Case 1:15-cv-01949-RBJ-MJW Document 113 Filed 01/10/17 USDC Colorado Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01949-RBJ-MJW

CARL HALL,
Plaintiff,
v.
SHUMARD, LT., et al.,
Defendants.

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RESPONSE AND OBJECTIONS TO THE REPORT

AND RECOMMENDATIONS OF THE MAGISTRATE JUDGE
Preliminary Statement
The Plaintiff's claims fall into three cagetories. First, he's suing the Bureau of
Prisons (BOP) for placing him in the ADX, despite his mental health diagnosis and the
recommendation of his prison psychologist, and for failing to provide him with adequate
mental health care. The BOP is also sued for failing to investigate an alleged assault by
prison guards, and for failing to put the Plaintiff in protective custody afterwards.1
Six individual defendants are being sued for the alleged assault, either due to their
personal participation, or because they failed to investigate it or to protect the Plaintiff
afterwards.

These claims involve the violation of the Plaintiff's First, Fifth and Eighth

Amendment rights.

It would appear that Plaintiff's request to be placed in protective custody, out of the reach of the
Defendants who allegedly assaulted him, is moot, since the Plaintiff is no longer in the prison where this
incident occurred.

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The Legal Bases for the Claims

Although most prison conditions cases are based on allegations of cruel and
unusual punishment under the Eighth Amendment, the ADX has a unique solitary
confinement regime. Being held in solitary confinement for 23 1/2 hours a day for years
on end infringes on the Plaintiff's right to speak to and associate with others.2 This is so
even though the Plaintiff characterizes it as cruel and unusual punishment.3 The legal
standard for First Amendment claims for prisoners was set out in Turner v. Safley, 482
U.S. 78 (1987), and followed in Mohammed v. Holder, 47 F.Supp.3d 1236 (D.Colo.
2014). Any decision that infringes on the Plaintiff's First Amendment rights must be
reasonably related to legitimate penological interests. The Turner case sets forth the
factors to be weighed in this analysis.

Agency action infringing on this right is

reviewable under several different standards of the Administrative Procedure Act. See 5
U.S.C. 706.4

The Court may take judicial notice of the class action litigation in Cunningham v. BOP, 12-cv-01570.
The destructive effects of long-term solitary confinement on the mental health of prisoners are well-known
to the Defendants. Yet the cruelty of the punishment is not the issue; it is the unconstitutional restriction on
the Plaintiff's right to speak to and associate with others.
3
The Plaintiff believes the alleged assault and his placement in the ADX were in retaliation for his
previous Administrative Remedy Program complaints. The Court dismissed this as not stating a claim for
First Amendment retaliation. D.E. 53, 97. However, the retaliation is better characterized as a violation of
the Plaintiff's Fifth Amendment right to petition the government for a redress of grievances, or Due
Process. It wasn't just retaliation for Plaintiff's speech, but for his attempt to use the legal process available
to him. Fifth Amendment claims brought by prisoners must involve the infringement of a "liberty interest."
Wolff v. McDonnell 418 U.S. 539 (1974). In McDonnell, the court found a liberty interest in credit
awarded by the prison for good behavior. The right to petition the court for an assault by prison guards is
beyond dispute.
4
Although this appointment was through the Court's pro bono program, Local Rule 15.1 allows counsel to
move for attorney's fees, if the client agrees and the fees are justified. Fee awards for the successful
prosecution of APA claims are governed by section 2412(d) of the Equal Access to Justice Act ("EAJA"),
28 U.S.C. 2412(d) (1994 & Supp. IV 1998). In order to decide whether fees should be awarded, the court
must determine whether the position of the United States was substantially justified or ... special
circumstances make an award unjust. 28 U.S.C. 2412(d)(1)(A). The government bears the burden of
proof. Scarborough v. Principi, 124 S. Ct. 1856 (2004). See H. R. Rep. No. 96-1005, at 10 ("[T]he strong
deterrents to contesting Government action that currently exis[t] require that the burden of proof rest with
the Government.").

