Perez Olivo v. Gonzalez, No. CIV.01-1515 RLA.

• Decision Date: 26 August 2005
• Docket Number: No. CIV.01-1515 RLA.
• Citation: 384 F.Supp.2d 536
• Parties: Jimmy PEREZ OLIVO, Plaintiff, v. Ed GONZALEZ, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 536

384 F.Supp.2d 536

Jimmy PEREZ OLIVO, Plaintiff, v. Ed GONZALEZ, et al., Defendants.

No. CIV.01-1515 RLA.

United States District Court, D. Puerto Rico.

August 26, 2005.

Jimmy Perez Olivo, pro se, Reg. No. 12576-069, MDC Guaynabo Unit A-A Cadre, San Juan, PR, for Plaintiff.

United States Attorney's Office, Torre Chardón, San Juan, PR, for Defendant.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

ACOSTA, District Judge.

Plaintiff, JIMMY PEREZ OLIVO, an inmate at the Bureau of Prisons facility at MDC Guaynabo (MDC) brings this pro se action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against nine individual defendants federal employees at MDC alleging violations of his civil rights under the Fifth, Eighth, and Fourteenth Amendment of the United States Constitution. Plaintiff's main claim is based on the alleged use of restraints on him during an escorted medical trip which he argues is in violation of Bureau of Prisons (BOP) policy and submitted him to unnecessary punishment, discomfort and physical pain for more than three (3) hours, resulting in bruised ankles and pain for a period of eight (8) days.

Plaintiff seeks declaratory judgment establishing that his civil rights were violated; monetary relief for the alleged damages he sustained in the amount of $3,500,000.00, a Mandamus to compel MDC officials to comply with the parameters of the administrative remedies, and protection against possible retaliatory actions.

Defendants, ED GONZALEZ, OSCAR BARAT, ORTIZ-AVILES, SENIOR OFFICER RODRIGUEZ, ANGEL MIGUEL MONTALVO, MIMI POTTS and JORGE L. PASTRANA have moved the Court to dismiss the complaint on the grounds of qualified immunity and failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(1), (b)(2) and (b)(6), and/or for summary judgment (docket No. 20). Plaintiff has opposed (docket No. 22). For the reasons discussed herein, the Court GRANTS defendants' motion as set forth below.

QUALIFIED IMMUNITY

The qualified immunity defense must be affirmatively pled on behalf of the defendant, or it will be waived. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1960). A defense of qualified immunity is evaluated by using a two-prong test, requiring a finding as to (1) whether the constitutional right is clearly established at the time of the violation, and (2) whether "a reasonable officer in the same situation would have understood that the challenged conduct violated that established right." García v. Royal Bank of Canada, 178 F.Supp.2d 74 (D.P.R.2001); Suarez-Cestero v. Pagan-Rosa, 198 F.Supp.2d 73 (D.P.R.2002).

The first prong of this test establishes that the qualified immunity defense provides government officials with a shield from liability "for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 812, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Harlow court noted that even if the right were clearly established, a suit might still be barred "if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known the relevant legal standard...." Id. at 819, 102 S.Ct. 2727.

The District Court of Puerto Rico has explained, in applying this prong, that

the Supreme Court required a court deciding questions of qualified immunity to employ a `full knowledge of its own and [other relevant] precedents.' The right must be clear enough for a public official to understand the unlawfulness of the alleged action. Although it must be expressed in the law at a particularized level, an official does not need to be told explicitly what he cannot do. The right allegedly violated must be established at the time of the purportedly objectionable conduct, and the connection between the conduct and the right invoked must be direct. `In mounting this inquiry, courts may neither require that state actors faultlessly anticipate the future trajectory of the law ... nor permit claims of qualified immunity to turn to the eventual outcome of a hitherto problematic constitutional analysis.

El Día v. Rosselló, 20 F.Supp.2d 296, 303 (D.P.R.1998).

