Opinion
Civil Action No. 19-cv-02517-WJM-KLM
08-04-2020
STANLEY L. O'BANION, Plaintiff, v. ANDRE MATEVOUSIAN, and J.E. KRUEGER Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion to Dismiss [#19] (the "Motion to Dismiss") and Defendants' Early Motion for Partial Summary Judgment [#20] (the "Motion for Partial Summary Judgment"). The Motions [#19, #20] have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#7, #21,#22]. The Court has reviewed the Motions [#19, #20], the Responses [#24, #26], the Replies [#34, #36], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion to Dismiss be [#19] be granted in part and denied in part, and that the Motion for Partial Summary Judgment [#20] be granted, resulting in the dismissal of all claims in the case. The Court first addresses the Motion to Dismiss [#19].
"[#19]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
I. Motion to Dismiss
For the purposes of resolving the Motion [#19], the Court accepts as true all well-pled, as opposed to conclusory, allegations made in Plaintiff's Complaint. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plaintiff is a pro se inmate at the United States Penitentiary-Administrative Maximum ("ADX") in Florence, Colorado. Compl. [#1] ¶ 3. Defendant Matevousian is the warden of ADX; Defendant Krueger is the Regional Director for the Bureau of Prisons' ("BOP") North Central Region. Id. ¶¶ 4-5. Plaintiff filed his complaint against Defendants in both their official capacities and their individual capacities. Id. ¶ 6. Plaintiff alleges jurisdiction under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Id. ¶ 1. Plaintiff raises two claims: (1) Violation of Due Process Clause Property Interest under the Fifth Amendment; and (2) Abridging the Freedom of Speech in Violation of the First Amendment (Retaliation). Id. ¶¶ 23-24, 42-43. While Plaintiff does not argue an Eighth Amendment violation, the Court will construe his Complaint [#1] as also asserting such a claim because he has challenged his conditions of confinement. See, e.g., Penrod v. Zavaras, 94 F.3d 1399, 1405-06 (10th Cir. 1996); Gross v. Koury, 78 F. App'x 690, 693-94 (10th Cir. 2003).
Turning to the facts relevant to the claims, federal law requires all Special Housing Unit ("SHU") inmates in federal penitentiaries to receive reasonable hygiene items as part of a federal benefit. See 28 C.F.R. §§ 541.31(f), 541.46(k). On August 15, 2018, Plaintiff alleges that Defendant Matevousian discontinued the provisions of hygiene items; namely soap and toothpaste, to Plaintiff and other inmates in the Control Unit and SHU of ADX. Compl. [#1] ¶ 8. Accordingly, Plaintiff alleges he filed a grievance that same day, naming Defendant Matevousian, and seeking redress for the discontinuation of this benefit. Id. ¶ 10. Plaintiff's grievance was denied because Matevousian, citing Program Statement 5230.05, claimed that soap and toothpaste are only examples of hygiene items that could be provided. Id. ¶ 11. Plaintiff alleges he had no means of purchasing hygiene items himself, nor any other means of receiving hygiene items, for the entire period relevant to this Motion [#19]. Id. ¶ 10. Thus, Plaintiff avers that he did not receive any hygiene items until August 28, 2018, almost two weeks later. Id. Then, on September 22, 2018, Defendant Matevousian allegedly ordered Plaintiff to move into a new cell, which was "filthy" and "bacteria filled[,]" yet Plaintiff had no soap to clean his cell or wash his own hands, allegedly "in retaliation for Plaintiff [ ] using [an] administrative remedy to seek redress[.]" Id. ¶¶ 10, 27. Again, on October 17, 2018, Plaintiff was allegedly denied soap and toothpaste by Defendant Matevousian until October 28, 2018. Id. ¶ 17.
This move also resulted in Plaintiff having one hour less of recreation time per week for a period of six months. Id. ¶ 28.
In light of these events, Plaintiff alleges that he appealed his prison grievance to the BOP Director for the North Central Region, Defendant Krueger, on November 2, 2018. Compl . ¶ 8. Plaintiff alleges that Defendant Krueger concurred with Defendant Matevousian's understanding of Program Statement 5230.05, and therefore concurred with Matevousian's denial of soap and toothpaste to Plaintiff. Id. ¶ 19. As a result, Plaintiff's lack of access to hygiene items was allowed to continue. Again, on May 15, 2018, Plaintiff avers that he was denied soap and toothpaste until May 28, 2019. Id. ¶ 21. Accordingly, Plaintiff filed the instant Complaint [#1] on September 3, 2019, against Defendants Matevousian and Krueger. Id. at 1.
Plaintiff brings his Fifth Amendment claim on the grounds that "Defendant Matevousian's actions were inadequate to ensure due process in the denial of a federal benefit[,]" i.e., soap and toothpaste. Compl. [#1] ¶ 23. Likewise, because Defendant Krueger concurred with Matevousian's actions, and Krueger also "did not articulate a rationale [sic] policy alternative in discontinuing the federal benefit[,]" Plaintiff alleges that Krueger violated the Due Process Clause of the Fifth Amendment as well. Id. ¶ 24.
Plaintiff brings his First Amendment claim on grounds of retaliation, alleging that Defendants retaliated against Plaintiff in a myriad of ways for filing the grievance report for the denial of soap and toothpaste. See generally Compl. [#1] ¶¶ 26, 42. In addition to moving Plaintiff into the SHU of ADX at the behest of Defendant Matevousian, Plaintiff also avers that Matevousian repeatedly had his mail intercepted and read by prison staff. Further, Plaintiff asserts that he was forced to either eat a pork meal, which would violate his beliefs as a Muslim, or to not eat at all. Id. ¶¶ 29-31, 34-35. Other retaliatory tactics allegedly included Plaintiff not receiving breakfast at all on November 16, 2018; denying Plaintiff Control Unit credit; and failing to repair the toilet in Plaintiff's cell that was continuously flushing for thirteen days straight, resulting in Plaintiff's inability to sleep. Id. ¶¶ 36-37. Plaintiff alleges that he violated no policy, but instead was told that "all you have to do is cooperate with the warden, like he said, and all this will end." Id. ¶¶ 38, 40. Therefore, Plaintiff is alleging that "Defendant Matevousian is retaliating against Plaintiff [ ] unlawfully, seeking to prohibit the right to petition the government for a redress, and abridging [Plaintiff's] freedom of speech" in violation of the First Amendment. Id. ¶ 42. Moreover, Plaintiff alleges that Defendant Krueger "did not adequately supervise Defendant Matevousian[,]" but rather "encourag[ed] the continuation of the misconduct," and thus Defendant Krueger also violated the First Amendment. Id. ¶ 43.
