Free Motion for Summary Judgment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-OES MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT THEREOF

The individual defendants, through the undersigned counsel, move pursuant Fed. R. Civ. P. 56 for summary judgment and state therefor: I. INTRODUCTION Michael Garraway, a federal prisoner incarcerated at the United States Penitentiary (USP) in Florence, Colorado, brings this suit pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against 13 Bureau of Prisons (BOP) employees, the United States of America, and the BOP for injuries caused by several of the defendants.1 Garraway is serving a life sentence for pre-mediated

Notwithstanding Garraway's assertion that jurisdiction rests upon other statutes, only 28 U.S.C. § 1331 authorizes jurisdiction for his claims cognizable under Bivens. Pleasant v. Lovell, 876 F.2d 787, 793 (10 th Cir. 1989).
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murder. Exhibit A1, Public Information Inmate Data. Garraway, an inmate in the Special Housing Unit (SHU) of the USP, alleges that on February 12, 2003, after he was taken from a holding cell to Lieutenant Lee Rittenmeyer's office, he was assaulted by Defendants Lincoln, Robles, and Rittenmeyer. He also alleges that Officer Watson, who was standing nearby, is liable for the assault even though he did not participate in the assault because he failed to prevent it or intervene to stop it. Following the incident, Garraway alleges that he was placed in hand, waist, and leg restraints for approximately 50 hours over a three-day period causing him physical and emotional pain and discomfort. Garraway alleges that he was given an incident report for his misconduct but that the charge was "expunged." Complaint, p. 3b. He was found not to have committed the prohibited act of "lunging" (id. at p. 3c) and found not to have violated any BOP rules. Id. In his complaint Garraway made three claims: Denial of First Amendment rights; denial of Fifth Amendment rights; and violation of his Eighth Amendment rights. He has since voluntarily dismissed the first claim regarding any violation of his right to the free exercise of his religious beliefs. Doc. 33. Garraway essentially has three claims at issue: (1) That he was subject to excessive use of force when on February 12, 2003, he was allegedly assaulted by Defendants Rittenmeyer, Lincoln, and Robles, while Officer Watson failed to intervene. (2) That he was subject to an excessive use of force or

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unlawful conditions of confinement when he was placed in ambulatory restraints; (3) That his liberty interests were violated on account of Defendants Grafton, Gunja, Lincoln, Rittenmeyer, Robles, Sams, Santos-Collins, and Watson falsifying documents, which resulted in his being placed in ambulatory restraints.2 Garraway's claims against each of the defendants, who were employed at USP Florence during the time relevant to this suit are set forth more specifically below: Guy Drennan, the Health Services Administrator, who at the time of the incidents was acting as the institution's "duty officer." He is alleged to have refused to remove Garraway's restraints on February 12, 13, and 14, 2003, to permit him to pray and to wash himself in violation of his Eighth Amendment rights. He also alleged to have falsified a document. Exhibit A4, Declaration.3 Dale Grafton, a Case Manager, is alleged to have falsified a memo stating that he witnessed the incident when, in fact, he did not. Exhibit A5, Declaration. Joseph Gunja, BOP Regional Director, is alleged to have falsified a "Report of Incident" because he relied on the false reports of other officers. He is also alleged to have refused to allow Garraway to remove his restraints to allow him to pray and wash in

2 On April 19, 2005, the Bureau of Prisons and the United States filed a motion to dismiss the claims made against them. Doc. 67.

2

Each of the defendants' declarations are referenced here for ease of reference. Each contains a description of the position held and alleged involvement as well as their denials and defenses to plaintiff's allegations.
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violation of his First and Eighth Amendment rights. Exhibit A6, Declaration. Kenneth Lincoln, at the time of the alleged assault was assigned to the SHU as a Counselor. Garraway alleges that on February 12, 2003, Lincoln struck him three times on his jaw with his fist. He also alleges Lincoln falsified a document that stated Garraway lunged at the escorting officer. Exhibit A7, Declaration. Michael Maroni, a Lieutenant, is alleged to have refused Garraway's requests made on February 12 and 13, 2003, to have his restraints removed so that he could pray and wash himself in violation of his Eighth Amendment rights. He is also alleged to have falsified a government document. Exhibit A8, Declaration. Leo Ortega, a Captain, is alleged to have refused Garraway's requests made on February 12 and 13, 2003, to have his restraints removed so that he could pray and wash in violation of his Eighth Amendment rights. He is also alleged to have falsified a government document, which served to keep him in ambulatory restraints. Exhibit A9, Declaration. Hector Rios, who was employed as the Associate Warden for Operations, is alleged to have refused Garraway's requests to have his restraints removed to allow him to wash and pray in violation of his First and Eighth Amendment rights. Exhibit A10, Declaration. Lee Rittenmeyer, a Lieutenant in the SHU, is alleged to have ordered the officers present in his office on February 12, 2003, to "Take [Garraway] down! Take his black ass

