Case 1:12-cv-01144-RPM Document 1 Filed 05/01/12 USDC Colorado Page 1 of 12
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. RAYMOND VEGA, on behalfof Jose Martin Vega, deceased, Plaintiff, vs. BLAKE R. DAVIS and certain additional unknown agents of the United States Bureau of Prisons, Defendants.
COMPLAINT AND JURy DEMAND
Plaintiff ("Plaintiff') Raymond Vega complains as follows against defendants Blake R. Davis and certain additional unknown agents of the United States Bureau of Prisons (sometimes collectively "Defendants'').
NATURE OF THE ACTION 1. This is a Bivens action for damages based on the abuse and wrongful death of Jose Martin Vega ("Vega"), who at the time ofhis death in May 2010 was an inmate at the United States Penitentiary - Administrative Maximum, in Florence Colorado ("ADX" or "ADX Florence"). As further alleged below, Vega suffered from a serious mental illness during his incarceration at ADX, to which Defendants exhibited persistent and deliberate indifference, and that as a result was not properly treated, as constitutionally required. Because of Defendants' violations of Vega's constitutional and other rights, Vega died in an incident determined by the

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Fremont County, Colorado, coroner to have been a suicide. Vega's death was preventable, and was the result of Defendants' actions and failures to act, all in violation of the rights guaranteed by the United States Constitution.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this Bivens action pursuant to 28 U.S.C. §
133 1(a).
3. Venue is proper in the District of Colorado under 28 U.S.C. § 1391(b), because a
substsntial part ofthe acts or omissions that give rise to Plaintiff's claims occurred in the District of Colorado.
PARTIES 4. PlaintiffRaymond Vega is the brother ofthe Jose Martin Vega. Raymond Vega is a resident ofNew York. His address is 6223 64th St., Middle Village, New York 11379. 5. At certain relevant times defendant Blake R. Davis was the Warden at ADX Florence. As Warden ofADX Florence, Mr. Davis maintained physical custody ofJose Vega while he was housed at ADX Florence, including on May I, 2010, the date of Jose Vega's death. 6. Defendants also include certain additional unknown agents of the United States Bureau of Prisons ("BOP") whose acts and omissions, upon information and belief, caused or contributed to Vega's suffering and death. The names and titles ofthese individuals, and their specific acts and omissions, are unknown to Plaintiffat this time, but will be included in amended pleadings as and when additioual iuformation become available to Plaintiff.
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ALLEGATIONS ADXand Its Control Unit 7. ADX is the most secure federal penitentiary in the United States. It was built to house prisoners who are claimed to present the greatest threats to correctional staff or to other prisoners. 8. At any given time, between 400 and 500 prisoners are housed at ADX. Prisoners are housed in nine different housing units, divided into five security levels: Control Unit, Special Security Unit, Special Housing Unit, four General Population Units, and two Intermediate!rransitional Units. 9. The Control Unit is one of the most secure and isolated units currently in use at ADX Florence. Prisoners in the Control Unit have been sentenced to long term segregation and have little or no contact with other prisoners for extended periods of time. Prisoners in the Control Unit are isolated from the other prisoners at all times, even during recreation. Many prisoners in the Control Unit are in "solitary confinement," with their only contact with other humans being the prison guards. 10. Depending on which unit they are in, prisoners spend at least 20, and as much as 24, hours per day in their individnal cells, which measure approximately 12 feet by 7 feet. The cells have solid walls, thereby preventing prisoners from viewing the interiors of other cells or having direct contact with prisoners in adjacent cells. The cells have solid doors with a small slot at the base through which food is delivered twice a day. Each cell is furnished with a bed, desk and stool made of poured concrete, toilets and showers with automatic shut-off valves and sinks without water taps. The beds are usnally dressed with a thin mattress and blankets over the
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concrete. Each cell contains a single window, approximately 42 inches tall and 4 inches wide, which allows eotry of some natural light but ensures that the prisoners cannot see much outside oftheir cells other than the building and sky. Many cells, except those in the Special Housing Unit, are equipped with a remotely-controlled radio or television that offers religious and educational programming. These are ofteo withheld from prisoners as puuishmeot.
11. Defeodants make a determined and calculated effort to dominate the prisoners at ADX through the use of disciplinary techuiques that include the use of exteoded periods of solitary confinemeot in the Control Unit and threats of puuitive measures such as the withholding ofprivileges (e.g., access to a television set, access to the in-house "commissary" where imnates can purchase food and other items, access to the telephone, prompt delivery of inbound mail, etc.). In addition, physical abuse of unruly or even assertive prisoners by the correctional staff at ADX is routinely used to create fear and demonstrate the dominance of the correctional staff.
ADXFlorence and Its Treatment ofthe Mentally III 12. The BOP, a division of the United States Departmeot of Justice, is charged with establishing policies and regulations for all U.S. peniteotiaries and other types of prison facilities that are safe, humane, and secure. 13. BOP procedures state that "inmates curreotly diagnosed as suffering from serious psychiatric illnesses should not be referred for placemeot at ... ADX." BOP Program Statemeot 5100.08, "Inmate Security Designation and Custody Clarification," Chapter 7, p. 18. 14. Despite this, many ADX Floreoce inmates suffer from various meotal illnesses, including depression, schizophrenia, post-traumatic stress disorder, meotal retardation, and other serious mental conditions.
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15. At the times relevant in this action, ADX policy does not allow prisoners, while they reside in the Control Unit, to receive medication to treat or ameliorate the effects ofmental illness. As a result, these conditions of confinement virtually assure that prisoners' condition will continue to deteriorate, and that they will continue to respond to the BOP staff in ways that lengthen their time in the Control Unit's solitary confinement conditions.
16. It is common for Defendants to place an incoming prisoner taking psychotropic medication in the Control Unit, where such medication is not available.
17. BOP policies require the prison staffto "ensure that assessment and treatment planning procedures exist to identify all prisoners entering the institution with either a recent history or current symptoms of significant mental illnesses and/or risk of suicide." BOP Program Statement 5310.13, "Institution Management of Mentally TIl Inmates," p. 4. These policies provide that during the intake screening, prisoners with any ofthe following conditions must be referred immediately to a Mental Health Program Coordinator (a) Recent history or current symptoms of significant mental illness; (b) Signs or symptoms consistent with a possible mental disorder; (c) Use of medication for treatment ofa mental illness or disorder; (d) Documented mental health designation; (e) Risk of suicide; BOP Program Statement 6340.04, "Psychiatric Services," § 9(a).
18. The Mental Health Program Coordinator is required to complete a screening report on all referred prisoners, and forward the prisoner's mental health information to relevant members of the prison staff. BOP Program Statement 5310.13, "Institution Management of Mentally TIl Inmates," p. 5. If the prisoner has extensive treatment needs, the Program Coordinator must schedule additional sessions and establish a treatment plant. ld.
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19. BOP policies require that meotally ill prisoners be monitored on an ongoing basis to asses treatmeot compliance. ld. at 5. For certain prisoners, including those receiving psychoactive medication and those segregated for meotal health reasons, meotal health staff must, at a minimum, conduct a monthly interview to assess the prisoner's treatmeot strategy. ld.
20. BOP does not provide adequate meotal health staffing at ADX Florence, giveo the size ofthe meotal health caseload at that facility. At the relevant time, upon information and belief only two meotal health professionals -- both psychologists -- were responsible for the meotal health of the approximately 450 inmates housed at ADX, assisted very occasionally by a psychiatrist. As a result of inadequate staffing by mental health professionals, ADX inmates, including Jose Vega, do not have timely access to meotal health professionals, particularly in times of crisis.
21. As described below, and likely as a result ofthe inadequate meotal health staffing provided at ADX Floreoce, Defeodants failed to screeo, monitor or treat Jose Vega's meotal illnesses, first diagnosed in 2004. Instead, Defeodants placed Mr. Vega in ADX Floreoce's Control Unit, deprived him of necessary psychiatric medications, and otherwise abused and tortured him over a period ofyears. These actions had devastating consequeoces.
ADXFlorence and Its Treatment ofJose Vega 22. In 1995, at the age of 20, Jose Vega was seotenced to life in prison and committed to the custody of the BOP. 23. Jose Vega was originally confined at Lewisburg United States Peoiteotiary ("USP Lewisburg''). On March 13, 2003 he was transferred from USP Lewisburg to Alleowood United
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States Penitentiary ("USP Allenwood"). On April 5, 2004, he was transferred from USP Allenwood to ADX Florence.
24. Defendants placed Jose Vega in the Control Unit at ADX-Florence. 25. In December of 2004, upon information and belief, psychologist Marie Bailey of ADX diagnosed Jose Vega as suffering from paranoid schizophrenia. 26. In March of2005, Jose Vega was referred to the U.S. Medical Center for Federal Prisoners in Springfield, Missouri ("FMC Springfield'') for a mental health evaluation. 27. Plaintiff does not know presently know why the BOP transferred Jose Vega to FMC Springfield. Upon information and belief, however, any such transfer involves very significant expense, security risks and administrative difficulties. Moreover, ADX has on-site medical and mental health treatment facilities, and access to hospitals and other medical facilities in the vicinity ofthe prison, where ADX inmates are routinely transported for evaluation and treatment. Under these circumstances, and again upon information and belief, ADX inmates are transferred to FMC Springfield only when the ADX staff is confronted with serious medical issues that outstrip the capacity of ADX Florence, such as Jose Vega's serious mental illness. 28. At FMC Springfield, Jose Vega underwent a mental health evaluation. This evaluation revealed that Jose Vega had "a history of depression and antisocial personality disorder." 29. Vega remained at FMC Springfield for approximately one year. Upon information and belief, ADX inmates referred to FMC Springfield for mental health evaluation or treatment rarely remain at FMC Springfield for more than a month or two. A stay of a year at
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FMC Springfield therefore suggests that the BOP itself recognized that Vega suffered from a serious mental illness requiring extended aod extensive mental health treatment.
30. In 2006, the BOP transferred Jose Vega back to ADX Florence. That traosfer violated BOP's written procedures which clearly state that "inmates currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at ... ADX." BOP Program Statement 5100.08, "Inmate Security Designation aod Custody Clarification," Chapter 7, p. 18.
31. Upon Jose Vega's return to ADX Florence, Defendaots were required to send Mr.
Vega to the Mental Health Program Coordinator for a thorough assessment ofhis mental health. BOP Program Statement 6340.04, "Psychiatric Services," § 9(a). The Mental Health Program Coordinator was to complete a screening report aod forward the information to relevaot members ofthe ADX Florence prison staff. BOP Program Statement 5310.13, "Institution Maoagement of Mentally III Inmates," p. 5. Such a review would have shown that Jose Vega had treatment needs. Accordingly, the Mental Health Program Coordinator was required to schedule additional sessions, establish a treatment plaot, aod monitored Jose Vega on ao ongoing basis to asses treatment compliaoce. ld. Upon information aod belief, this was never done.
32. Upon Jose Vega's return to ADX Florence, Defendaots placed Jose Vega back in the Control Unit.
33. When Jose Vega returned to the Control Unit at ADX Florence meaot he was unable to receive medication to treat or ameliorate the effects ofhis mental illness.
34. Upon information aod believe, ADX staff members repeatedly chained Vega unnecessarily, sometimes for periods often days or more. Upon information aod belief, the
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behavior claimed by the BOP to justify such abuse was a product ofVega's untreated mental illness, and thus was not within his control. That is, BOP agents caused Vega's conduct by failing to treat his obvious and serious mental illness, and then punished him severely for acting as he predictably did.
35. Upon information and belief, Jose Vega told other prisoners that he believed the ADX Florence guards were poisoning his food and spraying things into his vents.
36. On May 1, 2010 Jose Vega was found dead in his cell in the Control Unit at ADX Florence.
37. The coroner's report noted that Jose Vega died as a result ofhanging. The investigation and autopsy indicated that his injuries were intentional and self-inflicted. The coroner's report also indicated that information received from the ADX health administrator indicated that Jose Vega "had a long psychiatric history."
38. As warden ofADX during certain periods relevant to this action, Defendant Davis was responsible for the care and safety ofADX inmates, including Vega. Upon information and belief, during relevant periods Davis visited the ADX Control Unit and spoke with inmates confined there, and through those interactions and otherwise was familiar with events occurring in the Control Unit and the condition of the prisoners confined there. Upon information and belief, Davis also was aware of discipline imposed on ADX inmates, serious medical issues among the inmates, and other information bearing on the care and well being of inmates under his custody and control, including Vega. Upon information and belief, during relevant periods Davis also had the discretionary authority to authorize the transfer of ADX inmates, including Vega, to medical facilities such as FMC Springfield, where they could be treated for mental
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health problems more serious than could effectively be treated at ADX. Upon information and belief, Davis knew about or was willfully ignorant of Vega's serious medical needs, his deterioration while confined in the ADX Control Unit, the availability of constitutionally adequate mental health services at BOP medical facilities such as FMC Springfield, and the means of accessing other mental health services required by Vega. Nevertheless, Davis failed and refused to make any of those resources and medical services available to Vega. Davis also failed to prevent the abuse of Vega by ADX staff, failed to ensure that Vega was adequate fed and safely housed, failed to implement adequate suicide prevention programs at ADX, and otherwise failed to address Vega's serious, chronic and growing mental illness. As a result, Vega's mental deterioration continued, and ultimately resulted in his death. Defendant Davis' failure to discharge his obligations relating to Vega was a legal cause of Vega's death.
39. Upon information and belief, Defendants have engaged in similar misconduct with respect to other ADX imnates, some of whom have injured or killed themselves as a result, and many ofwhom have suffered unnecessarily and for months or years on end because of the failure of Defendants and other ADX staff members to provide constitutionally required mental health care to inmates whom they knew or should have know suffered from serious mental illnesses.
FIRST CAUSE OF ACTION (Deliberate Indifference To Serious Medical Needs) 40. Plaintiff incorporates the preceding paragraphs ofthis pleading. 41. Pursuant to the Eighth Amendment to the United States Constitution, Jose Vega had the right to be free from cruel and unusual punishment and to receive proper medical care and attention while confined by the BOP.
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42. Jose Vega suffered objectively serious medical needs that Defendants actually knew of but disregarded.
43. The Defendants' treatment of Jose Vega constituted a deliberate indifference to his serious medical needs in violation ofthe Eighth Amendment to the United States Constitution.
44. The actions ofthe Defendants manifested a deliberate indifference to Jose Vega's constitutional rights in violation of the Eight Amendment ofthe United States Constitution.
PRAYER FOR RELIEF WHEREFORE Plaintiffprays for judgment against Defendants for:
(a) a sum to compensate Plaintiff for the suffering and death of his brother while incarcerated due to the denial of his medical needs;
(b) a sum to compensate Plaintiff for his own pain and suffering and loss of companionship as a result of the death of his brother due to the denial of his brother's medical needs;
(c) punitive damages in a sum as to deter Defendants of conduct of this nature in the future; and
(d) such other relief as this Court deems just and proper. Plaintiffdemands a trial by jury.
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Dated: May 1, 2012

Respectfully submitted,
ARNOLD & PORTER LLP
By sf Edwin P. Aro EdwinP. Arc 370 Seventeenth Street, Suite 4400 Denver, CO 80202 (303) 863-1000 ed.aro@aporter.com
Attorneys for Raymond Vega

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 Case 1:12-cv-01144-RPM Document 13 Filed 08/31/12 USDC Colorado Page 1 of 25
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-01144-RPM RAYMOND VEGA, Personally and as Personal Representative of the Estate of Jose Martin Vega, deceased, Plaintiff, vs. BLAKE R. DAVIS, and certain additional unknown agents of the United States Bureau of Prisons, Defendants.
AMENDED COMPLAINT AND JURY DEMAND
Plaintiff Raymond Vega, personally and as Personal Representative of the Estate of Jose Martin Vega, deceased, (“Plaintiff”) complains as follows against Defendants Blake R. Davis and certain additional unknown agents of the United States Bureau of Prisons (sometimes collectively “Defendants”).
NATURE OF THE ACTION 1. This is a Bivens action for damages based on the abuse and wrongful death of Jose Martin Vega, who at the time of his death in May 2010 was an inmate at the United States Penitentiary - Administrative Maximum, in Florence, Colorado (“ADX” or “ADX Florence”). As alleged below, Vega suffered from serious mental illnesses during his incarceration at ADX, to which Defendants exhibited persistent and deliberate indifference, and that as a result were not properly treated, as constitutionally required. Vega died in an incident determined by the

