Free Motion to Dismiss - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

FEDERAL OFFICERS' MOTION TO DISMISS THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)

Defendants Robert A. Hood, James Burrell, David Duncan, C. Chester, and J. C. Zuercher ("Federal Officers"), by and through undersigned counsel, file this Motion to Dismiss Third Amended Complaint (Docket No. 160), pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6).1 The Federal Officers certify that, pursuant to D.C.Colo.LCivR. 7.1(A), undersigned counsel discussed this Motion to Dismiss with Plaintiff's counsel on October 25, 2005. Plaintiff's counsel represented that Plaintiff opposes this motion. OVERVIEW The Federal Officers request that the Court dismiss all claims raised against them in the Third Amended Complaint. First, the Court lacks subject matter jurisdiction over the claims raised against the Federal Officers in their official capacities because there is no waiver of sovereign

In accordance with the Court's Civil Practice Standard V.A, the Federal Officers filed an Unopposed Motion to File Excess Pages on October 26, 2005. This motion is still pending. 1

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immunity for such claims. Thus, the Court must dismiss these claims, pursuant to Fed. R. Civ. P. 12(b)(1). Second, the Third Amended Complaint fails to state a cognizable claim against the Federal Officers in their individual capacities because: (1) Plaintiff has not satisfied the exhaustion requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e, and (2) the Federal Officers are entitled to the defense of qualified immunity on Claims Two and Four. Accordingly, the Court must dismiss these claims, pursuant to Fed. R. Civ. P. 12(b)(6). BACKGROUND Plaintiff Ahmed M. Ajaj ("Plaintiff") is a federal prisoner incarcerated at the United States Penitentiary, Administrative Maximum ("ADX") in Florence, Colorado. (Third Amended Complaint, at ¶ 1). On October 17, 2005, Plaintiff filed a Third Amended Complaint in this lawsuit, in which he brings claims against the Federal Officers, in both their individual and official capacities, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Id. at ¶¶ 8, 10, 51-98). Claim Two alleges that the Federal Officers demonstrated "deliberate indifference" to Plaintiff's medical needs and condition, in violation of the Eighth Amendment. (Id. at ¶¶ 51-67). Plaintiff alleges that the decision to place him at the ADX and refusal to transfer him to a different institution allegedly ignored the medical recommendations of his physicians that he be housed in an environment that is smoke-free and at a lower altitude. (Id. at ¶ 57). Claim Three alleges that the Federal Officers violated Plaintiff's right to procedural due process, as guaranteed by the Fifth Amendment.2 (Id. at ¶¶ 68-76). Plaintiff alleges that he "has
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Plaintiff asserts that he raises Claim Two under the Fifth Amendment. (Third Amended Complaint, at ¶ 70). However, Plaintiff also states in the caption for Claim Three that he is seeking relief for a "Violation of Eighth and Fourteenth Amendment Claim." (Id. at p. 11). Plaintiff cannot state a valid claim for violation of his due process rights under the Eighth or 2

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been deprived of a liberty interest by his transfer and indefinite confinement at . . . [ADX] without any procedural due process measures such as notice and a hearing, or of the ability to meaningfully challenge this placement." (Id. at ¶ 75). Claim Four alleges that Plaintiff has been subjected to a "deprivation of liberty" based upon his security classification within the ADX. (Id. at ¶¶ 77-91). Plaintiff alleges that he being housed in the D housing unit, which is "one of the most restrictive units" at the ADX. (Id. at ¶¶ 79). Plaintiff claims that the Federal Officers "have continuously denied Ajaj transfer to the step-down unit," where he would be housed in a less restrictive housing unit. (Id. at ¶ 83). Plaintiff alleges that he has been denied "the opportunity to meaningful review in order to challenge the decision to deny him placement in the step-down program." (Id. at ¶ 86). Plaintiff does not specify under what constitutional provision he is bringing Claim Four against the Federal Officers. (Id. at ¶¶ 77-91). Claim Five alleges that the Federal Officers have violated Plaintiff's right to equal protection under the Fifth Amendment. (Id. at ¶¶ 92-98). Plaintiff claims that the Federal Officers have "singled out Ajaj as a result of his status as a Palestinian Muslim for different and harsher treatment than other inmates similarly situated to him by continuously denying Ajaj placement in the `stepdown' program." (Id. at ¶ 95). Plaintiff further alleges that "other similarly situated non-Muslim inmates classified at the same security level and range as Ajaj have already been provided the opportunity to `step-down.'" (Id. at ¶ 96).

Fourteenth Amendment. By its own terms, the Fourteenth Amendment applies to "states" and does not apply to the United States or federal officials acting within the scope of their employment. District of Columbia v. Carter, 409 U.S. 418, 423-24 (1973). 3

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STANDARD OF REVIEW I. STANDARD OF REVIEW FOR RULE 12(b)(1) MOTION A Motion to Dismiss under Rule 12(b)(1) attacks the existence of jurisdiction rather than the allegations of the complaint. Dismissal of an action is appropriate when the district court lacks subject matter jurisdiction over the action. When considering a Rule 12(b)(1) motion, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted). Where a party challenges the facts upon which subject matter jurisdiction depends, "a district court may not presume the truthfulness of the complaint's factual allegations . . . and has wide discretion to look to affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. II. STANDARD OF REVIEW FOR RULE 12(b)(6) MOTION In reviewing a complaint under Fed. R. Civ. P. 12(b)(6), the Court accepts all of a plaintiff's well-pleaded allegations as true, as well as any reasonable inferences that may be drawn from those allegations. Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). In doing so, the Court distinguishes well-pleaded facts from conclusory allegations. Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). Dismissal is appropriate where it appears that a plaintiff can prove no set of facts that would entitle him to relief. Southern Disposal v. Texas Waste Mgmt., 161 F.3d 1259, 1261-62 (10th Cir. 1998) (citation omitted). In evaluating a motion to dismiss, it is appropriate to look to whether the plaintiff has alleged each element necessary to establish a prima facie claim on which relief can be granted. Ruiz, 299 F.3d at 1182-83; Sutton v. United Air Lines, Inc., 130 F.3d 893, 902-903 (10th Cir. 1997).