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down hard." Complaint, p. 3a. Garraway alleges that Rittenmeyer came over to him when he was lying on the ground and jerked on his handcuffs causing an abrasion. Id. He is also alleged to have kicked him in the face four times. Complaint, p. 3a. Rittenmeyer is alleged to have ordered that Garraway have a waist chain put on him along with a black box over his handcuffs secured with a padlock. Id. He is also alleged to have falsified a document, which led to Garraway's remaining in ambulatory restraints after the alleged assault. Exhibit A11, Declaration. Mark Robles, a Senior Officer Specialist at USP Florence, is alleged to have hit Garraway in the face and caused him to fall backwards hitting his head on a chair or table. Garraway alleges that Robles falsified a document, which stated that he lunged at the escorting officers. Exhibit A12, Declaration. Richard Sams, a Correctional Counselor, is alleged to have falsified a memo regarding the incident when he was not actually present. Exhibit A13, Declaration. Celeste Santos-Collins (Collins) is employed as a Mid-Level Practioner or Physicians Assistant. She is alleged to have falsified an injury assessment report although she was not personally present for the incident. She is also alleged to have caused Garraway "to defecate in his clothing." Exhibit A3, Declaration. Benjamin Valle, a Lieutenant and Senior Officer Specialist, is alleged to have refused Garraway's requests to have his restraints removed to allow him to wash and pray in violation of his Eighth Amendment rights. He is also alleged to have falsified a

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government document relating to the incident. Exhibit A16, Declaration Andrew Watson (misidentified by Garraway in the complaint as "Audrey Watson"), was a Senior Officer Specialist in February 2003. He is alleged to have stood by while Garraway was assaulted. Garraway does not allege that Watson personally participated in the assault on February 12, 2003. He is also alleged to have falsified a document that stated he lunged at the escorting officers. Exhibit A17, Declaration. Judgment should be entered on plaintiff's claims for the following reasons: (1) The defendants are entitled to qualified immunity. (2) Garraway is unable to present evidence to establish that he was subject to a violation of his Eighth Amendment rights when he was allegedly assaulted and placed in ambulatory restraints. (3) Garraway was not subject to a deprivation of a liberty interest when he was placed in ambulatory restraints and therefore cannot prove a Fifth Amendment due process claim. (4) The defendants, who were acting in a supervisory capacity, cannot be held liable based on respondeat superior. II. STANDARD OF REVIEW A motion for summary judgment should be granted where there is no dispute of material fact, and it is clear that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986). The

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non-moving party bears the burden of coming forward with evidence to create a material issue of fact as to each element of his claim. Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). The non-movant "may not rest upon mere allegations or denials of pleadings, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10 th Cir. 1992) (citations omitted); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10 th Cir. 1993) (non-moving party cannot rest on the mere allegations in the pleadings); L & M Enterprises v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10 th Cir. 2000) ("Unsupported conclusory allegations thus do not create a genuine issue of fact."); Adler v. Wal-Mart Stores Inc., 144 F.3d 664, 671-72 (10 th Cir. 1998) (conclusory allegations in verified complaint and brief are no help in carrying non-movant's burden under Rule 56). In reviewing a complaint, a court is not required to accept conclusory allegations, unwarranted inferences, or legal conclusions. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10 th Cir. 1994). Finally, a plaintiff's pro se status does not excuse his obligation to comply with the requirements of the Federal Rules of Civil Procedure. Ogden v. San Juan County, 32 F.3d 452, 455 (10 th Cir.1994) ("While we of course liberally construe pro se pleadings, an appellant's pro se status does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.").

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III. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Garraway is currently an inmate serving a natural life sentence for first

degree murder in 1985 of a United States Naval Officer. Exhibit A1; Exhibit A2, Deposition of Garraway, pp. 9-12; 13, lines 1 - 21. 2. lines 22 - 25. 3. He has been designated to the Special Housing Unit of the USP Garraway has been an inmate at USP Florence since 1998. Ex. A2, p. 13,

on the following dates: 3/13/2000 to 3/17/2000; 5/24/2001 to 10/7/2002; 10/31/2002 to 12/4/2002; 1/8/2003 to 5/17/2004. Exhibit A18, Brieschke Declaration, ¶ 6. 4. The SHU is a designated higher security area of the prison where inmates

are assigned, who are deemed unable to live in general population. Exhibit A18, ¶ 8. 5. 6. On February 12, 2003, Garraway housed in the SHU. Complaint, p. 3. He was assigned to the SHU for purposes of administrative detention.

