Peterson v. United States of America

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 VICTORIA R. PETERSON, Case No. 3:19-cv-01447-WHO

8 Plaintiff,

ORDER ON EDDINGS, WEST, AND

9 v. PUTNAM MOTIONS TO DISMISS

10 WILLIAM MARTINEZ, et al., Re: Dkt. Nos. 105, 107

Defendants.

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13 Three more defendants move to dismiss claims arising out of the sexual abuse plaintiff

14 Victoria Peterson alleges she experienced at the hands of an employee at the Federal Correctional

15 Institute, Dublin (“FCI Dublin”). According to Peterson, defendants Joel Eddings and Bruce

16 West, her work supervisors at FCI Dublin, knew about their coworker’s misconduct for months

17 and yet failed to act, instead mocking her about the abuse. When Eddings and West finally

18 detailed the abuse in a memorandum to defendant Stephen Putnam, Putnam failed to act for

19 several days while the abuse continued. Contrary to the defendants’ arguments, detailed below,

20 Peterson’s Eighth Amendment deliberate indifference claims are adequately pleaded, Eddings,

21 West, and Putnam are not entitled to qualified immunity, and this case does not present a new

22 Bivens context. Accordingly, I will deny the defendants’ motions with respect to the Eighth

23 Amendment claim but grant Putnam’s motion to dismiss the First and Fifth Amendment claims

24 against him.

25 BACKGROUND1

26 When Peterson began serving her prison sentence, she was housed at the minimum-

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1 security camp on the FCI Dublin property, where inmates live in dormitories rather than cells and

2 have more opportunities to participate in work programs. First Amended Complaint (“FAC”)

3 [Dkt. No. 36] ¶ 42. While at the camp, Peterson took community college classes to get her

4 associate degree in business management and obtained a work assignment doing landscaping and

5 welding. Id. ¶¶ 43-44.

6 According to the First Amended Complaint, defendant William Martinez was a Bureau of

7 Prisons (“BOP”) employee who worked at the adjacent low-security facility rather than the camp

8 where Peterson was housed. Id. ¶ 46. He encountered her when substituting for another BOP

9 employee at the camp and later “found ways to continue supervising her on her work

10 assignments.” Id. ¶¶ 46-47. He “contrive[d] reasons to take her away from her regular work

11 assignments to places in the camp without security cameras,” where he sexually abused her. Id. ¶¶

12 47-48. He used “active and passive coercion” and continued to abuse Peterson for over a year,

13 resisting her attempts to avoid him. Id. ¶¶ 49-50. The assaults occurred on dozens of occasions

14 and increased in frequency until they began occurring daily. Id. ¶ 51.

15 Eddings and West, Peterson’s work supervisors, were aware that Martinez was creating

16 reasons to be alone with her and substituting for other officers to work with her, and yet they did

17 nothing to stop him. Id. ¶¶ 52-53. Instead, their sarcastic comments indicated that they were

18 aware Martinez intended to abuse Peterson. Id. ¶ 54. Over time, Martinez began engaging in

19 conduct that made it obvious he was sexually abusing Peterson, including by calling her

20 “Princess,” stopping her to talk in the parking lot, and ordering other inmates to drive Peterson to

21 him. Id. ¶ 55. Other officers noticed and commented on Martinez’s unusual behavior and yet did

22 nothing to stop it. Id. ¶ 57. Eddings and West eventually began to mock Peterson about the abuse.

23 Id. ¶ 56. On one occasion, West said, “Let the games begin” immediately prior to sending

24 Peterson to work with Martinez alone. Id. On another occasion, both Eddings and West mocked

25 Peterson about the fact that Martinez had joined her project, suggesting he had done so in order to

26 abuse her. Id.

27 After a year, Eddings and West reported Martinez’s sexual abuse in a memorandum to

1 Prison Rape Elimination Act (“PREA”). Id. ¶ 59. Martinez’s abuse continued for several days

2 after the report. Id. ¶ 61. A few days after he received the memorandum, Putnam moved Peterson

3 to solitary confinement and told her that she would remain there until she confessed what Martinez

4 had done. Id. ¶ 63. He failed to give her written notice within 24 hours of why she was being held

5 in solitary confinement. Id. ¶ 68. In solitary confinement, Peterson lost access to education and

6 work opportunities along with the privileges of being housed at the camp. Id. ¶ 66.