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Fremont County, Colorado, coroner to have been a suicide. Vega’s death was preventable, and was the result of Defendants’ actions and failures to act, all in violation of the rights guaranteed by the United States Constitution.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331(a). 3. Venue is proper in the District of Colorado under 28 U.S.C. § 1391(b) because a substantial part of the acts or omissions that give rise to Plaintiff’s claims occurred in the District of Colorado.
PARTIES 4. Plaintiff Raymond Vega is the brother of Jose Martin Vega (“Vega”). Raymond Vega is a resident of New York. His address is 5510 58th Street, Apt 2b, Corona, New York, 11368. 5. At certain relevant times Defendant Blake R. Davis was the Warden at ADX Florence. As Warden of ADX Florence, Mr. Davis maintained physical custody of Vega while he was housed at ADX Florence, including on May 1, 2010, the date of Vega’s death. 6. Defendants also include certain additional unknown agents of the United States Bureau of Prisons (“BOP”) whose acts and omissions, upon information and belief, caused or contributed to Vega’s suffering and death. The names and titles of these individuals, and their specific acts and omissions, are unknown to Plaintiff at this time, but will be included in amended pleadings as and when additional information become available to Plaintiff.
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ALLEGATIONS ADX
7. ADX is the most secure federal penitentiary in the United States. Staff at ADX often refer to it as the “Alcatraz of the Rockies.” ADX was built to house prisoners whom the BOP claims present the greatest threats to the correctional staff or to other prisoners. The allegations set forth below in paragraphs 8 through 11 describe both current conditions at ADX and conditions at ADX during all other times relevant to this action.
8. ADX currently houses approximately 450 men. Upon information and belief, ADX housed a comparable number of men at the time of Vega’s death. At any given time, these prisoners are housed at ADX in nine different maximum-security housing units, which are divided into six security levels: the Control Unit; the disciplinary Special Housing Unit (“SHU”); so-called “Range 13,” an ultra secure and isolated four-cell wing of the SHU in which the BOP houses prisoners it thinks require confinement with virtually no human contact; four so-called “General Population” Units (“Delta,” “Echo,” “Fox,” and “Golf” Units), the Special Security Unit (“H” Unit); and two units (“Joker” Unit and “Kilo” Unit) that in recent years have been used as transitional housing units for prisoners who have entered the so-called “Step-Down Program,” in which they can earn their way out of ADX and into a lower security classification.
9. Depending on which unit they are in, prisoners spend at least 20, and as many as 24, hours per day locked alone in their cells. The cells measure approximately 12 feet by 7 feet, and have solid walls that prevent prisoners from viewing the interiors of adjacent cells or having direct contact with prisoners in adjacent cells. All ADX cells have solid steel doors with a small closable slot. Cells in all units other than H, Joker, and Kilo units also have an interior barred
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wall with a sliding door, which together with the exterior door forms a sally port in each cell. Each cell is furnished with a concrete bed, desk, and stool, and a stainless steel combination sink and toilet. Cells in all units other than H, Joker, and Kilo units include a shower with an automatic shut-off valve. The beds are usually dressed with a thin mattress and blankets over the concrete. Each cell contains a single window, approximately 42 inches tall and 4 inches wide, which allows entry of some natural light but which is designed to ensure that prisoners cannot see anything outside of their cells other than the building and sky. Many cells, except those in the SHU, are equipped with a radio and television that offers religious and educational programming, along with some general interest and recreational programming. Televisions often are withheld from prisoners as punishment. Meals are delivered three times a day. With few exceptions, prisoners in most ADX units are allowed out of their cells only for limited social or legal visits, some forms of medical treatment, visits to the “law library” (essentially a cell with a specialized computer terminal that provides access to a limited range of federal legal materials) and a few hours a week of indoor or outdoor recreation.
10. With the possible exception of four-cell Range 13, the Control Unit is the most secure and isolated unit currently in use at ADX. Prisoners in the Control Unit are isolated from the other prisoners at all times, even during recreation, for extended terms often lasting six years or more. Their only meaningful contact with other humans is with ADX staff members. The compliance of Control Unit prisoners with institutional rules is assessed monthly; a prisoner is given “credit” for serving a month of his Control Unit time only if he maintains clear conduct for the entire month. As detailed below, Defendants provide no mental health care or psychotropic medication to Control Unit prisoners. Given their complete lack of access to mental health care,
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seriously mentally ill prisoners confined in the Control Unit frequently have behavioral issues caused by their mental illness. Such conduct often results in the loss of credit for Control Unit time served, thus extending the prisoner’s time in the extreme isolation of the Control Unit, sometimes for years.
11. Defendants make a determined and calculated effort to dominate the prisoners at ADX through the use of disciplinary techniques that include the use of extended periods of solitary confinement in the Control Unit and threats of punitive measures such as the withholding of privileges (e.g., access to a television set, access to the in-house “commissary” where inmates can purchase food and other items, access to the telephone, prompt delivery of inbound mail, etc.). In addition, physical abuse of unruly or even assertive prisoners by the correctional staff at ADX is routinely used to create fear and demonstrate the dominance of the correctional staff. ADX programs are designed based upon a punishment philosophy rather than a control philosophy. The behavior of mentally ill prisoners, in particular, deteriorates very rapidly when they are placed into programs designed to punish rather than to control unacceptable behaviors.
The Imprisonment of the Mentally Ill 12. Correctional officials and mental health professionals have known for more than 200 years that extended periods of confinement in isolation can be psychologically damaging, and can be particularly harmful to individuals with pre-existing mental illness. Beginning in 1790, when sixteen isolation cells were constructed at Philadelphia’s Walnut Street Jail, correctional officials and mental health professionals have regularly studied and acknowledged the dangers of prolonged confinement in isolation. It is well understood that extreme isolation
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for even a few weeks can result in psychosis, social withdrawal, insomnia, depression, hallucinations, rage, aggression, self-mutilation, and contemplation of suicide.
13. In early America, confinement in isolation was viewed as a more humane alternative to corporal punishment; its proponents thought it would inspire “penitence” through self-reflection. In 1829, Eastern State Penitentiary in Philadelphia opened, employing the “Pennsylvania model” of almost complete isolation. This model sought to prohibit all contact between prisoners, utilizing cells with individual exercise yards and solid doors that were primitive versions of those now inhabited at ADX.
14. The detrimental effects of extreme isolation under the Pennsylvania model soon became apparent. For example, following his 1842 visit to Eastern State Penitentiary, Charles Dickens expressed concern about the facility and the extreme isolation of its prisoners, noting that “this slow and daily tampering with the mysteries of the brain [was] immeasurably worse than any torture of the body.” America’s first experiment with extended confinement in isolation was declared by contemporary observers such as Alexander de Tocqueville as “fatal” for most prisoners because “[i]t devours the victim incessantly and unmercifully,” did not successfully reform prisoners, and caused “[t]he unfortunate creatures submitted to this experiment [to] wast[e] away.”
15. Because of its adverse effects on prisoners, the Pennsylvania model was quickly abandoned by many states during the nineteenth century. In 1890, one hundred years after the first isolation cells were constructed at the Walnut Street Jail, the Supreme Court concluded:
[E]xperience demonstrated that there were serious objections to [extended confinement in isolation]. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them,
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and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system. In re Medley, 134 U.S. 160, 168 (1890). 16. In 1913, Eastern State Penitentiary at long last abandoned its system of complete isolation and allowed prisoners at least some regular human interaction. Shortly thereafter, in Commonwealth ex rel. Elliott v. Francies, 58 Pa. Super. 270 (Pa. Super. Ct. 1914), a Pennsylvania court ordered that individuals who had been incarcerated at Eastern State Penitentiary in error were to be “absolutely” rather than “conditionally” discharged before the end of their sentences due to the severity of the punishment and based upon “just and humane principles.” In 1933, the warden at Eastern State Penitentiary called for the facility’s closure, noting that the system utilized at Eastern State could not effectively reform the prisoners incarcerated there. 17. The anecdotal observations of the past have been confirmed by modern science. For example, as early as the 1960s electroencephalography (“EEG”) examinations demonstrated the slowing of brain waves of prisoners confined in isolation for longer than a week. A landmark study in the 1970s showed that subjects in solitary confinement often experienced impaired functioning of the brain waves associated with the ability to control emotions and key cognitive functions. Similarly, a 2011 study demonstrated that after only a week of solitary confinement, prisoners showed decreased EEG activity, indicative of increased stress, anxiety, and depression. 18. The BOP has housed prisoners at ADX since late 1994. Upon information and belief, the forced solitude of the Control Unit has remained more or less unchanged since shortly
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after ADX opened. In the 18 years since ADX, the BOP has never commissioned or conducted a study of the effects of the conditions of confinement at ADX in general or the Control Unit in particular on prisoners’ mental health. Indeed, the ADX psychology department does not even maintain reference works on such effects, or any other materials that would educate prisoners about how to avoid the catastrophic psychological effects often caused by extended confinement in isolation.
19. Despite the mountains of anecdotal and empirical data confirming the impact on mental health of extended isolated confinement, the BOP regularly assigns to ADX prisoners who suffer from serious mental illnesses, and fails to maintain an adequate program to diagnose and treat the serious mental illnesses created and exacerbated by the conditions of confinement there.
ADX Florence and Its Treatment of the Mentally Ill 20. The BOP, a division of the United States Department of Justice, is charged with establishing policies and regulations for all U.S. penitentiaries and other types of prison facilities that are safe, humane, and secure. 21. The BOP’s written procedures for transferring prisoners to ADX state that prisoners “currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at… ADX.” BOP Program Statement 5100.08, “Prisoner Security Designation and Custody Clarification,” Chapter 7, p.18. This prohibition is widely ignored by Defendants. 22. In reality, and at the times relevant to this action, the BOP regularly assigns prisoners to ADX even though they have well-documented histories of serious mental illnesses,
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and in many cases histories showing that their mental illnesses can be controlled with proper treatment.
23. BOP policies also require that all prisoners are to be given psychiatric screening upon arrival at ADX. For example, BOP policies require the prison staff to “ensure that assessment and treatment planning procedures exist to identify all prisoners entering the institution with either a recent history or current symptoms of significant mental illnesses and/or risk of suicide.” BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” p. 4. During the intake screening, prisoners with any of the following must be referred immediately to the Mental Health Program Coordinator for a more thorough assessment:
 Recent history or current symptoms of significant mental illness;  Signs or symptoms consistent with a possible mental disorder;  Use of medication for treatment of a mental illness or disorder;  Documented mental health designation;  Risk of suicide. Id.; BOP Program Statement 6340.04, “Psychiatric Services,” § 9(a). 24. In reality, and at the times relevant to this action, incoming prisoners at ADX generally are given only perfunctory interviews that are wholly inadequate as a form of screening or diagnosis. The mental health “screening” provided by the facility typically consists of a few questions asked in a minute or two, often at a time when the prisoner has just completed a lengthy cross-country trip while tightly chained, and is apprehensive about his arrival at ADX. Follow-up monitoring and screening is virtually nonexistent. Even when the BOP does carry out the psychological or psychiatric screening of a new arrival, it often ignores key factors indicating
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mental illness, such as, for example, the fact that the prisoner was taking medication for a serious mental illness immediately before arriving at ADX.
25. Even where prisoners at ADX are properly identified as having a serious mental illness, many are not given appropriate treatment, including either counseling or medication. If a prisoner is referred to the mental health Program Coordinator, BOP policies require adherence to the BOP’s minimum criteria for follow up assessment and treatment planning. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” p. 4. The Program Coordinator is required to complete a screening report on all referred prisoners, and to forward the prisoner’s mental health information to relevant members of the prison staff. Id. at 5. If the prisoner has extensive treatment needs, the Program Coordinator must schedule additional sessions and establish a treatment plan. Id.
26. In reality, and at the times relevant to this action, Defendants routinely ignore these requirements by, among other things, rarely establishing meaningful treatment plans even for prisoners who are chronically and obviously seriously mentally ill, and failing even to establish at ADX a mechanism for delivering elementary mental health services, such as private counseling, which would be a necessary element of any meaningful treatment plan for most of the seriously mentally ill prisoners at ADX.
27. Because of the particularly severe conditions of confinement in the ADX Control Unit, federal regulations require the BOP to adhere to an especially detailed set of mental health standards, including:
The Warden may not refer an inmate for placement in a control unit… [i]f the inmate shows evidence of significant mental disorder or major physical disabilities as documented in a mental
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health evaluation or a physical examination. 28 CFR §541.41(c)(1). Mental health services. During the first 30-day period in a control unit, staff shall schedule the control unit prisoner for a psychological evaluation conducted by a psychologist. Additional individual evaluations shall occur every 30 days. The psychologist shall perform and/or supervise needed psychological services. Psychiatric services will be provided when necessary. Prisoners requiring prescribed psychotropic medication are not ordinarily housed in a control unit. 28 C.F.R. §541.46(i) (Emphasis added.) 28. In reality, and at the times relevant to this action, Defendants regularly placed incoming prisoners with an existing prescription for psychotropic medication in the Control Unit, where the BOP refuses to administer such medication in violation of section 541.46(i). The BOP justifies this in Orwellian fashion: it discontinues the prisoner’s medication, thereby making the now non-medicated prisoner “eligible” for placement in the Control Unit. Then, when this newly “eligible” prisoner requests medication needed to treat his serious mental illness, he is told that BOP policy prohibits the administration of psychotropic medication to him so he should develop “coping skills” as a substitute for the medication being withheld. Instructing a prisoner confined in long-term segregation and who has schizophrenia or a bipolar illness to self-treat his disease with coping skills is like demanding that a diabetic prisoner learn to “cope” without insulin. Likewise, the required 30 day “individual evaluations” are in actuality rarely performed on inmates in the Control Unit. 29. BOP policies require that mentally ill prisoners be monitored on an ongoing basis to assess treatment compliance. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” p. 5. For certain prisoners, including those receiving psychotropic
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medication and those segregated for mental health reasons, mental health staff must, at a minimum, conduct a monthly interview to assess the prisoner’s treatment strategy. Id.
30. In reality, and at the times relevant to this action, ADX staff routinely ignore this written monitoring requirement. Some prisoners never leave their cells or speak with staff for months. Many such prisoners live for extended periods in squalor, in cells caked with their own feces and bodily fluids, without bathing, and in some cases without even getting out of bed. Any meaningful “monitoring” would identify and trigger intervention for such prisoners, but rarely, if ever, does ADX staff seek to remedy the fetid and unsafe living conditions of many of the mentally ill people in their custody.
31. BOP does not provide adequate mental health staffing at ADX Florence, given the size of the mental health caseload at that facility. At the relevant time, upon information and belief, only two mental health professionals -- both psychologists -- were responsible for the mental health of the approximately 450 inmates housed at ADX, assisted very occasionally by a psychiatrist. As a result of inadequate staffing by mental health professionals, ADX inmates, including Vega, did not have timely access to mental health professionals, particularly in times of crisis.
32. The BOP’s deliberate indifference to the proper diagnosis and treatment of ADX prisoners with serious mental illnesses has resulted in horrible consequences. Many prisoners at ADX interminably wail, scream, and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass, sharpened chicken bones, writing utensils, and whatever other objects they can obtain. A number swallow razor blades, nail clippers, parts of radios and televisions, broken glass, and other dangerous objects. Others carry on delusional conversations
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with voices they hear in their heads, oblivious to reality and to the danger that such behavior might pose to themselves and anyone who interacts with them. Still others spread feces and other human waste and body fluids throughout their cells, throw it at the correctional staff and otherwise create health hazards at ADX. Suicide attempts are common. For example, in addition to Vega, at least five inmates have committed suicide since ADX opened.
33. For all of these reasons, and as further described below, Defendants failed to screen, monitor and treat Vega’s mental illnesses, first diagnosed in 2004. Instead, Defendants placed Vega in ADX Florence’s Control Unit, deprived him of necessary psychiatric medications or any meaningful mental health treatment, and otherwise abused him mentally and physically over a period of years. These actions had devastating consequences.
Background on Jose Martin Vega 34. Vega was born on August 20, 1974 in Brooklyn, New York. 35. In 1983, Vega’s mother, Gloria Carattini, died as a result of a cerebral aneurism. After her death, Vega was raised by his siblings. 36. In 1989, at the age of 15, Vega dropped out of high school. He was later sent to live in a juvenile home in the Bronx. 37. In 1995, at the age of 21, Vega was sentenced to life in prison and committed to the custody of the BOP.
The Year Preceding Vega’s Transfer to ADX 38. Vega was originally confined at Lewisburg United States Penitentiary (“USP Lewisburg”).
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39. Upon information and belief, on March 13, 2003, Vega assaulted an associate warden at USP Lewisburg. As a result Vega was immediately subdued by prison staff and placed in ambulatory restraints. He was then injected with an unknown substance which temporarily left him physically and mentally incapacitated. Vega was then stripped naked and assaulted by prison staff for a duration of at least an hour. Vega sustained a broken rib, body and head contusions, and loss of hearing in his left ear as a result of the assault by prison staff.
40. On the same day, March 13, 2003, Vega was transferred from USP Lewisburg to Allenwood United States Penitentiary (“USP Allenwood”), where he was immediately placed on suicide status. On March 25, 2003, Vega was transferred from USP Allenwood to the United States Medical Center for Prisoners in Springfield, Missouri (“MCFP Springfield”), for mental health evaluation and treatment.
41. At some time before July of 2003, Vega was transferred from MCFP Springfield back to USP Allenwood.
ADX Florence and Its Treatment of Jose Martin Vega 42. On April 5, 2004, Vega was transferred from USP Allenwood to ADX Florence, where Defendants placed him in the Control Unit. 43. In December of 2004, upon information and belief, psychologist Marie Bailey of ADX diagnosed Vega as suffering from paranoid schizophrenia. 44. In March of 2005, Vega was referred to MCFP Springfield. 45. Upon information and belief, the precipitating cause of this transfer was a suicide attempt by Vega, to which ADX staff responded by filling his cell with noxious gas and sending a body-armor clad team of correctional officers into his cell to subdue him.
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46. At MCFP Springfield, Vega underwent a mental health evaluation. This evaluation revealed that Vega had “a history of depression and antisocial personality disorder.”
47. Vega remained at MCFP Springfield for approximately one year. Upon information and belief, ADX inmates referred to MCFP Springfield for mental health evaluation or treatment rarely remain there for more than a month. A stay of one year at MCFP Springfield suggests that the BOP recognized that Vega suffered from a serious mental illness requiring extended and extensive mental health treatment.
48. In 2006, the BOP transferred Vega back to ADX Florence. That transfer violated BOP’s written procedures which state that “inmates currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at … ADX.” BOP Program Statement 5100.08, “Inmate Security Designation and Custody Clarification,” Chapter 7, p. 18.
49. Upon Vega’s return to ADX Florence, as noted above, Defendants were required to send him to the Mental Health Program Coordinator for a thorough assessment of his mental health. BOP Program Statement 6340.04, “Psychiatric Services,” § 9(a). As further noted above, the Mental Health Program Coordinator was to complete a screening report and forward the information to relevant members of the ADX Florence prison staff. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Inmates,” p. 5. Such a review would have shown that Vega had treatment needs. Accordingly, the Mental Health Program Coordinator would have been required to schedule additional sessions, establish a treatment plan, and monitor Vega on an ongoing basis to asses treatment compliance. Upon information and belief, this was not done.
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50. Upon Vega’s return to ADX Florence, Defendants placed him back in the Control Unit, where the conditions ensured the deterioration of his mental health.
51. Vega’s returned to the Control Unit at ADX Florence meant he was unable to receive medication to treat or ameliorate the effects of his mental illness.
Jose Martin Vega’s Allegations of Abuse 52. In July 2008 Vega filed a complaint in this Court alleging serious mistreatment by ADX staff. The complaint, as amended, is attached hereto as Exhibit A. 53. The complaint contains detailed allegations regarding the mental and physical abuse Vega suffered while in the Control Unit at ADX Florence. 54. As alleged in the complaint, and upon information and belief, ADX Florence staff repeatedly drugged Vega by narcotics or anesthetized him by injection against his will. 55. As alleged in the complaint, and upon information and belief, shortly after Vega’s arrival at the ADX Florence Control Unit, ADX Florence staff began physically assaulting him. 56. As alleged in the complaint, and upon information and belief, shortly after Vega’s arrival at the ADX Florence Control Unit, ADX Florence staff began sexually assaulting him. 57. Upon information and belief, these physical and sexual assaults continued until his death. 58. As alleged in the complaint, and upon information and belief, the staff at ADX Florence spread rumors that Vega was a child killer, a child molester, and an informant. 59. As alleged in the complaint, and upon information and belief, the prison staff at ADX Florence served Vega food tainted with human waste.
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60. As alleged in the complaint, and upon information and belief, the prison staff at ADX Florence subjected Vega to arbitrary cell “shake downs.”
61. As alleged in the complaint, and upon information and belief, the prison staff at ADX were provoking Vega to commit disciplinary infractions.
62. As alleged in the complaint, and upon information and belief, ADX staff members repeatedly chained Vega unnecessarily, sometimes for periods of ten days or more.
63. Upon information and belief, Vega told other prisoners that he believed the ADX Florence guards were poisoning his food and spraying things into his vents.
64. As alleged in the complaint, and upon information and belief, in December of 2006, Vega believed, and alleged, that he was given an extra razor in his cell and encouraged by several members of the prison staff to commit suicide.
65. As alleged in the complaint, and upon information and belief, between February and March of 2007, Vega was moved to a cell that contained a razor blade, and that a prison official commented that Vega would “get another chance,” presumably to use the razor on himself.
66. As alleged in the complaint, and upon information and belief, Vega’s incoming and outgoing mail had been deliberately withheld by ADX Florence staff
67. As alleged in the complaint, and upon information and belief, Vega was served food that contained pencil lead, graphite, or mace.
68. As alleged in the complaint, and upon information and belief, Vega was informed by an ADX Florence health services employee that his food was being contaminated by the feces of other inmates.
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69. As alleged in the complaint, and upon information and belief, in December of 2008, Vega’s access to communications with his loved ones had become limited due to his disciplinary segregation.
70. As alleged in the complaint, and upon information and belief, Vega’s visiting requests were denied by the Defendants.
71. As alleged in the complaint, and upon information and belief, ADX Florence staff intentionally interfered with the familial association between Vega and his relatives, intending to deprive them of their relationship with Vega.
72. The complaint reveals Vega reported the actions of ADX Florence staff described in paragraphs 52 to 71 to Defendants.
73. The complaint shows Defendants took no action in response to Vega’s complaints.
74. The complaint filed by Vega documents either serious abuse by ADX Florence staff or manifests serious delusions that were caused by mental illness and remained untreated because of Vega’s confinement in the ADX Florence Control Unit and the deliberate indifference of Defendants and others to Vega’s serious medical needs.
75. Vega’s civil action remained pending in this court until its dismissal by Judge Weinshienk on December 15, 2008. During its pendency, Vega filed and served a number of pleadings and letters detailing further abuses by ADX staff, including a September 4, 2008 “Motion Apprising Court of Defendants [sic] Actions Obstructing [sic] Access to Courts by Acts of Retaliation.” Among other things, those submissions accuse ADX staff members of tainting Vega’s food, failing to feed him, interfering with his sleep, harassing him, spreading rumors
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about him, drugging him and violating “his right to bodily integrity.” Like Vega’s complaint and December 2008 Amended Complaint, these allegations reflect either serious misconduct by ADX staff or the wild delusions of a severely mentally ill man. Either such misconduct or such delusions cry out for an investigation. Upon information and belief, however, neither Defendants nor anyone else at ADX conducted any investigation or inquiry into Vega’s claims. Rather, Defendants and other ADX staff members allowed Vega to continue to deteriorate, much of the time wallowing in his own waste.
76. Upon information and belief, the behavior claimed by the BOP to justify the abuse alleged in the complaint and Vega’s other filings was a product of Vega’s untreated mental illness, and thus was not within his control. That is, BOP agents caused Vega’s conduct by failing to treat his obvious and serious mental illness, and then punished him severely for acting as he predictably did.
Jose Martin Vega’s Deteriorating Mental Health 77. Upon information and belief, upon his return to ADX Florence from MCFP Springfield, Vega had grown a beard down to his waist. 78. Upon information and belief, upon his return to ADX Florence, Vega’s fellow inmates did not recognize him and described him as appearing “totally shot out.” 79. Upon information and belief, between 2006 and 2008, after his return from MCFP Springfield, Vega spiraled “downhill” from a “normal” guy who wrote poems for his fellow inmates and helped them with their legal work, to an isolated, “weird,” “bat shit” crazy man who talked to himself and grew increasingly concerned about people spraying poison gas into his cell and poisoning his food.
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80. Upon information and belief, Vega weighed at least 200 pounds when he arrived at ADX in 2004. Upon information and belief, between 2006 and 2008, Vega experienced dramatic weight loss.
81. Upon information and belief, between 2006 and 2008, Vega began mutilating himself.
Vega’s Final Days and Death 82. Upon information and belief, by 2010 Vega had lost as much as 50 pounds, customarily wore grossly ill-fitting clothes and shoes, was no longer maintaining physical hygiene, and was largely incoherent. 83. In early April, 2010, upon information and belief, Vega was in ambulatory restraints for three to four days, yelling and throwing feces. 84. On April 20, 2010, upon information and belief, Vega was heard screaming that he was tired of the treatment he was receiving, and was going to do something about it. 85. Upon information and belief, on or about April 30, 2010, Vega was placed in ambulatory restraints in his cell by presently unknown members of the ADX staff. Upon information and belief, at that time Vegas was in profound and obvious psychological distress. Nevertheless, ADX staff failed to seek necessary mental health care for Vega and instead left him in his cell chained hand and feet, and utterly alone. 86. On May 1, 2010, upon information and belief, the duress light went on in Vega’s cell. 87. On May 1, 2010, Vega was found dead in his cell in the Control Unit at ADX Florence.
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88. The coroner’s report that evaluated Vega after his death noted that Vega died as a result of hanging. The Coroner’s Report is attached as Exhibit B.
89. The investigation and autopsy indicated that his injuries were intentional and selfinflicted.
90. The coroner’s report indicated that information received from the ADX health administrator indicated that Vega “had a long psychiatric history.”
The Treatment of Vega’s Body And Possessions After His Death 91. After Vega was found hanging lifeless in his cell, currently unknown members of the ADX staff cut him down, and then placed his dead body in handcuffs and shackles. Only then was any effort to resuscitate Vega made. Hours later, Vega’s body was delivered to the medical examiner, still chained hand and feet. 92. Upon information and belief, following Vega’s death, and despite repeated requests by Plaintiff and Vega’s other family members, the BOP failed to return Vega’s body to his family in New York for a service and burial in a prompt manner. Plaintiff and his family entered into a dispute with the BOP regarding the shipment and burial of Vega’s body. The body was not returned to New York until many days after Vega’s death. 93. Upon information and belief, when ADX finally shipped Vega’s body to his family, he arrived in a small pine coffin, wearing a prison uniform. Vega’s body was emaciated, and according to his family members he looked like he had been “starved to death.” 94. Upon information and belief, the government would not permit Vega’s family to bury his body, but insisted that it be cremated.
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95. Upon information and belief, the BOP withheld Vega’s personal belongings, including but not limited to, drawings, writings and photographs from his family following Vega’s death. Despite several telephone requests from Vega’s family members, the BOP has not, to this day, returned a single piece of Vega’s personal property to Plaintiff or any other member of Vega’s family.
Defendants’ Responsibility 96. As warden of ADX during certain periods relevant to this action, Defendant Davis was responsible for the care and safety of ADX inmates, including Vega. 97. Upon information and belief, during relevant periods Defendant Davis visited the ADX Control Unit and spoke with inmates confined there, and through those interactions and through other means became familiar with events occurring in the Control Unit and the condition of the prisoners confined there. 98. Upon information and belief, Defendant Davis was aware of discipline imposed on ADX inmates, serious medical issues among the inmates, and other information bearing on the care and well being of inmates under his custody and control, including Vega. 99. Upon information and belief, during relevant periods Defendant Davis had the discretionary authority to authorize the transfer of ADX inmates, including Vega, to medical facilities such as MCFP Springfield, where they could be treated for mental health problems more serious than could effectively be treated at ADX. 100. Upon information and belief, Defendant Davis knew about or was willfully ignorant of Vega’s serious medical needs, his deterioration while confined in the ADX Control Unit, the availability of constitutionally adequate mental health services at BOP medical
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facilities such as MCFP Springfield, and the means of accessing other mental health services required by Vega. Nevertheless, Defendant Davis failed and refused to make any of those resources and medical services available to Vega.
101. Upon information and belief, Defendant Davis also failed to prevent the abuse of Vega by ADX staff, failed to ensure that Vega was adequately fed and safely housed, failed to implement adequate suicide prevention programs at ADX, and otherwise failed to address Vega’s serious, chronic and growing mental illness. As a result, Vega’s mental deterioration continued, and ultimately resulted in his death. Defendant Davis’s failure to discharge their obligations relating to Vega was a legal cause of Vega’s death.
102. Upon information and belief, Defendant Davis engaged in similar misconduct with respect to other ADX inmates, some of whom have injured or killed themselves as a result, and many of whom have suffered unnecessarily and for months or years on end because of the failure of Defendants and other ADX staff members to provide constitutionally required mental health care to inmates whom they knew or should have know suffered from serious mental illnesses.
FIRST CAUSE OF ACTION (Deliberate Indifference To Serious Medical Needs) 103. Plaintiff incorporates the preceding paragraphs of this pleading. 104. Pursuant to the Eighth Amendment to the United States Constitution, Vega had the right to be free from cruel and unusual punishment and to receive proper medical care and attention while confined by the BOP. 105. Vega suffered objectively serious medical needs that Defendants actually knew of but disregarded.
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106. Defendants’ treatment of Vega constituted a deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution.
107. The actions of Defendants’ manifested a deliberate indifference to Vega’s constitutional rights in violation of the Eight Amendment of the United States Constitution.
SECOND CAUSE OF ACTION (Deprivation of Right of Familial Association) 108. Plaintiff incorporates the preceding paragraphs of this pleading. 109. Plaintiff has an interest in his relationship with his brother protected by the First and Fourteenth Amendment of the United States Constitution. 110. These interests survived the death of Plaintiff’s brother. 111. Defendants intentionally interfered with this interest by, among other things, deliberately disregarding Vega’s serious medical needs, disregarding Plaintiff’s right to the prompt return of the body of his brother following his death, and refusing to return Vega’s personal possessions to Plaintiff. 112. The actions of the Defendants were thus in violation of the First and Fourteenth Amendment of the United States Constitution.
PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment against Defendants for:
(a) a sum to compensate the Estate for the suffering and death of Vega while incarcerated due to the denial of his medical needs;
(b) a sum to compensate Plaintiff for his own pain and suffering and loss of companionship as a result of the death of his brother due to the denial of
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his brother’s medical needs, and Defendants’ intentional mistreatment of

