Opinion
Case No. CIV-08-594-F.
February 26, 2009
REPORT AND RECOMMENDATION
Plaintiff, Walter Curtis Moles, a federal prisoner, has filed a complaint alleging violations of his federal constitutional rights and asserting a right of recovery for monetary damages against individual defendants pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff also asserts a right of recovery against the United States under the Federal Tort Claims Act (FTCA). Finally, Plaintiff asserts a right of recovery for injunctive relief. This matter has been referred for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C).
Defendants have filed a Motion to Dismiss [Doc. #66]. Plaintiff has responded to the Motion [Doc. #76], and Defendants have filed a Reply [Doc. #78]. In addition, the Court has received a Special Report [Doc. # 68].
For the reasons set forth below, it is recommended that Defendants' Motion to Dismiss be denied.
I. Factual Background
For purposes of Defendants' pending Motion to Dismiss, accepting the well-pleaded factual allegations of the Complaint as true, the following factual background serves as the basis for Plaintiff's claims in this lawsuit.
In 1995, the United States Bureau of Prisons (BOP) designated Plaintiff a central inmate monitoring (CIM) case after prisoners, members of the Aryan Brotherhood gang, assaulted Plaintiff while he was incarcerated in the United States Penitentiary (USP) in Kansas. According to federal regulation, inmates given CIM status "present special needs for management" and "require a high level of review" so as to "provide protection" and "contribute to the safe and orderly operation of federal institutions." See 28 C.F.R. § 524.70.
In 1999, Plaintiff testified against a federal inmate who was a member of the Aryan Brotherhood gang accused of participation in a prison drug smuggling operation. See United States v. McElhiney, 275 F.3d 928 (10th Cir. 2001). Because Plaintiff testified as a government witness, the BOP gave Plaintiff a disruptive group separation from both the Aryan Brotherhood and the Mexican Mafia, another prison gang. See 28 C.F.R. § 524.72(d). The BOP also gave Plaintiff a separation from several individual inmates. See 28 C.F.R. § 524.72(f).
In February 2004, The New Yorker magazine published an article entitled The Brand, describing the prison activities of the Aryan Brotherhood gang. The article specifically identifies Plaintiff as a government witness testifying about the gang's drug smuggling operations. At the time the article was released, Plaintiff was incarcerated at the Federal Correctional Institution (FCI) in Memphis, Tennessee. The magazine made its way into the general population at FCI Memphis. As a result, for his protection, the BOP transferred Plaintiff to FCI Schuylkill, Pennsylvania. According to Plaintiff, FCI Schuylkill is free of white supremacy gangs. Plaintiff remained there for three years without incident.
In 2006, Plaintiff requested a nearer release transfer to Forrest City, Arkansas. Instead, the BOP transferred Plaintiff to FCI El Reno, Oklahoma. On May 6, 2007, Plaintiff arrived at FCI El Reno and Defendant Towers conducted an intake screening. Plantiff alleges that at the time of the intake screening he had no knowledge of the presence of white supremacy gangs at FCI El Reno. Plaintiff further alleges that when asked during intake screening whether he had ever testified against anyone, he responded "It's in my file." And, when asked if there were any reason he should not be placed in the general population, Plaintiff responded by asking: "I don't have any separatees here?" According to Plaintiff, the intake officer responded "no." Plaintiff was then placed in the general population at FCI El Reno. Plaintiff alleges Defendants Benefiel and Scibana approved Towers' assignment of Plaintiff to the general population.
Prior to his incarceration, Plaintiff resided in Arkansas.
Approximately three months later, on August 18, 2007, an inmate named "T.D." summoned Plaintiff to his cell. Another inmate, Douglas Shummy, was in the cell. Plaintiff recognized Shummy as an inmate previously housed at USP Kansas during the same period of time that Plaintiff had been incarcerated there and testified against the Aryan Brotherhood. After Plaintiff entered the cell, a third inmate named "D.K." (Darold Ellingsworth) appeared and identified himself as a member of the Aryan Brotherhood gang. These inmates attacked Plaintiff and told Plaintiff they knew he had testified as a government informant. Plaintiff alleges his shirt was torn and bloody and that he suffered abrasions, swelling to his face and pain from the attack. However, fearful of further attack, Plaintiff returned to his cell rather than report the attack to prison officials. Other inmates warned Plaintiff of further attack, telling him to be careful and that he might be stabbed. According to Plaintiff, he could not report the incident to guards without placing himself in further jeopardy.
