Bacote Jr v. Federal Bureau of Prisons

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-03111-RM-NRN
MICHAEL BACOTE, JR.,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.
REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION TO DISMISS FOURTH AMENDED COMPLAINT
(DKT. #56)
N. REID NEUREITER
United States Magistrate Judge
This case is before me pursuant to an Order, Dkt. #59, issued by Judge
Raymond P. Moore referring Defendant Federal Bureau of Prisons’ (the “BOP”) Motion
to Dismiss Fourth Amended Complaint. Dkt. #56. I have carefully considered the
motion, Plaintiff Michael Bacote, Jr.’s (“Plaintiff” or “Mr. Bacote”) response, Dkt. #83,
and the BOP’s reply. Dkt. #85. I heard argument on the motion on October 28, 2019.
See Dkt. #91. I have taken judicial notice of the Court’s file and considered the
applicable Federal Rules of Civil Procedure and case law. Now, being fully informed
and for the reasons discussed below, I RECOMMEND that the subject motion be
GRANTED in part and DENIED in part.
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I. BACKGROUND
A. Procedural History
Mr. Bacote is a prisoner at the United States Penitentiary Administrative
Maximum facility in Florence, Colorado (“ADX”). He initiated this case on December 22,
2017 by filing, pro se, a Prisoner Complaint. Dkt. #1. Magistrate Judge Gordon P.
Gallagher twice ordered Mr. Bacote to amend his complaint, Dkt. ##10 & 18; granted
Mr. Bacote’s motion for appointment of counsel, Dkt. #15; and later permitted attorney
Mark J. lvandick to represent Mr. Bacote for the limited purpose of filing a suitable
amended complaint. Dkt. #23. On January 24, 2019, Mr. Bacote, through Mr. Ivandick,
filed a Third Amended Complaint, Dkt. #24, and the case was assigned to Judge Moore
and Magistrate Judge Michael E. Hegarty. Dkt. #25. For reasons that will become clear,
Judge Hegarty recused, Dkt. #32, and the case was drawn to me in the referral role.
Dkt. #33. On April 23, 2019, Laura Rovner, Nicole Godfrey, and Danielle Jefferis of the
University of Denver Sturm College of Law Student Law Office Civil Rights Clinic were
appointed as counsel for Mr. Bacote.1 Dkt. #44. Mr. Ivandick was permitted to withdraw
from his limited scope representation on September 4, 2019. Dkt. #70. Mr. Bacote’s
new counsel filed the Fourth Amended Complaint—the operative pleading—on August
2, 2019. Dkt. #55. The subject motion to dismiss followed shortly thereafter.
1 Student attorneys Ciara Anderson, Dawn A. Fritz, Scott C. Hammersly, and Miriam
Kerler have also been permitted to appear in this matter on behalf of Mr. Bacote. See
Dkt. ##62 & 68.
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B. The Fourth Amended Complaint
Unless otherwise noted, the following well-pled allegations are taken from the
Fourth Amended Complaint and are presumed to be true for the purposes of the BOP’s
motion to dismiss.
Mr. Bacote is serving a 28-year sentence at ADX with a scheduled release date
of September 7, 2034. Dkt. #55 at 5, ¶ 14. ADX is the United States’ most secure
federal penitentiary, and it currently houses approximately 450 men. Id. at 2–3, ¶ 6. For
the past decade or so, Mr. Bacote has been confined to a single-prisoner cell for twenty-
three to twenty-four hours per day, which he alleges produces “deleterious
psychological and physiological harms.” Id. This is especially true for those who suffer
from serious mental illnesses (“SMI”) and intellectual developmental
disabilities/disorders (“IDD”).
Mr. Bacote states that he has untreated and severe major depressive disorder
with psychotic features, bipolar disorder, an IDD, a closed head injury, and post-
traumatic stress disorder (“PTSD”). Id. at 5–6, ¶ 15. He is functionally illiterate; he
stopped going to school at around age thirteen, at which point he tested far below his
age group in language, reading, and arithmetic. Id., ¶¶ 15–17. In 2009, when Mr. Bacote
was 39 years old, a BOP psychologist evaluated him and found that Mr. Bacote had an
IQ of 61, which put him in the mildly impaired range, and his Verbal and Performance
IQs were in the first percentile. Id. at 6–7, ¶ 19. He read and spelled at a second-grade
level and tested at the third-grade level for arithmetic. Id. He was diagnosed with “mild
mental retardation, now more appropriately known as IDD.” Id. at 20.
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Mr. Bacote’s untreated SMI causes paranoia, delusions, and mood swings, and
often results in a display of “uncooperative behaviors,” which includes:
[R]efusing mental health treatment, refusing to give urine samples for drug
and alcohol testing despite knowing he will be punished with further
isolation through the denial of privileges such as visitation and phone calls
with family, and refusing to leave his cell despite knowing such refusal
would precipitate the use of pepper spray.
Id. at 5–6, ¶ 15. His severe paranoid ideation manifests in part as delusions that people,
including BOP staff, are trying to kill him by tampering with his food and medication. Id.
at 7–8, ¶¶ 22–26.
Mr. Bacote alleges that the BOP is aware of his SMI and IDD but “has repeatedly
refused Mr. Bacote’s requests for mental health and IDD evaluation, assistance, and
treatment, and ignored Mr. Bacote’s obvious symptoms of SMI[.]” Id. at 8, ¶ 27. In
support, he points to his inconsistent diagnoses and the intermittent, irregular treatment
he has received while in the BOP’s custody. Id. at 8–9, ¶¶ 27–28.
In 2012, Mr. Bacote was designated the lead plaintiff in a Rule 23(b)(2) class
action lawsuit against the BOP for systemic violations of the Eighth Amendment arising
from the diagnosis and treatment of mental illness of ADX inmates. Id. at 9, ¶ 29. When
Mr. Bacote withdrew from the case, allegedly due to retaliation against him by BOP staff
for his involvement in the litigation, the matter was restyled Cunningham vs. Federal
Bureau of Prisons, Case No. 12-cv-01570-RPM-MEH (D. Colo.) (the “Cunningham
case”).2 Id. at 9–10, ¶¶ 29–32. After several years and through the herculean efforts of
the class’s pro bono counsel, BOP attorneys, Judge Matsch, and Magistrate Judge
2 Upon the passing of Senior Judge Richard P. Matsch, the Cunningham case was
reassigned to Judge Christine M. Arguello. See Cunningham, 12-cv-01570-CMA-MEH,
at Dkt. #450 (D. Colo. Sept. 30, 2019).
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Hegarty as the settlement mediator, the case settled. That settlement, described by
Judge Matsch as a “singular achievement” and as set forth in more detail below,
resulted in wide-ranging changes in the way ADX inmates with mental illnesses are
diagnosed and treated.
Mr. Bacote insists, however, that the Cunningham settlement has not helped him.