Exhibit A18, ¶ 7. 7. On February 12, 2003, Garraway was housed in a cell by himself. Ex. A2,

p. 45, lines 9 -25. 8. As of February 12, 2003, Garraway had a history as an inmate of refusing to

obey orders, disruptive behavior, and was considered a problem inmate. Exhibits A7, Lincoln Declaration, ¶ 5; Exhibit A17, Watson Declaration, ¶ 34.

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9.

At approximately 9 a.m. on February 12, 2003, Garraway was ordered by

Defendant Watson to submit to handcuffs in order to be removed from his cell which was to be searched. Complaint, p. 3; Ex. A2 , p. 47 (by Officer Watson). 10. Garraway was handcuffed behind his back and leg irons were placed around

his ankles. Complaint, p. 3. 11. Garraway has no complaint about Watson's actions of having him placed in

handcuffs and leg restraints and placed in a holding cell. Ex. A2, p. 50, lines, 8 - 12. 12. Lieutenant Lee Rittenmeyer ordered that Garraway be brought to his office

for a discussion. Complaint, p. 3; Exhibit A17, Watson Declaration, ¶ 9. 13. Garraway had expressed his opposition to taking a cell mate prior to

February 12, 2003. Exhibit A7, Lincoln Declaration, ¶ 5; Exhibit A17, Watson Declaration, ¶ 33. 14. Garraway refused to go to Rittenmeyer to speak with him. Ex. A2, p. 50,

line 24 - p. 51, line 5; p. 51, lines 13 - 19. 15. On February 12, 2003, when Garraway was told he was being taken to the

Lieutenant's office, he refused to cooperate and walk there on his own. Complaint, p. 3; Ex. A2, p. 54-55; Exhibit 17, Watson Declaration, ¶¶ 11-12. 16. Officers C. Spann, Santiago, and Watson were present at Garraway's cell to

escort him to the Lieutenant's office. Complaint, p. 3a.; Spann Declaration, ¶ 5.

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17.

He was ordered to submit to being escorted to the Lieutenant's office.

Complaint, p. 3. 18. After he was told to cooperate, he sat down in the shower cell where he was

at the time. Complaint, p. 3. 19. After he was brought into the Lieutenant's office, he was seated on a chair.

Complaint, p. 3a. 20. 21. Garraway states that the escorting officers left the office. Complaint, p. 3a. Garraway states that he was left in the office with Rittenmeyer, Lincoln,

Robles, and Watson. Complaint, p. 3a. 22. Moments after being placed in the chair, Garraway got up without

permission and lunged or charged at the escorting officers, who at this time were leaving the office. Complaint, p. 3a; Ex. A2, p. 57, lines 23 - 25; Exhibit A7, Lincoln Declaration, ¶ 9; Exhibit A11, Rittenmeyer Declaration, ¶ 13; Exhibit A12, Robles Declaration, ¶ 9; Exhibit A15, Spann Declaration, ¶ 8; Exhibit A17, Watson Declaration, ¶ 15. 23. As a SHU inmate, Garraway had no right to leave the office without

permission and under escort. Exhibit A11, Rittenmeyer Declaration, ¶ 17. 24. Upon seeing Garraway making a threatening move toward the officers,

Lieutenant Rittenmeyer yelled to them to "watch out." Exhibit A11, Rittenmeyer, ¶ 14.

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25.

Garraway's unauthorized, rapid movement toward the back of the officers

leaving the office posed a threat to their physical safety. Exhibit A12, Robles Declaration, ¶ 12. 26. Officer Robles responded by grabbing Garraway and bringing him down to

the floor. Exhibit A12, Robles Declaration, ¶ 11. 27. In doing so,Officer Robles did not cause injury to Garraway but only used

the force necessary to place Garraway on the floor in order to regain control of him. Exhibit A12, Robles Declaration, ¶ 14. 28. Garraway was then placed in precautionary (ambulatory) restraints

consisting of handcuffs placed with his arm in front of his body, a black box and padlock over the handcuffs, a waist chain connected to the hand cuffs, and leg restraints. Complaint, p. 3a.; Exhibit A12, Robles Declaration, ¶ 19. 29. 3a. 30. No other physical force was used on Garraway once he was placed in Garraway was then returned to his cell area without incident. Complaint, p.

ambulatory restraints. Complaint; Exhibit A15, Spann Declaration, ¶ 12; Exhibit A13, Sams Declaration, ¶ 10. 31. As a result of the incident in the Lieutenant's office, Garraway was

continued in ambulatory restraints consisting of handcuffs, a belly or waist chain (Martin