Plaintiff armed himself with a metal rod and placed books around his mid-section to protect his vital organs in case he were stabbed. The following day, August 19, 2007, Plaintiff alleges Shummy attacked him. At the time of the attack, Plaintiff wielded the metal rod as a means to protect himself but claims he never struck Shummy. Guards broke up the fight, and Defendant Towers took Plaintiff to the medical unit for treatment.
Plaintiff received an incident report and was charged with fighting and with possession of a weapon. Plaintiff claims it took until September 13, 2007, for an investigation to commence. According to Plaintiff, Darold Ellingsworth and T.D. were placed in the Special Housing Unit pending an investigation. They were released on October 25, 2007, and no charges were brought against them. In response to administrative grievances, Plaintiff alleges Defendant Warden Scibana advised him "there is no validated A[ryan] B[rotherhood] members at FCI El Reno."
During the period of Plaintiff's incarceration at FCI El Reno, Warden Ledezma replaced Warden Scibana as Warden of FCI. The parties have not alleged facts indicating when the replacement took place. Plaintiff has named both Scibana and Ledezma as defendants in this action.
Due to the disciplinary charges against Plaintiff, his security points were increased, and Defendants requested his transfer from FCI El Reno to a higher security facility. After a brief incarceration at USP Atwater, California, the BOP transported Plaintiff to USP Terre Haute, Indiana. Plaintiff arrived at USP Terre Haute on April 16, 2008. Plaintiff filed the instant action on June 9, 2008, while incarcerated at Terre Haute. For safety and security reasons, since the filing of this lawsuit, Plaintiff has been transferred from USP Terre Haute, and is currently incarcerated at USP Coleman II, Florida.
II. Plaintiff's Claims
In Count I of the Amended Complaint, Plaintiff claims a violation of his Eighth Amendment rights based on Defendants alleged failure to protect him from inmate assault. Plaintiff alleges his transfer to FCI El Reno and his placement in the general population was made in disregard of his classification as a CIM case. Plaintiff alleges Defendants exposed him to a substantial risk of serious harm resulting in the attack by the prisoners at FCI El Reno whom Plaintiff contends are affiliated with white supremacy gangs including the Aryan Brotherhood.
In Count II of the Amended Complaint, Plaintiff alleges Defendants retaliated against him, in violation of his First Amendment rights, for filing grievances about both the August 18, 2007, attack and the manner in which Defendants conducted the subsequent investigation of the attack. Plaintiff further alleges Defendants conspired to cover up the violations of his Eighth Amendment rights.
In Count III, Plaintiff claims Defendants Lappin, Sauers, Roberts and Ledezma violated his Eighth Amendment rights when they requested and approved his transfer to the USP in Terre Haute, Indiana. Plaintiff claims he is not safe in any USP and that the decision to transfer him to a USP was made in deliberate indifference to his safety and protection.
As relief, Plaintiff seeks compensatory and punitive damages. Plaintiff further seeks injunctive relief, requesting that Defendants be enjoined from housing Plaintiff in a federal penitentiary (USP). Plaintiff requests placement in a state contract facility (but not in the states of California or Texas) or placement in a federal correctional institution (FCI).
III. Standard Governing Motions to Dismiss
Defendants move for dismissal of the Bivens claims raised in Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. In ruling on a 12(b)(6) motion, the Court accepts as true all well-pleaded facts and views those facts in the light most favorable to Plaintiff, the non-moving party. KT G Corp. v. Attorney General of the State of Oklahoma, 535 F.3d 1114, 1133 (10th Cir. 2008). The specific allegations in the complaint must plausibly support a legal claim for relief. Bell Atl. Corp v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "Rather than adjudging whether a claim is "improbable," `[f]actual allegations [in a complaint] must be enough to raise a right to relief above the speculative level.'" Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) ( quoting Twombly, 127 S.Ct. at 1965). In addition, where, as here, the complaint is submitted pro se, the court liberally construes the allegations of the complaint. Id. (citation omitted).