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ARGUMENT I. THE COURT LACKS JURISDICTION OVER THE OFFICIAL CAPACITY CLAIMS RAISED AGAINST THE FEDERAL OFFICERS BECAUSE THERE IS NO WAIVER OF SOVEREIGN IMMUNITY. The Third Amended Complaint raises four constitutional tort claims against the Federal Officers in their official capacities as the former Warden of ADX (Hood), former Associate Wardens of ADX (Duncan, Burrell), and Associate Wardens of ADX (Chester and Zuercher).3 (Third Amended Complaint, at ¶¶ 3-8). A. Plaintiff Bears the Burden Plaintiff bears the burden of proof for showing that the Court has jurisdiction over his claims. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1165 (10th Cir. 1999). Plaintiff bears the burden of showing that the Federal Officers have waived sovereign immunity. Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir. 1992). "Sovereign immunity is jurisdictional in nature." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). B. Elements It is well-established that a suit against a government employee in his official capacity is barred by sovereign immunity unless a statutory waiver can be found. Meyer, 510 U.S. at 475; Pleasant v. Lovell, 876 F.2d 787, 793 (10th Cir. 1989). A constitutional tort action for monetary damages cannot be maintained against the United States or its employees in their official capacities because there is no waiver of sovereign immunity for constitutional violations. Meyer, 510 U.S. at

Contrary to the Third Amended Complaint, Defendants Chester and Zuercher are no longer serving as Associate Wardens at the ADX, although both defendants are still employed by the Bureau of Prisons. 5

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483-86; Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002). C. Element Not Supported by Second Amended Complaint Claims Two, Three, Four, and Five all allege constitutional violations against the Federal Officers in their official capacities. (Third Amended Complaint, at ¶ 8). There is no waiver of sovereign immunity for such claims. Meyer, 510 U.S. at 483-86; Hatten, 275 F.3d at 1210. Accordingly, all official capacity claims raised against the Federal Officers must be dismissed for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). II. THE COURT SHOULD DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT IN ITS ENTIRETY FOR FAILURE TO EXHAUST. Plaintiff Bears the Burden Plaintiff bears the burden of demonstrating exhaustion of administrative remedies for all claims raised against all the Federal Officers, by either attaching copies of documents showing complete exhaustion, or by identifying with specificity the procedures invoked and their outcome. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003), cert. denied, __ U.S. __, 125 S.Ct. 344 (2004). A complaint "that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted." Id. at 1210 (citation omitted). B. Elements Title 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1995 ("PLRA"), requires all inmates to exhaust "such administrative remedies as are available" prior to initiating suit over prison conditions. "[E]xhaustion in cases covered by § 1997e(a) is now mandatory. . . . Thus federal prisoners suing under Bivens . . . must first exhaust inmate grievance procedures . . . ." Porter v. Nussle, 534 U.S. 516, 524 (2002). 6

A.

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The exhaustion requirement applies to all suits regarding prison life, whether they challenge general circumstances or particular episodes. Porter, 534 U.S. at 532. The fact that an inmate might perceive the administrative procedure as futile is unavailing; futility is not an exception to the exhaustion requirement. Id. at n. 6; see also Jernigan v. Stuchell, 304 F.3d 1030, 1032-33 (10th Cir. 2002). An inmate that begins the administrative procedure but does not complete it has not adequately exhausted it. Jernigan, 304 F.3d at 1032. An inmate's grievances do not have to specifically articulate legal theories, but must be sufficiently specific as to the nature of the grievance to give prison officials notice of the type of problem of which the inmate complains. Johnson v. Johnson, 385 F.3d 503, 517-18 and n. 9 (5th Cir. 2004) (citing Porter, 534 U.S. at 525); Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003). Similarly, the grievance does not have to identify involved individuals with precision, particularly where the inmate complains of systemic problems, but where discrete acts are involved, the inmate may be required to identify, by name or function, the responsible individuals. Johnson, 385 F.3d at 522-23. The Tenth Circuit has held that the PLRA requires exhaustion of administrative remedies as a "precondition" to bringing litigation, and requires dismissal where a litigant has failed to complete such exhaustion prior to initiating a lawsuit. In Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1140-41 (10th Cir. 2005), the Tenth Circuit adopted the Seventh Circuit's strict interpretation of the PLRA's exhaustion requirements, as set forth in Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 534 (7th Cir. 1999).4 Significantly, the Tenth Circuit noted that "such a
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Perez noted that the PLRA expressly states that "[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted." 182 F.3d at 534 (emphasis in original). Analogizing to the Supreme Court's decision in McNeil v. United States, 508 U.S. 106 (1993), which ruled that an FTCA case cannot be "commenced" until a litigant has exhausted his administrative remedies and that failure to exhaust subjects the claim to dismissal, the Seventh Circuit held that this same principle holds 7