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chain), and leg irons. Exhibit A10, Rios Declaration, ¶ 16; Exhibit A8, Maroni Declaration, ¶ 15. 32. While in the ambulatory restraints for periods of time on February 12, 13,

and 14, staff made checks every 15 minutes or more frequently. Ex. A2, p. 91; Exhibit A19. 33. The use of ambulatory restraints is guided by Bureau of Prisons regulations

and policy. Exhibit A20, BOP Program Statement 5566.05, pp. 5-7. 34. The use of ambulatory restraints was not done for a punitive, malicious or

sadistic purpose. Exhibit A6, Gunja Declaration, ¶ 17; Exhibit A8, Maroni Declaration, ¶ 15; A10, Rios Declaration, ¶ 16. 35. For part of the approximately 50 hours, Garraway was in restraints, soft

restraints were employed consisting of plastic handcuffs. Exhibit A18, Brieschke Declaration, ¶ 12; Exhibit A9, Ortega Declaration, ¶¶ 11-16. 36. While in ambulatory restraints, an inmate remains able to eat, drink, sleep,

wash, walk around the cell, and defecate. Exhibit A9, Ortega Declaration, ¶¶ 10-15. 37. The use of ambulatory restraints is not designed to cause pain anddoes not

cause more than de minimis pain unless the inmate resists the restraints. Id.; Exhibit A3, Collins Declaration, ¶ 22; Exhibit A9, Ortega Declaration, ¶ 14.

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38.

At approximately 10 a.m., on February 12, 2003, Garraway was examined

at his cell by Physician's Assistant Celeste Collins. Exhibit A3, Collins Declaration, ¶¶ 710. 39. Exhibit A3. 40. At the time of the examination, Collins noted that Garraway was Her examination revealed no physical injuries. Id., ¶ 17, and Exhibit 1 to

uncooperative and exhibited a "personality disorder." Exhibit A3, ¶ 14. 41. Garraway remained in ambulatory restraints for a period of approximately

50 hours over a period of three days. Exhibit A18, Brieschke Declaration, ¶ 12; Exhibit A19. 42. During this time, Garraway remained disruptive and insolent. Exhibit A12,

Robles Declaration, ¶ 31; Exhibit A19, Restraint Application Review Forms; Exhibit A16, Valle Declaration, ¶¶ 9, 15. 43. Garraway was placed and continued in ambulatory restraints due to the

threat for physical harm he posed to staff and other inmates as a result of the incident in the Lieutenant's office and in light of his unwillingness to comply with staff directives. Exhibit A6, Gunja Declaration, ¶¶ 8-11; Exhibit A10, Rios Declaration, ¶ 16. 44. Staff checked on Garraway every 15 minutes while he was in the

ambulatory restraints. Exhibit A9, Ortega Declaration, ¶ 12; Exhibit A19.

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45.

The continuation of the use of ambulatory restraints was reviewed and

approved by then Warden Gunja. Exhibit A6, Gunja Declaration, ¶ 17; Exhibit A21, After-Action Review Report. 46. The emergency use of force and application of restraints was reviewed by

BOP Regional Director G. L. Hershberger on March 6, 2003, and found to be in accordance with BOP policy and procedures. Exhibit A21, p.5. 47. The use of ambulatory restraints under the circumstances presented on

February 12, 13, 14, 2003, was justified based on Garraway's present danger that he posed to staff and other inmates and his lack of cooperation. Exhibit A6, Gunja Declaration, ¶ ¶ 17-19. 48. The use of the restraints was also consistent with BOP policy and

regulations regarding use of restraints. Exhibit A20; Exhibit A21. 49. As a result of his placement in restraints, Garraway was not physically

injured. Exhibit A3, Collins Declaration; Exhibit A8, Maroni Declaration, ¶ 21; Exhibit A19; Exhibit A9, Ortega Declaration, ¶ 20. 50. Garraway at no time, while in restraints, defecated in his clothes or needed

assistance to clean himself while he was in ambulatory restraints. Exhibit A3, Collins Declaration, ¶¶ 26-27; Exhibit A4, Drennan Declaration, ¶¶ 16, 19; Exhibit A7, Lincoln Declaration, ¶ 19.

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51.

As a result of the allegations contained in his complaint, Garraway did not

require any medical care or treatment. Exhibit A3, Collins Declaration, ¶ 26. 52. Garraway has dismissed any claim that his rights were violated based on his

religious beliefs. Ex. A2, p. 7, lines 20-24. 53. The placement of Garraway in restraints has not affected and will not affect

the length of his sentence. Exhibit A18, Brieschke Declaration, ¶ 9. 54. The defendants each deny that they violated Garraway's rights or caused

him physical harm. Exhibit A2 - Exhibit 17. IV. ARGUMENT A. THE DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY.

