating place of imprisonment) and the regulation (describing removal from a program as a
18 form of punishment to be imposed after a hearing); the nebulous reasoning behind Plaintiff’s
19 transfer; and the issues of material fact surrounding the hearings, the Court finds that Plaintiff
20 alleged sufficient facts to form a cognizable procedural due process claim against the federal
21 Defendants.
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Since Plaintiff has established a colorable claim against the individual federal Defendants

23 for violation of his due process rights, the Court must now decide whether such right was
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ORDER ON MOTIONS - 8

1 “clearly established” at the time Plaintiff was transferred to FDC. This inquiry turns on the
2 “‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were
3 clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 638 (1987)
4 (quoting Harlow, 457 U.S. at 818-819). The objective question in this case is whether the
5 individual federal Defendants could have believed Plaintiff’s transfer prior to a disciplinary
6 hearing to be lawful in light of clearly established law and the information possessed. Id. at 641.
7 While the right to due process of law is clearly established by the Due Process Clause, the test of
8 “clearly established law,” however, must be more specific than that in order to bear some
9 relationship to the “objective legal reasonableness” of the action in question. Id. at 639. Here, a
10 reasonable federal officer would have known that Plaintiff had a right to a disciplinary hearing
11 under 28 C.F.R. § 541.7 prior to being sanctioned. Therefore, the Court finds that Plaintiff had a
12 “clearly established” right to a hearing prior to being sanctioned. Because the unlawfulness act of
13 terminating Plaintiff from the program as a punishment for violating a condition of the
14 community program prior to a disciplinary hearing is clearly established, individual federal
15 Defendants are not entitled to qualified immunity. Consequently, the Court denies the
16 government’s motion as to the procedural due process claim. In addition, the Court grants
17 Plaintiff leave to conduct discovery as to this issue.
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First Amendment Free Speech Claim
Plaintiff alleges that his First Amendment rights were violated when he was “denied his

20 right to correspond and appear … in his civil matter against the Department of Labor and
21 Industries, [Juan D. Vega, Jr., v. Dept’ of Labor & Indus. of State of Wash.].” Dkt. # 24, ¶ 82. It
22 is well established that prisoners have a constitutional right of access to the courts. Bounds v.
23 Smith, 430 U.S. 817, 821 (U.S.N.C. 1977). In Lewis v. Casey, 518 U.S. 343(1996), however, the
24 Supreme Court revised Bounds and explained that prisoners’ right of access to the courts does
ORDER ON MOTIONS - 9

1 not guarantee inmates the resources to transform themselves into “litigating engines capable of
2 filing everything from shareholder derivative actions to slip-and-fall claims;” rather, it provides
3 them with the tools they need in order to “attack their sentences, directly or collaterally, and in
4 order to challenge conditions of confinement.” Id at 355. Inmates’ right of access to the courts is
5 therefore restricted to non-frivolous direct criminal appeals, habeas corpus proceedings, and civil
6 rights actions. Id at 354. Apart from that, “[i]mpairment of any other litigating capacity is simply
7 one of the incidental (and perfectly constitutional) consequence of conviction and incarceration.”
8 Id at 355. Plaintiff’s cause of action against the Department of Labor and Industries is a civil
9 action. As such, Plaintiff has not alleged a deprivation of his First Amendment right.
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Additionally, Plaintiff claims it was unlawful to transfer him in retaliation for pursuing