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The Plaintiff also alleges that while incarcerated at the ADX, he's been denied
adequate mental health treatment, and that this issue is ongoing. This is also properly
characterized as a claim against the BOP, rather than as against certain employees acting
in their personal capacities. The U.S. Supreme Court has consistently held there is an
obligation to provide adequate medical care to prisoners under the Eighth Amendment's
prohibition on cruel and unusual punishment, which bars deliberate indifference to
serious medical needs of prisoners. Like any other constitutional violation, this claim
may be made against the Bureau of Prisons under the APA to support his claims for
injunctive relief. The placement of the Plaintiff in the ADX, despite the recommendation
of his psychologist, and the effects of long-term solitary confinement on a prisoner's
mental health, which are well-known to the Defendants due to continuous litigation, state
a prima facie case of deliberate indifference on the part of the BOP.
The Plaintiff also sues four prison guards who were allegedly involved in
assaulting him on August 18, 2014: Defendants Shumard, Monarez, Butz and Cates.
These individuals are sued under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971) for the use of excessive force. The Plaintiff seeks money damages from these
individuals.
Finally, the Plaintiff sues the Warden (Defendant Oliver), and a Special
Investigative Agent of the BOP (Defendant Rhodes) for failing to properly investigate the
incident, or to place the Plaintiff in protective custody afterwards. Bivens claims against
Defendants Oliver and Rhodes are Eighth Amendment deliberate indifference claims
premised on a failure to protect theory.5 The Magistrate Judge dismissed these claims,

The Magistrate Judge also recommended dismissal of Plaintiffs' First Amendment retaliation claims
against Defendants Oliver and Rhodes, DE 97, and previously dismissed similar claims against Defendants

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essentially finding that these Defendants could not be held responsible for an incident
they learned about afterwards. However, the warden may be partly responsible for the
Plaintiff's subsequent placement in the ADX, which does not appear to have any
justification.

The warden is also the nominal recipient of all of the Plaintiff's

Administrative Remedy Program requests, which are made on form BP-9. Therefore, the
warden has constructive knowledge of Plaintiff's previous ARP requests, which the
Plaintiff says were the reason why he was assaulted. If the warden knew of Plaintiff's
ARP requests, knew that the Plaintiff said he was assaulted for making them, failed to
investigate the incident, and then punished the Plaintiff by placing him in the ADX , this
would state a claim for aiding and abetting liability, Halberstam v. Welch, 705 F.2d 472
(D.C. Cir. 1983), or ratification, a principle of agency law. American Nat. Bank of
Sapulpa, Okl. v Bartlett, 40 F.2d 21 (10th Cir. 1930) Counsel concedes there is no
evidence that the Special Investigative Agent, Mr. Rhodes, aided and abetted in
punishing the Plaintiff for filing ARP claims.
Conclusion
For the foregoing reasons, the Court should decline to adopt the Magistrate
Judge's Recommendation that claims against Warden Oliver should be dismissed. All of
the Plaintiffs Administrative Remedy Program complaints were addressed to the warden,
who is the supervisor of everyone else at the prison. The Plaintiff's placement in the
ADX almost certainly required the warden's approval. The Plaintiff need only show
deliberate indifference (knowledge) on the part of the warden, not intent.
Shumard, Monarez, Butz and Cates in DE 53. Counsel for Plaintiff concurs that courts have not recognized
Bivens remedies for First Amendment violations. However, retaliation for Plaintiff's previous
Administrative Remedy Program complaints is still relevant to Plaintiff's other claims, to show motive and
intent. In addition, as explained in FN 3 supra, they are better characterized as due process violations, since
the speech at issue was the petitioning of the government for the redress of grievances.

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In other respects, the Plaintiff disagrees with the characterization of the retaliation
claim as arising under the First Amendment. It is better described as a 5th Amendment
Due Process violation. The Plaintiff's permanent state of solitary confinement, which is
inappropriate and harmful to a person with the Plaintiff's mental health diagnosis (so says
his prison psychologist), is primarily a violation of his First Amendment right to speak to
and associate with other people. The BOP will have to show why the ADX placement is
reasonably related to a legitimate penological interest.
Finally, although Defendant Rhodes may not have conducted an adequate
investigation of the alleged assault, the Plaintiff concedes that Mr. Rhodes only learned
about the assault afterwards, and cannot be held responsible for it. The Plaintiff has no
evidence showing that Mr. Rhodes was involved in any other decision-making and
accepts the Recommendation of the Magistrate Judge that claims against him should be
dismissed.
Respectfully submitted,

/s/ Paul Wolf

______________________
Paul Wolf, CO Bar #42107
Attorney for Carl Hall
PO Box 46213
Denver CO 80201
(202) 431-6986
paulwolf@yahoo.com
fax: n/a

January 11, 2017

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Certificate of Service
I hereby certify that on the 11th day of January, 2017, I filed the foregoing
document with the clerk of the court through the Court's Electronic Case Filing (ECF)
system, which will send notification to the attorneys of record for all other parties in this
litigation.
/s/ Paul Wolf
____________________
Paul Wolf