7 Peterson spent three months in solitary confinement, during which time she experienced

8 two emotional breakdowns. Id. ¶¶ 73, 76, 79. When she complained, she was told that if she

9 wanted to get out of solitary, she should talk to Putnam. Id. ¶ 71. She understood that Putnam

10 would not release her until she confessed Martinez’s conduct. Id. A month into her confinement,

11 Putnam visited Peterson demanding a confession, which she did not give because of fear of

12 repercussions. Id. ¶ 73. During this time, Jenkins replaced Putnam as the warden of FCI Dublin.

13 Id. ¶ 74.

14 After a series of events, Peterson revealed to BOP staff that Martinez had sexually abused

15 her for months. See id. ¶¶ 77-78. After a conversation with two BOP employees, Peterson was

16 transferred to the Santa Rita Jail, where she spent about two months. Id. ¶¶ 80-81. Putnam and an

17 investigator from the Office of the Inspector General interviewed her there, and soon after the

18 interview Peterson was sent back to solitary confinement at FCI Dublin. Id. ¶¶ 81-82. After she

19 returned, Putnam added a “management variable” to Peterson’s security score, which disqualified

20 her from being housed at FCI Dublin’s camp facility. Id. ¶¶ 83-84. Peterson was later transferred

21 to FCI Aliceville in Alabama, where she was housed when she initiated this action. Id. ¶ 85. She

22 has since been released from custody.

23 On April 27, 2020, defendants Eddings and West jointly filed a motion to dismiss, and

24 Putnam separately moved to dismiss. Eddings and West Motions to Dismiss (“E&W MTD”)

25 [Dkt. No. 105]; Putnam Motion to Dismiss (“Putnam MTD”) [Dkt. No. 107]. I heard argument on

26 the motions on June 24, 2020. Dkt. No. 122.

27 LEGAL STANDARD

1 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

2 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

3 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is facially plausible when

4 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant

5 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

6 omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id.

7 While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts

8 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

9 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the

10 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the

11 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is

12 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of

13 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.

14 2008).

15 DISCUSSION

16 The three defendants before me raise the following challenges to the FAC: (i) it fails to

17 state a claim; (ii) they are entitled to qualified immunity for the conduct alleged; and (iii) there is

18 and should be no Bivens remedy with respect to the conduct alleged. I address each of these

19 arguments in turn.2

20 I. SUFFICIENCY OF THE PLEADINGS

21 The Eighth Amendment obligates prison officials to provide inmates with humane

22 conditions of confinement, which includes taking “reasonable measures” to guarantee their safety.

23 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks omitted). Prison officials

24 violate this Eighth Amendment guarantee when two elements are met. Id. at 834. First, the

25 deprivation must be “sufficiently serious,” which in failure-to-protect cases means that the

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2 As described below, I will dismiss the First and Fifth Amendment Bivens claims against Putnam

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for the reasons detailed in my March 2, 2020 Order; accordingly, I only address his sufficiency of

1 conditions of confinement posed “a substantial risk of serious harm.” Id. (internal quotation

2 marks omitted). Second, the official must have a “sufficiently culpable state of mind,” id. at 834,

3 meaning that he “must both be aware of facts from which the inference could be drawn that a

4 substantial risk of serious harm exists, and he must also draw the inference,” id. at 837.

5 Accordingly, it is not enough to show that an official should have identified a risk if he in fact did

6 not. See id. at 837–38; see also id. at 844 (“[I]t remains open to the officials to prove that they

7 were unaware even of an obvious risk to inmate health or safety.”).3

8 In Burnam v. Smith, 787 F. App’x 387, 390 (9th Cir. 2019), the Ninth Circuit reversed a

9 district court’s order granting summary judgment in favor of the supervisor of a prison employee

10 who had sexually abused the plaintiff.4 At trial, evidence was presented that the supervisor used

11 nicknames for the abusive employee and his victims that “potentially referred to [the abusive

12 employee’s] reputation for sexual harassment and abuse,” and that he failed to intervene in any

13 meaningful way when he witnessed abusive conduct firsthand. Id. The Ninth Circuit concluded

14 that a reasonable juror could have relied on this evidence to find that the supervisor “witnessed

15 sexual abuse rising to the level of an Eighth Amendment violation and did nothing about it—and

16 was therefore deliberately indifferent to the risk that Evans was sexually abusing inmates,

17 including [the plaintiff].” Id.