Although immediately after the commencement of the lawsuit, BOP staff suddenly
provided Mr. Bacote anger management treatment (apparently in the form of a
workbook), no treatment for his SMI and IDD was offered. Id. at 9, ¶ 30. And, while the
BOP has transferred other prisoners with SMI out of ADX, Mr. Bacote alleges that BOP
staff has changed his diagnoses to ensure he remains there. Id. at 10, ¶ 32. Since his
mental health care level was “downgraded” from the SMI range in 2014, Mr. Bacote
states that his SMI and IDD have been ignored and gone untreated, despite his
numerous requests for help and requests to be moved to a more appropriate BOP
facility. Id. at 11, ¶ 36. He alleges that his treatment has been contrary to the
evaluations of various physicians. Id., ¶¶ 36–39. He further claims that BOP staff has
“punished” him by “antagonizing him in ways staff know triggers his SMI and IDD
symptoms” so that “[w]hen Mr. Bacote responds, Defendant BOP staff have thrown food
at him, sprayed him with OC spray (pepper spray), and written him up for disciplinary
shots.” Id. at 11–12, ¶ 40. Mr. Bacote’s symptoms are exacerbated by the BOP’s refusal
to give him his medication in solid pill form rather than crushed and floated in a cup,
which triggers Mr. Bacote’s paranoia and forces him “to choose between foregoing
needed medication or consuming an unknown crushed substance he genuinely (rightly
or wrongly) believes will make him sick or kill him.” Id. at 12, ¶ 41. He has recently
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refused crushed medication and, as a result, he has “become hostile, threatening, and
non-cooperative,” which leads to disciplinary sanctions that result in further isolation. Id.,
¶¶ 41–42. He also routinely refuses to provide urine specimens for drug testing due to
paranoia and is, consequently, regularly and unfairly punished. Id. at 12–13, ¶ 43.
Mr. Bacote asserts four claims for relief against the BOP: (1) an Eighth
Amendment claim for “isolation resulting in deprivation of basic human needs”; (2) an
Eighth Amendment claim concerning the BOP’s failure to treat his SMI and IDD; (3) a
claim for disability discrimination in violation of Section 504 of the Rehabilitation Act of
1973; and (4) a First Amendment retaliation claim. Id. at 14–20, ¶¶ 51–75. He seeks
declaratory and injunctive relief and an award of attorneys’ fees and costs pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412, et seq. (the “EAJA”). Id. at 20–21, ¶
76. Specifically, he requests: (1) a declaratory judgment that the BOP is in violation of
its policies, including provisions barring prisoners with SMI and IDD from being
designated to ADX; (2) a declaratory judgment that the BOP’s diagnosis and treatment
of Mr. Bacote’s SMI and IDD violates BOP policies, the Eighth Amendment, and the
Rehabilitation Act; (3) a declaratory judgment that the BOP’s retaliation against Mr.
Bacote violates the First Amendment; (4) an injunction directing the BOP to transfer Mr.
Bacote to a BOP facility equipped to adequately evaluate and treat his SMI and IDD; (5)
an injunction ordering the BOP to cease all retaliatory treatment of Mr. Bacote; and (6)
an injunction directing the BOP to implement a specific treatment program for Mr.
Bacote’s SMI and IDD. Id.
The BOP now moves to dismiss this case under Fed. R. Civ. P. 12(b)(6). First,
the BOP argues that all of Mr. Bacote’s claims were released pursuant to the
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Cunningham settlement. The BOP further contends that Mr. Bacote’s Fourth Amended
Complaint fails to state any claims upon which relief can be granted.
II. LEGAL STANDARDS
In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must
accept as true all well-pled factual allegations in the complaint, view those allegations in
the light most favorable to the plaintiff, and draw all reasonable inferences in the
plaintiff’s favor. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125,
1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The
complaint must allege a “plausible” right to relief. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 569 n.14 (2007); see also id. at 555 (“Factual allegations must be enough to raise
a right to relief above the speculative level.”). Conclusory allegations are insufficient,
Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and courts “are not bound to
accept as true a legal conclusion couched as a factual allegation,” Twombly, 550 U.S. at
555 (quotation omitted). To determine whether a claim is plausible, a court considers
“the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6)
standard doesn’t require a plaintiff to set forth a prima facie case for each element.”
George v. Urban Settlement Servs., 833 F.3d 1242, 1247 (10th Cir. 2016) (quotation
omitted). However, if the allegations “are so general that they encompass a wide swath
of conduct, much of it innocent, then the plaintiffs have not nudged their claims across
the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (quotation omitted). A complaint warrants dismissal if it fails “in toto to
render [plaintiff’s] entitlement to relief plausible.” Twombly, 550 U.S. at 569 n.14.
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III. ANALYSIS
The BOP’s primary argument for dismissal is that Mr. Bacote’s claims are
precluded by the class action settlement in Cunningham. An understanding of that
court-approved settlement is therefore essential in properly evaluating Mr. Bacote’s
claims and the BOP’s defenses.
A. The Cunningham Settlement Agreement
1. The Terms of the Settlement Agreement
The terms of the settlement approved by Judge Matsch in the Cunningham case
are contained in a document titled “Addendum to Joint Motion to Approve Settlement”
(hereinafter the “Settlement Agreement” or “Addendum”). 3
The plaintiff class certified in the Cunningham case encompasses (1) a
Screening Class, and (2) a Treatment Subclass of ADX inmates with a “Covered Mental
Illness.” Dkt. #56-1 at 9, ¶ 12. The “Screening Class” is “all persons who are confined at
ADX at any time between the Effective Date [i.e., December 29, 2016, the date Judge
Matsch entered the Order Approving Settlement, see Dkt. #56-24] and the last day of
the Compliance Period,” Dkt. #56-1 at 12, ¶ 29, which is currently set to expire on
3 The Settlement Agreement is attached as an exhibit to the BOP’s motion to dismiss,
see Dkt. #56-1, and can also be found at Dkt. #382 of the Cunningham case. The Court
can take judicial notice of this and other court records. See St. Louis Baptist Temple,
Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (holding that
“federal courts, in appropriate circumstances, may take notice of proceedings in other
courts, both within and without the federal judicial system, if those proceedings have a
direct relation to matters at issue”); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir.
2006) (district court may take judicial notice of “facts which are a matter of public record”
without converting a 12(b)(6) motion into a summary judgment motion).
4 The Order Approving Settlement is also found at Dkt. #391 of the Cunningham case,
and on Westlaw at Cunningham v. Federal Bureau of Prisons, 2016 WL 8786871 (D.
Colo. Dec. 29, 2016).
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December 29, 2019. See id. at 32–33, ¶¶ 80–82. The “Treatment Subclass” consists of
“all persons who are confined at ADX at any time between the Effective Date and the
last day of the Compliance Period and have been diagnosed by the [BOP] or its
representative personnel or contractors with a Covered Mental Illness[.]” Id. at 12–13, ¶
30. A “Covered Mental Illness” is “a mental disorder as defined in the most current
edition of the Diagnostic and Statistical Manual of Mental Disorders that results in
classification of the inmate as a CARE2-MH or higher.” Id. at 12, ¶ 25. A “‘Serious
Mental Illness’ is defined as in the [BOP]’s current Program Statement regarding the
Treatment and Care of Inmates with Mental Illness.” Id., at ¶ 26. The BOP’s Program
Statement regarding the Treatment and Care of Inmates with Mental Illness5 defines
“mental illness” as follows:
A mental disorder is a syndrome characterized by clinical [sic] significant
disturbance in an individual’s cognition, emotion regulation, or behavior
that reflects a dysfunction in the psychological, biological, or
developmental processes underlying mental functioning. Mental disorders
are usually associated with significant distress or disability in social,
occupational, or other important activities.
Bureau of Prisons Program Statement No. 5310.16, § 1 (May 1, 2014),
https://www.bop.gov/policy/progstat/5310_16.pdf. “Classification of an inmate as
seriously mentally ill requires consideration of his/her diagnoses; the severity and
duration of his/her symptoms; the degree of functional impairment associated with the
illness; and his/her treatment history and current treatment needs.” Id. Schizophrenia
5 The Court may consider this document because Mr. Bacote explicitly refers to it in his
Fourth Amended Complaint, see Dkt. #55 at 8, ¶ 7, and 13, ¶ 45, and it is central to his
claims. See Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008) (explaining that a
court may properly consider on motion to dismiss documents central to the plaintiff’s
claim and referred to in the complaint, where the document’s authenticity is not in
dispute).
