Abdo v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-03110-CNS-NRN
NASER ABDO,
Plaintiff,
v.
UNITED STATES OF AMERICA,
LT. KAMMRAD,
LT. INGRAM,
OFFICER BALSICK,
OFFICER QUEZADA,
BUREAU OF PRISONS,
OFFICE OF LIEUTENANT OR CAPTAIN,
Defendants.
REPORT AND RECOMMENDATION ON
DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT (Dkt. #52)
N. REID NEUREITER
United States Magistrate Judge
This case is before the Court pursuant to the order issued by Judge Charlotte N.
Sweeney referring Defendants’ Partial Motion to Dismiss the Second Amended
Complaint (Dkt. #52) (the “Motion”) (referred at Dkt. #53). Plaintiff Naser Abdo has
responded to the Motion (Dkt. #76), and Defendants have replied in support of the
Motion (Dkt. #81). The Court conducted a telephonic motion hearing on August 17,
2023. The Court has taken judicial notice of the Court’s file and considered the
applicable federal and state statutes and case law. As set forth below, the Court
RECOMMENDS that:
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 	Claims 3, 5, 7, 8, 13, 16, and 17 be DISMISSED for lack of subject matter
jurisdiction; and
 	Claims 6 and 15 be DISMISSED for failure to state a claim upon which relief
may be granted.
I. 	BACKGROUND
1. 	Factual Allegations1
Mr. Abdo is a federal inmate at United States Penitentiary, Administrative
Maximum Facility (“USP Florence ADMAX”) in Florence, Colorado. SAC ¶ 1. His claims
arise from his alleged mistreatment by prison staff during a hunger strike in the summer
of 2021.
a. 	June 25, 2021 Medical Evaluation
On June 25, 2021, Plaintiff had been on a hunger strike for thirty-five days. SAC
¶ 2. Bureau of Prisons (“BOP”) policy requires that medical staff must record an
inmate’s weight and vital signs at least once every 24 hours while on a hunger strike.
BOP Program Statement P5562.05(8)(b).2 When a staff member entered Plaintiff’s cell
that day to conduct this medical evaluation, Plaintiff declined to comply, and stated that
he would only comply if the evaluation was performed by the “Use of Force Team.” SAC
¶ 8. Later that day, Plaintiff complied as the Use of Force Team placed him in restraints,
1 The following allegations are taken from Plaintiff’s Second Amended Complaint
(“SAC”) (Dkt. #24), and those that are well-pled are presumed to be true for the
purposes of this motion. Additionally, the Court has reviewed the video footage of the
events taking place on July 2, 2021 at approximately 6:00 p.m. (Dkt. #52-4.) To the
extent that Plaintiff seeks to incorporate additional video evidence (see SAC ¶¶ 35,
140), this has not been provided to the Court and has not been reviewed.
2 The Court may take judicial notice of BOP Program Statements. See Matthews v.
Wiley, 744 F. Supp. 2d 1159, 1172 (D. Colo. 2010).
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but refused medical treatment and refused to be weighed. SAC ¶¶ 9–11. After Lt.
Batson instructed the Use of Force Team to place Plaintiff on the scale, Plaintiff again
refused to be weighed by moving his legs away from the scale. SAC ¶¶ 12–13. Lt.
Batson then instructed the Use of Force Team to place Plaintiff on the ground. SAC ¶
13. While Plaintiff was restrained by black box ambulatory restraints and shackles,
multiple Use of Force Team members put Plaintiff face down on the ground and twisted
his legs behind his back—thereby pressing his face into the ground, putting pressure on
his wrists, and causing “grating and excruciating” pain in his wrists, hands, back, and
ankles. SAC ¶¶ 14–18. When Lt. Batson asked Plaintiff if he would comply with being
weighed, Plaintiff again refused. SAC ¶¶ 24–25. After this incident, Plaintiff continued to
refuse medical treatment and did not report any pain or injuries. SAC ¶ 26. A few hours
later, a nurse provided Plaintiff with antibiotics for abrasions on his forearms and wrists.
SAC ¶¶ 28–29. After the incident, Plaintiff continued to experience nerve pain for
several days, and numbness for weeks afterward. SAC ¶ 18.
b. 	July 2, 2021 Morning and Afternoon Application of Four-Point Restraints
By the morning of July 2, 2021, Plaintiff had been on a hunger strike for forty-two
days, had been in full ambulatory black box restraints and shackles for approximately
fifty-three hours, and refused to come out of restraints until he was able to speak with
“someone from the OIG or Regional Office about [USP Florence ADMAX]’s freefall in its
conditions and services post-COVID.” SAC ¶¶ 43–45, 48. At approximately 9:00 a.m.,
Plaintiff refused a water I.V., which staff then forcibly administered. SAC ¶¶ 43–44.