Vega’s body and personal items following his death;

(c) punitive damages in a sum as to deter Defendants of conduct of this nature

in the future; and

(d) such other relief as this Court deems just and proper.

Plaintiff demands a trial by jury. Dated: August 30, 2012

Respectfully submitted,

ARNOLD & PORTER LLP

By s/ Edwin P. Aro Edwin P. Aro 370 Seventeenth Street, Suite 4400 Denver, CO 80202 (303) 863-1000 ed.aro@aporter.com
Attorneys for Plaintiff Raymond Vega

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 Case 1:12-cv-01144-RPM Document 43 Filed 07/22/14 USDC Colorado Page 1 of 19 Appellate Case: 13-1268 Document: 01019283231 Date FiledU: n07it/e2d2/S2t0a1t4eFsICLPoEuaDgrte:o1f Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS July 22, 2014

TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

RAYMOND VEGA, personally and as personal representative of the estate of Jose Martin Vega, deceased,
Plaintiff - Appellee,
v.
BLAKE R. DAVIS, and certain additional unknown agents of the United States Bureau of Prisons,
Defendant - Appellant.

No. 13-1268 (D.C. No. 1:12-CV-01144-RPM)
(D. Colo.)

ORDER AND JUDGMENT* Before BRISCOE, Chief Judge, HOLLOWAY** and PHILLIPS, Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It m ay be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** The late Honorable William J. Holloway, Jr., United States Senior Circuit Judge, participated as a panel member when this case was heard, but passed away before final disposition. “The practice of this court permits the remaining two panel judges, if in agreement, to act as a quorum in resolving this appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997); see also 28 U.S.C. § 46(d) (noting circuit court may adopt procedure permitting disposition of an appeal where remaining quorum of panel agrees on the disposition). The remaining panel members have acted as a quorum with respect to this Order and Judgment.
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This is an interlocutory appeal from a denial of qualified immunity. The plaintiff, Raymond Vega, brought an action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against former warden Blake Davis, alleging he had a role in Vega’s brother’s suicide. Following a hearing on Davis’ motion to dismiss count one, which alleged deliberate indifference to a serious medical need in violation of the Eighth Amendment, the district court denied Davis’ motion. Davis appeals this denial. We exercise jurisdiction under 28 U.S.C. § 1291 and reverse and remand with direction to grant Davis’ motion as to count one.
I. BACKGROUND In May 2012, Raymond Vega (“R.V.” or the “plaintiff”) brought this action against Blake Davis and other unknown Bureau of Prisons (“BOP”) agents. R.V.’s brother, Jose Martin Vega (“J.M.V.”), was held at the United States Penitentiary, Administrative Maximum Facility near Florence, Colorado (“ADX” or “ADX Florence”) when he committed suicide on May 1, 2010. The amended complaint (or “complaint”) alleges two causes of action, both under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Count one alleges the defendants were deliberately indifferent to J.M.V.’s serious medical needs, in violation of the Eighth Amendment. Count two alleges the defendants interfered with R.V.’s relationship with J.M.V., in violation of the First and Fourteenth Amendments.
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The plaintiff rests his Eighth Amendment claim upon the assertion that J.M.V. suffered from a serious mental illness during his incarceration at ADX, that defendants exhibited persistent and deliberate indifference to his serious mental illness, and that as a result J.M.V.’s mental illness was not properly treated, which led to his suicide. The complaint alleges that the defendants regularly violate BOP policies and federal regulations by transferring seriously mentally ill inmates to ADX, by placing them in ADX’s Control Unit, and by failing to provide these inmates any mental health care, including psychotropic drugs. The complaint alleges that the consequences are stark: ADX prisoners screamin their cells, mutilate themselves, have delusional conversations, and spread their feces in their cells. According to the complaint, since the time ADX opened, at least five other ADX inmates have committed suicide in addition to J.M.V. The complaint states that ADX began housing BOP prisoners in late 1994.
The complaint details J.M.V.’s history of mental illness. We briefly outline plaintiff’s allegations here. After attacking an associate warden at another facility in March 2003, J.M.V. was transferred to Allenwood United States Penitentiary for nearly two weeks, where he was placed on suicide status, and then transferred to the United States Medical Center for Prisoners in Springfield, Missouri (“MCFP Springfield”) for mental health evaluation and treatment. In April 2004, J.M.V. was transferred to ADX Florence and placed in the Control Unit. In December 2004, an ADX psychologist diagnosed J.M.V. with paranoid schizophrenia. In
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March 2005, he was transferred to MCFP Springfield because of a suicide attempt, and his evaluation there found he had “a history of depression and antisocial personality disorder.” Id. at 21. The complaint alleges that J.M.V.’s year-long stay at MCFP was unusually long when compared to the average length of stay, indicating J.M.V. had a serious mental illness. J.M.V. was transferred back to ADX in 2006, despite BOP’s policy against transferring inmates with serious psychiatric illnesses to ADX. J.M.V. was again placed in the Control Unit, in apparent violation of federal regulations that bar placing inmates with “significant mental disorder[s]” into control units. Id. at 16-17. According to the complaint, this placement also prevented J.M.V. from receiving the mental-health medication he required.
The complaint alleges J.M.V.’s declining mental state was evidenced by his appearance and behavior. He looked “totally shot out,” when he returned to ADX, his behavior changed between 2006 and 2008 from “normal” to a “‘weird,’ ‘bat shit’ crazy man who talked to himself,” and thought people were poisoning him, he experienced “dramatic weight loss” from 2006 and 2008, and he began selfmutilating sometime between 2006 and 2008. Id. at 25-26. In July 2008, J.M.V. filed a pro se complaint in federal district court alleging severe mistreatment by ADX staff. J.M.V.’s complaint contained a host of allegations, including his contentions that he was regularly physically and sexually assaulted by ADX staff, was given poisoned food or food containing human waste, and was given a razor
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blade by ADX staff, who encouraged J.M.V. to kill himself. Attached to J.M.V.’s complaint was documentation of the administrative complaints he had filed regarding these issues. According to the plaintiff, J.M.V.’s pro se complaint shows he was either seriously abused or had an untreated mental illness. J.M.V.’s lawsuit was dismissed on December 15, 2008.
The present complaint contains this description of J.M.V.’s final days. In 2010, J.M.V. had lost 50 pounds and was “largely incoherent.” Id.at 26. In early April, J.M.V. “was in ambulatory restraints for three to four days, yelling and throwing feces.” Id. He screamed on April 20, 2010 that “he was tired of the treatment he was receiving, and was going to do something about it.” Id. On or about April 30, 2010, J.M.V. was again placed into ambulatory restraints, despite being in “obvious psychological distress.” Id. ADX staff did not request mental health care for J.M.V. They “left him in his cell chained hand and feet, and utterly alone.” Id. On May 1, 2010, J.M.V. was found dead in his cell. The coroner’s report determined hanging was the cause of death, and the investigation indicated the injuries J.M.V. sustained were intentional and self-inflicted. The coroner’s report stated the ADX health administrator indicated J.M.V. had a “long psychiatric history.” Id. at 27.
The complaint states that “[a]t certain relevant times Defendant Blake R. Davis was the Warden at ADX Florence,” including the day J.M.V. committed suicide. R. at 8. The complaint’s only other references to Davis state:
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Appellate Case: 13-1268 Document: 01019283231 Date Filed: 07/22/2014 Page: 6
96. As warden of ADX during certain periods relevant to this action, Defendant Davis was responsible for the care and safety of ADX inmates, including Vega.
97. Upon information and belief, during relevant periods Defendant Davis visited the ADX Control Unit and spoke with inmates confined there, and through those interactions and through other means became familiar with events occurring in the Control Unit and the condition of the prisoners confined there.
98. Upon information and belief, Defendant Davis was aware of the discipline imposed on ADX inmates, serious medical issues among the inmates, and other information bearing on the care and well being of inmates under his custody and control, including Vega.
99. Upon information and belief, during relevant periods Defendant Davis had the discretionary authority to authorize the transfer of ADX inmates, including Vega, to medical facilities such as MCFP Springfield, where they could be treated for mental health problems more serious than could effectively be treated at ADX.
100. Upon information and belief, Defendant Davis knew about or was willfully ignorant of Vega’s serious medical needs, his deterioration while confined in the ADX Control Unit, the availability of constitutionally adequate mental health services at BOP medical facilities such as MCFP Springfield, and the means of accessing other mental health services required by Vega. Nevertheless, Defendant Davis failed and refused to make any of those resources and medical services available to Vega.
101. Upon information and belief, Defendant Davis also
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failed to prevent the abuse of Vega by ADX staff, failed to ensure that Vega was adequately fed and safely housed, failed to implement adequate suicide prevention programs at ADX, and otherwise failed to address Vega’s serious, chronic and growing mental illness. As a result, Vega’s mental deterioration continued, and ultimately resulted in his death. Defendant Davis’s failure to discharge their obligations relating to Vega was a legal cause of Vega’s death.
102. Upon information and belief, Defendant Davis engaged in similar misconduct with respect to other ADX inmates, some of whom have injured or killed themselves as a result, and many of whom have suffered unnecessarily and for months or years on end because of the failure of Defendants and other ADX staff members to provide constitutionally required mental health care to inmates whom they knew or should have know [sic] suffered from serious mental illnesses.
Id. at 28-29.
Davis moved to dismiss, noting first of all that he was not warden in 2004-
2008, when many of the events relating to J.M.V.’s history of mental illness
occurred. Davis also argued the complaint failed to show he was personally
involved in any constitutional violation, failed to show he had the requisite state of
mind for an Eighth Amendment violation, and improperly extended Bivens to the
First and Fourteenth Amendments in count two. Davis also argued that he was
entitled to qualified immunity on both claims.
At the hearing on Davis’ motion to dismiss, the district court granted Davis’
motion on count two but denied it on count one. Although the court acknowledged
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that Davis was not warden until 2009 and the complaint did not allege Davis ever personally observed J.M.V., the court concluded that Davis’ position as warden imposed upon him “a responsibility to see to the health and welfare” of the inmates, and “a special responsibility” to those in the Control Unit, making it “hard” for the court to agree it “should dismiss this case because there is no specific allegation of specific knowledge.” Id. at 378. The court stated that the information about “who observed [J.M.V.] day to day and what reports” existed were “what ought to be discovered in this case.” Id.at 379. The court asked if Davis was “required by his position as warden of the institution to look into the conditions” of the ADX inmates. Id. at 380. Davis’ counsel agreed that this was generally true, but stated that if this general responsibility were sufficient to show personal participation in a constitutional violation, wardens could be “sued individually for anything that happens in the institution.” Id. The court asked why the events in April 2010, when J.M.V. was in restraints and self-harming, did not come to Davis’ attention. Defense counsel stated there were no facts indicating Davis was aware of anything that happened before 2009. The court asked, “Doesn’t he have records in front of him?” Id. at 381. Defense counsel agreed he did, but stated there were over 450 inmates at ADX. The court responded, “not all 450 inmates are in the Control Unit, and not everybody in the Control Unit is manifesting mental health conditions as [J.M.V.] did, right?” Id. Defense counsel agreed, but replied “there still are no facts alleged that he actually
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knew of any risk and that he subjectively drew that bad intent,” as required by the Eighth Amendment. Id. The court then denied Davis’ motion to dismiss count one, but the court granted the motion to dismiss count two. Plaintiff does not appeal the dismissal of count two.
II. ANALYSIS A. Does the complaint allege facts showing Davis’ personal participation? Davis’ first argument is that the district court erred in denying qualified immunity because the plaintiff failed to allege facts showing Davis was personally involved in any constitutional violation. We review de novo the legal question of “whether a complaint sufficiently alleges a clearly established violation of law.” Keith v. Koerner, 707 F.3d 1185, 1187 (10th Cir. 2013). This involves considering both (1) whether the plaintiff has pled facts showing a violation of a constitutional right, and (2) whether that right was clearly established when the defendant acted. Id. at 1188. When evaluating a complaint, “all well-pleaded allegations of the complaint are accepted as true,” and although “factual assertions are taken as true, legal conclusions are not.” Berneike v. CitiMortgage, Inc. , 708 F.3d 1141, 1144 (10th Cir. 2013). The complaint must present a plausible claim, which means that the pleaded “factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1144-45 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In a Bivens action, the plaintiff has a private right of action for damages
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against federal officers that violate the plaintiff’s constitutional rights. Iqbal, 556 U.S. at 675. In order to state a Bivensclaim, the plaintiff must show that each defendant violated that constitutional right through his or her “own individual actions,” because “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory ofrespondeat superior.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 676)). The complaint must “make clear exactly who is alleged to have done what to whom, . . . as distinguished from collective allegations.’” Id. (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). It is therefore “incumbent upon a plaintiff to ‘identify specific actions taken by particular defendants’ in order to make out a viable § 1983 or Bivens claim.” Id. at 1226 (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998)).
Before beginning our analysis, we first respond to the plaintiff’s argument that his “unique and profound informational asymmetries” justify denying the motion to dismiss. Appellee’s Br. at 16. Or put another way, the plaintiff’s lack of access to relevant information, when compared to defendant’s access, should not result in the dismissal of his claim. The Supreme Court has already considered, and rejected, this very possibility. Iqbal, 556 U.S. at 678-79 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff
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armed with nothing more than conclusions.”); id. at 686 (“We decline respondent’s invitation to relax the pleading requirements on the ground that the Court of Appeals promises petitioners minimally intrusive discovery. That promise provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity . . . .”). We clearly must reject this argument as well.
Davis argues the district court erred in denying qualified immunity because the complaint fails to plead facts showing Davis’ personal participation. He argues that all pre-2009 incidents should be disregarded because Davis was not warden at that time.1 Further, Davis argues the complaint seeks to hold him liable “solely on the basis of his position as the warden.” Appellant’s Br. at 19. The complaint does not allege Davis “knew or ever interacted with inmate Vega.” Id. at 22. Davis also argues that the complaint provides no facts to support its conclusory allegations that Davis knew about the discipline of ADX inmates, that he knew about serious medical issues among the inmates, or that he knew about or was willfully ignorant of J.M.V.’s medical needs. Davis argues that under Iqbal,
1 The plaintiff does not dispute that Davis was not warden until 2009. After oral argument, Davis submitted supplemental authority, pursuant to Fed. R. App. P. 28(j), stating he served as warden of ADX from July 13, 2009 until April 21, 2012. We judicially notice this fact under the Federal Rules of Evidence, Rule 201. Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219 n.2 (10th Cir. 2011) (noting that under Rule 201, judicial notice may be taken “whether requested or not,” and “at any stage of the proceeding”) (quoting Fed. R. Evid. 201(c), (f)).
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such conclusory statements are not entitled to a presumption of truth. Davis also contends that the complaint fails to meet the standard for supervisory liability set forth in Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010).
Given that Davis was not warden until July 13, 2009, the only way Davis could conceivably be linked to J.M.V.’s suicide is through his neglect in addressing J.M.V.’s untreated mental illness from July 13, 2009 to May 1, 2010, by failing to use his discretionary authority to transfer J.M.V. out of ADX to MCFP Springfield to receive treatment.2 For this claimed neglect to constitute personal participation in the constitutional violation alleged, Davis must also have acted with the requisite mental intent, which is Davis’ second issue on appeal. We thus proceed to address that question.
2 The complaint could also be read to allege that Davis failed to correct the systematic denial of mental health care to Control Unit inmates during his tenure as warden. This kind of allegation would likely fall under Dodds , which requires the plaintiff show: “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” 614 F.3d at 1199 (emphasis added). However, the plaintiff has specifically stated he is not relying on a theory of supervisory liability under Dodds. To the extent the plaintiff seeks to employ a theory of supervisory liability not outlined in Dodds, he has failed to argue how such a theory survives Iqbal. These arguments are thus waived. Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 788 (10th Cir. 2013) (“‘Arguments inadequately briefed in the opening brief are waived.’”) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)).
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B. Did the district court err in denying qualified immunity based on the plaintiff’s failure to allege Davis was deliberately indifferent?
Davis’ second issue on appeal is that he is entitled to qualified immunity because the plaintiff failed to support his allegation that Davis violated J.M.V.’s Eighth Amendment rights. An Eighth Amendment claim based upon inadequate medical attention requires the plaintiff show “deliberate indifference to serious medical needs.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (internal quotation and citation omitted). Davis’ appeal focuses on the second prong of this test, which requires the plaintiff “show that the defendants knew [the plaintiff] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Id. at 1089 (citation omitted). The defendant-official must both “know[] of and disregard[] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harmexists, and he must also draw the inference.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). If the risk was “obvious,” this may be circumstantial evidence of the official’s subjective state of mind, though an obvious risk is not conclusive because “a prison official may show that the obvious escaped him.” Id. (quoting Farmer, 511 U.S. at 842, 843 n.8).
Davis argues the complaint fails to allege facts supporting the plausible inference that Davis “was aware that inmate Vega was at a substantial risk of
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serious harm or that Mr. Davis actually drew such an inference that the risk of harm existed.” Appellant’s Br. at 29. Although the complaint does allege that Davis “knew about or was willfully ignorant of Vega’s serious medical needs,” Davis notes that this allegation is conclusory and not supported by any facts in the complaint. Id. at 30. Davis contends there are no facts showing Davis “knew anything at all about inmate Vega,” including his mental state, lack of treatment, and risk of suicide. Id.
Our first step is to eliminate all “allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. The plaintiff’s conclusory allegations about Davis in paragraphs 97, 98, and 100 are not supported by any facts, and thus not presumed to be true. We also cannot rely on the pre-2009 events. Had Davis been warden when J.M.V. was transferred to ADX, or to the Control Unit at ADX, or when he filed his administrative complaints alleging assaults and poisoned food, we would have at least some basis upon which to draw the inference that Davis knew J.M.V. was at risk due to his untreated mental illness. Although the plaintiff acknowledges that Davis was not warden when these events occurred, he fails to appreciate how this removes these events from our consideration in determining whether Davis was deliberately indifferent. See Appellee’s Br. at 24-25. After removing irrelevant or conclusory allegations, we are left with only three facts that could begin to support an inference of Davis’ knowledge: 1) J.M.V.’s records documenting his mental health
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issues, provided there is an inference Davis would have read them, 2) Davis’ visit to the Control Unit, and 3) the events in April and May 2010.
Our second step is to determine whether these facts are sufficient to allow us “to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, and we conclude that they are not. The mere presence of records, by themselves, does not create the reasonable inference that Davis read them. The plaintiff fails to explain why it is reasonable to infer that a warden would review all of the records of each inmate, or each inmate in the Control Unit, or J.M.V.’s records in particular. And as Davis points out, J.M.V.’s records were “voluminous,” making their review more time-consuming and less likely. Appellant’s Reply Br. at 23. Davis’ one visit to the Control Unit does not advance the plaintiff’s claim because there is no indication that this visit made him aware of J.M.V.’s mental illness or lack of treatment. The events in April and May 2010 also have no tie to Davis, as there are no facts indicating that Davis was informed of J.M.V.’s actions or the ADX staff’s treatment of J.M.V. We agree with Davis that it is not plausible to infer that “a warden is aware of everything that happens to each inmate in his custody.” Id.
In his response brief, the plaintiff essentially argues that the warden could be liable for any suicide by a mentally ill person in the Control Unit because of his knowledge that there were mentally ill people in the Control Unit that were not receiving mental health services. However, the complaint’s only non-conclusory
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fact supporting the inference that Davis knew about the lack of treatment in the Control Unit was his single visit there. Although it is certainlypossible that on his tour he witnessed enough in the Control Unit to make it obvious that there was a systematic denial of mental health care, we conclude from our “judicial experience and common sense” that a single visit does not “plausibly suggest” that Davis knew enough to be deliberately indifferent to Control Unit inmates. See Iqbal, 556 U.S. at 679, 680.
This lack of factual support distinguishes this case fromKeith, 707 F.3d at 1189, and Smith v. United States, 561 F.3d 1090, 1093-94 (10th Cir. 2009). In Keith, a government report noted several prior instances of sexual misconduct, inconsistent administrative responses to allegations of sexual misconduct, and failures at the policy level that created the opportunity for sexual misconduct. 707 F.3d at 1189. These facts together supported the plausible inference of deliberate indifference by the warden, who had served in that position “over a period of years” during which the prior instances of sexual misconduct occurred. Id. at 1188, 1189. Similarly, in Smith there were facts indicating that the warden knew about a report that documented the presence of asbestos in the prison. 561 F.3d at 1094, 1105. Davis’ single visit of unknown duration to the Control Unit pales in comparison to the facts in Keith and Smith.3
3 See Keith, 707 F.3d at 1188-89 (“[The warden] characterizes Ms. Keith’s argument as: because [the warden] had the responsibility for managing the facility
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Certainly, there is much in this complaint that, if true, is deeply concerning. However, we are counseled by Iqbal to remember that “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” 556 U.S. at 677. The fact that allegations in this complaint, if true, expose significant shortcomings in the treatment of mentally-ill prisoners at ADX cannot negate that requirement.
We REVERSE the district court’s order denying Davis’ motion to dismiss count one and REMAND with direction to grant Davis’ motion to dismiss count one.
Entered for the Court
Mary Beck Briscoe Chief Judge
3(...continued) and imposing discipline, and did in fact discipline employees for undue familiarity and sexual misconduct,” the warden “must have been aware” of an employee’s intent to engage in illegal sexual acts with the plaintiff, an inm ate of the prison. “Of course, that alone would be insufficient to withstand a m otion to dismiss. But there is more.” (internal citation omitted)).
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Appellate Case: 13-1268 Document: 01019283244 Date Filed: 07/22/2014 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
July 22, 2014

