Mohamed v. USA

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21–cv–02676–NYW–MDB
KHALFAN KHAMIS MOHAMED,
Plaintiff,
v.
SANTISTEVEN, in his individual and official capacities,
MEDRANO, in his individual and official capacities,
CONROY, in his individual and official capacities,
TRUE, in his individual and official capacities,
SEROSKI, in her individual and official capacities,
TURNER, in her individual and official capacities,
FEDERAL BUREAU OF PRISONS, and
UNITED STATES OF AMERICA,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Plaintiff’s Motion for Leave to File His Third
Amended Complaint. ([“Motion to Amend” or “Motion”], Doc. No. No. 159.) Defendants have
responded and Plaintiff has replied. ([“Response”], Doc. No. 167; [“Reply”] Doc. No. 168.) For
the reasons discussed below, the Court RECOMMENDS this Motion be DENIED in part and
GRANTED in part.
PRO SE SUMMARY
The Court recommends that your Motion to Amend be denied in part, for several reasons.
First, the Court finds Claims 1, 2, and 3 in your Proposed Third Amended Complaint, are not
different enough from your prior claims, which have already been considered and rejected.
Second, as to Claim 9, the Program Statements you cite are not discretion-constraining
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regulations or rules that apply under the circumstances, and you should not be allowed to add a
claim that will ultimately be dismissed. However, the Court recommends allowing amendment as
to Claims 4, 5, 6, 7, 8, and 10 because Defendants do not oppose adding those claims for now,
even though they reserve their right to seek dismissal of those claims later. This is only a high-
level summary of this Court’s decision and does not contain all the relevant information. The full
decision is set forth below, along with details about your right to object to this decision.
BACKGROUND
In his Motion to Amend, Plaintiff seeks to revive three previously dismissed official
capacity claims (proposed Claims 1-3, previously asserted as Claims 3, 7, and 9) and one
previously dismissed FTCA claim (proposed Claim 9, previously asserted as Claim 12). (See
Doc. No. 168 at 1-5.) Plaintiff acknowledges these claims were previously dismissed, but argues
he has valid reasons for reasserting them. (Id.) The proposed amended complaint includes other
claims, but Defendants do not oppose those at this time. Instead, Defendants plan to file a motion
to dismiss “after the Third Amended Complaint is accepted for filing.” (Doc. No. 167 at 1, fn. 1.)
Thus, for the purpose of this Report and Recommendation, the Court will focus its analysis on
proposed Claims 1, 2, 3 (“Official Capacity Claims”) and proposed Claim 9 (“FTCA Claim”).
LEGAL STANDARD
Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely give
leave [to amend] when justice so requires.” Leave to amend is properly withheld, however, “if
the amendment would be futile.” Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1218 (10th Cir.
2022). “A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (quotation omitted).
Futility also applies to claims that have already been dismissed with prejudice. Cf. Kahler v.
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Walmart Inc., No. 18-cv-3162-WJM-KMT, 2020 WL 127974, at *4 (D. Colo. Jan. 10, 2020)
(“Plaintiff cannot amend her complaint to include” a claim when “the Court has already
dismissed that claim with prejudice”).
In applying the above principles, this Court is mindful that Plaintiff proceeds pro se and
thus affords his papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261, 1269
(10th Cir. 2019). But the Court cannot and does not act as his advocate, United States v. Griffith,
928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and substantive
law to Plaintiffs as to a represented party. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir.
2018); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
ANALYSIS
I. Previously Dismissed Official Capacity Claims (Claims 1, 2, and 3 in the Proposed
Third Amended Complaint, previously Claims 3, 7, and 9)
In reasserting his Official Capacity Claims, Plaintiff argues his current request for relief
is narrow and specific, and his allegations are now supported by “ongoing sufferings[.]” (Doc.
No. 168 at 2.) He also argues “Defendants’ general opposition for the requested injunction . . . is
prematured[,] [sic]” because Defendants cannot oppose the requested relief “before such relief is
[sic] been issued.” (Id. at 2-3.)
For their part, Defendants argue the Official Capacity Claims “are materially unchanged”
from the prior complaint and describe “the same underlying conduct[.]” (Doc. No. 167 at 2-3.)
They also note some of the “paragraphs are nearly verbatim.” (Id.) Additionally, Defendants
argue Plaintiff “endorsed” the dismissal of the prior official capacity claims and cannot revive
them. (Id. at 2-5) And finally, Defendants argue the Official Capacity Claims “still suffer from
the same failure to plausibly allege ‘an immediate threat of future injury . . . and the relief
requested is too broad, vague, or incapable of enforcement to be valid.” (Id. at 4.)