When staff then attempted to remove the shackles, Plaintiff “non-combatively move[d
his] leg away from the officer” attempting to remove the shackles, and stated that he
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refused to come out of restraints. SAC ¶¶ 49–51. Lt. Kammrad then placed Plaintiff
face-up in four-point restraints on the bed, positioned Plaintiff’s left hand above his
head, and twisted his left arm such that his palm was facing away from his body and
toward the lock. SAC ¶¶ 54–56. This positioning, coupled with the tightly applied
medical tape on the I.V. injection site on his left arm, caused Plaintiff extreme pain. SAC
¶¶ 57–60. Plaintiff began to cry out in pain and request that the restraints be adjusted
and the tape be removed, but staff did not do so. SAC ¶ 60.
While Plaintiff was in four-point restraints, prison staff were required to check on
him at least every 15 minutes “to ensure that the restraints [were] not hampering
circulation” (“15-minute checks”). 28 C.F.R. § 552.24(d). Additionally, BOP policy
requires that a lieutenant review an inmate’s four-point restraints every two hours (“two-
hour checks”). (Dkt. #52-6 at 14 (P5566.06(10)(e))).
Plaintiff’s left arm began to turn blue and purple after four hours due to lack of
circulation. SAC ¶ 65. During the first six hours in four-point restraints, Lt. Kammrad and
prison staff refused to adjust the restraints or remove the tape during the 15-minute or
two-hour checks despite Plaintiff’s requests and the visible change in Plaintiff’s left arm.
SAC ¶¶ 60–64, 75. Staff did not enter Plaintiff’s cell during the 15-minute checks,
instead visually observing Plaintiff from approximately 15 feet away through the cell
door. SAC ¶¶ 75, 128. Plaintiff does not allege whether Lt. Kammrad entered Plaintiff’s
cell during the 2-hour checks. After approximately six hours in four-point restraints,
Plaintiff reported the issues to other prison employees who entered Plaintiff’s cell, who
then told Plaintiff that the lieutenant would be called. SAC ¶¶ 68–70. One hour later, Lt.
Ingram cut off the medical tape and adjusted the restraints. SAC ¶ 72. Plaintiff “felt
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immediate relief,” but still experienced pain as his wrists were swollen, lacerated, and
had purple and blue indentations. SAC ¶¶ 73, 90.
c. 	July 2, 2021 Evening Transition Between Four-Point and Ambulatory
Restraints
At 4:00 p.m. on July 2, 2021, Plaintiff agreed to transition from four-point
restraints to ambulatory restraints. SAC ¶¶ 87–88. Shortly after 6:00 p.m., Lts. Ingram
and Kammrad and Officers Law, Balsick, and Quezada began to transition Plaintiff to
ambulatory restraints. SAC ¶¶ 87, 89; Dkt. #52-4 (video recording). Staff removed the
four-point ankle and wrist restraints, began applying black box restraints to Plaintiff’s
wrists, and transitioned Plaintiff to a sitting position on the bed. (Dkt. #52-4.) Lt.
Kammrad applied the left cuff of the black box restraints so tightly that it “grate[d] into”
Plaintiff’s already bruised wrist, and Lt. Kammrad refused to adjust the cuff. SAC ¶¶ 93–
94. Plaintiff believes that Lt. Kammrad intentionally hurt Plaintiff in retaliation for
Plaintiff’s protest. SAC ¶ 96. A nurse briefly examined Plaintiff’s wrists and did not note
any injury. SAC ¶¶ 112–13. To relieve the pain, Plaintiff “non-combatively resist[ed]” the
further application of ambulatory restraints by briefly moving his torso left and right to
prevent staff from applying the restraints. SAC ¶¶ 99–102. In response, Officer Balsick
grabbed Plaintiff’s throat, pushing Plaintiff back onto the bed, thereby choking Plaintiff
and crushing his Adam’s apple. SAC ¶¶ 104–06. At the same time, Officer Quezada
lifted Plaintiff’s cuffed wrists above Plaintiff’s body and “ratchet[ed] them toward the
ground” toward his forearms, causing extreme pain. SAC ¶ 107. Plaintiff screamed, Lt.
Kammrad instructed the officers to “control yourself” or “ease up,” and the officers
stopped choking Plaintiff and twisting his arms. SAC ¶¶ 108–10. BOP staff then proceed
to transition Plaintiff back into four-point restraints. (Dkt. #52-4.)