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spectrum and other psychotic disorders, bipolar and related disorders, and major
depressive disorder “are generally classified as serious mental illnesses.” Id. Other
diagnoses, including IDD, major neurocognitive disabilities, and personality disorders
“are often classified as serious mental illnesses, especially if the condition is sufficiently
severe, persistent, and disabling[.]” Id.
The Settlement Agreement lists the BOP’s voluntary initiatives concerning the
diagnosis and treatment of mentally ill inmates, see Dkt. #56-1 at 3–9, at ¶ 5; sets forth
numerous “Monitored Initiatives” to be established by the BOP, see id. at 15–22, ¶ 43;
and identifies two independent co-Monitors, Drs. Sally Johnson and Jeffrey Metzner, to
assess and report on BOP’s compliance with the Monitored Initiatives. Id. at 14, ¶ 39.
The Monitored Initiatives are extensive and include, among other things, a mental
health screening process for all ADX inmates, a classification system for ADX inmates
who are diagnosed with a SMI, new treatment protocols, reentry planning services,
disciplinary guidelines, suicide prevention, and the creation of a “residential, unit-based
Psychology Treatment Program” for inmates who “have a chronic history of self-
injurious behavior” (called “Secure STAGES”). Id. The Monitored Initiatives also require
“that inmates diagnosed with Serious Mental Illness . . . are only designated to the ADX
if the inmates have extraordinary security needs[.]” Id. at 16, ¶ 43(a)(iii)(1).
The Settlement Agreement designates dispute resolution procedures in the event
the plaintiff class’s counsel believes the BOP is not complying with the terms of the
agreement. Id. at 34–35, ¶¶ 83–87. First, the BOP and class counsel are to attempt to
resolve the dispute informally. Id. at 34, ¶ 83. If that fails, the Settlement Agreement
provides for written notice and a period of time for the BOP to investigate and respond.
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Id., ¶ 84. If this conferral process does not resolve this issue, the parties may request to
meet with Judge Hegarty to facilitate an informal resolution and, failing that, formal
mediation. Id. at 34–35, ¶¶ 85–86. The District Court retained jurisdiction to enforce the
terms of the Settlement Agreement, so that:
If the parties are unable to resolve informally a claim by Plaintiffs that
Defendant is not in substantial compliance with one or more Monitored
Initiatives or provisions of this Addendum pursuant to the procedures in
the “Informal Resolution” section above, Plaintiffs, and only through
counsel, may petition the Court to effect substantial compliance with such
Monitored Initiatives or provision of this Addendum, but not through a
petition for contempt, and only on the provision or provisions in which
Plaintiffs claim Defendant is in substantial noncompliance through the
dispute resolution process. . . . The only issue before the Court will be
whether Defendant is or is not in substantial compliance with a specific
provision or provisions of the Monitored Initiatives or this Addendum. No
petition may raise any claim for money damages or any claim by any
inmate for a judicial determination concerning the inmate’s personal
mental health diagnosis. If the Court determines that Defendant is not in
substantial compliance, the Court may enter an order within the Court’s
equitable or inherent authority to remedy the substantial non-compliance,
but Plaintiffs may not seek an order of contempt.
Id. at 36–37, ¶¶ 89 & 92.
The Settlement Agreement further provides that “[u]pon certification of the
Screening Class and Treatment Subclass, all the Screening Class and Treatment
Subclass members will be bound by the terms of this Addendum subject to the
limitations on the preclusive effect of this Addendum specified in paragraphs 73[.]” Id. at
10, ¶ 16. Paragraph 73 contains the “Legal Release” which provides, in full:
Plaintiffs, the members of Screening Class and Treatment Subclass, and
their heirs, administrators, representatives, successors, and assigns, and
each of them hereby release, waive, acquit, and forever discharge the
United States, the Federal Bureau of Prisons, and its employees in their
official capacities from, and are hereby forever barred and precluded from
prosecuting, any and all claims, causes of action, or requests for any
injunctive or declaratory relief, including costs, attorneys’ fees, expenses,
and/or interest, whether presently known or unknown, that have been
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asserted in this litigation, or that pertain to the treatment of ADX inmates’
mental health; provided that in no event shall this Release be deemed to
release or otherwise affect in any way: (1) any claim for money damages;
(2) any claim by any inmate for a judicial determination concerning the
inmate’s personal mental health diagnosis; or (3) any claim based in
whole or substantial part on events occurring during the Compliance
Period and that does not concern one of the Monitored Initiatives.
Id. at 31, ¶ 73.
Under this court-approved language, every class member has released any and
all claims pertaining to that class member’s mental health treatment. As addressed
below, only the second of the limited carve-outs to this broad waiver (“any claim by any
inmate for a judicial determination concerning the inmate’s personal mental health
diagnosis”) might potentially apply to this lawsuit:
2. Approval of the Cunningham Settlement Agreement
The parties in the Cunningham case presented the Settlement Agreement to
Judge Matsch on November 16, 2016. Dkt. #56-1. The next day, Judge Matsch granted
preliminary approval of the settlement terms and ordered that notice be distributed to
class members. Cunningham, 12-cv-01570-CMA-MEH, Dkt. #383. A three-day Fairness
Hearing was held in December 2016. See id., Dkt. ##404–06. During the Fairness
Hearing, Judge Matsch heard, through videotapes and letters, the objections of several
ADX inmates to the Settlement Agreement. See generally id., Dkt. ##405 & 406. Judge
Matsch also heard testimony from ADX prisoners regarding the conditions of their
confinement. Judge Matsch received into evidence a 2009 letter from Mr. Bacote
concerning the violation of his rights as a result of being held at ADX despite his mental
illness, and a letter by another inmate advocating on behalf of Mr. Bacote at that time.
See id., Dkt. #404 at 37–38.
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In his December 29, 2016 Order Approving Settlement, Judge Matsch found that
the Settlement Agreement was fair, reasonable, and adequate, observing:
This settlement is a singular achievement. The programs, policies and
staffing that has been and will be implemented will advance understanding
of the complex relationship between criminal conduct and mental illness
and provide some measure of human dignity to the confinement of those
who have been shown to be too dangerous to live with others in an open
population penal institution.
The adequacy of the settlement terms to effectively diagnose and treat
mental illness is not within the competence of the Court and is not a
finding required to be made under Rule 23(e). The ADX is not a mental
hospital. What is required is a finding that these programs and policies are
expected to reasonably respond to the complex problem of balancing the
need for severe restrictions on liberty with a humane consideration of
mental illness causing aberrant conduct.
Dkt. #56-2 at 8.
On January 17, 2017, Judge Matsch entered a final order, comprehensively titled
“Stipulated Order Certifying Settlement Class and Subclass and Dismissing this Action
With Prejudice Subject to the Court’s Retention of Jurisdiction Over the Parties and
Subject Matter for Purposes of Enforcing the Parties’ Settlement Agreement, Facilitating
the Continuing Involvement of a United States Magistrate in Certain Enforcement-
Related Matters, and Enforcing the Protective Order Previously Entered by the Court.”
Dkt. #56-3. The Cunningham case was then dismissed with prejudice subject to the
reservation of limited jurisdiction to enforce the terms of the Settlement Agreement. Dkt.
#56-4.