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rule should apply even where it might otherwise serve the interest of judicial economy to resolve the merits of a case while it is currently before the court." Fitzgerald, 403 F.3d at 1141 (citing Perez, 182 F.3d at 535); see also id. at n.2. Therefore, administrative remedies must be exhausted prior to filing suit; an inmate cannot file suit and then "cure" his failure to exhaust while the suit is pending. 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted."); Porter, 534 U.S. at 524. In the Tenth Circuit, the presence of an unexhausted claim requires dismissal of the entire action, not just the defective claim. Ross v. County of Bernalillo, 365 F.3d 1181, 1189-92 (10th Cir. 2004); see also Ajaj v. United States, No. 03-2564, 2005 WL 2704875 at *6 (D. Colo. Oct. 19, 2005) (Attached as Exhibit A-1). Thus, if Plaintiff fails to satisfy his burden of proving exhaustion for one of his claims against the Federal Officers, then the entire lawsuit must be dismissed. Id. The Bureau maintains a four-step administrative remedy program, by which inmates such as Plaintiff may raise grievances. 28 C.F.R. § 542.10 et seq. In Step 1, the inmate must attempt informal resolution of his complaint with the appropriate Bureau staff member. 28 C.F.R. § 542.13. Assuming no satisfactory resolution is achieved, the inmate must file an Administrative Remedy Request ("Form BP-9") within 20 calendar days of the event giving rise to the grievance. 28 C.F.R. § 542.14. If the inmate is dissatisfied with the outcome at Step 2, the inmate must file an appeal ("Form BP-10") to the Regional Director within 20 days. 28 C.F.R. § 542.15(a). If the Step 3 appeal is unsuccessful, the inmate must file an appeal (Form BP-11") to the General Counsel within 30 days. 28 C.F.R. § 542.15(a). The appeal to the General Counsel is the final administrative stage, and upon its conclusion the inmate has exhausted the available administrative remedy scheme.

true under the PLRA. Perez, 182 F.3d at 534-35. 8

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C.

Elements Not Supported by the Third Amended Complaint 1. Claim Two ­ Eighth Amendment Claim Concerning Deliberate Indifference to Medical Needs

Claim Two of the Third Amended Complaint alleges that the Federal Officers have been deliberately indifferent to Plaintiff's medical needs by ignoring the alleged medical instructions of his doctors to incarcerate Plaintiff in a smoke-free environment at low altitude and failing to transfer him to an institution with a more suitable environment. (Third Amended Complaint, at ¶¶ 51-67). Plaintiff attempts to prove that he has exhausted Claim Two by attaching Grievances 290668, 293372, and 288433. (Id. at Ex. 2). These grievances do not satisfy Plaintiff's burden of proving exhaustion for Claim Two. Plaintiff cannot rely on Grievance 290668 because this grievance does not address the factual allegations raised in Claim Two, namely, that the Federal Officers have been deliberately indifferent to Plaintiff's medical needs. In his BP-9 Form for Grievance 290668, Plaintiff complains that his unit team at FCI Edgefield submitted a progress report with false information, resulting in his mis-classification to ADX. (Id.) Plaintiff's complaint in Grievance 290668 is against his "unit team at FCI Edgefield" ­ not against the Federal Officers, who are employed at ADX. (Id. at Ex. 2 & ¶¶ 3-7). Grievance 290668 does not allege that Plaintiff has advised the Federal Officers of his medical needs and that these advisements have gone unnoticed or ignored. (Id. at Ex. 2). In fact, there is no allegation anywhere in this grievance concerning the Federal Officers. (Id.) As such, it cannot be used to prove exhaustion of Claim Two. Grievance 288433 is inadequate because it raises factual allegations related to Claim Two at only one level of the Bureau's three-tiered prison grievance system. On January 21, 2003, Plaintiff filed Grievance 288433-F1, a BP-9 remedy complaining about the ventilation system at the ADX 9

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and the need for "the vents to be thoroughly cleaned.." (Id.) There was no mention in this BP-9 remedy of Plaintiff's complaints that the Federal Officers were deliberately ignoring his doctor's medical instructions or his desire to be transferred to a smoke-free environment at low altitude more suitable to his alleged medical needs. (Id.) However, in his BP-10 appeal for Grievance 288433 filed on February 14, 2003, Plaintiff did raise the following two complaints: (1) that he has "a doctor's order to be in a smoke free environment due to my health condition and the fact that I have had a lung removed," and (2) that the administration has ignored Plaintiff's doctor's orders that he be removed to a smoke-free environment. (Id.) Accordingly, because Plaintiff did not raise these allegations at all levels of the Bureau's grievance system, Plaintiff cannot rely on Grievance 288433 for the purposes of demonstrating that he has exhausted his administrative remedies for Claim Two. Likewise, Grievance 293372 fails to raise allegations related to Claim Two at all three levels of the Bureau's administrative grievance process. In his BP-9 remedy and BP-10 appeal, Plaintiff requested to be moved to a tobacco-free general population unit in order to comply with his doctor's alleged medical orders ­ the very same allegations raised in Claim Two of the Third Amended Complaint. (Id. at Ex. 2). However, at Step 4, Plaintiff failed to raise these allegations in his BP-11 appear to the General Counsel. (Id.) Rather, Plaintiff's complaint in his BP-11 appeal concerns the fact that the Warden and Regional Director routinely deny inmates' administrative remedies and "are notorious for their inability to reverse themselves without outside intervention." (Id.) Significantly, the BP-11 appeal is lacking any mention that the Federal Officers had ignored Plaintiff's doctor's medical instructions or that Plaintiff desires to be transferred to a smoke-free environment at low altitude. (Id.) Because Plaintiff did not exhaust his complaint at all levels of