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Following this incident, Plaintiff’s Adam’s apple in his neck felt dislodged, he felt
pain in the right side of his ribcage, and the cuff on his right wrist was applied extremely
tightly, causing pain. SAC ¶¶ 115, 118, 121. For the next two hours, staff conducted 15-
minute checks from outside Plaintiff’s cell. SAC ¶ 128. At 8:00 p.m. that evening, staff
loosened the cuff on Plaintiff’s right wrist, and “immediate relief followed afterwards from
the worst of the pain.” SAC ¶¶ 123–27. For the next ten days, he experienced pain
when swallowing. SAC ¶ 117. Plaintiff also felt pain in the right side of his ribcage. SAC
¶ 118. An examining nurse found no cracked rib, but suspected Plaintiff may have
strained a muscle. SAC ¶ 119.
2. 	Procedural history
Mr. Abdo, proceeding pro se, filed the operative Second Amended Complaint
(“SAC”) on March 8, 2023, asserting eighteen claims.
Claim 1 (battery) and Claim 2 (intentional infliction of emotional distress (“IIED”))
concern the Use of Force Team’s treatment of Plaintiff during the June 25 medical
evaluation. SAC ¶¶ 143–57. Defendants initially moved to dismiss these claims, arguing
that they were barred under Heck v. Humphrey, 512 U.S. 477 (1994). (Dkt. #52 at 4–7.)
However, Defendants withdrew this argument in their reply because Plaintiff is
imprisoned for life without parole. (Dkt. #81 at 1–2.) Accordingly, the Court does not
address Claims 1 and 2, and they survive this Motion.
Claims 3 through 12 concern the BOP’s initial application of four-point restraints
to Plaintiff on the morning and afternoon of July 2. Plaintiff brings negligence claims
against BOP staff for failing to apply the restraints and conduct 2-hour checks with due
care (Claim 3), failing to enter Plaintiff’s cell during the 15-minute checks (Claim 4), and
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failing to render aid to Plaintiff during the 15-minute checks (Claim 5). SAC ¶¶ 158–84.
Claim 6 is for IIED. SAC ¶¶ 185–87. Claims 7 and 8 are Eighth Amendment deliberate
indifference claims against Lts. Kammrad and Ingram. SAC ¶¶ 188–95. Claims 9
through 12 are declaratory judgment claims against the BOP, Lt. Kammrad, Lt. Ingram,
and the “Office of the Lieutenant/Captain.” SAC ¶¶ 196–99. Defendants moved to
dismiss all of these claims, arguing that the discretionary function exception (“DFE”) to
the Federal Tort Claims Act (“FTCA”) applies, such that sovereign immunity bars Claims
3 through 5 (Dkt. #52 at 8–12); that Claims 3 through 6 fail to state FTCA claims (id. at
12–14); that Claims 7 and 8 fail to state an Eighth Amendment claim (id. at 14–17); and
that Claims 9 through 12 are moot because they either fail to request prospective relief
or do not concern a continuing injury (id. at 17–20). In his response, Plaintiff withdrew
Claims 4 and 9 through 12. (Dkt. #76 at 30.) Accordingly, regarding the July 2 morning
and afternoon application of four-point restraints, Defendants’ arguments for dismissal
of Claims 3 and 5 through 8—concerning negligence, IIED, and the Eighth
Amendment—are currently before the Court.
Claims 13 through 18 concern BOP’s transition of Plaintiff between four-point and
ambulatory restraints on the evening of July 2. Plaintiff brings a negligence claim based
on the tight application of ambulatory and four-point restraints (Claim 13). SAC ¶¶ 200–
09. Plaintiff brings a battery claim based upon the actions of Officers Balsick and
Quezada (Claim 14). SAC ¶¶ 210–16. Claim 15 is for IIED, SAC ¶¶ 217–21, Claim 16 is
based on the negligent application of the restraints, SAC ¶¶ 222–24, and Claim 17 is
brought against Officers Balsick and Quezada for excessive force under the Eighth
Amendment, SAC ¶¶ 225–29. Claim 18 seeks a declaratory judgment that Officers
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Balsick and Quezada violated Plaintiff’s Eighth Amendment rights. SAC ¶ 230.
Defendants moved to dismiss all of these except Claim 14, arguing that the DFE means
that sovereign immunity bars Claims 13 and 16 (Dkt. #52 at 22–23); that Claims 13, 15,
and 16 fail to state FTCA claims (id. at 23–24); that Claim 17 fails to state an Eighth
Amendment claim (id. at 24–25); and that the Court lacks subject matter jurisdiction
over Claim 18 (id. at 25). In his response, Plaintiff withdrew Claim 18. (Dkt. #76 at 30.)