Named-plaintiff Harold Cunningham, proceeding pro se, appealed the approval
of the class action settlement. Cunningham, 12-cv-01570-CMA-MEH, Dkt. #410. The
Tenth Circuit affirmed the approval of the settlement and dismissed Mr. Cunningham’s
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appeal. Id., Dkt. #426. See also Cunningham v. Fed. Bureau of Prisons, 709 F. App’x
886 (10th Cir. 2017) (unpublished) (hereinafter distinguished as “Cunningham II”).
Finally, on September 27, 2019, nearly three years after having received notice
of the putative settlement, and almost two years after he filed this lawsuit, Mr. Bacote,
through his court-appointed counsel, filed in the Cunningham case a document titled
“Notice of [His] Exercise of Right, Pursuant to 28 U.S.C. § 1715(E)(1), Not to Be Bound
by Settlement Agreement” (the “Notice”). Id., Dkt. #449. The Notice, the BOP’s
response, id., Dkt. #452, and Mr. Bacote reply, id., Dkt. #453, were also filed on the
docket in this case. See Dkt. ##83-2, 85-1, & 89-1.
B. The Effects of the Cunningham Settlement Agreement on this Lawsuit
Under the Settlement Agreement, the members of the Screening Class and
Treatment Subclass are, with three exceptions: “forever barred and precluded from
prosecuting[] any and all claims, causes of action, or requests for any injunctive or
declaratory relief, including costs, attorneys’ fees, expenses, and/or interest, whether
presently known or unknown, that have been asserted in this litigation, or that pertain to
the treatment of ADX inmates’ mental health.” Dkt. #56-1 at 31, ¶ 73. The three
exceptions are claims for money damages, claims for judicial determination of an
inmate’s personal mental health diagnosis, and claims that are unrelated to one of the
Monitored Initiatives. Id. The questions before the Court, then, are whether: (1) the
Settlement Agreement is binding on Mr. Bacote; (2) the Settlement Agreement is
enforceable; (3) the Settlement Agreement’s release clause bars Mr. Bacote’s asserted
claims for relief; and (4) any exception to the release clause applies. The Court must
then determine if any non-released claims are sufficiently pled under Rule 12(b)(6).
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1. Mr. Bacote is bound by the Settlement Agreement.
The BOP argues that notwithstanding his purported withdrawal from the
Cunningham litigation, Mr. Bacote remains a member of the class. Because the
Cunningham class was certified under Fed. R. Civ. P. 23(b)(2), class members did not
have the right to opt out. Therefore, Mr. Bacote is bound by the Settlement Agreement.
In response, Mr. Bacote asserts that he is not bound by the Settlement Agreement in
Cunningham under the Class Action Fairness Act (“CAFA”). The Court disagrees and
finds that Mr. Bacote is bound by the Cunningham settlement.
In Cunningham, the plaintiffs sought and were granted certification of the above-
referenced class and subclass under Rule 23(b)(2). Rule 23(b)(2), which addresses
situations in which classwide injunctive relief is the most appropriate remedy, provides
for “no opportunity for . . . [23(b)(2)] class members to opt out, and does not even oblige
the District Court to afford them notice of the action.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 362 (2011). It is well settled that a class action judgment is binding on all
class members. Pelt v. Utah, 539 F.3d 1271, 1284 (10th Cir. 2008). See also Cook v.
Rockwell Int’l Corp., 151 F.R.D. 378, 388 (D. Colo. 1993)) (“Class members in an action
where a class has been certified under (b)(2) do not have the option of opting out of the
class and a judgment will be binding and will have a res judicata effect as to the whole
class.”). Similarly, the Settlement Agreement provides that upon certification, all class
and subclass members are bound by its terms. Dkt. #56-1 at 10, ¶ 16. There is no
question that Mr. Bacote is, at minimum, a member of the Screening Class, and
therefore he is bound by the terms of the Settlement Agreement, including the release
clause contained in Paragraph 73. See Charles Alan Wright and Arthur R. Miller,
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Federal Practice and Procedure § 1789 (3d ed.) (“The obvious implication of Rule
23(c)(3) is that anyone properly listed in the judgment should be bound by it absent
some special reason for not doing so.”).
Mr. Bacote’s objection to being bound by the Cunningham settlement in this case
is based on a notice provision contained in CAFA, which states, “Not later than 10 days
after a proposed settlement of a class action is filed in court, each defendant . . . shall
serve upon the appropriate State official of each State in which a class member resides
and the appropriate Federal official, notice of the proposed settlement. . . .” 28 U.S.C. §
1715(b). CAFA further provides that “[a] class member may refuse to comply with and
may choose not to be bound by a settlement agreement . . . in a class action if the class
member demonstrates that the notice required under subsection (b) has not been
provided.” Id. § 1715 (e)(1). But, “[a] class member may not refuse to comply with or to
be bound by a settlement agreement . . . if the notice . . . was directed to the
appropriate Federal official and to either the State attorney general or the person that
has primary regulatory, supervisory, or licensing authority over the defendant.” Id. §
1715 (e)(2)
Mr. Bacote argues that the BOP failed to serve notice of the proposed settlement
upon the Colorado Attorney General, as required under CAFA. Therefore, Mr. Bacote
believes that he is not bound by the Settlement Agreement, and the Cunningham case
cannot bar his claims. For several reasons, the Court declines Mr. Bacote’s invitation to
nullify a historic settlement on a technicality.
First, Mr. Bacote has waived this objection. See Huyer v. Njema, 847 F.3d 934,
941 (8th Cir. 2017) (holding that a class member’s objection to the approval of a class
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action settlement based on non-compliance with CAFA’s notice requirement was
“waived because neither [the class member] nor any other objector raised this issue in
the district court”). Mr. Bacote had an opportunity to be heard in the Cunningham case.
Although it was not required by Rule 23, class members did receive notice of the
settlement and Mr. Bacote and other ADX prisoners had an opportunity to be heard at
the Fairness Hearing. Neither Mr. Bacote nor any of the numerous other objecting class
members raised the lack of notice under CAFA. Consequently, the issue has been
waived.
Moreover, Mr. Bacote’s argument amounts to an impermissible collateral attack
on Judge Matsch’s finals orders and judgment. “A ‘collateral attack’ is a tactic whereby a
party seeks to circumvent an earlier ruling of one court by filing a subsequent action in
another court.” Harbinger Capital Partners LLC v. Ergen, 103 F. Supp. 3d 1251, 1265
(D. Colo. 2015) (quoting Pratt v. Ventas, Inc., 365 F.3d 514, 519 (6th Cir. 2004)). Under
CAFA, a court may not issue an order giving final approval of a proposed settlement
until 90 days have passed since the relevant authorities were served with notice. 28
U.S.C. § 1715(d). Mr. Bacote implicitly argues that because notice was not provided to
the Colorado Attorney General, the Settlement Agreement should not have been
approved, and he is not bound by its terms under § 1715(e)(1). If this Court were to
accept that argument, it would necessarily call into question the validity of Judge
Matsch’s Order Approving Settlement. I cannot and will not do so, especially in light of
the fact that the Court of Appeals for the Tenth Circuit has already affirmed the approval
of Cunningham settlement. See Cunningham II, 709 F. App’x at 889. Furthermore, as a
class member who received notice of the proposed settlement, Mr. Bacote was free to
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object to the approval of the Settlement Agreement because the BOP had not complied
with CAFA, and if he was unsatisfied with the ultimate decision there, he could have
appealed to the Tenth Circuit. He did not object on those grounds, however, and may
not seek further review in this Court.
Significantly, Mr. Bacote does not cite, and the Court cannot find, any case
where a class member’s collateral attack on a settlement approved in a separate lawsuit
was upheld due to a failure to comply with CAFA’s notice requirements. As the BOP
states, attempts to defeat settlement approval due to inadequate notice under CAFA
usually fail. See Adoma v. Univ. of Phoenix, Inc., 913 F. Supp. 2d 964, 973 (E.D. Cal.
