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No. 09-549

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL., PETITIONERS

v.

BYRON SMITH

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
SARAH E. HARRINGTON
Assistant to the Solicitor
General
BARBARA L. HERWIG
EDWARD HIMMELFARB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

>

QUESTION PRESENTED

Whether the Inmate Accident Compensation Act, 18 U.S.C. 4126(c), which this Court has found provides the "exclusive" remedy for a federal prisoner suffering a work-related injury, see United States v. Demko, 385 U.S. 149, 152, 154 (1966), bars a suit against individual government employees based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

PARTIES TO THE PROCEEDING

The petitioners are the United States, Eddie Gal legos, William E. Howell, Jr., John Parent, Teresa Hart field, Jeffery Sinclair, and Stephanie Wheeler.

The respondent is Byron Smith.

In the Supreme Court of the United States

No. 09-549

UNITED STATES OF AMERICA, ET AL., PETITIONERS

v.

BYRON SMITH

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

 

The Solicitor General, on behalf of the United States, Eddie Gallegos, William E. Howell, Jr., John Parent, Teresa Hartfield, Jeffery Sinclair, and Stephanie Wheeler, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 29a) is reported at 561 F.3d 1090. The opinions of the district court (App., infra, 32a-39a, 40a-50a) are unre ported.

JURISDICTION

The judgment of the court of appeals was entered on March 31, 2009. A petition for rehearing was denied on June 8, 2009 (App., infra, 52a). On August 19, 2009, Justice Sotomayor extended the time within which to file a petition for a writ of certiorari to and including October 6, 2009. On September 28, 2009, Justice Sotomayor fur ther extended the time to and including November 5, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the United States Consti tution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

U.S. Const. Amend. VIII.

The Inmate Accident Compensation Act provides, in relevant part:

(c) The corporation [Federal Prison Industries], in accordance with the laws generally applicable to the expenditures of the several departments, agen cies, and establishments of the Government, is autho rized to employ the fund, and any earnings that may accrue to the corporation-

* * * * *

(4) in paying, under rules and regulations promulgated by the Attorney General, compensa tion to inmates employed in any industry, or per forming outstanding services in institutional op erations, and compensation to inmates or their dependents for injuries suffered in any industry or in any work activity in connection with the maintenance or operation of the institution in which the inmates are confined.

In no event may compensation for such injuries be paid in an amount greater than that provided in chapter 81 of title 5.

18 U.S.C. 4126(c) and (c)(4).

STATEMENT

1. The Federal Bureau of Prisons (BOP) operates work programs for federal prisoners in order to reduce inmate idleness and to develop job skills and work ha- bits that will assist the inmates after their release. 28 C.F.R. 345.10, 545.20(a). Inmates who are physically and mentally able to work are required to participate in a work program and are permitted to receive compensa tion for their work. 28 C.F.R. 545.20.

In 1934, Congress enacted the Inmate Accident Com pensation Act (IACA), 18 U.S.C. 4126(c), to permit a workers' compensation scheme for federal prisoners just as it had, in 1916, enacted the Federal Employees' Com pensation Act (FECA) (now codified at 5 U.S.C. 8101 et seq.) to provide a workers' compensation scheme for federal employees, see United States v. Lorenzetti, 467 U.S. 167, 176 (1984). The IACA authorizes the payment of funds, "under rules and regulations promulgated by the Attorney General," to compensate inmate workers or their dependents "for injuries suffered in any indus try or in any work activity in connection with the main tenance or operation of the institution in which the in mates are confined." 18 U.S.C. 4126(c).1 The statute specifies that compensation for prisoners' injuries may not exceed what is provided by FECA. Ibid.

As this Court has recognized, when Congress creates workers' compensation schemes, it is generally moti vated by "a desire to give injured workers a quicker and more certain recovery than can be obtained from tort suits based on negligence and subject to common-law defenses to such suits." United States v. Demko, 385 U.S. 149, 151 (1966). Although the IACA serves that purpose today, at the time it was enacted, it served a more fundamental purpose for inmates injured during prison work assignments because it provided "injured federal prisoners the only chance they had to recover damages of any kind. Its enactment was 12 years prior to the 1946 Federal Tort Claims Act." Id. at 152.

The regulatory scheme implementing the IACA pro vides two types of compensation to inmates who are in jured on the job. The first type of payment compensates the inmate for wages lost as a result of his injury. 28 C.F.R. 301.101(b), 301 Subpt. B. Lost wages are com puted at 75% of the standard hourly rate and are avail able for time lost in excess of three consecutively sched uled days of absence due to the work-related injury. 28 C.F.R. 301.203. Payments generally continue until, inter alia, the inmate is released, is transferred to another institution, or returns to work. 28 C.F.R. 301.204(a).

The second type of payment provides compensation to an inmate after he is released if he continues to suf- fer a residual physical impairment as a result of the work-related injury. 28 C.F.R. 301.303(a), 301.314(a). Such payments are based on the FECA payment sched ule, 28 C.F.R. 301.314(b), which is the same schedule that applies to federal employees injured on the job. This Court has noted that the payments "compare[] fa vorably with compensation laws all over the country," and, indeed, "offer[] far more liberal payments than many of the state compensation laws." Demko, 385 U.S. at 152-153. Because payments for physical impairment are not made until the prisoner's release, the regulations implementing the IACA provide that claims may not be submitted until 45 days prior to the release. 28 C.F.R. 301.303(a).

The regulations implementing the IACA also offer prisoners a variety of procedural safeguards: the right to be represented by any person not confined in a cor rectional facility, 28 C.F.R. 301.304(a); written notice of the basis for decision, including notification of a right to appeal, 28 C.F.R. 301.305; a right to appeal to an Inmate Accident Compensation Committee, 28 C.F.R. 301.306; the right to submit additional documentation to the Committee beyond what is in the record, 28 C.F.R. 301.308; the right to a hearing in person before the Com mittee, 28 C.F.R. 301.309; a right to present witnesses at the hearing, 28 C.F.R. 301.310; and a right to further review of the Committee's decision by the Chief Operat ing Officer of Federal Prison Industries, 28 C.F.R. 301.313. In addition, awards made to prisoners under the scheme implementing the IACA are subject to judi cial review in district court under the Administrative Procedure Act, 5 U.S.C. 701 et seq. Thompson v. Fed eral Prison Indus., 492 F.2d 1082, 1084 & n.5 (5th Cir. 1974); Berry v. Federal Prison Indus., Inc., 440 F. Supp. 1147, 1148-1149 (N.D. Cal. 1977).

Differences between the compensation scheme pro mulgated pursuant to the IACA and other workers' com pensation schemes (such as the FECA) are "due in the main to the differing circumstances of prisoners and nonprisoners." Demko, 385 U.S. at 152. As the regula tions implementing the IACA note, compensation awards under the IACA are different from awards in a non-prison context in part because "hospitalization is usually completed prior to the inmate's release from the institution and, except for a three-day waiting period, the inmate receives wages while absent from work." 28 C.F.R. 301.318. Moreover, there are "[o]ther factors [that] necessarily must be considered that do not enter into the administration of civilian workmen's compensa tion laws." Ibid. A work-related injury has economic consequences for an injured person if the injury pre vents the person from working or requires out-of-pocket expenses. When that worker is a prisoner, the IACA compensates the worker for a significant portion of any lost wages while the inmate is in prison. But prisoners have no out-of-pocket expenses comparable to those of non-prisoners; while incarcerated, prisoners are pro vided with medical attention without charge, as well as food, clothing, and shelter. See, e.g., 18 U.S.C. 4042(a)(2) (shelter); 28 C.F.R. 549.10-549.31, 549.50- 549.51 (medical care), 547.20 (food).

2. Respondent filed his pro se complaint against the United States, the Attorney General of the United States, BOP, the United States Penitentiary at Leavenworth (Leavenworth), and various employees and administrators at BOP and Leavenworth, seeking dam ages under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., and under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for alleged violations of the Eighth Amend ment. App., infra, 2a. Respondent initially filed his suit in United States District Court in the District of Colum bia; it was then transferred to the District of Kansas. Id. at 6a.

Respondent alleges that, while he was a federal pris oner incarcerated at Leavenworth, he was exposed to asbestos while on a work detail with an electrical crew. App., infra, 3a-6a, 42a-43a. The complaint alleges that, at some point between April and June 2003, respon dent's crew received a work order from Janet Durbin to install a light fixture in a large closet of a classroom at Leavenworth. Id. at 3a-4a, 42a. While respondent's crew worked in the closet, fellow inmate Carlos Gonzales asked to borrow tools from respondent in order to pull pipes off the wall in the closet. Id. at 4a, 42a. When re spondent refused (consistent with prison policy), Gonza les requested and received tools from Durbin and began pulling insulation off the pipes. Ibid. As Gonzales worked, the air in the closet filled with dust, and respon dent's crew had to stop working until the dust settled. Ibid.

The following day, the crew returned to the closet to finish installing the light fixture, again under the super vision of Durbin. App., infra, 4a-5a, 42a-43a. Fellow inmate Gonzales once again arrived and began pulling insulation off of pipes in the closet, causing dust to fill the air in the closet. Ibid. Respondent's work crew was told to stop working again until the dust settled, and Durbin directed Gonzales to leave the closet. Ibid. When the dust had cleared, respondent's crew again returned to the closet and finished the work with the help of petitioner Jeffrey Sinclair (a supervisor). Id. at 5a.

Approximately two years later, in March 2005, re spondent filed a request for an administrative remedy concerning his exposure to the dust in the closet, which he alleged contained asbestos. App., infra, 43a. His request, and all subsequent appeals, were denied. Id. at 43a-44a.2 Respondent filed this action on January 30, 2006.3

3. The district court granted petitioners' motion to dismiss. The court first held that respondent was barred from litigating his Bivens and FTCA claims be cause the IACA "provides the exclusive remedy" for inmate workers who are injured on the job. App., infra, 46a. The court held in the alternative that respondent could not prevail on his Bivens and FTCA claims in any case because he had failed to state a claim under either body of law.4

Three months later, respondent filed a motion pursu ant to Rule 60(b) of the Federal Rules of Civil Procedure challenging certain statements in the court's opinion. The court denied the motion, holding that the plaintiff failed to specify exceptional circumstances for relief un der Rule 60(b)(6). App., infra, 37a-39a. Respondent then filed a motion under Federal Rule of Civil Proce dure 59(e). The court also denied that motion, stating that the "allegedly 'new' evidence" respondent sought to rely on was not material, and that "the court properly construed the Rule 60(b) motion as one for relief under Rule 60(b)(6)." App., infra, 34a.