11 litigation. Indeed, the prohibition against retaliatory punishment is “clearly established law” in
12 the Ninth Circuit for qualified immunity purposes. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.
13 1995). Prisoners may not be transferred in retaliation for exercising their First Amendment
14 rights. “This is so despite the fact that prisoners generally have no constitutionally-protected
15 liberty interest in being held at, or remaining at, a given facility.” Id. The parties disagree as to
16 the reasons for Plaintiff’s transfer to FDC. Individual federal Defendants essentially contend that
17 Plaintiff transfer was a lawful exercise of BOP’s discretion to designate place of imprisonment,
18 while Plaintiff claims his transfer was due to his active pursuit of litigation. In support of his
19 allegations, Plaintiff quotes Donald Jackson, the PFH Home Confinement Coordinator/Center
20 Discipline Committee Chairperson for the Federal BOP stating that Plaintiff had violated a
21 condition of community program by “pursuing an active case with the Department of Labor and
22 Industries.” Dkt. # 24, ¶59. While Mr. Jackson’s recommendation that Plaintiff be terminated “to
23 impress upon … other residents that this kind of behavior will not be tolerated” is considered
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ORDER ON MOTIONS - 10

1 retaliatory, Mr. Jackson is not a federal employee and therefore cannot be sued for violating
2 Plaintiff’s First Amendment rights under Bivens. Accordingly, the Court grants the government’s
3 motion as to the First Amendment claim.
4 c.
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Fifth Amendment Equal Protection Claim
Plaintiff alleges that the individual federal Defendants deprived his “clearly established

6 constitutional rights of equal protection of the laws of the United States and the equal rights,
7 privileges and immunities of a citizen of the United States because he was [sic] a black male.”
8 Dkt. # 24, p.27. Prisoners are protected under the Equal Protection Clause of the Fifth
9 Amendment from invidious discrimination based on race. Wolff v. McDonnell, 418 U.S. 539
10 (1974). In order to establish a violation of the Equal Protection Clause, Plaintiff must present
11 evidence of discriminatory intent based upon his membership in a protected class. See
12 Washington v. Davis, 426 U.S. 229, 239-40 (1976); Serrano v. Francis, 345 F.3d 1071, 1082
13 (9th Cir. 2003). Intentional discrimination means that the alleged discriminatory conduct
14 occurred at least in part because of Plaintiff’s protected status. Maynard v. City of San Jose, 37
15 F.3d 1396, 1404 (9th Cir.1994). Plaintiff states that Defendants, determined to make an example
16 of him, “choose [sic] Plaintiff, who is a black male from over 200,000 plus inmates in the
17 Federal Bureau Prisons system, as the only inmate that is required to seek their permission before
18 accessing a court by written correspondence.” Dkt. # 24, ¶ 44. There is, however, no factual
19 content in Plaintiff’s complaint that permits the Court to draw such an inference. There is
20 basically no factual allegation – other than the allegation that Plaintiff himself is black – that
21 would support the inference that the defendant’s actions were motivated by racial aninums. As
22 the Court previously noted, “Plaintiff has failed to plead any factual allegations that would
23 support his conclusion that the actions of the defendants were motivated by racial animus.” Dkt.
24 # 34, p.10-11. Although the Court must liberally construe Plaintiff’s claims, Plaintiff’s
ORDER ON MOTIONS - 11

1 allegations do not assert the factual basis for an Equal Protection claim. United States v. Fisher,
2 38 F.3d 1144, 1147 (10th Cir.1994). Even though Plaintiff is pro se, he must do more than make
3 conclusory allegations in support of his constitutional claims as the Court cannot fashion his
4 arguments for him. Id. Thus, even assuming the truth of Plaintiff’s allegation that he was the
5 only inmate required to seek permission before accessing a court because he is black, his
6 conclusory allegations do not allow for proper analysis. Therefore, Plaintiff has failed to allege
7 sufficient facts to establish a violation of his rights under the Equal Protection clause of the Fifth
8 Amendment. As a result, the Court grants the government’s motion as to the Equal Protection
9 claim.
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Fourth Amendment Search and Seizure Claim
Plaintiff alleges that the U.S. Marshals violated “his clearly established constitutional