18 A. Eddings and West

19 There is no question that Peterson had a “clearly established” right to be “free from sexual

20 abuse”; Eddings and West do not argue otherwise. See Schwenk v. Hartford, 204 F.3d 1187, 1197

21 (9th Cir. 2000). Instead, they assert that the FAC fails to include sufficient non-conclusory

22 allegations that they subjectively knew of and disregarded the substantial risk that Martinez posed

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3 Eddings and West rely on Alfrey v. United States, 276 F.3d 557, 567 (9th Cir. 2002) to argue that

Peterson’s claim is subject to a heightened pleading standard that requires “‘nonconclusory

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allegations containing evidence of unlawful intent.’” But Alfrey relied on Branch v. Tunnell, 937

F.2d 1382, 1386 (9th Cir. 1991) (Branch I) for that proposition, and Branch I and Branch II were

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later overruled by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

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4 Contrary to the suggestion by Eddings and West that Burnam involved a defendant’s failure to

1 to Peterson. E&W MTD 5–7, 16–17. Peterson counters that her allegations show not only that

2 Eddings and West knew “of the risk that Martinez was sexually abusing her, but were aware of the

3 actual, ongoing abuse” she was suffering. Oppo. E&W MTD [Dkt. No. 117] 6.

4 The FAC sufficiently alleges that Eddings and West were aware of and deliberately

5 indifferent to Martinez’s ongoing sexual abuse. The FAC alleges (i) that there were numerous

6 signs from which one could infer Martinez was sexually abusing her, (ii) that Eddings and West

7 were aware of these facts, and (iii) critically, that they took actions and made comments that

8 indicated their actual subjective awareness. On the last point, Peterson’s complaint describes two

9 specific occasions on which Eddings and West made comments and taunts that referred to her

10 ongoing sexual abuse. These allegations state a claim for deliberate indifference in violation of

11 the Eighth Amendment.

12 Eddings and West’s contrary arguments are unpersuasive, particularly at the pleading

13 stage. Peterson need not plead that she informed Eddings and West of the abuse, that they

14 observed her with a physical injury, or that Martinez had a known history of abuse in order to

15 plausibly plead their knowledge and deliberate indifference. See E&W MTD 6, 17. Further,

16 though Eddings and West argue that Peterson fails to support the suggestion that they mocked her

17 “because they knew that she was being sexually abused,” the content of their alleged comments—

18 especially in light of the clues that Peterson says were readily apparent—could suggest exactly

19 that. See id. (emphasis in original); see also Reply E&W MTD [Dkt. No. 118] 14. And according

20 to Peterson, that is how she understood the comments. Eddings and West are welcome to present

21 evidence and argument that those statements meant something different, that they were unaware of

22 Martinez’s allegedly unusual conduct toward Peterson, and/or that they failed to infer from these

23 clues that Martinez was sexually abusing her. But Peterson has alleged more than enough for her

24 case to proceed.

25 B. Putnam

26 Putnam, too, argues that the facts alleged in the FAC are insufficient to demonstrate that he

27 was subjectively aware of a substantial risk of serious harm to Peterson’s safety. Instead,

1 communicated a threat of serious harm. Putnam MTD 20.

2 The allegations in the FAC are sufficient to state an Eighth Amendment claim against

3 Putnam. Peterson alleges that Eddings and West informed him not just of a risk of serious harm

4 but of serious harm that was longstanding and ongoing. Crediting her allegations as I must at this

5 stage, the memorandum put Putnam on notice, at which point the Eighth Amendment obligated

6 him to take reasonable measures to protect Peterson’s safety. During the several days that he

7 failed to act despite his knowledge, the abuse allegedly continued. Putnam is welcome to argue as

8 the case continues that he was not aware of the sexual abuse, that he did not have the requisite

9 state of mind, and that his response was sufficient under the law to protect Peterson. But the facts

10 alleged are sufficient at the pleading stage.

11 II. QUALIFIED IMMUNITY

12 Federal officials are entitled to a qualified immunity defense5 whether they are facing

13 claims under Bivens or Section 1983. See Johnson v. Fankell, 520 U.S. 911, 914–15 (1997). “The

14 doctrine of qualified immunity protects government officials from liability for civil damages

15 insofar as their conduct does not violate clearly established statutory or constitutional rights of

16 which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

17 (internal quotation marks and citation omitted); see Harlow v. Fitzgerald, 457 U.S. 800, 818

18 (1982).

19 To determine whether an official is qualifiedly immune from suit, courts engage in the

20 two-step analysis set forth in Saucier v. Katz, 533 U.S. 194, 201 (2001). See Pearson, 555 U.S. at

21 236 (determining that the sequence set forth in Saucier is not mandatory and that courts can

22 exercise their discretion to proceed in the order appropriate for a particular case). The first, but no

23 longer threshold, question is, “Taken in the light most favorable to the party asserting the injury,

24 do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier, 533 U.S.