2012) (“To . . . allow class members to opt out of the class settlement based on late
notice would result in the voiding of the settlement . . . [which] seems an unduly harsh
result for failing to comply with a technical requirement[.]”). See also 3 Newberg on
Class Actions, § 8:20 n.4 (5th ed.) (citing four similar cases). And even in a case where
the court found that the parties’ delay in providing CAFA notice was inexcusable under
§ 1715(b), the result was the merely the denial of the motion for final approval of the
settlement. See True v. Am. Honda Motor Co., 749 F. Supp. 2d 1052, 1083 (C.D. Cal.
2010) (determining that the court’s authority to approve a settlement was “questionable”
when the defendant gave CAFA notice only ten days prior to the final settlement
approval hearing). This strengthens the Court’s conclusion that the proper place for Mr.
Bacote to seek exemption from the Settlement Agreement was the Cunningham case.
Even if the issue had not been waived, given the given the lack of clear authority,
the ambiguity of the statutory provision at issue, the purposes behind CAFA’s notice
provision, and the unique facts and circumstances in this case, the Court finds that the
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parties’ failure to provide proper notice to the Colorado Attorney General would not
affect the binding nature of the Cunningham Settlement Agreement on class members
like Mr. Bacote. Section 1715(b) was “designed to ensure that a responsible state
and/or federal official receives information about proposed class action settlements and
is in a position to react if the settlement appears unfair to some or all class members or
inconsistent with applicable regulatory policies.” S. Rep. No. 109-14, at 32. “The
overriding purpose seems to have been to prevent lawyers from crafting abusive
settlements favoring themselves over consumers or other injured parties.” Catherine M.
Sharkey, CAFA Settlement Notice Provision: Optimal Regulatory Policy?, 156 U. Pa. L.
Rev. 1971, 1973 (2008). The notice provision “provides ‘a check against inequitable
settlements in these cases,’ which could arise from ‘collusion between class counsel
and defendants to craft settlements that do not benefit the injured parties.’” Id. (quoting
S. Rep. No. 109-14, at 35). CAFA “safeguard[s] plaintiff class members’ rights,” by
providing state and federal officials with an opportunity to “voice concerns if they believe
that the class action settlement is not in the best interest of their citizens.” S. Rep. 109–
14, at 5.
These fears were not present in Cunningham case. That highly-publicized
litigation lasted for well over four years. The class members’ interests were more than
adequately represented by pro bono class counsel; the lead attorney, Edwin P. Aro,
estimated that his law firm devoted 31,523 hours to the case. Cunningham, 12-cv-
01570-CMA-MEH, Dkt. #386-3 at 5. One of the plaintiffs was the Center for Legal
Advocacy d/b/a Disability Law Colorado (“CLA”), a non-profit corporation designated by
the state of Colorado to pursue legal remedies “to ensure the protection of individuals
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with mental illness who are receiving care or treatment in the State.” See 42 U.S.C. §
10805(1)(B). The CLA participated in settlement negotiations and signed the Settlement
Agreement. See Dkt #56-1 at 40. Deborah Golden, the Project Director of the D.C.
Prisoners’ Project of the Washington Lawyers’ Committee for Civil Rights and Urban
Affairs, also signed the Settlement Agreement on behalf of the plaintiffs. See id. at 39.
The plaintiff class’s attorneys engaged in extensive, arms-length negotiations
with the BOP. Those efforts were mediated and facilitated by Magistrate Judge Hegarty,
who dedicated hundreds of hours to settlement negotiation. Judge Matsch, who sat on
the bench in this District for over 45 years, held a three-day Fairness Hearing and called
the Settlement Agreement a “singular achievement.” In short, there is no fear that the
class action settlement was the result of some collusive process that disregarded the
interests of the plaintiff class members.
Finally, the Settlement Agreement concerns prisoners held in federal custody.
The BOP alone is charged with “the management and regulation of all Federal penal
and correctional institutions.” 18 U.S.C. § 4042. The duty of care owed by the BOP to
federal prisoners is “fixed by 18 U.S.C. § 4042, independent of an inconsistent state
rule.” United States v. Muniz, 374 U.S. 150, 164–65 (1963). See also Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395 (1971) (State
law may not “undertake to limit the extent to which federal authority can be exercised.”).
The policy considerations underlying the CAFA’s notice provision do not apply to facts
of this case because the Colorado Attorney General could offer little to no relevant input
as to the terms of the Settlement Agreement or the BOP’s treatment of ADX inmates.
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Nor is there any indication that the Colorado Attorney General would, in fact, have had
any objection to the terms of the Settlement Agreement.
Accordingly, the Court finds that Mr. Bacote is bound to the Cunningham
settlement.
2. The Settlement Agreement is valid and enforceable.
Next, Mr. Bacote argues that even if he is bound by the Cunningham settlement,
his claims are not barred because: (1) the BOP misinterprets and decontextualizes
relevant provisions of the Settlement Agreement; and (2) the BOP’s interpretation of the
contract violates Colorado contract law and public policy principles. The Court will
address each in turn.
i. The BOP’s interpretation of the release clause does not
conflict with the plain language of the Settlement Agreement.
Mr. Bacote argues that the BOP’s interpretation of the Settlement Agreement’s
release clause ignores and/or conflicts with two other relevant provisions. First, Mr.
Bacote cites paragraph 79, which states:
Use of Addendum in Other Proceedings. Neither the fact of this
Addendum nor any statements contained herein may be used in any way,
including in any other case or administrative proceeding, by any person,
whether or not a party to this action, except that Defendant and its
employees reserve the right to use this Addendum and the language
herein to assert issue preclusion, res judicata, satisfaction, and release in
other litigation matters seeking class or systemic relief regarding mental
health services at ADX.
Dkt. #56-1 at 32, ¶ 79. Mr. Bacote reasons that because he is not seeking class or
systemic relief, the Settlement Agreement cannot be used in this litigation.
Next, Mr. Bacote states that the BOP’s position that his claims are “forever
barred” is in direct conflict with Paragraph 82, which provides that “[u]nder no
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circumstances will the term of any provision of this Addendum, the parties’ obligations
thereunder, or the Court’s jurisdiction extend beyond four years.” Id. at 33–34, ¶ 82.
While clever, both arguments fail. As Judge Matsch informed the parties, “[a]
settlement agreement is a contract.” Dkt. #56-2 at 9. Accordingly, the Court applies
general principles of contract interpretation under state law to determine the meaning of
a settlement agreement.6 Walters v. Wal–Mart Stores, Inc., 703 F.3d 1167, 1172 (10th
Cir. 2013) (“Because settlement agreements are contracts, ‘[i]ssues involving the
formation and construction of a purported settlement agreement are resolved by
applying state contract law.’”) (quoting Shoels v. Klebold, 375 F.3d 1054, 1060 (10th
Cir. 2004)). See also Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 831 (10th
Cir. 2005) (observing that “[t]he general rules of contract interpretation under state law
apply to settlement agreements.”) (citation omitted).