12 right to be secure in his person from unreasonable force and seizure, without authority of law, or
13 by abuse of authority of law, guaranteed by the Fourth Amendment,” (Dkt. # 24, ¶ 77) when they
14 picked him up at PFH and transferred him to FDC SeaTac on October 17, 2008. Id. at ¶ 85. “The
15 Fourth Amendment right of people to be secure against unreasonable searches and seizures
16 ‘extends to incarcerated prisoners; however, the reasonableness of a particular search is
17 determined by reference to the prison context.’” Thompson v. Souza, 111 F.3d 694, 699 (9th
18 Cir.1997) (internal citation omitted). Prisoners bear the burden of showing that the prison official
19 intentionally used “exaggerated or excessive means to enforce security.” Michenfelder v.
20 Sumner, 860 F.2d 328, 333 (9th Cir. 1988). Plaintiff makes no such allegation. At best, he
21 contends that the Marshals were presumably “armed with guns” at the time he was seized. Dkt. #
22 24, ¶ 55. Plaintiff makes no factual allegations that would sustain the inference that the Marshals
23 engaged in unreasonable or exaggerated actions. Because Plaintiff has failed to allege sufficient
24 facts to establish a violation of his clearly established right under the Fourth Amendment, the
ORDER ON MOTIONS - 12

1 Court grants the government’s motion for judgment on the pleadings as to the Fourth
2 Amendment Search and Seizure claim.
3 e.

Eighth Amendment Unreasonable Force Claim
Plaintiff alleges that individual federal Defendants acted with “unreasonable force.” Dkt.

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5 # 24, ¶¶ 77, 82(b), 85. The Eighth Amendment prohibits the imposition of cruel and unusual
6 punishment and “embodies broad and idealistic concepts of dignity, civilized standards,
7 humanity and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation and internal
8 quotations omitted). The use of excessive physical force against a prisoner may constitute cruel
9 and unusual punishment even though the inmate does not suffer serious injury. Hudson v.
10 McMillian, 503 U.S. 1, 4 (1992). The core of judicial inquiry is “whether force was applied in
11 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
12 Id. at 6. “To violate the Cruel and Unusual Punishments Clause, a prison official must have a
13 ‘sufficiently culpable state of mind.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff
14 has failed to articulate any instances involving the use of unreasonable force by individual
15 federal Defendants, let alone their state of mind. Plaintiff makes no factual allegations that would
16 sustain the inference that the Marshals used unreasonable force when removing and transporting
17 him. Plaintiff provided no indicia of unreasonable force and consequently failed to establish a
18 violation of his Eight Amendment right. Therefore, the Court grants the government’s motion as
19 to the Eight Amendment claim.
20 B.
21

Plaintiff’s Negligence Claims
Plaintiff asserts causes of action for negligence against the government and Pioneer

22 Defendants. Plaintiff’s negligence claim against the government arises under the Federal Torts
23 Claims Act (“FTCA”), while Plaintiff’s negligence claim against Pioneer Defendants arises
24 under Washington State law.
ORDER ON MOTIONS - 13

1 1.

Negligence under the FTCA
Plaintiff raises three tort claims against the United States of America: general negligence,

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3 failure to train, and failure to supervise. The United States is immune from suit unless it consents
4 to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941). The FTCA, 28 U.S.C. §
5 1346(b), is a limited waiver of sovereign immunity, rendering the United States liable for certain
6 torts committed by federal employees. Under the FTCA, the United States can be held liable “for
7 injury or loss of property, or personal injury or death caused by the negligent or wrongful act or
8 omission of any employee of the Government while acting within the scope of his office or
9 employment...” Id. As a preliminary matter, “plaintiff bears the burden of persuading the court
10 that it has subject matter jurisdiction under the Act's general waiver of immunity.” Prescott v.
11 United States, 973 F.2d 696, 700 (9th Cir. 1992); 28 U.S.C. § 1346(b). On December 2, 2011,
12 the Court found that it has jurisdiction to hear Plaintiff’s tort claims under the FTCA to the
13 extent that they are predicated on the conduct of government employees. Dkt. # 34. The burden
14 then shifts to the government to prove the applicability of one of the exceptions to Federal Tort
15 Claims Act's general waiver of immunity. Prescott at 702.
16 a.
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General Negligence and A duty of Ordinary Care
In order to prove a cause of action for negligence, Plaintiff must establish existence of a