4. Respondent appealed both the order granting the motion to dismiss and the order denying his Rule 59(e) motion. The court of appeals affirmed in part and re versed in part. App., infra, 1a-29a. The court first af firmed dismissal of the FTCA claim as to all petitioners and the Bivens claim as to the Attorney General and Director of BOP. Id. at 14a-16a, 29a. But it reversed the dismissal of the Bivens claim as to all other defen dants. Id. at 16a-29a.

The court of appeals held that the IACA does not preclude a Bivens remedy against an individual prison official who allegedly violates the Eighth Amendment in the context of an inmate work assignment. App., infra, 16a-24a. The court adopted the reasoning of the Sev enth Circuit in Bagola v. Kindt, 131 F.3d 632 (1997), which had held that the availability of the IACA's reme dial scheme for work-related prison injuries does not preclude a separate Bivens action, based on the same facts, against individuals who allegedly violated the Con stitution. App., infra, 21a-24a.

Both the court of appeals in this case and the Sev enth Circuit in Bagola relied on this Court's analysis in Carlson v. Green, 446 U.S. 14 (1980), that courts should not infer a Bivens remedy when Congress has provided an alternative remedy that it "explicitly declared to be a substitute for recovery" or when "special factors coun sel[] hesitation in the absence of affirmative action by Congress." App., infra, 18a-19a (quoting Carlson, 446 U.S. at 18-19). Both courts held that the IACA "con tains no explicit congressional statement that a Bivens remedy should not be available to federal prisoners com pensated under the statutory scheme." Id. at 22a (quot ing Bagola, 131 F.3d at 639). The court of appeals here also adopted the Bagola court's "special factors" analy sis, which concluded that a Bivens remedy should not be precluded in this context because the IACA does not sufficiently deter unconstitutional behavior by individu als and does not provide plaintiffs with a forum for bringing to light unconstitutional behavior. Id. at 22a- 23a (relying on Bagola, 131 F.3d at 642-645). Those fac tors, the courts held, distinguished this context from those at issue in Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker v. Chilicky, 487 U.S. 412 (1988), in which this Court declined to create a Bivens remedy.

The court of appeals below rejected petitioners' ar gument that the court should consider whether to recog nize a new Bivens remedy in this case by using the anal ysis this Court recently set out in Wilkie v. Robbins, 551 U.S. 537 (2007); the court adopted instead the pre- Wilkie Bagola court's analysis of "special factors." App., infra, 22a-23a. The court below also stated, in any event, that no analysis of whether to recognize a new Bivens remedy was necessary because this Court in Carlson had already recognized a Bivens remedy for "an Eighth Amendment violation by prison officials." Id. at 20a n.11 (citation omitted).

The court of appeals also held that the complaint and amended complaint had adequately pleaded the defen dants' awareness of asbestos, and that the plaintiff's Eighth Amendment claim was therefore plausible under Bell Atlantic Co. v. Twombly, 550 U.S. 544 (2007). App., infra, 24a-29a. The court remanded the case for further proceedings. Id. at 29a-31a.

5. The court of appeals denied petitioners' petition for rehearing en banc on June 8, 2009. App., infra, 52a.

REASONS FOR GRANTING THE PETITION

The court of appeals erred in concluding that the remedial scheme implementing the IACA, 18 U.S.C. 4126(c), does not preclude a court from creating a Bivens remedy for Eighth Amendment deliberate indif ference claims by an inmate who is injured during a prison work assignment. The court's decision and rea soning are inconsistent with this Court's decisions and reasoning in Bush v. Lucas, 462 U.S. 367 (1983), Schweiker v. Chilicky, 487 U.S. 412 (1988), and Wilkie v. Robbins, 551 U.S. 537 (2007).

On September 30, 2009, this court granted a petition for a writ of certiorari in Hui v. Castaneda, No. 08-1529 (Castaneda).5 That case present the question whether 42 U.S.C. 233(a) bars a Bivens action against a commis sioned officer or employee of the Public Health Service by providing that a suit against the United States under the FTCA is exclusive of any other action against such an officer or employee for injury resulting from the per formance of medical functions. This case presents a sim ilar question in the context of another federal statute, the IACA, which this Court has held is the "exclusive" remedy for a federal prisoner suffering a work-related injury. See United States v. Demko, 385 U.S. 149, 152, 154 (1966).6 This Court's resolution of the question pre sented in Castaneda is likely to supply the appropriate analysis for this case as well. Thus, the Court should hold this petition pending the Court's decision in Cast aneda, and then dispose of it accordingly.

This Court recently held in Wilkie that a court's con sideration of "whether to recognize a Bivens remedy may require two steps." 551 U.S. at 550. First, a court must determine "whether any alternative, existing pro cess for protecting the interest [at stake] amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in dam ages." Ibid. Second, in the absence of such an alterna tive remedy, "the federal courts must make the kind of remedial determination that is appropriate for a com mon-law tribunal, paying particular heed, however, to any special factors counselling hesitation before autho rizing a new kind of federal litigation." Ibid. (quoting Bush, 462 U.S. at 378).

The court of appeals erroneously recognized a Bivens remedy for inmates who are injured during prison work assignments notwithstanding the existence of the IACA. In Demko, this Court applied to the IACA the principle that, "where there is a compensation stat ute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group," and concluded that the IACA is, indeed, the exclusive remedy for inmates injured on the job. 385 U.S. at 152-154. Because the Court in Demko considered whether the IACA was the exclusive remedy against the United States-rather than against an indi vidual federal employee-for inmates injured on a work assignment, its holding does not strictly control the out come of this case. But the same reasons that led the Court to conclude that the IACA precludes FTCA ac tions against the United States should have led the court of appeals to conclude that the IACA precludes Bivens actions against prison employees. Congress "created a comprehensive system to award payments for injuries" in the IACA and "[t]here is no indication of any congressional purpose to make" the compensation scheme implementing the IACA "non-exclusive." Id. at 151-152 (citation omitted).

Both the court of appeals in this case and the Ninth Circuit in Castaneda placed undue reliance on this Court's statement in Carlson v. Green, 446 U.S. 14, 18- 19 (1980), that a Bivens claim rests on whether "Con gress has provided an alternative remedy which it ex plicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." See App., infra, 18a-19a; Castaneda v. United States, 546 F.3d 682, 689 (9th Cir. 2008).7 In the decades since Carlson was decided, this Court has declined to recog nize any additional Bivens causes of action.8 Equally important and directly relevant to this case, the Court has made clear that Congress need not explicitly declare that a remedial scheme is intended to supplant a Bivens claim or that such a scheme is as effective as a Biv ens claim in order to preclude the creation of a direct cause of action under the Constitution. Bush, 462 U.S. at 380-390; Schweiker, 487 U.S. at 424-429; Wilkie, 551 U.S. at 551-562.

In addition to relying on the absence of an explicit congressional intent to preclude a Bivens claim, the court below and the Ninth Circuit in Bagola stressed that the remedies provided in the IACA do not provide full relief for plaintiffs' alleged constitutional injuries. But here too, this Court has explicitly rejected this ap proach: it has held that Congress need not provide a remedy that provides complete relief for an alleged con stitutional violation, that is as effective as a Bivens claim, or that permits suit against individual defendants at all. E.g., Schweiker, 487 U.S. at 425-427 (holding that "statutory violations caused by unconstitutional con duct" do not "require remedies in addition to the reme dies provided generally for such statutory violations" even where existing statutory remedies fail to provide "complete relief" for constitutional harm); Bush, 462 U.S. at 378 (refusing to recognize a Bivens remedy even though the petitioner did not have "an equally effective substitute"); id. at 388 (stating that the question whe ther a Bivens action should be available "obviously can not be answered simply by noting that existing remedies do not provide complete relief for the plaintiff"); see U.S. Amicus Br. at 19, Castaneda, supra (No. 08-1529) ("Thus, as the D.C. Circuit has noted, 'subsequent to Carlson, the Court clarified that there does not need to be an equally effective alternative remedy, in order to bar the fashioning of a cause of action under Bivens.") (quoting Wilson v. Libby, 535 F.3d 697, 708 (2008), cert. denied, 129 S. Ct. 2825 (2009)).

This Court's disposition of Castaneda will likely illu minate the circumstances in which an existing statutory remedy precludes recognition of a Bivens remedy when Congress has not explicitly stated its preclusive intent and when the statutory remedy is not as effective as a Bivens remedy would be.

CONCLUSION

The petition should be held pending the Court's deci sion in Hui v. Castaneda, No. 08-1529, and then dis posed of accordingly.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
SARAH E. HARRINGTON
Assistant to the Solicitor
General
BARBARA L. HERWIG
EDWARD HIMMELFARB
Attorneys

NOVEMBER 2009

1 Initially, the IACA permitted compensation only for injuries oc curring in Federal Prison Industries, which is a federal corporation that was established in 1934 "to expand an industrial training and rehabilita tion program for prisoners initiated by" a prior congressional act. United States v. Demko, 385 U.S. 149, 149-150 & n.1 (1966). The stat ute's coverage was expanded in 1961 to cover injuries occurring during any work-related assignment in prison. Act of Sept. 26, 1961, Pub. L. No. 87-317, 75 Stat. 681 (18 U.S.C. 4126); see Demko, 385 U.S. at 153 & n.7.

2 Respondent also filed an administrative claim under the FTCA, which was denied on October 3, 2005. Compl., Doc. 1-1, Exh. G.

3 On March 27, 2006, respondent filed an amended complaint, adding a claim relating to the loss of his medical records. Although he filed a request for an administrative remedy relating to the records, he did not file a related administrative claim under the FTCA. First Amended Compl. 2-5.

4 The court found that respondent's Bivens claim must fail because he did not allege that each individual petitioner was aware of a substantial risk of asbestos exposure; because he did not allege that Durbin, the Attorney General, petitioner Gallegos, and petitioner Lappin were involved in the possible exposure; and because the court lacked personal jurisdiction over Lappin. App., infra, 48a-50a. With respect to respondent's FTCA claim, the court found that he had failed to plead a "significant physical injury" permitting him to seek damages for a mental or emotional injury under the FTCA, id. at 46a-47a, and that he could not pursue a claim related to lost medical records because prisoners lack a protected property interest in prison property, id. at 47a-48a.

5 On September, 30, 2009, this Court granted petitions for writs of certiorari in two cases arising out of the Ninth Circuit's decision in Castaneda v. United States, 546 F.3d 682 (2008). See Hui v. Castaneda, No. 08-1529; Henneford v. Castaneda, No. 08-1547. On October 29, 2009, the Court dismissed the writ of certiorari in Henneford v. Castaneda, No. 08-1547.

6 As noted above, the court here adopted the reasoning of the Seventh Circuit in Bagola v. Kindt, 131 F.3d 632 (1997). The Third and Ninth Circuits also agree with the conclusion in Bagola. Cooleen v. Lamanna, 248 Fed. Appx. 357, 362 n.5 (3d Cir. 2007); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). The Sixth Circuit, in two unpublished decisions, has reached a different conclusion. Springer v. United States, No. 99-6276, 2000 WL 1140767, at *1 (Aug. 8, 2000); Walls v. Holland, No. 98-6506, 1999 WL 993765, at *1-*2 (Oct. 18, 1999).