As noted, in the Amended Complaint Plaintiff also references the FTCA as a basis for recovery. See also Plaintiff's Motions [Doc. ##32 and 54]. Defendants do not address the FTCA in moving for dismissal of Plaintiff's claims nor do Defendants address Plaintiff's claims for injunctive relief. Therefore, only Plaintiff's Bivens claims are considered.
In moving for dismissal of Plaintiff's Bivens claims, Defendants rely on matters submitted with the Special Report. "[I]n particular circumstances, the [Special] [R]eport may be considered part of the pleadings for purposes of Fed.R.Civ.P. 12(b)." Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991). For example, "[w]hen the prisoner challenges a prison's policies or established procedures and the [Special] [R]eport's description of the policies or procedures remains undisputed after plaintiff has an opportunity to respond, [the court] should, and will, treat portions of the [Special] [R]eport describing the policies or procedures like a written document that has been attached to plaintiff's complaint." The Special Report may not, however, be used to resolve factual disputes. Id. at 1111 ("A [Special] [R]eport is treated like an affidavit and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence.").
IV. Analysis
A. Count I — Failure to Protect
The Eighth Amendment imposes a duty upon prison officials to "take reasonable measures to guarantee the safety of inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). To establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm by other inmates], the plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm[,] the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component." Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (internal quotation marks omitted). "Mere negligence does not constitute deliberate indifference; deliberate indifference is equivalent to recklessness in this context." Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006).
1. Objective Component: Conditions Posing a Substantial Risk of Serious Harm
In Count I, Plaintiff alleges that Defendants violated his Eighth Amendment rights by approving his transfer to FCI El Reno and allowing him to be placed in the general population there. Plaintiff claims as a former government witness, he is a member of an identifiable group needing special protection. See Farmer, 511 U.S. at 843 (recognizing that prisoner can demonstrate exposure to sufficiently serious risk of harm because he belongs to identifiable group frequently singled out for violent attack by other inmates). Plaintiff alleges the presence of Aryan Brotherhood gang members and members of related white supremacy gangs like The Dirty White Boys in the general prison population at FCI El Reno created a substantial risk of serious harm. Plaintiff alleges his CIM classification, based on his prior testimony on behalf of the government against the Aryan Brotherhood gang, alerted prison officials of a substantial risk of serious harm if he were placed in a facility where members of the Aryan Brotherhood gang or their affiliates are housed.
Plaintiff's allegations are sufficient to plausibly support a claim for relief as to the objective component of a deliberate indifference claim. Compare Farmer, 511 U.S. at 848 (observing that prisoner, a transsexual with a feminine appearance, faced high probability of sexual attack by male inmates); Verdecia, 327 F.3d at 1176 (Cuban inmate celled with members of Latin Kings gang who later assaulted him satisfied objective component of Eighth Amendment failure to protect claim; facts alleging history of recent violence between Cubans and members of this gang created inference that a substantial risk of serious harm existed).
2. Subjective Component: Defendants' Deliberate Indifference
Defendant's Motion to Dismiss is focused on the subjective component of a deliberate indifference claim. This component requires an "inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment." Farmer v. Brennan, 511 U.S. 825, 838 (1994). It is not enough to allege that prison officials failed "to alleviate a significant risk that [they] should have perceived but did not." Id. Instead, "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
Defendants rely on alleged responses Plaintiff gave to the intake officer at the time of Plaintiff's initial arrival at FCI El Reno. See Special Report, Exhibit 2. According to check marks placed on the form by the intake officer, Plaintiff responded "no" to the questions: "Do you know of any reason that you should not be placed in general population?"; "Have you assisted law enforcement in any way?"; and "Have you testified against anyone in court?". Defendants also rely on the fact that Plaintiff did not report any concerns to prison officials about his safety prior to the assaults on August 18, 2007.
