Turner v. Schultz

130 F.Supp.2d 1216

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.

No. 99-B-2232.

United States District Court, D. Colorado.

February 15, 2001.

Eugene Sctt Baroway, Baroway, Porter & Thomas, Englewood, CO, for Plaintiff.

Roderick Schultz, pro se.

Robert M. Liechty, PC, Denver, CO, Paul J. Johns, U.S. Atty's Office, Denver, CO, for Roderick Schultz.

James Bond, pro se.

Josh Adam Marks, Tara Kim Weinman, Hall & Evans, Denver, CO, for Lieutenant King.

Gilbert Orlando Montoya, Jr., Denver, CO, for T. Martinez.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Plaintiff, William Vance Turner, brings this Bivens action alleging thirty-four claims for relief against fourteen current and former employees of the United States Bureau of Prisons (collectively "Defendants"). He alleges violations of his Fourth, Fifth, and Eighth Amendment rights under the United States Constitution. Defendants Scott, King, Mooneyham and Greco moved to dismiss. In response Mr. Turner amended his Complaint. These same four Defendants then moved to dismiss Mr. Turner's Amended Complaint. In response, Mr. Turner requested leave to file a Second Amended Complaint. I granted that motion. All Defendants except Armstrong and Knowles now move to dismiss Mr. Turner's Second Amended Complaint.

The motions are adequately briefed and oral argument would not materially aid their resolution. For the reasons set forth below, I deny as moot Defendants Scott, King, Mooneyham and Greco's Motion to Dismiss With Authorities; deny as moot Defendants Scott, King, Mooneyham and Greco's Motion to Dismiss With Authorities in Response to Plaintiff's Amended Complaint; and grant in part and deny in part Defendants' pending motions to dismiss. Jurisdiction is proper pursuant to 28 U.S.C. § 1331.

I. Facts

The following allegations of fact are taken from Mr. Turner's Second Amended Complaint. Mr. Turner is a federal prisoner housed in protective custody at the federal prison 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." The Defendants allegedly 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. Supervisors allegedly condoned the assaults and assisted the officers in covering up the true nature of the incidents. Defendant Hines, a Captain, allegedly told Defendants Lavallee and Armstrong that they had permission to act as a vigilante force, and that supervisory personnel would cover for them in that capacity. Prison officers who complained about the abuses where threatened to ensure their silence.

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. At his change of plea hearing Mr. Armstrong admitted to being a member of a conspiracy with at least eleven members. Mr. Armstrong also admitted that the conspirators acted as vigilantes with the approval of prison supervisors. 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.

Mr. Turner alleges that on August 8, 1996 Defendants Schultz and Armstrong stabbed themselves and then asserted that Mr. Turner caused their injuries. On this basis, Defendants Schultz, Armstrong, and Lavallee entered Mr. Turner's cell. All three kicked, hit, beat, slapped, and punched Mr. Turner numerous times. Defendants Gutierrez and Bond then entered the cell and hit Mr. Turner in the genitals a number of times, punched him, and choked him. Defendant Rowe told Mr. Turner than if he "didn't do the right thing and confess" repercussions would follow. He also deliberately tripped Mr. Turner while Mr. Turner was in full restraints, causing injury. Later in the day Defendants Martinez and Wildergrube alternately entered the cell, pushed Mr. Turner to his stomach while his hands were cuffed behind his back, and twisted Mr. Turner's thumbs. The assaults throughout the day were videotaped.

Mr. Turner asserts that Defendants Greco, Knowles, Mooneyham, King, and Hines failed to follow standard investigative procedures, including interviewing guards, disciplining protocol violations, documenting alleged injuries, and investigating inconsistencies in officers' stories. Allegedly these failures were part of pattern in which supervisors ignored inmate abuse, changed station assignments to allow the Cowboys to work together, and failed to provide proper discipline to abusive guards. Defendants King, Mooneyham, Greco, and Knowles each came on shift at some point during the August 8, 1996 assaults and took action to assist the guards.

Following the assaults, Defendants Schultz, Lavallee, Bond, Armstrong, King, and Scott then filed false reports with the United States Bureau of Prisons alleging that Mr. Turner assaulted Defendants Schultz, Lavallee, and Armstrong, and that his injuries were caused when he resisted officers' attempts to subdue him. Defendants Scott, Mooneyham, Greco, and Hines vouched for the false reports as true and accurate statements. All Defendants subjected Mr. Turner to physical and psychological abuse in the days following August 8, 1996, until he admitted to the crime. As a result of the false reports, Mr. Turner was indicted on two counts of assault with a deadly weapon in violation of 18 U.S.C. § 111(a) & (b). See 97-CR-177-D. The indictment was issued May 8, 1997. The case was dismissed July 28, 1998.

Mr. Turner brings the following claims for relief: (1) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Schultz; (2) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Schultz; (3) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Lavallee; (4) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Lavallee; (5) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Bond; (6) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Bond; (7) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Armstrong; (8) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Armstrong; (9) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Rowe; (10) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Rowe; (11) Failure to adequately supervise subordinates in violation of the Eighth Amendment to the United States Constitution against Defendant King; (12) Failure to adequately train subordinates in violation of the Eighth Amendment to the United States Constitution against Defendant King; (13) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Scott; (14) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Scott; (15) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Wildergrube; (16) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Wildergrube; (17) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Martinez; (18) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Martinez; (19) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Gutierrez; (20) Cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution against Defendant Gutierrez; (21) Failure to adequately supervise subordinates in violation of the Eighth Amendment to the United States Constitution against Defendant Mooneyham; (22) Failure to adequately train subordinates in violation of the Eighth Amendment to the United States Constitution against Defendant Mooneyham; (23) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Mooneyham; (24) Failure to adequately supervise subordinates in violation of the Eighth Amendment to the United States Constitution against Defendant Greco; (25) Failure to adequately train subordinates in violation of the Eighth Amendment to the United States Constitution against Defendant Greco; (26) Malicious prosecution in violation of the Fourth Amendment to the United States Constitution against Defendant Grec...