Plaintiff seeks the following relief against Defendants: (1) a declaration that his constitutional rights have been violated; (2) injunctive relief ordering Defendants to stop denying Plaintiff and other ADX inmates soap and toothpaste and to stop retaliating against Plaintiff; (3) compensatory damages in the amount of $400; and (4) punitive damages in the amount of $100. Id. ¶¶ 44-46, 48-49. Defendants seek to dismiss Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6). See generally Mot. Dismiss [#19].
B. Standard of Review
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) is to determine whether the Court has personal jurisdiction over the named parties. "The district court is given discretion in determining the procedure to employ in considering a motion to dismiss for lack of personal jurisdiction." Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). After the defendant files a motion to dismiss, the plaintiff bears the burden of establishing personal jurisdiction over the defendant. Behagen v. Amateur Basketball Ass'n of the United States, 744 F.2d 731, 733 (10th Cir. 1984). The Court accepts the well-pled allegations of the operative pleadings as true to determine whether the plaintiff has made a prima facie showing of personal jurisdiction. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). The Court "may also consider affidavits and other written materials submitted by the parties." Impact Prods., Inc. v. Impact Prods., LLC, 341 F. Supp. 2d 1186, 1189 (D. Colo. 2004). Thus, the Court will consider evidence the parties submitted as to this portion of the Motion to Dismiss [#19]. Conflicting facts "must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (internal quotation marks and citations omitted).
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ. P. 12(b)(6) (stating that a complaint may be dismissed for "failure to state a claim upon which relief can be granted"). To withstand a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain enough allegations of fact 'to state a claim to relief that is plausible on its face.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) ("The complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations" (quoting Twombly, 550 U.S. at 570)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotation marks omitted).
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that [the] plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that [the] plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). However, "[t]he court's function on a 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).
To the extent Plaintiff attaches documents to his Complaint [#1], the Court finds that these can properly be considered under Fed. R. Civ. P.12(b)(6) without converting it to a motion for summary judgment as it appears the Complaint [#1] incorporates these documents by reference. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). However, to the extent Plaintiff relies on material outside the pleadings in support of his Response [#24]), such as a sworn Declaration of Julian Paramore, Jr. (id. at 10), the Court does not consider this material in connection with the portion of the Motion to Dismiss [#19] seeking relief under Rule 12(b)(6). The Tenth Circuit is clear that "[g]enerally, the sufficiency of a complaint must rest on its contents alone." Gee, 627 F.3d at 1186. While there are exceptions to this rule, the Court finds that none of the exceptions apply to this material. As the materials are not considered as to the Rule 12(b)(6) arguments, the Motion to Dismiss [#19] does not need to be converted to a motion for summary judgment under Fed. R. Civ. P. 12(d).
C. Analysis
Defendants seek to dismiss all claims against them by arguing the following: (1) the Court does not have personal jurisdiction over Defendant Krueger; (2) Plaintiff lacks a Bivens remedy as to the claims against Defendants in their individual capacities; (3) Defendants are entitled to qualified immunity as to the individual capacity claims; and (4) Plaintiff failed to plausibly allege his claims under Fed R. Civ. P. 12(b)(6). The Court now turns to those arguments.
1. Personal Jurisdiction as to Defendant Krueger
"The Due Process Clause of the Fourteenth Amendment constrains a State's authority to bind a nonresident defendant to a judgment of its courts." Walden v. Fiore, 571 U.S. 277, 283 (2014) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). "In determining whether a federal court has personal jurisdiction over a defendant, the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process." Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (quoting Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000)). Colorado's long-arm statute extends jurisdiction to the full extent of the Constitution, so the sole inquiry is whether exercising jurisdiction over Defendant Krueger comports with due process. Goodwin v. Bruggeman Hatch, No. 16-cv-00751-CMA-KLM, 2018 WL 2196057, at *3 (D. Colo. May 14, 2018). Under the due process clause, the party must have sufficient "minimum contacts" with the state, so that the exercise of jurisdiction would not violate "traditional notions of fair play and substantial justice." Burger King v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Here, Defendant Krueger seeks dismissal of all claims against him by arguing that Plaintiff has failed to establish personal jurisdiction. Mot. Dismiss [#19] at 4. "The inquiry whether a forum State may assert [personal] jurisdiction over a nonresident defendant 'focuses on the relationship among the defendant, the forum, and the litigation.'" Walden, 571 U.S. at 283-84 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)). In order to establish personal jurisdiction, Plaintiff must satisfy two requirements. PopSockets LLC v. Online King LLC, No. 19-cv-01277-CMA-NYW, 2019 WL 7168661, at *3 (D. Colo. Dec. 23, 2019). Plaintiff must establish: (1) Defendant purposefully directed his activities toward the forum state, and (2) the litigation is a result of injuries that "arise out of or relate to" Defendant's contacts with the forum state. Burger King, 471 U.S. at 472.
As to the first element, purposeful direction, the plaintiff must show the defendant "purposefully avail[ed] [him]self of the privilege of conducting activities within the forum State[.]" Hanson v. Denckla, 357 U.S. 235, 253 (1958). Physical presence in the forum state is not required because "it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communication across state lines . . . ." Burger King, 471 U.S. at 476. Instead, purposeful availment can include any of the defendant's actions which "create a substantial connection with the forum state." Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 109 (1987). However, "'the mere foreseeability of causing injury in another state' is insufficient to establish the required contacts." Hill v. Pugh, 75 F. App'x 715, 719 (10th Cir. 2003) (citing Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1534 (10th Cir.1996)).
Here, the Court finds that Plaintiff has failed to establish that Defendant Krueger purposefully availed himself of the benefits and protections of Colorado law, and, consequently, that Plaintiff has failed to establish that Defendant Krueger has minimum contacts with the forum state. The Tenth Circuit has consistently held that out-of-state BOP officials will not be considered to have purposefully availed themselves of a forum state such as Colorado based solely on their supervisory responsibility over conduct in the forum state. Thus, in Hill, the BOP Regional Director for the North Central Region had overall responsibility for the BOP's operations in Colorado and was sent "administrative grievances" from an ADX prison inmate. 75 F. App'x at 719. The Tenth Circuit held that this "falls far short of the purposeful availment necessary to establish jurisdiction over defendant[,]" because "[i]t is not reasonable to suggest that federal prison officials may be hauled into court simply because they have regional [ ] supervisory responsibilities over facilities within a forum state." Id. Similarly, in another case this Court held that the "[p]laintiff here has alleged nothing more than that which Hill found insufficient[,]" and therefore the Court refused to assert personal jurisdiction over BOP officials, including the Regional Director. Georgacarakos v. Wiley, No. 07-cv-01712-MSK-MEH, 2008 WL 4216265, at *5 (D. Colo. Sept. 12, 2008) (citing Hill, 75 F. App'x at 719).
