Smith v. Shartle

          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 ...