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the Bureau's grievance system, Plaintiff cannot rely on Grievance 293372 for the purposes of demonstrating that he has exhausted his administrative remedies for Claim Two.5 2. Claim Three ­ Due Process Claim Concerning Transfer to and Indefinite Detention at the ADX

In Claim Three, Plaintiff asserts that his transfer to and indefinite detention at the ADX have deprived him of a liberty interest without the requisite procedural due process. (Third Amended Complaint, at ¶¶ 68-76). Plaintiff attempts to prove that he has exhausted Claim Three by attaching Grievances 302265, 286714, and 290668. (Id. at Ex. 3). These grievances do not satisfy Plaintiff's burden of proving exhaustion for Claim Three. Plaintiff cannot rely on Grievance 302265 to prove exhaustion of Claim Three for two reasons. First, Plaintiff did not timely exhaust this grievance before he initiated this lawsuit on October 2, 2003. Grievance 302265 was exhausted on October 8, 2003. (Id.). Plaintiff cannot bypass the PLRA's exhaustion requirement by filing his original Complaint with exhausted claims and then amending that Complaint, over two years later, to add claims that were not exhausted when the lawsuit was initiated. 42 U.S.C. § 1997e(a); Fitzgerald, 403 F.3d at 1141; Porter, 534 U.S. at 524; Ross, 365 F.3d at 1188-89. Second, Grievance 302265 does not address Plaintiff's substantive allegations in Claim Three: that his transfer to and indefinite detention at the ADX were done without the requisite procedural due process. (Third Amended Complaint, at ¶ 75). Rather, in his

In his BP-10 appeal to the Regional Director, the Bureau rejected this grievance on the grounds that this same complaint "has been adequately addressed in Administrative Remedy #288433." (Id.) Because Plaintiff had already raised this same complaint in a separate grievance, both the Regional Director and the General Counsel treated Grievance 293372 as a request for information (rather than a request for re-designation to a different institution). (Id.) Thus, Grievance 293372 is a request for information and, therefore, does not exhaust the remedy that Plaintiff seeks from Claim Two (i.e., to be re-designated to a different institution more suitable to his alleged medical needs). 11

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BP-9 for Grievance 302265, Plaintiff complains that: (1) he has been denied access to the Koran in Arabic, a Imam, books, newspapers, radio, television, recreational activities, telephone and legal materials; (2) his personal and legal property have been confiscated; (3) his cell lacks a view of the sky and his cell door is covered; (4) he has been strip searched; (5) he has not been permitted to obtain legal help from his co-defendants; and (6) his mail is subject to inordinate delays. (Id. at Ex. 3). Nowhere in the BP-9, BP-10, or BP-11 remedies filed in Grievance 302265 does Plaintiff challenge the sufficiency of the process he received, prior to his transfer to the ADX. (Id.) Nor does Plaintiff allege that he has been deprived of some kind of hearing or notice, resulting in his continued detention at the ADX. (Id.) Plaintiff cannot rely on Grievance 286714 to prove exhaustion of Claim Three because it does not address the factual allegations raised in Claim Three. In his BP-9 for Grievance 286714, Plaintiff requests to be transferred from "total isolation status," on the grounds that there are no legitimate security concerns to keep him "under isolation" and from associating with other inmates. (Id.) Nowhere in any of the BP-9, BP-10, or BP-11 remedies filed in Grievance 286714 does Plaintiff challenge the sufficiency of the process he received, prior to his transfer to the ADX. (Id.) Nor does Plaintiff allege that he has been deprived of some kind of hearing or notice, resulting in his continued detention at the ADX. (Id.) Similarly, Plaintiff cannot rely on Grievance 290668 because this grievance does not address the factual allegations raised in Claim Three. (Id.) At Step 2 of Grievance 290668, Plaintiff asserts on his Form BP-9 that false information was contained in a progress report, and that such false information resulted in his transfer to the ADX. (Id.) Plaintiff asserts that by not being permitted to review and sign his progress report, "I was denied the B.O.P. mandatory procedural due

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process rights." (Id.) However, when Plaintiff appealed the denial of Grievance 290668 to Step 3, he merely alleged that his progress report was "politically motivated," "capricious" and "retaliatory." (Id.) Nowhere in his BP-10 appeal does Plaintiff indicate that he was challenging the fact that he was not permitted to review and sign the progress report, nor does he assert that he was entitled to some form of pre-transfer hearing or other procedural protection that was denied. A reasonable prison official reviewing Plaintiff's BP-10 appeal at Step 3 would consider it a request for reconsideration of his transfer based on corrected information, not a challenge to the sufficiency of the process he received at the time of the transfer to ADX. Because the BP-10 appeal failed to give prison officials fair notice that Plaintiff was asserting some right to a pre-transfer hearing, Grievance 290668 failed to fully exhaust the due process allegations that comprise Claim Three. 3. Claim Four ­ Due Process Claim Concerning Housing Classification

