Silverstein v. Fed. Bureau Of Prisons

704 F.Supp.2d 1077

Thomas SILVERSTEIN, Plaintiff,v.FEDERAL BUREAU OF PRISONS, sued in its official capacity; John Vanyur, former Assistant Director, Correctional Programs Division, Federal Bureau of Prisons, sued in his individual capacity; Joyce Conley, Assistant Director, Correctional Programs Division, Federal Bureau of Prisons, sued in her official and individual capacities; Michael Nalley, Regional Director, North Central Region, Federal Bureau of Prisons, sued in his official and individual capacities; Donald Denney, Regional Psychology Administrator, North Central Region, Federal Bureau of Prisons, sued in his official and individual capacities; Ronnie Wiley, Warden, United States Penitentiary Administrative Maximum, sued in his official and individual capacities; Marie Bailey, Staff Psychologist, United States Penitentiary Administrative Maximum, sued in her official and individual capacities; and Paul Zohn, Staff Psychologist, United States Penitentiary Administrative Maximum, sued in his official and individual capacities, Defendants.

Civil Action No. 07-cv-02471-PAB-KMT.

United States District Court D. Colorado.

March 23, 2010.

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Brittany L. Glidden, Laura Lee Rovner, Rajasimha Raghunath, University of Denver-Sturm College of Law, Denver, CO, for Plaintiff.

Juan Gonzalo Villasenor, Marcy Elizabeth Cook, Susan Begesse Prose, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

PHILIP A. BRIMMER, District Judge.

Plaintiff Thomas Silverstein filed this action challenging the constitutionality of the conditions of his confinement in the federal prison system. This case is presently before the Court on various motions to dismiss filed by the defendants. The Court's subject-matter jurisdiction is proper under 28 U.S.C. § 1331.

I. BACKGROUND A. Factual Background

The Court derives the following facts from plaintiff's second amended complaint [Docket No. 158] and presumes them to be true for the sake of this motion. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007). Following a conviction for armed bank robbery, Mr. Silverstein began his incarceration in the federal prison system in 1978 at the United States Penitentiary (“USP”) in Leavenworth, Kansas. Second Am. Compl. for Declaratory & Injunctive Relief & Damages & Jury Demand [Docket No. 158] (“Second Am. Compl.”) ¶¶ 14-15. In 1980, Mr. Silverstein was convicted in the United States District Court for the District of Kansas of murdering a fellow inmate at USP Leavenworth. See Second Am. Compl. ¶ 16. On appeal, the Tenth Circuit concluded that the District Court committed material errors regarding evidentiary issues and explained that “although the properly admissible evidence was sufficient to support the defendant's conviction, we cannot conclude confidently that the errors did not substantially influence the jury's verdict.” United States v. Silverstein, 737 F.2d 864, 868 (10th Cir.1984). Consequently, the Tenth Circuit reversed the conviction and remanded the case for retrial, which never occurred. See Second Am. Compl. ¶ 16. In November 1980, while his first murder case was pending, Mr. Silverstein was transferred from USP Leavenworth to the USP in Marion, Illinois, where he was housed in the facility's Control Unit. Second Am. Compl. ¶ 17. While confined at USP Marion, Mr. Silverstein murdered two inmates, crimes for which he was later convicted. See Second Am. Compl. ¶¶ 18-23. Then, in October of 1983, Mr. Silverstein murdered a correctional officer at USP Marion. Second Am. Compl. ¶ 24.

Immediately following this last murder, the BOP placed Mr. Silverstein into solitary confinement. Second Am. Compl. ¶ 25. Within weeks, the BOP transferred Mr. Silverstein to the USP in Atlanta, Georgia. Second Am. Compl. ¶ 26. In August 1984, the director of the BOP issued a memorandum which detailed “special security procedures” for Mr. Silverstein. Second Am. Compl. ¶ 27. This memorandum apparently ordered BOP staff to isolate Mr. Silverstein from any and all contact with fellow inmates and prison staff for an indefinite period of time. See Second Am. Compl. ¶¶ 27-28. The BOP confined Mr. Silverstein to three, linked 42-square-foot, windowless cells that were set apart from the rest of the prison population in USP Atlanta and were designed to minimize his contact with prison staff. Second Am. Compl. ¶¶ 29-30, 32-34. During the time Mr. Silverstein was confined to these cells, he exercised and ate his meals alone and was subject to bright lights and camera surveillance for twenty-four hours a day. Second Am. Compl. ¶¶ 37-39. Mr. Silverstein also alleges that he was exposed to extreme heat during this confinement, had very limited recreation time, and was not permitted to have a watch or clock. Second Am. Compl. ¶¶ 31, 40, 41-42. During the first year of his isolation at USP Atlanta, the BOP permitted Mr. Silverstein to wear only underwear and prohibited him from having social visits or using a telephone, and the BOP denied him all privileges, including access to reading materials, art supplies, a radio, or a television. Second Am. Compl. ¶¶ 44-45. According to Mr. Silverstein, these conditions of confinement subjected him “to extreme sensory deprivation that led to physical and psychological harm.” Second Am. Compl. ¶ 47.