Government officials are shielded from individual liability for civil damages if 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). Qualified immunity is immunity from suit, not merely from liability. Hunter v. Bryant, 502 U.S. 224, 227 (1991); Pleasant v. Lovell, 876 F.2d 787, 793 (10 th Cir. 1989). Once the defense of qualified immunity is asserted in a motion for summary judgment, the undisputed evidence must be examined to determine if it contains factual allegations sufficient to establish that the defendant violated a clearly established constitutional right. Hope v. Pelzer, 536 U.S. 730, 739 (2002); Siegert v. Gilley, 500 U.S. 226, 231-32 (1991); Currier v. Doran, 242 F.3d 905, 917 (10 th Cir. 2001). The court

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must first determine whether the plaintiff has alleged facts showing the violation of a constitutional right. Siegert, 500 U.S. at 232. It then must determine if the right was clearly established. Id. To be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clear weight of authority from other circuits must establish the right. See Herring v. Keenan, 218 F.3d 1171, 1176 (10 th Cir. 2000); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (1992). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 194-95 (2001). With respect to Garraway's three remaining claims, he cannot establish a violation of his constitutional rights because the undisputed facts demonstrate that the defendants did not violate clearly established law. 1. Garraway's Claim That He Was Subject to Use of Excessive Force Fails Because Only Reasonable Force Was Used to Prevent Him from Endangering Prison Staff.

In order to establish a violation of the Eighth Amendment for cruel and unusual punishment, Garraway must prove that the defendants used force that inflicted unnecessary and wanton pain and suffering for a malicious or sadistic purpose and not in a good-faith effort to restore order and discipline. Whitley v. Ablers, 475 U.S. 312, 32122 (1986); Northington v. Jackson, 973 F.2d 1518, 1523 (10 th Cir. 1992). An excessive force claim thus has two components: (1) an inmate must show that objectively the force

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used was harmful enough to establish a constitutional violation; and (2) he must also show that the force was applied with the subjective intent of causing pain and not in a good-faith effort to restore discipline and order. That is, a prison official must have had a sufficiently culpable state of mind when he used force on an inmate. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Not "every malevolent touch by a prison guard gives rise to a federal cause of action. Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (internal quotations and citations omitted). While not dispositive, "[t]he extent of injury may be relevant in determining whether corrections officers unnecessarily and wantonly inflicted pain; however, its absence does not end the inquiry. The court should also consider the relationship between the [the need for application of force] and the amount of force used, the threat reasonably perceived by the responsible officers, and any efforts made to temper the severity of a forceful response." Northington, 973 F.2d at 1524 (internal quotations and citations omitted). A de minimis use of force is not actionable under the Eighth Amendment. Hudson, 503 U.S. at 9-10.

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In reviewing an excessive force claim, the court must be deferential to prison officials charged with maintaining safety and order in the prison. Whitley, 475 U.S. at 322. Prison officials are tasked with maintaining order and discipline in a volatile environment that does require immediate responses with no time for second guessing a potential threat. Hudson, 503 U.S. at 6; Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (discretion accorded in light of fact that prison administration is "at best an extraordinarily difficult undertaking"). Prison officials are to be accorded broad discretion over the institutions they manage, Hewitt v. Helms, 459 U.S. 460, 467 (1983), and over matters of institutional security. Whitley, 475 U.S. at 321-22. Thus, unless it appears from the evidence before the court, viewed in a light most favorable to the inmate, that a reliable inference of wantoness can be drawn, the case should not go to the jury. Id. at 322. In this case, Garraway cannot establish that Defendants Spann and Robles, who placed him on the floor after he posed a threat, or Defendants Rittenmeyer, Lincoln, and Watson, who were present at the time, used unreasonable force under the circumstances. The undisputed facts show that Garraway is an unruly, disobedient inmate with a violent criminal history. He is serving a life sentence for the stabbing of his commanding officer. When he was ordered to proceed to the Lieutenant's office for a meeting with Lieutenant Rittenmeyer, he refused the order to walk there on his own accord. Officers Spann, Watson, and Santiago, were required to escort him there involuntarily. Exhibit

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A17, Watson Declaration, ¶¶ 9-12. Upon being taken to the office, Garraway was placed in a chair in front of Lieutenant Rittenmeyer's desk. Only moments after that, he rose up and quickly charged toward the escorting officers who were leaving the office. (As a SHU inmate, Garraway had no right to leave the office unescorted). Lieutenant Rittenmeyer, out of concern for those officers, yelled to them to watch out. Officers Spann and Robles reacted by grabbing hold of Garraway and placing him on the floor. They did so with the minimum amount of force to gain control of Garraway, who was trying to break free from their hold. Exhibit A12. None of the defendants in the office used more force than reasonable in the face of Garraway's threat. Garraway was then placed in additional restraints and taken to his cell. He was not subject to any other force. After he was returned to his cell on February 12, 2003, Garraway was examined by a Physicians Assistant (Celeste Collins), who did not document any objective signs of injury. Exhibit A3. Garraway did not require medical treatment on that day or thereafter for any injuries allegedly sustained on February 12, 2003. As such, Garraway's injuries were de minimis, if that. See, e.g., Edwards v. Braxton, No. 7:04-CV-00550, 2005 WL 1388746 (W.D. Va. June 10, 2005) (notwithstanding inmate's allegations of injuries, lack of documented injuries deemed de minimis). The defendants, who were present in the office (Rittenmeyer, Lincoln, Robles and Watson) all deny assaulting Garraway. Exhibits A11, ¶ 8; Exhibit A7, ¶ 11; Exhibit A12,

