Turner v. Schultz
| Decision Date | 20 February 2002 |
| Docket Number | No. CIV. A. 99-B-2232.,CIV. A. 99-B-2232. |
| Citation | 187 F.Supp.2d 1288 |
| Parties | William Vance TURNER, Plaintiff, v. Officer Roderick SCHULTZ, Officer Michael Lavallee, Officer James Bond, Lieutenant David D. Armstrong, Lieutenant FNU King, Captain M. Mooneyham, Assistant Warden Greco, Warden Joel H. Knowles, Lieutenant Rowe, Lieutenant K. Scott, Officer E. Wildergrube, Officer T. Martinez, Charolette Gutierrez, Captain Terry Hines, and Other Unknown Agents of the Federal Bureau of Prisons, Defendants. Officer Roderick Schultz, Officer Michael Lavallee, Officer James Bond, Officer Charles Rowe, Officer Eric Wildgrube, Officer Charlotte Gutierrez, and Officer Terry Hines, Third-Party Plaintiffs, v. The United States, Third-Party Defendant. |
| Court | U.S. District Court — District of Colorado |
Eugene Scott Baroway, Baroway, Porter & Thomas, Englewood, CO, for Plaintiff.
Roderick Schultz, Denver, CO, pro se.
Robert M. Liechty, Anthony John Fabian, Cross & Liechty, PC, Denver, CO, Tara Kim Weinman, Edmund Martin Kennedy, Hall & Evans, Denver, CO, Gilbert Orlando Montoya, Jr., Denver, CO, for Defendants.
Plaintiff, William Vance Turner, brings this Bivens action alleging claims for relief against current and former employees of the United States Bureau of Prisons (collectively "Defendants"). Defendants Schultz, Lavallee, Bond, Rowe, Wildgrube, Gutierrez, and Hines bring a Third-Party Complaint against Third-Party Defendant the United States for representation and indemnification. The United States moves to dismiss the cross-claims. The motion is adequately briefed and oral argument would not materially aid its resolution. For the reasons set forth below, I grant the government's motion.
The alleged facts in this case are set out in Turner v. Schultz, 130 F.Supp.2d 1216 (D.Colo.2001) and need not be fully repeated here. Mr. Turner is a federal prisoner housed in protective custody in Florence, Colorado. Defendants are or were employees of the United States Bureau of Prisons assigned to Florence. Mr. Turner alleges that Defendants were members of a conspiracy of guards and supervisors known as "the Cowboys" who conspired to physically assault prisoners that they felt were disciplinary problems and fabricate incident reports to make it appear as if the assaults were a response to violent behavior by the prisoners. Mr. Turner alleges that he was repeatedly physically assaulted by the Defendants, and Defendants then filed false reports with the United States Bureau of Prisons alleging that Mr. Turner assaulted them and that his injuries were caused when he resisted officers' attempts to subdue him.
A number of guards were indicted for their actions as members of the Cowboys. Defendants Lavallee, Schultz, and Bond were indicted and charged with violations of 18 U.S.C. §§ 241, 242, & 2 for assaulting Mr. Turner and other inmates. See 00-CR-481-D. No disposition has been reached in that case. Defendant Armstrong was separately charged and pled guilty on July 13, 1999 to conspiring against the rights of citizens in violation of 18 U.S.C. § 241. He has not yet been sentenced. See 99-CR-190-D. Defendant Gutierrez was also separately charged and pled guilty on July 21, 2000 to deprivation of civil rights under color of law in violation of 18 U.S.C. § 242. She has not yet been sentenced. See 00-CR-299-MW.
On April 24, 2000 an Assistant United States Attorney filed a third unopposed motion on behalf of Defendants sued in their individual capacities, including Defendants Schultz, Lavallee, and Gutierrez, to extend time to answer in order to allow Defendants to obtain counsel. In his motion, the Assistant U.S. Attorney indicated that the United States was conditionally representing Defendants for purposes of that motion only, pursuant to 28 C.F.R. § 50.15(a)(1). The motion suggests that the United States declined to represent Defendants in their individual capacities, as it determined that it was not in its best interests to do so.
On April 12, 2001 Defendants Schultz, Lavallee, Bond, Rowe, Wildgrube, Gutierrez, and Hines brought a Third-Party Complaint against the United States. The Third-Party Complaint alleges that these Defendants were employees of the United States at the time of the alleged acts, that the United States declined to provide a defense for or indemnification of the Defendants, and demands payment of their defense costs as well as indemnification against any judgment that might be entered against them.
Under Rule 12(b)(6), a district court may dismiss a complaint for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If the plaintiff has pled facts that would support a legally cognizable claim for relief, a motion to dismiss should be denied. See id. In evaluating a 12(b)(6) motion to dismiss, "all well-pleaded factual allegations in the amended complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999).
Fed.R.Civ.P. 12(b)(6) does not provide a procedure for resolving a contest about the facts or the merits of the case. Thus, one must read Fed.R.Civ.P. 12(b)(6) in conjunction with Fed. R. Civ. P 8(a), which sets forth the requirements for pleading a claim in federal court. Fed. R. Civ. P 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not contain detailed facts, but it must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. A plaintiff is not required to state precisely each element of the claim. 5 Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1216, at 154-59 (1990). Nonetheless, a plaintiff must "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988).
The United States moves to dismiss the Third-Party Complaint in its entirety. I consider the claims for payment of defense costs and indemnification separately.
The United States first moves to dismiss the claim for payment of defense costs. The United States argues that its decision not to provide or pay for Defendants' defense is a non-reviewable agency decision. I agree.
Under the Administrative Procedure Act ("APA"), "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The provisions of the APA are applicable "except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(1)-(2). Section 701(a)(2) "makes it clear that `review is not to be had' in those rare circumstances where the relevant statute `is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.'" Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (citations omitted). However, "[j]udicial review of final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986), superceded on other grounds by 42 U.S.C. § 405. A determination of whether agency action is subject to judicial review under § 701 of the APA is a jurisdictional issue. See Mount Evans Co. v. Madigan, 14 F.3d 1444, 1448 (10th Cir.1994).
Representation of federal employees is governed initially by 28 U.S.C. § 517. Under that statute, the United States, through the Department of Justice ("DOJ"), may intercede in pending cases to protect its interests.
The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.
28 U.S.C. § 517 (emphasis added). The Department of Justice has promulgated regulations to determine when to furnish counsel to a federal employee sued in his or her individual capacity:
[A] federal employee ... may be provided representation in civil, criminal and Congressional proceedings in which he is sued, subpoenaed, or charged in his individual capacity, not covered by § 15.1 of this chapter, when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee's employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States.
28 C.F.R. § 50.15(a) (emphasis added). The regulation provide a series of factors that must be considered and procedures that must be followed in the event of a request for representation. See id. at § 50.15(a)(1)-(12). The regulation stipulates, however, that:
Representation is not available to a federal employee whenever:
(1) The conduct with regard to which the employee desires representation does not reasonably appear to have been performed within the scope of his employment with the federal government;
(2) It is otherwise determined by the Department that it is not in the interest of the United States to provide representation to the employee.
See id. at § 50.15(b)(1)-(2). "Congres...
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