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The Court agrees with Defendants. Even though Plaintiff correctly notes the requested
relief is different now, it is not different enough. Previously, Plaintiff sought an order that would
require Defendants to adhere to the law and applicable regulations. (Doc. No. 75 at 31; Doc. No.
94 at 12.) Now Plaintiff seeks an order that Defendants provide adequate medical treatment.
(Doc. No. 159-1 at 31.) And while Plaintiff goes on to describe his afflictions and concerns, (id.
“high blood pressure; swelling and pain of my legs; constipation; passing urine uncontrobly
[sic]; and all other necessary treatment…”)), the request itself is simply a general demand for
adequate medical care and diagnosis. This is too vague to satisfy Rule 65. See Johnson v. Clarke,
No. 20-cv-00717, 2021 WL 3410320, at *1 (W.D. Va. Aug. 4, 2021) (injunctive relief “to
provide adequate medical treatment is too vague and conclusory to be included in an
injunction”); CF&I Steel Corp. v. United Mine Workers of Am., 507 F.2d 170, 173 (10th Cir.
1974) (finding a decree is vague when the proscribed activity lacks particularity).
Moreover, while Plaintiff argues his allegations are supported by “ongoing sufferings,”
(Doc. No. 168 at 2), the “ongoing suffering” appears to be “health effects from defendant’s past
acts.” (Id. at 2 (emphasis added).) This argument was already considered and rejected. (See Doc.
No. 109 at 13 (“while Plaintiff plausibly alleges he still suffers adverse health effects from
Defendants’ past unlawful acts . . . the injunction he requests would not “prevent or redress” his
ongoing injuries.”).)
And finally, even assuming Plaintiff’s amended request for relief is now sufficient,
Defendants are correct that Plaintiff did not lodge an objection to this Court’s recommended
dismissal of these claims. Indeed, the presiding judge expressly noted the lack of objection when
dismissing those claims. (Doc. No. 123 at 12 (“the Parties do not object to the Recommendation
to the extent that Judge Dominguez Braswell concludes . . . Plaintiff lacks standing to bring any
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official-capacity claims for injunctive relief because he has failed to adequately plead an
immediate threat of future injury . . . .”).) Plaintiff’s opportunity to object and offer additional
information for the court’s consideration has now passed. See Ayala v. U.S., 980 F.2d 1342, 1352
(10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the
magistrate judge’s ruling). Plaintiff may be pro se, but he is a capable litigant, and in any event,
the Court cannot apply different rules simply because Plaintiff proceeds without counsel. See
Requena, 893 F.3d at 1205.
In short, the Court does not see a basis for permitting Plaintiff to reassert these previously
dismissed claims, and his Motion to Amend should be denied as to the Official Capacity Claims
set forth in Claims 1-3.1
II. Previously Dismissed FTCA Claim
Plaintiff also seeks to revive a claim for negligent supervision under the FTCA. The
FTCA Claim (currently proposed as Claim 9, and previously asserted as Claim 12) is based on
allegations that Defendant Medrano failed to provide adequate supervision during the medical
escort associated with the hunger strike at issue. (Doc. No. 159-1 at ¶¶ 180-184.)
A brief procedural history on the FTCA claim is in order.
Defendants previously moved to dismiss the currently proposed Claim 9 (previously
Claim 12), for falling within the discretionary function exception. This Court rejected
1 In his Reply, Plaintiff also argues “Defendants completely failed to argue that Plaintiff’s
allegations do not establish violation [sic] of his constitutional rights under the Eighth
Amendment.” (Doc. No. 168 at 3). To the extent that can be read as a request to reassert
previously dismissed Bivens claims, that request should also be denied. The presiding judge
dismissed Plaintiff’s Bivens claims (including then-claims 3, 7, and 9) because “the BOP’s AR
program offers an independently sufficient ground to foreclose a Bivens claim and this Court
cannot say it is ‘undoubtedly better positioned than Congress to create a damages action’ here.”)
(Doc. No. 123 at 22-23 (quoting Doc. 109 at 22–23).).
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Defendants’ arguments, concluding that Plaintiff had sufficiently alleged “a discretion-
constraining regulation[ ] or polic[y] that [took] the challenged actions outside the scope of the
discretionary function exception.” (Doc. No. 109 at 28.) Specifically, the Court found Plaintiff’s
allegations concerning 28 C.F.R. § 549.62(a)2 and 28 C.F.R. § 549.64(c),3 were sufficient.4 On
this basis then, the Court recommended that Plaintiff be allowed to proceed with his negligent
supervision claims.