7 These courts' reliance on the statement in Carlson focusing on whether Congress has explicitly stated an intent to preclude a Bivens action is particularly inappropriate where-as here and in Castaneda- the statute at issue was enacted before Bivens was decided. In such a situation, a court is demanding what cannot logically exist-a statement from Congress that a statute is intended to be a substitute for a remedy that had not yet been created.

8 Since Carlson, this Court has consistently expressed a strong reluc tance to expand the availability of Bivens claims. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) ("Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability 'to any new context or new category of defendants.'") (quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)); Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (Bivens remedy "is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens rem edy unjustified."); Malesko, 534 U.S. at 68-69 ("Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants. * * * So long as the plaintiff had an aven ue for some redress, bedrock principles of separation of powers fore closed judicial imposition of a new substantive liability."); Schweiker v. Chilicky, 487 U.S. 412, 421-423 (1988) ("Our more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation."); Bush v. Lucas, 462 U.S. 367, 374-390 (1983) (refus ing to provide Bivens-type remedy given alternative remedial scheme created by Congress).

 

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

Nos. 07-3242 & 08-3109

(D.C. No. 06-CV-3061-JTM)

BYRON SMITH, PLAINTIFF-APPELLANT

v.

UNITED STATES OF AMERICA; ERIC HOLDER, UNITED STATES ATTORNEY GENERAL, IN HIS OFFICIAL CAPACITY; ALBERTO GONZALES, FORMER UNITED STATES ATTORNEY GENERAL, IN HIS INDIVIDUAL CAPACITY; FEDERAL BUREAU OF PRISONS; UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS; AND H. LAPPIN, DIRECTOR, FEDERAL BUREAU OF PRISONS; EDDIE GALLEGOS, ACTING WARDEN; WILLIAM E. HOWELL, JR., SAFETY MANAGER, FEDERAL BUREAU OF PRISONS; JOHN PARENT, CUSTODIAL MAINTENANCE SERVICES MANAGER, FEDERAL BUREAU OF PRISONS; TERESA HARTFIELD, EDUCATION ADMINISTRATOR/PRINCIPLE, FEDERAL BUREAU OF PRISONS; JEFFERY SINCLAIR, ELECTRIC SHOP SUPERVISOR, FEDERAL BUREAU OF PRISONS; JOHN DOE, EDUCATION STAFF MEMBER, FEDERAL BUREAU OF PRISONS; JANET DURBIN, EDUCATION STAFF MEMBER, FEDERAL BUREAU OF PRISONS; STEPHANIE WHEELER, SAFETY OFFICER, FEDERAL BUREAU OF PRISONS, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS-APPELLEES

[Filed: Mar. 31, 2009]

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT

OF KANSAS

Before: BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff-Appellant Byron Smith brings claims un der the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) against Defendants-Appellees. Defendants- Appellees are the United States, the Attorney General of the United States,1 the Federal Bureau of Prisons, the United States Penitentiary at Leavenworth ("Leaven worth"), and various employees and administrators at the Bureau of Prisons and Leavenworth (hereinafter col lectively referred to as "defendants"). Defendants filed a motion to dismiss Smith's claims, which was granted by the district court, and Smith appeals that decision.

We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings. Regarding Smith's FTCA claim, we affirm the district court because: first, an FTCA claim can only be brought against the United States; and, second, the Supreme Court has expressly held that an FTCA claim is precluded when the Inmate Accident Compensation Act applies, as it does here.

Regarding Smith's Bivens claim against all defen dants other than the individual federal officials in their individual capacities, we affirm the district court's dis missal because Bivens claims cannot be asserted direct ly against either the United States or federal officials in their official capacities or against federal agencies.

Regarding Smith's remaining Bivens claim against individual federal officials in their individual capacities, we reverse the district court in part and affirm in part because: first, the district court erred by finding that the Inmate Accident Compensation Act was the exclu sive remedy precluding Smith's Bivens suit; and, second, the district court erred by finding that Smith's com plaint failed to make allegations sufficient to state a claim for relief against the individually named federal officials in their individual capacities other than Alberto Gonzales and H. Lappin.

I

A. Smith's Allegations

Smith's complaint stems from allegations that he was exposed to asbestos in 2003 while an inmate at Leaven worth. During his incarceration in Leavenworth, Smith worked as an electrician for the prison's Custodial Main tenance Services. Smith received a work order from his supervisor, defendant Jeffery Sinclair, to install a new light fixture in a closet in the prison's education depart ment. Smith and others who were assigned to perform the installation were given access to the locked closet by defendant Janet Durbin, a staff member in the education department.2 The closet lacked any ventilation.

While Smith was installing the light fixture, a fellow inmate, Carlos Gonzalez, entered the closet and asked to borrow some tools from Smith. Smith refused, consis tent with prison policy, and Gonzalez then requested tools from Durbin, who provided them to Gonzalez. Gonzalez, who had been instructed by prison staff to clean the closet, then began pulling insulation off of the pipes in the closet, thereby filling the air with dust. Smith alleges that this dust contained asbestos, and the dust irritated his eyes, nose, and throat, and caused him to begin coughing.3 Durbin directed Gonzalez to wait until the light fixture was installed before continuing his work in the closet. The work crew suspended work until the dust settled.

The next day, Smith was given another work pass by Sinclair and he and the other members of the work crew returned to the closet to finish installing the light fix ture. They were again given access to the closet by Dur bin, and she again supervised their work. Gonzalez was allowed back into the closet while Smith and the others were working inside. Once inside, Gonzalez pulled insu lation off pipes, releasing additional dust to which Smith was exposed. The dust again caused irritation to Smith, and the work crew again stopped working until the dust settled. Durbin directed Gonzalez to leave the closet, threatening to write a report on him if he did not com ply. After the dust cleared, Smith and the crew contin ued work on the fixture, but could not get the light to work. Durbin called Sinclair, and he arrived to assist. The job was then completed.

In 1994, a survey was performed by the Ramsey- Schilling Consulting Group, documenting the presence of asbestos in "Building # 116" at Leavenworth and stating that the pipe insulation in the second floor edu cation southwest storage room was damaged. Smith alleges the closet where he was exposed to dust in 2003 is in the education department of "Building # 116," and specifically alleges that this southwest storage room is where he was exposed to asbestos. Smith contends that the pipe insulation that was disturbed by Gonzalez was not in good repair, and that due to the pipe insulation's damaged condition, asbestos was exposed to the air.

Smith alleged that the "safety [department at Leav enworth], CMS [Custodial Maintenance Services at Leavenworth] and the education department knew that asbestos was in the closet" due to the Ramsey-Schilling survey. Aplt. App. Doc. 1 Attach. 4 at ¶ 27. Smith also references the response to his administrative remedy request which implies that the warden at Leavenworth also knew of the asbestos as a result of the Ramsey- Schilling survey. Smith further alleges that he was nev er given any warning regarding the asbestos at any point. Smith claims that he suffers from a cough, short ness of breath, and trouble with his throat and eyes. Smith also alleges emotional distress.

B. Procedural Posture

Smith filed his initial pro se complaint in the United States District Court for the District of Columbia.4 The case was then transferred to the United States District Court for the District of Kansas due to improper venue. Smith filed an amended complaint in the District of Kan sas post-transfer, which incorporated by reference the original complaint's factual allegations. Smith's amen ded complaint alleges that defendants5 were negligent and deliberately indifferent by exposing him to asbestos without protective measures. Smith seeks compensa tory damages, punitive damages, and injunctive relief for future medical care. Id. Doc. 5 (Smith's "First Amended Complaint").

The district court granted defendants' motion to dis miss Smith's amended complaint for lack of subject mat ter jurisdiction, Fed. R. Civ. P. l2(b)(1), and, alterna tively, for failure to state a claim upon which relief could be granted, Fed. R. Civ. P. 12(b)(6). The district court concluded that the prisoners' workers' compensation statute, the Inmate Accident Compensation Act, 18 U.S.C. § 4126, was Smith's exclusive remedy for his al leged work-related injuries, foreclosing Smith's FTCA and Bivens claims. Aplt. App. Doc. 59 at 6. The district court alternatively found that Smith's FTCA claim could only be brought against the United States. The district court also held that Smith's FTCA claim against the United States failed because his allegations of harm did not constitute a physical injury. Id. at 8. His claim for lost medical records was also dismissed because Smith did not have a protected property interest in them. Id. at 6-8. The district court then alternatively found that Smith's Bivens claim failed because the amended com plaint did not allege that defendants "knew he faced a substantial risk of harm and disregarded that risk." Id. at 8-9 (internal quotation omitted).

Smith filed a Rule 60(b) motion in which he asked the district court to reconsider its decision. The district court denied Smith's motion. Smith then filed a Rule 59(e) motion in which he asked the district court to alter or amend the judgment. The district court also denied that motion.

We are presented with two appeals. Case number 07-3242 is an appeal from the district court's dismissal of Smith's amended complaint, and case number 08-3109 is an appeal from the district court's denial of Smith's motion to alter or amend judgment under Rule 59(e). Smith did not file a notice of appeal regarding the dis trict court's denial of his Rule 60(b) motion, but did sub sequently file an amended notice of appeal purporting to include in Case No. 08-3109 review of the denial of his Rule 60(b) motion. Smith's two appeals were consoli dated, and counsel was appointed for Smith.6

II

A. Smith's Pro Se Status in the District Court

At the outset, it is important to note Smith's pro se status in the district court. "[A] pro se litigant's plead ings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation omitted). In Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we stated:

We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal au thority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfa miliarity with pleading requirements.

"This court, however, will not supply additional factual allegations to round out a plaintiff's complaint or con struct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). We have on several occasions dismissed pro se com plaints for failure to allege sufficient facts. See Hall, 935 F.2d at 1110 (citing cases).

 

B. Appellate Jurisdiction

We must first determine the scope of our appellate review in this case. Certainly, we have jurisdiction to review Smith's appeal of the district court's memoran dum and order dismissing his amended complaint under Rule 12(b). See 28 U.S.C. § 1291 (granting jurisdiction to the courts of appeals over "appeals from all final deci sions of the district courts"); Moya v. Schollenbarger, 465 F.3d 444, 450 (10th Cir. 2006) (stating that when "a district court order expressly and unambiguously dis misses a plaintiff's entire action, that order is final and appealable"). We may review all of the arguments Smith raised before the district court that pertain to that ruling. Pierce v. Shorty Small's of Branson Inc., 137 F.3d 1190, 1192 (10th Cir. 1998).