Accordingly, regarding the July 2 evening transition between four-point and ambulatory
restraints, Defendants’ arguments for dismissal of Claims 13 and 15 through 17—
concerning negligence, IIED, and the Eighth Amendment—are currently before the
Court.
The SAC also requests various forms of injunctive relief. See SAC at 45.
Defendants moved to dismiss these requests, arguing that they do not implicate any
continuing injury. (Dkt. #52 at 25.) Plaintiff then withdrew “all requests for injunctive
relief.” (Dkt. #76 at 30.)
In sum, Defendants do not argue for the dismissal of Claims 1, 2, and 14, so they
survive. Plaintiff has withdrawn Claims 4, 9–12, 18, and injunctive relief requests.
Consequently, for the purposes of this Report and Recommendation, the Court
considers Defendants’ arguments for dismissal of Plaintiff’s negligence claims (Claims
3, 5, 13, and 16), IIED claims (Claims 6 and 15), and Eighth Amendment claims (Claims
7, 8, and 17).
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II. 	STANDARD FOR DISMISSAL
1. 	Federal Rule of Civil Procedure 12(b)(1)
“A Rule 12(b)(1) challenge to subject matter jurisdiction can be either facial or
factual.” Ratheal v. United States, No. 20-4099, 2021 WL 3619902, at *3 (10th Cir. Aug.
16, 2021), cert. denied, 142 S. Ct. 772 (2022), reh’g denied, 142 S. Ct. 1195 (2022). In
this case, Defendants make a factual challenge to subject matter jurisdiction. (Dkt. #52
at 10 n.3.) While a facial challenge tests the sufficiency of the complaint’s allegations as
to subject matter jurisdiction, while a factual challenge tests “the actual facts upon which
subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
2002). When reviewing a factual attack, the Court may look beyond the complaint and
has wide discretion to consider documentary and even testimonial evidence. Sizova v.
Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002). In addition, if the
resolution of the jurisdictional question is “intertwined” with the merits of the case, the
Court is required to convert the Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6)
motion or Rule 56 summary judgment motion. See Wheeler v. Hurdman, 825 F.2d 257,
259 (10th Cir.), cert. denied, 484 U.S. 986 (1987); Holt v. United States, 46 F.3d 1000,
1003 (10th Cir. 1995). “[W]hether a motion to dismiss must be converted to a motion for
summary judgment depends on whether ‘resolution of the jurisdictional question
requires resolution of an aspect of the substantive claim.’” Ratheal, 2021 WL 3619902,
at *3 (citing Sizova, 282 F.3d at 1324).
Certain of Plaintiff’s claims invoke the Federal Tort Claims Act (“FTCA”). “The
FTCA waives sovereign immunity for actions against the United States resulting from
injuries caused by the negligent acts of its employees while acting in the scope of their
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employment.” Id. at *2 (citing 28 U.S.C. § 1346(b)(1)). This waiver is limited by certain
statutory exceptions, including the DFE. See 28 U.S.C. § 2680(a). The DFE is
jurisdictional—that is, if the exception applies, then sovereign immunity is not waived
under the FTCA, and the Court does not have subject matter jurisdiction over Plaintiff’s
FTCA claims. Ratheal, 2021 WL 3619902, at *2. “To avoid dismissal of an FTCA claim
under the [DFE], a plaintiff must allege facts that place [his] claim facially outside the
exception.” Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1130 (10th Cir. 1999).
2. 	Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of
a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The
Iqbal evaluation requires two prongs of analysis. First, the court identifies “the
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allegations in the complaint that are not entitled to the assumption of truth,” that is,
those allegations which are legal conclusions, bare assertions, or merely conclusory. Id.
at 679–81. Second, the court considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does the complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(citation omitted). “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.’” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider
documents incorporated by reference, documents referred to in the complaint that are
central to the claims, and matters of which a court may take judicial notice. Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records are subject
to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d
1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th
Cir. 2007); Trusdale v. Bell, 85 F. App’x 691, 693 (10th Cir. 2003).
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3. 	Pro Se Plaintiff
The Court must construe the SAC and Plaintiff’s other filings liberally because he
is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based,” and the
Court may not advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
III. 	Analysis
1. 	Negligence Claims and the Discretionary Function Exception (“DFE”) – Claims 3, 5,
13, and 16
“It is well settled that the United States and its employees, sued in their official
capacities, are immune from suit, unless sovereign immunity has been waived.”
Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989). The FTCA constitutes a limited
waiver of the federal government’s sovereign immunity from private suit and allows a
plaintiff to bring certain state-law tort claims against the federal government. 28 U.S.C. §
2674; see also § 1346(b).3 However, the DFE preserves sovereign immunity for claims
based upon a federal employee’s “exercise or performance or the failure to exercise or
perform a discretionary function or duty” regardless of whether “the discretion involved
be abused.” See 28 U.S.C. § 2680(a). “[T]he purpose of the exception is to prevent
judicial second-guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” United States v.