In determining whether there is a clearly established right to be free from restraints, or a liberty interest in being free from restraints, prior to 1995, the Supreme Court looked at the language utilized in the regulations governing the matters giving rise to the complaint. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Under this analysis, in Roy v. Carter, 1992 WL 109058 (N.D.Ill.1992), a case factually similar to this action, the District Court of Illinois stated:

To create a constitutionally protected liberty interest, a regulation or statute must employ "language of unmistakenly mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed," and the regulation must impose "substantive predicates" on the official's decision. The use of guidelines to "structure the exercise" of the decision-makers' discretion does not necessarily create a protected interest. Thus, in order to create a protected liberty interest, the regulations must limit an official's discretion to "objective and defined criteria", and must require the application of rules to facts, as opposed to being discretionary. Roy v. Carter, 1992 WL 109058 at *3 (internal citations omitted).

The Roy court looked at the language of the regulation and engaged in the following analysis:

[T]he regulation provides that the correctional supervisor "may authorize" physical restraint over an inmate who appears to be dangerous. The "may" language cannot be considered "unmistakenly mandatory in character." If section 552.21 were "intended to substantively restrict officials" discretion relative to physical restraints, it would have been drafted so as to reflect far more "restrictive language." Since it was not, "[a]nd because the liberty and property of a prisoner are defined by the substantive rules of positive law, the absence of such rules is dispositive." We decline "to presume that the regulation intended to place substantive limits on the authority of prison administrators when it has not explicitly said so." Based on the foregoing, we find that the language of section 552.21 creates a procedural structure to regulate the exercise of official discretion without imposing substantive limitations upon the prison officials' decision-making. The court thus concludes that the applicable regulations do not create a protected liberty interest and we, therefore, do not reach the issue of what process is due.

Id. at *4 (internal citations omitted).

The language of the BOP policy on this issue is permissive just as the language in Roy; it empowers correctional workers to make decisions regarding the use of restraints on inmates going on escorted trips. Thus, Code of Federal Regulations, Title 28, § 570.44, involving Supervision and Restraints Requirements during an escorted trip, indicates:

Inmates under escort will be within the constant and immediate visual supervision of escorting staff at all times. Restraints may be applied to an inmate going on an escorted trip, after considering the purpose of the escorted trip and the degree of supervision required by the inmate.

This regulation without any doubt confers on staff the discretion to apply restraints on an inmate going on an escorted trip. Indeed, Bureau of Prisons Program Statement 5538.04, Escorted Trips, (December 23, 1996), uses the same language of the Code of Federal Regulations.

In addition, at the time of the incident, plaintiff was classified as "out custody". In accordance to the policy applicable to "out custody" inmates, "[r]estraint equipment may be used at the discretion of the escorting officer(s)." Statement of Material Uncontested Fact Number 2. Therefore, it was really within the staff's discretion to apply restraints to plaintiff given his custody level. Under this analysis, it is clear that the regulations do not create a liberty interest in being free from restraints.

Accordingly, if the defendant, while in the process of performing a discretionary function, could reasonably have believed that his conduct was lawful, he will be protected from liability by qualified immunity. Foster v. McGrail, 844 F.Supp. 16 (D.Mass.1994). "The purpose of the doctrine of qualified immunity is to serve as a counterbalance which permits public officials to engage in `effective and vigorous execution of governmental policies and programs.'" El Día, Inc. at 296. To hold otherwise would no doubt undermine the authority of prison officials in the orderly administration of prisons.

More recently, Supreme Court jurisprudence has changed the methodology of examining the language of a prison regulation to determine whether a liberty interest is created. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court announced that it will no longer look to the language of a particular regulation to determine whether a protected liberty interest has been created. 115 S.Ct. at 2300. Liberty interests protected by the Due Process Clause may still be created, but these interests are limited to those which relieve inmates from a restraint which differs significantly from the normal incidents of prison life. Id. To establish a constitutional violation, inmates must show a violation of a liberty interest of "real substance" that results in a "grievous loss of liberty" retained even after imprisonment. Sandin, 115 S.Ct. at 2298.

The Sandin case shows that it is the nature of the deprivation which controls whether there is a liberty interest. In Sandin, even the disciplinary placement of an inmate in segregated confinement did not support a finding of a liberty interest. It simply is not an action which "imposes atypical and significant hardship...