Plaintiff attempts to prove that he has exhausted Claim Four by attaching Grievances 317901 and 326096. (Third Amended Complaint, at Ex. 4). Neither grievances satisfies Plaintiff's burden of proving exhaustion for Claim Four. First, Plaintiff did not timely exhaust either of these grievances before he initiated this lawsuit on October 2, 2003 by filing his original Complaint. (Docket No. 3). Grievance 317901 was exhausted on March 23, 2004. (Third Amended Complaint, at Ex. 4). Grievance 326096 was exhausted on June 7, 2004. (Id.) Plaintiff cannot bypass the PLRA's exhaustion requirement by filing his original Complaint with exhausted claims and then amending that Complaint, over two years later, to add claims that were not exhausted when the lawsuit was initiated. 42 U.S.C. § 1997e(a); Fitzgerald, 403 F.3d at 1141; Porter, 534 U.S. at 524; Ross, 365 F.3d at 1188-89. Second, Grievance 317901 does not address the factual allegations raised in Claim Four.

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Claim Four alleges that Plaintiff has been subjected to a "deprivation of liberty" based upon his security classification within the ADX. (Id. at ¶¶ 77-91). More specifically, Plaintiff alleges that he has been denied "the opportunity to meaningful review in order to challenge the decision to deny him placement in the step-down program." (Id. at ¶ 86). Grievance 317901 concerns Plaintiff's request that the Bureau honor its "pledge" to Judge Cameron Currie by assigning Plaintiff to a stepdown unit. (Third Amended Complaint, at Ex. 4). On his BP-9 Form for Grievance 317901, Plaintiff claims that "within [a] few weeks" he will be eligible for step-down because he will have completed the educational classes recommended by his unit team and has record of clear conduct. (Id.) Plaintiff concludes by stating that the failure to reassign him to a step-down unit "will force me to go back to Judge Currie for an order and prove that the BOP lied to her." (Id.) Nothing in Grievance 317901 involves any allegation that Plaintiff has been denied "the opportunity to meaningful review in order to challenge the decision to deny him placement in the step-down program," as Plaintiff alleges in Claim Four. (Third Amended Complaint, at ¶ 86). In fact, at the time Plaintiff filed Grievance 317901, he admitted that he would not eligible for step-down until he completed his educational classes "within [a] few weeks." (Id. at Ex. 4). 4. Claim Five ­ Equal Protection Claim Concerning for Failure to Step-Down to Less Restrictive Housing Unit.

Plaintiff attempts to prove that he has exhausted Claim Five by attaching Grievances 319722 and 335565. (Third Amended Complaint, at Ex. 5). Neither grievance satisfies Plaintiff's burden of proving exhaustion for Claim Five. Plaintiff did not timely exhaust either of these grievances before he initiated this lawsuit on October 2, 2003 by filing his original Complaint. (Docket No. 3). Grievance 319722 was exhausted on April 22, 2004. (Third Amended Complaint, at Ex. 5). Grievance 335565 was 14

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exhausted on September 22, 2004. (Id.) Plaintiff cannot bypass the PLRA's exhaustion requirement by filing his original Complaint with exhausted claims and then amending that Complaint, over two years later, to add claims that were not exhausted when the lawsuit was initiated. 42 U.S.C. § 1997e(a); Fitzgerald, 403 F.3d at 1141; Porter, 534 U.S. at 524; Ross, 365 F.3d at 1188-89. In sum, because Plaintiff has not shown that he has exhausted any of the claims raised against the Federal Officers in their individual capacities, the Court must all claims pursuant to Fed. R. Civ. P. 12(b)(6). Under the total exhaustion rule, even if the Court finds that Plaintiff has failed to exhaust one of these claims, the Court must dismiss this lawsuit in its entirety. Ross, 365 F.3d at 1189-92; Ajaj, No. 03-2564, 2005 WL 2704875 at *6. III. BECAUSE THE FEDERAL OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIMS TWO AND FOUR RAISED AGAINST THEM IN THEIR INDIVIDUAL CAPACITIES, THE COURT MUST DISMISS THESE CLAIMS PURSUANT TO FED. R. CIV. P. 12(b)(6). The Federal Officers assert that they are entitled to qualified immunity on Claims Two and Four raised against them in their individual capacities. Government officials performing discretionary functions generally are granted qualified immunity and are shielded 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. Wilson v. Layne, 526 U.S. 603, 609 (1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). The primary purpose of qualified immunity is "to protect public officials from undue interference with their duties and from potentially disabling threats of liability . . . ." Elder v. Holloway, 510 U.S. 510, 514 (1994) (citation omitted). Qualified immunity represents a defense

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from suit, not just liability. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Seigert v. Gilley, 500 U.S. 226, 232-33 (1991); Sawyer v. County of Creek, 908 F.2d 663, 665 (10th Cir. 1990). A. Plaintiff Bears the Burden of Proof When the defense of qualified immunity is raised, "the plaintiff initially bears a heavy twopart burden." Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004) (internal quotation marks and citations omitted). The plaintiff must demonstrate that: (1) the defendant's actions violated a constitutional right; and (2) that the right allegedly violated was clearly established at the time of the conduct at issue. Id. In performing this analysis, the first inquiry should be whether the facts alleged establish the violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). If no constitutional right was violated, it is unnecessary to proceed to the next inquiry ­ i.e., whether the law recognizing the constitutional right was "clearly established." Id.; Maestas v. Lujan, 351 F.3d 1001, 1006-07 (10th Cir. 2003). Plaintiff cannot meet his burden for overcoming the qualified immunity defense with respect to Claims Two and Four raised against the Federal Officers in their individual capacities. Accordingly, the Court must dismiss these claims, pursuant to Fed. R. Civ. P. 12(b)(6). B. Claim Two ­ Eighth Amendment Claim Concerning Deliberate Indifference to Medical Needs 1. Elements