3 To the extent Plaintiff raises FTCA claims against BOP employees in their official
capacity, the Court construes these as claims against the United States. See Cortez v.
E.E.O.C., 585 F. Supp. 2d 1273, 1287 (D.N.M. 2007) (“[A]n action against a federal
employee in his official capacity is, in effect, an action against the United States to the
extent it seeks to impose liability on the United States.”).
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Gaubert, 499 U.S. 315, 323 (1991) (internal quotations omitted). Further, “it is the
nature of the conduct, rather than the status of the actor, that governs whether the
[DFE] applies in a given case.” United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 813 (1984); see also Gaubert, 499 U.S. at
325 (“Discretionary conduct is not confined to the policy or planning level.”). The
Supreme Court established a two-part test in Berkovitz by Berkovitz v. United States to
determine whether the DFE applies. 486 U.S. 531, 536 (1988). If both parts are met,
then the DFE applies, and sovereign immunity bars a claim that involves such
governmental conduct. See Garling v. United States Env’t Prot. Agency, 849 F.3d 1289,
1295 (10th Cir. 2017).
First, a court must consider “whether the action is a matter of choice for the
acting employee[, as] conduct cannot be discretionary unless it involves an element of
judgment or choice.” Berkovitz, 486 U.S. at 536. “Where there is room for policy
judgment and decision, there is discretion.” Varig Airlines, 467 U.S. at 811. In contrast,
“[a]n action is not discretionary where a statute, regulation, or policy mandates certain
conduct, because the employee has ‘no room for choice.’” Tolbert v. Gallup Indian Med.
Ctr., 555 F. Supp. 3d 1133, 1164 (D.N.M. 2021) (quoting Gaubert, 499 U.S. at 324). “In
this event, the employee has no rightful option but to adhere to the directive.” Garling,
849 F.3d at 1295.
Here, Defendants move to dismiss Claims 3, 5, 13, and 15 for lack of subject
matter jurisdiction based on the DFE. Claims 3 and 5 stem from Plaintiff’s allegations
that, in the morning and afternoon on July 2, 2021, Defendants negligently improperly
applied four-point restraints, negligently failed to conduct adequate 2-hour and 15-
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minute restraint checks, and negligently failed to adjust those restraints, thereby
causing Plaintiff severe pain and cuts/bruising on his wrists. Claims 13 and 16 stem
from Plaintiff’s allegations that on the evening of July 2, 2021, Defendants negligently
applied restraints too tightly, choked Plaintiff, and applied extreme pressure on Plaintiff’s
wrists, thereby injuring Plaintiff’s wrists, throat, and ribcage.
The Court first considers whether Defendants’ actions involved an element of
judgment or choice and therefore satisfy Berkovitz prong one. Defendants argue that
decisions regarding the application and checking of restraints are discretionary, that “no
federal statute, regulation, or policy mandates that BOP staff follow a particular course
of conduct in assessing an inmate’s restraints,” and that BOP policy directs staff to “use
sound correctional judgment to ensure unnecessary pressure is not applied.” (Dkt. #52
at 9–10.) See also Peraza v. United States, No. 3:CV-15-1224, 2017 WL 1150662, at *6
(M.D. Pa. Mar. 28, 2017) (“There is no indication that there was a specific federal
statute or regulation or policy which required the USP-Lewisburg correctional staff to
take a particular course of action regarding their decisionmaking as to whether or when
to apply restraints to Peraza.”).
Plaintiff argues that certain regulations afford BOP staff no discretion in their
treatment of restrained inmates. But while Plaintiff points to regulations that provide
BOP staff with guidance as to how to apply and check restraints, each of these
regulations also requires a BOP staff member’s use of discretion. Plaintiff points to a
regulation stating that “[r]estraint equipment . . . may not be used . . . [i]n a manner that
causes unnecessary physical pain or extreme discomfort.” 28 C.F.R. § 552.22(h)(3). But
this regulation necessarily involves BOP staff’s discretion and judgment in determining
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whether an inmate is experiencing pain or discomfort. Plaintiff also argues that BOP
staff violated federal regulations by failing to ever place him in soft, vinyl restraints
before placing him in hard, steel restraints, because “[s]oft restraints . . . must be used
to restrain an inmate, unless . . . Such restraints previously have proven ineffective with
respect to that inmate.” 28 C.F.R. § 552.24(a); see also Dkt. #52-6 at 8 (“When it is
necessary to use continued restraints after any use of force incident, hard restraints . . .