When construing the terms of a contract, the Court’s ultimate objective is to give
effect to the parties’ mutual intentions. E. Ridge of Fort Collins, LLC v. Larimer & Weld
Irrig. Co., 109 P.3d 969, 973 (Colo. 2005). Absent some showing that the parties
intended otherwise, the Court assumes that the plain and ordinary meanings of the
words used in the contract reflect the parties’ agreement. Id.; Level 3 Communications,
LLC v. Liebert Corp., 535 F.3d 1146, 1154 (10th Cir. 2008). Where the plain language
is, of itself, insufficient to compel an unambiguous interpretation, the Court turns to a
variety of additional rules help shape its analysis, including various canons of
construction—e.g., that the Court should examine a given phrase in the context of the
6 The Settlement Agreement provides that “it is be governed by federal law as
enunciated or applicable in the Tenth Circuit, and to the extent that state law applies to
any issue arising under, by the laws of the State of Colorado.” Dkt. #56-1 at 30, ¶ 71.
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agreement as a whole, not in isolation; that specific provisions addressing an issue
trump more general ones; that the Court should avoid constructions that render a
provision superfluous or nonsensical; and that the Court must not add to or subtract
from the agreement’s terms. Id.; Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74
P.3d 294, 299 (Colo. 2003).
With these principles in mind, the Court finds that it is Mr. Bacote, not the BOP,
who “ignores basic contract law principles by contradicting other sections of the
agreement.” Tellingly, Mr. Bacote does not even attempt to reconcile the two cited
paragraphs with the broad scope of the release clause, which “forever bar[s]” class
members from prosecuting “any and all claims, causes of action, or requests for any
injunctive or declaratory relief . . . that have been asserted in this litigation, or that
pertain to the treatment of ADX inmates’ mental health.” Dkt. #56-1 at 32, ¶ 73
(emphasis added). At a minimum, Mr. Bacote is indisputably a member of the Screening
Class. As discussed below, he asserts claims that pertain to his mental health as an
ADX prisoner, and requests injunctive and declaratory relief. In short, most of his claims
fall directly within the ambit of the Settlement Agreement. Paragraph 73 does not limit
the release to “litigation matters seeking class or systemic relief regarding mental health
services at ADX,” and construing it to do so would effectively re-write this unambiguous
provision.
Rather, the Court agrees with the BOP that Paragraph 79 is a standard
settlement provision that restricts “any person,” including non-parties and non-class
members, from using the “fact of” the Settlement Agreement and its terms in other legal
proceedings. This provision is consistent with Fed. R. Evid. 408, which generally
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prohibits evidence of settlement agreements to prove or disprove the validity of a claim,
as well as the BOP’s disclaimer, expressed at the Fairness Hearing, that the Settlement
Agreement “contains no admission of guilt.” See Cunningham, 12-cv-01570-CMA-MEH,
Dkt. #404 at 12. See also Dkt. #56-1 at 2–3, ¶ 3 (“Defendant denies the allegations in
the Second Amended Complaint. . . . Defendant does not concede that the policies and
initiatives contained within this Addendum are required by the Constitution.”). Paragraph
79 has no bearing on scope of the release.
Nor does Paragraph 82 contradict the release’s plain language. The Settlement
Agreement and its release clause apply only to the members of the Screening Class
and Treatment Subclass. The Screening Class and Treatment Subclass include “all
persons who are confined at ADX at any time between the Effective date and the last
day of the Compliance Period.” Dkt. #56-1 at 12, ¶ 29. The “Compliance Period” is “the
period of time starting on the Effective Date and ending on the Expiration Date.” Id. at
14, ¶ 36. The Expiration Date is defined as “the date upon which the parties’ obligations
and the Court’s jurisdiction under this Addendum terminates[.]” Id., ¶ 35. Under
Paragraph 82, the Compliance Period cannot extend beyond four years. Id. at 33–34, ¶
82. Accordingly, the Expiration Date is, at the latest, December 29, 2020, although it is
currently set to expire December 29, 2019.
Once the Compliance Period ends, the Screening Class and Treatment Subclass
expire, and the release will no longer bar any new claims for relief, including those that
relate to mental health treatment. In other words, the only claims that are “forever
barred” are those that accrued during the Compliance Period. Thus, the Court disagrees
with Mr. Bacote’s assertion that the Settlement Agreement would prevent Mr. Bacote or
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other ADX prisoners from seeking an injunction against the “BOP’s illegal conduct at
any time, even for claims they could not know would arise months, years, or even
decades after the Cunningham compliance period expired.” This is a manifest
misreading of the Settlement Agreement; Paragraphs 73 and 82 are not in conflict.
ii. The Settlement Agreement is not unenforceable under
Colorado law or on public policy grounds.
Mr. Bacote next contends that the Settlement Agreement cannot be construed to
(1) permit him to release claims for intentional, knowing, or reckless misconduct; or,
conversely, (2) permit the BOP to contract away its constitutional obligations. The Court
is not persuaded.
As an initial matter, the Court notes that the contract provision at issue here is a
release, which “is the relinquishment of a vested right or claim to the person against
whom the claim is enforceable.” Truong v. Smith, 28 F. Supp. 2d 626, 630 (D. Colo.
1998) (citing Neves v. Potter, 769 P.2d 1047, 1049 (Colo.1989), and Restatement
(Second) of Contracts § 284 (1981)). Agreements exculpating one contracting party
from liability are enforceable under Colorado law. Id. (citing Heil Valley Ranch, Inc. v.
Simkin, 784 P.2d 781, 784 (Colo.1989)). Significantly, at least one other court in this
District has held that the release clause in Cunningham is legally enforceable. Hall v.
Oliver, No. 15-cv-01949-RBJ-MJW, 2017 WL 1437290, at *2 (D. Colo. Apr. 21, 2017).
Turning the Mr. Bacote’s arguments, as the BOP points out, the cases cited by
Mr. Bacote in support of his argument that parties cannot release claims for intentional,
knowing, or reckless misconduct concern liability waivers, not settlement agreements.
See Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir.
2016) (liability waiver with rafting company); Jones v. Dressel, 623 P.2d 370, 376 (Colo.
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1981) (liability waiver with skydiving company). Thus, they are wholly inapplicable to the
facts here.
Second, the Settlement Agreement allows any ADX prisoner, including Mr.
Bacote, to bring a Bivens claim for monetary damages against federal officials in their
individual capacity who are deliberately different to his serious medical needs. See
Cunningham II, 709 F. App’x at 887 (noting that Judge Matsch “pointed out that the
settlement could not be relied on in an individual claim against a BOP official or
employee brought in a separate Bivens action”). Moreover, Mr. Bacote is not precluded
from bringing “any claim based in whole or substantial part, on events occurring during
the Compliance Period and that does not concern one of the Monitored Initiatives.”
Thus, the BOP cannot be said to have “contract[ed] away its constitutional obligations.”
The Settlement Agreement is enforceable as written.
C. The Cunningham Release Clause and Mr. Bacote’s Claims for Relief
Having determined that the Settlement Agreement valid, enforceable, and
binding on Mr. Bacote, the Court must next explore whether Mr. Bacote’s claims are
barred by the release clause.
1. Mr. Bacote’s first Eighth Amendment claim is precluded.
Mr. Bacote’s first claim for relief is brought under the Eighth Amendment claim for
“isolation resulting in deprivation of basic human needs.” Dkt. #55 at 14–15, ¶¶ 51–55.
Mr. Bacote alleges that the conditions at ADX pose a substantial risk of harm to
prisoners with SMI and IDD, and that the BOP has disregarded this risk by continuing to
confine Mr. Bacote, who suffers from SMI and IDD, in isolation. Similarly, the Second
Amended Complaint in Cunningham described in some detail the “devasting effect”
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extended confinement in isolation has on ADX inmate’s mental health, especially those
who have mental illness. Cunningham, 12-cv-01570-CMA-MEH, Dkt. #274 at 31–41, ¶¶
46–69.