Smith also timely filed a notice of appeal with respect to the district court's denial of his Rule 59(e) motion. As a result, we also have jurisdiction under 28 U.S.C. § 1291 to review the district court's denial of that Rule 59(e) motion.

However, there is some question whether we may also consider arguments raised in support of Smith's Rule 60(b) motion. Smith filed his Rule 59(e) motion based on his view that the district court had erroneously denied his Rule 60(b) motion. Aplt. App. Doc. 76. In his Rule 60(b) motion, Smith argued, for the first time, that the Inmate Accident Compensation Act does not provide him a true remedy because his benefits under that Act do not become ripe until Smith is near release from prison. Id. Doc. 66 at 5-7. Under the standard enunci ated in Rule 60(b)(6), the district court denied Smith's Rule 60(b) motion after finding Smith had stated no "exceptional circumstances" to support granting the mo tion. Id. Doc. 75.

Smith did not file a separate appeal from the denial of his Rule 60(b) motion. However, he did file an amen ded notice of appeal, after he appealed the denial of his Rule 59(e) motion, stating that he was appealing the denial of both post-judgment motions. Id. Doc. 92. Smith's filings clearly put defendants on notice that he was appealing the district court's rulings on both mo tions. We stated in Independent Petroleum Ass'n of America v. Babbitt, 235 F.3d 588, 593 (10th Cir. 2001), that:

Under Rule 3(c) [of the Federal Rules of Appellate Procedure], a notice of appeal must designate the judgment, order, or part thereof being appealed. Nevertheless, a party's failure to designate the pro per order it intends to appeal is not necessarily fatal. As we have explained, a party may demonstrate its intention to appeal from one order despite referring only to a different order in its petition for review if the petitioner's intent can be fairly inferred from the petition or documents filed more or less contempora neously with it. Furthermore, without a showing of prejudice by the appellee, technical errors in the no tice of appeal are considered harmless.

(internal quotations and citations omitted). As a result, we will exercise jurisdiction over Smith's appeal from the denial of both the Rule 60(b) and Rule 11 59(e)7 mo- tions and consider the arguments raised in those mo tions in our merits review of Smith's claims.8

And finally, in the district court, Smith appeared to make a claim relating to his allegedly lost medical re cords. See Aplt. App. Doc. 5 ¶¶ 3-15 (portion of amended complaint setting out the alleged loss of Smith's medical records); Doc. 59 at 7-8 (portion of district court's mem orandum and order dismissing any claim under the FTCA for Smith's loss of medical records). However, neither in his opening brief nor in subsequent briefing does Smith press any issue with respect to his medical records. As a result, we conclude Smith has not ap pealed the dismissal of his claims regarding lost medical records. See Fed. R. App. P. 28(a)(9)(A) (requiring the appellant's opening brief to contain the contentions raised on appeal); Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (concluding that issues and arguments on which an appellant desires appellate review must be raised in the appellant's opening brief or be waived).

C. District Court's Memorandum and Order

Dismissing Smith's Claims

1. Standard of Review

A dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) is reviewed de novo. Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007). A facial attack on the complaint's allegations regarding subject matter jurisdiction questions the com plaint's sufficiency and requires the court to accept the allegations as true. Paper, Allied-Indus., Chem. & En ergy Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005).

The legal sufficiency of a complaint is a question of law, and a Rule 12(b)(6) dismissal is reviewed de novo. Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006). Again, for purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff. Id. "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally suffi cient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (internal quotation omitted).

The Supreme Court recently retired "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gib son, 355 U.S. 41, 45-46 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). The Court replaced the Conley standard with a new standard in Twombly, which "prescribed a new inquiry for [courts] to use in reviewing a dismissal: whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Twombly, 127 S. Ct. at 1974). The Court ex plained that "a plaintiff must 'nudge his claims across the line from conceivable to plausible' in order to survive a motion to dismiss." Id. (internal citation and brackets omitted). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Id.

In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits, Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994), and documents incorporated into the complaint by reference, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2509 (2007); TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007). "[T]he district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' au thenticity." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (internal quotation omitted).

2. The Inmate Accident Compensation Act, 18 U.S.C. § 4126

The Inmate Accident Compensation Act, and the reg ulations promulgated thereunder, provide two types of compensation for a federal inmate who suffers a work- related injury or improper medical treatment of a work- related injury. The first type of compensation is avail able only when the inmate is ready to be released from prison and reenter the workforce. 28 C.F.R. §§ 30l.101(a), 30l.301-.319. If the inmate still suffers a residual physical impairment as a result of the work- related injury, then within forty-five days of his release date, he can submit a claim for compensation. Id. § 30l.303(a). If, however, he has fully recovered from his injuries while incarcerated, he is not entitled to any compensation. Id. § 301.314(a). The second type of compensation is for wages the inmate actually loses while he is prevented from doing his work assignment due to his injury. Id. §§ 301.101(b), 30l.201-.205.

3. FTCA Claim

The district court dismissed Smith's FTCA claim on two bases: first, that the FTCA claim is barred because "the cause of his alleged injuries [is] work-related and compensable only under 18 U.S.C. § 4126," Aplt. App. Doc. 59 at 6; and second, that an FTCA claim, which may only be brought against the United States, failed for lack of an alleged "significant physical injury," id. at 6-7.

As an initial matter, we, like the district court, note that Smith asserted his FTCA claim against all the named defendants. "The United States is the only pro per defendant in an FTCA action." Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001). Thus, the dis trict court correctly dismissed Smith's FTCA claims against every defendant except the United States on the ground that those defendants were not proper parties.

We also note that the Supreme Court has long recog nized the right of federal prisoners to recover damages against the United States under the FTCA for personal injuries sustained as the result of the negligence of a federal employee. See United States v. Muniz, 374 U.S. 150, 150 (1963) (holding that a person can sue under the FTCA "for personal injuries sustained during confine ment in a federal prison, by reason of the negligence of a government employee"). But when a federal pris oner's injuries are work-related, the Supreme Court has held that the prisoner's exclusive remedy against the government is the Inmate Accident Compensation Act; he cannot sue the government under the FTCA. United States v. Demko, 385 U.S. 149, 152-54 (1966). There is no dispute that Smith's alleged injuries are work-re lated.

Smith argues that the Inmate Accident Compensa tion Act should not be the exclusive remedy against the government for a prisoner like himself who has a very long sentence. He argues the Inmate Accident Compen sation Act likely would afford him little, if any, relief because he might die before he is within forty-five days of his release date, which is when he could first apply for benefits under the Act. The Supreme Court in Demko considered the argument that the Inmate Accident Com pensation Act is not comprehensive enough, and re jected it. Id. at 152. "Until Congress decides different ly we accept the prison compensation law as an adequate substitute for a system of recovery by common-law torts." Id. at 153. Accordingly, the district court prop erly dismissed Smith's FTCA claim against the United States for any injuries incurred while working at Leav enworth.

4. Bivens Claim

As with the FTCA claim, Smith's Bivens claim was asserted against all defendants. However, a Bivens claim can be brought only against federal officials in their individual capacities. Bivens claims cannot be as serted directly against the United States, federal offi cials in their official capacities, Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001), or federal agencies, F.D.I.C. v. Meyer, 510 U.S. 471, 485-86 (1994). As a re sult, the district court correctly dismissed Smith's Biv ens claims against all defendants except for his claims against the individual federal officials in their individual capacities.

Regarding the remaining Bivens defendants, how ever, the Supreme Court has held that a Bivens remedy may be available against federal prison officials for vio lations of the Eighth Amendment. See Carlson v. Green, 446 U.S. 14, 18 (1980) (stating that "Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the offi cial in federal court" in a case involving allegations of personal injuries from federal prison officials). None theless, the individual defendants here argued that no Bivens remedy was available because the Inmate Acci dent Compensation Act constituted Smith's exclusive remedy for any injury resulting from his alleged asbes tos exposure.9 As support for this argument, defen dants cited the Supreme Court's decision in Demko, 385 U.S. 149, our published decision in United States v. Gomez, 378 F.2d 938 (10th Cir. 1967) (per curiam), and our unpublished decision in Alvarez v. Gonzales, 155 F. App'x 393 (10th Cir. 2005). The district court, in turn, relied on these three cases in granting defendants' mo tion.

Neither Demko nor Gomez concerned a claim against individual federal officials, however. Rather, Demko addressed whether the Inmate Accident Compensation Act's administrative compensation scheme provided a federal prisoner's exclusive remedy against the United States for a work-related injury and thus barred suit against the government under the FTCA. Demko, 385 U.S. at 150. In ruling that the Inmate Accident Com pensation Act did preempt a claim under the FTCA, the Court noted that workers' compensation statutes were historically "the offspring of a desire to give injured workers a quicker and more certain recovery than can be obtained from tort suits based on negligence and sub ject to common-law defenses to such suits [and there fore] compensation laws are practically always thought of as substitutes for, not supplements to, common law tort actions." Id. at 151. In contrast, the Court held in Carlson that it is "crystal clear that Congress views the FTCA and Bivens as parallel, complementary causes of action." Carlson, 446 U.S. at 20.

This court's two-paragraph per curiam decision in Gomez followed on the heels of Demko and set aside a judgment against the United States under the FTCA for a prisoner's work-related injuries. Gomez, 378 F.2d at 939. While Gomez did describe Demko as holding that "the compensation benefits provided by 18 U.S.C. § 4126 constitute the exclusive remedy for injuries received by federal prisoners while performing assigned prison tasks," id., we must be careful not to take this statement out of context. Both Demko and Gomez concerned only tort claims against the United States, and neither pur ported to consider whether the Inmate Accident Com pensation Act also constituted an inmate's exclusive remedy for claims against an individual federal official who has allegedly violated the inmate's constitutional rights in connection with a work-related injury.

The Supreme Court in Carlson, in holding that the FTCA did not preclude the prisoner's Bivens claim, stated that a plaintiff's ability to pursue a Bivens claim is precluded in two specific instances:

The first is when defendants demonstrate special factors counselling hesitation in the absence of affir mative action by Congress. The second is when de fendants show that Congress has provided an alter native remedy which it explicitly declared to be a substitute for recovery directly under the Constitu tion and viewed as equally effective.

446 U.S. 18-19 (internal quotation and citations omitted). The Carlson Court supported its conclusion that Con gress did not intend the FTCA to preclude a prisoner's Bivens claim by finding that a Bivens remedy was more effective than the FTCA remedy. Id. at 20-23. The Carlson Court noted the deterrent effect of the Bivens remedy because of the potential personal financial liabil ity to federal officials, in addition to federal officials' po tential exposure to the imposition of punitive damages. The Court also noted the availability of a jury trial un der Bivens. Id. None of these rights or remedies are available under the FTCA.