are to be used only after soft restraints have proven ineffective, or a past history of
ineffectiveness exists.”). But this regulation invokes BOP staff’s discretion regarding the
effectiveness of soft restraints, and does not necessarily require that BOP staff have
previously applied soft restraints in order to determine their ineffectiveness. Plaintiff
additionally cites the requirement that staff “shall check the inmate at least every 15
minutes, both to ensure that the restraints are not hampering circulation and for the
general welfare of the inmate.” 28 C.F.R. § 552.24(d). Similarly, this provision requires
that 15-minute checks occur, but involves the discretion and judgment of BOP staff in
determining the inmate’s condition. This regulation also requires that “[w]hen an inmate
is restrained to a bed, staff shall periodically rotate the inmate’s position to avoid
soreness or stiffness.” Id. This provision does not task BOP staff with evaluating
whether an inmate is sore or stiff, but instead requires the proactive rotation of an
inmate to avoid this outcome. However, this is only required to be done “periodically,”
and therefore requires the judgment of BOP staff as to when the rotation should occur.
Plaintiff argues that BOP staff conducting 15-minute checks never rotated him or even
entered his cell from the morning and afternoon of July 2, 2021, and therefore violated
the requirements to check on and “periodically rotate” Plaintiff. However, even if BOP
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staff abused the discretion afforded by the regulation, the DFE would still apply because
the regulation itself afforded discretion. See Redmon By & Through Redmon v. United
States, 934 F.2d 1151, 1157 (10th Cir. 1991) (“When the government performs a
discretionary function, the exception to the FTCA applies regardless of ‘whether or not
the discretion involved be abused.’ 28 U.S.C. § 2680(a). The question of [a government
actor’s] negligence, therefore, is irrelevant.”). In sum, the pertinent question is whether
the relevant statutes, regulations, and/or policies afford BOP staff with discretion, and
each of these regulations affords the government actor with some level of discretion.
Accordingly, Berkovitz prong one is satisfied.
Second, in order for the DFE to apply, a court must determine that the actions
and decisions of the government employee were “based on considerations of public
policy.” Berkovitz, 486 U.S. at 537. If a governmental action satisfies Berkovitz prong
one, there exists a “strong presumption” that prong two is also satisfied. See Gaubert,
499 U.S. at 325 (“[I]f a regulation allows the employee discretion, the very existence of
the regulation creates a strong presumption that a discretionary act authorized by the
regulation involves consideration of the same policies which led to the promulgation of
the regulations.”). “Thus, to survive a motion to dismiss, the plaintiff must allege facts
that would support a finding that the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory regime.” Ratheal, 2021 WL
3619902, at *2 (internal quotations omitted); see also Hardscrabble Ranch, L.L.C. v.
United States, 840 F.3d 1216, 1222 (10th Cir. 2016) (“[W]e presume that a government
agent’s discretionary actions are grounded in policy, and it is up to the challenger to
allege facts showing that the actions were actually not policy-oriented.”); Gaubert, 499
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U.S. at 325 n.7 (“There are obviously discretionary acts performed by a Government
agent that are within the scope of his employment but not within the [DFE] because
these acts cannot be said to be based on the purposes that the regulatory regime seeks
to accomplish.”).
In this case, Plaintiff has not alleged facts sufficient to overcome the strong
presumption that BOP staff’s actions were based on public policy considerations. See
Hatten v. Bledsoe, No. 1:13-cv-00209, 2018 WL 6985205, at *11–12 (M.D. Pa. Dec. 21,
2018), report and recommendation adopted, No. 1:13-cv-0209, 2019 WL 144962 (M.D.
Pa. Jan. 9, 2019) (inmate plaintiff alleged that prison staff “unreasonably impaired his
circulation and breathing” while in restraints, but plaintiff failed to “present[] any
evidence that would rebut the presumption that [d]efendants’ decision to apply restraints
was not grounded in legitimate considerations of correctional safety”), aff’d, 782 F.
App’x 91 (3d Cir. 2019); In general, prison administrators are “accorded wide-ranging
deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional
security.” Dawson v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Colo., 732 F. App’x 624,
631 (10th Cir. 2018) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). While Plaintiff
alleges that Lt. Kammrad intentionally hurt Plaintiff in retaliation for Plaintiff’s protest,
SAC ¶ 96, Plaintiff does not allege any facts in support of this belief. Accordingly,
Defendants’ alleged actions satisfy Berkovitz prong two, the DFE applies, and the Court
does not have subject matter jurisdiction over Claims 3, 5, 13, or 16.4
4 Because the Court resolves the jurisdictional question “as a matter of law, without
resolving any factual disputes or substantive aspects of [Plaintiff’s] claims,” the Court
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2. 	IIED – Claims 6 and 15
Defendants argue that Plaintiff’s IIED claims should be dismissed under Fed. R.