18 duty owed, breach of that duty, resulting injury, and proximate cause between breach and injury.
19 Tincani v. Inland Empire Zoological Soc., 124 Wash. 2d 121, 127 (1994). “Washington courts
20 have long recognized a jailor's special relationship with inmates, particularly the duty to ensure
21 health, welfare, and safety.” Gregoire v. City of Oak Harbor, 170 Wash. 2d 628, 635 (2010)
22 (citation omitted). The duty owed to inmates is a positive and nondelegable duty arising out of
23 the “special relationship that results when a custodian has complete control over a prisoner
24 deprived of liberty.” Shea v. City of Spokane, 17 Wash.App. 236, 242 (1977), aff'd, 90 Wash.2d
ORDER ON MOTIONS - 14

1 43, 578 P.2d 42 (1978). Therefore, because Defendants owed a duty to Plaintiff to ensure his
2 health, welfare, and safety, the Court must determine whether such duty was breached.
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In Washington State, breach of the jailors duty is found in cases where inmates either

4 died or sustain serious bodily harm. See Gregoire, 170 Wash. 2d 628 (jailors violated their duty
5 of care to a prisoner after an inmate committed suicide by hanging in his jail cell); Kusah v.
6 McCorkle, 100 Wash. 318, 325 (1918) (breach of duty of care was found when prisoner was
7 attacked, cut, and stabbed with a knife by another inmate); Thompson v. King County, 163 Wash.
8 App. 184 (2011) (jailor’s failure to take reasonable steps to protect inmate from being raped
9 constituted negligence). The scope of jailors’ duty to inmates in Washington State is therefore
10 narrowly defined by the courts as a duty to prevent actual physical harm to the prisoner. Here,
11 Plaintiff does not specify any incident involving physical harm. Plaintiff also does not allege any
12 facts that would allow this Court to conclude that individual federal Defendants disregarded
13 Plaintiff’s safety and health. As a result, the Court grants the government’s motion as to the
14 general negligence claim under the FTCA.
15 b.
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Negligent Training and Supervision
Plaintiff alleges that federal Defendants “received negligent supervision and training

17 from the FBOP.” Dkt. # 24, ¶ 125. The question before the Court is then whether BOP’s
18 decisions regarding supervision and training are within the discretionary function exemption to
19 the liability of the United States under FTCA. The discretionary function exception is a
20 limitation on the FTCA’s waiver of sovereign immunity. 28 U.S.C § 2680 (a). It covers acts
21 involving “an element of judgment or choice” if they are based on considerations of public
22 policy. United States v. Gaubert, 499 U.S. 315, 316 (1991). The discretionary function exception
23 will not apply when “federal statute, regulation, or policy specifically prescribes a course of
24 action for employees to follow.” Id. (quoting Berkovitz by Berkovitz v. United States, 486 U.S.
ORDER ON MOTIONS - 15

1 531,536 (1988)). To determine applicability of discretionary function exception, the Court must
2 determine: (1) whether challenged actions involve an element of judgment or choice, and (2) if a
3 specific course of action is not specified, whether discretion left to the government is of a kind
4 that the discretionary function exception was designed to shield; namely, actions and decisions
5 based on considerations of public policy. Myers v. U.S., 652 F.3d 1021, 1028 (9th Cir. 2011).
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The BOP is responsible for the “management and regulation of all Federal penal and

7 correctional institutions,” “the safekeeping, care, and subsistence of all persons charged with or
8 convicted of offenses against the United States…” and “the protection, instruction, and discipline
9 of all persons charged with or convicted of offenses against the United States.” 18 U.S.C. § 4042
10 (a)(1) – (a)(3). This provision does “not mandate a specific, non-discretionary course of conduct,
11 but rather leaves the BOP ample room for judgment.” Santana-Rosa v. United States, 335 F.3d
12 39, 44 (1st Cir. 2003) (internal citation omitted). Considering the wide discretion afforded to the
13 BOP, the first prong of Myers analysis is satisfied. Next, the Court considers whether BOP’s
14 decisions regarding training and supervision of its employees are of the kind that discretionary
15 function exception was designed to shield.
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The Ninth Circuit has held the hiring, training and supervision of employees to be