Chris Wolpert Chief Deputy Clerk

Ms. Amy Lenore Padden Office of the United States Attorney District of Colorado 1225 17th Street, Suite 700 Denver, CO 80202
RE: 13-1268, Vega v. Davis Dist/Ag docket: 1:12-CV-01144-RPM
Dear Counsel:
Enclosed is a copy of the order and judgment issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R.35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

Elisabeth A. Shumaker Clerk of the Court

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cc: Edwin Packard Aro Maurice Abraham Leiter Christopher Scott Morrow Robert Paul Taylor
EAS/sds
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-01144-RPM RAYMOND VEGA, Personally and as Personal Representative of the Estate of Jose Martin Vega, deceased, Plaintiff, vs. BLAKE R. DAVIS, and certain additional unknown agents of the United States Bureau of Prisons, Defendants.
SECOND AMENDED COMPLAINT AND JURY DEMAND
Plaintiff Raymond Vega, personally and as Personal Representative of the Estate of Jose Martin Vega, deceased, (“Plaintiff”) complains as follows against Defendants Blake R. Davis and certain additional unknown agents of the United States Bureau of Prisons (sometimes collectively “Defendants”).
NATURE OF THE ACTION 1. This is a Bivens action for damages based on the abuse and wrongful death of Jose Martin Vega, who at the time of his death in May 2010 was an inmate at the United States Penitentiary - Administrative Maximum, in Florence, Colorado (“ADX” or “ADX Florence”). As alleged below, Vega suffered from serious mental illnesses during his incarceration at ADX, to which Defendants exhibited persistent and deliberate indifference, and that as a result were not properly treated, as constitutionally required. Vega died in an incident determined by the