Civ. P. 12(b)(6). A prerequisite for liability under the FTCA is a “negligent or wrongful act
or omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b). This means that the United States is deemed
liable “in the same manner and to the same extent as a private individual under like
circumstances.” 28 U.S.C. § 2674. “[T]he FTCA does not itself create a substantive
cause of action against the United States; rather, it provides a mechanism for bringing a
state law tort action against the federal government in federal court.” Lomando v. United
States, 667 F.3d 363, 372 (3d Cir. 2011) (citation omitted). Therefore, the extent of the
Government’s liability under the FTCA is determined by reference to state law which, in
this case, is the law of Colorado. FDIC v. Meyer, 510 U.S. 471, 477–78, (1994) (the “law
of the place” refers to the substantive law of the state where the wrongful conduct took
place.).
Thus, to prevail on his FTCA claim, Plaintiff must prove that BOP staff’s July 2,
2021 conduct amounted to IIED under Colorado law. IIED claims have three required
elements: “1. the defendant engaged in extreme and outrageous conduct; 2. the
defendant engaged in the conduct recklessly or with the intent of causing the plaintiff
severe emotional distress; and 3. the plaintiff incurred severe emotional distress which
applies a Rule 12(b)(1) standard and not a Rule 12(b)(6) or 56 standard. Ratheal, 2021
WL 3619902, at *4.
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was caused by the defendant’s conduct.” Culpepper v. Pearl St. Bldg., Inc., 877 P.2d
877, 882 (Colo. 1994) (internal punctuation omitted).5 Extreme and outrageous conduct
is that which, taking into account the totality of the circumstances, “goes ‘beyond all
possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a
civilized community.’” Riske v. King Soopers, 366 F.3d 1085, 1089 (10th Cir. 2004)
(quoting Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970)). Whether conduct
is extreme and outrageous is normally a question of fact for a jury to determine, but the
Court should determine in the first instance “whether reasonable [people] could differ on
the outrageousness issue.” Id. (quoting Meiter v. Cavanaugh, 580 P.2d 399, 401 (Colo.
App. 1978).
Even accepting Plaintiff’s well-pled facts as true for the purposes of this Motion,
Plaintiff has failed to allege that BOP staff engaged in extreme and outrageous conduct
sufficient to state an IIED claim. Plaintiff’s allegations, as related to his IIED claims, can
essentially be described as follows:
 	On the morning and afternoon of July 2, 2021, BOP forcibly administered a water
I.V. on day forty-two of Plaintiff’s hunger strike; Plaintiff desired to remain in full
ambulatory black box restraints and shackles as a form of protest; he resisted
5 Defendants point out that the Prison Litigation Reform Act (“PLRA”) also requires that
“[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury.” 42 U.S.C.A. § 1997e. But “the PLRA does not bar
recovery of nominal damages where no physical injury is alleged,” Johnson v. Soto, No.
17-cv-02379-RBJ-NRN, 2019 WL 861380, at *7 (D. Colo. Feb. 22, 2019), report and
recommendation adopted, No. 17-cv-02379-RBJ-NRN, 2019 WL 5698638 (D. Colo.
Mar. 13, 2019), and the Court need not opine at the motion to dismiss stage on the
damages that Plaintiff might eventually be entitled to, were he to prevail on his IIED
claim.
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removal of these restraints; BOP staff painfully twisted his arm into more
restrictive four-point restraints; BOP lieutenants conducted 2-hour restraint
checks and BOP staff conducted 15-minute restraint checks from outside
Plaintiff’s cell while Plaintiff was in four-point restraints; and Lt. Ingram adjusted
the restraints after approximately seven to eight hours and resolved most of the
pain Plaintiff was experiencing.
 	On the evening of July 2, 2021, when transitioning Plaintiff from four-point to
ambulatory restraints, BOP staff applied the left cuff tightly, causing pain, and
refused to adjust it; Plaintiff resisted the further application of ambulatory
restraints by “jostling” his body to evade the restraints; BOP staff then choked
Plaintiff against the bed and applied painful pressure to his wrists while returning
him to four-point restraints; a nurse examined Plaintiff’s wrists immediately
following the incident and did not note any injuries; BOP staff conducted 15-
minute checks from outside Plaintiff’s cell for the next two hours while Plaintiff
was in four-point restraints; and BOP staff adjusted Plaintiff’s handcuffs at
approximately 8:00 p.m. that evening.