As set forth above, Plaintiff disputes the accuracy of the responses as reflected on the form and, therefore, the form may not be relied upon by this Court in ruling on Defendants' 12(b)(6) motion. In addition, the form indicates that Plaintiff alerted prison officials to the fact that he was a CIM case and, therefore, that special considerations applied to review of his file. Moreover, Plaintiff's failure to report concerns for his safety is not dispositive of his Eighth Amendment claim. See Farmer, 511 U.S. at 848 (prisoner's failure to notify prison officials of risk of harm was not dispositive of his Eighth Amendment failure to protect claim; prison officials' awareness of risk of harm could be established by any relevant evidence). Defendants, therefore, have not shown that dismissal of Plaintiff's Eight Amendment claim raised in Count I of the Amended Complaint is proper on the basis sought. Defendants' Motion to Dismiss, therefore, should be denied as to this claim. B. Count II — Retaliation
In their Reply, Defendants reiterate that "Plaintiff must present evidence supporting an inference that defendants actually knew about a substantial risk of serious harm." See Defendants' Reply [Doc. #3] (emphasis in original) ( citing Verdecia v. Adams, 327 F.3d at 1175). Plaintiff has indicated he intends to request discovery on matters including production of "SIS files on gang activity at FCI El Reno for 2007" and production of his CIM file. See Plaintiff's Motion Seeking Additional Discovery [Doc. #71] at 8. Such requests encompass the type of "relevant evidence" necessary to establish the subjective component of Plaintiff's Eighth Amendment claim. Indeed, in Farmer, on remand from the Supreme Court, the Seventh Circuit reversed the district court's grant of summary judgment because the district court had not allowed Farmer to conduct proper discovery. See Farmer v. Brennan, 81 F.3d 1444 (7th Cir. 1996). Pertinent to the Seventh Circuit's decision was the fact that discovery requested by Farmer, but not permitted by the district court, "might have demonstrated that defendants did have reason to believe Farmer faced a substantial risk of serious harm within the meaning of the Supreme Court's opinion." Farmer, 81 F.3d at 1451. The discovery requested by Farmer included "[i]nformation about the type of offenders and the environment [at USP Terre Haute]. . . ." Id.
In Count II of the Complaint, Plaintiff alleges prison officials conspired to cover up the violation of his Eighth Amendment rights. According to Plaintiff, prison officials did not promptly investigate the August 2007 assaults upon him. He claims they delayed in the investigation so that pertinent evidence would no longer be available. Plaintiff alleges that when he began to file grievances complaining about the manner in which prison officials conducted the investigation of the assaults, he was retaliated against. Specifically, Plaintiff alleges false disciplinary charges were brought against him.
Prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights. However, an inmate claiming retaliation must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Fogle v. Pierson, 435 F.3d 1252, 1263-64 (10th Cir. 2006) (quotation omitted).
Here, Plaintiff alleges retaliation for filing prison grievances. In Fogle, the Tenth Circuit noted that: "[S]everal circuits have held that a prisoner's first amendment right to petition the government for redress of grievances encompasses the filing of inmate administrative appeals." Id. at 1264 ( citing Hines v. Gomez, 853 F.Supp. 329, 331 (N.D.Cal. 1994) (citing cases)). The Tenth Circuit reversed the district court's dismissal of the prisoner's retaliation claim stating "if in fact DOC officials retaliated against Fogle based on his filing administrative grievances, they may be liable for a violation of his constitutional rights." Id.