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¶ 15; Exhibit A17, ¶¶ 17-19. (Garraway avers in his complaint that Watson only observed the other defendants and did not participate in the alleged assault.) Defendants Rittenmeyer, Lincoln, and Watson did not have physical contact with Garraway. Officers Spann and Robles state that they were only trying to gain control of Garraway in order to return him to his cell. Exhibit A15, ¶ 10; Exhibit A12, ¶¶ 14-15. The defendants state that they were acting in good faith. Exhibit A7, Lincoln Declaration, ¶ 13; Exhibit A11, Rittenmeyer Declaration, ¶ 10; Exhibit A12, Robles Declaration, ¶ 6; Exhibit A17, Watson Declaration, ¶ 32. Garraway is unable to establish under the circumstances of his disorderly and rebellious conduct that the defendants were acting with maliciousness or bad faith when they used minimal force to gain control over him. In this case, Garraway fails to provide admissible evidence that he was subject to an objectively serious use of force. The defendants were clearly justified in reacting with force in the face of Garraway's imminent threat. The fact that Garraway stood up and lunged toward the officers leaving the office placed them in harms way. The defendants response under the circumstances was entirely reasonable and aimed at ensuring their safety. In light of the threat that Garraway posed to the officers, it is unreasonable to expect that Defendant Watson could be expected to intervene and prevent any physical force from being used to restrain Garraway. Even if it is assumed that unreasonable force was used as Garraway alleges, Defendant Watson was in no position to second guess the

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other defendants and prevent it. He could not be expected to ascertain in a matter of seconds that any one of the defendants harbored malicious intent against Garraway under the circumstances of his misconduct. Garraway fails to present admissible evidence that Officer Watson was acting with a culpable state of mind when he did not intervene to prevent the excessive use of force as Garraway alleges occurred. With respect to Defendants Rittenmeyer, Robles, and Lincoln, even assuming that more than de minimis force was used, Garraway cannot show that it was done other than in a good-faith effort to restore order and discipline. He fails to offer admissible evidence that would permit a trier of fact to infer that the force used was more than necessary to control a disruptive inmate with a history of violence. For these reasons, Defendants Lincoln, Rittenmeyer, Robles, and Watson are entitled to qualified immunity, and his excessive force claim fails. 2. Garraway Was Not Subject to Cruel and Unusual Punishment When He Was Placed in Ambulatory Restraints for Approximately 50 Hours.

Excessive Force Analysis Under the excessive force analysis set forth above, Garraway's rights were not violated when he was placed in ambulatory restraints for approximately 50 hours as a result of his threatening behavior during which time he alleges that he defecated in his clothing. Cf. Hope v. Pelzer, 536 U.S. at 738 (inmate tied to hitching post in hot sun without opportunity to relieve himself found to constitute cruel and unusual punishment).

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It appears from Garraway's complaint, which is not entirely clear, that he is not claiming a violation from being placed in ambulatory restraints for the period he was, but that it was violative of his rights because he was forced to spend part of the time in soiled clothes. In this case, the use of ambulatory restraints did not constitute an objectively serious deprivation under the circumstances. Sanders v. Hopkins, No. 97-3082, 1997 WL 755276 at *2 (10 th Cir. Dec. 5, 1997) (use of restraints on a limited basis does not constitute cruel and unusual punishment); see also Cunningham v. Eyman, 17 Fed. Appx. 449 *3 (7 th Cir. 2001) (No violation was found where inmate spent 16 hours in shackles and four to five hours in soiled clothing: "Though certainly unpleasant, these hardships were temporary and as this court's case law makes clear, they were not of sufficient severity to implicate the Eighth Amendment."). Garraway does not dispute that while he was in restraints that he was able to eat, sleep, and walk around his cell. He is unable to offer any proof of physical injury due to the restraints. He was examined by PA Collins on February 12, 2003, after the restraints were applied and found not to have any injury. Exhibit A3, ¶¶ 8-17. PA Collins noted no other injury after Garraway had remained in the restraints through February 14, 2003. Id., ¶ 26. Miller v. Glanz, 948 F.2d 1562, 1570 (10 th Cir. 1991) (challenged conduct must result in "either severe pain or lasting injury."); Malik v. Mack, 15 F. Supp.2d 1047, 1050 (D. Kan. 1998) (use of restraints that cause only slight wrist injury insufficient to state