In Bivens cases following Carlson, the Supreme Court has provided further explanation of the "special factors counselling hesitation in the absence of affirma tive action by Congress" which limit judicial expansion of the Bivens remedy. The Supreme Court stated in Bush v. Lucas, 462 U.S. 367, 378 (1983), that "[w]hen Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statu tory remedy itself, that the Court's power should not be exercised." And in Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), the Court noted that

the concept of "special factors counselling hesitation in the absence of affirmative action by Congress" has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for con stitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.

Despite the presence of Demko, Carlson, Bush, and Schweiker, this court has not yet considered whether the language of the Inmate Accident Compensation Act or its clear legislative history signal Congress' intent to preclude federal courts from recognizing a Bivens cause of action that arises out of a work-related injury.10 We have not considered whether the design of the Inmate Accident Compensation Act provides what Congress would consider adequate remedial mechanisms for con stitutional violations, nor whether any other special fac tors counsel hesitation in recognizing a Bivens cause of action in these circumstances.11

Although we did conclude in Alvarez (an unpublished order, see Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003) ("[U]npublished decisions are not binding authority.")) that the plaintiff inmate was "barred from litigating his Bivens claim [for failing to provide adequate medical treatment following his in jury] since the cause of his original injury was work- related and compensable only under 18 U.S.C. § 4126," 155 F. Appx at 396, we relied on Demko and Gomez for this conclusion. As discussed above, however, Demko and Gomez concerned only the exclusivity of the Inmate Accident Compensation Act in connection with tort claims against the government itself; they did not ad dress constitutional claims against individual defen dants. As a result, Alvarez is not persuasive authority.

The only circuit to have expressly analyzed the exclu sivity of the Inmate Accident Compensation Act as it relates to Bivens claims, following the guidance of Carl son, Bush, and Schweiker, concluded that the Inmate Accident Compensation Act does not preclude a prisoner from bringing a Bivens claim. Bagola v. Kindt, 131 F.3d 632, 637-45 (7th Cir. 1994).12 In Bagola, the plaintiff prisoner was injured while working at the federal pris on, and alleged that prison officials were deliberately indifferent to his safety in violation of his Eighth Amendment rights. Id. at 633-34. The Seventh Circuit noted that the plaintiff prisoner was entitled to compen sation under the Inmate Accident Compensation Act for lost-time wages, and that he could also apply for com pensation for his injury within forty-five days of his re lease from prison. Id. at 634.

The Seventh Circuit then analyzed whether the Biv ens remedy was also available to the plaintiff prisoner despite the availability of compensation under the In mate Accident "Compensation Act." Following the Carl son "dictates," the Seventh Circuit noted that: (1) the Inmate Accident Compensation Act "contains no explicit congressional statement that a Bivens remedy should not be available to federal prisoners compensated under the statutory scheme;" and (2) "the deterrence factor, implicated by both [the imposition of] individual liability and the availability of punitive damages, and the avail ability of a jury trial weigh even more heavily in favor of allowing a Bivens claim" because if the Inmate Accident Compensation Act were an exclusive remedy as against Bivens claims, it "would not only insulate individual of fenders from liability, but it would also effectively insu late their conduct from review in any trial-like forum." Id. at 639.

The Seventh Circuit then went on to analyze, under Carlson, Bush, and Schweiker whether any "special fac tors counsel hesitation in the absence of affirmative ac tion by Congress." Id. at 639 (brackets and internal quotations omitted). The Seventh Circuit recognized that the plaintiff prisoner's "alleged constitutional in jury [was] intertwined with his injury covered by the statutory benefits scheme," id. at 642, but concluded:

Nonetheless, we believe that significant procedural distinctions exist between the remedies provided by § 4126 and the statutory remedies that have been found to preclude Bivens claims. These distinctions indicate that Congress does not consider § 4126 an adequate remedial mechanism to address Eighth Amendment violations, just as surely as it does not consider the FTCA an adequate mechanism to rem edy non-work-related prisoner claims. Our analysis is guided by the deterrence factor identified in Carl son, as well as the recognized necessity to provide some forum for a prisoner's constitutional claims.

In both Bush and Chilicky, it is significant that al though the plaintiffs were denied a constitutional remedy, the statutory alternative provided a forum where the allegedly unconstitutional conduct would come to light.

Id. at 642-43 (internal citation omitted). The Seventh Circuit then held that § 4126 did not preclude a Bivens claim: the statutory scheme lacked requisite procedural safeguards for the prisoner's constitutional rights, the statute possessed very little deterrent value, and there was no explicit indication from Congress limiting the Bivens action by the Inmate Accident Compensation Act. Id. at 644-45.

We agree with the reasoning of the Seventh Circuit and adopt it as our own. In our view, the Inmate Acci dent Compensation Act does not preclude us from recog nizing Smith's Bivens claim, for all the reasons stated by the court in Bagola. Unlike Demko, where the Inmate Accident Compensation Act was found to preclude an action under the FTCA, the Inmate Accident Compensa tion Act should not preclude a Bivens claim because a claim under the Inmate Accident Compensation Act would be a far different, less inclusive system of recov ery than the Bivens action. Like Carlson, where the FTCA was not found to preclude an action under Biv ens, our consideration of the factors relevant here also leads to the conclusion that the Bivens remedy is more effective than the Inmate Accident Compensation Act remedy. The Inmate Accident Compensation Act does not explicitly foreclose the Bivens remedy, there is very little deterrent effect for constitutional harms within the Inmate Accident Compensation Act, and there is no al ternative forum where the alleged constitutional viola tion could be addressed. We conclude that a Bivens ac tion for constitutional harms arising from work-related asbestos exposure is not foreclosed by the compensatory remedy available under the Inmate Accident Compensa tion Act.

This does not, however, end our inquiry. The district court also dismissed Smith's Bivens claim on Rule 12(b)(6) grounds. Under Rule 12(b)(6), this court looks "to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." Pace v. Swerdlow, 519 F.3d 1067, 1073 (10th Cir. 2008) (internal quotations omitted). As stated above, Twom bly asks us to determine whether Smith's allegations are "plausible." 127 S. Ct. at 1974. In Robbins v. Oklaho ma, 519 F.3d 1242, 1247 (10th Cir. 2008), we stated:

As best we understand it, however, the [Twombly] opinion seeks to find a middle ground between heigh tened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.

The most difficult question in interpreting Twombly is what the Court means by "plausibility." . . . "[P]lausible" cannot mean "likely to be true." Ra ther, "plausibility" in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of con duct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible. The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

(internal citations and quotations omitted); see also Bry son v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) ("This is not to say that the factual allegations must themselves be plausible; after all, they are assumed to be true. It is just to say that relief must follow from the facts alleged.").

"[T]he degree of specificity necessary to establish plausibility and fair notice, and therefore the need to in clude sufficient factual allegations, depends on context. . . . " Robbins, 519 F.3d at 1248; see also Bryson, 534 F.3d at 1286 (discussing required factual detail). But while "the plaintiff must provide 'more than labels and conclusions, or a formulaic recitation of the elements of a cause of action,'" Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Twombly, 127 S. Ct. at 1965) (internal alteration omitted), "'specific facts are not nec essary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests,'" id. (quoting Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007)) (internal alterations omitted). "Tech nical fact pleading is not required, but the complaint must still provide enough factual allegations for a court to infer potential victory." Bryson, 534 F.3d at 1286.

We therefore now turn to the merits of Smith's Eighth Amendment claim. In Robbins, addressing the sufficiency of the allegations in a complaint against mul tiple defendants, we stated that "complaints in § 1983 cases against individual government actors pose a grea ter likelihood of failures in notice and plausibility be cause they typically include complex claims against mul tiple defendants." 519 F.3d at 1249. We continued:

We reiterate that context matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case. In § 1983 cases, defendants often include the government agency and a number of government ac tors sued in their individual capacities. Therefore it is particularly important in such circumstances that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allega tions against the state.

Id. at 1249-50 (internal quotation and citations omitted). These same generalities can be stated of complaints in Bivens cases.

To state an Eighth Amendment Bivens claim, Smith had to allege that each defendant official13 acted with deliberate indifference-that he or she both knew of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). "[T]he of ficial must both be aware of facts from which the infer ence could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.

Although there is certainly no guarantee of ultimate success on the merits, we conclude that, for some of the federal officials named in their individual capacities, Smith has alleged sufficient facts to move his case be yond defendants' Rule 12(b)(6) dismissal motion. Smith alleges that the 1994 Ramsey-Schilling survey docu mented the presence of asbestos in the storage closet where he was exposed to asbestos. Smith specifically alleges that because of the 1994 Ramsey-Schilling sur vey, all individual defendants at Leavenworth knew that asbestos was present in the closet. Aplt. App. Doc. 1, Claims for Relief ¶ 1. Although this allegation is not technically specific, it certainly implies that defendants Eddie Gallegos (the former warden at Leavenworth) and William Howell, Jr. (the safety department manager at Leavenworth), both apparently upper-level administra tors at Leavenworth, knew about the asbestos in the education department closet. Smith does not, however, make any individual allegations against the Attorney General of the United States or H. Lappin (the director of the Federal Bureau of Prisons) regarding their know ledge of the 1994 Ramsey-Schilling survey.

Smith also alleges that defendant Stephanie Wheel er, a member of the safety department, had previously directed Gonzalez's activities with respect to removal of the asbestos material, id. Attach. IV ¶¶ 34-35, and that defendant Teresa Hartfield had to approve of all work done in the education department, id. Statement of Claim ¶ 4, which implies that Hartfield had to have known of the prior asbestos-related work. Smith alleges that John Parent told him he had previously informed the education department staff about the presence of asbestos in the closet, id. Attach IV ¶ 33, which would have included defendants Hartfield, Durbin, and John Doe. And, Smith alleges that defendant Durbin was aware of the damaged pipe insulation at the time of Smith's exposure. Id. Attach. IV ¶¶ 5-10. Moreover, defendant Jeffery Sinclair is alleged to have given Smith a work pass on the second day so that he could return to the closet and finish the job that could not be finished the first day because of the dust exposure, id. Attach. IV ¶ 10, which implies Sinclair's knowledge.

As the litigation progresses, it is possible the govern ment will produce evidence showing that some or all of the individual defendants did not know that the 1994 Ramsey-Schilling survey disclosed the presence of as bestos in the closet, or more generally, that an individual defendant did not know of the presence of asbestos in the closet, based on simple lack of knowledge or inter vening circumstances. However, these are matters to be determined at a later point in this case. Smith has satis fied the standard enunciated in Robbins-the defen dants are on fair notice of who is alleged to have done what to whom, Robbins, 519 F.3d at l249-as to all de fendants named in their individual capacities other than Alberto Gonzales and H. Lappin (the director of the Federal Bureau of Prisons).