In moving for dismissal of the claim raised in Count II of the Amended Complaint, Defendants misconstrue the nature of Plaintiff's claim. Defendants characterize Plaintiff's claim as a challenge to the due process Plaintiff received in connection with the incident report filed against him. Citing Wolff v. McDonnell, 418 U.S. 539 (1974), Defendants contend that Plaintiff received due process in the context of the disciplinary charges brought against him. Defendants do not, however, address Plaintiff's actual claim, that prison officials retaliated against him when he exercised his right to file prison grievances complaining about the manner in which prison officials investigated the August 2007 assaults against Plaintiff. Having misconstrued the claim Plaintiff brings in Count II of the Amended Complaint, and having failed to address grounds for dismissal of Plaintiff's retaliation claim, Defendants' motion to dismiss the claim raised in Count II of the Amended Complaint should be denied.
C. Count III — Deliberate Indifference — Transfer from FCI El Reno
In Count III of the Amended Complaint, Plaintiff brings an Eighth Amendment claim alleging Defendants acted with deliberate indifference when they made the decision to transfer him from FCI El Reno to a USP. Defendants move for dismissal of this claim on grounds that it is barred by the United States Supreme Court's decisions in Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997). Defendants contend that if Plaintiff were successful on this claim it would necessarily imply the invalidity of his disciplinary conviction. The Court disagrees.
In Heck, the United States Supreme Court held that when a prisoner seeks damages under 42 U.S.C. § 1983, a district court must determine whether a judgment in favor of the prisoner would "necessarily imply the invalidity of his conviction or sentence." Heck, 512 U.S. at 487. If so, his claim is not cognizable under § 1983 and "the complaint must be dismissed unless the [prisoner] can demonstrate that the conviction or sentence has already been invalidated." Id. Although Heck involved a § 1983 action, the Tenth Circuit applies Heck to Bivens actions as well. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996). And, in Edwards v. Balisok, 520 U.S. at 648, the Supreme Court extended Heck to a prisoner's claim for declaratory relief and damages challenging the validity of the prison disciplinary procedures used to deprive him of good-time credits.
Plaintiff is not seeking to invalidate the disciplinary conviction. Plaintiff does allege that the disciplinary conviction resulted in an increase in his security points which, in turn, served as the basis for the decision to transfer him to a USP Terre Haute. See Farmer, 511 U.S. at 830 (noting that "penitentiaries are typically higher security facilities that house more troublesome prisoners than federal correctional institutions"). However, Plaintiff further claims that notwithstanding his increased security points, Defendants could have taken steps to designate Plaintiff to an FCI rather than a USP where Plaintiff claims he is not safe. Plaintiff claims Defendants' failure to designate him in a manner that would allow his transfer to a facility commensurate with his CIM status and special needs constitutes deliberate indifference. Plaintiff's claim raised in Count III of the Amended Complaint does not necessarily implicate the invalidity of his disciplinary conviction. Defendants' request for dismissal of the claim raised Count III on this basis, therefore, should be denied. D. Failure to Allege Facts Demonstrating Personal Participation by Defendant Lappin
Defendants further allege Plaintiff did not exhaust administrative remedies as to any challenge to the disciplinary conviction. Because Plaintiff's claim raised in Count III of the Amended Complaint is not dependent on the invalidity of his disciplinary conviction, the exhaustion issue raised by Defendants is not dispositive. Defendants have not addressed whether Plaintiff has failed to exhaust administrative remedies as to his claim that Defendants' decision to transfer him to USP Terre Haute violated his Eighth Amendment rights.
Defendants Lappin, Sauers, Scibana and Ledezma further seek dismissal of Plaintiff's claims alleging that Plaintiff seeks to impose supervisory liability against them. See Kite v. Kelley, 546 F.2d 334, 337 (10th Cir. 1976) (holding in a Bivens action that "before a supervisor may be held for acts of an inferior, the superior . . . must have participated or acquiesced in the constitutional deprivations"). Defendants do not support this ground for dismissal with any analysis of the factual allegations of Plaintiff's Amended Complaint.