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claim). As such, Garraway fails to establish an objectively serious deprivation, and he fails to prove the first prong of an excessive force claim. Garraway also fails to prove that the defendants' motivation for keeping him in restraints or not removing them sooner was for an improper purpose, i.e., done with a sufficiently culpable state of mind. Because Garraway had made a threatening move toward the backs of the officers who were leaving the Lieutenant's office on February 12, 2003, his continued hostile behavior, threat to staff and other inmates, and in light of Garraway's criminal history, justified placement of ambulatory restraints for approximately 50 hours. (28 C.F.R. § 552.22(f) provides that "Restraints should remain on the inmate until self-control is regained."; Exhibit A16, Valle Declaration, ¶ 17). Even after he was placed in ambulatory restraints, Garraway's hostile activity continued even after he was returned to his cell. Exhibit A8, ¶ 9. Garraway is unable to prove that under these circumstances, the continuation of the ambulatory restraints was done for a malicious purpose. Prison officials are entitled to discretion in their decision making concerning security measures. Hewitt, 459 U.S. at 467; Whitley, 475 U.S. at 321-22. Moreover, Garraway is unable to prove that those defendants who were not present during the alleged assault (Collins, Drennan, Grafton, Gunja, Maroni, Rios, Sams, and Valle) knew or had reason to know that the information on which they were relying to allow Garraway to remain in restraints was false or fabricated. Even assuming the documentation supporting the continuation of ambulatory restraints was fabricated (e.g.,

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Exhibit 21, pp. 26-32 (staff memoranda)), Garraway can offer no admissible evidence that the nine defendants not involved in the alleged assault harbored ill will toward him. As such, Garraway cannot prove the second prong of an excessive force claim involving the continued use of ambulatory restraints. For these reasons, Garraway's claim involving the use of ambulatory restraints must be denied. Conditions of Confinement Analysis Even if Garraway's claim over the use of ambulatory restraints were considered to be one relating to conditions of confinement and analyzed under a deliberate indifference standard, Farmer, 511 U.S. at 837, his claim still fails. "[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. First, as with the excessive force analysis, the use of the ambulatory restraints under the circumstances present cannot be said to constitute a deprivation of the minimal necessities of life. "Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Hudson, 503 U.S. at 8 (internal quotations and 24

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citations omitted). Garraway's placement in restraints for 50 hours does not violate this standard. See Burkley v. Correctional Healthcare Mgt. of Okla., Inc., No. 04-6079, 2005 WL 1595699 (10 th Cir. July 8, 2005) (restraint of pretrial detainee by one arm for three days insufficient to support conditions of confinement claim). Second, Garraway cannot prove that the defendants, who placed the restraints after his threatening behavior harbored a culpable mental state (Defendants Lincoln, Rittenmeyer, Robles, Spann, Santiago, and Watson). There is no admissible evidence to suggest that the defendants, who either placed the restraints or who had the authority to remove them, acted with deliberate indifference to Garraway's condition. In particular, Garraway is not able to dispute that Defendants Grafton and Sams, who are not assigned custody related duties, had the authority to order or remove the restraints. Exhibit A5, Grafton Declaration, ¶¶ 11-12; Exhibit A13, Sams Declaration, ¶ 14. Moreover, with respect to Garraway's allegations that he was left to remain in clothes soiled with his feces for several days, the defendants have provided admissible evidence that they were not aware of Garraway's alleged plight. See Statement of Undisputed Facts, ¶ 50. Even assuming that Garraway had soiled his clothes, he has not proven that any of the defendants were aware of the fact. Because he has failed to prove that the defendants were aware of his soiled condition, he cannot prove that they were deliberately indifferent to his need to clean himself. Garraway's conclusory allegations

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that he was allowed to remain in soiled clothes is insufficient to withstand summary judgment. B. BECAUSE THE APPLICATION OF AMBULATORY RESTRAINTS DID NOT CONSTITUTE AN ATYPICAL DEPRIVATION, GARRAWAY FAILS TO STATE A FIFTH AMENDMENT CLAIM.