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Fremont County, Colorado, coroner to have been a suicide. Vega’s death was preventable, and was the result of Defendants’ actions and failures to act, all in violation of the rights guaranteed by the United States Constitution.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331(a). 3. Venue is proper in the District of Colorado under 28 U.S.C. § 1391(b) because a substantial part of the acts or omissions that give rise to Plaintiff’s claims occurred in the District of Colorado.
PARTIES 4. Plaintiff Raymond Vega is the brother of Jose Martin Vega (“Vega”). Raymond Vega is a resident of New York. His address is 5510 58th Street, Apt 2b, Corona, New York, 11368. 5. Defendant Blake R. Davis was the Warden at ADX Florence from July 13, 2009April 21, 2012. As Warden of ADX Florence, Mr. Davis maintained physical custody of Vega while he was housed at ADX Florence, including on May 1, 2010, the date of Vega’s death. 6. Defendants also include certain additional unknown agents of the United States Bureau of Prisons (“BOP”) whose acts and omissions, upon information and belief, caused or contributed to Vega’s suffering and death. The names and titles of these individuals, and their specific acts and omissions, are unknown to Plaintiff at this time, but will be included in amended pleadings as and when additional information become available to Plaintiff.
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ALLEGATIONS ADX
7. ADX is the most secure federal penitentiary in the United States. Staff at ADX often refer to it as the “Alcatraz of the Rockies.” ADX was built to house prisoners whom the BOP claims present the greatest threats to the correctional staff or to other prisoners. The allegations set forth below in paragraphs 8 through 11 describe both current conditions at ADX and conditions at ADX during all other times relevant to this action.
8. ADX currently houses approximately 450 men. Upon information and belief, ADX housed a comparable number of men at the time of Vega’s death. At any given time, these prisoners are housed at ADX in nine different maximum-security housing units, which are divided into six security levels: the Control Unit; the disciplinary Special Housing Unit (“SHU”); so-called “Range 13,” an ultra secure and isolated four-cell wing of the SHU in which the BOP houses prisoners it thinks require confinement with virtually no human contact; four so-called “General Population” Units (“Delta,” “Echo,” “Fox,” and “Golf” Units), the Special Security Unit (“H” Unit); and two units (“Joker” Unit and “Kilo” Unit) that in recent years have been used as transitional housing units for prisoners who have entered the so-called “Step-Down Program,” in which they can earn their way out of ADX and into a lower security classification.
9. Depending on which unit they are in, prisoners spend at least 20, and as many as 24, hours per day locked alone in their cells. The cells measure approximately 12 feet by 7 feet, and have solid walls that prevent prisoners from viewing the interiors of adjacent cells or having direct contact with prisoners in adjacent cells. All ADX cells have solid steel doors with a small closable slot. Cells in all units other than H, Joker, and Kilo units also have an interior barred
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wall with a sliding door, which together with the exterior door forms a sally port in each cell. Each cell is furnished with a concrete bed, desk, and stool, and a stainless steel combination sink and toilet. Cells in all units other than H, Joker, and Kilo units include a shower with an automatic shut-off valve. The beds are usually dressed with a thin mattress and blankets over the concrete. Each cell contains a single window, approximately 42 inches tall and 4 inches wide, which allows entry of some natural light but which is designed to ensure that prisoners cannot see anything outside of their cells other than the building and sky. Many cells, except those in the SHU, are equipped with a radio and television that offers religious and educational programming, along with some general interest and recreational programming. Televisions often are withheld from prisoners as punishment. Meals are delivered three times a day. With few exceptions, prisoners in most ADX units are allowed out of their cells only for limited social or legal visits, some forms of medical treatment, visits to the “law library” (essentially a cell with a specialized computer terminal that provides access to a limited range of federal legal materials) and a few hours a week of indoor or outdoor recreation.
10. With the possible exception of four-cell Range 13, the Control Unit is the most secure and isolated unit currently in use at ADX. Prisoners in the Control Unit are isolated from the other prisoners at all times, even during recreation, for extended terms often lasting six years or more. Their only meaningful contact with other humans is with ADX staff members. The compliance of Control Unit prisoners with institutional rules is assessed monthly; a prisoner is given “credit” for serving a month of his Control Unit time only if he maintains clear conduct for the entire month. As detailed below, at the times relevant to this action, Defendants provided no psychotropic medications and no meaningful mental health care to Control Unit prisoners.
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Given their complete lack of access to mental health care, at the times relevant to this action seriously mentally ill prisoners confined in the Control Unit frequently had behavioral issues caused by their mental illness. Such conduct often resulted in the loss of credit for Control Unit time served, thus extending the prisoner’s time in the extreme isolation of the Control Unit, sometimes for years.
11. Defendants make a determined and calculated effort to dominate the prisoners at ADX through the use of disciplinary techniques that include the use of extended periods of solitary confinement in the Control Unit and threats of punitive measures such as the withholding of privileges (e.g., access to a television set, access to the in-house “commissary” where inmates can purchase food and other items, access to the telephone, prompt delivery of inbound mail, etc.). In addition, physical abuse of unruly or even assertive prisoners by the correctional staff at ADX is routinely used to create fear and demonstrate the dominance of the correctional staff. ADX programs are designed based upon a punishment philosophy rather than a control philosophy. The behavior of mentally ill prisoners, in particular, deteriorates very rapidly when they are placed into programs designed to punish rather than to control unacceptable behaviors.
The Imprisonment of the Mentally Ill 12. Correctional officials and mental health professionals have known for more than 200 years that extended periods of confinement in isolation can be psychologically damaging, and can be particularly harmful to individuals with pre-existing mental illness. Beginning in 1790, when sixteen isolation cells were constructed at Philadelphia’s Walnut Street Jail, correctional officials and mental health professionals have regularly studied and acknowledged the dangers of prolonged confinement in isolation. It is well understood that extreme isolation
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for even a few weeks can result in psychosis, social withdrawal, insomnia, depression, hallucinations, rage, aggression, self-mutilation, and contemplation of suicide.
13. In early America, confinement in isolation was viewed as a more humane alternative to corporal punishment; its proponents thought it would inspire “penitence” through self-reflection. In 1829, Eastern State Penitentiary in Philadelphia opened, employing the “Pennsylvania model” of almost complete isolation. This model sought to prohibit all contact between prisoners, utilizing cells with individual exercise yards and solid doors that were primitive versions of those now inhabited at ADX.
14. The detrimental effects of extreme isolation under the Pennsylvania model soon became apparent. For example, following his 1842 visit to Eastern State Penitentiary, Charles Dickens expressed concern about the facility and the extreme isolation of its prisoners, noting that “this slow and daily tampering with the mysteries of the brain [was] immeasurably worse than any torture of the body.” America’s first experiment with extended confinement in isolation was declared by contemporary observers such as Alexander de Tocqueville as “fatal” for most prisoners because “[i]t devours the victim incessantly and unmercifully,” did not successfully reform prisoners, and caused “[t]he unfortunate creatures submitted to this experiment [to] wast[e] away.”
15. Because of its adverse effects on prisoners, the Pennsylvania model was quickly abandoned by many states during the nineteenth century. In 1890, one hundred years after the first isolation cells were constructed at the Walnut Street Jail, the Supreme Court concluded:
[E]xperience demonstrated that there were serious objections to [extended confinement in isolation]. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them,
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and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system. In re Medley, 134 U.S. 160, 168 (1890). 16. In 1913, Eastern State Penitentiary at long last abandoned its system of complete isolation and allowed prisoners at least some regular human interaction. Shortly thereafter, in Commonwealth ex rel. Elliott v. Francies, 58 Pa. Super. 270 (Pa. Super. Ct. 1914), a Pennsylvania court ordered that individuals who had been incarcerated at Eastern State Penitentiary in error were to be “absolutely” rather than “conditionally” discharged before the end of their sentences due to the severity of the punishment and based upon “just and humane principles.” In 1933, the warden at Eastern State Penitentiary called for the facility’s closure, noting that the system utilized at Eastern State could not effectively reform the prisoners incarcerated there. 17. The anecdotal observations of the past have been confirmed by modern science. For example, as early as the 1960s electroencephalography (“EEG”) examinations demonstrated the slowing of brain waves of prisoners confined in isolation for longer than a week. A landmark study in the 1970s showed that subjects in solitary confinement often experienced impaired functioning of the brain waves associated with the ability to control emotions and key cognitive functions. Similarly, a 2011 study demonstrated that after only a week of solitary confinement, prisoners showed decreased EEG activity, indicative of increased stress, anxiety, and depression. 18. As early as the 1960s, electroencephalography (“EEG”) examinations demonstrated the slowing of brain waves of prisoners confined in isolation for longer than a
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week. 19. A landmark study in the 1970s showed that subjects in solitary confinement often experienced impaired functioning of the brain waves associated with the ability to control emotions and key cognitive functions. 20. Similarly, a 2011 study demonstrated that after only a week of solitary confinement, prisoners showed decreased EEG activity, indicative of increased stress, anxiety, and depression. 21. The BOP has known since at least 1999 that extended periods of confinement in isolation can be psychologically damaging to any prisoner and can be particularly harmful to individuals with pre-existing mental illness. Specifically, a 1999 study conducted under the auspices of the DOJ and the National Institute of Corrections concluded:
Insofar as possible, mentally ill inmates should be excluded from extended control facilities. Each inmate being considered for such a facility should have a mental health evaluation. Although some mentally ill offenders are assaultive and require control measures, much of the regime common to extended control facilities may be unnecessary, and even counterproductive, for this population. 22. In May 2013, the United States Government Accountability Office (“GAO”) issued a detailed report entitled “Bureau Of Prisons: Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing.” That report includes many troubling findings concerning the BOP’s operation of ADX, including one making clear that the BOP’s publication of policies does not even begin to address the problems at which the policies are aimed, because the BOP does not monitor compliance with its policies at ADX: While BOP has a mechanism to centrally monitor many of its segregated housing unit policies, BOP does not centrally monitor the policies specific to its most restrictive segregated prison, the
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ADX facility. As a result, BOP has less assurance that ADX staff consistently follows ADX-specific policies to the same degree that these requirements are followed for [Special Housing Units] and [Special Management Units]. 23. The GAO also found: While most BOP officials told us there was little or no clear evidence of mental health impacts from long-term segregation, BOP’s Psychology Services Manual explicitly acknowledges the potential mental health risks of inmates placed in long-term segregation. Specifically, it states that BOP “recognizes that extended periods of confinement in Administrative Detention or Disciplinary Segregation Status may have an adverse effect on the overall mental status of some individuals.” 24. Following a June 2012 oversight hearing in the United States Senate during which the Director of the BOP admitted that the BOP has never evaluated the impact of solitary confinement on prisoners, the BOP commissioned an independent study on that issue. The study culminated with a 242 page report issued in December 2014. Among many other BOP failings, that report detailed, as follows, the mismanagement of mental illness in segregation units such as ADX: (a) A large number of prisoners in solitary confinement need mental health treatment, but are not receiving it; (b) No protocol exists to identify prisoners with mental illness who should be kept out of solitary confinement; (c) Inmates often receive a mental health diagnosis by medical students or interns who are not trained in psychiatry, and once diagnosed, they rarely receive follow-up reassessments or proper medication; (d) No reentry programs or means of tracking for prisoners coming out of segregation exist.
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25. The BOP has housed prisoners at ADX since late 1994. Upon information and belief, the forced solitude of the Control Unit has remained more or less unchanged since shortly after ADX opened. In the 21 years since ADX opened, the BOP has never commissioned or conducted a study of the effects of the conditions of confinement at ADX in general or the Control Unit in particular on prisoners’ mental health. Indeed, the ADX psychology department does not even maintain reference works on such effects, or any other materials that would educate prisoners about how to avoid the catastrophic psychological effects often caused by extended confinement in isolation.
26. Despite the foregoing and mountains of anecdotal and empirical data confirming the impact on mental health of extended isolated confinement, the BOP still assigns to ADX prisoners who suffer from serious mental illnesses, and still fails to maintain an adequate program to diagnose and treat the serious mental illnesses created and exacerbated by the conditions of confinement there.
ADX Florence and Its Treatment of the Mentally Ill 27. The BOP, a division of the United States Department of Justice, is charged with establishing policies and regulations for all U.S. penitentiaries and other types of prison facilities that are safe, humane, and secure. 28. The BOP’s written procedures for transferring prisoners to ADX state that prisoners “currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at . . . ADX.” BOP Program Statement 5100.08, “Prisoner Security Designation and Custody Clarification,” Chapter 7, p.18. This prohibition is widely ignored by Defendants.
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29. In reality, and at the times relevant to this action, the BOP regularly assigns prisoners to ADX even though they have well-documented histories of serious mental illnesses, and in many cases histories showing that their mental illnesses can be controlled with proper treatment.
30. BOP policies also require that all prisoners are to be given psychiatric screening upon arrival at ADX. For example, at the relevant times, BOP policies required the prison staff to “ensure that assessment and treatment planning procedures exist to identify all prisoners entering the institution with either a recent history or current symptoms of significant mental illnesses and/or risk of suicide.” BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” p. 4. During the intake screening, prisoners with any of the following were to be referred immediately to the Mental Health Program Coordinator for a more thorough assessment:
 Recent history or current symptoms of significant mental illness;  Signs or symptoms consistent with a possible mental disorder;  Use of medication for treatment of a mental illness or disorder;  Documented mental health designation;  Risk of suicide. Id.; BOP Program Statement 6340.04, “Psychiatric Services,” § 9(a). 31. In reality, and at the times relevant to this action, incoming prisoners at ADX generally are given only perfunctory interviews that are wholly inadequate as a form of screening or diagnosis. The mental health “screening” provided by the facility typically consists of a few questions asked in a minute or two, often at a time when the prisoner has just completed a
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lengthy cross-country trip while tightly chained, and is apprehensive about his arrival at ADX. Follow-up monitoring and screening is virtually nonexistent. Even when the BOP does carry out the psychological or psychiatric screening of a new arrival, it often ignores key factors indicating mental illness, such as, for example, the fact that the prisoner was taking medication for a serious mental illness immediately before arriving at ADX.
32. Even where prisoners at ADX are properly identified as having a serious mental illness, many are not given appropriate treatment, including either counseling or medication. If a prisoner is referred to the mental health Program Coordinator, BOP policies require adherence to the BOP’s minimum criteria for follow up assessment and treatment planning. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” p. 4. The Program Coordinator is required to complete a screening report on all referred prisoners, and to forward the prisoner’s mental health information to relevant members of the prison staff. Id. at 5. If the prisoner has extensive treatment needs, the Program Coordinator must schedule additional sessions and establish a treatment plan. Id.
33. In reality, and at the times relevant to this action, Defendants routinely ignore these requirements by, among other things, rarely establishing meaningful treatment plans even for prisoners who are chronically and obviously seriously mentally ill, and failing even to establish at ADX a mechanism for delivering elementary mental health services, such as private counseling, which would be a necessary element of any meaningful treatment plan for most of the seriously mentally ill prisoners at ADX.
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34. Because of the particularly severe conditions of confinement in the ADX Control Unit, federal regulations require the BOP to adhere to an especially detailed set of mental health standards, including:
The Warden may not refer an inmate for placement in a control unit… [i]f the inmate shows evidence of significant mental disorder or major physical disabilities as documented in a mental health evaluation or a physical examination. 28 CFR §541.41(c)(1). Mental health services. During the first 30-day period in a control unit, staff shall schedule the control unit prisoner for a psychological evaluation conducted by a psychologist. Additional individual evaluations shall occur every 30 days. The psychologist shall perform and/or supervise needed psychological services. Psychiatric services will be provided when necessary. Prisoners requiring prescribed psychotropic medication are not ordinarily housed in a control unit. 28 C.F.R. §541.46(i). 35. In reality, and at the times relevant to this action, Defendants regularly placed incoming prisoners with an existing prescription for psychotropic medication in the Control Unit, where the BOP refused to administer such medication in violation of section 541.46(i). The BOP justified this in Orwellian fashion: it discontinued the prisoner’s medication, thereby making the now non-medicated prisoner “eligible” for placement in the Control Unit. Then, when this newly “eligible” prisoner requested medication needed to treat his serious mental illness, he was told that BOP policy prohibited the administration of psychotropic medication to him so he should develop “coping skills” as a substitute for the medication being withheld. Instructing a prisoner confined in long-term segregation and who has schizophrenia or a bipolar illness to self-treat his disease with coping skills is like demanding that a diabetic prisoner learn to “cope” without insulin. Likewise, the required 30 day “individual evaluations” were in actuality rarely performed on inmates in the Control Unit.
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36. At the times relevant to this action, BOP policies required that mentally ill prisoners be monitored on an ongoing basis to assess treatment compliance. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Prisoners,” p. 5. For certain prisoners, including those receiving psychotropic medication and those segregated for mental health reasons, mental health staff were required to, at a minimum, conduct a monthly interview to assess the prisoner’s treatment strategy. Id.
37. In reality, and at the times relevant to this action, ADX staff routinely ignore this written monitoring requirement. Some prisoners never leave their cells or speak with staff for months. Many such prisoners live for extended periods in squalor, in cells caked with their own feces and bodily fluids, without bathing, and in some cases without even getting out of bed. Any meaningful “monitoring” would identify and trigger intervention for such prisoners, but rarely, if ever, does ADX staff seek to remedy the fetid and unsafe living conditions of many of the mentally ill people in their custody.
38. BOP does not provide adequate mental health staffing at ADX Florence, given the size of the mental health caseload at that facility. At the relevant time, upon information and belief, only two mental health professionals -- both psychologists -- were responsible for the mental health of the approximately 450 inmates housed at ADX, assisted very occasionally by a psychiatrist. As a result of inadequate staffing by mental health professionals, ADX inmates, including Vega, did not have timely access to mental health professionals, particularly in times of crisis.
39. The BOP’s deliberate indifference to the proper diagnosis and treatment of ADX
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prisoners with serious mental illnesses has resulted in horrible consequences. Many prisoners at ADX interminably wail, scream, and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass, sharpened chicken bones, writing utensils, and whatever other objects they can obtain. A number swallow razor blades, nail clippers, parts of radios and televisions, broken glass, and other dangerous objects. Others carry on delusional conversations with voices they hear in their heads, oblivious to reality and to the danger that such behavior might pose to themselves and anyone who interacts with them. Still others spread feces and other human waste and body fluids throughout their cells, throw it at the correctional staff and otherwise create health hazards at ADX. Suicide attempts are common. For example, in addition to Vega, at least five inmates have committed suicide since ADX opened.
40. For all of these reasons, and as further described below, Defendants failed to screen, monitor and treat Vega’s mental illnesses, first diagnosed in 2004. Instead, Defendants placed Vega in ADX Florence’s Control Unit, deprived him of necessary psychiatric medications or any meaningful mental health treatment, and otherwise abused him mentally and physically over a period of years. These actions had devastating consequences.
Background on Jose Martin Vega 41. Vega was born on August 20, 1974 in Brooklyn, New York. 42. In 1983, Vega’s mother, Gloria Carattini, died as a result of a cerebral aneurism. After her death, Vega was raised by his siblings. 43. In 1989, at the age of 15, Vega dropped out of high school. He was later sent to live in a juvenile home in the Bronx.
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44. In 1995, at the age of 21, Vega was sentenced to life in prison and committed to the custody of the BOP.
The Year Preceding Vega’s Transfer to ADX 45. Vega was originally confined at Lewisburg United States Penitentiary (“USP Lewisburg”). 46. Upon information and belief, on March 14, 2003, Vega assaulted an associate warden at USP Lewisburg. As a result Vega was immediately subdued by prison staff and placed in ambulatory restraints. He was then injected with an unknown substance which temporarily left him physically and mentally incapacitated. Vega was then stripped naked and assaulted by prison staff for a duration of at least an hour. Vega sustained a broken rib, body and head contusions, and loss of hearing in his left ear as a result of the assault by prison staff. 47. On the same day, March 14, 2003, Vega was transferred from USP Lewisburg to Allenwood United States Penitentiary (“USP Allenwood”), where he was immediately placed on suicide status. 48. On March 18, 2003, John R. Mitchell, BOP Psychologist, classified Vega as a high suicide risk and ordered that Vega remain on suicide watch pending a psychiatric referral to the United States Medical Center for Prisoners in Springfield, Missouri (“MCFP Springfield”). 49. On March 25, 2003, Vega was transferred from USP Allenwood to MCFP Springfield, for mental health evaluation and treatment. 50. At some time before July of 2003, Vega was transferred from MCFP Springfield back to USP Allenwood.
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ADX Florence and Its Treatment of Jose Martin Vega 51. On April 5, 2004, Vega was transferred from USP Allenwood to ADX Florence, where Defendants placed him in the Control Unit. 52. In December of 2004, upon information and belief, psychologist Marie Bailey of ADX diagnosed Vega as suffering from paranoid schizophrenia. 53. On February 28, 2005, psychologist Marie Bailey of ADX wrote that Vega was previously diagnosed with Major Depressive Disorder and “willingly remained on [Celexa and hydroxyzine] until February 2004, in fact, records indicate he wished to remain on the medication but it was apparently discontinued in February 2004, which was less than two months prior to his arrival at the Control Unit.” Dr. Bailey also noted that “[s]ince his arrival at ADX in April 2004, [Vega] has presented with rather odd behavior and has evidenced increasing paranoia . . . . Given this inmate’s psychiatric history, his removal from medication shortly before his transfer to the Control Unit, his increasingly paranoid behavior,” an “emergency transfer to USMCFP Springfield is being requested for diagnostic clarification and possible treatment.” 54. On March 9, 2005, Vega was referred to MCFP Springfield. 55. Upon information and belief, the precipitating cause of this transfer was a suicide attempt by Vega, to which ADX staff responded by filling his cell with noxious gas and sending a body-armor clad team of correctional officers into his cell to subdue him. 56. At MCFP Springfield, Vega underwent a mental health evaluation. This evaluation revealed that Vega had “a history of depression and antisocial personality disorder.”
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57. Vega remained at MCFP Springfield for approximately four months. Upon information and belief, ADX inmates referred to MCFP Springfield for mental health evaluation or treatment rarely remain there for more than one month. A stay of four months at MCFP Springfield suggests that the BOP recognized that Vega suffered from a serious mental illness requiring extended and extensive mental health evaluation and treatment.
58. On July 7, 2005, the BOP transferred Vega back to ADX Florence. This transfer violated BOP’s written procedures which state that “inmates currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at . . . ADX.” BOP Program Statement 5100.08, “Inmate Security Designation and Custody Clarification,” Chapter 7, p. 18.
59. Upon Vega’s return to ADX Florence, as noted above, Defendants were required to send him to the Mental Health Program Coordinator for a thorough assessment of his mental health. BOP Program Statement 6340.04, “Psychiatric Services,” § 9(a). As further noted above, the Mental Health Program Coordinator was to complete a screening report and forward the information to relevant members of the ADX Florence prison staff. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Inmates,” p. 5. Had this screening been performed properly, such a review would have shown that Vega had treatment needs. Accordingly, the Mental Health Program Coordinator would have been required to schedule additional sessions, establish a treatment plan, and monitor Vega on an ongoing basis to asses treatment compliance. Upon information and belief, this was not done. Instead, Dr. Bailey wrote on an intake screening form that Vega “is currently not taking medication and has been
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placed back in the Control Unit,” despite her assertion that at “the time of the intake interview,” it was her belief that Vega “remains psychotic (delusional).”
60. Upon Vega’s return to ADX Florence, Defendants placed him back in the Control Unit, where the conditions ensured the deterioration of his mental health.
61. Vega’s return to the Control Unit at ADX Florence meant he was unable to receive medication to treat or ameliorate the effects of his mental illness.
62. Indeed, by February 2006, Dr. Bailey wrote that Vega was becoming “significantly more agitated and paranoid,” and that “[p]sychology staff believe this inmate is becoming increasingly more paranoid, delusional, and is probably hallucinating.”
63. On March 7, 2006, Vega was transferred back to MCFP Springfield for mental health treatment.
64. On May 9, 2006, Dr. Bailey wrote to MCFP Springfield psychiatrist Dr. James Wolfson that it was her “opinion that inmate Vega’s actions” while at ADX were “the result of mental disease, and his psychotic symptoms impaired his perception of reality[.]” Vega remained at Springfield for almost 18 months, again suggesting that BOP mental health professionals recognized the severity of his mental illness.
65. In November 2006, the BOP transferred Vega back to ADX Florence for the last time.
66. Upon Vega’s return to ADX Florence, as noted above, Defendants were required to send him to the Mental Health Program Coordinator for a thorough assessment of his mental health. BOP Program Statement 6340.04, “Psychiatric Services,” § 9(a). As further noted above, the Mental Health Program Coordinator was to complete a screening report and forward
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the information to relevant members of the ADX Florence prison staff. BOP Program Statement 5310.13, “Institution Management of Mentally Ill Inmates,” p. 5. Such a review would have shown that Vega had treatment needs. Accordingly, the Mental Health Program Coordinator would have been required to schedule additional sessions, establish a treatment plan, and monitor Vega on an ongoing basis to asses treatment compliance. Based on a review of records recently produced by the BOP in response to Plaintiff’s FOIA request for all records relating to Vega -which was incomplete including because, among other things, the BOP admits that it withheld some documents as unreleasable -- nothing indicates that a thorough assessment of Vega’s mental health was conducted when he returned to ADX.
67. Defendants’ apparent failure to conduct a thorough assessment of Vega’s health upon his return to ADX was not only in violation of the BOP policies outlined above, but it contributed to Vega’s demise.
68. In fact, upon Vega’s return to ADX, Defendants again placed him back in the Control Unit, the most restrictive unit at ADX, where Vega remained isolated from other prisoners at all times, and where his only meaningful contact with other humans was with ADX Florence staff members.
69. Vega’s return to the Control Unit at ADX Florence also meant he was unable to receive medication to treat or ameliorate the effects of his mental illness.
70. Inevitably, Vega’s mental health rapidly deteriorated. For example, by April 2007, Vega was throwing feces on officers at ADX and was subsequently placed in ambulatory restraints for ten days, an extraordinary amount of time. Ambulatory restraints are an extreme measure of punishment that involve tightly shackling an inmate’s legs, cuffing his hands and
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attaching the cuffs to a chain around his torso. Ambulatory restraints are a form of discipline so severe, BOP policies (discussed further below) mandate that, when using these restraints, staff are to submit reviews to the Warden every fifteen minutes to assess the continued need for restraint. Moreover, the Warden is required to notify the Regional Director or Regional Duty Officer whenever a prisoner is placed in ambulatory restraints for more than eight hours. Here, Defendants kept Vega physically restrained for ten days.
Jose Martin Vega’s Allegations of Abuse 71. In July 2008 Vega filed a complaint in this Court alleging serious mistreatment by ADX staff. The complaint, as amended, is attached hereto as Exhibit A. 72. The complaint contains detailed allegations regarding the mental and physical abuse Vega suffered while in the Control Unit at ADX Florence. 73. As alleged in the complaint, and upon information and belief, ADX Florence staff repeatedly drugged Vega by narcotics or anesthetized him by injection against his will. 74. As alleged in the complaint, and upon information and belief, shortly after Vega’s arrival at the ADX Florence Control Unit, ADX Florence staff began physically assaulting him. 75. As alleged in the complaint, and upon information and belief, shortly after Vega’s arrival at the ADX Florence Control Unit, ADX Florence staff began sexually assaulting him. 76. Upon information and belief, these physical and sexual assaults continued until his death. 77. As alleged in the complaint, and upon information and belief, the staff at ADX Florence spread rumors that Vega was a child killer, a child molester, and an informant.
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78. As alleged in the complaint, and upon information and belief, the prison staff at ADX Florence served Vega food tainted with human waste.
79. As alleged in the complaint, and upon information and belief, the prison staff at ADX Florence subjected Vega to arbitrary cell “shake downs.”
80. As alleged in the complaint, and upon information and belief, the prison staff at ADX were provoking Vega to commit disciplinary infractions.
81. As alleged in the complaint, and upon information and belief, ADX staff members repeatedly chained Vega unnecessarily, sometimes for periods of ten days or more.
82. Upon information and belief, Vega told other prisoners that he believed the ADX Florence guards were poisoning his food and spraying things into his vents.
83. As alleged in the complaint, and upon information and belief, in December of 2006, Vega believed, and alleged, that he was given an extra razor in his cell and encouraged by several members of the prison staff to commit suicide.
84. As alleged in the complaint, and upon information and belief, between February and March of 2007, Vega was moved to a cell that contained a razor blade, and that a prison official commented that Vega would “get another chance,” presumably to use the razor on himself.
85. As alleged in the complaint, and upon information and belief, Vega’s incoming and outgoing mail had been deliberately withheld by ADX Florence staff
86. As alleged in the complaint, and upon information and belief, Vega was served food that contained pencil lead, graphite, or mace.
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87. As alleged in the complaint, and upon information and belief, Vega was informed by an ADX Florence health services employee that his food was being contaminated by the feces of other inmates.
88. As alleged in the complaint, and upon information and belief, in December of 2008, Vega’s access to communications with his loved ones had become limited due to his disciplinary segregation.
89. As alleged in the complaint, and upon information and belief, Vega’s visiting requests were denied by the Defendants.
90. As alleged in the complaint, and upon information and belief, ADX Florence staff intentionally interfered with the familial association between Vega and his relatives, intending to deprive them of their relationship with Vega.
91. The complaint reveals Vega reported the actions of ADX Florence staff described in paragraphs 52 to 71 to Defendants.
92. The complaint shows Defendants took no action in response to Vega’s complaints.
93. The complaint filed by Vega documents either serious abuse by ADX Florence staff or manifests serious delusions that were caused by mental illness and remained untreated because of Vega’s confinement in the ADX Florence Control Unit and the deliberate indifference of Defendants and others to Vega’s serious medical needs.
94. Vega’s civil action remained pending in this court until its dismissal by Judge Weinshienk on December 15, 2008. During its pendency, Vega filed and served a number of pleadings and letters detailing further abuses by ADX staff, including a September 4, 2008
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“Motion Apprising Court of Defendants [sic] Actions Obstructing [sic] Access to Courts by Acts of Retaliation.” Among other things, those submissions accuse ADX staff members of tainting Vega’s food, failing to feed him, interfering with his sleep, harassing him, spreading rumors about him, drugging him and violating “his right to bodily integrity.” Like Vega’s complaint and December 2008 Amended Complaint, these allegations reflect either serious misconduct by ADX staff or the wild delusions of a severely mentally ill man. Either such misconduct or such delusions cry out for an investigation. Upon information and belief, however, neither Defendants nor anyone else at ADX conducted any investigation or inquiry into Vega’s claims. Rather, Defendants and other ADX staff members allowed Vega to continue to deteriorate, much of the time wallowing in his own waste.
95. Upon information and belief, the behavior claimed by the BOP to justify the abuse alleged in the complaint and Vega’s other filings was a product of Vega’s untreated mental illness, and thus was not within his control. That is, BOP agents caused Vega’s conduct by failing to treat his obvious and serious mental illness, and then punished him severely for acting as he predictably did.
Jose Martin Vega’s Deteriorating Mental Health 96. Upon information and belief, upon his final return to ADX Florence from MCFP Springfield, Vega had grown a beard down to his waist. 97. Upon information and belief, upon his final return to ADX Florence, Vega’s fellow inmates did not recognize him and described him as appearing “totally shot out.” 98. Upon information and belief, between 2006 and 2010, following his final return from MCFP Springfield, Vega spiraled “downhill” from a “normal” guy who wrote poems for
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his fellow inmates and helped them with their legal work, to an isolated, “weird,” “bat shit” crazy man who talked to himself and grew increasingly concerned about people spraying poison gas into his cell and poisoning his food.
99. Upon information and belief, Vega weighed at least 200 pounds when he arrived at ADX in 2004. Upon information and belief, between 2006 and 2010 Vega experienced dramatic weight loss.
100. Upon information and belief, between 2006 and 2010, Vega began mutilating himself.
Defendant Davis’s Knowledge of or Deliberate Indifference to Vega’s Serious Mental Needs 101. As noted above, Vega died on May 1, 2010. Defendant Blake R. Davis was the
Warden at ADX Florence from July 13, 2009-April 21, 2012. Thus, the period of time during which Davis was Warden overlapped with the period of time when Vega was assaulting staff and he had deteriorated and continued to deteriorate both physically and mentally in an obvious fashion.
102. According to the Transcript of Record in United States v. Richardson, No. 1:08CR-139-CC (D. Ga. Apr. 18-19, 2012) (Ex. B, attached hereto), Vega was well-known at ADX Florence for having committed most of the assaults on staff members from 2008-2010. While referring to a graph on assaults on staff members by inmates at ADX Florence, Thomas J. Reidy, Ph.D., testified that Vega’s “typical MO seems to be either spitting or throwing urine and feces.” Tr. at 76-77.
103. As Warden, Defendant Davis was responsible for knowing who was located in the Control Unit, which housed a relatively small number of prisoners compared with the overall
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population at ADX Florence.1 As described in more detail below, Warden Davis was also responsible for knowing whether the inmates in the Control Unit were being disciplined in certain ways and reviewing those incidents. He was also responsible for periodically determining, on a case-by-case basis, whether a specific inmate should be released from the Control Unit and, if not, Warden Davis would have to approve the inmates’ continued confinement in the Control Unit. This specific review of each prisoner is because of the extreme conditions within the Control Unit and the mental and physical repercussions generally associated with confinement there. In performing these individual reviews, Warden Davis obtained specific knowledge of Vega’s presence in the Control Unit, and specifically evaluated his behavior and condition, and gave specific approval for Vega’s continued confinement in that unit, as detailed below.
104. As Warden, Defendant Davis was required to be aware of every incident in which an inmate was placed in restraints. According to a Program Statement number P5566.06, entitled “Use of Force and Application of Restraints,” the purpose of the Program Statement is to ensure that “[e]ach use of force incident” for disciplinary purposes “will be documented, reported, and reviewed.” Id. at 2. The Program Statement details several reviews that must be performed by the Warden after any use of force. See id. at 18-19. Among other things, following any use of restraints, staff are to submit the following reviews to the Warden: “(a)
1 For example, according to a Special Housing Unit Review and Assessment, conducted by the BOP, the facility census at the time of review (2014) was 410 inmates. Of those, only 75 were assigned to the Control Unit. See Federal Bureau of Prisons: Special Housing Unit Review and Assessment, available at: http://www.bop.gov/resources/news/pdfs/CNASHUReportFinal_123014_2.pdf (last visited July 14, 2015).
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Fifteen-minute check - fifteen-Minute Restraints Check Form (24 Hours) (BP-S0717.055); (b)
Two-hour Lieutenant check - Two-Hour Lieutenant Restraints Check Form (24 Hours) (BP-
S0718.055); (c) Health Services Staff Review - Health Services Restraint Review Form (24
Hours) (BP-S0719.055); and (d) Psychology Staff Check - Psychology Services Restraint
Review Form (24 Hours) (BP-S0720.055).” Id. at 18. And the directive states that:
Staff must complete all forms until the inmate is released from restraints. The forms will be submitted to the Warden as required for periodic reviews of an inmate’s placement in restraints. After release from restraints, these forms must be compiled and maintained in the Inmate’s Central File and Special Investigative Supervisor’s file.
Id. at 19 (emphasis added).
105. The Program Statement also includes a requirement that the Warden review
videotaped evidence of any use of force incident:
c. Videotape of Use of Force Incidents. Staff must obtain a video camera immediately and record any use of force incident, unless it is determined that a delay in resolving the situation would endanger the inmate, staff, or others, or would result in a major disturbance or serious property damage.
The video recording will also include any medical examination conducted after:
 the application of restraints,  use of chemical agents,  use of pepper mace, and/or  use of non-lethal weapons.
Calculated use of force shall be videotaped following the sequential guidelines presented in the Correctional Services Manual. The original videotape must be maintained and secured as evidence in the SIS Office. A copy of every videotape, after review by the Warden (within four work days of the incident), unless requested sooner by the Regional Director, will be provided immediately to the Regional Director for review.
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Id. at 19 (emphasis added). 106. Further, the Program Statement required Warden Davis to conduct a review of use
of force and application of restraint incidents. 107. The Program Statement also requires the Warden and the rest of the After-Action
Review Team to review videotape of the incident and to complete a report on it. Thus, Defendant Davis was required to conduct a review of the use of force and restraints that were applied to Vega during Defendant Davis’s tenure.
108. The Program Statement also provides that,”[w]hen it is necessary to restrain an inmate for longer than eight hours, the Warden (or designee) or institution administrative duty officer shall notify the Regional Director or Regional Duty Officer by telephone.” (emphasis added).
109. As discussed in more detail below, Vega had numerous incidents with Staff that required discipline. Moreover, just two weeks prior to Vega’s death, Warden Davis wrote a memorandum to the Regional Director detailing the circumstances surrounding Vega being placed in ambulatory restraints for 24 hours. According to the memo, the reason why Vega was subjected to this extraordinary discipline is because he threw feces and urine at BOP staff.
110. According to BOP policies, Defendant Davis, as Warden, also had ultimate control over whether inmates could be recommended for release from the Control Unit. See BOP Control Unit Programs, No. FLM 5212.07I (Apr. 22, 2013) at 4 (“Inmates can only be released from the Control Unit by the Executive Panel . . . . Prior to each Executive Panel Review, the Unit Team will prepare an Executive Panel Review Sheet . . . on each inmate and
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submit a list of recommended releases to the Executive Panel for consideration. All release recommendations must be approved by the Warden.”)
111. According to BOP policies, the Executive Panel (composed of the Regional Director, North Central Region, and Assistant Director, Correctional Programs Division, or their designees) reviews each case in the Control Unit every 60 to 90 days to determine the inmate’s readiness for release from the Control Unit.
112. As set forth below, Defendant Davis participated in these Control Unit Executive Panel Hearings, and signed off on all approvals or denials for Control Unit release recommendations. In so doing, Defendant Davis repeatedly and specifically considered and approved Vega’s placement in the Control Unit.
113. According to a newly-produced September 2009 ADX Control Unit Executive Panel Review (“September 2009 Review”) (Exhibit C, attached hereto), “Vega received numerous incident reports during the review period and was on Disciplinary Segregation status. His interactions with staff are deemed poor. The Unit Team recommends continuation in the Control Unit until further review.” (emphasis added). In the “Overall Adjustment” section of the September 2009 Review, of the options “Good,” “Satisfactory,” “Poor,” or “Not Rated,” the “Poor” box is marked. Id.
114. The September 2009 Review states the reason for Vega’s placement in the Control Unit. It says, inter alia, that:
Vega was approved for Control Unit placement on March 11, 2004, after the Discipline Hearing Officer found he had committed the prohibited acts of Assault on Staff and two counts of Possession Of a Sharpened Instrument. Specifically, on March 14, 3003, in the dining room at USP Lewisburg, Vega assaulted a staff member with a sharpened instrument. He approached the staff member from behind
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and placed his right hand on the victim’s shoulder. Vega then reached around the victim and slashed the left side of his face with a single edged razor blade. Vega then utilized the weapon to hold responding staff members at bay and threatened to cut anyone who approached. Eventually, staff were able to subdue and disarm him. Id. 115. As noted above, according to BOP policies, prior to each Executive Panel Review a review sheet is prepared on each inmate documenting his behavior, and a list of recommended releases is provided to the Executive Panel for consideration. All release recommendations must be approved by the Warden. Demonstrating Warden Davis’ specific awareness of Vega, his poor condition, and the background and history of his placement in the Control Unit, this Executive Panel Review was signed by Defendant Davis.2 By signing the document, Warden Davis specifically authorized the continued confinement of Vega in the Control Unit notwithstanding that Davis had knowledge of, or was deliberately indifferent to, Vega’s deteriorated and problematic state. 116. According to a newly-discovered December 2009 ADX Control Unit Executive Panel Review (“December 2009 Review”) (Exhibit D, attached hereto), which was again signed by Defendant Davis, Vega had “one incident reports [sic] during the review period and was on Disciplinary Segregation status. His interactions with staff are deemed poor. The Unit Team recommends continuation in the Control Unit until further review.” 117. In the “Overall Adjustment” section of the December 2009 Review, of the options “Good,” “Satisfactory,” “Poor,” or “Not Rated,” the “Poor” box is marked. 118. The December 2009 Review contains the same statement regarding Vega’s history/reason for placement in the Control Unit as in the September 2009 Review. 2 The BOP has confirmed that Davis’ signature appears on the Warden signature block.
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119. According to a newly-discovered March 2010 ADX Control Unit Executive Panel Review (“March 2010 Review) (Exhibit E, attached hereto) -- signed by Defendant Davis one month before Vega’s death -- “Vega received numerous incident reports during the review period and was on Disciplinary Segregation status. His interactions with staff are deemed poor. The Unit Team recommends continuation in the Control Unit until further review.”
120. In the “Overall Adjustment” section of the March 2010 Review, of the options “Good,” “Satisfactory,” “Poor,” or “Not Rated,” the “Poor” box is marked.
121. The March 2010 Review contains the same statement regarding Vega’s history/reason for placement in the Control Unit as in the September 2009 and December 2009 Reviews.
122. Warden Davis’ review and sign off on these ADX Control Unit Executive Panel Reviews demonstrates knowledge and specific approval of Vega’s continued confinement in the Control Unit notwithstanding obvious signs of serious mental illness.
123. In addition to the Control Unit Executive Panel Reviews discussed above, Plaintiff recently obtained nine ADX Monthly Control Unit Review Forms for Vega, from August 2009-April 2010. (Collectively, Exhibit F, attached hereto) (“Monthly Forms”). BOP Policies require these Monthly Forms to be completed for each review, outlining the inmates behavior and progress and remaining months to be served in the Control Unit. This form is signed by each member of the Control Unit Team with the Warden serving as the reviewing authority.
124. The purpose of these Monthly Reviews is to assess whether an inmate will receive “credit” for time spent in the Control Unit. A review committee consisting of five individuals
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provides a committee recommendation, and the Warden reviews and signs off on the recommendation.
125. Defendant Davis’s signature appears on seven out of the nine Monthly Reviews for Vega. This demonstrates that Defendant Davis received routine updates on Vega’s status in the nine months leading up to Vega’s death and had specific knowledge of his distress.
126. In each of the nine Monthly Reviews, Vega’s “adjustment since last review” was deemed “Poor.”
127. In each of the nine Monthly Reviews, Vega’s “release readiness” factors are the same, including:
 Quarters Sanitation: Poor  Personal Grooming & Cleanliness: Poor  Personal Relationship With Other Inmates and Staff: Poor 128. These factors clearly describe Vega’s physical deterioration, and demonstrate that others were aware of Vega and took notice of his poor appearance and lack of cleanliness. 129. Vega was on Disciplinary Segregation during each of the review periods, except one (see Jan. 6, 2010 Report). 130. Each of the nine Monthly Reviews states that Vega did not receive credit for satisfactory conduct during the 30-day period under review. 131. In five of the Monthly Reviews, including one from April 2010 -- one month before Vega’s death -- Vega was not credited due to misconduct. Defendant Davis’s signature appears on every single one of these documents. 132. Vega received “numerous incident reports”“during the Monthly Reviews period, including during the March 3, 2010-April 7, 2010 review period, just weeks before Vega took
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his life. Defendant Davis’s signature appears on this Monthly Review, demonstrating Davis’ knowledge of Vega’s condition and knowledge or willful blindness of his serious mental illness.
133. Additionally, on April 28, 2010, consistent with the BOP policies described above, Defendant Davis wrote a Memorandum to BOP Regional Director Michael K. Nalley regarding Vega. Warden Davis wrote this memo to inform the Regional Director that Vega had been placed in Hard Ambulatory Restraints for 24 hours on April 27, 2010. According to the Memorandum, Vega was placed in restraints because he had been throwing urine and feces at ADX officers. While Defendant Davis noted in the Memorandum that Vega “has no current mental health issues,” the circumstances above demonstrate the fact that Defendant Davis considered and was deliberately indifferent to Vega’s serious mental illness. (Exhibit G, attached hereto). Warden Davis drafted and sent this memorandum a mere two weeks before Vega’s death,
Vega’s Final Days and Death 134. Upon information and belief, by May 2010, Vega had lost as much as 50 pounds, customarily wore grossly ill-fitting clothes and shoes, was no longer maintaining physical hygiene, and was largely incoherent. 135. Upon information and belief, in early April, 2010, Vega was in ambulatory restraints for three to four days, yelling and throwing feces. 136. On April 20, 2010, upon information and belief, Vega was heard screaming that he was tired of the treatment he was receiving, and was going to do something about it. 137. On April 28, 2010, three days before Vega killed himself, he requested a transfer to MCFP Springfield, and was denied.
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138. Upon information and belief, on or about April 30, 2010, Vega was placed in ambulatory restraints in his cell by presently unknown members of the ADX staff. Upon information and belief, at that time Vegas was in profound and obvious psychological distress. Nevertheless, ADX staff failed to seek necessary mental health care for Vega and instead left him in his cell chained hand and feet, and utterly alone.
139. On May 1, 2010, upon information and belief, the duress light went on in Vega’s cell.
140. On May 1, 2010, Vega was found dead in his cell in the Control Unit at ADX Florence.
141. The coroner’s report that evaluated Vega after his death noted that Vega died as a result of hanging. The Coroner’s Report is attached as Exhibit H.
142. The investigation and autopsy indicated that his injuries were intentional and selfinflicted.
143. The coroner’s report indicated that information received from the ADX health administrator indicated that Vega “had a long psychiatric history.”
The Treatment of Vega’s Body And Possessions After His Death 144. After Vega was found hanging lifeless in his cell, currently unknown members of the ADX staff cut him down, and then placed his dead body in handcuffs and shackles. Only then was any effort to resuscitate Vega made. Hours later, Vega’s body was delivered to the medical examiner, still chained hand and feet. 145. Upon information and belief, following Vega’s death, and despite repeated requests by Plaintiff and Vega’s other family members, the BOP failed to return Vega’s body to
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his family in New York for a service and burial in a prompt manner. Plaintiff and his family entered into a dispute with the BOP regarding the shipment and burial of Vega’s body. The body was not returned to New York until many days after Vega’s death.
146. Upon information and belief, when ADX finally shipped Vega’s body to his family, he arrived in a small pine coffin, wearing a prison uniform. Vega’s body was emaciated, and according to his family members he looked like he had been “starved to death.”
147. Upon information and belief, the government would not permit Vega’s family to bury his body, but insisted that it be cremated.
148. Upon information and belief, the BOP withheld Vega’s personal belongings, including but not limited to, drawings, writings and photographs from his family following Vega’s death. Despite several telephone requests from Vega’s family members, the BOP has not, to this day, returned a single piece of Vega’s personal property to Plaintiff or any other member of Vega’s family.
Defendants’ Responsibility 149. As Warden of ADX during certain periods relevant to this action, Defendant Davis was responsible for the care and safety of ADX inmates, and in particular, those housed in the Control Unit, including Vega. 150. The ADX Control Unit Executive Panel Reviews and monthly ADX Control Unit Reviews demonstrate that Defendant Davis had specific knowledge of the events occurring in the Control Unit that concerned Vega, and further had knowledge of the facts and circumstances demonstrating Vega’s obvious serious mental illness.
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151. According to interviews Plaintiff conducted with current ADX prisoners, during relevant periods Defendant Davis visited the ADX Control Unit and spoke with inmates confined there, and through those interactions and through other means became familiar with events occurring in the Control Unit and the condition of the prisoners confined there.
152. Based on the ADX Control Unit Executive Panel Reviews, monthly ADX Control Unit Reviews, and Plaintiff’s interviews with ADX prisoners, Defendant Davis was aware of discipline imposed on ADX inmates, serious medical issues among the inmates, and other information bearing on the care and well being of inmates under his custody and control, including Vega.
153. Based on the BOP policies outlined above, Warden Davis would have had specific knowledge of every incident in which Vega was placed in disciplinary restraints. As detailed above, this was true of a serious incident that occurred only weeks before Vega’s death. It also would have been true of every instance that occurred during Warden Davis’s tenure.
154. Indeed, based on the Program Statement outlined above, Defendant Davis would have reviewed videotape of every application of use of force on Vega.
155. During relevant periods Defendant Davis had the discretionary authority to authorize the transfer of ADX inmates, including Vega, to medical facilities such as MCFP Springfield, where they could be treated for mental health problems more serious than could effectively be treated at ADX. As noted above, on April 28, 2010 -- three days before Vega killed himself -- Vega requested a transfer to MCFP Springfield. This request was denied.
156. Based on the ADX Control Unit Executive Panel Reviews, monthly ADX Control Unit Reviews, Plaintiff’s interviews with ADX prisoners, and BOP policies outlined above,
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Defendant Davis knew about or was willfully ignorant of Vega’s serious medical needs, his deterioration while confined in the ADX Control Unit, the availability of constitutionally adequate mental health services at BOP medical facilities such as MCFP Springfield, and the means of accessing other mental health services required by Vega. Nevertheless, Defendant Davis failed and refused to make any of those resources and medical services available to Vega.
157. Upon information and belief, Defendant Davis also failed to prevent the abuse of Vega by ADX staff, failed to ensure that Vega was adequately fed and safely housed, failed to implement adequate suicide prevention programs at ADX, and otherwise failed to address Vega’s serious, chronic and growing mental illness. As a result, Vega’s mental deterioration continued, and ultimately resulted in his death. Defendant Davis’s failure to discharge his obligations relating to Vega was a legal cause of Vega’s death.
158. Upon information and belief, Defendant Davis engaged in similar misconduct with respect to other ADX inmates, some of whom have injured or killed themselves as a result, and many of whom have suffered unnecessarily and for months or years on end because of the failure of Defendants and other ADX staff members to provide constitutionally required mental health care to inmates whom they knew or should have know suffered from serious mental illnesses.
FIRST CAUSE OF ACTION (Deliberate Indifference To Serious Medical Needs) 159. Plaintiff incorporates the preceding paragraphs of this pleading. 160. Pursuant to the Eighth Amendment to the United States Constitution, Vega had the right to be free from cruel and unusual punishment and to receive proper medical care and attention while confined by the BOP.
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161. Vega suffered objectively serious medical needs that Defendants actually knew of but disregarded.
162. Defendants’ treatment of Vega constituted a deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution.
163. The actions of Defendants’ manifested a deliberate indifference to Vega’s constitutional rights in violation of the Eight Amendment of the United States Constitution.
SECOND CAUSE OF ACTION (Deprivation of Right of Familial Association) 164. Plaintiff incorporates the preceding paragraphs of this pleading. 165. Plaintiff has an interest in his relationship with his brother protected by the First and Fourteenth Amendment of the United States Constitution. 166. These interests survived the death of Plaintiff’s brother. 167. Defendants intentionally interfered with this interest by, among other things, deliberately disregarding Vega’s serious medical needs, disregarding Plaintiff’s right to the prompt return of the body of his brother following his death, and refusing to return Vega’s personal possessions to Plaintiff. 168. The actions of the Defendants were thus in violation of the First and Fourteenth Amendment of the United States Constitution.
PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment against Defendants for:
(a) a sum to compensate the Estate for the suffering and death of Vega while incarcerated due to the denial of his medical needs;
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(b) a sum to compensate Plaintiff for his own pain and suffering and loss of