25 at 201; see Pearson, 555 U.S. at 236. If the answer is no, the inquiry ends. Id. The second

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5 The reader is referred to the excellent opinion of the Hon. Carlton W. Reeves in Jamison v.

1 question is “whether the right was clearly established,” an analysis that “must be undertaken in

2 light of the specific context of the case, not as a broad general proposition.” Id. “[T]he relevant,

3 dispositive inquiry in determining whether a right is clearly established is whether it would be

4 clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Estate

5 of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002) (internal quotation marks and

6 citation omitted).

7 As set forth above, the allegations in Peterson’s FAC, if proven, are sufficient to show that

8 Eddings, West, and Putnam violated her Eighth Amendment rights when they failed to protect her.

9 And as a general matter, Peterson’s right to be free from sexual abuse was clearly established at

10 the time of the conduct in question. See Farmer v. Brennan, 511 U.S. 825, 828 (1994) (“A prison

11 official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the

12 Eighth Amendment.”); Schwenk, 204 F.3d at 1197 (“In the simplest and most absolute terms, the

13 Eighth Amendment right of prisoners to be free from sexual abuse was unquestionably clearly

14 established prior to the time of this alleged assault, and no reasonable prison guard could possibly

15 have believed otherwise.”); see also Ramos v. Swatzell, 669 F. App’x 486, 487 (9th Cir. 2016).

16 The question is whether, under the circumstances alleged in the FAC, “a reasonable correctional

17 officer would have clearly understood that the risk of serious harm was so high” that he needed to

18 act to protect Peterson from sexual abuse. See Ford, 301 F.3d at 1051; see also id. at 1045 (“Even

19 though the constitutional issue turns on the officers’ state of mind (here, deliberate indifference to

20 a substantial risk of serious harm), courts must still consider whether—assuming the facts in the

21 injured party’s favor—it would be clear to a reasonable officer that his conduct was unlawful.”).

22 In Ford, the Ninth Circuit determined that prison officials were entitled to summary

23 judgment on their qualified immunity defense because the facts did not establish that a reasonable

24 officer would “necessarily have perceived” that the decedent inmate’s cellmate posed an

25 “excessive risk of serious harm.” Id. at 1051. The inmate attacker had an extensive history of

26 violence in the prison, had the highest security level, was classified as a “predator,” had been

27 exhibiting bizarre behavior after discontinuing his medication, and had a recent note in his file

1 celled with the victim and others without incident, he had been under observation for two weeks,

2 and he had resumed his medication. Id. at 1046, 1051. For these and other reasons, the prison

3 officials maintained his classification as an inmate who could be safely double celled and therefore

4 placed the victim in the cell with him. See id. at 1051. The Ninth Circuit determined that the

5 officials were entitled to qualified immunity because “the evidence [did] not show that Ford faced

6 an intolerable risk.” Id. at 1052; see also Swan v. United States, 159 F. Supp. 2d 1174, 1182–83

7 (N.D. Cal. 2001), aff'd, 32 F. App’x 315 (9th Cir. 2002) (granting summary judgment in favor of a

8 prison psychologist because although the inmate expressed fear of his fellow inmates, he also self-

9 described as “paranoid” and did request any preventive measures from prison officials).

10 According to Eddings and West, the allegations in the FAC are significantly less serious

11 than the facts at issue in Ford. They argue that “[a]rmed with only the knowledge that Martinez

12 and Plaintiff often worked on the same assignments,” they could not have clearly understood that

13 Peterson faced a risk of serious harm requiring their protection. E&W MTD 9. Putnam argues

14 that Peterson fails to present plausible facts to support a finding that a reasonable official would

15 know that the actions alleged were unlawful. Putnam MTD 23.

16 I disagree with the defendants. Viewing the allegations in the light most favorable to

17 Peterson, a reasonable officer would have understood that it was constitutionally impermissible to

18 fail to protect Peterson from Martinez’s ongoing abuse. As Peterson points out, the facts of her

19 case differ from the cases cited because she does not allege that Eddings, West, and Putnam failed

20 to prevent future risk but rather that they knew of and failed to prevent ongoing sexual abuse by

21 Martinez. See Oppo. E&W 11 (“Where the defendants have actually drawn the inference that

22 abuse is occurring, there is no room for them to ‘mistakenly, but reasonably’ believe that their

23 failure to respond to the abuse is constitutionally permissible.”) (citations omitted). Peterson need

24 not have warned Eddings and West of the continuing danger she faced if they already realized as

25 much. Further, she need not have told Putnam about the abuse if Eddings and West already had.

