Mohamed v. Jones

100 F.4th 1214

Khalfan Khamis MOHAMED, Plaintiff - Appellee, v. JONES; Huddleston; Osagie; Brush; Espinoza;Miller; Murton; Armijo, Defendants - Appellants.

No. 22-1453

United States Court of Appeals, Tenth Circuit

FILED May 7, 2024

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-02516-RBJ-MDB)

Lowell V. Sturgill, Jr., Attorney, Civil Division (Brian M. Boynton, Acting Assistant Attorney General; Cole Finegan, U.S. Attorney; and Barbara L. Herwig, Attorney, Civil Division, with him on the briefs) Department of Justice, Washington, D.C., for the Defendants - Appellants.

Khalfan Khamis Mohamed, filed a brief pro se.

Madeline Brooke Dobkin, Student Intern Attorney (Matthew Cushing, Counsel of Record; Jenna King and Reagan McDonnell, Student Intern Attorneys, with her on the brief) University of Colorado Law School Appellate Advocacy Practicum, Boulder, Colorado, for Plaintiff - Appellee.

Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges.

MATHESON, Circuit Judge.

Federal Bureau of Prisons ("BOP") officials beat prisoner Khalfan Khamis Mohamed while other officials watched. Mr. Mohamed brought Eighth Amendment excessive force and failure to intervene claims against several BOP officials, contending that Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), provided him a cause of action. The BOP defendants moved to dismiss, arguing Bivens does not extend to Mr. Mohamed's claims. The district court denied their motion.

The BOP defendants seek interlocutory review. We dismiss for lack of jurisdiction.

I. BACKGROUND

A. Factual Background¹

Mr. Mohamed, incarcerated at the United States Administrative Maximum Penitentiary in Florence, Colorado, went on a hunger strike. BOP officials temporarily removed him from his cell. As they escorted him back, Officers David Brush, Joseph Miller, and Cody Espinoza beat him. Lieutenants Joseph Armijo and Dennis Murton and Physician's Assistant ("PA") Anthony Osagie watched and did not intervene as Mr. Mohamed cried out for help and limped in pain. Lieutenant Murton also instructed the others "on how to beat [Mr. Mohamed]." App., Vol. II at 167.

Officer Brush then removed almost everything from Mr. Mohamed's cell, including thousands of pages of documents Mr. Mohamed had written over 20 years, seven books, a "few shorter works," legal and religious materials, cosmetic items, writing and postage materials, toiletries, and his drinking water cup. Id. at 170-71. Mr. Mohamed later recovered some of these items. He experienced severe depression and post-traumatic stress disorder from the loss of his work product.

After the beating, Nurse Kelly Jones performed a medical assessment of Mr. Mohamed. Although Mr. Mohamed had visible injuries and complained of broken bones and severe pain, Nurse Jones did not provide any treatment. He also refused multiple times to examine Mr. Mohamed for symptoms related to the hunger strike. Nurse Roger Huddleston eventually performed a hunger-strike assessment but refused several times to treat Mr. Mohamed's beating-related injuries.

PA Osagie told Mr. Mohamed to end the hunger strike and not tell other staff about his pain if he wanted to receive treatment for his beating-related injuries. PA Osagie also forced Mr. Mohamed to eat and to endure painful leg cuffs.

Mr. Mohamed eventually received some treatment for his physical injuries, including a broken ankle, but he continues to experience pain and other physical symptoms from the beating.

B. Procedural Background

1. Mr. Mohamed's Claims

Mr. Mohamed sued Officers Brush, Miller, and Espinoza; Lieutenants Armijo and Murton; PA Osagie; and Nurses Jones and Huddleston in their individual and official capacities. Relying on Bivens, he brought Eighth Amendment excessive force claims against Officers Brush, Miller, and Espinoza; Eighth Amendment failure to intervene claims against Lieutenants Armijo and Murton and PA Osagie; a First Amendment claim against Officer Brush for confiscating his property; and Eighth Amendment deliberate indifference to medical needs claims against PA Osagie and Nurses Jones and Huddleston. He also brought five claims against the United States under the Federal Tort Claims Act ("FTCA").

2. Motions to Dismiss

The BOP defendants and the United States filed motions to dismiss. As relevant on appeal, the BOP defendants argued the excessive force and failure to intervene claims should be dismissed for lack of a Bivens remedy and that PA Osagie was entitled to qualified immunity on the failure to intervene claim.² Officers Brush, Miller, and Espinoza and Lieutenants Armijo and Murton did not argue they were entitled to qualified immunity for the excessive force or failure to intervene claims.