companionship as a result of the death of his brother due to the denial of

his brother’s medical needs, and Defendants’ intentional mistreatment of

Vega’s body and personal items following his death;

(c) punitive damages in a sum as to deter Defendants of conduct of this nature

in the future; and

(d) such other relief as this Court deems just and proper.

Plaintiff demands a trial by jury. Dated: July 15, 2015

Respectfully submitted,

ARNOLD & PORTER LLP

By s/ Veronica E. Callahan Veronica E. Callahan Arnold & Porter, LLP 399 Park Avenue New York, New York 10022 veronica.callahan@aporter.com
Attorneys for Plaintiff Raymond Vega

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 15th day of July, 2015, the foregoing SECOND AMENDED COMPLAINT was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record as follows:
Amy L. Padden U.S. Attorney’s Office - Denver 1225 Seventeenth Street, Suite 700 Denver, CO 80202 amy.padden@usdoj.gov
/s/ Linda J. Teater_________
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 673 Fed.Appx. 885 This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 10th Cir.
Rule 32.1. United States Court of Appeals, Tenth Circuit.
Raymond VEGA, personally and as personal representative of the Estate of Jose Martin Vega,
Plaintiff-Appellant, v.
Blake R. DAVIS and certain additional unknown agents of the United States Bureau of Prisons, Defendants-Appellees.
No. 16-1028 |
Filed December 28, 2016
Synopsis Background: Following prisoner’s suicide, prisoner’s brother brought Bivens action against former warden and other unknown agents of the Bureau of Prisons, alleging that former warden was deliberately indifferent to prisoner’s serious mental health needs in violation of the Eighth Amendment resulting in prisoner’s death. The United States District Court for the District of Colorado, Richard P. Matsch, Senior District Judge, 2015 WL 9583378, granted warden’s motion to dismiss on qualified immunity grounds. Brother appealed.
[Holding:] The Court of Appeals, Carolyn B. McHugh, Circuit Judge, held that Bivens complaint failed to allege facts supporting plausible inference that warden knew inmate faced substantial risk of harm of suicide, as required to state Eighth Amendment claim of deliberate indifference to serious mental health needs of inmate.
Affirmed.
Procedural Posture(s): On Appeal; Motion to Dismiss.
West Headnotes (1)

[1] Prisons Suicide
Sentencing and Punishment Psychological and psychiatric treatment
Bivens complaint failed to allege facts supporting plausible inference that warden knew inmate faced substantial risk of harm of suicide, as required to state Eighth Amendment claim of deliberate indifference to serious mental health needs of inmate who committed suicide; it was not reasonable to infer that warden had reviewed prison records documenting inmate’s mental health issues, prison psychologist opined that inmate did not have current mental health issues, and warden was not aware of any facts concerning inmate’s mental health issues that pre-dated warden’s tenure. U.S. Const. Amend. 8.
6 Cases that cite this headnote
(D.C. No. 1:12-CV-01144-RPM) (D. Colorado)
Attorneys and Law Firms
Robert Reeves Anderson, Edwin Packard Aro, Arnold & Porter Kaye Scholer, LLP, Denver, CO, Veronica E. Callahan, Jessica Caterina, Lauren Rivard, Arnold & Porter, New York, NY, Christopher Scott Morrow, Arnold & Porter Kaye Scholer, Washington, DC, Robert Paul Taylor, Arnold & Porter LLP, San Francisco, CA, for Plaintiff-Appellant
Amy Lenore Padden, Office of the United States Attorney, District of Colorado, Denver, CO
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
*886 ORDER AND JUDGMENT*
Carolyn B. McHugh, Circuit Judge
1