Many of Plaintiff’s allegations raise serious concerns about the adequacy of
BOP’s supervision of inmates who are in four-point restraints. However, considering the
totality of the circumstances alleged, “[r]easonable people might believe that [Plaintiff]
was treated poorly, but . . . a reasonable person would not consider the [D]efendants’
conduct outrageous or beyond all possible bounds of decency.” Wallin v. Dycus, 224 F.
App’x 734, 740 (10th Cir. 2007), as amended nunc pro tunc (Mar. 5, 2008). The
allegations indicate that BOP staff applied significant force upon Plaintiff after he
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resisted medical checks and the removal of restraints; that staff conducted all required
2-hour and 15-minute checks on Plaintiff as required by relevant regulations and
policies while he was in four-point restraints; that staff adjusted the painful restraints
after some delay; and that BOP provided medical care to Plaintiff following these
events. Other courts that have found adequately pled IIED claims under much more
extreme factual allegations than those pled here. See Schmidt v. Odell, 64 F. Supp. 2d
1014, 1032 (D. Kan. 1999) (concluding that a reasonable jury could find that double-
amputee inmate adequately pled IIED claim where prison failed to provide him with a
wheelchair, thereby forcing him to crawl on the floor in order to move); Blake v. United
States, No. 18-cv-00570-RBJ-SKC, 2020 WL 6482691, at *10 (D. Colo. Nov. 4, 2020)
(IIED claim was adequately pled where BOP staff allegedly intentionally discontinued
inmate’s bipolar disorder medications “in order to minimize the appearance of his
mental illness and in order to continue housing him at ADX Florence,” causing inmate to
suffer mental breakdowns); Smith v. Cochran, 216 F. Supp. 2d 1286, 1298 (N.D. Okla.
2001) (inmate adequately pled IIED claim where state employee in same facility
demanded sex with plaintiff), aff’d, 339 F.3d 1205 (10th Cir. 2003). The allegations here,
which all relate to the use of force via application of restraints over a relatively short
period of time, are not comparable to the cases where IIED was held to have been
adequately pled. For these reasons, Plaintiff’s IIED Claims should be dismissed.
3. 	Eighth Amendment – Claims 7, 8, and 17
Plaintiff also brings Eighth Amendment claims against Lts. Kammrad and Ingram
for deliberate indifference and against Officers Balsick and Quezada for excessive
force. Plaintiff has named all four defendants in their official capacities. SAC at 4–5.
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Plaintiff alleges Lts. Kammrad and Ingram were aware of his pain because he told them,
that Lt. Ingram in particular should have been aware because he observed Plaintiff’s left
arm changing colors in the four-point restraints, and that the lieutenants deliberately
ignored his suffering. Regarding Officers Balsick and Quezada, Plaintiff alleges that
they used excessive force on him when he resisted being transferred to ambulatory
restraints on the evening of July 2, 2021.
In the SAC, Plaintiff requested monetary and nominal damages, as well as
declaratory and injunctive relief. SAC at 45. Plaintiff later withdrew all claims for
declaratory judgment and injunctive relief. (Dkt. #76 at 30.) However, government actors
in their official capacities have sovereign immunity from suits for money damages. See
Gowadia v. Stearns, 596 F. App’x 667, 670 (10th Cir. 2014) (citing Hatten v. White, 275
F.3d 1208, 1210 (10th Cir. 2002)). Because “[s]overeign immunity removes a court’s
jurisdiction over a complaint,” this Court may not exercise subject matter jurisdiction
over such claims. Gowadia v. Stearns, No. 13-cv-00077-KMT, 2014 WL 959487, at *7
(D. Colo. Mar. 12, 2014) (citing Governor of Kan. v. Kempthorne, 516 F.3d 833, 846
(10th Cir. 2008), aff’d, 596 F. App’x 667. Accordingly, because Plaintiff’s Eighth
Amendment claims are for monetary damages, and are only pled against Defendants in
their official capacities, they should be dismissed for lack of subject matter jurisdiction.
Gowadia, 596 F. App’x at 670 (“Although government actors may be held liable for
select constitutional violations in their individual capacities . . . government actors in
their official capacities are absolutely immune from suit for money damages” (internal
citations omitted).)
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IV. 	CONCLUSION
For the reasons set forth above, it is hereby RECOMMENDED that
 	Claims 3, 5, 7, 8, 13, 16, and 17 be DISMISSED for lack of subject matter
jurisdiction; and
 	Claims 6 and 15 be DISMISSED for failure to state a claim upon which relief
may be granted.
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).
Dated at Denver, Colorado this 5th day of December, 2023
_______________________
N. Reid Neureiter
United States Magistrate Judge
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