Citing various prison policies, Garraway alleges that he was denied his Fifth Amendment due process rights when he was placed in ambulatory restraints based on documents falsified by several of the defendants. In Sandin v. Conner, 515 U.S. 472, (1995), the Supreme Court held that only atypical and significant deprivations of an inmate's liberty interest violates the Fifth Amendment's Due Process Clause. Relying on Sandin, the Tenth Circuit has also held that the placement of an inmate in administrative detention does not constitute an atypical or significant deprivation. Talley v. Hesse, 91 F.3d 1411, 1413 (10 th Cir. 1996) ("Sandin makes clear that placement in administrative segregation such as occurred here does not give rise to a liberty interest. As a consequence, the procedures involved need not comply with procedural due process."). See also Thielman v. Leean, 282 F.3d 478, 484 (7 th Cir. 2002) (no liberty interest implicated by use of handcuffs, waist chain, and leg irons during transport of inmate for medical treatment); Washington v. Harper, 494 U.S. 210, 226 (1990) (placement of mentally ill prisoner on anti-psychotic drugs found not to be a deprivation of a liberty interest in the prison setting where safety of others of concern).

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"The due process rights of prisoners are subject to reasonable limitation or restriction in light of the legitimate security concerns of the institution, Bell v. Wolfish, 441 U.S. 520, 546-47 . . . (1979), and `the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.'" Penrod v. Zavaras, 94 F.3d 1399, 1406 (10 th Cir. 1996), quoting, Hewitt, 459 U.S. at 468. Prison officials are rightly accorded deference and flexibility in dealing with the volatile environment of a prison setting. Sandin, 515 U.S. at 482. Deprivations which do not impact the length of sentence are not implicated by the Due Process Clause of the Fifth Amendment. Id. at 487. In this case, the placement of Garraway in ambulatory restraints and Warden Gunja's decision to continue use of the restraints did not constitute an atypical and significant deprivation sufficient to create a liberty interest. Garraway was placed in restraints only after he caused a disruption, and the facts show that the defendants involved in the continuation of the restraints did not harbor malicious animus against Garraway. In this case, Garraway was given an incident report which charged him with the prohibited conduct of "lunging." Complaint, p. 3c. He alleges that the incident report was based, in part, upon the memoranda of which he complains. Id., pp 3b-3c. Despite the existence of these memos, he was not found guilty of the charged misconduct. Id.

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Notwithstanding this outcome, false charges, however, do not, in and of themselves, amount to constitutional violations. Smith v. Mensinger, 293 F.3d 641, 653-54 (3d. Cir. 2002). Other than his being placed in ambulatory restraints for approximately 50 hours, the allegedly falsified memos did not affect his incarceration status in any other way. Exhibit A18, ¶ 9. For these reasons, Garraway's claim that his due process rights were violated fails, and judgment must be entered for the defendants. C. THE SUPERVISORY DEFENDANTS MAY NOT BE HELD LIABLE BASED ON RESPONDEAT SUPERIOR.

In order to establish Bivens liability, an officer must be shown to have personally participated in the misconduct. Kite v. Kelley, 546 F.2d 334, 338 (10 th Cir. 1976); Steele v. Federal Bur. of Prisons, 355 F.3d 1204, 1214 (10 th Cir. 2003); Proenza v. Greco, 3 Fed. Appx. 742, 2001 WL 37706 (10 th Cir. Jan. 16, 2001) (attached); Hilst v. Bown, 874 F.2d 725, 727 (10 th Cir. 1989) (respondeat superior is inapplicable to Bivens actions); Jenkins v. Wood, 81 F.3d 988, 994-95 (10 th Cir. 1996) (conclusory allegations of personal participation are insufficient to state a constitutional violation). In this case, on pages 2 - 2b of his complaint Garraway alleges that each of the defendants are responsible for ensuring that other BOP employees comply with BOP regulations and procedures. (Only Defendants Drennan, Gunja, Maroni, Ortega, Rios,

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and Rittenmeyer were acting in a supervisory capacity during the relevant time period).4 Even if all of the defendants were acting in a supervisory capacity at times relevant to his claims, which all were not, a Bivens defendant may only be held liable for the conduct in which he or she personally participated. Accordingly, Garraway's claims based on respondeat superior must be dismissed. V. CONCLUSION The defendants are entitled to judgment as a matter of law for the reasons stated above. DATED this 16th day of September, 2005. Respectfully submitted, WILLIAM J. LEONE UNITED STATES ATTORNEY

s/Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0408 [email protected]

Garraway offers no admissible evidence that any other defendant was acting in a supervisory capacity.
4

4

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 16, 2005 foregoing with the Clerk of Court using the ECF system. I electronically filed the

In addition, I hereby certify that I have mailed the document to the following non CM/ECF participants: Mitchell Thephilus Garraway #39096-066 Florence-USP P.O. Box 7000 Florence, CO 81226 And emailed it to: Benjamin J. Brieschke Chris Synsvoll Attorney-Advisor Legal Services Department Florence Correctional Complex P.O. Box 8500 Florence, CO 81226 [email protected] s/ Kristi Cote KRISTI COTE Office of the United States Attorney 1225 17th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0404

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