United States District Court, D. Arizona
ORDER
HONORABLE RANER C. COLLINS, SENIOR UNITED STATES DISTRICT
JUDGE
On June
27, 2019, the Court held a Case Management Conference in this
matter. The Court considered the proposed case management
deadlines, and informed the parties that it would issue an
Order confirming the deadlines and addressing the remaining
issues before the Court - i.e. the consolidation of this
matter with the FTCA claim; Defendants Shartle and
McClintock's (“Wardens”) Motion to Dismiss
(Doc. 30); and Plaintiffs' Motion to Amend Complaint
(Doc. 41).
I.
Consolidation
Under
Local Rule 42, two cases may be consolidated into a single
case when the cases “(1) arise from substantially the
same transaction or event; (2) involve substantially the same
parties or property; . . . (4) call for determination of
substantially the same questions of law; or (5) for any other
reason would entail substantial duplication of labor if heard
by different judges.” LRCiv 42.
The
Parties agree that this case should be consolidated with
Plaintiffs' newly-filed FTCA claim in Case Number
CV-19-00325-RCC. The Court agrees: the factual basis is
identical, and consolidation adds the Government as a party
and avoids duplication of labor. As such, the Court will
order the cases consolidated.
II.
Motion to Amend Complaint and Disclosure Pursuant to
Touhy Subpoena
Plaintiffs'
Motion for Leave to File Second Amend Complaint (Doc. 41)
adds additional factual allegations to the Amended Complaint,
but because Plaintiffs have been unable to ascertain the
names of the Bureau of Prisons' (“BOP”)
employees involved in transferring Mr. Smith prior to his
death, it fails to include these names. Rather than
evaluating the motion at this juncture, in the interest of
judicial economy the Court will deny the motion with leave to
refile once Plaintiffs have more detail about the identity of
the John Doe Defendants.
To
obtain the John Doe Defendants' names, Plaintiffs issued
a Touhy subpoena on the Department of Justice
(“DOJ”) asking for: all documents in BOP and
Federal Bureau of Investigation's possession about the
employees working during the transfer; any information about
the homicide and the placement of Smith; and BOP policies
about housing assignments and protective treatment for sex
offenders. In addition, Plaintiffs wanted all information
regarding the determination of who should and should not
share a cell with Romeo Giovanni, the inmate who strangled
Smith. The DOJ has refused to provide such discovery because
the Court ordered discovery stayed until the pending Case
Management Conference. Furthermore, the DOJ and the Wardens
argue that Plaintiffs should not be permitted more discovery
until the pending Motion to Dismiss is decided.
Under
the MIDP, initial disclosures include “the names and,
if known, the addresses and telephone numbers of all persons
. . . likely to have discoverable information . . . and
[must] provide a fair description of the nature of the
information each such person is believed to possess.”
General Order 17-08 ¶ (B)(1). Without determining the
matter conclusively, the Court believes that Plaintiffs have
stated a viable Bivens claim against the John Doe
Defendants if Plaintiffs can name them individually. The only
way Plaintiffs can do so is for the DOJ to provide these
names. Therefore, the Court will order the DOJ to release
“the names and, if known, the addresses and telephone
numbers of” the persons who were involved in the
transfer of Mr. Smith to the SHU and placement with Mr.
Giovanni “and provide a fair description of the nature
of the information each such person is believed to
possess.”
III.
Motion to Dismiss
In the
Motion to Dismiss the Wardens' first claim that
Plaintiffs' suit is an unlawful extension of
Bivens because it demands personal liability for the
Wardens failure to change BOP policy to protect sex
offenders. Second, the Wardens argue that they enjoy
qualified immunity. Finally, the Wardens assert that because
McClintock was not acting warden during the event she should
be dismissed.
a.
Bivens
Bivens
claims create an implied right of action for damages against
a federal officer's personal constitutional violations.
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The Supreme Court has
extended implied remedies under Bivens in three
cases only: Bivens (unconstitutional Fourth
Amendment search), Davis v. Passman, 442 U.S. 228
(1979) (Fifth Amendment Equal Protection violation for sex
discrimination), and Carlson v. Green, 446 U.S. 14
(1980) (Bivens claim for Eighth Amendment violation
for failure to provide medical care permissible despite
available FTCA claim). See Ziglar v. Abbasi, 137
S.Ct. 1843, 1855 (2017). Since Bivens, the Supreme
Court warned that “expanding the Bivens remedy
is now a ‘disfavored' judicial activity.”
Id. at 1857 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 675 (2009).
Plaintiff's
claim extends Bivens beyond what has previously been
permitted by the Supreme Court. The Wardens state that this
case seeks to extend Bivens because it is an attempt
to hold the Wardens liable for not initiating a policy about
housing sex offenders. In contrast, Plaintiffs claim that
they are not trying to pursue policy change, and that they
only want to hold the Wardens liable because they knew of the
risks to sex offenders and “knew of [Smith's]
assignment in the SHU, including that he was placed in a cell
with Mr. Giovanni.” (Doc. 35 at 11.) But, no facts
alleged in the Amended Complaint suggest that the Wardens
were directly aware of the danger Giovanni posed to Smith and
consciously disregarded it. Nor is there any allegation that
they knew of the direct threat to any sex offender housed
with Giovanni.
While
Plaintiffs claim they have no interest in holding the Wardens
accountable for failing to implement a policy change in sex
offender housing, they contend that “[u]nder the
oversight of Defendants Shartle and McClintock, there was no
system in place to ensure that sex offenders were housed
separately from the gang drop-outs and other prisoners who
wished to h a r m them.” Id. at 11. In
addition, Plaintiffs are seeking declaratory and equitable
relief, not simply damages. So, it appears that it was not
the direct unconstitutional actions of the Wardens that
support Plaintiffs' claim, but the Wardens' failure
to create a policy that protected sex offenders.
While
Bivens has been permitted for certain Eighth
Amendment and Fifth Amendment violations, the facts differ
than those presented here. In the Eighth Amendment context,
the officer was aware of the need for medical care and failed
to provide it. Carlson, 446 U.S. at 14, fn.1.
Furthermore, the Supreme Court's opinion in
Carlson issued in 1980, sixteen years before the
enactment of the Prison Litigation Reform Act
(“PLRA”). Here, there is no indication that the
Wardens were aware of the threats against Smith, and as
described infra, Congress has since provided another
remedy under PLRA. Furthermore, the Fifth Amendment claim was
a sex discrimination in employment claim and not, as
indicated here, a violation of familial association. See
Davis, 442 U.S. 231. So, this case presents a new
context.
Plaintiffs
also contend that Farmer v. Brennan, 511 U.S. 825
(1994), demonstrates they are permitted to bring a
Bivens claim. But the Farmer opinion issued
prior to the Supreme Court's clarification in
Ziglar, 137 S.Ct. 1843 (2017), and Farmer's
claim did not allege that the officers needed to impose a BOP
policy and seek declaratory and equitable relief. Moreover,
Farmer did not decide when a Bivens claim
may be brought. Instead, Farmer held only that
deliberate indifference exists when an “official knows
of and disregards an excessive risk to inmate health or
safety: and that to find deliberate indifference “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.”
Farmer, 511 U.S. at 837. There is no allegation that
the Wardens were ...