Despite the similarity of these factual allegations, Mr. Bacote argues that his first
claim for relief was not actually “asserted” in Cunningham, given that the two claims
there were for failure to diagnose and failure to treat, i.e., for the deliberate indifference
to the serious medical needs of ADX prisoners. Even if the Court were persuaded by
this reasoning, Mr. Bacote’s first Eighth Amendment claim obviously “pertain[s] to the
treatment of ADX inmates’ mental health.” In his response, Mr. Bacote baldly asserts
that his complaints about “long-term isolation and its attendant deprivation of social
interaction and environmental stimulation” do not pertain to the treatment of mental
health. Dkt. #83 at 28. This position is belied by a prior statement made in the very
same document:
Mr. Bacote alleges facts sufficient to show the conditions of prolonged
solitary confinement pose a substantial risk of harm to his mental health
and have actually caused substantial injury. Specifically, . . . that he
suffered from mental illness before his transfer to ADX, and the symptoms
of his SMI have worsened, and will continue to worsen, in those
conditions, as evidenced by his increased paranoia, hallucinations, mood
swings, rage, and despondency.
Id. at 9. Moreover, in his Fourth Amended Complaint, Mr. Bacote seeks declaratory and
injunctive relief relating to the BOP’s diagnosis and treatment of his SMI and IDD. See
Dkt. #55 at 20–21, ¶¶ 76(a), (b), (d), and (f). This is not a discrete Eighth Amendment
claim dealing only with Mr. Bacote’s conditions of confinement. Instead, Mr. Bacote
alleges that the conditions at ADX are unconstitutional precisely because of their impact
on his SMI and IDD.
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Any attempt to argue that these allegations and prayers for relief are not related
to Mr. Bacote’s mental health borders on frivolous. Because Mr. Bacote’s first claim for
relief pertains to his mental health treatment at ADX, it is barred by the Settlement
Agreement’s release clause.7
2. Mr. Bacote’s second Eighth Amendment claim is not entirely
precluded.
The second Eighth Amendment claim concerns the BOP’s failure to treat Mr.
Bacote’s SMI and IDD. Mr. Bacote concedes that there is an “arguable basis” upon
which the BOP might rely on the Cunningham release to preclude this claim. This
concession is well-founded: Mr. Bacote’s claim patently “pertain[s] to the treatment of
ADX inmates’ mental health,” and therefore falls squarely within the Settlement
Agreement’s release clause. See Hall, 2017 WL 1437290, at *2 (ADX inmate’s Eighth
Amendment claim “seeking injunctive and declaratory relief” for “failure to provide . . .
adequate mental health care” barred by the Cunningham settlement). However, the
release clause contains three exceptions, and Mr. Bacote maintains that his claim fits
the second one, which states, “In no event shall this release be deemed to release or
otherwise affect in any way . . . any claim by any inmate for a judicial determination
concerning the inmate’s personal mental health diagnosis.” Dkt. #56-1 at 31, ¶ 73. The
Court, in part, agrees.
7 The Court notes that it makes no judgment as to whether the BOP’s treatment of
inmate’s mental health is inconsistent with “evolving standards of decency” such that it
constitutes an Eighth Amendment violation, only that Mr. Bacote’s claim, as currently
pled, is barred by Cunningham.
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Mr. Bacote alleges that the BOP has been deliberately indifferent to his serious
mental conditions, both his SMI and IDD, and gives several examples illustrating the
BOP’s failure to provide constitutionally-adequate treatment. Dkt. #55 at 16–17, ¶ 58.
This claim must be deemed barred by Cunningham to the extent that he demands
injunctive relief in the form of a transfer out of ADX or requiring the BOP to implement
certain mental health treatment programs. See id. at 21, ¶ 76(d) & (f). However, Mr.
Bacote also seeks declaratory judgment that the BOP has violated its own policies
regarding the diagnosis and treatment of mentally ill prisoners. Id. at 20, ¶ 76(a) & (B).
Mr. Bacote specifically cites the BOP’s Treatment and Care of Inmates with Mental
Illness, which governs several of the Settlement Agreement’s Monitored Initiatives,
including those related to screening and treating inmates, and excluding inmates who
are diagnosed with a SMI from being designated to the ADX unless they have
extraordinary security needs. See Dkt. #56-1 at 15–18, ¶ 43(s)(ii)–(iv). Because this
request would necessarily require the Court to first determine that Mr. Bacote has a
SMI, as defined in the Settlement Agreement, the Court construes this as a claim for a
judicial determination concerning Mr. Bacote’s personal mental health diagnosis, which
is unambiguously permitted (not barred) by the Settlement Agreement.
The Court further notes that at oral argument, the BOP conceded that nothing
bars Mr. Bacote from bringing a claim under this exception. Instead, the BOP merely
argues that Mr. Bacote’s Fourth Amended Complaint does not explicitly request a
mental health determination as a form of relief. Requiring Mr. Bacote to initiate a new
lawsuit simply because he did not use the magic words “judicial determination of
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personal mental health diagnosis” is neither necessary under the liberal pleading
requirements of Rule 8, nor an efficient or economical use of judicial resources.
The Court’s conclusion that Mr. Bacote adequately states a claim for judicial
determination of his mental diagnoses is strengthened by comparing his allegations to
those rejected by Judge R. Brooke Jackson in Hall v. Oliver. Like Mr. Bacote, the
plaintiff in Hall was an ADX inmate who brought a claim under the Eighth Amendment
against the BOP for injunctive and declaratory relief. 2017 WL 1437290, at *1. He
alleged that (1) although he suffered from mental illness, the BOP placed him in near-
solitary confinement with deliberate indifference to his mental health; (2) the BOP
provided medically unnecessary antipsychotic drugs as a reward for good behavior, and
withheld the drugs as punishment; and (3) his placement in ADX and inappropriate
psychological care exacerbated his mental health issues. Id. The inmate argued that his
Eighth Amendment claim survived the release clause’s exception for a judicial
determination of an inmate’s mental health diagnosis. Id., at *3. Judge Jackson
disagreed because the plaintiff’s complaint “accepts his mental health diagnoses
without indicating that they may be incorrect.” Id. Therefore, his failure-to-treat claim did
not satisfy the exception. Id.
Here, in contrast, Mr. Bacote alleges throughout his Fourth Amended Complaint
that he has SMI and IDD, but the BOP inappropriately “downgraded” his mental health
care level from the SMI range, and, as a result, he has not received appropriate
treatment for his impairments, nor has he received the benefits under the Settlement
Agreement to which he would be entitled if he were properly diagnosed with a SMI. Mr.
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Bacote emphatically does not accept his mental health diagnoses, and states
repeatedly that they are incorrect.
Should Mr. Bacote prevail on this claim—i.e., if the Court were to determine that
he has a SMI—he would be entitled to the benefits a member of the Treatment
Subclass is entitled to under the Settlement Agreement. These benefits in large part
track the relief Mr. Bacote seeks in the Fourth Amended Complaint.
Accordingly, Mr. Bacote’s second claim for relief should not be dismissed to the
extent that it seeks a judicial determination of his mental health diagnoses.
3. Mr. Bacote’s Rehabilitation Act claim is precluded.
Mr. Bacote’s third claim for relief is brought pursuant to § 504 of the
Rehabilitation Act. In relevant part, § 504 provides, “No otherwise qualified individual
with a disability . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance[.]” 29 U.S.C. § 794. “A prima
facie case under [Section] 504 consists of proof that (1) plaintiff is handicapped under
the Act; (2) he is ‘otherwise qualified’ to participate in the program; (3) the program
receives federal financial assistance; and (4) the program discriminates against
plaintiff.” Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194 (10th Cir. 2008).