As Smith's allegations are legally sufficient to state a claim for relief, the district court erred in granting defendants Eddie Gallegos (the former warden at Lea venworth), William Howell, Jr. (the safety department manager at Leavenworth), John Parent (the Custodial Maintenance Services manager at Leavenworth), Teresa Hartfield (the education administrator at Leavenworth), Jeffery Sinclair (the electrical shop supervisor at Lea venworth), John Doe (a member of the education staff at Leavenworth), Janet Durbin (a former member of the education staff at Leavenworth), and Stephanie Wheel er's (a safety department member at Leavenworth) Rule 12(b)(6) motion.

III

We AFFIRM the district court's dismissal of Smith's FTCA claim against all defendants. We AFFIRM the district court's dismissal of Smith's Bivens claim against the United States, federal officials in their official capac ities, and federal agency defendants. We also AFFIRM the district court's dismissal of Smith's Bivens claim against Alberto Gonzales and H. Lappin. We RE VERSE the district court's dismissal of Smith's Bivens claim against all individual defendants who are sued in their individual capacities other than Alberto Gonzales and H. Lappin, and REMAND for further proceedings on that claim. We GRANT Smith's "Request to Call for Affidavit," in which he requests that we review certain documents he had filed in the district court proceedings.

4. APPENDIX B

 

5. UNITED STATES COURT OF APPEALS

6. FOR THE TENTH CIRCUIT

 

 

 

 

Nos. 07-3242 & 08-3109

(D.C. No. 06-CV-3061-JTM)

BYRON SMITH, PLAINTIFF-APPELLANT

v.

UNITED STATES OF AMERICA; ERIC HOLDER,

UNITED STATES ATTORNEY GENERAL, IN HIS

OFFICIAL CAPACITY; ALBERTO GONZALES, FORMER UNITED STATES ATTORNEY GENERAL, IN HIS

INDIVIDUAL CAPACITY; FEDERAL BUREAU OF

PRISONS; UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS; AND H. LAPPIN, DIRECTOR, FEDERAL BUREAU OF PRISONS; EDDIE GALLEGOS, ACTING WARDEN; WILLIAM E. HOWELL, JR., SAFETY MANAGER, FEDERAL BUREAU OF PRISONS; JOHN

PARENT, CUSTODIAL MAINTENANCE SERVICES

MANAGER, FEDERAL BUREAU OF PRISONS; TERESA HARTFIELD, EDUCATION ADMINISTRATOR/

PRINCIPLE, FEDERAL BUREAU OF PRISONS; JEFFERY SINCLAIR, ELECTRIC SHOP SUPERVISOR, FEDERAL BUREAU OF PRISONS; JOHN DOE, EDUCATION STAFF MEMBER, FEDERAL BUREAU OF PRISONS; JANET DURBIN, EDUCATION STAFF MEMBER, FEDERAL

BUREAU OF PRISONS; STEPHANIE WHEELER, SAFETY OFFICER, FEDERAL BUREAU OF PRISONS, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES,

DEFENDANTS-APPELLEES

 

 

 

 

 

[Filed: Mar. 31, 2009]

 

 

 

 

JUDGMENT

 

 

 

 

Before: BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.

This case originated in the District of Kansas and was argued by counsel.

The judgment of that court is affirmed in part and reversed in part. The case is remanded to the United States District Court for the District of Kansas for fur ther proceedings in accordance with the opinion of this court.

 

Entered for the Court

/s/ ELISABETH A. SCHUMAKER

ELISABETH A. SHUMAKER, Clerk

 

 

 

 

 

 

 

7. APPENDIX C

 

8. UNITED STATES DISTRICT COURT

9. FOR THE DISTRICT OF KANSAS

 

 

 

 

Case No. 06-3061-JTM

BYRON SMITH, PLAINTIFF

v.

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

 

 

 

 

[Filed: Apr. 10, 2008]

 

 

 

 

MEMORANDUM AND ORDER

 

 

 

 

This matter is before the court on plaintiff Byron Smith's motion to alter or amend judgment (Dkt. No. 76) and to supplement plaintiff's traverse (Dkt. No. 79). For the reasons stated below, the court denies the mo tions.

1. Procedural History

Mr. Smith, a pro se federal prisoner, initially brought a complaint against various officials, primarily alleging that (1) defendants negligently permitted him to work in an area where there was a known presence of asbestos, but failed or refused to post warning signs to notify per sons of the presence of asbestos; (2) defendants violated his Eighth Amendment rights and were deliberately in different to his safety by exposing him to a large dosage of asbestos when he was on work detail; and (3) defen dants negligently or with deliberate indifference de stroyed or lost his medical records (Dkt. No. 5). This court later granted the defendants' motion to dismiss (Dkt. No. 59). After judgment was entered (Dkt. No. 60), Mr. Smith filed his notice of appeal to the Tenth Circuit (Dkt. No. 61), before filing the motion for recon sideration, (Dkt. No. 66), which was denied by this court (Dkt. No. 75). Subsequent to the denial of his motion to reconsider, Smith filed the motion to alter or amend judgment that is currently before the court.

2. Legal Standard

The court may exercise broad discretion to grant relief under Rule 59(e) to alter or amend a prior judg ment. See Comm. for the First Amend. v. Campbell, 962 F .2d 1517, 1523 (10th Cir. 1992). "Grounds warranting a motion [to alter and amend under Rule 59(e)] include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to cor rect clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). In short, the court should only grant a Rule 59(e) motion to correct manifest errors of law, or to present newly discovered evidence. See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n.5 (10th Cir. 2000).

 

 

3. Analysis

Smith requests that pursuant to Rule 59(e), this court reconsider its denial of his previously denied Rule 60(b) motion because he is dissatisfied with the Court's legal and factual findings, and because he believes the court should not have limited his relief to Rule 60(b)(6). The defendants counter that Smith's current motion should be denied because the court did not err and there is no new, material evidence for the court to consider.

After careful review of the record, the court finds that relief under Rule 59(e) is not appropriate in this case, both because Smith's allegedly "new" evidence is not material, and because the court properly construed the Rule 60(b) motion as one for relief under Rule 60(b)(6). Specifically, due to Smith's failure to specify which section of Rule 60(b) he was relying upon, it was within the court's discretion to construe Smith's motion as one for relief under Rule 60(b)(6). See LaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003). None theless, even if the court had considered any of the other subsections of Rule 60(b) when evaluating Smith's re quest, his motion still would have been denied according to those legal standards, as Rule 60(b) is "an extraordi nary procedure permitting the court that entered judge ment to grant relief therefrom upon a showing of good cause within the rule." Cessna Fin. Corp. v. Bielenberg Masonry Contracting Inc., 715 F.2d 1442, 1444 (10th Cir. 1983). As such, Smith's request for relief pursuant to Rule 59(e) is denied.

Further, Smith's request to supplement his motion to alter or amend judgment (Dkt. No. 79) is denied because the exhibits do not constitute material, newly discovered evidence. At issue are Smith's exhibits, which are De fendant Bureau of Prisons (BOP) purchase orders Smith recently received pursuant to the Freedom of Informa tion Act (FOIA) and Smith's previously produced medi cal records. Even if the court were to consider the mer its of the exhibits, however, the outcome would not change as the exhibits and affidavit are immaterial to the outcome of the Rule 59(e) motion. As such, Smith's request to supplement his traverse is denied.

IT IS ACCORDINGLY ORDERED this 10th day of April, 2008, that plaintiff's motion to alter or amend judgment (Dkt. No. 76) and plaintiffs motion to supple ment plaintiff's traverse (Dkt. No. 79) are denied.

 

/s/ J. THOMAS MARTEN

J. THOMAS MARTEN, Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10. APPENDIX D

 

11. UNITED STATES DISTRICT COURT

12. FOR THE DISTRICT OF KANSAS

 

 

 

 

13. Case No. 06-3061-JTM

14. BYRON SMITH, PLAINTIFF

v.

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

 

 

 

 

Dec. 27, 2007

 

 

 

 

MEMORANDUM AND ORDER

 

 

 

 

This matter is before the court on plaintiff Byron Smith's motion for reconsideration pursuant to Fed. R. Civ. P. 60(b) (Dkt. No. 66). For the reasons stated be low, the court denies the motion.

15. A. Procedural History

Mr. Smith, a pro se federal prisoner, initially brought a complaint against various officials, primarily alleging that (1) defendants negligently permitted him to work in an area where there was a known presence of asbestos, but failed or refused to post warning signs to notify per sons of the presence of asbestos; (2) defendants violated his Eighth Amendment rights and were deliberately indifferent to his safety by exposing him to a large dos age of asbestos when he was on work detail; and (3) de fendants negligently or with deliberate indifference de stroyed or lost his medical records (Dkt. No. 5). This court later granted the defendants' motion to dismiss (Dkt. No. 59). After judgment was entered (Dkt. No. 60), Mr. Smith filed his notice of appeal to the Tenth Circuit (Dkt. No. 61), before filing the motion presently before the court (Dkt. No. 66).

16. B. Jurisdiction

Before reaching the merits of Mr. Smith's claim, it is necessary to establish whether this court has jurisdic tion. Generally, a notice of appeal divests the district court of jurisdiction. Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998). Nevertheless, "a notice of appeal does not divest a district court of juris diction to consider a Rule 60(b) motion, although it pre vents a district court from granting such a motion unless it notifies [the circuit court] of its intention to grant the motion upon proper remand." West v. Ortiz, No. 06- 1192, 2007 WL 706924, at *5 (10th Cir. March 9, 2007) (citing Allison v. Bank One-Denver, 289 F.3d 1223, 1243 (10th Cir. 2002)). Accordingly, this court has jurisdic tion to consider and deny the Rule 60(b) motion. If this court determines that the motion has merit, then it must notify the Tenth Circuit and request a remand before granting the motion.

C. Merits of Mr. Smith's Request

Rule 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party . . . from a final judg ment . . . for the following reasons: (1) mistake, in advertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.

FED. R. CIV. P. 60(b). Relief under the rule is "an extra ordinary procedure permitting the court that entered judgement to grant relief therefrom upon a showing of good cause within the rule." Cessna Fin. Corp. v. Biel enberg Masonry Contracting Inc., 715 F.2d 1442, 1444 (10th Cir. 1983). Further, Rule 60(b) is "not available to allow a party merely to reargue an issue previously ad dressed by the court when the reargument merely ad vances new arguments or supporting facts which were available for presentation at the time of the original ar gument." FDIC ex rel. Heritage Bank & Trust v. Uni ted Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)). A Rule 60(b) motion "is not in tended to be a substitute for a direct appeal." Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000).