The motions were referred to a magistrate judge, who recommended the excessive force and failure to intervene claims not be dismissed because Bivens provided a remedy and PA Osagie was not eligible for qualified immunity on the failure to intervene claim. The BOP defendants timely objected. The district court adopted the magistrate judge's report and recommendation in its entirety.

3. Motion for Reconsideration

The BOP defendants then moved to reconsider under Federal Rule of Civil Procedure 59(e), arguing intervening Supreme Court precedent, Egbert v. Boule, 596 U.S. 482, 142 S. Ct. 1793, 213 L.Ed.2d 54 (2022), foreclosed a Bivens remedy for excessive force and failure to intervene claims. They also alerted the district court to Silva v. United States, 45 F.4th 1134 (10th Cir. 2022), in which we held that no Bivens remedy is available for Eighth Amendment excessive force claims when the BOP's Administrative Remedy Program provides an alternative remedial scheme. The district court denied the motion.

4. Appeal

The BOP defendants appealed, arguing only that the excessive force and failure to intervene claims should be dismissed for lack of a Bivens remedy. Despite raising a potential qualified immunity challenge to the failure to intervene claim against PA Osagie in the docketing statement, the BOP defendants did not make a qualified immunity argument in their opening brief.³ They argue we have interlocutory appellate jurisdiction under the collateral order doctrine to consider the district court's Bivens extension.

C. Legal Background

We must decide whether the district court's order extending Bivens to Mr. Mohamed's Eighth Amendment excessive force and failure to intervene claims qualifies for interlocutory review under the collateral order doctrine. In the following legal background discussion, we first provide an overview of the collateral order and Bivens doctrines and show the Supreme Court has often and increasingly refused to expand either. Second, we turn to the few Supreme Court decisions that resolved Bivens or related issues on interlocutory appeal. None of them was an interlocutory appeal where the only issue was whether a Bivens claim exists. Third, we review the two circuit court cases that have addressed whether Bivens extension orders may be appealed under the collateral order doctrine. Both said no.

1. The Collateral Order and Bivens Doctrines

a. Collateral order doctrine

i. Final judgment rule - 28 U.S.C. § 1291

Federal appellate jurisdiction is generally limited to appeals from "final" district court orders, 28 U.S.C. § 1291, and orders certified for interlocutory appeal, id. § 1292(b). Section 1291 provides that "[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States." This final judgment rule "preserv[es] respect for trial judges, reduc[es] the ability of litigants to harass each other, and enhanc[es] the efficient administration of justice." United States v. Martinez-Haro, 645 F.3d 1228, 1231 (10th Cir. 2011) (citing Flanagan v. United States, 465 U.S. 259, 263-64, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984)).

ii. Cohen rationale and test

In 1949, the Supreme Court recognized the collateral order doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The collateral order doctrine allows for immediate appeal of some non-final orders under § 1291. See Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006); Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep't of Lab., 187 F.3d 1174, 1179 (10th Cir. 1999). The doctrine gives § 1291's finality requirement a "practical rather than a technical construction." Cohen, 337 U.S. at 546, 69 S.Ct. 1221. Appealable collateral orders "are said to be 'too important to be denied review and too independent of the cause itself' to justify waiting out the rest of the adjudication." Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 664 (10th Cir. 2018) (quoting Cohen, 337 U.S. at 546, 69 S.Ct. 1221).

For orders to be appealed before final judgment, they must (1) be "conclusive"; (2) "resolve important questions separate from the merits"; and (3) be "effectively unreviewable on appeal from . . . final judgment." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quotations omitted); see Cohen, 337 U.S. at 545-47, 69 S.Ct. 1221. These are referred to as the "Cohen factors." See, e.g., Osage Tribal Council, 187 F.3d at 1180. For the third factor, "the decisive consideration is whether delaying review until the entry of final judgment 'would imperil a substantial public interest' or 'some particular value of a high order.' " Mohawk, 558 U.S. at 107, 130 S.Ct. 599 (quoting Will, 546 U.S. at 352-53, 126 S.Ct. 952).

In applying the Cohen test, courts consider "the entire category to which a claim belongs" instead of "engag[ing] in an individualized jurisdictional inquiry" that would ask whether "the litigation at hand might be speeded, or a particular injustice averted." Id. (alterations and quotations omitted).

iii. Cohen's limited scope

"[T]he ...