Smith v. U.S.
| Citation | 561 F.3d 1090 |
| Decision Date | 31 March 2009 |
| Docket Number | No. 08-3109.,No. 07-3242.,07-3242.,08-3109. |
| Parties | Byron SMITH, Plaintiff-Appellant, v. UNITED STATES of America; Eric Holder, United States Attorney General, in his official capacity; Alberto Gonzales, former United States Attorney General, in his individual capacity; Federal Bureau of Prisons; United States Penitentiary, Leavenworth, Kansas; and H. Lappin, Director, Federal Bureau of Prisons; Eddie Gallegos, Acting Warden; William E. Howell, Jr., Safety Manager, Federal Bureau of Prisons; John Parent, Custodial Maintenance Services Manager, Federal Bureau of Prisons; Teresa Hartfield, Education Administrator/Principle, Federal Bureau of Prisons; Jeffery Sinclair, Electric Shop Supervisor, Federal Bureau of Prisons; John Doe, Education Staff Member, Federal Bureau of Prisons; Janet Durbin, Education Staff Member, Federal Bureau of Prisons; Stephanie Wheeler, Safety Officer, Federal Bureau of Prisons, in their official and individual capacities, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Pickering Hale and Dorr, LLP, Washington, D.C., for Plaintiff-Appellant.1
Edward Himmelfarb, (Eric F. Melgren, United States Attorney; Andrea L. Taylor, Assistant United States Attorney, Kansas City, KS, on the appellees' brief; Marietta Parker, Acting United States Attorney, Kansas City, KS; Gregory G. Katsas, Assistant Attorney General; Barbara L. Herwig, Attorney, Appellate Staff, Civil Division, Washington, D.C., with him on the supplemental brief), Attorney, Appellate Staff, Civil Division, Washington, D.C., for Defendants-Appellees.
Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.
Plaintiff-Appellant Byron Smith brings claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) against Defendants-Appellees. Defendants-Appellees are the United States, the Attorney General of the United States,2 the Federal Bureau of Prisons, the United States Penitentiary at Leavenworth ("Leavenworth"), and various employees and administrators at the Bureau of Prisons and Leavenworth (hereinafter collectively referred to as "defendants"). Defendants filed a motion to dismiss Smith's claims, which was granted by the district court, and Smith appeals that decision.
We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings. Regarding Smith's FTCA claim, we affirm the district court because: first, an FTCA claim can only be brought against the United States; and, second, the Supreme Court has expressly held that an FTCA claim is precluded when the Inmate Accident Compensation Act applies, as it does here.
Regarding Smith's Bivens claim against all defendants other than the individual federal officials in their individual capacities, we affirm the district court's dismissal because Bivens claims cannot be asserted directly against either the United States or federal officials in their official capacities or against federal agencies.
Regarding Smith's remaining Bivens claim against individual federal officials in their individual capacities, we reverse the district court in part and affirm in part because: first, the district court erred by finding that the Inmate Accident Compensation Act was the exclusive remedy precluding Smith's Bivens suit; and, second, the district court erred by finding that Smith's complaint failed to make allegations sufficient to state a claim for relief against the individually named federal officials in their individual capacities other than Alberto Gonzales and H. Lappin.
Smith's complaint stems from allegations that he was exposed to asbestos in 2003 while an inmate at Leavenworth. During his incarceration in Leavenworth, Smith worked as an electrician for the prison's Custodial Maintenance Services. Smith received a work order from his supervisor, defendant Jeffery Sinclair, to install a new light fixture in a closet in the prison's education department. Smith and others who were assigned to perform the installation were given access to the locked closet by defendant Janet Durbin, a staff member in the education department.3 The closet lacked any ventilation.
While Smith was installing the light fixture, a fellow inmate, Carlos Gonzalez, entered the closet and asked to borrow some tools from Smith. Smith refused, consistent with prison policy, and Gonzalez then requested tools from Durbin, who provided them to Gonzalez. Gonzalez, who had been instructed by prison staff to clean the closet, then began pulling insulation off of the pipes in the closet, thereby filling the air with dust. Smith alleges that this dust contained asbestos, and the dust irritated his eyes, nose, and throat, and caused him to begin coughing.4 Durbin directed Gonzalez to wait until the light fixture was installed before continuing his work in the closet. The work crew suspended work until the dust settled.