Mr. Smith's motion does not specify which section of Rule 60(b) he is relying on for relief. After re view of his motion, this court construes it as 60(b)(6), the catch-all provision, which allows for relief only in ex traordinary circumstances. See LaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003); Loum v. Hous ton's Rests., Inc., 177 F.R.D. 670, 672 (D. Kan. 1998). Courts reserve Rule 60(b)(6) relief for situations in which it offends justice to deny relief. Love v. Roberts, No. 05-3481, 2007 WL 3353706, at *1 (D. Kan. Nov. 7, 2007). Mr. Smith fails to cite any "exceptional circum stances" justifying relief, and mere dissatisfaction with this court's ruling does not rise to the level needed to obtain relief under Rule 60(b)(6). As such, Mr. Smith's motion is denied.

IT IS ACCORDINGLY ORDERED this 27th day of December, 2007, that plaintiff's motion for reconsider ation (Dkt. No. 66) is hereby denied. Defendant's mo tion for extension of time to file a response (Dkt. No. 70) is denied as moot.

 

/s/ J. THOMAS MARTEN

J. THOMAS MARTEN, JUDGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

17. APPENDIX E

18.

19. UNITED STATES DISTRICT COURT

20. FOR THE DISTRICT OF KANSAS

 

 

 

 

Case No. 06-3061-JTM

BYRON SMITH, PLAINTIFF

v.

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

 

 

 

 

[Filed: July 26, 2007]

 

 

 

 

MEMORANDUM AND ORDER

 

 

 

 

The present matter arises on defendants' motion to dismiss pursuant to the Federal Rules of Civil Proce dure 12(b)(1) and 12(b)(6) (Dkt. No. 35). For the follow ing reasons, the court grants defendants' motion. Addi tionally, the court denies plaintiff's motion to strike (Dkt. No. 37); denies plaintiff's motion for default judg ment (Dkt. No. 38); denies plaintiff's motions for judicial notice (Dkt. Nos. 54 and 56); and denies plaintiff's mo tion for reconsideration (Dkt. No. 55).

I. Factual Background:

Plaintiff, Byron Smith, is a prisoner who was incar cerated at the United States Penitentiary at Leaven worth ("USP Leavenworth") during the times relevant to his First Amended Complaint. Primarily, plaintiff alleges that (1) defendants negligently permitted him to work in an area where there was a known presence of asbestos, but failed or refused to post warning signs to notify persons of the presence of asbestos; (2) defen dants violated his Eighth Amendment rights and were deliberately indifferent to his safety by exposing him to very large dosages of asbestos fibers when he was on a work detail; and (3) defendants negligently or with de liberate indifference destroyed or lost his medical rec ords.

For relief, plaintiff seeks $50,000 in compensatory damages, $50,000 in punitive damages, $2,000,000 for negligence, $100,000 for "loss or destruction" of medical records, an unspecified amount for future medical ex penses, and regular testing by a professional trained in the area of asbestos.

Plaintiff filed the present action initially on January 6, 2006 in the District of Columbia, which transferred his case to the District of Kansas due to improper venue. Plaintiff thereafter filed a First Amended Complaint in the District of Kansas on March 27, 2006 incorporating by reference the documentation and facts of the original complaint.

Defendant Harley G. Lappin is the Director of the Bureau of Prisons, located in Washington, D.C. At the time of his complaint, petitioner did not state whether he was suing defendant Lappin in his individual or official capacity. Defendant Eddie Gallegos responded to plain tiff's written complaints at the institution and adminis trative levels. Plaintiff is suing defendant Gallegos in both his individual and official capacities. Defendant Janet Durbin was the former Education Technician at the USP Leavenworth. Plaintiff is suing defendant Dur bin in her individual and official capacities. Plaintiff is suing defendants William Howell, Jr., John Parent, Teresa Hartfield, Jeffrey Sinclair, and Stephanie Wheel er in their individual and official capacities. Plaintiff also is suing the Attorney General, without noting whe ther he was being sued in his individual and/or official capacity. Finally, plaintiff is filing suit against the USP Leavenworth and the Federal Bureau of Prisons ("BOP").

In 2003, plaintiff was a federal inmate at the USP Leavenworth. In April and June 2003, he worked for the Custodial Maintenance Service as an electrician. While working in this capacity, he received a work order to add a new light fixture in a closet in the Education Building. Defendant Durbin met the plaintiff in the Education Building, unlocked the classroom and the closet, and showed plaintiff where she wanted the light fixture to be placed. Plaintiff and his work crew began working on the light fixture in the closet, which was approximately 12 feet by 6 feet. During the work, inmate C. Gonzales, who worked on a different work order, began pulling pipe out of the closet, which caused the closet to become thick with dust from the pipe insulation. As the dust began to bother plaintiff, he ended his work on the closet until the dust settled. Defendant Durbin also instructed inmate Gonzales to wait until plaintiff and his work crew installed the light fixture before proceeding back into the closet.

On the next day, plaintiff and his work crew returned to the Education Building to work on the fixture. In mate Gonzales pulled the insulation off the pipe in the closet again, which filled the closet with dust. The dust bothered plaintiff's eyes and throat, which caused the plaintiff to stop working until the dust settled. Defen dant Durbin instructed inmate Gonzales to leave the closet or a report would ensue.

Thereafter, on March 9, 2005, plaintiff completed an Informal Attempt to Resolve form which stated:

[I]n between the months of April and May I was ex posed to very large doses of asbestos while out on a job in the education department. I am requesting to be tested by a specialist in the field for this exposer [sic]. It is of my concern to know why this area was not listed as an unauthorized area to staff and in mates until removed?

Amended Complaint, Dkt. No. 5, at 4, incorporating by reference, Exh. A, at 2, attached to Complaint, Dkt. No. 1. Plaintiff also filed a Request for Administrative Re view regarding his alleged asbestos exposure which he described as "very large amounts of 'burst exposures.'" Id. at Exh. B, at 3.

In responding to plaintiff's Request for Administra tive Review, defendant Gallegos stated that:

The Education Department inmate orderly was in structed by staff to clean the storage closet. At no time was he instructed to remove any insulation. His removal of the insulation resulted in possible expo sure to asbestos. Prior to his entering the closet and disturbing the insulation, the insulation was non- friable and in good repair. There are no regulations which require the abatement of asbestos containing material which is in good repair.

Id. at Exhibit B, at 5. Defendant Gallegos also noted that: "There were no samples taken of the pipe insula tion in the closet where your alleged exposure occurred due to its complete removal before the Safety Depart ment was notified." In addition, "there is no way to de termine the amount of possible exposure." Id. at Ex hibit B, at 4.

On March 16, 2005, plaintiff filed a Request for Ad ministrative Remedy which stated:

Sir, back in 2003, my medical jacket came up missing from the records department here at Leavenworth Hospital. What I'm requesting to know is: (1) Who released my medical records? (2) To whom where [sic] they released? And Who authorized them to be released without any consent?"

Id. at Exh. B, at 2. Defendant Gallegos responded to plaintiff on April 1, 2005 by stating that: "The review revealed your medical records were lost or destroyed in error and had to be recreated. They were not released to any unauthorized person or agency." Id. at Exh. B, at 3.

The present issues for consideration are whether plaintiff has subject matter jurisdiction over any of the defendants under the Federal Tort Claims Act ("FTCA") and/or Bivens when the Inmate Accident Compensation Act ("IACA") is the exclusive remedy for inmate work-related injuries; whether plaintiff can state a Bivens claim against defendants Lappin, Gallegos, Howell, Parent, Sinclair, Hartfield, Wheeler, or the At torney General; and whether plaintiff can state a claim against the United States for the negligent loss or de struction of his medical records?

II. Standard of Review:

For 12(b)(I) claims, district courts have "original jur isdiction of all civil actions arising under the Constitu tion, laws, or treaties of the United States." 28 U.S.C. § 1331. "A case arises under federal law if its 'well- pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Nicodemus v. Union Pacific Corp., 440 F.3d 1227, 1232 (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)).

For purposes of resolving a motion to dismiss with respect to Fed. R. Civ. P. Rule 12(b)(6), the court must accept as true all well-pleaded facts and view those facts in the light most favorable to plaintiff. See Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., 175 F.3d 848, 855 (10th Cir.1999). The court may not grant relief "'unless it appears beyond doubt that the plaintiff can prove no set off acts in support of his claim which would entitle him to relief.'" GFF Corp. v. Asso ciated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, (1957)).

III. Conclusions of Law:

A. Subject Matter Jurisdiction:

Plaintiff claims that defendants are jointly and sever ally liable under the FTCA and Bivens for injuries sus tained from possible asbestos exposure. Defendants ar gue that the IACA is plaintiff's exclusive remedy for inmate work-related injuries and therefore, plaintiff is barred from recovery under the FTCA and/or Bivens.

The IACA, a prisoner's workers' compensation stat ute, allows a federal prisoner to seek relief where a fed eral prisoner is injured while working. See 18 U.S.C. § 4126. Plaintiff's claim for relief under the FTCA and/ or Bivens fails because the IACA provides the exclusive remedy for "injuries suffered . . . in any work activity in connection with the maintenance or operation of the institution [in which the inmates] are confined." Alvarez v. Gonzalez, 155 Fed. Appx. 393, 395-96 (10th Cir. 2005) (citing United States v. Demko, 385 U.S. 149, 153 (1966) (accepting § 4126 "as an adequate substitute for a sys tem of recovery by common-law torts"); United States v. Gomez, 378 F.2d 938, 939 (10th Cir. 1967) (per curiam) (holding that § 4126 "constitute[s] the exclusive remedy for injuries received by federal prisoners while perform ing assigned prison tasks")). Therefore, plaintiff is barred from litigating his FTCA and/or Bivens claim since the cause of his alleged injuries are work-related and compensable only under 18 U.S.C. § 4126.

B. Failure to State A Claim:

1. FTCA:

Notwithstanding the exclusive remedy available to plaintiff under the IACA, plaintiff's claims also fail un der the FTCA and Bivens for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

First, with respect to the FTCA, a plaintiff can main tain a cause of action against only the United States. See Menteer v. Applebee, 196 Fed. Appx. 624, 626 (10th Cir. 2006). The FTCA provides that the United States shall be liable to the same extent as a private party, "for injury or loss of property . . . or personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." See 28 U.S.C. § 1346(b); 28 U.S.C. 2674.

With respect to plaintiff's claim for anxiety and emo tional distress, under the FTCA, a person convicted of a felony who is currently incarcerated cannot maintain a cause of action against the United States for mental or emotional injury without a prior showing of physical injury. See 28 U.S.C. § 1346(b)(2); 42 U.S.C. § 1997e. In the present case, plaintiff was convicted of a felony. Al though plaintiff seeks damages for "anxiety and emo tional distress," he is not currently suffering from a physical injury because his complaint seeks compensa tion for "future physical health, safety and well being" and "future medical expenses" that may develop from the possible exposure. Amended Complaint, at 4. More over, although plaintiff cites that asbestos exposure caused "irritation to his eyes, throat, and caused short ness of breath," courts have not held that de minimis in juries, where the plaintiff fails to allege lasting, detri mental side effects, or heightened or prolonged physical pain, constitute a physical injury. See Clifton v. Eu bank, 418 F. Supp. 2d 1243, 1248 (D. Colo. 2006). Be cause plaintiff cannot demonstrate a significant physical injury, relief under the FTCA is unwarranted.