To state a claim for deliberate indifference to medical needs under the Eighth Amendment, a plaintiff must allege that: (1) he suffered substantial harm because of the deprivation of medical care, and (2) that the government official acted with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (conditions of confinement); Estelle v. Gamble, 429 U.S. 97, 107 (1976) (denial of medical care); see also Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 16

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2001). The test for constitutional liability of prison officials involves both an objective and a subjective component. With respect to the subjective component of the deliberate indifference test requires the plaintiff to present evidence of the prison official's culpable state of mind. Estelle, 429 U.S. at 106. A plaintiff "must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, `by failing to take reasonable measures to abate it.'" Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (citations and quotations omitted). 2. Elements Not Supported by Third Amended Complaint a. The Third Amended Complaint Fails To Allege Facts to Show the Federal Officers Had "Sufficiently Culpable State of Mind"

Claim Two alleges that several of the named Defendants in this lawsuit were aware that Plaintiff's medical condition necessitated that he be housed at a different institution. The Third Amended Complaint notes that upon Plaintiff's arrival at the ADX, he "specifically instructed" Defendants Hood, Burrell, Duncan, and the health services staff that "his doctors had recommended that he be housed in a smoke-free environment and at a low altitude." (Third Amended Complaint, at ¶ 57). The Third Amended Complaint further cites to clinical notes written by one of Plaintiff's treating physicians, Dr. Lawrence Lebya. (Id. at ¶¶ 58, 61).6 Plaintiff appears to be arguing that the Federal Officers were aware of Dr. Lebya's assessments of Plaintiff's medical needs, as contained in those clinical notes. However, as explained below, neither of these allegations shows that the

The Federal Officers hereby attach Dr. Lebya's clinical notes from January 21, 2003 and June 21, 2004, which Plaintiff references in his Second Amended Complaint, without converting this Motion to Dismiss into one for summary judgment. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997) (holding that "if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.") (citations omitted). (Exhibit A-2, Clinical Notes dated January 21, 2004, and June 21, 2004). 17

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Federal Officers had a "sufficiently culpable state of mind," as required for stating a deliberate indifference claim under the Eighth Amendment. First, assuming that Plaintiff did, in fact, tell Defendants Hood, Burrell, and Duncan that his doctors had recommended that he be incarcerated elsewhere, which allegations these defendants deny, Plaintiff has not established that these defendants knew that Plaintiff faced a "substantial risk of harm" if they failed to transfer him to a different institution. Plaintiff's own representations to prison staff about his medical needs or condition is insufficient. Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976) (holding that a difference of opinion as to treatment or diagnosis between the prisoner and the medical staff cannot alone give rise to a cause of action, and if the complaint indicates that such is the case, it must be dismissed); see also Tucker v. Quinlan, 748 F. Supp. 32, 33 (D.D.C. 1990) (holding that plaintiff's personal opinion that his knee required surgery was insufficient to support his Eighth Amendment claim) (citing Smart v. Villar, 547 F.2d at 114); Evans v. Manos, 336 F. Supp. 2d 255, 263 (W.D.N.Y. 2004) (holding that plaintiff's own opinion that a back brace should have been prescribed was inadequate to give rise to any issue of fact about whether plaintiff's constitutional rights were violated). Second, Plaintiff's passing reference to Dr. Lebya's notes does not show that the Federal Officers had the requisite "culpable state of mind." The Third Amended Complaint does not allege that any of the Federal Officers ever reviewed Dr. Lebya's clinical notes from January 21, 2003 or June 14, 2004. Although Dr. Lebya references in his notes that he intends to discuss Plaintiff's transfer to a non-smoking range with Plaintiff's unit staff, the Federal Officers are not members of Plaintiff's unit staff. (Exhibit A-2). Dr. Lebya makes no reference in his notes about his intent to discuss Plaintiff's medical needs with the Federal Officers named in this lawsuit. (Id.) Moreover,

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the Third Amended Complaint contains no allegation that Dr. Lebya ever did, in fact, raise these concerns with members of Plaintiff's unit staff or any of the Federal Officers. Accordingly, because the Third Amended Complaint fails to meet the subjective prong, the Federal Officers are entitled to qualified immunity with respect to Claim Two and there is no need to proceed to the next step of the inquiry (i.e., determine whether the law recognizes that the constitutional right was clearly established at the time the acts were committed). b. Even If the Court Determines That the Third Amended Complaint Alleges Facts Sufficient to State a Violation of Eighth Amendment Rights, Plaintiff Cannot Show That These Rights Were "Clearly Established."

Plaintiff cannot meet his burden of showing that the right to be free from these environmental factors was "clearly established." As a general rule, for the law to be clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law as the plaintiff maintains." Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). In Helling v. McKinney, 509 U.S. 25, 35 (1993), the Supreme Court only stated that an Eighth Amendment claim can be asserted for future injury if it is alleged that the injury is due to exposure to "unreasonably high levels" of second-hand smoke. Neither the Supreme Court nor the Tenth Circuit have determined what "an unreasonably high level of smoke" constitutes. Similarly, there is no clear direction from any of the circuit courts in this regard. See generally Henderson v. Sheahan, 196 F.3d 839, 844-47 (7th Cir. 1999); Warren v. Keane, 196 F.3d 330, 331-33 (2nd Cir. 1999); Scott v. D.C., 139 F.3d 940, 943 (D.C. Cir. 1998); Rochan v. City of Angola, LA, 122 F.3d 319, 320 (5th Cir. 1997); Oliver v. Deen, 77 F.3d 156, 157-60 (7th Cir. 1996).