17 discretionary acts within the discretionary function exemption to the FTCA. See Nurse v. United
18 States, 226 F.3d 996, 1001-02 (9th Cir. 2000) (holding that plaintiff's claims of “negligent and
19 reckless employment, supervision and training of” employees “fall squarely within the
20 discretionary function exception”); see also Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir.
21 2009) (The decision of whether and how to retain and supervise an employee is the type of
22 discretionary judgment that the exclusion was designed to protect). Here, Plaintiff has not
23 described any incident nor articulated any facts to support his conclusion that the individual
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ORDER ON MOTIONS - 16

1 federal Defendants received negligent training and supervision. Additionally, the government has
2 met its burden of proof to establish that BOP’s training and supervision decisions fall within the
3 discretionary function exception to the FTCA. Therefore, the Court grants the government’s
4 motion as to the negligent training and supervision claims.
5 2.

Negligence under Washington State law
Plaintiff claims that he “was falsely charge[d] with violating a condition of a Community

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7 Program, falsely found guilty of the false charge, and falsely imprisoned at the Federal Detention
8 Center from October 17, 2008, to January 15, 2009, for ninety days; which …resulted in severe
9 and extreme fright, shock, horror and emotional distress…[and] physical injuries, pain, suffering,
10 mental anguish, emotional distress, and lost wages.” Dkt. # 24, ¶ 144. Under Washington State
11 law, a cause of action for negligence requires the plaintiff to establish (1) the existence of a duty
12 owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the
13 breach and the injury. Pedroza v. Bryant, 101 Wash.2d 226, 228 (1984). “Actual loss or damage
14 is an essential element in the formulation of the elements necessary for a cause of action in
15 negligence.” Gazija v. Nicholas Jerns Co., 86 Wash. 2d 215, 219 (1975). Therefore, if Plaintiff
16 has not suffered appreciable harm as a consequence of Defendant’s negligence, he cannot
17 establish a cause of action for negligence. Id. Plaintiff claims that he was incarcerated for ninety
18 days and suffered physical injuries, emotional distress and lost wages as a result of Defendants’
19 negligent acts. 
20 a.
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Incarceration for ninety days
Plaintiff asserts he was injured by having to serve ninety days at FDC SeaTac after being

22 transferred from Pioneer Fellowship House. It is undisputed that Plaintiff was sentenced to serve
23 a sixty-three month sentence and pursuant to 18 U.S.C. § 3621(b), BOP “may at any time …
24 direct the transfer of a prisoner from one penal or correctional facility to another.” As previously
ORDER ON MOTIONS - 17

1 stated, inmates have no liberty interest in avoiding transfer to another correctional facility.
2 Therefore, BOP has the right to transfer inmates to any BOP institution. Given that BOP was not
3 imposing any additional imprisonment time on Plaintiff by transferring him to FDC SeaTac,
4 Plaintiff was not harmed by having to serve his sentence at FDC SeaTac rather than at PFH.
5 b.
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Physical, emotional, and financial harm
Plaintiff asserts he suffered severe and extreme fright, shock, horror, emotional distress,