See also Gambina v. Fed. Bureau of Prisons, No. 10-cv-02376-MSK-KLM, 2011 WL 4502085, at *3-4 (D. Colo. Sept. 29, 2011); Stine v. Lappin, No. 07-CV-01839-WYD-KLM, 2009 WL 103659, at *6 (D. Colo. Jan. 14, 2009); Nichols v. Fed. Bureau of Prisons, No. 09-CV-00558-CMA-CBS, 2010 WL 3219998, at *3 (D. Colo. Aug. 12, 2010).
The facts and allegations in the instant case mirror those set forth in Hill and Georgacarakos. Just as in those cases, Defendant Krueger is a Regional Director for the BOP with supervisory responsibility over the ADX facility in Colorado. Plaintiff acknowledges that his theory of liability with respect to Krueger is based on his "supervisory and policy responsibility" and "Regional Oversight." See Resp. Mot. Dismiss [#24] at 1-3, 10. Plaintiff alleges that Defendant Krueger, after receiving administrative grievances from Plaintiff, was "grossly negligent" and "failed to adequately supervise Defendant Matevousian[.]" Compl. [#1] ¶¶ 43. The Court finds that this conduct "falls far short of the purposeful availment necessary to establish jurisdiction over defendant." Hill, 75 F. App'x at 719.
Nevertheless, the Court addresses Plaintiff's argument that the Court has personal jurisdiction over Defendant Krueger under Old Republic Insurance Co. v. Continental Motors, Inc., 877 F.3d 895 (10th Cir. 2017), because he authorized particular actions for Defendant Matevousian. Plaintiff argues that "Defendant Matevousian discontinued a federal statute," which Plaintiff interprets to provide an entitlement to "soap and toothpaste" for ADX inmates. Resp. Mot. Dismiss [#24] at 2. Plaintiff argues that this "discontinu[ation]" must have been done with the "authorization of the Regional Director: Defendant Krueger," which means that Defendant Krueger had "the authority to direct a portion of taxpayer dollars for the residents of Colorado." Id. This argument appears to rely on alleged "admissions" by Defendants, i.e., that "Matevousian admits . . . that the policy of refusing Plaintiff and prisoners Federal Statute 28 C.F.R. Sec. 541.31 soap and toothpaste at the ADX was not authorized by Congress and adopted by Krueger with no discrepancy, therefore knowingly violating federal law." Resp. Mot. Dismiss [#24], at 2-3. Plaintiff also refers to "the admission of the Defendants that they were not authorized by Congress to reprogram allocated funds for federal statute 28 C.F.R. Sec. 541.31, violating Federal statute . . . ." Id. at 3. Defendants have, however. shown that they made no such admissions; in fact, they did not even discuss the applicability of 28 C.F.R. § 541.31 to this case in their Motion to Dismiss [#19]. See Reply. Mot Dismiss [#34] at 3.
Moreover, the standards set by the Tenth Circuit in Old Republic Insurance show that Plaintiff's reliance on this case in support of his argument lacks merit. Old Republic Insurance established that there are "three frameworks for determining whether an out-of-state defendant's activities satisfy the purposeful direction requirement: (1) continuing relationships with forum state residents . . . ; (2) deliberate exploitation of the forum state market . . . ; and (3) harmful effects in the forum state." 877 F.3d at 905. None of those frameworks are applicable here. The first framework—continuing relationships—applies to contractual cases. Plaintiff does not allege any breach of contract pertaining to Defendant Krueger, especially not one with any "continuing and wide-reaching contacts" in Colorado. See generally Compl. [#1]. The second and third frameworks—market exploitation and harmful effects—apply to "cases involving out-of-state media defendants' national distribution of their printed material." Old Republic Insurance, 877 F.3d at 905. This case does not involve the Defendants' distribution or sales of printed media materials, nor do they involve the internet, which subsequent cases have extended these latter frameworks to. See e.g., XMission, L.C. v Fluent LLC, 955 F.3d 833, 849-50 (10th Cir. 2020). Rather, this case involves a BOP official's alleged approval of a policy change for a prison he supervises. The Court therefore does not have personal jurisdiction over Defendant Krueger pursuant to any of the above frameworks.
Because the Court finds that Defendant Krueger did not purposefully avail himself of the privilege of conducting business in Colorado, the Court need not consider whether the litigation "arises out of relates to" Defendant Krueger's contact with Colorado. Burger King, 471 U.S. at 472. The Court also does not need to consider whether an assertion of personal jurisdiction would violate traditional notions of fair play and substantial justice. See, e.g., Hill, 75 F. App'x at 719.
Based on the foregoing, the Court recommends that the Motion [#19] be granted as to both the individual and official capacity claims against Defendant Krueger for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), and that these claims be dismissed without prejudice on this basis. Goff v. Hackett Stone Co., No. 98-7137, 1999 WL 397409, at *2 (10th Cir. June 17, 1999) (holding that a dismissal for lack of personal jurisdiction should be without prejudice). It is therefore recommended that Defendant Krueger be dismissed from the case. Based on this recommendation, the Court directs the analysis as to the remaining claims against Defendant Matevousian although the analysis applies equally to the claims as to Krueger.
B. Bivens Remedy
The Motion to Dismiss [#19] next argues that the claims against Matevousian in their individual capacity should be dismissed for lack of a Bivens remedy. Id. at 7. At the outset it is worth noting that "[t]here is no such animal as a Bivens suit against a public official . . . in his or her official capacity." Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001); see also Smith v. United States, 561 F.3d 1090, 1093, 1099 (10th Cir. 2009) ("Bivens claims cannot be asserted directly against either the United States or federal officials in their official capacities or against federal agencies[;]" a Bivens claim "can only be brought against federal officials in their individual capacity"). Therefore, this argument seeks only to dismiss the claims against Matevousian in his individual capacity. Defendant argues that there is not a Bivens remedy for, and that a Bivens remedy should not be extended to, the alleged violations of Plaintiff's constitutional rights. Mot. Dismiss [#19] at 8.