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Given that the circuits and the Supreme Court cannot agree on a standard as to how much smoke is too much, it is inappropriate to hold the Federal Officers liable for exposing Plaintiff to second-hand smoke. To do so would ignore the very principals of qualified immunity, as there is no manner in which they could "anticipate when their conduct might give rise to liability for damages." Anderson v. Creighton, 483 U.S. 635, 646 (1987). Accordingly, the Federal Officers are entitled to qualified immunity on Claim Two. c. The Third Amended Complaint Fails to Allege Facts Sufficient to Show that Defendants Chester and Zuercher Violated Plaintiff's Eighth Amendment Rights.

Notwithstanding the arguments above as to why all Federal Officers are entitled to qualified immunity on Claim Two, Defendants Chester and Zuercher raise separate arguments for why they are immune from liability on this claim. First, the statute of limitations bars Plaintiff from raising a viable Eighth Amendment claim against Defendants Chester and Zuercher. A Bivens claim is subject to the general personal injury statute of limitations of the state where the claim arose. Wilson v. Garcia, 471 U.S. 261, 276 (1985); Industrial Constructors v. United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). Plaintiff's Eighth Amendment claim arose in the State of Colorado, given the location of the ADX. (Third Amended Complaint, at ¶¶ 1, 14). Colorado's general statute of limitations for personal injury claims provides that a claim must be brought within two years after the action accrues. Colo. Rev. Stat. § 13-80-102. Plaintiff was transferred to the ADX on or about September 4, 2002. (Third Amended Complaint, at ¶ 22). Thus, the statute of limitations for his Eighth Amendment claim began to run on or about in September 4, 2002. However, Plaintiff did not file a claim in federal court against Defendants Chester and Zuercher until he filed his Second Amended

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Complaint on December 13, 2004 ­ well after the two-year statute of limitations had expired.7 (Docket No. 109). Second, the Third Amended Complaint does not allege any factual averments showing that Defendants Chester and Zuercher personally acted with deliberate indifference to Plaintiff's medical condition, in violation of the Eighth Amendment. All of the factual averments related to Claim Two concern Defendants Hood, Burrell, and Duncan. (Third Amended Complaint, at ¶¶ 26, 34, 57, 64). "Conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be granted." Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998).8 Accordingly, Defendants Chester and Zuercher are entitled to qualified immunity with respect to Claim Two and there is no need to proceed to the next step of the inquiry (i.e., determine whether the law recognizes that the constitutional right was clearly established at the time the acts were committed). C. Claim Four ­ Due Process Claim Concerning Housing Classification 1. Elements

"`The Due Process Clause guarantees due process only when a person is to be deprived of

Neither the original Complaint filed on October 2, 2003 or the First Amended Complaint filed on December 17, 2003 named Chester and Zuercher as defendants. (Docket Nos. 3 and 14). To the extent that Plaintiff intends to argue that Defendants Chester and Zuercher are liable for Claim Two under a theory of respondeat superior, this too must fail. Under Bivens, liability for a constitutional violation can be predicated only on a defendant's actual and knowing participation in the alleged unconstitutional conduct. Gates v. Unified Sch. Dist. No. 449 of Leavenworth Cty., 996 F.2d 1035, 1042 (10th Cir. 1993). Persons without personal involvement or participation in the alleged unconstitutional acts therefore must be dismissed as Bivens defendants. Rizzo v. Goode, 423 U.S. 362, 372 (1976). 21
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life, liberty, or property.'" Chambers v. Colorado Dep't of Corrections, 205 F.3d 1237, 1242 (10th Cir. 2000) (citation omitted). A procedural due process violation against government officials requires: (1) proof of inadequate procedures and (2) interference with a liberty or property interest. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (emphasis added). Thus, Plaintiff must demonstrate: (1) that he has a protected liberty interest in stepping down to a less restrictive housing unit at the ADX; and (2) that he has been deprived of that liberty interest without adequate process. 2. Elements Not Supported by Third Amended Complaint a. Plaintiff Has No Liberty Interest in Being Stepped-Down to an Intermediate Housing Unit.

As a general rule, an inmate has no liberty interest protected by the Due Process Clause in remaining in the general population of a prison. In the prison context, "[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken `within the sentence imposed.'" Sandin v. Conner, 515 U.S. 472, 480 (1995), quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983). "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." Hewitt, 459 U.S. at 468. Transferring an inmate to a more restrictive prison environment ordinarily does not deprive the inmate of liberty. Meachum v. Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from the Due Process Clause itself in transfer from low-tomaximum-security prison because "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose"). Because the classification of prisoners based upon their situs of incarceration does not employ a suspect class or burden a fundamental right, it "is accorded a strong presumption of validity." 22

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Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993). Applying this caselaw to the case at bar, Plaintiff has no liberty interest in being transferred from a more restrictive housing unit to a less restrictive housing unit. Sandin, 515 U.S. at 480; Hewitt, 459 U.S. at 468; Meachum, 427 U.S. at 225; Wilkinson, 125 S. Ct. 2392; see also Sule v. Story, No. 95-1422, 1996 WL 170156 (10th Cir. Apr. 11, 1996) (Attached as Exhibit A-3) (preSandin case holding that even assuming that the plaintiff had met the criteria for stepping down, which the Tenth Circuit found he had not, the plaintiff had failed to show that the Bureau program statement created a protected liberty interest in such a intra-institutional transfer). Accordingly, because there is no liberty interest implicated, Plaintiff fails to allege facts sufficient to state a violation of his due process rights. b. The Third Amended Complaint Fails to Assert What Process Plaintiff Has Been Denied.