7 physical injuries, pain, suffering, mental anguish, and lost wages as a result of being transferred
8 to SeaTac based on a false report. Dkt. # 24. As a general rule, Washington State courts have
9 denied recovery for emotional distress in cases not involving malice or wrongful intent, unless
10 there has been an actual invasion of a plaintiff's person or security. See Schurk v. Christensen, 80
11 Wash. 2d 652 (1972); White River Estates v. Hiltbruner, 134 Wash.2d 761, 766 (1998) (holding
12 that emotional distress can be remedied only if based in intentional tort); Birchler v. Castello
13 Land Co., 133 Wash.2d 106 (1997) (allowing recovery of emotional distress damages where
14 there was an intentional interference with property interests); Cagle v. Burns & Roe, Inc., 106
15 Wash.2d 911, 916 (1986) (holding that damages for emotional distress are available upon proof
16 of an intentional tort). Here, Plaintiff has not claimed that the emotional distress involved malice
17 or was a direct result of physical harm. Ordinary negligence, such as in this case, will usually not
18 suffice as the basis for recovering emotional damages without physical injury. Emotional distress
19 caused by negligent acts cannot be remedied unless the act causing the mental fright also
20 threatens immediate bodily harm. Smith v. Rodene, 69 Wash. 2d 482, 489, 418 P.2d 741, 746
21 (1966) amended, 423 P.2d 934 (Wash. 1967) (internal citations omitted). On the other hand, if
22 mental suffering or emotional distress is caused by a willful act, recovery is permitted. Id.
23 Plaintiff’s emotional distress claim is based on general negligence, rather than an intentional or
24 willful tort. In such cases, physical injury must be proven before damages for emotional distress
ORDER ON MOTIONS - 18

1 are recoverable. Pickford v. Masion, 124 Wash. App. 257 (Div. 2 2004), citing Kennedy v. Byas,
2 867 So.2d 1195, 1197–98 (Fla.2004) (Florida district court denied emotional distress damages
3 where the claim involved only negligence, not malicious behavior). Here, Plaintiff has made no
4 specific claim or reference to any physical injury. Plaintiff has also not claimed that his
5 emotional distress was a result of a willful tort by the Defendants. Consequently, as matter of
6 law, Plaintiff does not have a cognizable claim of emotional distress under Washington State
7 law.
8

In addition to emotional harm, Plaintiff also claims he suffered “lost wages,” as he had

9 secured employment with Pioneer Food Services prior to his transfer and was making $8.07 per
10 hour. But given that Plaintiff had no right to remain at PFH; he is not entitled to any wages he
11 would have been able to earn by being at the re-entry center. Accordingly, Plaintiff failed to
12 establish that he suffered any physical, emotional, or financial harm as a result of his transfer to
13 FDC SeaTac.
14

Even if Plaintiff had suffered appreciable harm, in order to assert a claim he must

15 establish that it was a result of Pioneer Defendants’ violation of a duty of care. As previously
16 mentioned, jailors have a duty to ensure inmates’ health, welfare, and safety. The threshold
17 question then becomes whether Pioneer Defendants are considered “jailors” for the purpose of
18 this negligence claim. Pioneer Defendants contend that they owed no special duty to plaintiff
19 because “BOP is the only entity, as the jailor, who may discipline or otherwise sanction a
20 resident pursuant to 28 C.F.R. 541.3.” Dkt. # 52, p.52. Furthermore, Defendants contend that
21 Pioneer cannot discipline or sanction a resident, but may only make recommendations to BOP.
22 Id. Indeed, PFH did not discipline Plaintiff. Instead, Pioneer employees wrote a report and
23 recommended Plaintiff’s transfer to the BOP. While PFH was involved in the preliminary steps
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ORDER ON MOTIONS - 19

1 leading to Plaintiff’s transfer, BOP made the ultimate determination. Consequently, Plaintiff has
2 failed to meet the elements of a negligence claim. Therefore, the Court grants Pioneer
3 Defendants’ motion as to the negligence claim under Washington State law.
4 C.
5

Plaintiff’s Discrimination Claim
Plaintiff claims that Pioneer Defendants denied Plaintiff of his rights under the

6 Washington State Constitution in violation of RCW 49.60.010, et. seq., commonly referred as
7 Washington Law Against Discrimination (“WLAD”). WLAD prohibits,