Plaintiff has alleged that Defendants Lappin and Sauers had knowledge of his CIM classification and control over his designation to FCI El Reno. Plaintiff has alleged that Defendants Scibana and Ledezma also had knowledge of his CIM classification. He alleges Defendant Scibana approved Plaintiff's placement in the general prison population at FCI El Reno. He alleges Defendant Ledezma approved his transfer from FCI El Reno to a USP. Plaintiff further alleges he submitted grievances to all Defendants concerning the claims raised in the Complaint, including his concerns about a transfer from FCI El Reno to a USP. Dismissal of these Defendants therefore, is not proper at this stage in the proceedings. E. Qualified Immunity
The Court expresses no opinion whether Defendants' personal participation may be found lacking once factual development of the claims has progressed, and Defendants are not precluded from moving for summary judgment as to this and any other issues once discovery in this matter has been completed.
Defendants also move for dismissal on grounds of qualified immunity. Qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity defense applies only to Plaintiff's claims for monetary damages against the Defendants in their individual capacities. See Elder v. Holloway, 510 U.S. 510, 512 (1994) ("The doctrine of qualified immunity shields public officials . . . from damage actions unless their conduct was unreasonable in light of clearly established law."). Qualified immunity is "an immunity from suit rather than a mere defense to liability. . . . [and, therefore], it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Defendants have raised the defense of qualified immunity in a cursory fashion and with no legal analysis or application of the defense to the specific claims brought by Plaintiff. As set forth above, Count I of Plaintiff's Amended Complaint states an Eighth Amendment failure to protect claim and, therefore, at this stage in the proceedings, Defendants are not entitled to qualified immunity. As to the claims raised in Counts II and III of the Amended Complaint, Defendants have failed to correctly identify the claim and/or a legal or factual basis for dismissal of the claim. Defendants, therefore, have set forth no basis for application of the qualified immunity defense to those claims. Dismissal of Plaintiff's claims raised in the Amended Complaint on grounds of qualified immunity, therefore, should be denied. However, Defendants should not be precluded from raising the defense at a later stage in these proceedings.
Recently, the United States Supreme Court has recognized that courts should be granted flexibility to address qualified immunity at the pleading stage when "the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed" or when "the briefing of constitutional questions is woefully inadequate." See Pearson v. Callahan, ___ S.Ct. ___, No. 07-751, 2009 WL 128768 at * 11 (U.S. Jan. 21, 2009).
V. Plaintiff's Pending Motions
Plaintiff has several pending motions. The Court first addresses the following pending motions: Motion for Preliminary Injunction [Doc. #27], Motion for Hearing [Doc. #29] and Motion for Order [Doc. #63]. These motions pertain to Plaintiff's prior placement at USP Terre Haute, Indiana. Subsequent to the filing of these motions, the BOP transferred Plaintiff to USP Coleman II in Florida. The Court entered an Order [Doc. #89] directing Plaintiff to address the pendency of these motions in light of his changed circumstances. Plaintiff filed a Response [Doc. #91] and advised the Court that these motions are in fact moot due to his transfer from USP Terre Haute and should be denied. Accordingly, it is recommended that Plaintiff's Motion for Preliminary Injunction [Doc. #27]; Motion for Hearing [Doc. #29]; and Motion for Order [Doc. #63] be denied as moot.
Plaintiff has also filed a Motion for Leave to Amend his Complaint [Doc. #74] and a Motion to Supplement his Motion for Leave to Amend his Complaint [Doc. #82]. Plaintiff seeks leave to further amend his Amended Complaint to add additional defendants. Defendants have not responded to Plaintiff's Motion and, therefore, have not raised any objections to his request for leave to further amend his Amended Complaint.
Plaintiff's Motion for Leave to Amend his Complaint [Doc. #74] should be granted in part and denied in part. Guiding the Court's consideration of Plaintiff's Motion is Rule 15(a)(2) of the Federal Rules of Civil Procedure which provides that "[t]he court should freely give leave when justice so requires."
Plaintiff's Motion should be granted with respect to Plaintiff's request to add as an additional defendant Mathew Mendez, Case Manager, FCI El Reno. Mr. Mendez is identified in Defendants' Motion to Dismiss as the person responsible for interviewing Plaintiff upon Plaintiff's arrival at FCI El Reno. Because Mr. Mendez participated in the intake and designation of Plaintiff at FCI El Reno, Plaintiff should be allowed to further amend the complaint to asserts claims against this individual.