In Bivens, the Supreme Court recognized an "implied private right of action for damages against federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Supreme Court has only recognized a Bivens remedy in three prior cases involving a search and seizure under the Fourth Amendment, a gender discrimination claim under the Fifth Amendment, and a failure to provide adequate medical treatment under the Eighth Amendment. See generally Bivens, 91 S. Ct. 1999; Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). The Supreme Court "has consistently refused to extend Bivens to any new context[,]" such that "expanding the Bivens remedy is now a disfavored judicial activity[.]" Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). If the context is new, courts must assess: (1) whether there is any alternative remedial process; and (2) whether any special factors counsel hesitation. See id. at 1858.
Bivens, Davis, and Carlson thus represent the only instances in which the [Supreme] Court has approved of an implied damages remedy." Id. at 1855.
a. New Context Analysis
The first step in determining whether a Bivens claim can proceed is to determine whether the case presents a new Bivens context. Abbasi, 137 S. Ct. at 1859-60. This is determined by whether a "case is different in a meaningful way from previous Bivens cases decided by" the Supreme Court. Id. at 1864. If so, then the context is new. In other words, the Court should determine whether the claims at issue differ meaningfully from "a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate's asthma." Id. at 1869. The test is more than simply determining "whether the asserted constitutional right was at issue in a previous Bivens case," and, if so, "whether the mechanism of injury was the same mechanism of injury in a previous Bivens case." Id. at 1859. Rather, as a non-exhaustive list of examples, "[a] case might differ in a meaningful way because of . . . the constitutional right at issue; . . . the statutory or other legal mandate under which the officer was operating; . . . or the presence of potential special factors that previous Bivens cases did not consider." Id. at 1860.
The Court finds that Plaintiff's First and Fifth Amendment claims arise in a new context. The Supreme Court "ha[s] never held that Bivens extends to First Amendment claims." Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012); see also Censke v. Fox, No. CIV-17-1116-C, 2018 WL 4624863, at *2 (W.D. Okla. Aug. 17, 2018) ("The Supreme Court has not extended Bivens liability to First Amendment retaliation claims"); Ajaj v. Fed. Bureau of Prisons, No. 15-cv-992-RBJ-KLM, 2016 WL 6212518, at *3-4 (D. Colo. Oct. 25, 2016) (dismissing First Amendment individual capacity claims under Bivens). Nor has the Supreme Court extended Bivens to Fifth Amendment due process claims in the prison context. Malesko, 534 U.S. at 74 (rejecting a Bivens remedy for procedural due process claim brought by a federal inmate).
See also, e.g., Pauley on Behalf of Asatru/Odinist Faith Cmty. v. Samuels, No. 15-cv-158, 2019 WL 4600195, at *8-9 (W.D. Pa. Sep. 23, 2019) ("Fifth Amendment equal protection claim would extend a Bivens remedy to a new class of plaintiffs—prisoners who adhere to Odinism—as well as create a new class of defendants—federal prison officials. . . . Thus, Plaintiffs' Fifth Amendment equal protection claim presents a new Bivens context."); Thomas v. Paul, No. 16-cv-12-SM, 2019 WL 4451349, at *3 (D.N.H. Sep. 17, 2019) (finding that a prisoner's Fifth Amendment equal protection violation arising in a prison presented a new context for Bivens); Ojo v. United States, 364 F. Supp. 3d 163, 173 (E.D.N.Y. 2019) (same).
Moreover, to the extent Plaintiff's conditions of confinement claim is construed as an Eighth Amendment claim, the Court agrees with Defendants that this claim also arises in a new context. The only one of the trio of Bivens cases which addressed the Eighth Amendment was Carlson in which, as noted above, federal jailers were sued for failing to treat a prisoner's asthma as a result of which the prisoner died. See Carlson, 446 U.S. at 16 and n.1. Here, Plaintiff's Eighth Amendment claims focus on the Defendants' failure to provide hygiene items, such as soap and toothpaste, to Plaintiff. The Court finds that this claim bears little resemblance to Carlson. Unlike Carlson, this case does not involve an inmate who died or suffered serious injury as a result of prison medical professionals' failure to treat a medical condition. Accordingly, the Court finds that the unalleged Eighth Amendment claim also constitutes a new context. See Abbasi, 137 S. Ct. at 1864 (stating that "even a modest extension is still an extension").
b. Considerations for Extending Bivens
Since the Court has found that the context is new as to Plaintiff's claims, the Court must then assess: (1) whether there is any alternative remedial process; and (2) whether any special factors counsel hesitation against devising a new Bivens remedy. Abbasi, 137 S. Ct. at 1857. Either consideration alone is sufficient to prevent the Court from devising a new Bivens remedy. Id. The Court will first analyze whether there are any alternative remedies available to Plaintiff, before considering if any special factors counsel hesitation against devising a new Bivens remedy.
The Court finds that there are alternative remedies available to Plaintiff. There are at least three alternative, presently existing, processes to protect Plaintiff's constitutional rights. First, Plaintiff can seek injunctive relief, as he has done here, against Defendants. See generally Compl. [#1] ¶¶ 45-46. Unlike the Bivens remedy, which courts "have never considered a proper vehicle for altering an entity's policy, injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally." Malesko, 534 U.S. at 74. Second, Plaintiff may seek a remedy under the mandamus statute, 28 U.S.C. § 1361. Huerta v. Oliver, No. 17-cv-00988-RBJ-KLM, 2019 WL 399229, at *5 (D. Colo. Jan. 31, 2019) (citing Custard v. Allred, No. 13-cv-02296-REB-CBS, 2015 WL 328626, at *4 (D. Colo. Jan. 26, 2015) (declining to extend a Bivens damages remedy where alternative avenues of relief existed, in part because "Plaintiff could also pursue a remedy through the mandamus statute")). Third, Plaintiff may seek a remedy for his concerns through the prisoner grievance system. Id.; see also Ajaj v. Fed. Bureau of Prisons, No 15-cv-00992-RBJ-KLM, 2017 WL 219343, at *2 & n.6 (D. Colo. Jan. 17, 2017) (finding that the plaintiff had alternative remedies, such as filing a suit for injunctive relief or filing a grievance as part of the BOP's administrative remedy program). The Court finds that these alternative remedies foreclose the creation of a Bivens remedy for Plaintiff's constitutional claims.