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[D]iscrimination in employment, in credit and insurance transactions, in
places of public resort, accommodation, or amusement, and in real
property transactions because of race, creed, color, national origin,
families with children, sex, marital status, sexual orientation, age,
honorably discharged veteran or military status, or the presence of any
sensory, mental, or physical disability or the use of a trained dog guide or
service animal by a person with a disability…

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Causes of action under WLAD can be sustained only by individuals who fall within the

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13 definition of persons protected under RCW 49.60, including those who engage in credit and
14 insurance transactions, in places of public resort, accommodation, or amusement, and in real
15 property transactions, or are breastfeeding mothers. RCW 49.60.030. At first glance, Plaintiff
16 does not fall into any of these categories and therefore lacks standing to sustain a claim under
17 WLAD. Construing Plaintiff’s claims liberally, however, the Court could deduce that Plaintiff
18 believes he is protected under WLAD because Pioneer Fellowship House is a “place of
19 accommodation”. The definition of “place of accommodation” under RCW 49.60.040 does not
20 include a private re-entry house. Nonetheless, “The definition of public accommodation is a
21 broad one and need not list every possible example to which it applies.” Apilado v. N. Am. Gay
22 Amateur Athletic Alliance, 792 F. Supp. 2d 1151, 1159 (W.D. Wash. 2011).
23 Under WLDA public accommodation is defined as:
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ORDER ON MOTIONS - 20

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[A]ny place, licensed or unlicensed, kept for gain, hire, or reward, or
where charges are made for admission, service, occupancy, or use of any
property or facilities, whether conducted for the entertainment, housing, or
lodging of transient guests, or for the benefit, use, or accommodation of
those seeking health, recreation, or rest, or for the burial or other
disposition of human remains, or for the sale of goods, merchandise,
services, or personal property, or for the rendering of personal
services...PROVIDED, That nothing contained in this definition shall be
construed to include or apply to any institute, bona fide club, or place of
accommodation, which is by its nature distinctly private… (emphasis
added).
To this date, no Washington case has applied WLAD to a prisoner’s treatment by a jail or
residential treatment center because they are not places of public accommodation. Residential reentry centers are notably distinctly private, as absent a criminal sentence, members of the public
cannot get accommodation in such facilities. The Court finds Pioneer Fellowship House is a
private facility not a place of public accommodation. Apilado, 792 F. Supp. 2d 1151 (describing
factors for the Court to consider in determining whether an entity is a public accommodation: (1)
charges for admission, (2) accommodates those seeking recreation, (3) sells goods and
merchandise, (4) operates where food or beverages of any kind are sold for consumption on the
premises, (5) offers sports and recreation activities, and (6) operates where the public gathers for
amusement or recreation). PFH does not offer sports and recreation activities or sells food and
beverages to the public. PFH certainly does not accommodate those seeking recreation, charges
for admission, or sells goods. In sum, re-entry centers such as PFH do not as a general course of
business provide goods or services to the general public. Additionally, Plaintiff has not alleged
any facts that would allow the Court to infer that PFH is a place of public accommodation.
Therefore, the Court grants Pioneer Defendants’ motion as to the WLAD claim.
IV. CONCLUSION

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Having considered the motions, responses and replies, and the remainder of the record,
the Court hereby finds and ORDERS:

ORDER ON MOTIONS - 21

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(1) Defendant Pioneer Human Services’s Motion for Judgment on the Pleadings (Dkt. #

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52) filed on behalf of Pioneer Human Services, Heather McIntyre, Bernadette Mathis,

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Kristen Cortez, Stephanie Jones, and Donald Jackson is GRANTED.

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(2) Defendants United States of America’s Motion for Judgment on the Pleadings (Dkt. #

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63) filed on behalf of the United States of America, Willian Brown, Jr., Kevin

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Straight, and Arinda Philips is GRANTED in part and DENIED in part, as discussed

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above.

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(3) The Court grants Plaintiff leave to conduct discovery on the procedural due process
claim.
(4) The Clerk is directed to send copies of this Order to Plaintiff and counsel of record.

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DATED this 1st day of November 2012.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER ON MOTIONS - 22