This appeal arises from a Bivens action in which Petitioner Raymond Vega (Plaintiff) claims that former warden Blake Davis (the Warden) was deliberately indifferent to the serious medical needs of Plaintiff’s brother Jose Vega (Vega), in violation of the Eighth Amendment. See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff alleges that the Warden failed to provide Vega with adequate mental health care, which led Vega to commit suicide. After an initial round of litigation in which this court ultimately reversed and remanded the district court’s denial of qualified immunity, the district court permitted Plaintiff to amend his complaint. After reviewing the newly amended complaint, the district court granted the Warden qualified immunity. We affirm because the allegations in the amended complaint fail to state a plausible Eighth Amendment violation. As tragic as the facts of this case are, nothing in the amended complaint supports a reasonable inference that the Warden was deliberately indifferent to Vega’s mental health needs.
I. BACKGROUND
A. Factual History1
On May 1, 2010, while housed at the U.S. Penitentiary, Administrative Maximum, in Florence, Colorado (ADX Florence), Jose Vega hanged himself from his cell door using his bedsheet. Prison staff attempted to revive him but were unsuccessful, and Vega died. Plaintiff alleges that Vega’s suicide risk should have been eminently clear to the Warden, given Vega’s history of psychiatric treatment, including the fact that Vega was classified in March 2003 as a “high suicide risk” and underwent psychiatric treatment several times over the following two years at the United States Medical Center for Prisoners in Springfield, Missouri (MCFP Springfield).
The Warden was assigned to ADX Florence from July 13, 2009 to April 21, 2012, so much of Vega’s psychiatric history pre-dates his tenure. This includes Vega’s alleged diagnosis of paranoid schizophrenia, his multiple transfers to MCFP Springfield, and his multiple transfers back to ADX Florence’s Control Unit. The Control Unit is the most secure unit at the facility, and prisoners housed there “are isolated from the other prisoners at all times, even

during recreation, for extended terms often lasting six years or more.” Vega was initially placed in the Control Unit after an incident in which he “slashed the left side of [a staff member’s] face with a single edged razor blade,” causing a deep laceration to the staff member’s left cheek and ear lobe which required 28 sutures to close. Vega’s final transfer back to ADX Florence occurred in November 2006; Vega remained in the Control Unit from then until his death in May 2010. Plaintiff alleges that Vega’s assignment to the Control Unit prevented him from receiving proper mental health treatment.
*887 Plaintiff alleges that in the months prior to his death, Vega was placed into four-point ambulatory restraints on several occasions. Plaintiff also alleges that Vega “had lost as much as 50 pounds, customarily wore grossly ill-fitting clothes and shoes, was no longer maintaining physical hygiene, and was largely incoherent.” The Warden claims that there is no evidence he was involved in several of the restraint incidents, that several of the allegations are unsupported by record evidence, and that there is nothing to suggest Vega was placed in restraints for mental health reasons.
Plaintiff also alleges a number of “newly discovered” facts2 in his amended complaint which he suggests demonstrate the Warden was aware of Vega’s behavior and deteriorating medical condition. This includes a behavior management plan the Warden sent to the Bureau of Prisons’ (BOP) Regional Director, which was implemented a few days before Vega’s death. The plan outlines the need for prison staff to place Vega in hard, ambulatory restraints. In the plan, the BOP staff psychologist concluded that Vega had “no current mental health issues” and that the restraints did “not seem to [have] a negative impact on mental health functioning.” The prison’s review board, which included the Warden and the staff psychologist, signed off on the plan.
A subsequent “Psychology Services Restraint Check Form” completed by the staff psychologist notes that Vega requested a transfer, but that it was denied because “Vega’s behavior is not accounted for by mental illness.” That form also notes that a summary of Vega’s “psychology history” was included on the prior day’s form, but that prior day’s form is not in the record. The district court relied heavily on the psychologist’s conclusions in holding that the Warden was entitled to qualified immunity.
Plaintiff’s Second Amended Complaint also cites to various other documents, including Control Unit Review Forms and the coroner’s report. The Control Unit Review Forms discuss Vega’s adjustment to the Control Unit and his “release readiness” factors, which include quarters
2

sanitation, personal grooming and cleanliness, personal relationship with others and staff, work involvement, and self-improvement activities. Although the Warden did not participate in the Control Unit reviews, he did sign seven of Vega’s forms, which consistently showed poor quarter’s sanitation, poor personal grooming and cleanliness, and poor relationships with other inmates and staff. In addition to these forms, Plaintiff submitted three Control Unit Executive Panel Review Forms which summarize the reasons for Vega’s placement in the Control Unit and make recommendations regarding Vega’s continuation in the Control Unit. The Warden reviewed these forms, but he was not a member of the Executive Panel that actually conducted the reviews.3 Each of the Control Unit *888 Executive Panel Review Forms showed that Vega had received incident reports requiring him to be on “Disciplinary Segregation status.” The forms also indicated that his interactions with staff were deemed poor.
Next, Plaintiff’s Second Amended Complaint contains a transcript of record from a separate lawsuit in which another inmate indicated that Vega was “well-known at ADX Florence for having committed most of the assaults on staff members from 2008-2010.” The inmate was “pretty sure he had written to Warden Davis expressing alarm at the condition of inmate Vega,” but he lacked specific memory of it. Plaintiff also provided the coroner’s report for Vega’s death, in which the coroner opined that Vega “died as a result of hanging” and that the manner of death was suicide. The report also noted that the attending physician’s assistant and the ADX health administrator reported that Vega “had a long psychiatric history.”
Finally, the Second Amended Complaint references several BOP policies which Plaintiff alleges create an inference that the Warden was aware of Vega’s mental health issues but disregarded them. To begin, the BOP’s Program Statement 5310.13 on the Institutional Management of Mentally Ill Prisoners, provided that the Warden was to assign a program coordinator to assess and treat mentally ill inmates. That policy also required the coordinator to report to relevant staff members, including the Warden, and to train staff members on identifying and reporting mental illness. The policy also required incoming inmates like Vega, who have mental health issues or are at risk of suicide, to undergo a screening process, and Plaintiff alleges that ADX Florence gave only “perfunctory interviews that are wholly inadequate as a form of screening or diagnosis.”
Plaintiff also cites to the BOP’s policy on the use of force, which specified the process for the Warden to receive documented reviews of an inmate during his time in

restraints. BOP Program Statement P5566.06, “Use of Force and Application of Restraints,” p. 18. The reviews included a fifteen-minute check, a two-hour lieutenant check, a health services staff review, and a psychology staff check. Id. at 18–19. These reviews were provided to the Warden each 24-hour period the inmate was in restraints. Id. Also, prison staff were required to ensure the inmate’s time in the restraints was video recorded. Id. at 19. The Warden received and reviewed any such videos and then forwarded them to the Regional Director for review. Id.
B. Procedural History
Plaintiff initially filed this Bivens action on behalf of Vega in May 2012, alleging that the Warden’s deliberate indifference to Vega’s serious mental health needs resulted in Vega’s death. Vega v. Davis, 572 Fed.Appx. 611, 612 (10th Cir. 2014) (unpublished) [hereinafter Vega I]. The district court denied the Warden’s motion to dismiss based on qualified immunity, and we reversed and remanded, concluding that Plaintiff’s complaint failed to allege the Warden’s personal participation in any constitutional violation. Id. at 615–19.
On remand, the district court entered judgment for the Warden, and Plaintiff then filed a motion for relief from judgment and leave to file a Second Amended Complaint pursuant to Federal Rules of Civil Procedure 59(e) &
60(b)(2), in order to include “newly discovered evidence.” The district court granted the motion, reasoning that the evidence presented a reasonable inference that the Warden knew “Vega was a high risk of suicide requiring protective measures that would have kept him alive and that the warden had a duty *889 to direct such actions.” Vega filed his Second Amended Complaint on July 15, 2015, and the Warden again moved to dismiss.
In December 2015, the district court granted the Warden’s motion to dismiss, relying heavily on the staff psychologist’s report from days before Vega’s death. As mentioned above, the report indicated that Vega’s behavior was “not accounted for by mental illness.” The district court found that the “defendant [could] reasonably rely on the staff psychologist and approve the continued use of restraints because of assaultive behavior without himself determining that inmate Vega had untreated mental health issues.” The court also determined that the “additional allegations [did] not meet the requirements
3

stated by the appellate court to support a finding that Warden Davis knew that inmate Vega had a mental condition that required treatment to keep him from hanging himself.” Plaintiff timely appealed.
II. DISCUSSION
On appeal, Plaintiff argues that the district court erred in granting the Warden’s motion to dismiss. He asserts that the Second Amended Complaint properly alleges the Warden’s deliberate indifference toward Vega’s mental health needs, including that the Warden personally participated in depriving Vega of needed medical care. The Warden disagrees, claiming that the complaint lacks sufficient allegations with respect to his personal participation and subjective state of mind. He also contends that the conduct alleged in the complaint does not constitute a violation of clearly established law. We agree the complaint fails to state a plausible Eighth Amendment deliberate indifference claim, and we accordingly affirm.
A. Standard of Review
“This court reviews de novo a district court’s grant of a motion to dismiss based on qualified immunity.” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010). “To survive a motion to dismiss, a complaint must allege facts that, if true, state a claim to relief that is plausible on its face. A claim is facially plausible when the allegations give rise to a reasonable inference that the defendant is liable.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (citation and internal quotation marks omitted). The complaint must be dismissed if a plaintiff fails to “nudge[ ] [his] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
B. The Second Amended Complaint Does Not Support a Claim of Deliberate Indifference

Although Plaintiff’s Second Amended Complaint does “nudge” his deliberate indifference claim more toward the
line of plausibility than his initial complaint, id., it still fails the facial plausibility standard. “In resolving a motion to dismiss based on qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the
time of defendant’s alleged misconduct.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal quotation marks omitted). “This standard, by design, ‘gives government officials breathing room to make reasonable but mistaken judgments about open legal
questions.’ ” Pahls v. Thomas, 718 F.3d 1210, 1227
(10th Cir. 2013) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” which includes deliberate indifference to the serious medical needs of prisoners
*890 in custody. Estelle v. Gamble, 429 U.S. 97, 104–06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To prevail on an Eighth Amendment deliberate-indifference claim against prison officials, an inmate must satisfy “a two-pronged inquiry, comprised of an objective and
subjective component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). The objective component is met where the deprivation is “sufficiently serious.”
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation marks omitted).
The subjective component requires a plaintiff to demonstrate that officials acted with a “sufficiently
culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Under this standard, “a prison official cannot be liable ‘unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.’ ” Self, 439 F.3d at 1231 (quoting
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). This rigorous standard separates Eighth Amendment claims from state-law negligence actions—“the negligent failure to provide adequate medical care, even one constituting medical malpractice,
does not give rise to a constitutional violation.” Id. at
1233 (quoting Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999)).
Under the standard outlined above, Plaintiff was required
4

to demonstrate that the Warden was aware of facts from which the inference could be drawn that Vega was at a substantial risk of harm or suicide, and the Warden “must
also draw the inference.” Id. at 1231. The Second Amended Complaint fails in both respects.4 To begin, it contains insufficient allegations with respect to the Warden’s knowledge. The complaint does allege that the Warden was aware of Vega’s poor behavior via the “Control Unit Reviews” and “Control Unit Executive Panel Reviews,” but those documents do not indicate Vega was suicidal or suffering from mental illness. Rather, as noted by the Warden, those forms “do not include any sort of psychological review.” When a psychological review actually was conducted in the days prior to Vega’s suicide as part of the decision to place Vega in restraints, the review noted that Vega “ha[d] no current mental health issues.” And a review that appears to have been conducted the following day adds that “Vega was polite, calm, and cooperative” and displayed “[n]o evidence of mood disturbance or psychosis.” Though Vega did request a transfer during this subsequent review, the psychologist recommended against a referral to a mental health facility because his assaultive behavior was “not accounted for by mental illness.”
Against the daunting implication of this evidence with respect to the Warden’s awareness of a mental health issue, Plaintiff cites to additional evidence, including the BOP policies, the coroner’s report, and evidence of Vega’s institutional reputation, to suggest the Warden was aware of Vega’s condition and behavior. But one cannot plausibly draw an inference from this information that the Warden both knew that Vega was suffering from a mental illness and then consciously disregarded the risks of leaving Vega’s condition untreated. To be sure, reliance on a medical professional’s opinion does not foreclose a finding of deliberate indifference to *891 a prisoner’s serious medical needs in all circumstances. See
Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”). But here Plaintiff has provided no evidence that the Warden knew the psychological opinion was not a valid expression of professional judgment, was based on materially false or outdated information, or contradicted the contemporaneous opinion of a more qualified expert. In short, there is nothing that creates a plausible inference that despite the contrary report of the prison psychologist, the Warden knew Vega was currently suffering from

mental illness and at risk of suicide but was nonetheless deliberately indifferent to that risk.
Moreover, Plaintiff fails to demonstrate how one can infer the Warden was aware of any of the facts that pre-dated his tenure. As this court admonished during the prior appeal, “[t]he mere presence of records, by themselves, does not create the reasonable inference that Davis read them. The plaintiff fails to explain why it is reasonable to infer that a warden would review all of the records of each inmate, or each inmate in the Control Unit, or [Vega’s] records in particular.” Vega I, 572 Fed.Appx. at 618. In the current appeal, Plaintiff suggests it is reasonable to conclude that the Warden was aware of Vega’s earlier mental health history because he “reviewed documents related to [Vega] that outlined his disciplinary history dating back to 2003.” We are not persuaded.
Although the Warden did review documents that discussed Vega’s behavior in 2003—specifically, the assaultive behavior that landed Vega in the Control Unit—those documents say nothing about mental illness. Though the Warden, by reviewing these documents, clearly became aware of Vega’s conduct, there is nothing to suggest he was aware of or knowingly disregarded Vega’s mental health, particularly where the facility’s own psychologist opined that Vega “ha[d] no current mental health issues.” See Farmer, 511 U.S. at 838, 114 S.Ct. 1970 (“[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.”).
III. CONCLUSION
Because Plaintiff’s complaint fails to state a plausible Eighth Amendment deliberate indifference claim, we AFFIRM the district court’s order granting the Warden’s motion to dismiss.
All Citations
673 Fed.Appx. 885

Footnotes

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir.

5

R. 32.1.

1

Much of the factual history of this case has been explored in the prior panel’s order and judgment. See Vega v. Davis,

572 Fed.Appx. 611, 613–14 (10th Cir. 2014) (unpublished). Though we highlight some of the more salient facts here,

we focus largely on the “newly discovered” evidence presented in the Second Amended Complaint.

2

As an alternative ground for affirmance, the Warden suggests the district court erred in granting Plaintiff leave to

amend his complaint. Specifically, the Warden argues that all of the “newly discovered” facts were not “new” at all,

since Plaintiff could have filed FOIA requests and otherwise gained access to the “new” information before filing his

initial complaint. See Kirby v. Resmae Mortg. Corp., 626 Fed.Appx. 746, 748 (10th Cir. 2015) (unpublished) (noting

that relief may be warranted “when there is new evidence that was previously unavailable” (emphasis added)). We

need not reach this issue because we decide that the motion to dismiss the amended complaint was properly granted.

3

See 28 C.F.R. § 541.45 (“The Executive Panel is composed of the Regional Director of the region where a control unit

is located ... and the Assistant Director, Correctional Programs Division.”).

4

Because Plaintiff’s Second Amended Complaint fails to satisfy the subjective component of the Eighth Amendment

inquiry, we do not address whether the right at issue was clearly established.

6

 
 Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 1 of 8
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:12−cv−01144−RPM

TERMED

Vega v. Davis Assigned to: Judge Richard P. Matsch Case in other court: USCA, 13−01268
USCA, 16−01028 Cause: 42:1983 Civil Rights Act Plaintiff Raymond Vega Personal Representative of the Estate of Jose Martin Vega
Plaintiff

Date Filed: 05/01/2012 Date Terminated: 12/31/2015 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Christopher Scott Morrow Arnold & Porter LLP−DC 555 12th Street, N.W. Washington, DC 20004−1206 202−942−5976 Fax: 202−942−5999 Email: scott.morrow@aporter.com ATTORNEY TO BE NOTICED
Maurice Abraham Leiter Arnold & Porter LLP−Los Angeles 777 South Figueroa Street 44th Floor Los Angeles, CA 90017−5844 213−243−4000 Fax: 213−243−4199 Email: maurice.leiter@aporter.com ATTORNEY TO BE NOTICED
Robert Paul Taylor Arnold & Porter, LLP−San Francisco Three Embarcadero Center 7th Floor San Francisco, CA 94111−4024 415−471−3100 Fax: 415−471−3400 Email: robert.taylor@aporter.com ATTORNEY TO BE NOTICED
Veronica Ellen Callahan Arnold & Porter Kaye Scholer LLP−New York 399 Park Avenue New York, NY 10022−4690 212−715−1165 Fax: 212−715−1399 Email: veronica.callahan@aporter.com ATTORNEY TO BE NOTICED
Edwin Packard Aro Arnold & Porter Kaye Scholer LLP−Denver 370 Seventeenth Street Suite 4400 Denver, CO 80202−1370 303−863−1000 Fax: 303−832−0428 Email: ed.aro@apks.com ATTORNEY TO BE NOTICED

Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 2 of 8

Raymond (I) Vega

represented by Edwin Packard Aro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Paul Taylor (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Blake R. Davis and certain additional unknown agents of the United States Bureau of Prisions
Interested Party Warren Daniel Clinton

represented by Amy L. Padden Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720−508−6424 Email: amy.padden@coag.gov ATTORNEY TO BE NOTICED
Elizabeth Mary (Former AUSA) Froehlke U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0126 Email: USACO.ECFCriminal@usdoj.gov ATTORNEY TO BE NOTICED
represented by Warren Daniel Clinton #88766−020 SPRINGFIELD MEDICAL CENTER/FEDERAL PRISONERS Inmate Mail/Parcels P.O. BOX 4000 SPRINGFIELD, MO 65801 PRO SE

Date Filed 05/01/2012 05/01/2012 05/02/2012 06/15/2012 06/15/2012 06/15/2012 08/14/2012

# Docket Text
1 COMPLAINT and Jury Demand against All Defendants (Filing fee $ 350, Receipt Number 1082−2819497), filed by Raymond Vega.(Aro, Edwin) (Entered: 05/01/2012)
2 Case assigned to Judge Richard P. Matsch and drawn to Magistrate Judge Micheal E. Hegarty. Text Only Entry (sphil, ) (Entered: 05/02/2012)
3 Magistrate Judge Consent Form issued. No summons issued. (sphil, ) (Entered: 05/02/2012)
4 SUMMONS REQUEST as to Defendant, Blake R. Davis re 1 Complaint by Plaintiff Raymond Vega. (Aro, Edwin) (Entered: 06/15/2012)
5 NOTICE re 1 Complaint Civil Cover Sheet by Plaintiff Raymond Vega (Aro, Edwin) (Entered: 06/15/2012)
6 SUMMONS issued by Clerk. (jjhsl, ) (Entered: 06/15/2012)
7 NOTICE of Entry of Appearance by Amy L. Padden on behalf of Blake R. Davis (Padden, Amy) (Entered: 08/14/2012)

Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 3 of 8

08/14/2012 08/22/2012 08/23/2012
08/30/2012
08/31/2012 08/31/2012
09/20/2012 10/10/2012 10/12/2012 10/22/2012 11/05/2012 11/06/2012 11/14/2012 03/26/2013 04/22/2013 04/22/2013 04/23/2013

8 STIPULATION for Extension of Time to Answer or Respond to the Complaint by Defendant Blake R. Davis. Blake R. Davis answer due 8/23/2012. (Padden, Amy) (Entered: 08/14/2012)
9 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint by Defendant Blake R. Davis. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 08/22/2012)
10 ORDER granting 9 Motion for Extension of Time for Blake Davis to Answer or Otherwise Respond to the Complaint. It is ordered that Defendant Davis may file his response to Plaintiff's complaint 20 days after service of Plaintiff's amended complaint by Judge Richard P. Matsch on 08/23/12.(jjhsl, ) (Entered: 08/23/2012)
11 Unopposed MOTION for Leave to File First Amended Complaint by Plaintiff Raymond Vega. (Attachments: # 1 Amended Complaint, # 2 Exhibit A − Part 1 to Amended Complaint, # 3 Exhibit A − Part 2 to Amended Complaint, # 4 Exhibit A − Part 3 to Amended Complaint, # 5 Exhibit B − Part 1 to Amended Complaint, # 6 Exhibit B − Part 2 to Amended Complaint, # 7 Proposed Order (PDF Only))(Aro, Edwin) (Entered: 08/30/2012)
12 ORDER Granting 11 Motion for Leave to File First Amended Complaint re 1 and [11−1]: Amended Complaint attached to Plaintiff's motion is hereby accepted for filing, by Judge Richard P. Matsch on 8/31/2012.(rpmcd) (Entered: 08/31/2012)
13 AMENDED COMPLAINT And Jury Demand against Blake R. Davis, filed by Raymond Vega. (Attachments: # 1 Exhibit A Part 1 to Amended Complaint, # 2 Exhibit A − Part 2 to Amended Complaint, # 3 Exhibit A − Part 3 to Amended Complaint, # 4 Exhibit B − Part 1 to Amended Complaint, # 5 Exhibit B − Part 2 to Amended Complaint)(rpmcd) (Entered: 08/31/2012)
14 MOTION to Dismiss for Failure to State a Claim by Defendant Blake R. Davis. (Padden, Amy) (Entered: 09/20/2012)
15 Unopposed MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Dismiss for Failure to State a Claim by Plaintiff Raymond Vega. (Attachments: # 1 Proposed Order (PDF Only))(Aro, Edwin) (Entered: 10/10/2012)
16 ORDER Granting 15 Motion for Extension of Time to File Response : Plaintiff shall respond to Defendant Davis's 14 Motion to Dismiss no later than October 22, 2012, by Judge Richard P. Matsch on 10/12/2012.(rpmcd) (Entered: 10/12/2012)
17 RESPONSE to 14 MOTION to Dismiss for Failure to State a Claim filed by Plaintiff Raymond Vega. (Aro, Edwin) (Entered: 10/22/2012)
18 Unopposed MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Dismiss for Failure to State a Claim by Defendant Blake R. Davis. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 11/05/2012)
19 ORDER Granting Defendant's 18 Motion for Extension of Time to File Reply re 14 , to and including November 14, 2012, by Judge Richard P. Matsch on 11/6/2012.(rpmcd) (Entered: 11/06/2012)
20 REPLY to Response to 14 MOTION to Dismiss for Failure to State a Claim filed by Defendant Blake R. Davis. (Padden, Amy) (Entered: 11/14/2012)
21 Minute ORDER Setting Hearing on 14 MOTION to Dismiss for Failure to State a Claim for 4/23/2013 at 02:00 PM in Courtroom A, by Judge Richard P. Matsch on 3/26/2013. (rpmcd) (Entered: 03/26/2013)
22 NOTICE of Entry of Appearance by Christopher Scott Morrow on behalf of Raymond Vega (Morrow, Christopher) (Entered: 04/22/2013)
23 NOTICE of Entry of Appearance by Maurice Abraham Leiter on behalf of Raymond Vega (Leiter, Maurice) (Entered: 04/22/2013)
24 Courtroom Minutes for Motion Hearing held on 4/23/2013 before Judge Richard P. Matsch. ORDERED: Motion to Dismiss by Defendant Davis, 14 in case 12−cv−01144−RPM, is granted with respect to the First Amendment Claim and denied in all other respects. Defendant shall file an answer in accordance with the rules.

Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 4 of 8

04/23/2013 05/06/2013 05/07/2013 05/22/2013 05/24/2013 05/24/2013
06/14/2013 06/17/2013
06/20/2013
06/21/2013 06/24/2013 06/24/2013 07/08/2013 07/08/2013

Conference set for 5/24/2013 AT 02:00 PM in Conference Room (requirement of Rule 16 not applicable). FTR: K. Terasaki. (rpmcd ) (Entered: 04/23/2013)
25 Restricted Audio File − Level 3 regarding Motion Hearing 24 held on 04/23/2013 at 2:00pm before Senior District Judge Richard P. Matsch. AUDIO FILE SIZE (16.0 MB) (ktera, ) (Entered: 04/24/2013)
26 NOTICE of Entry of Appearance by Robert Paul Taylor on behalf of All Plaintiffs (Taylor, Robert) (Entered: 05/06/2013)
27 ANSWER to 13 Amended Complaint, by Blake R. Davis.(Padden, Amy) (Entered: 05/07/2013)
28 NOTICE of Plaintiff's Submission of Proposed Scheduling Order and Proposed First Set of Document Requests by Plaintiff Raymond Vega (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Aro, Edwin) (Entered: 05/22/2013)
29 RESPONSE to 28 Notice (Other) by Defendant Blake R. Davis. (Attachments: # 1 Exhibit A − transcript of 4/23/13 hearing, # 2 Exhibit B − email)(Padden, Amy) (Entered: 05/24/2013)
30 Courtroom Minutes for Conference held on 5/24/2013 before Judge Richard P. Matsch. ORDERED: Plaintiffs' First Amended Complaint (12−cv−01570−RPM) is accepted and counsel shall file it today. Defendants have thirty days to file an answer. Scheduling Conference set for 7/12/2013 AT 10:00 AM in Conference Room. FTR: K. Terasaki. (rpmcd ) Modified on 5/24/2013 (rpmcd ). (Entered: 05/24/2013)
31 Unopposed MOTION for Leave to Depose Incarcerated Witness John J. Powers by Plaintiff Raymond Vega. (Attachments: # 1 Proposed Order (PDF Only))(Aro, Edwin) (Entered: 06/14/2013)
32 ORDER Granting 31 Motion for Leave: Plaintiffs in both of the above captioned actions are granted leave to take the deposition of JOHN J. POWERS (BOP Register No. 03220−028) at the United States Medical Center for Federal Prisoners in Springfield, Missouri, beginning on June 25, 2013, and continuing thereafter until completed, by Judge Richard P. Matsch on 6/17/2013.(rpmcd) (Entered: 06/17/2013)
33 TRANSCRIPT of Conference held on May 24, 2013 before Judge Matsch. Pages: 1−55. Prepared by: Federal Reporting Service, Inc.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/23/2013. (Federal Reporting Service, Inc., ) (Entered: 06/20/2013)
34 NOTICE OF APPEAL as to 24 Order on Motion to Dismiss for Failure to State a Claim,, Motion Hearing,, Set/Reset Hearings, by Defendant Blake R. Davis (Padden, Amy) (Entered: 06/21/2013)
35 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 34 Notice of Appeal filed by Blake R. Davis to the U.S. Court of Appeals. (USA) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(mjfsl) (Entered: 06/24/2013)
36 USCA Case Number 13−1268 for 34 Notice of Appeal filed by Blake R. Davis. (dbrow, ) (Entered: 06/25/2013)
37 TRANSCRIPT ORDER FORM re 34 Notice of Appeal by Defendant Blake R. Davis (Padden, Amy) (Entered: 07/08/2013)
38 LETTER TO USCA and all counsel certifying the record is complete as to 34 Notice of Appeal filed by Blake R. Davis. A transcript order form was filed stating that the

Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 5 of 8

07/12/2013 07/22/2013 08/02/2013 08/13/2013
07/22/2014 11/12/2014 11/13/2014 11/13/2014 12/11/2014 12/26/2014 12/29/2014

necessary transcript is already on file. ( Appeal No. 13−1268) Text Only Entry (dbrow, ) (Entered: 07/08/2013)
39 Courtroom Minutes for Scheduling Conference held on 7/12/2013 before Judge Richard P. Matsch. ORDERED: Further Scheduling Conference set for 8/2/2013 at 02:00 PM in Conference Room. FTR: K. Terasaki. (rpmcd) (Entered: 07/12/2013)
40 ORDER Granting [Doc. 76 in 12−cv−01570−RPM] Motion for Leave to Depose Incarcerated Witness Richie Antonio Hill, by Judge Richard P. Matsch on 7/22/2013 (12−cv−01144−RPM and 12−cv−01570−RPM).(rpmcd). (Entered: 07/22/2013)
41 Courtroom Minutes for Further Scheduling Conference held on 8/2/2013 before Judge Richard P. Matsch. ORDERED: Further scheduling conference set October 1, 2013 at 2:00 p.m. Proposed scheduling order due September 23, 2013. Plaintiff's memorandum of law addressing CLA (P&A) association standing, exhaustion and PLRA due August 26, 2013. Defendants response due September 16, 2013.No reply. FTR: K. Terasaki. (rpmcd ) (Entered: 08/02/2013)
42 TRANSCRIPT of Further Scheduling Conference held on August 2, 2013 before Judge Matsch. Pages: 1−38. Prepared by: Federal Reporting Service, Inc.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 11/15/2013. (Federal Reporting Service, Inc., ) (Entered: 08/13/2013)
43 USCA ORDER AND JUDGMENT as to 34 Notice of Appeal filed by Blake R. Davis : We REVERSE the district court's order denying Davis' motion to dismisscount one and REMAND with direction to grant Davis' motion to dismiss countone. (USCA Case No. 13−1258) (This document is not the Mandate) (dbrow, ) (Entered: 07/22/2014)
44 MANDATE of USCA as to 34 Notice of Appeal filed by Blake R. Davis (USCA Case No. 13−1268) (dkals, ) (Entered: 11/12/2014)
45 ORDER OF DISMISSAL RE 43 / 44 : the "Count One", more properly identified as the First Cause of Action, in the Amended Complaint 13 is dismissed. And this Court having previously dismissed the Second Cause of Action in the Amended Complaint. Clerk shall enter final judgment dismissing this civil action, by Judge Richard P. Matsch on 11/13/2014. (jsmit) (Entered: 11/13/2014)
46 VACATED FINAL JUDGMENT re: 45 Order, by Clerk on 11/13/2014. (jsmit)(Modified on 4/24/2015 Vacated pursuant to the 56 Order)(evana, ). (Entered: 11/13/2014)
47 MOTION for Leave to Seek Relief from Judgment and Leave to Amend Complaint and Memorandum of Points and Authorities by Plaintiff Raymond Vega. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Aro, Edwin) (Entered: 12/11/2014)
48 Unopposed MOTION for Extension of Time to File Response/Reply as to 47 MOTION for Leave to Seek Relief from Judgment and Leave to Amend Complaint and Memorandum of Points and Authorities by Defendant Blake R. Davis. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 12/26/2014)
49 ORDER granting 48 Blake Daviss Unopposed motion for a 10−day extension of time to respond to Plaintiffs 47 Motion for Relief from Judgment and for Leave to Amend Complaint up to and including January 15, 2015, to respond to the motion, by Judge Richard P. Matsch on 12/29/2014.(evana, ) (Modified on 2/24/2015 corrected link to 48 Motion)(evana, ). (Entered: 12/29/2014)

Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 6 of 8

01/15/2015 01/29/2015 03/13/2015 04/14/2015 04/16/2015 04/22/2015
04/23/2015 06/12/2015 06/15/2015 06/22/2015 06/25/2015 06/25/2015 07/15/2015

50 RESPONSE to 47 MOTION for Leave to Seek Relief from Judgment and Leave to Amend Complaint and Memorandum of Points and Authorities filed by Defendant Blake R. Davis. (Attachments: # 1 Exhibit A − Certification of Identity, # 2 Exhibit B − excerpts from May 2013 hearing, # 3 Exhibit C − Policy Statement)(Padden, Amy) (Entered: 01/15/2015)
51 REPLY to Response to 47 MOTION for Leave to Seek Relief from Judgment and Leave to Amend Complaint and Memorandum of Points and Authorities filed by Plaintiff Raymond Vega. (Aro, Edwin) (Entered: 01/29/2015)
52 MINUTE ORDER Setting Hearing on 47 MOTION for Leave to Seek Relief from Judgment and Leave to Amend Complaint and Memorandum of Points and Authorities. Motion Hearing set for 4/16/2015 10:30 AM in the Conference Room, Second Floor, the Byron White United States Courthouse, 1823 Stout Street, Denver, Colorado, by Judge Richard P. Matsch on 3/13/15. (ktera) (Entered: 03/13/2015)
53 NOTICE of Entry of Appearance by Veronica Ellen Rendon on behalf of Raymond VegaAttorney Veronica Ellen Rendon added to party Raymond Vega(pty:pla) (Rendon, Veronica) (Entered: 04/14/2015)
54 MINUTE ENTRY for Motion Hearing proceedings held before Judge Richard P. Matsch on 4/16/2015. Granting 47 Motion for Leave. Plaintiff shall have to and including June 15, 2015 to file the amended complaint. FTR: Kathy Terasaki. (babia) (Entered: 04/16/2015)
55 TRANSCRIPT of Motion Hearing held on April 16, 2015 before Judge Matsch. Pages: 1−18. Prepared by: Federal Reporting Service, Inc. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Federal Reporting Service, Inc., ) (Entered: 04/22/2015)
56 ORDER Granting 47 Motion for Relief from Judgment and Leave to Amend Complaint. Final Judgment 46 entered on November 13, 2014, is vacated and the plaintiff has to and including June 15, 2015, within which to file a new amended complaint, by Judge Richard P. Matsch on 4/23/2015. (ktera) (Entered: 04/23/2015)
57 Unopposed MOTION for Extension of Time to File a Second Amended Complaint by Plaintiff Raymond Vega. (Attachments: # 1 Proposed Order (PDF Only))(Rendon, Veronica) (Entered: 06/12/2015)
58 ORDER Granting 57 Plaintiff's Unopposed Motion for an Extension of Time to file a Second Amended Complaint. Plaintiff may have up to July 1, 2015 to file a Second Amended Complaint, by Judge Richard P. Matsch on 6/15/2015. (ktera) (Entered: 06/15/2015)
59 MOTION for Discovery by Interested Party Warren Clinton. (evana, ) (Modified on 6/23/2015 corrected filer)(evana, ). (Entered: 06/23/2015)
60 Unopposed MOTION for Extension of Time to File a Second Amended Complaint by Plaintiff Raymond Vega. (Attachments: # 1 Exhibit A)(Rendon, Veronica) (Entered: 06/25/2015)
61 ORDER Granting Plaintiff's second unopposed motion for an extension of time, to and including July 15, 2015, to file his second amended complaint, by Judge Richard P. Matsch on 6/25/15. (ktera) (Entered: 06/25/2015)
62 AMENDED COMPLAINT (Second) and Jury Demand against Blake R. Davis, filed by Raymond Vega. (Attachments: # 1 Exhibit A − Part 1)(Rendon, Veronica) (Entered: 07/15/2015)

Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 7 of 8

07/15/2015 07/15/2015
07/29/2015 07/30/2015
08/12/2015 08/26/2015 08/26/2015 08/28/2015 09/02/2015 09/03/2015 10/21/2015 11/06/2015 11/09/2015
12/02/2015 12/03/2015
12/14/2015
12/31/2015

63 Exhibits in Support of 62 Amended Complaint (Second) and Jury Demand by Plaintiff Raymond Vega. (Attachments: # 1 Exhibit A − Part 2, # 2 Exhibit A − Part 3)(Rendon, Veronica) (Entered: 07/15/2015)
64 Exhibits in Support of 62 Amended Complaint (Second) and Jury Demand by Plaintiff Raymond Vega. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H − Part 1, # 8 Exhibit H − Part 2)(Rendon, Veronica) (Entered: 07/15/2015)
65 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 62 Amended Complaint by Defendant Blake R. Davis. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 07/29/2015)
66 ORDER Granting 65 Blake Davis's motion for an extension of time to respond to Plaintiff's Second Amended Complaint 62 . Mr. Davis is granted up to and including August 28, 2015, to respond, by Judge Richard P. Matsch on 7/30/15. (ktera) (Entered: 07/30/2015)
67 MOTION to Dismiss Claim Two of Second Amended Complaint by Plaintiff Raymond Vega. (Rendon, Veronica) (Entered: 08/12/2015)
68 LETTER from David L. Womack. (Attachments: # 1 Exhibit, # 2 Envelope)(cthom, ) (Entered: 08/27/2015)
69 LETTER from David L. Womack (Attachments: # 1 Exhibit, # 2 Envelope)(cthom, ) (Entered: 08/27/2015)
70 MOTION to Dismiss for Failure to State a Claim by Defendant Blake R. Davis. (Attachments: # 1 Exhibit A)(Padden, Amy) (Entered: 08/28/2015)
71 Unopposed MOTION for Extension of Time to File an Opposition in Response to the Motion to Dismiss by Blake Davis by Plaintiff Raymond Vega. (Rendon, Veronica) (Entered: 09/02/2015)
72 ORDER Granting 71 Plaintiff's unopposed motion for an extension of time, to and including October 21, 2015, to file a response to the motion to dismiss, by Judge Richard P. Matsch on 9/3/15. (ktera) (Entered: 09/03/2015)
73 RESPONSE to 70 MOTION to Dismiss for Failure to State a Claim filed by Plaintiff Raymond Vega. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Callahan, Veronica) (Entered: 10/21/2015)
74 Unopposed MOTION for Extension of Time to File Response/Reply as to 70 MOTION to Dismiss for Failure to State a Claim by Defendant Blake R. Davis. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 11/06/2015)
75 ORDER Granting 74 Defendant Blake Davis' motion for an extension of time, to and including December 4, 2015, to file a reply in support of his Motion to Dismiss Plaintiff's Second Amended Complaint, by Judge Richard P. Matsch on 11/9/15. (ktera) (Entered: 11/09/2015)
76 Unopposed MOTION for Extension of Time to File Response/Reply as to 70 MOTION to Dismiss for Failure to State a Claim by Defendant Blake R. Davis. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 12/02/2015)
77 ORDER Granting 76 Unopposed Motion for Extension to File Reply In Support of Motion to Dismiss, up to and including December 14, 2015, to respond to the Second Amended Complaint, by Judge Richard P. Matsch on 12/3/15. (ktera) (Entered: 12/03/2015)
78 REPLY to Response to 70 MOTION to Dismiss for Failure to State a Claim filed by Defendant Blake R. Davis. (Attachments: # 1 Exhibit A − Control Unit Programs, # 2 Exhibit B − Excerpts from Psychology Services Manual, # 3 Exhibit C − Discharge Summary, # 4 Exhibit D − Discharge Summary)(Padden, Amy) (Entered: 12/14/2015)
79 ORDER that the defendants motion to dismiss is granted and the Clerk shall entered judgment dismissing this civil action with an award of costs, by Judge Richard P. Matsch on 12/31/2015.(evana, ) (Entered: 12/31/2015)

Case: 1:12-cv-1144 As of: 11/19/2019 09:01 AM MST 8 of 8

12/31/2015 01/14/2016 01/21/2016 01/27/2016 01/27/2016 01/28/2016 01/28/2016 02/11/2016 02/23/2016 02/29/2016
03/14/2016 12/28/2016
02/21/2017 03/16/2017

80 JUDGMENT Pursuant to the Order for Dismissal entered by Senior Judge Richard P. Matsch on December 31, 2015, it is ORDERED AND ADJUDGED that this civil action is dismissed. Defendant is awarded costs upon the filing of a bill of costs within 14 days, by Judge Richard P. Matsch on 12/31/2015. (evana, ) (Entered: 12/31/2015)
81 Proposed Bill of Costs by Defendant Blake R. Davis. (Padden, Amy) (Entered: 01/14/2016)
82 NOTICE OF APPEAL as to 79 Order on Motion to Dismiss for Failure to State a Claim by Plaintiff Raymond Vega (Filing fee $ 505, Receipt Number 1082−4790904) (Callahan, Veronica) (Entered: 01/21/2016)
83 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 82 Notice of Appeal filed by Raymond Vega to the U.S. Court of Appeals. ( Retained Counsel, Fee paid,) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(evana, ) (Entered: 01/27/2016)
84 STIPULATION re 81 Proposed Bill of Costs by Defendant Blake R. Davis. (Padden, Amy) (Entered: 01/27/2016)
85 USCA Case Number 16−1028 for 82 Notice of Appeal filed by Raymond Vega. (evana, ) (Entered: 01/28/2016)
86 Costs Taxed in amount of $ 1,728.66 against Plaintiff (evana, ) (Entered: 01/28/2016)
87 TRANSCRIPT ORDER FORM re 82 Notice of Appeal by Plaintiff Raymond Vega (Callahan, Veronica) (Entered: 02/11/2016)
88 REPORTER TRANSCRIPT ORDER FORM filed by Kathy Terasaki re: 82 Notice of Appeal. Transcript due by 4/25/2016. (nrich) (Entered: 02/23/2016)
89 TRANSCRIPT of Scheduling Conference held on July 12, 2013 before Matsch. Pages: 1−40. Prepared by: Federal Reporting Service, Inc. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Federal Reporting Service, Inc., ) (Entered: 02/29/2016)
90 LETTER TO USCA and all counsel certifying the record is complete as to 82 Notice of Appeal filed by Raymond Vega. All transcripts ordered are now on file as of 2/29/2016. ( Appeal No. 16−1028) Text Only Entry (evana, ) (Entered: 03/14/2016)
91 USCA Order and Judgment as to 82 Notice of Appeal filed by Raymond Vega : (USCA Case No. 16−1028) Because Plaintiffs complaint fails to state a plausible Eighth Amendment deliberate indifference claim, we AFFIRM the district courts order granting the Wardens motion to dismiss. (This document is not the Mandate) (Attachments: # 1 cover letter to Order and Judgment) (evana, ) (Entered: 12/28/2016)
92 MANDATE of USCA as to 82 Notice of Appeal filed by Raymond Vega, 91 USCA Order/Judgment, : (USCA Case No. 16−1028) (evana, ) (Entered: 02/21/2017)
93 SATISFACTION OF JUDGMENT for Bill of Costs by Defendant Blake R. Davis. (Froehlke, Elizabeth) (Entered: 03/16/2017)