Nevertheless, the Court also finds that there are special factors that counsel against the creation of a new Bivens remedy. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007). "[T]he inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Abbasi, 137 S. Ct. at 1857-58. "Thus, to be a 'special factor counselling hesitation,' a factor must cause a court to hesitate before answering that question in the affirmative." Id. at 1858 (citation omitted). This threshold is remarkably low. See, e.g., Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009).
The Court adopts its analysis in Huerta in finding that the factors counseling hesitation are more than sufficient to meet this low threshold. As noted in that case:
In the context of prison management, the Supreme Court recognizes the value of balancing inmates' interests against the administrative needs of the prison, noting that a degree of flexibility and accommodation of prison discretion is required. See, e.g., Wolff [v. McConnell], 418 U.S. [539,] 566-67 [(1974)] (stating that correctional institutions "must have the necessary discretion without being subject to unduly crippling constitutional impediments[.]"). Courts owe substantial deference to the professional judgment of prison administrators, and absent concerns that prison inmates will be otherwise unable to redress their claims, this Court hesitates to create a new cause of action that may be brought against prison officials for monetary damages.Huerta, 2019 WL 399229, at *17. Moreover, the Huerta decision recognized that prisoners "already have a variety of ways" to pursue their constitutional claims, and that "denying Bivens claims for money damages will not deny prisoners effective relief for their claims." Id. "On the other hand, creating a new remedy under Bivens for prisoners to gain relief by suing prison employees individually will interfere with prison management and add to the Court's already heavy burden of prisoner litigation." Id. (citing K.B. v. Perez, 178 F. Supp. 1108, 1112 (D. Colo. 2016)). As both of the relevant factors weigh against extending Bivens to Plaintiff's claims, the Court agrees with Defendants that there is no Bivens remedy as to Plaintiff's claims against them in their individual capacities under the First, Fifth, or Eighth Amendment.
Accordingly, the Court recommends that the Motion to Dismiss [#19] be granted as to the claims against Defendant Matevousian in his individual capacity, and that these claims be dismissed with prejudice for failure to state a claim. See, e.g., Ajaj v. United States, No. 15-cv-02849-RM-KLM, 2020 WL 747013, at *14 (D. Colo. Feb. 13, 2020); Behrens v. Gossett, No. CV-96-6160 DT(ANx), 1997 WL 732636, at *4 (C.D. Cal. July 14, 1997).
Because the individual capacity claims have been dismissed as to both Defendants, the Court need not address whether Defendants are entitled to qualified immunity on those claims.
3. Official Capacity Claims
As the Court has recommended that the individual capacity claims be dismissed, the Court's final analysis as to the Motion to Dismiss [#19] pertains to the constitutional claims remaining against Defendant Matevousian in his official capacity, and whether or not these claims state a claim for relief under Rule 12(b)(6). The Court first addresses the scope of official capacity claims and whether they are properly asserted. The Court then turns to the argument in the Motion to Dismiss [#19] that the claims should be dismissed for failure to state a claim under Rule 12(b)(6).
a. The Scope of the Official Capacity Claims
Although the Motion to Dismiss [#19] does not raise this argument, the Court addresses this sua sponte as it impacts the Court's subject matter jurisdiction. See Fed. R. Civ. P.12(h)(3). As a preliminary matter to the extent Plaintiff seeks damages against the United States under Bivens, or against the individual Defendants in their official capacities, his claims are barred by the doctrine of sovereign immunity. Ajaj, 2020 WL 747013, at *10 (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475, 485-86 (1994); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002)). As Plaintiff has asserted claims for monetary damages against Matevousian in his official capacity, it is recommended that these claims be dismissed without prejudice under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).
This applies equally to Defendant Krueger, although it has already been recommended that he be dismissed for lack of personal jurisdiction.
An official capacity claim for injunctive relief seeking prospective relief is not, however, barred by the Eleventh Amendment. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n.10 (1989). Here, to the extent Plaintiff is seeking declaratory relief as to Matevousian, it is prospective in nature as he asks for a declaration that Defendants have violated, and continue to violate, his constitutional rights. See Compl. [#1] ¶¶ 23, 42, 44. Similarly, Plaintiff is also seeking prospective injunctive relief against Matevousian because the alleged constitutional violations are ongoing. See Compl. [#1] ¶¶ 25, 45-47. Therefore, the injunctive relief claims against Defendant Matevousian in his official capacity are not barred by the Eleventh Amendment. See Palecek v. Zavaras, No. 09-CV-01351-ZLW-CBS, 2010 WL 3307489, at *3 (D. Colo. July 1, 2010), report and recommendation adopted, No. 09-CV-01351-ZLW-CBS, 2010 WL 3307617 (D. Colo. Aug. 18, 2010).
In conclusion, it is recommended that any claims for monetary damages against Matevousian be dismissed without prejudice under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. It is further recommended that the constitutional claims against Defendant Matevousian in his official capacity, seeking both declaratory and injunctive relief, are properly asserted. Again, however, Defendant Matevousian argues that these claims were not plead with the requisite particularity, and therefore should be dismissed under Fed. R. Civ. P. 12(b)(6). The Court thus turns to that argument.
b. Whether the Claims Fail to State a Claim for Relief
i. First Amendment Claim
A First Amendment retaliation claim requires that Plaintiff plausibly allege that "(1) he was engaged in a constitutionally protected activity; (2) the defendants caused him 'to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity'; and (3) the defendants' action was 'substantially motivated as a response to [Plaintiff's] exercise of constitutionally protected conduct.'" Turner v. Falk, 632 F. App'x 457, 460 (10th Cir. 2015) (citing Shero, 510 F.3d at 1203). Defendant Matevousian does not argue a deficiency in the above elements. Instead, he argues that Plaintiff did not adequately plead Matevousian's "personal participation in the alleged retaliatory scheme." Mot. Dismiss [#19] at 13-14. Matevousian also argues that Plaintiff did not adequately plead how filing an administrative grievance was the "but-for" cause of the alleged retaliatory tactics. Id. at 13, 15.