Plaintiff's Motion should be denied as to the following additional individuals Plaintiff seeks to add as defendants: Lt. Phelps, Six Unnamed Guards at USP Terre Haute, H.J. Marberry, Warden at USP Terre Haute, Trina Meyers, Administrative Remedy Coordinator at USP Terre Haute; and Michael Nulley, Regional Counsel. Plaintiff's allegations against each of these individuals pertain to events occurring at USP Terre Haute. As Plaintiff alleges no facts to demonstrate these individuals purposely directed activities at Plaintiff while incarcerated at FCI El Reno, there is no indication that these individuals have purposefully established minimum contacts in the State of Oklahoma. This Court, therefore, lacks personal jurisdiction over these individuals. See, e.g., Garrett v. Klinger, 12 Fed. Appx. 842, 844 (10th Cir. 2001) (unpublished op.) (finding, in federal prisoner's Bivens case, that federal district court in Colorado lacked personal jurisdiction over director of medical services for federal prisoners who resided in Missouri). Moreover, as to individual capacity claims alleged against these individuals, venue would not be proper in this judicial district. See 28 U.S.C. § 1391(b). If Plaintiff wishes to pursue legal action against these individuals, he must proceed with filing a complaint in the United States District Court for the Southern District of Indiana, the judicial district in which Plaintiff's claims arose and the individuals purportedly reside. See 28 U.S.C. § 94(b).
Plaintiff's Motion to Supplement his Motion for Leave to Amend [Doc. #82] should be granted. Plaintiff seeks to supplement the allegations of his Amended Complaint with respect to his claims that Defendants Sauers and Lappin have violated his Eighth Amendment rights. As noted, Defendants have not objected to Plaintiff's Motion.
Plaintiff's final pending motion before this Court is a Motion Seeking Additional Discovery/Continuance Pursuant to Fed.R.Civ.P. 56(f) [Doc. #71]. Rule 56(f)(2) provides that a court may "order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken" if a party opposing a Rule 56 summary judgment motion "cannot present facts essential to justify its opposition." The Court has not construed Defendants' Motion to Dismiss as a motion for summary judgment. Accordingly, Plaintiff's request for a Rule 56(f) continuance should be denied. The denial of Plaintiff's Motion, however, should be without prejudice to Plaintiff's ability to pursue discovery as may be appropriate pursuant to the applicable Federal Rules of Civil Procedure.
RECOMMENDATION
For the reasons set forth below, it is recommended that Defendants' Motion to Dismiss [Doc. #66] be denied.
It is further recommended that Plaintiff's Motion for Preliminary Injunction [Doc. #27], Motion for Hearing [Doc. #29] and Motion for Order [Doc. #63] be denied as moot. Plaintiff's Motion for Leave to Amend his Complaint [Doc. #74] should be granted in part and denied in part. The Motion should be granted with respect to Plaintiff's request to add as an additional defendant Mathew Mendez, Case Manager, FCI El Reno. Plaintiff's Motion should be denied as to the following additional individuals Plaintiff seeks to add as defendants: Lt. Phelps, Six Unnamed Guards at USP Terre Haute, H.J. Marberry, Warden at USP Terre Haute, Trina Meyers, Administrative Remedy Coordinator at USP Terre Haute, and Michael Nulley, Regional Counsel. Plaintiff's Motion to Supplement his Motion for Leave to Amend [Doc. #82] should be granted. Finally, Plaintiff's Motion Seeking Additional Discovery/Continuance Pursuant to Fed.R.Civ.P. 56(f) [Doc. #71] should be denied without prejudice to Plaintiff's ability to pursue discovery as may be appropriate pursuant to the Federal Rules of Civil Procedure.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and Recommendation. See 28 U.S.C. § 636. Any objections must be filed with the Clerk of this Court by March18th , 2009. See Local Civil Rule 72.1. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).STATUS OF REFERRAL
This Report and Recommendation does not dispose of all issues referred in this matter and does not terminate the referral.