Claim Four alleges that the Federal Officers have violated Plaintiff's procedural due process rights because they have "continuously denied Ajaj transfer to step-down unit." (Third Amended Complaint, at ¶ 83). However, nowhere in the Third Amended Complaint does Plaintiff identify with any kind of specificity what process he has been denied by the Federal Officers. Instead, Plaintiff alleges in a conclusory manner that he "does not have the opportunity to meaningful review in order to challenge the decision to deny him placement in the step-down program and the decision to deny Ajaj step-down is arbitrary." (Id. at 86). The Third Amended Complaint cites to Institution Supplement 5321.06e, which set forth the policy on the step-down program at ADX.9 (Third, Amended Complaint, at ¶ 80). Under this
9

The Federal Officers hereby attach Institution Supplement 5321.06e, which Plaintiff references in his Third Amended Complaint, without converting this Motion to Dismiss into one for summary judgment. GFF Corp., Inc., 130 F.3d at 1384-85. (Exhibit A-4). 23

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policy, inmates who are housed in the F Unit at ADX, such as Plaintiff, may be transferred to less restrictive housing unit. (Exhibit A-4, at p. 1). Institution Supplement 5321.06e outlines a specific process by which an inmate may be stepped-down. Inmates are to be given periodic review to determine whether they are eligible for a step-down to a less restrictive housing unit. (Id. at pp. 2, 4). This review process is initially conducted by the inmate's Unit Team. (Id. at p. 4). If the Unit Team determines that the inmate meets the criteria, it will refer the inmate to the Step-Down Unit Screening Committee for a more thorough review. (Id). After this committee makes a recommendation, the Warden issues final approval as to whether the inmate should be placed in a less restrictive housing unit. (Id.) The inmate is then entitled to notice of the final decision on his placement. (Id.) In the case at bar, Plaintiff is not alleging that he was denied any of the procedural steps set forth in Institution Supplement 5321.06e. For instance, Plaintiff is not claiming that he was denied periodic review by his Unit Team, the Screening Committee or the Warden, or that this review was provided to him outside the permissible time period. Nor is Plaintiff claiming that the Bureau failed to provide him with notice of the final decision on his placement, as required by the Institution Supplement. Rather, Plaintiff is attacking the outcome of the review and claiming that he should have been transferred because he "has complied with the requirements to step-down to the K Unit, completing close to 50 classes, well above the amount required to be eligible to step-down." (Third Amended Complaint, at ¶ 82). In challenging the outcome of the review ­ but not the process he was afforded during that review ­ Plaintiff fails to state a cognizable procedural due process claim. See, e.g., Vapne v. Eggleston, No. 04-565, 2004 WL 2754673, at *4 (S.D.N.Y. Dec. 1, 2004)

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(holding that "[w]ithout any evidence or allegations of particular process violations, we find that plaintiff has failed to state a due process claim.") (Attached as Exhibit A-5); Cullen v. DuPage Cty, No. 99-1296, 1999 WL 1212570, at *3 (N.D. Ill. Dec. 14, 1999) (holding that inmate who was unhappy with outcome of a disciplinary proceeding did not state a procedural due process claim, given that he had notice of charge and a hearing) (Attached as Exhibit A-6). Plaintiff fails to allege facts sufficient to state the second element required for asserting a viable procedural due process claim on the basis of his classification at the ADX. Accordingly, the Federal Officers are entitled to qualified immunity on Claim Four and there is no need to proceed to the next step of the inquiry (i.e., determine whether the law recognizes that the constitutional right was clearly established at the time the acts were committed). . CONCLUSION Defendants Robert A. Hood, James Burrell, David Duncan, C. Chester, and J. C Zuercher respectfully request that the Court dismiss Claims Two, Three, Four, and Five of the Third Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). Respectfully submitted this 31st day of October, 2005. WILLIAM J. LEONE United States Attorney s/ Amanda Rocque Amanda Rocque Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0109 Facsimile: (303) 454-0404 Email: [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 31st day of October, 2005, I electronically filed the foregoing FEDERAL OFFICER'S MOTION TO DISMISS THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) AND FED. R. CIV. P. 12(b)(6) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael E. Hegarty [email protected] [email protected] Patrick Terrence O'Rourke [email protected] [email protected];[email protected] Carmen Nicole Reilly [email protected] [email protected] s/Amanda Rocque Amanda Rocque 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected] I hereby certify that on this 31st day of October, 2005, I served the foregoing FEDERAL OFFICER'S MOTION TO DISMISS THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) AND FED. R. CIV. P. 12(b)(6) via U.S. mail on the following non-CM/ECF participants: Agency Counsel, as designated agent for and on behalf of individual Defendants: Christopher Synsvoll, Esq. Federal Correctional Complex P.O. Box 8500 5880 Highway 67 South Florence, CO 81226

s/ Michael Miller Michael Miller Office of the United States Attorney

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