Upon careful review of the Fourth Amended Complaint, the Court finds that Mr.
Bacote’s Rehabilitation Act claim pertains to his mental health treatment as an ADX
inmate and is prohibited under the Cunningham settlement. Mr. Bacote’s alleged
disabilities are his SMI and IDD. Dkt. #55 at 18, ¶ 63. He requests the following
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accommodations “to afford him the ability to participate in the programs offered by” the
BOP that are clearly associated with his mental health treatment:
(1) that his psychotropic medications be administered whole without
crushing them, or that he be allowed to view the pills before crushing. This
refusal to accommodate Mr. Bacote’s request constitutes a constructive
denial of mental health treatment that prevents him from participating in
programming, especially since Mr. Bacote has not abused his
psychotropic medications; (2) because of Mr. Bacote’s functional illiteracy
caused by a combination of SMI, IDD, and a closed head injury, that he be
provided with assistance that would allow him to use and comply with the
grievance/administrative remedies policy and participate in programs and
receive the benefits associated with completing program requirements; (3)
that disciplinary hearing officers not impose punishments for his offending
behaviors that are a manifestation of his SMI, IDD, and closed head
injury[]; (4) that ADX should provide Mr. Bacote with an effective and
adequate behavioral modification program to accommodate his IDD; and
(5) that transfer of Mr. Bacote to a BOP facility that can adequately treat
his combined SMI and IDD conditions that are sufficiently severe,
persistent, and disabling . . ..
Id. at 19, ¶ 65. This relief is barred by the Settlement Agreement.
At the hearing on the subject motion, Mr. Bacote’s counsel advanced the
argument that his IDD is somehow distinguishable from his SMI and should be treated
differently. Although the full contours of this argument were not fully fleshed out, the
Court rejects it as a basis to evade Cunningham’s release clause. As discussed above,
the Treatment Subclass consists of ADX prisoners who have been diagnosed by the
BOP a “Covered Mental Illness” Dkt. #56-1 at 12–13, ¶ 30. A “Covered Mental Illness,”
in turn, is a mental disorder “as defined in the most current edition of the Diagnostic and
Statistical Manual of Mental Disorders” (“DSM-V”) Id. at 12, ¶ 25. Under the most
current edition of the DSM-V, neurodevelopmental disorders, including IDD, are
considered mental disorders. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual
of Mental Disorders (DSM-V), 33 (5th ed. 2013). Accordingly, Mr. Bacote’s IDD is
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“Covered Mental Illness.” Moreover, his IDD, if “sufficiently severe, persistent, and
disabling,” can be classified as a SMI. Bureau of Prisons Program Statement No.
5310.16, § 1. Accordingly, the Court makes no distinction between Mr. Bacote’s IDD
and SMI, as both are covered by the Settlement Agreement.
Accordingly, the Cunningham settlement precludes Mr. Bacote’s third claim for
relief.
4. Mr. Bacote’s First Amendment retaliation claim is not precluded but
should be dismissed for failing to state a claim.
In his fourth claim for relief, Mr. Bacote alleges that the BOP violated his First
Amendment rights by retaliating against him for his role in the Cunningham litigation.
“Prison officials may not retaliate against or harass an inmate because of the inmate’s
exercise of his constitutional rights.” Dawson v. Audet, 636 F. App’x 753, 755– 56 (10th
Cir. 2016) (quoting Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998)). To prove
a claim for retaliation, a plaintiff must show: (1) he was engaged in constitutionally
protected activity; (2) the defendant caused the plaintiff to suffer an injury that would
chill a person of ordinary firmness from continuing to engage in that activity; and (3) the
defendant’s “action was substantially motivated as a response to [the plaintiff’s] exercise
of constitutionally protected conduct.” Id. (quoting Shero v. City of Grove, 510 F.3d
1196, 1203 (10th Cir. 2007)). To satisfy the third element, a plaintiff must establish that
“but for the retaliatory motive, the incidents to which he refers . . . would not have taken
place.” Id. (emphasis added) (quoting Peterson, 149 F.3d at 1144). If a plaintiff cannot
satisfy the but for causation element, courts need not consider the remaining factors.
See id. at 757.
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Mr. Bacote’s retaliation claim was not asserted in Cunningham and does not
pertain to his mental health treatment. Accordingly, the release clause of the Settlement
Agreement does not preclude him from bringing it here. See Cunningham II, 709 F.
App’x at 889 (“Even though we do not consider his retaliation claim in this appeal, we
note that the settlement order does not foreclose Mr. Cunningham from bringing a
separate action for retaliation.”).
Nevertheless, Mr. Bacote’s claim fails because he does not adequately allege
that “but for” his involvement in the Cunningham case, the retaliatory conduct he
describes in his Fourth Amended Complaint would not have taken place. Mr. Bacote
alleges that the BOP’s retaliation took the form of “systemic, adverse actions against
him,” including “refusing to transfer him from ADX, denying him treatment, meals, and
privileges, imposing increased durations of isolation, spraying him with pepper spray,
and threatening him with bodily harm.” Dkt. #55 at 19–20, ¶¶ 71–75. However, the link
between those actions and the Cunningham litigation is tenuous at best. Mr. Bacote
rarely identifies who took what retaliatory actions and when. See id. at 11–12, ¶ 40
(“BOP staff often deliver Mr. Bacote’s meals to his cell in a hostile manner, threatening .
. . and antagonizing him in ways staff know triggers his SMI and IDD symptoms. When
Mr. Bacote responds, . . . staff have thrown food at him, sprayed him with OC spray
(pepper spray), and written him up for disciplinary shots.”). Moreover, Mr. Bacote
himself provides non-retaliatory reasons for much of the complained-of conduct. He
admits that when he does not receive or take his medication—which apparently
happens regularly—he can become hostile, threatening, and non-cooperative. He
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further concedes that, due to his paranoia, he often refuses to provide urine samples,
and turns down food and medication.
Mr. Bacote also alleges that BOP staff intentionally downgraded his SMI to avoid
transferring him. Id. at 20, ¶ 74. He states this was “as a result of [his] participation in
the lawsuit,” but offers nothing beyond this conclusory declaration. This allegation is
implausible. Mr. Bacote states that the BOP transferred other prisoners with SMI out of
ADX, including, one presumes, those who remained named in the Cunningham case
and litigated it for several years after Mr. Bacote withdrew. It does not make sense that
these inmates were not only not retaliated against, but transferred out of ADX, while Mr.
Bacote was kept there, if the BOP had a retaliatory motive. Absent any concrete
allegations linking Mr. Bacote’s allegedly “downgraded” mental illness level to retaliation
based on his participation in the Cunningham case, Mr. Bacote has failed to meet the
Iqbal/Twombley plausibility standard. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(“Where a complaint pleads facts that are merely consistent with a defendant’s liability,
it ‘stops short of the line between possibility and plausibility of entitlement to relief.”)
(internal citations and quotation marks omitted).
III. RECOMMENDATION
It is hereby RECOMMENDED that the BOP’s Motion to Dismiss Fourth Amended
Complaint be GRANTED in part and DENIED in part as follows:
• GRANTED as to Mr. Bacote’s First, Third, and Fourth Claims for Relief; and
• DENIED as to Mr. Bacote’s Second Claim for Relief, but only to the extent that it
seeks a judicial determination of Mr. Bacote’s mental health diagnoses, including
whether Mr. Bacote suffers from a serious mental illness.
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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2), the
parties have fourteen (14) days after service of this recommendation to serve and
file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions,
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
Date: November 8, 2019
Denver, Colorado N. Reid Neureiter
United States Magistrate Judge
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