However, the presiding judge disagreed. She found this Court correctly identified the
central question—whether Plaintiff identified any discretion-constraining regulation—but she
disagreed that 28 C.F.R. § 549.62(a) and 28 C.F.R. § 549.64(c), applied. (Doc. No. 123 at 24-
25.) Specifically, the presiding judge held the FTCA claims were “not based on a theory of
negligence arising out of Defendants Medrano’s and Santisteven’s conduct with respect to
Plaintiff’s food trays, but upon a theory of negligent supervision arising from the April 15, 2020
escort described in the Second Amended Complaint.” (Doc. No. 123 at 25 (emphasis added,
citations omitted).) She further explained that “[n]either 28 C.F.R. § 549.62(a) . . . or 28 C.F.R. §
549.64(c) . . . sets forth a mandatory course of conduct for transport of an inmate who is
observed to be on a hunger strike, or addresses how such transport must be supervised.” (Id.) She
also observed that “Plaintiff has identified no other policies or regulations that specifically
dictate how either Defendant Medrano or Defendant True must use their BOP staff or how
2 Requiring BOP staff to “refer an inmate who is observed to be on hunger strike to medical or
mental health staff for evaluation.”
3 Requiring that BOP staff “remove any commissary food items and private supplies of the
inmate while the inmate is on a hunger strike.”
4 The Court found them sufficient because the underlying conduct allegedly concerned: (i)
falsifying Plaintiff’s food intake records to avoid the requisite medical or mental health referral,
and (ii) a refusal to remove food items from Plaintiff’s cell. (Doc. No. 109 at 28-29.)
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guards must be supervised.” (Id.) On that basis she found Plaintiff failed to satisfy his burden of
showing his negligent supervision claims fall outside the discretionary function exception. She
noted her conclusion was “based on the general understanding that prison staffing decisions are
discretionary.” (Id. at 25-26.)
Now, Plaintiff offers two new allegedly “discretion-constraining” policies: Program
Statement 5566.06: Use of Force and Application of Restraints (“PS 5566.06”), and Program
Statement 3420.11: Standards of Employee Conduct (“PS 3420.11”). (See Doc. No. 159-1 ¶¶
181, 183).5
A. Plaintiff’s new allegations regarding PS 5566.06 do not restore his FTCA Claims
In his proposed amended complaint, Plaintiff quotes from the following provision of PS
5566.06:
[e. Staff may apply restraints (for example, handcuffs) to the inmate who
continues to resist after staff achieve physical control of that inmate and may
apply restraints to any inmate who is placed under control by the Use of Force
Team Technique. If an inmate in a forcible restraint situation refuses to move to
another area on his own, staff may physically move that inmate by lifting and
carrying the inmate to the appropriate destination. Staff are cautioned not to use
the restraints for lifting or carrying an inmate. [f] Restraints should remain on
the inmate until self-control is regained.
(Id. at ¶ 181 (quoting PS 5566.06 at 7 (Plaintiff’s quoted language emphasized in bold)).) He
also quotes the following:
After any use of force or forcible application of restraints, the inmate shall be
examined by qualified health personnel, and any injuries noted, immediately
treated.
5 The Court may consider documents incorporated by reference, documents referred to in the
complaint that are central to the claims, and documents subject to judicial notice—including
public records like the Program Statement. See Hodgson v. Farmington City, 675 F. App’x 838,
840-41 (10th Cir. 2017); see also Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.
2007) (in addition to the complaint, “the 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’ authenticity”).
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(Id. (quoting PS 5566.06 at 17).) And the following:
Videotape Review. The After-Action Review Team should review the actions of
the staff for compliance with the Correctional Services Manual and this policy. At
a minimum, this review should include the following:
The Lieutenant displayed professional behavior during the Forced Cell Team
technique.
The Lieutenant ensured only the force necessary to control the inmate is
used, based on the nature of the incident.
The Lieutenant monitored the actions of the inmate and team members; and
was not involved in subduing the inmate unless it is deemed necessary to
prevent staff or inmate injury.
(Id. (quoting PS 5566.06 at 20) (Plaintiff’s quoted language emphasized in bold).)
In quoting from these provisions, Plaintiff appears to allege that PS 5566.06 limits the use
of restraints under certain circumstances and that Defendant Medrano’s failure to inspect the
restraints (or call a nurse to do so), was a violation of this policy. (Id. at ¶¶ 181-82.) He also
argues PS 5566.06 required Defendant Medrano to intervene and protect Plaintiff. (See Doc. No.
168 at 4.)
Defendants argue that even if the cited provisions are applicable, “[n]either the
statements that Plaintiff quotes, nor other statements in that document, mandate how Medrano
was to supervise the application of restraints or intervene during an escort.” (Doc. No. 167 at 6
The Court agrees.