First, "Bivens liability can only lie for personal participation of a defendant." Proenza v. Greco, 3 F. App'x 742, 745 (10th Cir. 2001). As Defendant Matevousian argues, Plaintiff alleges liability for a number of persons who are not named Defendants, including the prison staff who intercepted Plaintiff's mail, the "unknown SHU officers" who deprived Plaintiff of non-pork meals, and Plaintiff's case manager who was involved in the denial of Plaintiff's Control Unit time. Mot. Dismiss [#19] at 14 (citing Compl. [#1] ¶¶ 27-43). However, this does not relieve Defendant Matevousian of liability because Plaintiff alleges that Matevousian allegedly ordered this conduct to be performed, such as ordering Plaintiff's mail to be intercepted, ordering the prison staff to ignore the continuous flushing in Plaintiff's cell, ordering officers to deny Plaintiff a breakfast meal, and ordering others to deny Plaintiff his Control Unit time. Compl. [#1] ¶¶ 30, 36, 37, 40. Moreover, Matevousian allegedly moved Plaintiff to the SHU of ADX, as well as moving Plaintiff into a "disgusting" cell that Plaintiff argues was "a tactic used by Defendant Matevousian to break prisoners who seek to petition the government for a redress of grievances." Resp. Mot. Dismiss [#24] at 8; Compl. [#1] ¶¶ 27, 29, 36. The Court finds that these actions, taken after the alleged filing of a grievance, could chill a person of ordinary firmness from filing further grievances. Turner, 632 F. App'x at 460. Accordingly, the Court finds that Plaintiff has plausibly alleged that Defendant Matevousian personally participated in alleged retaliatory tactics against Plaintiff.
Second, to state a plausible First Amendment retaliation claim, a plaintiff must also plead "specific facts showing retaliation because of the exercise of [his] constitutional rights[.]" See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quotation marks omitted; emphasis added). Particularly, the plaintiff must allege facts showing that "but for the retaliatory motive," the complained-of action "would not have taken place." Id. Plaintiff meets this standard because he alleges that after filing a grievance, he allegedly was told that "all you have to do is cooperate with the warden, like he said, and all this will end." Compl. [#1] ¶ 38. Plaintiff elaborates on this in his Response [#24], asserting that from August 22, 2018, through December 19, 2018, Matevousian repeatedly would send messages through unit manager Tuttoilmondo and former case manager Kinney that if he dropped the administrative remedies in this case and another action, "everything in regard to the retaliatory actions would cease." Id.at 8. Therefore, the Court finds that Plaintiff adequately pleaded but-for causation, and, ergo, that Plaintiff adequately pleaded his First Amendment claim.
Accordingly, the Court recommends that the Motion to Dismiss [#19] be denied to the extent that Plaintiff seeks declaratory and injunctive relief under the First Amendment against Defendant Matevousian in his official capacity.
ii. Fifth Amendment Claim
Defendant Matevousian next argues that Plaintiff has failed to adequately plead that he was deprived of a legitimate property interest that Plaintiff was entitled to. The Court agrees.
An inmate raising a Fifth Amendment procedural due process claim must plausibly allege two elements: (1) "there exists a liberty or property interest of which [he] has been deprived[;]" and (2) "the procedures followed by the State were constitutionally [in]sufficient." Swarthout v. Cooke, 562 U.S. 216, 219 (2011). "[P]roperty interests are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source." Ledford v. Sullivan, 105 F.3d 354, 357 (7th Cir. 1997). Moreover, "[a] constitutionally-protectible property interest does not arise simply because the Government has deprived someone of something that he desires or has a unilateral expectation of receiving; it arises only when the person has a 'legitimate entitlement to it.'" Brown v. Cooke, No. 06-cv-01092-MSK-CBS, 2009 WL 641301, at *20 (D. Colo. Mar. 9, 2009) (citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)). Defendant primarily argues that Plaintiff failed to plausibly allege the first element because he did not allege that he was indigent and thus unable to purchase soap and toothpaste from the commissary and because the alleged deprivation was only temporary, not permanent.
Turning to the Court's analysis, while Plaintiff alleged that he "cannot purchase hygiene] items from the commissary, [so he] has to rely on th[e] federal benefit[.]" Compl. [#1] ¶ 10. He again refers to the denial of soap and toothpaste during the period from August 15, 2018,until August 28, 2018. Id. Plaintiff has not alleged why he was unable to purchase hygiene items from the commissary, for example, by alleging that he was indigent. Nor did he address this issue in his Response [#24]. As Defendants recognize, courts routinely hold that there is no constitutional violation if the inmate is able to purchase these items, or if "simply made a personal choice between spending his funds on hygiene items" or some other items. See Gross v. Koury, 78 F. App'x 690, 694-95 (10th Cir. 2003); Tolbert v. Clarke, No. 10-cv-11643-RWZ, 2011 WL 2530975, at *3 (D. Mass. June 21, 2011 (collecting cases).
Even if the Court construes Plaintiff's allegations liberally as alleging that he did not have the money to pay for hygiene items, Plaintiff's claim still fails because Plaintiff's allegations show that he was only deprived of the hygiene items (soap and toothpaste) during certain limited time periods, i.e., from August 15-28, 2018, and October 17-28, 2018. Compl. [#1], ¶¶ 8-10, 17. The Court agrees with Matevousian that "a temporary" deprivation of personal items such as soap or toothpaste "does not deprive an inmate of a liberty or property interest." See Tolbert, 2011 WL 2530975, at *3 (citing Ra-o-kel-ly v. Johnson, 2011 WL 677234, at *1 (9th Cir. Feb. 25, 2011)); accord Cooper v. Bower, No. 15-cv-P249, 2016 WL 6667703, at *5 (W.D. Ky. Nov. 10, 2016) ("courts have generally held that the temporary deprivation of personal property does not impose an atypical or significant hardship in relation to the ordinary incidents of prison life") (collecting cases).
In response, Plaintiff asserts that 28 C.F.R. §§ 541.31(f) and 541.46(k) create an entitlement to hygiene items for SHU prisoners such as Plaintiff for purposes of a procedural due process analysis. Resp. Mot. Dismiss [#24] at 6-7. However, as Defendants recognize, Plaintiff has not cited any cases, nor has the Court located any, recognizing that these regulations create an entitlement to free soap and toothpaste for inmates in the SHU or otherwise, let alone a constitutionally protected entitlement. See Reply Mot. Dismiss [#34] at 8. Thus, the Court finds that Plaintiff does not have a legitimate entitlement to a constitutionally-protectible property interest.