26 Finally, both Ford and Swan were decided on summary judgment with the benefit of discovery.

27 See Ford, 301 F.3d at 1053; Swan, 159 F. Supp. 2d at 1185. For all of these reasons, the

1 III. BIVENS CLAIMS

2 The Supreme Court recognized an implied cause of action for constitutional violations for

3 the first time in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

4 (1971). In 2017, the Supreme Court decided that since Bivens and its progeny, expanding such

5 implied remedies has become “a disfavored judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843,

6 1857 (2017) (internal quotation marks omitted). Courts are to engage in the following analysis

7 when presented with plaintiffs seeking to proceed under Bivens:

First, courts must determine whether the plaintiff is seeking a Bivens

8 remedy in a new context. If the answer to this question is no, then no

further analysis is required. If the answer is yes, then the court must

9 determine whether special factors counsel hesitation.

10 Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018) (internal quotation marks, formatting, and

11 citations omitted).

12 A. Eighth Amendment Claims Against Eddings, West, and Putnam

13 The parties first dispute whether Peterson’s Eighth Amendment claim presents a new

14 context under Abbasi. I conclude that it does not.

15 As noted above, in 1994 the Supreme Court recognized a Bivens damages remedy for

16 Eighth Amendment failure-to-protect claims in Farmer, where an inmate brought claims for

17 sexual abuse by another inmate. Farmer, 511 U.S. at 829–34. Although Abbasi’s language

18 sweeps broadly and fails to cite Farmer as a recognized Bivens context, the Third Circuit found

19 that Farmer’s absence did not indicate that it was, “by implication, overruled.” Bistrian v. Levi,

20 912 F.3d 79, 91 (3d Cir. 2018). In that case, the Third Circuit noted that it was possible the

21 Abbasi Court “simply viewed the failure-to-protect claim as not distinct from the Eighth

22 Amendment deliberate indifference claim in the medical context,” which would explain why it

23 cited only Carlson v. Green, 446 U.S. 14, 16 (1980) (authorizing a remedy for failure to provide a

24 prisoner medical treatment under the Eighth Amendment). Bistrian, 912 F.3d at 91.

25 Further, since Abbasi the Ninth Circuit decided Burnam, in which it reversed and

26 remanded an Eighth Amendment claim for deliberate indifference to the risk that a prison

27 employee was sexually abusing inmates—precisely the context at issue here. See Burnam, 787 F.

1 with inmate-on-inmate sexual violence, while Peterson’s involves staff-on-inmate sexual violence,

2 is not a material fact that transforms this case into a new Bivens context. See id. (addressing

3 employee-on-inmate sexual abuse). The defendants criticize Burnam and other cases for failing to

4 cite Abbasi, but the Ninth Circuit clearly viewed Farmer as the viable and controlling authority

5 even after Abbasi. See E&W MTD 11 n.1; Putnam MTD 10–11 n.4.

6 Peterson’s claim for an Eighth Amendment violation does not fall under a new Bivens

7 context. Accordingly, I need not proceed to the special factors analysis under Abbasi. See

8 Lanuza, 899 F.3d at 1023.

9 B. First and Fifth Amendment Claims Against Putnam

10 Putnam moves to dismiss the First and Fifth Amendment claims against him, arguing that

11 they present a new context under Abbasi and that the special factors favor caution in extending the

12 Bivens remedy here. Peterson recognizes that I have already ruled on the question of expanding

13 the Bivens remedy to encompass the non-Eighth Amendment Bivens claims at issue here and

14 preserves the arguments she made in her Opposition to Wiley Jenkins’s Motion to Dismiss. Oppo.

15 Putnam MTD 23–24; see generally Dkt. No. 71. I incorporate by reference the discussion on

16 pages 14–18 of my March 2, 2020 Order. Dkt. No. 84. Briefly stated, post-Abbasi Peterson’s

17 First and Fifth Amendment claims against Putnam present a new Bivens context. Given the

18 uncertainty around Congress’s view of claims like these, the Abbasi Court’s focus on separation of

19 powers, and the general availability of alternative remedies (although Peterson maintains that

20 those remedies are not available to her), Putnam’s motion to dismiss the First and Fifth

21 Amendment Bivens claims against him is GRANTED.

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1 CONCLUSION

2 For the reasons set forth above, the motion to dismiss by Eddings and West is DENIED.

3 Putnam’s motion to dismiss is GRANTED IN PART and DENIED IN PART.

4 IT IS SO ORDERED.

5 Dated: August 12, 2020

6 .

7 °

liam H. Orrick

8 United States District Judge

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