The next day, Smith was given another work pass by Sinclair and he and the other members of the work crew returned to the closet to finish installing the light fixture. They were again given access to the closet by Durbin, and she again supervised their work. Gonzalez was allowed back into the closet while Smith and the others were working inside. Once inside, Gonzalez pulled insulation off pipes, releasing additional dust to which Smith was exposed. The dust again caused irritation to Smith, and the work crew again stopped working until the dust settled. Durbin directed Gonzalez to leave the closet, threatening to write a report on him if he did not comply. After the dust cleared, Smith and the crew continued work on the fixture, but could not get the light to work. Durbin called Sinclair, and he arrived to assist. The job was then completed.
In 1994, a survey was performed by the Ramsey-Schilling Consulting Group, documenting the presence of asbestos in "Building # 116" at Leavenworth and stating that the pipe insulation in the second floor education southwest storage room was damaged. Smith alleges the closet where he was exposed to dust in 2003 is in the education department of "Building # 116," and specifically alleges that this southwest storage room is where he was exposed to asbestos. Smith contends that the pipe insulation that was disturbed by Gonzalez was not in good repair, and that due to the pipe insulation's damaged condition, asbestos was exposed to the air.
Smith alleged that the "safety [department at Leavenworth], CMS [Custodial Maintenance Services at Leavenworth] and the education department knew that asbestos was in the closet" due to the Ramsey-Schilling survey. Aplt.App. Doc. 1 Attach. 4 at ¶ 27. Smith also references the response to his administrative remedy request which implies that the warden at Leavenworth also knew of the asbestos as a result of the Ramsey-Schilling survey. Smith further alleges that he was never given any warning regarding the asbestos at any point. Smith claims that he suffers from a cough, shortness of breath, and trouble with his throat and eyes. Smith also alleges emotional distress.
Smith filed his initial pro se complaint in the United States District Court for the District of Columbia.5 The case was then transferred to the United States District Court for the District of Kansas due to improper venue. Smith filed an amended complaint in the District of Kansas post-transfer, which incorporated by reference the original complaint's factual allegations. Smith's amended complaint alleges that defendants6 were negligent and deliberately indifferent by exposing him to asbestos without protective measures. Smith seeks compensatory damages, punitive damages, and injunctive relief for future medical care. Id. Doc. 5 (Smith's "First Amended Complaint").
The district court granted defendants' motion to dismiss Smith's amended complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and, alternatively, for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). The district court concluded that the prisoners' workers' compensation statute, the Inmate Accident Compensation Act, 18 U.S.C. § 4126, was Smith's exclusive remedy for his alleged work-related injuries, foreclosing Smith's FTCA and Bivens claims. Aplt.App. Doc. 59 at 6. The district court alternatively found that Smith's FTCA claim could only be brought against the United States. The district court also held that Smith's FTCA claim against the United States failed because his allegations of harm did not constitute a physical injury. Id. at 8. His claim for lost medical records was also dismissed because Smith did not have a protected property interest in them. Id. at 6-8. The district court then alternatively found that Smith's Bivens claim failed because the amended complaint did not allege that defendants "knew he faced a substantial risk of harm and disregarded that risk." Id. at 8-9 (internal quotation omitted).
Smith filed a Rule 60(b) motion in which he asked the district court to reconsider its decision. The district court denied Smith's motion. Smith then filed a Rule 59(e) motion in which he asked the district court to alter or amend the judgment. The district court also denied that motion.
We are presented with two appeals. Case number 07-3242 is an appeal from the district court's dismissal of Smith's amended complaint, and case number 08-3109 is an appeal from the district court's denial of Smith's motion to alter or amend judgment under Rule 59(e). Smith did not file a notice of appeal regarding the district court's denial of his Rule 60(b) motion, but did subsequently file an amended notice of appeal purporting to include in Case No. 08-3109 review...
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