In 1987, after a prison riot in which other inmates released Mr. Silverstein from his cell, the BOP relocated Mr. Silverstein to the basement of USP Leavenworth, the facility where he began his incarceration in 1978. Second Am. Compl. ¶¶ 48, 50. The conditions in the basement unit were substantially similar to those in Mr. Silverstein's previous location at USP Atlanta. Second Am. Compl. ¶¶ 52, 55-61. However, while in the basement cell, Mr. Silverstein could hear no sounds of human activity in the prison. Instead, he was exposed to the constant buzzing sound of fluorescent lights. The BOP did not provide Mr. Silverstein any access to fresh air or sunlight through recreation or otherwise. Second Am. Compl. ¶¶ 62-63, 65. Furthermore, according to Mr. Silverstein, the basement cell, to which he was confined for twenty-four hours a day for an entire year, was infested with rats. Second Am. Compl. ¶ 66. The second amended complaint alleges that “[t]he conditions in the basement cell were such that Mr. Silverstein was subjected to extreme sensory deprivation that led to physical and psychological harm.” Second Am. Compl. ¶ 67.

Following the year that Mr. Silverstein spent in the basement cell, the BOP transferred him to another area of USP Leavenworth that was previously known as “the hole.” Second Am. Compl. ¶ 68. This unit was separate from the rest of the facility, and Mr. Silverstein was the only prisoner housed there. Second Am. Compl. ¶ 68. Mr. Silverstein asserts that the conditions of his incarceration in this unit at USP Leavenworth were substantially similar to the conditions he experienced in the basement unit and at USP Atlanta: he was isolated from other inmates and staff, was subjected to continuous lighting and camera surveillance, and exercised and ate alone. Second Am. Compl. ¶¶ 70-74, 81-83. Mr. Silverstein's housing area had a 144-square-foot cell with a bed, shower, desk, television, and toilet and a separate cell used as an indoor recreation area and a visitation booth. Second Am. Compl. ¶¶ 75, 78-79. Mr. Silverstein's phone privileges grew from one call per month, when he first arrived, to 300 minutes per month by the time he left USP Leavenworth. Second Am. Compl. ¶ 86. While at USP Leavenworth, the BOP provided Mr. Silverstein with one hour of outdoor recreation in a confined, secure space on five days of each week. Second Am. Compl. ¶¶ 77, 84, 86. Mr. Silverstein claims that BOP staff would sometimes leave him in this outdoor recreation area for extended periods of time in the snow and bitter cold. Second Am. Compl. ¶ 85.

While housed at USP Leavenworth, Mr. Silverstein received monthly psychological reviews from the facility's psychology staff. Second Am. Compl. ¶ 87. Defendant Donald Denney conducted Mr. Silverstein's monthly psychological reviews between March 1989 and June 2003. Second Am. Compl. ¶¶ 88-89. As part of the psychological assessments, the reviewer would rate the threat Mr. Silverstein posed to others. Second Am. Compl. ¶ 92. Between 1987 and 1999, the reviewers determined Mr. Silverstein's threat to others to be “high.” Second Am. Compl. ¶ 92. Between 1999 and 2004, however, the perceived threat dropped and fluctuated between “moderate” and “low.” Second Am. Compl. ¶ 92. During his time in isolation, Mr. Silverstein purportedly used art as a way to ameliorate what he characterizes in his second amended complaint as “extreme sensory deprivation and social isolation that led to physical and psychological harm.” Second Am. Compl. ¶¶ 94-96.

Except for a period of time during December 2002 and January 2003, in which he was temporarily housed in the basement cell, Mr. Silverstein remained at USP Leavenworth under the conditions of confinement described above until 2005. See Second Am. Compl. ¶¶ 97-99. On July 12, 2005, based upon the decision of defendants Michael Nalley and John Vanyur, the BOP transferred Mr. Silverstein from USP Leavenworth to the USP Administrative Maximum facility, also known as “ADX,” in Florence, Colorado. See Second Am. Compl. ¶ 99, 106. The BOP “never provided any meaningful information regarding the reason for his transfer to the ADX,” nor did they offer Mr. Silverstein prior notice, a hearing, or any opportunity to contest his transfer to ADX. Second Am. Compl. ¶ ¶ 104-05.

Upon Mr. Silverstein's transfer to ADX, defendants Nalley and Vanyur decided to place him in an area known as “Range 13.” Second Am. Compl. ¶¶ 100-01. ADX is the most restrictive institution in the BOP system and Range 13 is the most restrictive housing area in ADX. See Second Am. Compl. ¶ 108-09. In...