Accordingly, the Court recommends that the Motion be granted as to Plaintiff's remaining Fifth Amendment claim against Defendant Matevousian in his official capacity, and this claim be dismissed with prejudice. Brereton, 434 F.3d at 1219.
iii. Eighth Amendment Claim
As discussed previously, since Plaintiff is challenging his conditions of confinement, the Court also analyzes whether Plaintiff has an Eighth Amendment claim. Claims like Plaintiff's challenging the denial of hygiene products to inmates are usually addressed under the Eighth Amendment's deliberate indifference standard. See, e.g., Gross v. Koury, 78 F. App'x 690, 693 (10th Cir. 2003) (holding that "the Eighth Amendment requires prisoners to be provided 'humane conditions of confinement guided by contemporary standards of decency.' . . [that] include the basic elements of hygiene and heat") (quoting Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996)). Again, courts addressing such claims routinely hold that prison officials do not violate the Eighth Amendment if they refuse to provide basic hygienic items if the inmate is able to purchase these items. Tolbert, 2011 WL 2530975, at *3 (collecting cases); see also Gross, 78 F. App'x at 693-94; Scott v. Case Manager Owens (SCF), 80 F. App'x 640, 643 (10th Cir. 2003). Plaintiff alleges only that he cannot purchase items from the commissary, but does not provide the reason for this. Plaintiff does not allege that he is indigent or was unable to afford to buy hygiene items during the temporary periods of deprivation of such items, and Plaintiff does not address this issue in his Response [#24] to the Motion to Dismiss [#19].
In any event, even if the Court can plausibly infer from Plaintiff's allegations that he could not afford to buy the hygiene items, Plaintiff has failed to allege facts from which an Eighth Amendment claim could be found. As the Tenth Circuit indicated in Khoury, "mere discomfort or temporary adverse conditions which pose no risk to health and safety do not implicate the Eighth Amendment." 78 F. App'x at 694. Here, as previously discussed, Plaintiff alleged only two temporary periods where he was not provided hygiene items, and did not allege any serious risk of harm from this. Cf. Penrod, 94 F.3d at 1406 (finding that deprivation of toothpaste that allegedly caused the plaintiff's gums to bleed and recede and tooth decay was sufficient to state a genuine issue of material fact as to whether denial of hygienic items caused the plaintiff serious harm under the Eighth Amendment).
Accordingly, the Court recommends that the Motion be granted to the extent an Eighth Amendment claim is asserted against Defendant Matevousian, and that this claim be dismissed with prejudice for failure to state a claim. Brereton, 434 F.3d at 1219.
II. Motion for Partial Summary Judgment
This Motion [#20] addresses only the First Amendment claim, the only remaining claim asserted as to Defendant Matevousian. As the Court recommended the dismissal of Defendant Krueger as well as the individual capacity claims and the official capacity claim for damages against Matevousian in Section I, the only remaining portion of the First Amendment claim asserts declaratory and prospective relief against Matevousian in his official capacity. Defendants argue that Plaintiff has failed to exhaust this claim as required by the Prison Litigation Reform Act ("PLRA").
Plaintiff did not state what facts set forth in Defendants' Statement of Material Facts were in dispute, as required pursuant to District Judge Christine M. Arguello's Practice Standards. To the extent that Plaintiff did not address Defendants' facts, they are thus deemed to be undisputed and are addressed in this Section. To the extent that Plaintiff stated additional facts that are relevant to the Motion [#20] or to Plaintiff's claims, they are discussed in Section II.C, infra.
Each formal complaint filed by a federal inmate is logged into SENTRY, the Bureau of Prison's ("BOP") national database that tracks data regarding an inmate's confinement, including administrative remedies. Each formal complaint receives a unique "Remedy ID Number," which follows the complaint throughout the appeal process, as well as an extender that identifies the level of review. There are three levels of review: the extension "F1" indicates the inmate filed the complaint at the institution level (BP-9); "R1" indicates a filing at the regional level with the BOP Regional Director (BP-10), and "A1" indicates a filing at the national level with the BOP Central Office (BP-11). An inmate has not exhausted administrative remedies pursuant to BOP policy until he has properly and timely sought review at all three levels.
Defendants assert that Plaintiff filed three administrative remedies that generally relate to the allegations in this case. Remedy ID 954631 related to Matevousian's alleged denial of hygiene products in a new hygiene-product protocol and being placed in an unsanitary cell. Remedy IDs 962166 and 969099 challenged the alleged denial of credit for two months of Control Unit time, and included a related retaliation claim. While Defendants acknowledge that Plaintiff exhausted his Fifth Amendment claim through Remedy ID 954631 (Reply [#36] at 12), none of these three administrative remedies or appeals of the remedies alleged retaliation related to Matevousian's based on Plaintiff's filing of an administrative remedy regarding hygiene products.
Also, on December 12, 2018, Plaintiff submitted an informal resolution form that alleged continuous running of the toilet in his cell. The "Department's Response" portion of the form states that the "toilet was fixed on 12-12-18," i.e., the date the Plaintiff filed the form. Finally, Plaintiff's Complaint alleges that "[o]n October 22, 2018, Plaintiff O'Banion wrote a "sensitive BP-10' . . . to Defendant Kreuger detailing the attacks upon Plaintiff O'Banion's Constitutional Rights," including 'the deprivation of freedom of speech." Compl.[#1] at 11. That is addressed in more detail in Section II.C, infra.
B. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed. R. Civ. P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.
Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than "mere reargument of [his] case or a denial of an opponent's allegation" or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).
C. Analysis
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies under the PLRA is "mandatory" and "a prerequisite to suit." Porter v. Nussle, 534 U.S. 516, 524 (2002). "Because the prison's procedural requirements define the steps necessary for exhaustion, . . . an inmate may only exhaust by following all of the steps laid out in the prison system's grievance process." Little v. Jones, 607 F.3d 1245, 1249 (10th Cir.2010).
"[T]his exhaustion requirement for suits regarding prison conditions applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Hoover v. West, 93 F. App'x 177, 179 (10th Cir. 2004) (quotations omitted). "[T]he burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant." Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
Defendants argue that Plaintiff did not exhaust his administrative remedies related to his First Amendment retaliation claim because the remedies that he filed did not allege retaliation by either Defendant as to Plaintiff's filing of an administrative remedy regarding hygiene products. Plaintiff disputes this, asserting that he sent a "Sensitive 10" which was a supplement to the administrative remedy and that he therefore exhausted his administrative remedies as to the First Amendment claim. Resp. Mot. Partial Summ. J. [#24], at 1. This so called "Sensitive 10" was in a series of letters attached as Exhibit A to Plaintiff's `Response [#24] to the Motion to Dismiss [#19]. Id.