Furthermore, relief is unavailable under the FTCA for plaintiff's alleged loss of medical records. Under the FTCA, the court has jurisdiction over plaintiff's claim for monetary damages against the United States for his "loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Govern ment while acting within the scope of his office or em ployment." See 28 U.S.C. § 1346(b)(l). However, the Tenth Circuit has held that inmates do not have a pro tected property interest in prison property. See Durand v. Deland, No. 92-4034, 1992 WL 181989, at *1 (10th Cir. July 30,1992) (holding that "C" notes, or chronological notes were prison property and thus, inmate did not have a property interest). For these reasons, plaintiff's claims under the FTCA fail under Fed. R. Civ. P. 12(b)(6).

2. Bivens:

Plaintiff also includes a Bivens claim against the in dividual defendants in their individual capacities under the Eighth Amendment. He alleges that defendants violated his constitutional rights by allegedly exposing him to asbestos, failing to have the asbestos removed following a 1994 survey, and/or knowingly permitting him to enter the work site where asbestos was present.

Plaintiff must demonstrate under a subjective com ponent that "defendant[s] knew he faced a substantial risk of harm and disregarded that risk, 'by failing to take reasonable measures to abate it'" under the delib erate indifference standard. See Kikumura v. Osagie, 461 F.3d 1269, 1293 (10th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)). Additionally, plain tiff must prove an objective component that the alleged deprivation is "'sufficiently serious' to constitute a de privation of constitutional dimension." Kikimura, 461 F.3d at 1292 (quoting Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)). The harm from the alleged injury must be "sufficiently serious." Id.

Plaintiff fails to show that the named individual de fendants were aware that there was a substantial risk of asbestos exposure. Specifically, plaintiff informed de fendants Wheeler, Howell, Sinclair, and Parent about the possible exposure approximately two years after in mate Gonzales pulled the insulation, causing the alleged exposure. Furthermore, plaintiff does not allege defen dants' Durbin, Gallegos, Lappin, and the Attorney Gen eral's involvement in the possible exposure. Moreover, defendant Durbin was the only named individual defen dant who was present at the time of the alleged expo sure. However, plaintiff fails to assert an action or inac tion taken by defendant Durbin that would constitute deliberate indifference. Plaintiff's complaint does not demonstrate that defendants were aware of the expo sure, which fails to meet the required components for "deliberate indifference."

Finally, the court notes that even if plaintiff could maintain his Bivens claim against the individual defen dants, plaintiff cannot sustain an action against defen dant Lappin, the Director of the Bureau of Prisons who resides in Washington, D.C., due to a lack of personal jurisdiction. Personal jurisdiction is determined by the long-arm statute of the sate [sic] wherein a suit is brought. Second, the plaintiff must establish that suffi cient minimum contacts exist to conform with Due Pro cess requirements. See Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1357 (l0th Cir. 1990).

Plaintiff fails to meet the requirements to establish personal jurisdiction. Plaintiff's allegations with respect to defendant Lappin stem from the fact that he is the Director of the Bureau of Prisons. However, plaintiff's complaint is silent with respect to defendant Lappin's personal involvement with the alleged Eighth Amend ment violation. Therefore, the court finds that plaintiff fails to meet the jurisdictional requirements. For these reasons, the court grants defendants' motion to dismiss.

IT IS ACCORDINGLY ORDERED this 25th day of July, 2007, that defendants' motion to dismiss (Dkt. No. 35) is granted; plaintiff's motion to strike untimely and default (Dkt. No. 37) is denied; plaintiff's motion for default judgment (Dkt. No. 38) is denied; plaintiff's mo tions for judicial notice (Dkt. Nos. 54 and 56) are denied; and plaintiff's motion for reconsideration (Dkt. No. 55) is denied.

/s/ J. THOMAS MARTEN

J. THOMAS MARTEN, Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

21. APPENDIX F

22.

23. UNITED STATES DISTRICT COURT

24. FOR THE DISTRICT OF KANSAS

 

 

 

 

Case No. 06-3061-JTM

BYRON SMITH, PLAINTIFF

v.

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

 

 

 

 

July 26, 2007

 

 

 

 

JUDGMENT IN A CIVIL CASE

 

 

 

 

IT IS ORDERED AND ADJUDGED in accordance with the Memorandum and Order filed July 26, 2007, that the defendants' motion to dismiss (Dkt. No. 35) is granted.

 

INGRID A. CAMPBELL, Acting Clerk

 

July 26, 2007 By /s/ R. Thompson

Date Deputy Clerk

 

 

 

 

 

 

25. APPENDIX G

26.

27. UNITED STATES COURT OF APPEALS

28. FOR THE TENTH CIRCUIT

 

 

 

 

No. 07-3242

BYRON SMITH, PLAINTIFF-APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

DEFENDANTS-APPELLEES

 

 

 

 

[Filed: June 8, 2009]

 

 

 

 

ORDER

 

 

 

 

Before: BRISCOE, HOLLOWAY and MURPHY, Circuit Judges.

Appellees' petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in reg ular active service on the court requested that the court be polled, that petition is also denied.

Entered for the Court,

 

/s/ ELISABETH A. SHUMAKER

ELISABETH A. SHUMAKER, Clerk

1 Because it is unclear whether the Attorney General of the United States is sued in his official or individual capacity, we construe Smith's complaint liberally to assert both an official-capacity and individual- capacity claim against the Attorney General of the United States. See Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th Cir. 1990) (applying the principle that "pro se prisoner complaints must be construed liber ally").

2 Defendant Teresa Hartfield, the education administrator and Dur bin's apparent supervisor, had to approve of all work or changes within the education department.

3 Attachments to Smith's original complaint also include an allegation by Smith that he had "developed white circles" on his lungs. Aplt. App. Doc. I Exh. Dl.

4 At the time he filed his complaint, Smith was incarcerated at the United States Penitentiary Hazelton in West Virginia.

5 Specifically, defendants are: the United States government, the At torney General, the Federal Bureau of Prisons, the United States Peni tentiary at Leavenworth, H. Lappin (director of the Federal Bureau of Prisons), Eddie Gallegos (the former warden at Leavenworth), William Howell, Jr. (the safety department manager at Leavenworth), John Parent (the Custodial Maintenance Services manager at Leavenworth), Teresa Hartfield (the education administrator at Leavenworth), Jeffery Sinclair (the electrical shop supervisor at Leavenworth), John Doe (a member of the education staff at Leavenworth), Janet Durbin (a former member of the education staff at Leavenworth), and Stephanie Wheeler (a safety department member at Leavenworth). See Aplee. Br. at 5 nn.2-3; Aplt. App. Docket Sheet.

6 Smith filed repeated motions for the appointment of counsel in the district court, Aplt. App. Docs. 6-8, 47-49, 58, all of which were denied, id. Docs. 13, 59.

7 An order denying a post judgment motion is reviewed for an abuse of discretion. Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005). A district court has substantial discretion to grant Rule 60(b) relief as jus tice requires, and "such relief is extraordinary and may only be granted in exceptional circumstances." Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000) (internal quotations omitted). However, a "district court would necessarily abuse its discretion if it based its rul ing on an erroneous view of the law or on a clearly erroneous assess ment of the evidence." Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (internal quotation omitted). "And a Rule 59(e) motion is normally granted only to correct manifest errors of law or to present newly discovered evidence." Jennings, 394 F.3d at 854 (internal quotation omitted).

Because the ultimate determinations on the merits of Smith's claims are based on legal grounds and the correct application of the applicable legal standards, the standard of review is met regardless which appel late standard is used.

8 Smith filed a "Request to Call for Affidavit" requesting the court to consider certain documents on appeal. Prior to consolidation of Smith's appeals, the government filed a response in opposition, arguing that we lacked jurisdiction over some of the matters in the appeal of the district court's memorandum and order. Because we have consolidated

Smith's appeals, and have determined that we should consider the argu ments made in support of both, we grant Smith's motion.

9 Defendants contended that whether a Bivens remedy was available to Smith was a matter of subject matter jurisdiction, and the district court apparently agreed. As we have previously stated, however, whe ther a court should imply a Bivens remedy is not a question of subject matter jurisdiction. Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1096 (10th Cir. 2005), vacated in part on other grounds on reh'g en banc, 449 F.3d 1097 (10th Cir. 2006). "In fact, there is no power to imply a Bivens cause of action unless a court has first satisfied itself that jurisdiction exists." Id. Thus, the district court had jurisdiction pursuant to 28 U.S.C. § 1331 to consider Smith's Eighth Amendment claims.

10 Defendants argue that we are creating a new Bivens remedy for deliberate indifference under the Eighth Amendment, citing Wilkie v. Robbins, 127 S. Ct. 2588 (2007). We disagree. In Wilkie, the Supreme Court discussed the two-step process for determining whether to rec ognize a Bivens remedy (citing Bush), and ultimately declined to permit the Bivens remedy for a Fifth Amendment retaliation claim against land ownership interests that had been brought against Bureau of Land Management officials. 127 S. Ct. at 2598-2604. The Court noted in Wil kie, however, that it had previously recognized a Bivens claim for "an Eighth Amendment violation by prison officials" in Carlson. Id. at 2597.

11 The Inmate Accident Compensation Act was amended in 1988, Pub. L. No. 100-690, 102 Stat. 4412, and 2004, Pub. L. No. 108-271, 118 Stat. 814, post-Bivens and post-Carlson, without any Congressional comment on the relationship between that Act and Bivens claims.

12 Additionally, but without in-depth analysis, the Ninth Circuit adop ted the conclusion of the Seventh Circuit in Bagola. Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). The Ninth Circuit noted that "the theories as well as the defendants in [Inmate Accident Compensation Act] claims and in Bivens actions are different" and concluded that the Inmate Accident Compensation Act does not preclude a Bivens action against prison officials. Id.

13 As noted above, a Bivens claim can be maintained only against fed eral officials in their individual capacities. Those defendants meeting this standard are: the Attorney General of the United States, H. Lap pin (the director of the Federal Bureau of Prisons), Eddie Gallegos (the former warden at Leavenworth), William Howell, Jr. (the safety de partment manager at Leavenworth), John Parent (the Custodial Main tenance Services manager at Leavenworth), Teresa Hartfield (the edu cation administrator at Leavenworth), Jeffery Sinclair (the electrical shop supervisor at Leavenworth), John Doe (a member of the education staff at Leavenworth), Janet Durbin (a former member of the education staff at Leavenworth), and Stephanie Wheeler (a safety department member at Leavenworth).