Pursuant to the presiding judge’s most recent order on this issue, Plaintiff must identify a
discretion-constraining policy or regulation that concerns supervision, not just underlying
conduct. (See generally Doc. No. 123 at 25 (finding Plaintiff’s FTCA negligent supervision
claim failed because the regulations at issue did not specify how a supervisor must use their staff
or how staff must be supervised).) The provisions Plaintiff quotes—and other provisions in PS
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5566.06—concern the use of restraints and force, but they do not mandate how a supervisor must
conduct him or herself during an escort or application of restraints. At best, PS 5566.06 requires
an after-action review, (see PS 5566.06 at 20), identifies the circumstances under which a
supervisor must be notified of an incident (see id. at 4, 10), and describes the type of restraint
that requires supervision, (see id. at 14). It does not, however, “dictate how . . . Defendant
Medrano . . . must use [his] BOP staff or how guards must be supervised.” (Doc. No. 123 at 25.)
In any event—and as Defendants correctly point out—the Program Statement’s focus is
the use of force to subdue a prisoner, but here, Plaintiff’s allegations concern the initial
application of restraints and his transport to and from the medical room. (See Doc. No. 123 at 6;
Doc. No. 109 at 25-26.) The Program Statement expressly disclaims application under these
circumstances:
This rule on application of restraints does not restrict the use of restraints
in situations requiring precautionary restraints, particularly in the
movement or transfer of inmates (e.g., the use of handcuffs in moving
inmates to and from a cell in detention, escorting an inmate to a Special
Housing Unit pending investigation, etc.)
(PS 5566.06 at 2 (emphasis added).) Because PS 5566.06 is not a discretion-constraining
regulation or rule that applies under the circumstances, and it cannot form the basis of Plaintiff’s
FTCA Claim.
B. Plaintiff’s new allegations regarding PS 3420.11 also do not restore his FTCA Claim
Plaintiff relies on the following language from PS 3420.11:
• “An employee may not use brutality, physical violence, or intimidation toward
inmates or use any force beyond what is necessary to subdue an inmate.” (See
Doc. No. 159-1 at ¶ 183 (quoting PS 3420.11 at 7).)
• “In their official capacity, employees may not use profane, obscene, or abusive
language when communicating with inmates, fellow employees, or others.” (Id.
(quoting PS 3420.11 at 8).)
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• “Employees shall conduct themselves in a manner that will not be demeaning to
inmates, fellow employees, or others.” (Id.)
• “Employees will immediately report any violation, or apparent violation, of
standards of conduct to their Chief Executive Officer (CEO) or another
appropriate authority.” (Id. (quoting PS 3420.11 at 2).)
Defendant argues Plaintiff’s quoted language does not dictate “‘how guards must be supervised’
with respect to restraint or escort procedures.” (Doc. No 167 at 7 (quoting Doc. No. 123 at 25.).)
The Court agrees. As noted above, Plaintiff must point to a policy or regulation that expressly
outlines supervision protocols applicable under the circumstances. (See Doc. No. 123 at 25.) PS
3420.11 does not, and cannot form the basis of Plaintiff’s FTCA Claim. In the absence of an
applicable policy or regulation—and based on the general understanding noted by the presiding
judge “that prison staffing decisions are discretionary”—the FTCA Claim continues to “fall
within the discretionary function exception,” and the Motion to Amend should be denied as to
this claim. (Doc. No. 123 at 25-26.)
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS Defendants’ Motion to Amend
be:
(1) DENIED with respect to Claims 1, 2, 3, and 9; but
(2) GRANTED with respect to Claims 4, 5, 6, 7, 8, and 10.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve
and file written objections to the Magistrate Judge’s proposed findings and recommendations
with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C.
636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general
objection that does not put the district court on notice of the basis for the objection will not
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preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s report
and recommendation must be both timely and specific to preserve an issue for de novo review by
the district court or for appellate review.” U.S. v. One Parcel of Real Prop. Known As 2121 East
30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections
may bar de novo review by the district judge of the magistrate judge’s proposed findings and
recommendations and will result in a waiver of the right to appeal from a judgment of the district
court based on the proposed findings and recommendations of the magistrate judge. See Vega v.
Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s decision to review a magistrate
judge’s recommendation de novo despite the lack of an objection does not preclude application
of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party’s objections to
the magistrate judge’s report and recommendation must be both timely and specific to preserve
an issue for de novo review by the district court or for appellate review); Int’l Surplus Lines Ins.
Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain
portions of the magistrate judge’s order, cross-claimant had waived its right to appeal those
portions of the ruling); Ayala, 980 F.2d at 1352 (by their failure to file objections, plaintiffs
waived their right to appeal the magistrate judge’s ruling); but see, Morales-Fernandez v. INS,
418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of
justice require review).
Dated: March 27, 2024.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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