The first in this series is a letter purportedly sent to the "Regional Office Director" on October 22, 2018, detailing issues Plaintiff was having with sending and receiving legal mail regarding an unspecified appeal of an administrative remedy. [#24-1], at 2-4. At the end of the letter, Plaintiff asked that he be allowed "to continue to pursue my administrative appeal, I am doing all I can to follow instructions, yet I'm being obstructed from pursuing an injustice." Id. at 3-4. The second letter was purportedly sent to the Regional Office Director later in the day on October 22, 2018. Id. at 5. That letter states it is a "supplement to the sensitive issue in regard to the issues I'm having with my appeal," explaining that no one had come by to pick up mail and Plaintiff was unable to get appropriate administrative remedy forms. Id.
Finally, the third letter dated December 18, 2018, was purportedly sent to the "General Counsel of BOP." Id. at 6-7. That letter requested that "this appeal be accepted and investigated for the unprecedented tactic [sic] attempted by the Warden at ADX-Max", including being placed in a filthy cell formerly occupied by a mentally ill prisoner, being denied two months of control unit time, having personal property confiscated, and either not being given meals or being forced "to accept pork trays" even though he is a Muslim or not eat at all. See [#24-1], at 7. Plaintiff further stated that he is continually a target for retaliation because he had appealed the Warden's decision to not pay IFRP [the Inmate Financial Responsibility Program], and that he was currently in a cell that has a toilet that runs all day and night which the "staff seems to think is comical." Id. This letter "appeal" raises many of the issues argued by Plaintiff in his First Amendment retaliation claim and, if compliant with the BOP administrative grievance process, would appear to be an exhaustion of administrative remedies.
Defendants deny that any of the letters, including the letter to the BOP's General Counsel ([#24-1] at 6-7) that is relevant to the First Amendment claim, constituted an administrative remedy that exhausted Plaintiff's remedies. See Reply Mot Partial Summ. J. [#36], at 2. Among other arguments, Defendants assert that the Regional and Central Offices have no record of receiving these letters and/or did not consider these letters as part of Plaintiff's administrative remedies as required for exhaustion. Id. at 1-5 and Exs. 1 and 2. Plaintiff asserts, however, that it is a well-known tactic for the BOP to either not respond to legitimate issues, to change the nature of the complaint, or ignore the claim, and that he "can submit a multitude of affidavits to support this fact, if this court requests." Resp. Mot. Partial Summ. J. [#24], at 2. Plaintiff did not, however, actually submit such an affidavit to refute Defendants' evidence on this issue.
In any event, the Court need not determine whether the letters were received or properly considered as part of Plaintiff's administrative remedies because the Court finds that Plaintiff did not properly exhaust his First Amendment claims. First, the two letters dated October 22, 2018, to the Regional Office Director as well as the three administrative remedies that Plaintiff did exhaust as discussed in Section I, supra, did not allege retaliation in connection with Plaintiff's First Amendment rights. As such, these letters and administrative remedies would not have provided "enough information to investigate and address the issues" raised in Plaintiff's First Amendment rights, which is required for a grievance to satisfy the PLRA's exhaustion requirement. See Barnes v. Allred, 482 F. App'x 308, 312 (10th Cir. 2012). As the Tenth Circuit noted in Barnes, ""the PLRA 'seeks to afford correction officials time and opportunity to address complaints internally before the filing of a federal case.'" Id. (quoting Woodford v. Ngo, 548 U.S. 81, 93 (2006)). "Requiring exhaustion serves this goal, but only 'if the prison grievance system is given a fair opportunity to consider the grievance.'" Id. (quoting id. at 95).
Second, as to the third letter dated December 18, 2018, to the General Counsel of BOP, this does raise many of the issues argued by Plaintiff in his First Amendment retaliation claim as noted previously. See [#24-1], at 6-7. However, it does not allege retaliation based on Plaintiff's filing of an administrative remedy challenging the new hygiene-products protocol at the ADX, as alleged in Plaintiff's First Amendment retaliation claim at issue. Rather, the letter alleges that these actions were performed in retaliation for Plaintiff appealing "the Warden's decision not to pay IFRP [the Inmate Financial Responsibility Program]." Id. at 7. As the Tenth Circuit held in Barnes, while a prisoner may have complained of issues related to those in his civil claim, "the similarity of issues alone is insufficient to satisfy exhaustion of administrative remedies. Id. (collecting cases); see also Burnett v. Leatherwood, 557 F. App'x 739, 741042 (10th Cir. 2014). Moreover, there is no evidence that his alleged retaliatory scheme was presented at each necessary level of review, i.e. at the institutional or regional level as compared to the national level (to the General Counsel of the BOP). Little, 607 F.3d at 1249. As the Supreme Court stated, "proper exhaustion of administrative remedies. . . 'means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits.'" Woodford v. Ngo, 548 U.S. 81, 91 (2006) (citation omitted).
To the extent the December 2018 letter could be construed as a "sensitive" request, such it did not have to be presented at the institution level, Plaintiff did not submit this letter to the appropriate Regional Director as required. See 28 C.F.R. §542.14(d)(1) ("If the inmate reasonably believes the issue is sensitive and the inmate's safety or well-being would be placed in danger if the Request became known at the institution, the inmate may submit the Request directly to the appropriate Regional Director.")
Accordingly, the Court finds that Plaintiff did not properly exhaust his administrative remedies. It is therefore recommended that summary judgment be granted as to the remaining First Amendment retaliation claim.
IV. Conclusion
Based upon the foregoing,
The Court respectfully RECOMMENDS that the Motion to Dismiss [#19] be GRANTED IN PART AND DENIED IN PART.
Specifically, it is RECOMMENDED that the Motion to Dismiss be GRANTED as to (1) all claims against Defendant Krueger for lack of personal jurisdiction, and these claims be dismissed without prejudice; (2) the claims against Defendant Matevousian in his individual capacity for lack of a Bivens remedy, and that these claims be dismissed with prejudice; (3) the official capacity claims against Defendant Matevousian to the extent they seek damages, and that these claims be dismissed without prejudice; and (4) the Fifth and Eighth Amendment claims against Defendant Matevousian in his official capacity, and that these claims be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#19] be DENIED as to the First Amendment retaliation claims against Defendant Matevousian in his official capacity to the extent they seek declaratory and injunctive relief.
IT IS FURTHER RECOMMENDED that the Motion for Partial Summary Judgment [#20] be GRANTED as to the remaining First Amendment retaliation claims against Defendant Matevousian.
IT IS FURTHER RECOMMENDED that the case be terminated.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: August 4, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge