Petition for Writ of Certiorari — United States v. Smith (No. 09-549)

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No.

Jn the Supreme Court of the Gnited States

UNITED STATES OF AMERICA, ETAL., PETITIONERS

BYRON SMITH

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

NEAT. KIIMAR KATYAL

Deputy Solicitor General

SARAH EE. HARRINGTON

Assistant to the Solicitor

General

BARBARA L. HERWIG

EDWARD HIMMELFARB

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Inmate Accident Compensation Act, 18

U.S.C. 4126(¢), which this Court has found provides the

“exclusive” remedy for a federal prisoner suffering a

work-related injury, see United States v. Demko, 385

U.S. 149, 152, 154 (1966), bars a suit against individual

government employees based on Bivens v. Six Unknown

Named Agents of ’ederal Bureau of Narcotics, 403 U.S.

388 (1971).

(1)

PARTIES TO THE PROCEEDING

The petitioners are the United States, Eddie Gal-

legos, William E. Howell, Jr., John Parent, Teresa Hart-

field, Jeffery Sinclair, and Stephanie Wheeler.

The respondent is Byron Smith.

TABLE OF CONTENTS

Page

PE CIE a cakes pare ee Eee ee ]

PUTO Sis i. ee 0a as ee ]

Constitutional and statutory provisions involved ........... 2

So RTP ere TET ere rere ret ok Cet ree ee ris ee 3

Reasons for granting the petition ................ 000008 1]

BE Er Eee TE er ee nS 16

Appendix A - Court of appeals opinion (Mar. 31, 2009) ... la

Appendix B - Court of appeals judgment (Mar. 31,

OEE bck ives cA ewe ee 40a

Appendix C — District court memorandum and order

Ce rere ye rrr

Appendix D —- District court memorandum and order

(ERIE. St eee 6 tas auncucerie pen eurres 36a

Appendix EF — District court memorandum and order

(SN Ty Ee haw ute vave ry lenee ress 40a

Appendix F - District court judgment (July 26, 2007)... 5la

Appendix G — Court of appeals order (June 8, 2009) .... 52a

TABLE OF AUTHORITIES

Cases:

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ............... 14

Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997) ..... 9,10, 12

Bell Atlantic Co. v. Twombly, 550 U.S. 544 (2007) ...... 1]

Berry v. Federal Prison Indus., Inc., 440 F. Supp.

REST CBE GAR TOF? ios c cv es en oe hee Pea 5

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ............ 6

Bush v. Lucas, 462 U.S. 367 (1983) ..... 6, 10,11, 12, 14, 15

Carlson v. Green, 446 U.S. 14 (1980) .. 0.2.02... 10, 13

(IT)

Cases—Continued: Page

Castaneda v. United States, 546 F.3d 682 (9th Cir.

2008), petitions for cert. granted, No. 08-1529

and No. 08-1547 (Sept. 30, 2009), petition for

cert. dismissed, No. 08-1547 (Oct. 29, 2009) ....... 11,13

Cooleen v. Lamanna, 248 Fed. Appx. 357 (3d Cir.

se ar ear aranrar err eer yey eer aNe irae 12

Correctional Servs. Corp. v. Malesko, 534 U.S. 61

6 Pere eg Tee rey eS TT TTT Teer ere eT eee 14

Schweiker v. Chilicky, 487 U.S. 412 (1988) .... 10,11, 14,15

Springer v. United States, No. 99-6276, 2000 WL

bie rer (60 Cal. BO, BD) nao wk i vee tc bec bees 12

Thompson v. Federal Prison Indus., 492 F.2d 1082

Ee EE os paccuus ve seca tod wee eee ea ae os 5

United States v. Demko, 385 U.S. 149

Se ge ay ae see ae eee ee 3, 4, 5, 6, 12,13

United States v. Lorenzetti, 467 U.S. 167 (1984) ......... 3

Vaccaro v. Dobre, 81 F.3d 854 (9th Cir. 1996) .......... 12

Walls v. Holland, No. 98-6506, 1999 WL 993765

ee I ee rs ee 12

Wilkie v. Robbins, 551 U.S. 537 (2007) .... 10,11, 12, 14,15

Wilson v. Libby, 5385 F.3d 697 (2008), cert. denied,

Deer oe Oe, ee Ce) nk kc cc te eeuw paves euwncaaaes 15

Constitution, statutes, regulations and rules:

che © ee. PE ee eae ee ek 2,7,9, 1]

Act of Sept. 26, 1961, Pub. L. No. 87-317, 75 Stat. 681 .... 4

Administrative Procedure Act, 5 U.S.C. 701 et seg. ...... 5

Federal Employees’ Compensation Act (1916),

5 U.S.C. 8101 et seq.

°°

——

Statutes and regulations and rules—Continued Page

Federal Tort Claims Act, 28 U.S.C. 2671 et seg. ......... 6

Inmate Accident Compensation Act:

BO Urs GEE) 5 ck cae ee ee ey a ey

RIBS ie 2 | RE ea eee Aa ree ary aE 3

See ee ED oi 5 5.0 scab 09 haere eheeeees 6

EO ea ay ae e eve ed ere 6 Cee ey

28 C.F.R.:

ee yk ealaeeek een 4

ND Rs I BR o6iccc kc rk oe W one ees ORAS 4

Section 301.203 f

NE I Os on 5 op ery ecko be ee OR 4

os cy oe px wk oe Ge ee 4,5

Se Di sc pe oe cee aes 24400 ba eee eeS 5

a. ae ya wae bees ORS S Aa 5

rT Ce ls ds a vee yaa aes ee ee 5

ne Oa ea eae nea een 5

Section 301.309 5

IE 5-2 5 bade a eh ease nea eee 5

See NE ESE 0h cs ork oe a eee 5

section 301.314(a) ........ areas 4

Section 301.314(b) . 5

UN RN 8g ok ne cs ete e eves wnws OR? eek FY 6

section 345.10 ... See rte Pre Pe rr 3

Section 545.20 Pr otaere Ca atan 3

Section 545.20(a) 3

Per NE kek oe en ca ee eee 6

Regulations and rules—Continued

sections 549.10-549.31

Sections 549.50-549.51

red. KR. Civ, P.:

Rule 5O(e)

Rule 60(b)

Rule 60(b)(6)

Jn the Supreme Court of the Gnited States

No.

UNITED STATES OF AMERICA, ET AL., PETITIONERS

(OP

BYRON SMITH

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States,

Eddie Gallegos, William E. Howell, Jr., John Parent,

Teresa Hartfield, Jeffery Sinclair, and Stephanie

Wheeler, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., zzfra, la-

29a) is reported at 561 F.3d 1090. The opinions of the

district court (App., 22fra, 32a-39a, 40a-50a) are unre

ported.

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 2009. A petition for rehearing was denied on

June 8, 2009 (App., z2fra, 52a). On August 19, 2009, Jus

(1)

tice Sotomayor extended the time within which to file a

petition for a writ of certiorari to and including October

6, 2009. On September 28, 2009, Justice Sotomayor fur-

ther extended the time to and including November 5,

2009. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the United States Consti-

tution provides:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

U.S. Const. Amend. VIII.

The Inmate Accident Compensation Act provides, in

relevant part:

in accordance with the laws generally applicable to

the expenditures of the several departments, agen-

cies, and establishments of the Government, is autho-

rized to employ the fund, and any earnings that may

accrue to the corporation—

ck & K

(4) in paying, under rules and regulations

promulgated by the Attorney General, compensa-

tion to inmates employed in any industry, or per-

forming outstanding services in institutional op-

erations, and compensation to inmates or their

dependents for injuries suffered in any industry

or in any work activity in connection with the

maintenance or operation of the institution in

which the inmates are confined.

In no event may compensation for such injuries be

paid in an amount greater than that provided in

chapter 81 of title 5.

18 U.S.C. 4126(c) and (c)(4).

STATEMENT

1. The Federal Bureau of Prisons (BOP) operates

work programs for federal prisoners in order to reduce

inmate idleness and to develop job skills and work ha-

bits that will assist the inmates after their release.

28 C.F.R. 345.10, 545.20(a). Inmates who are physically

and mentally able to work are required to participate in

a work program and are permitted to receive compensa-

tion for their work. 28 C.F.R. 545.20.

In 1934, Congress enacted the Inmate Accident Com-

pensation Act (LACA), 18 U.S.C. 4126(¢), to permit a

workers’ compensation scheme for federal prisoners just

as it had, in 1916, enacted the Federal Employees’ Com-

pensation Act (FECA) (now codified at 5 U.S.C. 8101 ef

seq.) to provide a workers’ compensation scheme for

federal employees, see United States v. Lorenzetti, 467

U.S. 167, 176 (1984). The IACA authorizes the payment

of funds, “under rules and regulations promulgated by

the Attorney General,” to compensate inmate workers

or their dependents “for injuries suffered in any indus

try or in any work activity in connection with the main

tenance or operation of the institution in which the in-

mates are confined.” 18 U.S.C. 4126(¢).' The statute

Initially, the LACA permitted compensation only for injuries oc-

curring in Federal Prison Industries, which is a federal corporation that

was established in 1934 “to expand an industrial training and rehabilita-

tion program for prisoners initiated by” a prior congressional act

l/nited States v. Demko, 385 U.S. 149, 149-150 & n.1 (1966). The stat-

ute’s coverage was expanded in 1961 to cover injuries occurring during

specifies that compensation for prisoners’ injuries may

not exceed what is provided by FECA. /bid.

As this Court has recognized, when Congress creates

workers’ compensation schemes, it is generally moti-

vated by “a desire to give injured workers a quicker and

more certain recovery than can be obtained from tort

suits based on negligence and subject to common-law

defenses to such suits.” U/nited States v. Demko, 385

U.S. 149, 151 (1966). Although the IACA serves that

purpose today, at the time it was enacted, it served a

more fundamental purpose for inmates injured during

prison work assignments because it provided “injured

federal prisoners the only chance they had to recover

damages of any kind. Its enactment was 12 years prior

to the 1946 Federal Tort Claims Act.” /d. at 152.

The regulatory scheme implementing the [ACA pro-

vides two types of compensation to inmates who are in-

jured on the job. The first type of payment compensates

the inmate for wages lost as a result of his injury.

28 C.F.R. 301.101(b), 8301 Subpt. B. Lost wages are com-

puted at 75% of the standard hourly rate and are avail-

able for time lost in excess of three consecutively sched-

uled days of absence due to the work-related injury.

28 C.F.R. 301.203. Payments generally continue until,

inter alia, the inmate is released, is transferred

to another institution, or returns to work. 28 C.F.R.

301.204(a).

The second type of payment provides compensation

to an inmate after he is released if he continues to suf-

fer a residual physical impairment as a result of the

work-related injury. 28 C.F.R. 301.303(a), 301.314(a).

any work-related assignment in prison. Act of Sept. 26, 1961, Pub. L

No. 87-317, 75 Stat. 681 (18 U.S.C. 4126); see Demko, 385 U.S. at 153 &

n.7

Such payments are based on the FECA payment sched-

ule, 28 C.F.R. 301.314(b), which is the same schedule

that applies to federal employees injured on the job.

This Court has noted that the payments “compare| | fa

vorably with compensation laws all over the country,”

and, indeed, “offer{}) far more liberal payments than

many of the state compensation laws.” Demko, 385 U.S.

at 152-153. Because payments for physical impairment

are not made until the prisoner's release, the regulations

implementing the [ACA provide that claims may not be

submitted until 45 days prior to the release. 28 C.F.R

301.303(a).

The regulations implementing the IACA also offer

prisoners a variety of procedural safeguards: the right

to be represented by any person not confined in a cor-

rectional facility, 28 C.F. R. 301.304(a); written notice of

the basis for decision, including notification of a right to

appeal, 28 C.F.R. 301.305; a right to appeal to an Inmate

Accident Compensation Committee, 28 C.F.R. 301.306;

the right to submit additional documentation to the

Committee beyond what is in the record, 28 C.F.R.

301.308; the right to a hearing in person before the Com-

mittee, 28 C.F.R. 301.309; a right to present witnesses

at the hearing, 28 C.F.R. 301.310; and a right to further

review of the Committee’s decision by the Chief Operat

ing Officer of Federal Prison Industries, 28 C.F.R.

301.313. In addition, awards made to prisoners under

the scheme implementing the [ACA are subject to judi

clal review in district court under the Administrative

Procedure Act, 5 U.S.C. 701 et seg. Thompson v. Fed

eral Prison Indus., 492 F.2d 1082, 1084 & n.d (Sth Cir.

1974); Berry v. Federal Prison Indus., Inc., 440 F. Supp.

1147, 1148-1149 (N.D. Cal. 1977).

Differences between the compensation scheme pro

mulgated pursuant to the [ACA and other workers’ com-

pensation schemes (such as the FECA) are “due in the

main to the differing circumstances of prisoners and

nonprisoners.” Demko, 385 U.S. at 152. As the regula

tions implementing the IACA note, compensation

awards under the [ACA are different from awards in a

non-prison context in part because “hospitalization is

usually completed prior to the inmate’s release from the

institution and, except for a three-day waiting period,

the inmate receives wages while absent from work.”

28 C.F.R. 301.318. Moreover, there are “|o]ther factors

{that] necessarily must be considered that do not enter

into the administration of civilian workmen’s compensa-

tion laws.” /bid. A work-related injury has economic

consequences for an injured person if the injury pre-

vents the person from working or requires out-of-pocket

expenses. When that worker is a prisoner, the LACA

compensates the worker for a significant portion of any

lost wages while the inmate is in prison. But prisoners

have no out-of-pocket expenses comparable to those

of non-prisoners; while incarcerated, prisoners are pro-

vided with medical attention without charge, as well as

food, clothing, and shelter. See, eg., 18 U.S.C.

4042(a)\(2) (shelter): 28 C.F. R. 549.10-549.31, 549.50

549.51 (medical care), 547.20 (food).

2. Respondent filed his pro se complaint against the

United States, the Attorney General of the United

States, BOP, the United States Penitentiary at

Leavenworth (Leavenworth), and various employees and

administrators at BOP and Leavenworth, seeking dam-

ages under the Federal Tort Claims Act (FTCA), 28

U.S.C. 2671 et seqg., and under Bivens v. Sia Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), for alleged violations of the Eighth Amend-

ment. App., 7zfra, 2a. Respondent initially filed his suit

in United States District Court in the District of Colum-

bia; it was then transferred to the District of Kansas.

Id. at 6a.

Respondent alleges that, while he was a federal pris-

oner incarcerated at Leavenworth, he was exposed to

asbestos while on a work detail with an electrical crew.

App., 7nfra, 3a-6a, 42a-43a. The complaint alleges that,

at some point between April and June 2008, respon

dent’s crew received a work order from Janet Durbin to

install a light fixture in a large closet of a classroom at

Leavenworth. /d. at 3a-4a, 42a. While respondent’s

crew worked in the closet, fellow inmate Carlos Gonzales

asked to borrow tools from respondent in order to pull

pipes off the wall in the closet. /d. at 4a, 42a. When re-

spondent refused (consistent with prison policy), Gonza-

les requested and received tools from Durbin and began

pulling insulation off the pipes. /b7d. As Gonzales

worked, the air in the closet filled with dust, and respon-

dent’s crew had to stop working until the dust settled.

Tbid.

The following day, the crew returned to the closet to

finish installing the light fixture, again under the super-

vision of Durbin. App., infra, 4a-5a, 42a-48a. Fellow

inmate Gonzales once again arrived and began pulling

insulation off of pipes in the closet, causing dust to fill

the air in the closet. /b:d. Respondent’s work crew was

told to stop working again until the dust settled, and

Durbin directed Gonzales to leave the closet. /bid.

When the dust had cleared, respondent’s crew again

returned to the closet and finished the work with the

help of petitioner Jeffrey Sinclair (a supervisor). /d. at

Du.

Approximately two years iater, in March 2005, re-

spondent filed a request for an administrative remedy

concerning his exposure to the dust in the closet, which

he alleged contained asbestos. App., 7zfra, 48a. His

request, and all subsequent appeals, were denied. /d. at

43a-44a.- Respondent filed this action on January 30,

2006.”

3. The district court granted petitioners’ motion

to dismiss. The court first held that respondent was

barred from litigating his Bzvens and FTCA claims be-

cause the [ACA “provides the exclusive remedy” for

inmate workers who are injured on the job. App., enfra,

46a. The court held in the alternative that respondent

could not prevail on his Bivens and FTCA claims in any

case because he had failed to state a claim under either

body of law.*

Respondent also filed an administrative claim under the FTCA,

which was denied on October 3, 2005. Compl., Doe. 1-1, Exh. G.

On March 27, 2006, respondent filed an amended complaint, adding

a claim relating to the loss of his medical recerds. Although he filed a

request for an administrative remedy relating to the records, he did not

file a related administrative claim under the FTCA. First Amended

Compl. 2-5.

The court found that respondent’s Bivens claim must fail because

he did not allege that each individual petitioner was aware of a

substantial risk of asbestos exposure; because he did not allege that

Durbin, the Attorney General, petitioner Gallegos, and petitioner

I.appin were involved in the possible exposure; and because the court

lacked personal jurisdiction over Lappin. App., 7nfra, 48a-50a. With

respect to respondent's FTCA claim, the court found that he had failed

to plead a “significant physical injury” permitting him to seek damages

for a mental or emotional injury under the FTCA, zd. at 46a-47a, and

that he could not pursue a claim related to lost medical reeords because

prisoners lack a protected property interest in prison property, ’d. at

47aA&a.

Three months later, respondent filed a motion pursu-

ant to Rule 60(b) of the Federal Rules of Civil Procedure

challenging certain statements in the court’s opinion.

The court denied the motion, holding that the plaintiff

failed to specify exceptional circumstances for relief un-

der Rule 60(b)(6). App., infra, 37a-39a. Respondent

then filed a motion under Federal Rule of Civil Proce-

dure 59(e). The court also denied that motion, stating

that the “allegedly ‘new’ evidence” respondent sought to

rely on was not material, and that “the court properly

construed the Rule 60(0) motion as one for relief under

Rule 60(b)(6).” App., infra, 34a.

4. Respondent appealed both the order granting the

motion to dismiss and the order denying his Rule 59(e)

motion. The court of appeals affirmed in part and re-

versed in part. App., »nfra, la-29a. The court first af-

firmed dismissal of the FTCA claim as to all petitioners

and the Bivens claim as to the Attorney General and

Director of BOP. /d. at 14a-16a, 29a. But it reversed

the dismissal of the Bivens claim as to all other defen-

dants. /d. at 16a-29a.

The court of appeals held that the IACA does not

preclude a Bivens remedy against an individual prison

official who allegedly violates the Eighth Amendment in

the context of an inmate work assignment. App., infra,

16a-24a. The court adopted the reasoning of the Sev-

enth Cireuit in Bagola v. Kindt, 131 F.3d 632 (1997),

which had held that the availability of the [ACA’s reme-

dial scheme for work-related prison injuries does not

preclude a separate Bivens action, based on the same

facts, against individuals who allegedly violated the Con-

stitution. App., 272fra, 2la-24a.

Both the court of appeals in this case and the Sev-

enth Circuit in Bagola relied on this Court’s analysis in

Carlson v. Green, 446 U.S. 14 (1980), that courts should

not infer a Bivens remedy when Congress has provided

an alternative remedy that it “explicitly declared to be

a substitute for recovery” or when “special factors coun-

sel[] hesitation in the absence of affirmative action by

Congress.” App., 22fra, 18a-19a (quoting Carlson, 446

U.S. at 18-19). Both courts held that the IACA “con-

tains no explicit congressional statement that a Bivens

remedy should not be available to federal prisoners com-

pensated under the statutory scheme.” /d. at 22a (quot-

ing Bagola, 131 F.3d at 639). The court of appeals here

also adopted the Bagola court’s “special factors” analy-

sis, which concluded that a Bivens remedy should not be

precluded in this context because the LACA does not

sufficiently deter unconstitutional behavior by individu-

als and does not provide plaintiffs with a forum for

bringing to light unconstitutional behavior. /d. at 22a-

23a (relying on Bagola, 131 F.3d at 642-645). Those fac-

tors, the courts held, distinguished this context from

those at issue in Bush v. Lucas, 462 U.S. 367 (1983), and

Schweiker v. Chilicky, 487 U.S. 412 (1988), in which this

Court declined to create a Bivens remedy.

The court of appeals below rejected petitioners’ ar-

gument that the court should consider whether to recog-

nize anew Bivens remedy in this case by using the anal-

ysis this Court recently set out in Wilkie v. Robbins, 551

U.S. 537 (2007); the court adopted instead the pre-

Wilkie Bagola court’s analysis of “special factors.”

App., infra, 22a-23a. The court below also stated, in any

event, that no analysis of whether to recognize a new

Bivens remedy was necessary because this Court in

Carlson had already recognized a Bivens remedy for “an

Kighth Amendment violation by prison officials.” /d. at

20a n.11 (citation omitted).

The court of appeals also held that the complaint and

amended complaint had adequately pleaded the defen-

dants’ awareness of asbestos, and that the plaintiff’s

Eighth Amendment claim was therefore plausible under

Bell Atlantic Co. v. Twombly, 550 U.S. 544 (2007). App.,

infra, 24a-29a. The court remanded the case for further

proceedings. /d. at 29a-31a.

5. The court of appeals denied petitioners’ petition

for rehearing en banc on June 8, 2009. App., 22fra, 52a.

REASONS FOR GRANTING THE PETITION

The court of appeals erred in concluding that the

remedial scheme implementing the IACA, 18 U.S.C.

4126(c), does not preclude a court from creating a

Bivens remedy for Eighth Amendment deliberate indif

ference claims by an inmate who is injured during a

prison work assignment. The court’s decision and rea-

soning are inconsistent with this Court’s decisions and

reasoning in Bush v. Lucas, 462 U.S. 367 (1983),

Schweiker v. Chilicky, 487 U.S. 412 (1988), and Wilkie

v. Robbins, 551 U.S. 537 (2007).

On September 30, 2009, this court granted a petition

for a writ of certiorari in Hui v. Castaneda, No. 08-1529

(Castaneda).’ That case present the question whether

42 U.S.C. 233(a) bars a Bivens action against a commis-

sioned officer or employee of the Public Health Service

by providing that a suit against the United States under

the FTCA is exclusive of any other action against such

* On September, 30, 2009, this Court granted petitions for writs of

certiorari in two cases arising out of the Ninth Circuit’s decision in

Castaneda v. United States, 546 F.3d 682 (2008). See Hui v.

Castaneda, No. 08-1529; Henneford v. Castaneda, No. 08-1547. On

October 29, 2009, the Court dismissed the writ of certiorari in

Henneford v. Castaneda, No. 08-1547.

an officer or employee for injury resulting from the per-

formance of medical functions. This case presents a sim-

ilar question in the context of another federal statute,

the IACA, which this Court has held is the “exclusive”

remedy for a federal prisoner suffering a work-related

injury. See United States v. Demko, 385 U.S. 149, 152,

154 (1966).° This Court’s resolution of the question pre-

sented in Castaneda is likely to supply the appropriate

analysis for this case as well. Thus, the Court should

hold this petition pending the Court’s decision in Cast-

aneda, and then dispose of it accordingly.

This Court recently held in Wilkze that a court’s con-

sideration of “whether to recognize a Bivens remedy

may require two steps.” 551 U.S. at 550. First, a court

must determine “whether any alternative, existing pro-

cess for protecting the interest [at stake] amounts to a

convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in dam-

ages.” /bid. Second, in the absence of such an alterna-

tive remedy, “the federal courts must make the kind of

remedial determination that is appropriate for a com-

mon-law tribunal, paying particular heed, however, to

any special factors counselling hesitation before autho-

rizing a new kind of federal litigation.” /b7d. (quoting

Bush, 462 U.S. at 378).

* As noted above, the court here adopted the reasoning of the

Seventh Circuit in Bagola v. Kindt, 131 F.3d 632 (1997). The Third and

Ninth Circuits also agree with the conclusion in Bagola. Cooleen v.

Lamanna, 248 Fed. Appx. 357, 362 n.5 (3d Cir. 2007); Vaccaro v. Dobre,

81 F.3d 854, 857 (9th Cir. 1996). The Sixth Circuit, in two unpublished

decisions, has reached a different conclusion. Springer v. United

States, No. 99-6276, 2000 WL 1140767, at *1 (Aug. 8, 2000); Walls v.

Holland, No. 98-6506, 1999 WL 993765, at *1-*2 (Oct. 18, 1999).

The court of appeals erroneously recognized a

Bivens remedy for inmates who are injured during

prison work assignments notwithstanding the existence

of the IACA. In Demko, this Court applied to the [ACA

the principle that, “where there is a compensation stat-

ute that reasonably and fairly covers a particular group

of workers, it presumably is the exclusive remedy to

protect that group,” and concluded that the IACA is,

indeed, the exclusive remedy for inmates injured on the

job. 385 U.S. at 152-154. Because the Court in Demko

considered whether the [ACA was the exclusive remedy

against the United States—rather than against an indi-

vidual federal employee—for inmates injured on a work

assignment, its holding does not strictly control the out-

come of this case. But the same reasons that led the

Court to conclude that the IACA precludes FTCA ac-

tions against the United States should have led the court

of appeals to conclude that the IACA precludes

Bivens actions against prison employees. Congress

“created a comprehensive system to award payments for

injuries” in the IACA and “[t]here is no indication of any

congressional purpose to make” the compensation

scheme implementing the [ACA “non-exclusive.” /d. at

151-152 (citation omitted).

Both the court of appeals in this case and the Ninth

Circuit in Castaneda placed undue reliance on this

Court’s statement in Carlson v. Green, 446 U.S. 14, 18-

19 (1980), that a Bivens claim rests on whether “Con-

gress has provided an alternative remedy which it ex-

plicitly declared to be a swhstitute for recovery directly

under the Constitution and viewed as equally effective.”

See App., tzfra, 18a-19a; Castaneda v. United States,

546 F.3d 682, 689 (9th Cir. 2008).‘ In the decades since

Carlson was decided, this Court has declined to recog-

nize any additional Bivens causes of action.” Equally

important and directly relevant to this case, the Court

has made clear that Congress need not explicitly declare

that a remedial scheme is intended to supplant a Bivens

claim or that such a scheme is as effective as a Biv-

ens claim in order to preclude the creation of a direct

‘ These courts’ reliance on the statement in Carlson focusing on

whether Congress has explicitly stated an intent to preclude a Bivens

action is particularly inappropriate where as here and in Castuneda—

the statute at issuc was enacted before Bivens was decided. In such a

situation, a court is demanding what cannot logically exist—a statement

from Congress that a statute is intended to be asubstitute for a remedy

that had not yet been created.

Since Carlson, this Court has consistently expressed a strong reluc-

tance to expand the availability of Bivens claims. See, e.g., Ashcroft v.

Iqbal, 129 S. Ct. 1987, 1948 (2009) (“Because implied causes of action

are disfavored, the Court has been reluctant to extend Bivens liability

‘to any new context or new category of defendants.’”) (quoting

Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)); Wilkie v.

Robbins, 551 U.S. 537, 550 (2007) (Bivens remedy “is not an automatic

entitlement no matter what other means there may be to vindicate a

protected interest, and in most instances we have found a Bivens rem-

edy unjustified.”); Malesko, 534 U.S. at 68-69 (“Since Carlson we have

consistently refused to extend Bivens liability to any new context or

new category of defendants. * * * So long as the plaintiff had an aven-

ue for some redress, bedrock principles of separation of powers fore-

closed judicial imposition of a new substantive liability.”); Schweiker v.

Chilicky, 487 U.S. 412, 421-423 (1988) (“Our more recent decisions have

responded cautiously to suggestions that Bivens remedies be extended

into new contexts. The absence of statutory relief for a constitutional

vivlation, for example, does not by any means necessarily imply that

courts should award money damages against the officers responsible

for the violation.”); Bush v. Lucas, 462 U.S. 367, 374-390 (1983) (refus-

ing to provide Bivens-type remedy given alternative remedial scheme

created by Congress).

-ause of action under the Constitution. Bush, 462 U.S.

at 380-390; Schweiker, 487 U.S. at 424-429; Wilkie, 551

U.S. at 551-562.

In addition to relying on the absence of an explicit

congressional intent to preclude a Bivens claim, the

court below and the Ninth Circuit in Bagola stressed

that the remedies provided in the [ACA do not provide

full relief for plaintiffs’ alleged constitutional injuries.

But here too, this Court has explicitly rejected this ap-

proach: it has held that Congress need not provide a

remedy that provides complete relief for an alleged con-

stitutional violation, that is as effective as a Bivens

claim, or that permits suit against individual defendants

at all. E.g., Schweiker, 487 U.S. at 425-427 (holding that

“statutory violations caused by unconstitutional con-

duct” do not “require remedies in addition to the reme-

dies provided generally for such statutory violations”

even where existing statutory remedies fail to provide

“complete relief” for constitutional harm); Bush, 462

U.S. at 378 (refusing to recognize a Bivens remedy even

though the petitioner did not have “an equally effective

substitute”); id. at 388 (stating that the question whe-

ther a Bivens action should be available “obviously can-

not be answered simply by noting that existing remedies

do not provide complete relief for the plaintiff’); sec

U.S. Amicus Br. at 19, Castaneda, supra (No. 08-1529)

(“Thus, as the D.C. Circuit has noted, ‘subsequent to

Carlson, the Court clarified that there does not need to

be an equally effective alternative remedy, in order to

bar the fashioning of a cause of action under Bivens.”)

(quoting Wilson v. Libby, 5385 F.3d 697, 708 (2008), cert.

denied, 1298S. Ct. 2825 (2009)).

This Court’s disposition of Castaneda will likely illu-

minate the circumstances in which an existing statutory

remedy precludes recognition of a Bivens remedy when

Congress has not explicitly stated its preclusive intent

and when the statutory remedy is not as effective as a

Bivens remedy would be.

CONCLUSION

The petition should be held pending the Court’s deci-

sion in Hur v. Castaneda, No. 08-1529, and then dis

posed of accordingly.

Respectfully submitted.

ELENA KAGAN

Solicitor OF MmerTrd

TONY WEST

Assistant Attorney General

NEAL KUMAR KATYAI

Deputy Solicitor Genera

SARAH E. HARRINGTON

\ssistant to the Solicitor

General

BARBARA L. HERWIG

Ie DWARD HIMMELFARB

Attorneys

NOVEMBER 2009

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Nos. 07-3242 & 08-3109

(D.C. No. 06-CV-3061-JTM)

BYRON SMITH, PLAINTIFF-APPELLAN1

UNITED STATES OF AMERICA; ERIC HOLDER, UNITED

STATES ATTORNEY GENERAL, IN HIS OFFICIAL

CAPACITY; ALBERTO GONZALES, FORMER UNITED

STATES ATTORNEY GENERAL, IN HIS INDIVIDUAL

CAPACITY; fF EDERAL BUREAU OF PRISONS; UNITED

STATES PENITENTIARY, LEAVENWORTH, KANSAS; AND

H. LAPPIN, DIRECTOR, FEDERAL BUREAU OF

PRISONS; EDDIE GALLEGOS, ACTING WARDEN:

WILLIAM F.. HOWELL, JR., SAFETY MANAGER,

FEDERAL BUREAU OF PRISONS; JOHN PARENT,

CUSTODIAL MAINTENANCE SERVICES MANAGER,

K' EDERAL BUREAU OF PRISONS; TERESA HARTFIELD,

EDUCATION ADMINISTRATOR/PRINCIPLE, FEDERAL

BUREAU OF PRISONS; JEFFERY SINCLAIR, ELECTRI

SHOP SUPERVISOR, FEDERAL BUREAU OF PRISONS;

JOHN DOE, EDUCATION STAFF MEMBER, FEDERAL

BUREAU OF PRISONS; JANET DURBIN, EDUCATION

STAFF MEMBER, FEDERAL BUREAU OF PRISONS;

STEPHANIE WHEELER, SAFETY OFFICER, FEDERAL

BUREAU OF PRISONS, IN THEIR OFFICIAL AND

INDIVIDUAL CAPACITIES, DEFENDANTS-APPELLEE:

(la)

‘)

[Filed: Mar. 31, 2009]

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF KANSAS

Before: BRISCOE, HOLLOWAY, and MURPHY, Circuit

Judges.

BRISCOER, Circuit Judge.

Plaintiff-Appellant Byron Smith brings claims un

der the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

8§ 2671 et seg., and Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S.

388 (1971) against Defendants-Appellees. Defendants

Appellees are the United States, the Attorney General

of the United States,” the Federal Bureau of Prisons, the

\Jnited States Penitentiary at Leavenworth (“Leaven-

worth”), and various employees and administrators at

the Bureau of Prisons and Leavenworth (hereinafter col-

lectively referred to as “defendants”). Defendants filed

a motion to dismiss Smith’s claims, which was granted

by the district court, and Smith appeals that decision.

We have jurisdiction over this matter pursuant to

28 U.S.C. § 1291, and we affirm in part, reverse in part,

Because it is unclear whether the Attorney General of the United

States is sued in his official or individual capacity, we construe Smith's

complaint liberally to assert both an official-capaeity and individual

capacity claim against the Attorney General of the United States. See

Reynoldson v. Shillinger, 907 F.2d 124, 125 (0th Cir. 1990) (applying

the principle that “pro se prisone! complaints must be construed liber

ally”),

and remand for further proceedings. Regarding Smith’s

FTCA claim, we affirm the district court because: first,

an FTCA claim can only be brought against the United

States; and, second, the Supreme Court has expressly)

held that an FTCA claim is precluded when the Inmate

Accident Compensation Act applies, as it does here.

Regarding Smith’s Bivens claim against all defen

dants other than the individual federal officials in their

individual capacities, we affirm the district court’s dis

missal because Aivens claims cannot be asserted direct-

ly against either the United States or federal officials in

their official capacities or against federal agencies.

Regarding Smith’s remaining Bivens claim against

individual federal officials in their individual capacities,

we reverse the district court in part and affirm in part

because: first, the district court erred by finding that

the Inmate Accident Compensation Act was the exclu-

sive remedy precluding Smith’s Bivens suit; and, second,

the district court erred by finding that Smith’s com

plaint failed to make allegations sufficient to state a

claim for relief egainst the individually named federal

officials in their individual capacities other than Alberto

Gonzales and H. Lappin.

d | Smith s Alle gations

Smith's complaint stems from allegations that he was

exposed to asbestos in 2003 while an inmate at Leaven-

worth. During his incarceration in Leavenworth, Smith

worked as an electrician for the prison’s Custodial Main

tenance Services. Smith received a work order from his

supervisor, defendant Jeffery Sinclair, to install a new

light fixture in a closet In the prison’s education depart-

4da

ment. Smith and others who were assigned to perform

the installation were given access to the locked closet by

defendant Janet Durbin, a staff member in the education

department.” The closet lacked any ventilation.

While Smith was installing the light fixture, a fellow

inmate, Carlos Gonzalez, entered the closet and asked to

borrow some tools from Smith. Smith refused, consis

tent with prison policy, and Gonzalez then requested

tools from Durbin, who provided them to Gonzalez.

Gonzalez, who had beeu instructed by prison staff to

clean the closet, then began pulling insulation off of the

pipes in the closet, thereby filling the air with dust.

Smith alleges that this dust contained asbestos, and the

dust irritated his eyes, nose, and throat, and caused him

to begin coughing.’ Durbin directed Gonzalez to wait

until the light fixture was installed before continuing his

work in the closet. The work crew suspended work until

the dust settled.

The next day, Smith was given another work pass by

Sinclair and he and the other members of the work crew

returned to the closet to finish installing the light fix

ture. They were again given access to the closet by Dur-

bin, and she again supervised their work. Gonzaiez was

allowed back into the closet while Smith and the others

were working inside. Once inside, Gonzalez pulled insu-

lation off pipes, releasing additional dust to which Smith

was exposed. The dust again caused irritation to Smith,

Defendant Teresa Hartfield, the education administrator and Dur

bin’s apparent supervisor, had to approve of all work or changes within

the education department

Attachments to Smith's original complaint also include an allegation

by Smith that he had “developed white circles” on his lungs. Aplt. App

Doc. | Exh. DI

and the work crew again stopped working until the dust

settled. Durbin directed Gonzalez to leave the closet,

threatening to write a report on him if he did not com-

ply. After the dust cleared, Smith and the crew contin-

ued work on the fixture, but could not get the light to

work. Durbin called Sinclair, and he arrived to assist.

The job was then completed.

In 1994, a survey was performed by the Ramsey-

Schilling Consulting Group, documenting the presence

of asbestos in “Building # 116” at Leavenworth and

stating that the pipe insulation in the second floor edu-

cation southwest storage room was damaged. Smith

alleges the closet where he was exposed to dust in 2003

is in the education department of “Building # 116,” and

specifically alleges that this southwest storage room is

where he was exposed to asbestos. Smith contends that

the pipe insulation that was disturbed by Gonzalez was

not in good repair, and that due to the pipe insulation’s

damaged condition, asbestos was exposed to the air.

Smith alleged that the “safety [department at Leav-

enworth], CMS [Custodial Maintenance Services at

Leavenworth] and the education department knew that

asbestos was in the closet” due to the Ramsey-Schilling

survey. Aplt. App. Doc. 1 Attach. 4 at 127. Smith also

references the response to his administrative remedy

request which implies that the warden at Leavenworth

also knew of the asbestos as a result of the Ramsey-

Schilling survey. Smith further alleges that he was nev-

er given any warning regarding the asbestos at any

point. Smith claims that he suffers from a cough, short-

ness of breath, and trouble with his throat and eyes.

Smith also alleges emotional distress.

B. Procedural Posture

Smith filed his initial pro se complaint in the United

States District Court for the District of Columbia.” The

case was then transferred to the United States District

Court for the District of Kansas due to improper venue.

Smith filed an amended complaint in the District of Kan-

sas post-transfer, which incorporated by reference the

original complaint’s factual allegations. Smith’s amen-

ded complaint alleges that defendants’ were negligent

and deliberately indifferent by exposing him to asbestos

without protective measures. Smith seeks compensa-

tory damages, punitive damages, and injunctive relief

for future medical care. /d. Doc. 5 (Smith’s “First

Amended Complaint”).

The district court granted defendants’ motion to dis-

miss Smith’s amended complaint for lack of subject mat-

ter jurisdiction, Fed. R. Civ. P. 12(b)(1), and, alterna-

tively, for failure to state a claim upon which relief could

be granted, Fed. R. Civ. P. 12(b)(6). The district court

concluded that the prisoners’ workers’ compensation

” At the time he filed his complaint, Smith was incarcerated at the

United States Penitentiary Hazelton in West Virginia.

* Specifically, defendants are: the United States government, the At-

torney General, the Federal Bureau of Prisons, the United States Peni-

tentiary at Leavenworth, H. Lappin (director of the Federal Bureau of

Prisons), Eddie Gallegos (the former warden at Leavenworth), William

Howell, Jr. (the safety department manager at Leavenworth), John

Parent (the Custodial Maintenance Services manager at Leavenworth),

Teresa Hartfield (the education administrator at Leavenworth), Jeffery

Sinclair (the electrical shop supervisor at Leavenworth), John Doe (a

member of the education staff at Leavenworth), Janet Durbin (a former

member of the education staff at Leavenworth), and Stephanie Wheeler

(a safety department member at Leavenworth). See Aplee. Br. at 5

nn.2-3; Aplt. App. Docket Sheet.

statute, the Inmate Accident Compensation Act, 18

U.S.C. § 4126, was Smith’s exclusive remedy for his al-

leged work-related injuries, foreclosing Smith’s FTCA

and Bivens claims. Aplt. App. Doc. 59 at 6. The district

court alternatively found that Smith’s FTCA claim could

only be brought against the United States. The district

court also held that Smith’s FTCA claim against the

United States failed because his allegations of harm did

not constitute a physical injury. /d. at 8. His claim for

lost medical records was also dismissed because Smith

did not have a protected property interest in them. /d.

at 6-8. The district court then alternatively found that

Smith’s Bivens claim failed because the amended com-

plaint did not allege that defendants “knew he faced

a substantial risk of harm and disregarded that risk.”

Id. at 8-9 (internal quotation omitted).

Smith filed a Rule 60(b) motion in which he asked the

district court to reconsider its decision. The district

court denied Smith’s motion. Smith then filed a Rule

59(e) motion in which he asked the district court to alter

or amend the judgment. The district court also denied

that motion.

We are presented with two appeals. Case number

07-3242 is an appeal from the district court’s dismissal

of Smith’s amended complaint, and case number 08-3109

is an appeal from the district court’s denial of Smith’s

motion to alter or amend judgment under Rule 59(e).

Smith did not file a notice of appeal regarding the dis-

trict court’s denial of his Rule 60(b) motion, but did sub-

sequently file an amended notice of appeal purporting to

include in Case No. 08-3109 review of the denial of his

Rule 60(b) motion. Smith’s two appeals were consoli-

dated, and counsel was appointed for Smith. '

A. Smith’s Pro Se Status in the District Court

At the outset, it is important to note Smith’s pro se

status in the district court. “[A] pro se litigant’s plead-

ings are to be construed liberally and held to a less

stringent standard than formal pleadings drafted by

lawyers.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005) (internal quotation

omitted). In Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991), we stated:

We believe that this rule means that if the court can

reasonably read the pleadings to state a valid claim

on which the plaintiff could prevail, it should do so

despite the plaintiff’s failure to cite proper legal au-

thority, his confusion of various legal theories, his

poor syntax and sentence construction, or his unfa-

miliarity with pleading requirements.

“This court, however, will not supply additional factual

allegations to round out a plaintiff’s complaint or con-

struct a legal theory on a plaintiff’s behalf.” Whitney v.

New Mewico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

We have on several occasions dismissed pro se com-

plaints for failure to allege sufficient facts. See Hall,

935 F.2d at 1110 (citing cases).

‘ Smith filed repeated motions for the appointment of counsel in

the district court, Aplt. App. Does. 6-8, 47-49, 58, all of which were

denied, id. Does. 13, 59.

lL. Appellate Jurisdiction

We must first determine the scope of our appellate

review in this case. Certainly, we have jurisdiction to

review Smith’s appeal of the district court’s memoran-

dum and order dismissing his amended complaint under

Rule 12(b). See 28 U.S.C. § 1291 (granting jurisdiction

to the courts of appeals over “appeals from all final deci-

sions of the district courts”); Moya v. Schollenbarger,

465 F.3d 444, 450 (10th Cir. 2006) (stating that when “a

district court order expressly and unambiguously dis-

misses a plaintiff’s entire action, that order is final and

appealable”). We may review all of the arguments

Smith raised before the district court that pertain to

that ruling. Pierce v. Shorty Small’s of Branson Inc.,

137 F.3d 1190, 1192 (10th Cir. 1998).

Smith also timely filed a notice of appeal with respect

to the district court’s denial of his Rule 59(e) motion. As

a result, we also have jurisdiction under 28 U.S.C. § 1291

to review the district court’s denial of that Rule 59(e)

motion.

However, there is some question whether we may

also consider arguments raised in support of Smith’s

Rule 60(b) motion. Smith filed his Rule 59(e) motion

based on his view that the district court had erroneously

denied his Rule 60(b) motion. Aplt. App. Doc. 76. In his

Rule 60(b) motion, Smith argued, for the first time, that

the Inmate Accident Compensation Act does not provide

him a true remedy because his benefits under that Act

do not become ripe until Smith is near release from

prison. Jd. Doc. 66 at 5-7. Under the standard enunci-

ated in Rule 60(b)(6), the district. court denied Smith’s

Rule 60(b) motion after finding Smith had stated no

10a

“exceptional circumstances” to support granting the mo

tion. /d. Doc. 75.

Smith did not file a separate appeal from the denial

of his Rule 60(b) motion. However, he did file an amen-

ded notice of appeal, after he appealed the denial of his

Rule 59(e) motion, stating that he was appealing the

denial of both post-judgment motions. Jd. Doe. 92.

Smith’s filings clearly put defendants on notice that he

was appealing the district court’s rulings on both mo-

tions. We stated in /ndependent Petroleum Ass’n of

America v. Babbitt, 235 F.3d 588, 593 (10th Cir. 2001),

that:

Under Rule 3(c) [of the Federal Rules of Appellate

Procedure], a notice of appeal must designate the

judgment, order, or part thereof being appealed.

Nevertheless, a party’s failure to designate the pro-

per order it intends to appeal is not necessarily fatal.

As we have explained, a party may demonstrate its

intention to appeal from one order despite referring

only to a different order in its petition for review if

the petitioner’s intent can be fairly inferred from the

petition or documents filed more or less contempora-

neously with it. Furthermore, without a showing of

prejudice by the appellee, technical errors in the no-

tice of appeal are considered harmless.

(internal quotations and citations omitted). As a result,

we will exercise jurisdiction over Smith’s appeal from

the denial of both the Rule 60(b) and Rule 11 59(e)* mo-

* An order denying a post judgment motion is reviewed for an abuse

of discretion. Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005). A

district court has substantial discretion to grant Rule 60(b) relief as jus-

tice requires, and “such relief is extraordinary and may only he granted

lla

tions and consider the arguments raised in those mo-

tions in our merits review of Smith’s claims.”

And finally, in the district court, Smith appeared to

make a claim relating to his allegedly lost medical re-

cords. See Aplt. App. Doc. 5 111 3-15 (portion of amended

complaint setting out the alleged loss of Smith’s medical

records); Doc. 59 at 7-8 (portion of district court’s mem-

orandum and order dismissing any claim under the

FTCA for Smith’s loss of medical records). However,

neither in his opening brief nor in subsequent briefing

does Smith press any issue with respect to his medical

records. As a result, we conclude Smith has not ap-

pealed the dismissal of his claims regarding lost medical

records. See Fed. R. App. P. 28(a)(Y¥)(A) (requiring the

appellant’s opening brief to contain the contentions

in exceptional circumstances.” Servants of Paraclete v. Does, 204 F.3d

1005, 1009 (10th Cir. 2000) (internal quotations omitted). However, a

“district court would necessarily abuse its discretion if it based its rul-

ing on an erroneous view of the law or on a clearly erroneous assess-

ment of the evidence.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d

1281, 1289 (10th Cir. 2005) (internal quotation omitted). “And a Rule

59(e) motion is normally granted only to correct manifest errors of law

or to present newly discovered evidence.” Jennings, 394 F.3d at 854

(internal quotation omitted).

Because the ultimate determinations on the merits of Smith’s claims

are based on legal grounds and the correct application of the applicable

legal standards, the standard of review is met regardless which appel-

late standard is used.

’ Smith filed a “Request to Call for Affidavit” requesting the court

to consider certain documents on appeal. Prior to consolidation of

Smith’s appeals, the government filed a response in opposition, arguing

that we lacked jurisdiction over some of the matters in the appeal of the

district court’s memorandum and order. Because we have consolidated

Smith’s appeals, and have determined that we should consider the argu-

ments made in support of both, we grant Smith’s motion.

12a

raised on appeal); Becker v. Kroll, 494 F.3d 904, 913 n.6

(10th Cir. 2007) (concluding that issues and arguments

on which an appellant desires appellate review must be

raised in the appellant’s opening brief or be waived),

C. District Court’s Memorandum and Order

Dismissing Smith’s Claims

1. Standard of Review

A dismissal for lack of subject matter jurisdiction

under Fed. R. Civ. P. 12(b)(1) is reviewed de novo.

Trackwell v. United States, 472 F.3d 1242, 1243 (10th

Cir. 2007). A facial attack on the complaint’s allegations

regarding subject matter jurisdiction questions the com-

plaint’s sufficiency and requires the court to accept the

allegations as true. Paper, Allied-Indus., Chem. & En-

ergy Workers Int'l Union v. Cont’l Carbon Co., 428 F.3d

1285, 1292 (10th Cir. 2005).

The legal sufficiency of a complaint is a question of

law, and a Rule 12(b)(6) dismissal is reviewed de novo.

Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006).

Again, for purposes of resolving a Rule 12(b)(6) motion,

we accept as true all well-pleaded factual allegations in

a complaint and view these allegations in the light most

favorable to the plaintiff. 7d. “The court’s function on

a Rule 12(b)(6) motion is not to weigh potential evidence

that the parties might present at trial, but to assess

whether the plaintiff’s complaint alone is legally suffi-

cient to state a claim for which relief may be granted.”

Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d

1226, 1236 (10th Cir. 1999) (internal quovation omitted).

l3a

The Supreme Court recently retired “the accepted

rule that a complaint should not be dismissed for failure

to state a claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Conley v. Gib-

son, 355 U.S. 41, 45-46 (1957), abrogated by Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 127 8. Ct. 1955 (2007).

The Court replaced the Conley standard with a new

standard in Twombly, which “prescribed a new inquiry

for [courts] to use in reviewing a dismissal: whether the

complaint contains ‘enough facts to state a claim to relief

that is plausible on its face.’” Ridge at Red Hawk,

L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)

(quoting Twombly, 127 8S. Ct. at 1974). The Court ex-

plained that “a plaintiff must ‘nudge his claims across

the line from conceivable to plausible’ in order to survive

a motion to dismiss.” /d. (internal citation and brackets

omitted). “Thus, the mere metaphysical possibility that

some plaintiff could prove some set of facts in support of

the pleaded claims is insufficient; the complaint must

give the court reason to believe that this plaintiff has a

reasonable likelihood of mustering factual support for

these claims.” /d.

In evaluating a Rule 12(b)(6) motion to dismiss,

courts may consider not only the complaint itself, but

also attached exhibits, /ndus. Constructors Corp. v. U.S.

Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir.

1994), and documents incorporated into the complaint by

reference, Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

127 S. Ct. 2499, 2509 (2007); 7MJ Implants, Inc. v.

Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007). “[T]he

district court may consider documents referred to in the

complaint if the documents are central to the plaintiff's

14a

claim and the parties do not dispute the documents’ au-

thenticity.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,

1215 (10th Cir. 2007) (internal quotation omitted).

2. The Inmate Accident Compensation Act,

18 U.S.C. § 4126

The Inmate Accident Compensation Act, and the reg-

ulations promulgated thereunder, provide two types of

compensation for a federal inmate who suffers a work-

related injury or improper medical treatment of a work-

related injury. The first type of compensation is avail-

able only when the inmate is ready to be released

from prison and reenter the workforce. 28 C.F.R.

§§ 301.101(a), 301.301-.319. If the inmate still suffers a

residual physical impairment as a result of the work-

related injury, then within forty-five days of his release

date, he can submit a claim for compensation. /d.

§ 301.303(a). If, however, he has fully recovered from his

injuries while incarcerated, he is not entitled to any

compensation. /d. § 301.3814(a). The second type of

compensation is for wages the inmate actually loses

while he is prevented from doing his work assignment

due to his injury. /d. §§ 301.101(b), 301.201-.205.

3. FTCA Claim

The district court dismissed Smith’s FTCA claim on

two bases: first, that the FTCA claim is barred because

“the cause of his alleged injuries [is] work-related and

compensable only under 18 U.S.C. § 4126,” Aplt. App.

Doc. 59 at 6; and second, that an FTCA claim, which may

only be brought against the United States, failed for

lack of an alleged “significant physica! injury,” id. at

6-7.

Lda

As an initial matter, we, like the district court, note

that Smith asserted his FTCA claim against all the

named defendants. “The United States is the only pro-

per defendant in an FTCA action.” Owendine v. Kaplan,

241 F.3d 1272, 1275 n.4 (10th Cir. 2001). Thus, the dis-

trict court correctly dismissed Smith’s FTCA claims

against every defendant except the United States on the

ground that those defendants were not proper parties.

We also note that the Supreme Court has long recog:

nized the right of federal prisoners to recover damages

against the United States under the I’ TCA for personal

injuries sustained as the result of the negligence of a

federal employee. See United States v. Muniz, 374 U.S.

150, 150 (1968) (holding that a person can sue under the

FTCA “for personal injuries sustained during confine-

ment in a federal prison, by reason of the negligence of

a government employee”). But when a federal pris-

oner’s injuries are work-related, the Supreme Court has

held that the prisoner’s exclusive remedy against the

government is the Inmate Accident Compensation Act;

he cannot sue the government under the FTCA. United

States v. Demko, 385 U.S. 149, 152-54 (1966). There is

no dispute that Smith’s alleged injuries are work-re

lated.

Smith argues that the Inmate Accident Compensua

tion Act should not be the exclusive remedy against the

government for a prisoner like himself who has a very

long sentence. He argues the Inmate Accident Compen-

sation Act likely would afford him little, if any, relief

because he might die before he is within forty-five days

of his release date, which is when he could first apply for

benefits under the Act. The Supreme Court in Demko

considered the argument that the Inmate Accident Com

L6u

pensation Act is not comprehensive enough, and re-

jected it. /d. at 152. “Until Congress decides different-

ly we accept the prison compensation law as an adequate

substitute for a system of recovery by common-law

torts.” /d. at 153. Accordingly, the district court prop-

erly dismissed Smith’s FTCA claim against the United

States for any injuries incurred while working at Leav

enworth.

4. Bivens Claim

As with the FTCA claim, Smith’s Bivens claim was

asserted against all defendants. However, a Bivens

claim can be brought only against federal officials in

their individual capacities. Bivens claims cannot be as-

serted directly against the United States, federal offi-

cials in their official capacities, Farmer v. Perrill, 275

F.3d 958, 963 (10th Cir. 2001), or federal agencies,

FDIC. v. Meyer, 510 U.S. 471, 485-86 (1994). As a re-

sult, the district court correctly dismissed Smith’s Biv-

ens claims against all defendants except for his claims

against the individual federal officials in their individual

capacities.

Regarding the remaining Aivens defendants, how-

ever, the Supreme Court has held that a Bivens remedy

may be available ayainst federal prison officials for vio-

lations of the Eighth Amendment. See Carlson v. Green,

446 U.S. 14, 18 (1980) (stating that “Bivens established

that the victims of a constitutional violation by a federal

agent have a right to recover damages against the offi-

cial in federal court” in a case involving allegations of

personal injuries from federal prison officials). None-

theless, the individual defendants here argued that no

Bivens remedy was available because the Inmate Acci-

l7a

dent Compensation Act constituted Smith’s exclusive

remedy for any injury resulting from his alleged asbes-

tos exposure.'” As support for this argument, defen-

dants cited the Supreme Court’s decision in Demko, 385

U.S. 149, our published decision in (/nited States v.

Gomez, 378 F.2d 938 (10th Cir. 1967) (per curiam), and

our unpublished decision in Alvarez v. Gonzales, 155 F,

App’x 393 (10th Cir. 2005). The district court, in turn,

relied on these three cases in granting defendants’ mo-

tion.

Neither Demko nor Gomez concerned a claim against

individual federal officials, however. Rather, Demko

addressed whether the Inmate Accident Compensation

Act’s administrative compensation scheme provided a

federal prisoner’s exclusive remedy against the United

States for a work-related injury and thus barred suit

against the government under the FTCA. Demko, 385

U.S. at 150. In ruling that the Inmate Accident Com-

pensation Act did preempt a claim under the FTCA, the

Court noted that workers’ compensation statutes were

historically “the offspring of a desire to give injured

workers a quicker and more certain recovery than can

be obtained from tort suits based on negligence and sub-

ject to common-law defenses to such suits [and there-

'’ Defendants contended that whether a Bivens remedy was available

to Smith was a matter of subject matter jurisdiction, and the district

court apparently agreed. As we have previously stated, however, whe-

ther a court should imply a Bivens remedy is not a question of subject

matter jurisdiction. Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1096

(10th Cir. 2005), vacated in part on other grounds on reh'g en banc, 449

F.3d 1097 (10th Cir. 2006). “In fact, there is no power to imply a Bivens

cause of action unless a court has first satisfied itself that jurisdiction

exists.” /d. Thus, the district court had jurisdiction pursuant to 28

U.S.C. § 1831 to consider Smith’s Eighth Amendment claims.

LNa

fore] compensation laws are practically always thought

of as substitutes for, not supplements to, common law

tort actions.” /d. at 151. In contrast, the Court held in

Carlson that it is “crystal clear that Congress views the

FTCA and Bivens as parallel, complementary causes of

action.” Carlson, 446 U.S. at 20.

This court’s two-paragraph per curiam decision in

Gomez followed on the heels of Demko and set aside a

judgment against the United States under the FTCA for

a prisoner’s work-related injuries. Gomez, 378 F.2d at

939. While Gomez did describe Demko as holding that

“the compensation benefits provided by 18 U.S.C. § 4126

constitute the exclusive remedy for injuries received by

federal prisoners while performing assigned prison

tasks,” id., we must be careful not to take this statement

out of context. Botn Demko and Gomez concerned only

tort claims against the United States, and neither pur-

ported to consider whether the Inmate Accident Com-

pensation Act also constituted an inmate’s exclusive

remedy for claims against an individual federal official

who has allegedly violated the inmate’s constitutional

rights in connection with a work-related injury.

The Supreme Court in Carlson, in holding that the

FTCA did not preclude the prisoner’s Aivens claim,

stated that a plaintiff’s ability to pursue a Bivens claim

is precluded in two specific instances:

The first is when defendants demonstrate special

factors counselling hesitation in the absence of affir-

mative action by Congress. The second is when de

fendants show that Congress has provided an alter-

native remedy which it explicitly declared to be a

19a

substitute for recovery directly under the Constitu-

tion and viewed as equally effective.

446 U.S. 18-19 (internal quotation and citations omitted).

The Carlson Court supported its conclusion that Con-

gress did not intend the FTCA to preclude a prisoner’s

Bivens claim by finding that a Bevens remedy was more

effective than the FTCA remedy. /d. at 20-23. The

Carlson Court noted the deterrent effect of the Bivens

remedy because of the potential personal financial liabil-

ity to federal officials, in addition to federal officials’ po-

tential exposure Lo the imposition of punitive damages.

The Court also noted the availability of a jury trial un-

der Bivens. Id. None of these rights or remedies are

available under the FTCA.

In Bivens cases following Carlson, the Supreme

Court has provided further explanation of the “special

factors counselling hesitation in the absence of affirma-

tive action by Congress” which limit judicial expansion

of the Bivens remedy. The Supreme Court stated in

Bush v. Lucas, 462 U.S. 367, 378 (1983), that “[w]hen

Congress provides an sieeenacice remedy, it may, of

course, indicate its intent, by statutory language, by

clear legislative history, or perhaps even by the statu-

tory remedy itself, that the Court’s power should not be

exercised.” And in Schweiker v. Chilicky, 487 U.S. 412,

423 (1988), the Court noted that

the concept of “special factors counselling hesitation

in the absence of affirmative action by Congress” has

proved to include an appropriate judicial deference

to indications that congressional inaction has not

been inadvertent. When the design of a Government

WA AAA aur We aw A

program suggests that Congress has provided what

20a

it considers adequate remedial mechanisms for con-

stitutional violations that may occur in the course of

its administration, we have not created additional

Bivens remedies.

Despite the presence of Demko, Carlson, Bush, and

Schweiker, this court has not yet considered whether the

language of the Inmate Accident Compensation Act or

its clear legislative history signal Congress’ intent to

preclude federal courts from recognizing a Bivens cause

of action that arises out of a work-related injury.'’ We

have not considered whether the design of the Inmate

Accident Compensation Act provides what Congress

would consider adequate remedial mechanisms for con-

stitutional violations, nor whether any other special fac-

tors counsel hesitation in recognizing a bivens cause of

action in these circumstances.”

Although we did conelude in Alvarez (an unpublished

order, see Duran-Hernandez v. Ashcroft, 348 F.3d 1158,

1162 n.38 (Oth Cir. 20038) (“TU Jnpublished decisions are

'' Defendants argue that we are creating a new Bivens remedy for

deliberate indifference under the Eighth Amendment, citing Wilkie v.

Robbins, 1275S. Ct. 2588 (2007). We disagree. In Wilkie, the Supreme

Court discussed the two-step process for determining whether to rec-

ognize a Bivens remedy (citing Bush), and ultimately declined to permit

the Bivens remedy for a Fifth Amendment retaliation claim against

land ownership interests that had been brought against Bureau of Land

Management officials. 127S. Ct. at 2598-2604. The Court noted in Wil-

kie, however, that it had previously recognized a Bivens claim for “an

Eighth Amendment violation by prison officials” in Carlson. Jd. at

2597.

'* The Inmate Accident Compensation Act was amended in 1988, Pub.

L. No. 100-690, 102 Stat. 4412, and 2004, Pub. L. No. 108-271, 118 Stat.

814, post-Brvens and post-Carlson, without any Congressional comment

on the relationship between that Act and Bivens claims.

2la

not binding authority.”)) that the plaintiff inmate was

“barred from litigating his Bivens claim [for failing

to provide adequate medical treatment following his in-

jury] since the cause of his original injury was work-

related and compensable only under 18 U.S.C. § 4126,”

155 F. Appx at 396, we relied on Demko and Gomez for

this conclusion. As discussed above, however, Demko

and Gomez concerned only the exclusivity of the Inmate

Accident Compensation Act in connection with tort

claims against the government itself; they did not ad

dress constitutional claims against individual defen

dants. Asa result, Alvarez is not persuasive authority.

The only circuit to have expressly analyzed the exclu-

sivity of the Inmate Accident Compensation Act as it

relates to Bivens claims, following the guidance of Carl-

son, Bush, and Schweiker, concluded that the Inmate

Accident Compensation Act does not preclude a prisoner

from bringing a Bivens claim. Bagola v. Kindt, 131 F.3d

632, 637-45 (7th Cir. 1994). In Bagola, the plaintiff

prisoner was injured while working at the federal pris-

on, and alleged that prison officials were deliberately

indifferent to his safety in violation of his Eighth

Amendment rights. /d. at 633-34. The Seventh Circuit

noted that the plaintiff prisoner was entitled to compen-

sation under the Inmate Accident Compensation Act for

lost-time wages, and that he could also apply for com-

' Additionally, but without in-depth analysis, the Ninth Circuit adop-

ted the conclusion of the Seventh Circuit in Bagola. Vaccaro v. Dobre,

81 F.3d 854, 857 (9th Cir. 1996). The Ninth Circuit noted that “the

theories as well as the defendants in [Inmate Accident Compensation

Act] claims and in Bivens actions are different” and concluded that the

Inmate Accident Compensation Act does not preclude a Bivens action

against prison officials. /d.

22a

pensation for his injury within forty-five days of his re-

lease from prison. /d. at 634.

The Seventh Circuit then analyzed whether the B2v-

ens remedy was also available to the plaintiff prisoner

despite the availability of compensation under the In-

mate Accident “Compensation Act.” Following the Carl-

son “dictates,” the Seventh Circuit noted that: (1) the

Inmate Accident Compensation Act “contains no explicit

congressional statement that a Bivens remedy should

not be available to federal prisoners compensated under

the statutory scheme;” and (2) “the deterrence factor,

implicated by both [the imposition of] individual liability

and the availability of punitive damages, and the avail-

ability of a jury trial weigh even more heavily in favor of

allowing a Bivens claim” because if the Inmate Accident

Compensation Act were an exclusive remedy as against

Bivens claims, it “would not only insulate individual of-

fenders from liability, but it would also effectively insu-

late their conduct from review in any trial-like forum.”

Id. at 639.

The Seventh Circuit then went on to analyze, under

Carlson, Bush, and Schweiker whether any “special fac-

tors counsel hesitation in the absence of affirmative ac-

tion by Congress.” /d. at 639 (brackets and internal

quotations omitted). The Seventh Circuit recognized

that the plaintiff prisoner’s “alleged constitutional in.

jury | was] intertwined with his injury covered by the

statutory benefits scheme,” id. at 642, but concluded:

Nonetheless, we believe that significant procedural

distinctions exist between the remedies provided by

§ 4126 and the statutory remedies that have been

found to preclude Bivens claims. These distinctions

23a

indicate that Congress does not consider § 4126 an

adequate remedial mechanism to address Eighth

Amendment violations, just as surely as it does not

consider the FTCA an adequate mechanism to rem-

edy non-work-related prisoner claims. Our analysis

is guided by the deterrence factor identified in Carl-

son, as well as the recognized necessity to previde

some forum for a prisoner’s constitutional claims.

In both Bush and Chilicky, it is significant that al-

though the plaintiffs were denied a constitutional

remedy, the statutory alternative provided a forum

where the allegedly unconstitutional conduct would

come to light.

Id. at 642-43 (internal citation omitted). The Seventh

Circuit then held that § 4126 did not preclude a Bivens

claim: the statutory scheme lacked requisite procedural

safeguards for the prisoner’s constitutional rights, the

statute possessed very little deterrent value, and there

was no explicit indication from Congress limiting the

Bivens action by the Inmate Accident Compensation

Act. /d. at 644-45.

We agree with the reasoning of the Seventh Circuit

and adopt it as our own. In our view, the Inmate Acci-

dent Compensation Act does not preclude us from recog-

nizing Smith’s Bivens claim, for all the reasons stated by

the court in Bagola. Unlike Demko, where the Inmate

Accident Compensation Act was found to preclude an

action under the FTCA, the Inmate Accident Compensa-

tion Act should not preclude a Bivens claim because a

claim under the Inmate Accident Compensation Act

would be a far different, less inclusive system of recov-

ery than the Bivens action. Like Carlson, where the

24a

FTCA was not found to preclude an action under biv-

ens, our consideration of the factors relevant here also

leads to the conclusion that the Bivens remedy is more

effective than the Inmate Accident Compensation Act

remedy. The Inmate Accident Compensation Act does

not explicitly foreclose the Bivens remedy, there is very

little deterrent effect for constitutional harms within the

Inmate Accident Compensation Act, and there is no al-

ternative forum where the alleged constitutional viola-

tion could be addressed. We conclude that a Bivens ac-

tion for constitutional harms arising from work-related

asbestos exposure is not foreclosed by the compensatory

remedy available under the Inmate Accident Compensa-

tion Act.

This does not, however, end our inquiry. The district

court also dismissed Smith’s Bivens claim on Rule

12(b)(6) grounds. Under Rule 12(b)(6), this court looks

“to the specific allegations in the complaint to determine

whether they plausibly support a legal claim for relief.”

Pace v. Swerdlow, 519 F.3d 1067, 1073 (10th Cir. 2008)

(internal quotations omitted). As stated above, Twom-

bly asks us to determine whether Smith’s allegations are

“plausible.” 127 S. Ct. at 1974. In Robbins v. Oklaho-

ma, 519 F.3d 1242, 1247 (10th Cir. 2008), we stated:

As best we understand it, however, the [Twombly]

opinion seeks to find a middle ground between heigh-

tened fact pleading, which is expressly rejected, and

allowing complaints that are no more than labels and

conclusions or a formulaic recitation of the elements

of a cause of action, which the Court stated will not

do.

25a

The most difficult question in interpreting Twombly

is what the Court means by “plausibility.”

“|P}lausible” cannot mean “likely to be true.” Ra-

ther, “plausibility” in this context must refer to the

scope of the allegations in a complaint: if they are so

general that they encompass a wide swath of con-

duct, much of it innocent, then the plaintiffs have not

nudged their claims across the line from conceivable

to plausible. The allegations must be enough that, if

assumed to be true, the plaintiff plausibly (not just

sneculatively) has a claim for relief.

(internal citations and quotations omitted); see also Bry-

son v. Gonzales, 534 F.8d 1282, 1286 (10th Cir. 2008)

(“This is not to say that the factual allegations must

themselves be plausible; after all, they are assumed to

be true. It is just to say that relief must follow from the

facts alleged.”).

‘(T]he degree of specificity necessary to establish

plausibility and fair notice, and therefore the need to in-

clude sufficient factual allegations, depends on context.

...” Robbins, 519 F.3d at 1248; see also Bryson, 534

F.3d at 1286 (discussing required factual detail). But

while “the plaintiff must provide ‘more than labels and

conclusions, or a formulaic recitation of the elements of

a cause of action,’” Lane v. Simon, 495 F.3d 1182, 1186

(10th Cir. 2007) (quoting Twombly, 1278. Ct. at 1965)

(internal alteration omitted), “‘specific facts are not nec-

essary; the statement need only give the defendant fair

notice of what the claim is and the grounds upon which

it rests,’” id. (quoting Erickson v. Pardus, 127 S. Ct.

2197, 2200 (2007)) (internal alterations omitted). ““Tech-

nical fact pleading is not required, but the complaint

26a

must still provide enough factual allegations for a court

to infer potential victory.” Bryson, 534 F.3d at 1286.

We therefore now turn to the merits of Smith’s

Eighth Amendment claim. In Robbins. addressing the

sufficiency of the allegations in a complaint against mul-

tiple defendants, we stated that “complaints in § 1983

cases against individual government actors pose a grea-

ter likelihood of failures in notice and plausibility be-

cause they typically include complex claims against mul-

tiple defendants.” 519 F.3d at 1249. We continued:

We reiterate that context matters in notice pleading.

Fair notice under Rule 8(a)(2) depends on the type of

case. In § 1983 cases, defendants often include the

government agency and a number of government ac-

tors sued in their individual capacities. Therefore it

is particularly important in such circumstances that

the complaint make clear exactly who is alleged to

have done what to whom, to provide each individual

with fair notice as to the basis of the claims against

him or her, as distinguished from collective allega-

tions against the state.

Id. at 1249-50 (internal quotation and citations omitted).

These same generalities can be stated of complaints in

Bivens cases.

To state an Eighth Amendment Aivens claim, Smith

had to allege that each defendant official'’ acted with

'* As noted above, a Bivens claim can be maintained only against fed-

eral officials in their individual capacities. Those defendants meeting

this standard are: the Attorney General of the United States, H. Lap-

pin (the director of the Federal Bureau of Prisons), Eddie Gallegos (the

former warden at Leavenworth), William Howell. Jr. (the safety de-

partment manager at Leavenworth), John Parent (the Custodial Main-

27a

deliberate indifference—that he or she both knew of and

disregarded an excessive risk to inmate health or safety.

Furmer v. Brennan, 511 U.S. 825, 837 (1994). “[TJhe of-

ficial must both be aware of facts from which the infer-

ence could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” /d.

Although there is certainly no guarantee of ultimate

success on the merits, we conclude that, for some of the

federal officials named in their individual capacities,

Smith has alleged sufficient facts to move his case be-

yond defendants’ Rule 12(b)(6) dismissal motion. Smith

alleges that the 1994 Ramsey-Schilling survey docu-

mented the presence of asbestos in the storage closet

where he was exposed to asbestos. Smith specifically

alleges that because of the 1994 Ramsey-Schilling sur-

vey, all individual defendants at Leavenworth knew that.

asbestos was present in the closet. Aplt. App. Doce. 1,

Claims for Relief 11. Although this allegation is not

technically specific, it certainly implies that defendants

I-ddie Gallegos (the former warden at Leavenworth) and

William Howell, Jr. (the safety department manager at

Leavenworth), both apparently upper-level administra-

tors at Leavenworth, knew about the asbestos in the

education department closet. Smith docs not, however,

make any individual allegations against the Attorney

General of the United States or H. Lappin (the director

tenance Services manager at Leavenworth), Teresa Hartfield (the edu-

cation administrator at Leavenworth), Jeffery Sinclair (the electrical

shopsupervisor at Leavenworth), John Doe (amember of the education

staff at Leavenworth), Janet Durbin (a former member of the education

staff at Leavenworth), and Stephanie Wheeler (a safety department

member at Leavenworth).

28a

of the Federal Bureau of Prisons) regarding their know-

ledge of the 1994 Ramsey-Schilling survey.

Smith also alleges that defendant Stephanie Whec!-

er, amember of the safety department, had previously

directed Gonzalez’s activities with respect to removal of

the asbestos material, id. Attach. IV 191 34-35, and that

defendant Teresa Hartfield had to approve of all work

done in the education department, 7d. Statement of

Claim {| 4, which implies that Hartfield had to have

known of the prior asbestos-related work. Smith alleges

that John Parent told him he had previously informed

the education department staff about the presence of

asbestos in the closet, id. Attach IV 1 33, which would

have included defendants Hartfield, Durbin, and John

Doe. And, Smith alleges that defendant Durbin was

aware of the damaged pipe insulation at the time of

Smith’s exposure. /d. Attach. 1V 1% 5-10. Moreover,

defendant Jeffery Sinclair is alleged to have given Smith

a work pass on the second day so that he could return to

the closet and finish the job that could not be finished

the first day because of the dust exposure, zd. Attach.

IV § 10, which implies Sinclair’s knowledge.

As the litigation progresses, it is possible the govern-

ment will produce evidence showing that some or all of

the individual defendants did not know that the 1994

Ramsey-Schilling survey disclosed the presence of as-

bestos in the closet, or more generally, that an individual

defendant did not know of the presence of asbestos in

the closet, based on simple lack of knowledge or inter-

vening circumstances. However, these are matters to be

determined at a later point in this case. Smith has satis-

fied the standard enunciated in Robbins—the defen-

dants are on fair notice of who is alleged to have done

29a

what to whom, Robbins, 519 F.3d at 1249—as to all de-

fendants named in their individual capacities other than

Alberto Gonzales and H. Lappin (the director of the

Federal Bureau of Prisons).

As Smith’s allegations are legally sufficient to state

a claim for relief, the district court erred in granting

defendants Eddie Gallegos (the former warden at Lea-

venworth), William Howell, Jr. (the safety department

manager at Leavenworth), John Parent (the Custodial

Maintenance Services manager at Leavenworth), Teresa

Hartfield (the education administrator at Leavenworth),

Jeffery Sinclair (the electrical shop supervisor at Lea-

venworth), John Doe (a member of the education staff at

Leavenworth), Janet Durbin (a former member of the

education staff at Leavenworth), and Stephanie Wheel-

er’s (a safety department member at Leavenworth) Rule

12(b)(6) motion.

III

We AFFIRM the district court’s dismissal of Smith’s

FTCA claim against all defendants. We AFFIRM the

district court’s dismissal of Smith’s Bivens claim against

the United States, federal officials in their official capac-

ities, and federal agency defendants. We also AFFIRM

the district court’s dismissal of Smith’s Bivens claim

against Alberto Gonzales and H. Lappin. We RE-

VERSE the district court’s dismissal of Smith’s Bivens

claim against all individual defendants who are sued in

their individual capacities other than Alberto Gonzales

and H. Lappin, and REMAND for further proceedings

on that claim. We GRANT Smith’s “Request to Call for

Affidavit,” in which he requests that we review certain

documents he had filed in the district court proceedings.

30a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Nos. 07-3242 & 08-3109

(D.C. No. 06-CV-3061-JTM)

BYRON SMITH, PLAINTIFF-APPELLANT

VU.

UNITED STATES OF AMERICA; ERIC HOLDER,

UNITED STATES ATTORNEY GENERAL, IN HIS

OFFICIAL CAPACITY; ALBERTO GONZALES, FORMER

UNITED STATES ATTORNEY GENERAL, IN HIS

INDIVIDUAL CAPACITY; FEDERAL BUREAU OF

PRISONS; UNITED STATES PENITENTIARY,

LEAVENWORTH, KANSAS; AND H. LAPPIN, DIRECTOR,

FEDERAL BUREAU OF PRISONS; EDDIE GALLEGOS,

ACTING WARDEN; WILLIAM E. HOWELL, JR., SAFETY

MANAGER, FEDERAL BUREAU OF PRISONS; JOHN

PARENT, CUSTODIAL MAINTENANCE SERVICES

MANAGER, FEDERAL BUREAU OF PRISONS; TERESA

HARTFIELD, EDUCATION ADMINISTRATOR/

PRINCIPLE, FEDERAL BUREAU OF PKISONS; JEFFERY

SINCLAIR, ELECTRIC SHOP SUPERVISOR, FEDERAL

BUREAU OF PRISONS; JOHN DOE, EDUCATION STAFF

MEMBER, FEDERAL BUREAU OF PRISONS; JANET

DURBIN, EDUCATION STAFF MEMBER, FEDERAL

BUREAU OF PRISONS; STEPHANIE WHEELER, SAFETY

OFFICER, FEDERAL BUREAU OF PRISONS, IN THEIR

OFFICIAL AND INDIVIDUAL CAPACITIES,

DEFENDANTS-APPELLEES

(Filed: Mar. 31, 2009]

JUDGMENT

Before: BRISCOE, HOLLOWAY, and MURPHY, Circuit

Judges.

This case originated in the District of Kansas and

was argued by counsel.

The judgment of that court is affirmed in part and

reversed in part. The case is remanded to the United

States District Court for the District of Kansas for fur-

ther proceedings in accordance with the opinion of this

court,

Entered for the Court

s/ ELISABETH A. SCHUMAKER

I LISABETH A. SHUMAKER, Clerk

32a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Case No. 06-3061-JTM

BYRON SMITH, PLAINTIFF

VU.

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

(Filed: Apr. 10, 2008]

MEMORANDUM AND ORDER

This matter is before the court on plaintiff Byron

Smith’s motion to alter or amend judgment (Dkt. No. 76)

and to supplement plaintiff’s traverse (Dkt. No. 79).

For the reasons stated below, the court denies the mo-

tions.

I. Procedural History

Mr. Smith, a pro se federal prisoner, initially brought

a complaint against various officials, primarily alleging

that (1) defendants negligently permitted him to work in

an area where there was a known presence of asbestos,

but failed or refused to post warning signs to notify per-

sons of the presence of asbestos; (2) defendants violated

his Kighth Amendment rights and were deliberately in-

different to his safety by exposing him to a large dosage

33a

of asbestos when he was on work detail; and (3) defen-

dants negligently or with deliberate indifference de-

stroyed or lost his medical records (Dkt. No. 5). This

court later granted the defendants’ motion to dismiss

(Dkt. No. 59). After judgment was entered (Dkt. No.

60), Mr. Smith filed his notice of appeal to the Tenth

Circuit (Dkt. No. 61), before filing the motion for recon-

sideration, (Dkt. No. 66), which was denied by this court

(Dkt. No. 75). Subsequent to the denial of his motion to

reconsider, Smith filed the motion to alter or amend

judgment that is currently before the court.

2. Legal Standard

The court may exercise broad discretion to grant

relief under Rule 59(e) to alter or amend a prior judg-

ment. See Comm. for the First Amend. v. Campbell, 962

F .2d 1517, 1523 (10th Cir. 1992). “Grounds warranting

a motion [to alter and amend under Rule 59(e)] include

(1) an intervening change in the controlling law, (2) new

evidence previously unavailable, and (3) the need to cor-

rect clear error or prevent manifest injustice. Thus, a

motion for reconsideration is appropriate where the

court has misapprehended the facts, a party’s position,

or the controlling law. It is not appropriate to revisit

issues already addressed or advance arguments that

could have been raised in prior briefing.” Servants of

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

In short, the court sheuld only grant a Rule 59(e) motion

to correct manifest errors of law, or to present newly

discovered evidence. See Adams v. Reliance Standard

Life Ins. Co., 225 F.8d 1179, 1186 n.5 (10th Cir. 2000).

34a

3. Analysis

Smith requests that pursuant to Rule 59(e), this

court reconsider its denial of his previously denied Rule

60(b) motion because he is dissatisfied with the Court’s

legal and factual findings, and because he believes the

court should not have limited his relief to Rule 60(b)(6).

The defendants counter that Smith’s current motion

should be denied because the court did not err and there

is no new, material evidence for the court to consider.

After careful review of the record, the court finds

that relief under Rule 59(e) is not appropriate in this

case, both because Smith’s allegedly “new” evidence is

not material, and because the court properly construed

the Rule 60(b) motion as one for relief under Rule

60(b)(6). Specifically, due to Smith’s failure to specify

which section of Rule 60(b) he was relying upon, it was

within the court’s diseretion to construe Smith’s motion

as one for relief under Rule 60(b)(6). See LaFleur ».

Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003). None-

theless, even if the court had considered any of the other

subsections of Rule 60(b) when evaluating Smith’s re-

quest, his motion still would have been denied according

to those legal standards, as Rule 60(b) is “an extraordi-

nary procedure permitting the court that entered judge-

ment to grant relief therefrom upon a showing of good

cause within the rule.” Cessna Fin. Corp. v. Bielenberg

Masonry Contracting Inc., 715 F.2d 1442, 1444 (10th

Cir. 1983). As such, Smith’s request for relief pursuant

to Rule 59(e) is denied.

Furthe:, Smith’s request to supplement his motion to

alter or amend judgment (Dkt. No. 79) is denied because

the exhibits do not constitute material, newly discovered

35a

evidence. At issue are Smith’s exhibits, which are De-

fendant Bureau of Prisons (BOP) purchase orders Smith

recently received pursuant to the Freedom of Informa-

tion Act (FOIA) and Smith’s previously produced medi-

cal records. Even if the court were to consider the mer-

its of the exhibits, however, the outcome would not

change as the exhibits and affidavit are immaterial to

the outcome of the Rule 59(e) motion. As such, Smith’s

request to supplement his traverse is denied.

IT IS ACCORDINGLY ORDERED this 10th day of

April, 2008, that plaintiff's motion to alter or amend

judgment (Dkt. No. 76) and plaintiffs motion to supple-

ment plaintiff’s traverse (Dkt. No. 79) are denied.

/s/ J. THOMAS MARTEN

J. THOMAS MARTEN, Judge

36a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Case No. 06-3061-JTM

BYRON SMITH, PLAINTIFF

Uv.

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

Dec. 27, 2007

MEMORANDUM AND ORDER

This matter is before the court on plaintiff Byron

Smith’s motion for reconsideration pursuant to Fed. R.

Civ. P. 60(b) (Dkt. No. 66). For the reasons stated be-

low, the court denies the motion.

A. Procedural History

Mr. Smith, a pro se federal prisoner, initially brought

a complaint against various officials, primarily alleging

that (1) defendants negligently permitted him to work in

an area where there was a known presence of asbestos,

but failed or refused to post warning signs to notify per-

sons of the presence of asbestos; (2) defendants violated

his Sighth Amendment rights and were deliberately

indifferent to his safety by exposing him to a large dos-

age of asbestos when he was on work detail; and (3) de-

37a

fendants negligently or with deliberate indifference de-

stroyed or lost his medical records (Dkt. No. 5). This

court later granted the defendants’ motion to dismiss

(Dkt. No. 59). After judgment was entered (Dkt. No.

60), Mr. Smith filed his notice of appeal to the Tenth

Circuit (Dkt. No. 61), before filing the motion presently

before the court (Dkt. No. 66).

B. Jurisdiction

Before reaching the merits of Mr. Smith’s claim, it is

necessary to establish whether this court has jurisdic-

tion. Generally, a notice of appeal divests the district

court of jurisdiction. Lancaster v. Indep. Sch. Dist. No.

5,149 F.3d 1228, 1237 (10th Cir. 1998). Nevertheless, “a

notice of appeal does not divest a district court of juris-

diction to consider a Rule 60(b) motion, although it pre-

vents a district court from granting such a motion unless

it notifies [the circuit court] of its intention to grant the

motion upon proper remand.” West v. Ortiz, No. 06-

1192, 2007 WL 706924, at *5 (10th Cir. March 9, 2007)

(citing Allison v. Bank One-Denver, 289 F.3d 1223, 1243

(10th Cir. 2002)). Accordingly, this court has jurisdic-

tion to consider and deny the Rule 60(b) motion. If this

court determines that the motion has merit, then it must

notify the Tenth Circuit and request a remand before

granting the motion.

C. Merits of Mr. Smith’s Request

Rule 60(b) provides:

On motion and upon such terms as are just, the

court may relieve a party .. . from a final judg-

ment... for the following reasons: (1) mistake, in-

advertence, surprise, or excusable neglect; (2) newly

38a

discovered evidence which by due diligence could not

have been discovered in time to move for a new trial]

under Rule 59(b); (3) fraud . . . misrepresentation,

or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied

. or (6) any other reason justifying relief from

the operation of the judgment.

FED. R. Civ. P. 60(b). Relief under the rule is “an extra-

ordinary procedure permitting the court that entered

judgement to grant relief therefrom upon a showing of

good cause within the rule.” Cessna Fin. Corp. v. Biel-

enberg Masonry Contracting Inc., 715 F.2d 1442, 1444

(10th Cir. 1983). Further, Rule 60(b) is “not available to

allow a party merely to reargue an issue previously ad-

dressed by the court when the reargument merely ad-

vances new arguments or supporting facts which were

available for presentation at the time of the original ar-

gument.” FDIC ex rel. Heritage Bank & Trust v. Uni-

ted Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998)

(quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572,

577 (10th Cir. 1996)). A Rule 60(b) motion “is not in-

tended to be a substitute for a direct appeal.” Servants

of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.

2000).

Mr. Smith’s motion does not specify which section

of Rule 60(b) he is relying on for relief. After re-

view of his motion, this court construes it as 60(b)(6), the

catch-all provision, which allows for relief only in ex-

traordinary circumstances. See LaFleur v. Teen Help,

342 F.3d 1145, 1153 (10th Cir. 2003); Loum v. Tous-

ton’s Rests., Inc., 177 F.R.D. 670, 672 (D. Kan. 1998).

Courts reserve Rule 60(b)(6) relief for situations in

which it offends justice to deny relief. Love v. Roberts,

39a

No. 05-3481, 2007 WL 3353706, at *1 (D. Kan. Nov. 7,

2007). Mr. Smith fails to cite any “exceptional circum-

stances” justifying relief, and mere dissatisfaction with

this court’s ruling does not rise to the level needed to

obtain relief under Rule 60(b)(6). As such, Mr. Smith’s

motion is denied.

IT IS ACCORDINGLY ORDERED this 27th day of

December, 2007, that plaintiff's motion for reconsider

ation (Dkt. No. 66) is hereby denied. Defendant’s mo-

tion for extension of time to file a response (Dkt. No. 70)

is denied as moot.

s/ J. THOMAS MARTEN

J. THOMAS MARTEN, JUDGE

AOVa

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Case No. 06-3061-JTM

BYRON SMITH, PLAINTIFF

Uv.

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

[Filed: July 26, 2007}

MEMORANDUM AND ORDER

The present matter arises on defendants’ motion to

dismiss pursuant to the Federal Rules of Civil Proce-

dure 12(b)(1) and 12(b)(6) (Dkt. No. 35). For the follow-

ing reasons, the court grants defendants’ motion. Addi-

tionally, the court denies plaintiff's motion to strike

(Dkt. No. 37); denies plaintiff’s motion for default judg-

ment (Dkt. No. 38); denies plaintiff’s motions for judicial

notice (Dkt. Nos. 54 and 56); and denies plaintiff’s mo-

tion for reconsideration (Dkt. No. 55).

I. Factual Backqround:

Plaintiff, Byron Smith, is a prisoner who was incar-

cerated at the United States Penitentiary at Leaven-

worth (“USP Leavenworth”) during the times relevant

4la

to his First Amended Complaint. Primarily, plaintiff

alleges that (1) defendants negligently permitted him to

work in an area where there was a known presence of

asbestos, but failed or refused to post warning signs to

notify persons of the presence of asbestos; (2) defen-

dants violated his Eighth Amendment rights and were

deliberately indifferent to his safety by exposing him to

very large dosages of asbestos fibers when he was on a

work detail; and (3) defendants negligently or with de-

liberate indifference destroyed or lost his medical rec-

ords.

For relief, plaintiff seeks $50,000 in compensatory

damages, $50,000 in punitive damages, $2,000,000 for

negligence, $100,000 for “loss or destruction” of medical

records, an unspecified amount for future medical ex-

penses, and regular testing by a professional trained in

the area of asbestos.

Plaintiff filed the present action initially on January

6, 2006 in the District of Columbia, which transferred his

case to the District of Kansas due to improper venue.

Plaintiff thereafter filed a First Amended Complaint in

the District of Kansas on March 27, 2006 incorporating

by reference the documentation and facts of the original

complaint.

Defendant Harley G. Lappin is the Director of the

Bureau of Prisons, located in Washington, D.C. At the

time of his complaint, petitioner did not state whether he

was suing defendant Lappin in his individual or official

capacity. Defendant Eddie Gallegos responded to plain-

tiff’s written complaints at the institution and adminis-

trative levels. Plaintiff is suing defendant Gallegos in

both his individual and official capacities. Defendant

Janet Durbin was the former Education Technician at

42a

the USP Leavenworth. Plaintiff is suing defendant Dur-

bin in her individual and official capacities. Plaintiff

is suing defendants William Howell, Jr., John Parent,

Teresa Hartfield, Jeffrey Sinclair, and Stephanie Wheel-

er in their individual and official capacities. Plaintiff

also is suing the Attorney General, without noting whe-

ther he was being sued in his individual and/or official

capacity. Finally, plaintiff is filing suit against the

USP Leavenworth and the Federal Bureau of Prisons

(“BOP”).

In 2008, plaintiff was a federal inmate at the USP

Leavenworth. In April and June 2003, he worked for the

Custodial Maintenance Service as an electrician. While

working in this capacity, he received a work order to add

a new light fixture in a closet in the Education Building.

Defendant Durbin met the plaintiff in the Education

Building, unlocked the classroom and the closet, and

showed plaintiff where she wanted the light fixture to be

placed. Plaintiff and his work crew began working on

the light fixture in the closet, which was approximately

12 feet by 6 feet. During the work, inmate C. Gonzales,

who worked on a different work order, began pulling

pipe out of the closet, which caused the closet to become

thick with dust from the pipe insulation. As the dust

began to bother plaintiff, he ended his work on the closet

until the dust settled. Defendant Durbin also instructed

inmate Gonzales to wait until plaintiff and his work crew

installed the light fixture before proceeding back into

the closet.

On the next day, plaintiff and his work crew returned

to the Education Building to work on the fixture. In-

mate Gonzales pulled the insulation off the pipe in the

closet again, which filled the closet with dust. The dust

A3a

bothered plaintiff’s eyes and throat, which caused the

plaintiff to stop working until the dust settled. Defen-

dant Durbin instructed inmate Gonzales to leave the

closet or a report would ensue.

Thereafter, on March 9, 2005, plaintiff completed an

Informal Attempt to Resolve form which stated:

[I }n between the months of April and May I was ex-

posed to very large doses of asbestos while out on a

job in the education department. I am requesting to

be tested by a specialist in the field for this exposer

[sie]. it is of my concern to know why this area was

not listed as an unauthorized area to staff and in-

mates until removed?

Amended Complaint, Dkt. No. 5, at 4, incorporating by

reference, Exh. A, at 2, attached to Complaint, Dkt. No.

1. Plaintiff also filed a Request for Administrative Re-

view regarding his alleged asbestos exposure which he

described as “very large amounts of ‘burst exposures.””

Id. at Exh. B, at 3.

In responding to plaintiff's Request for Administra-

tive Review, defendant Gallegos stated that:

The Education Department inmate orderly was in-

structed by staff to clean the storage closet. At no

time was he instructed to remove any insulation. His

removal of the insulation resulted in possible expo-

sure to asbestos. Prior to his entering the closet

and disturbing the insulation, the insulation was non-

friable and in good repair. There are no regulations

which require the abatement of asbestos containing

material which is in good repair.

44a

Id. at Exhibit B, at 5. Defendant Gallegos also noted

that: “There were no samples taken of the pipe insula-

tion in the closet where your alleged exposure oceurred

due to its complete removal before the Safety Depart-

ment was notified.” In addition, “there is no way to de-

termine the amount of possible exposure.” /d. at Ex-

hibit B, at 4.

On March 16, 2005, plaintiff filed a Request for Ad-

ministrative Remedy which stated:

Sir, back in 20038, my medical jacket came up missing

from the records department here at Leavenworth

Hospital. What I’m requesting to know is: (1) Who

released my medical records? (2) To whom where

[sic] they released? And Who authorized them to be

released without any consent?”

Id. at Exh. B, at 2. Defendant Gallegos responded to

plaintiff on April 1, 2005 by stating that: “The review

revealed your medical records were lost or destroyed in

error and had to be recreated. They were not released

to any unauthorized person or agency.” /d. at Exh. B,

at 3.

The present issues for consideration are whether

plaintiff has subject matter jurisdiction over any of

the defendants under the Federal Tort Claims Act

(“FTCA”) and/or Bivens when the Inmate Accident

Compensation Act (“IACA”) is the exclusive remedy for

inmate work-related injuries; whether plaintiff can state

a Bivens claim against defendants Lappin, Gallegos,

Howell, Parent, Sinclair, Hartfield, Wheeler, or the At-

torney General; and whether plaintiff can state a claim

against the United States for the negligent loss or de-

struction of his medical records?

Ada

Il. Standard of Review:

For 12(b)(1) claims, district courts have “original jur-

isdiction of all civil actions arising under the Constitu-

tion, laws, or treaties of the United States.” 28 U.S.C.

§ 1331. “A case arises under federal law if its ‘well-

pleaded complaint establishes either that federal law

creates the cause of action or that the plaintiff's right to

relief necessarily depends on resolution of a substantial

question of federal law.” Nicodemus v. Union Pacific

Corp., 440 F.3d 1227, 1232 (quoting Franchise Tax Bd.

v. Constr. Laborers Vacation Trust, 4638 U.S. 1, 27-28

(1983)).

k'or purposes of resolving a motion to dismiss with

respect to Fed. R. Civ. P. Rule 12(b)(6), the court must

accept as true all well-pleaded facts and view those facts

in the light most favorable to plaintiff. See Jefferson

County Sch. Dist. No. R-1 v. Moody’s Investor’s Servs.,

175 F.3d 848, 855 (10th Cir.1999). The court may not

grant relief “‘unless it appears beyond doubt that the

plaintiff can prove no set off acts in support of his claim

which would entitle him to relief.’” GF'F Corp. v. Asso-

ciated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.

1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,

(1957)).

Ill. Conclusions of Law:

A. Subject Matter Jurisdiction:

Plaintiff claims that defendants are jointly and sever-

ally liable under the FTCA and Bivens for injuries sus-

tained from possible asbestos exposure. Defendants ar-

gue that the IACA is plaintiff's exclusive remedy for

46a

inmate work-related injuries and therefore, plaintiff is

barred from recovery under the FTCA and/or Bivens.

The IACA, a prisoner’s workers’ compensation stat-

ute, allows a federal prisoner to seek relief where a fed-

eral prisoner is injured while working. See 18 U.S.C.

§ 4126. Plaintiff’s claim for relief under the FTCA and/

or Bivens fails because the [ACA provides the exclusive

remedy for “injuries suffered .. . in any work activity

in connection with the maintenance or operation of the

institution [in which the inmates] are confined.” Alvarez

v. Gonzalez, 155 Fed. Appx. 393, 395-96 (10th Cir. 2005)

(citing United States v. Demko, 3885 U.S. 149, 158 (1966)

(accepting § 4126 “as an adequate substitute for a sys-

tem of recovery by common-law torts”); l/nited States

v. Gomez, 378 F.2d 938, 939 (10th Cir. 1967) (per curiam)

(holding that § 4126 “constitute|s] the exclusive remedy

for injuries received by federal prisoners while perform-

ing assigned prison tasks”)). Therefore, plaintiff is

barred from litigating his FTCA and/or Bivens claim

since the cause of his alleged injuries are work-related

and compensable only under 18 U.S.C. § 4126.

“on

B. Failure to State A Claim:

1. FTCA:

Notwithstanding the exclusive remedy available to

plaintiff under the LACA, plaintiff’s claims also fail un-

der the FTCA and Bivens for failure to state a claim

under Fed. R. Civ. P. 12(b)(6).

First, with respect to the FTCA, a plaintiff can main-

tain a cause of action against only the United States.

See Menteer v. Applebee, 196 Fed. Appx. 624, 626 (10th

Cir. 2006). The FTCA provides that the United States

Ala

shall be liable to the same extent as a private party, “for

injury or loss of property . . . or personal injury .

caused by the negligent or wrongful act or omission of

any employee of the Government while acting within

the scope of his office or employment.” See 28 U.S.C.

§ 1346(b); 28 U.S.C. 2674.

With respect to plaintiff’s claim for anxiety and emo-

tional distress, under the FTCA, a person convicted of

a felony who is currently incarcerated cannot maintain

a cause of action against the United States for mental or

emotional injury without a prior showing of physical

injury. See 28 U.S.C. § 1346(b)(2); 42 U.S.C. § 1997e. In

the present case, plaintiff was convicted of a felony. Al-

though plaintiff seeks damages for “anxiety and emo-

tional] distress,” he is not currently suffering from a

physical injury because his complaint seeks compensa-

tion for “future physical health, safety and well being”

and “future medical expenses” that may develop from

the possible exposure. Amended Complaint, at 4. More-

over, although plaintiff cites that asbestos exposure

caused “irritation to his eyes, throat, and caused short-

ness of breath,” courts have not held that de minimis in-

juries, where the plaintiff fails to allege lasting, detri-

mental side effects, or heightened or prolonged physical

pain, constitute a physical injury. See Clifton v. Fu

bank, 418 F. Supp. 2d 1243, 1248 (D. Colo. 2006). Be-

cause plaintiff cannot demonstrate a significant physical

injury, relief under the FTCA is unwarranted.

Furthermore, relief is unavailable under the FTCA

for plaintiff’s alleged loss of med’cal records. Under the

FTCA, the court has jurisdiction over plaintiff’s claim

for monetary damages against the United States for

his “loss of property . . . caused by the negligent or

48a

wrongful act or omission of any employee of the Govern-

ment while acting within the scope of his office or em-

ployment.” See 28 U.S.C. § 1846(b)(1). However, the

Tenth Circuit has held that inmates do not have a pro-

tected property interest in prison property. See Durand

v. Deland, No. 92-4034, 1992 WL 181989, at *1 (10th Cir.

July 30,1992) (holding that “C” notes, or chronological

notes were prison property and thus, inmate did not

have a property interest). For these reasons, plaintiff’s

claims under the FTCA fail under Fed. R. Civ. P.

12(b)(6).

2. Bivens:

Plaintiff also includes a Bivens claim against the in-

dividual defendants in their individual capacities under

the Eighth Amendment. He alleges that defendants

violated his constitutional rights by allegedly exposing

him to asbestos, failing to have the asbestos removed

following a 1994 survey, and/or knowingly permitting

him to enter the work site where asbestos was present.

Plaintiff must demonstrate under a subjective com-

ponent that “defendant{s}] knew he faced a substantial

risk of harm and disregarded that risk, ‘by failing to

take reasonable measures to abate it’” under the delib-

erate indifference standard. See Kikumura v. Osagie,

461 F.3d 1269, 1293 (10th Cir. 2006) (quoting Farmer v.

Brennan, 511 U.S. 825, 847 (1994)). Additionally, plain-

tiff must prove an objective component that the alleged

deprivation is “‘sufficiently serious’ to constitute a de-

privation of constitutional dimension.” Aikimura, 461

F.3d at 1292 (quoting Selfv. Crum, 4389 F. vA 1227, 1230

(10th Cir. 2006) )). The harm m from the alleged injury

must be “sufficiently serious.” /d.

49a

Plaintiff fails to show that the named individual de-

fendants were aware that there was a substantial risk of

asbestos exposure. Specifically, plaintiff informed de-

fendants Wheeler, Howell, Sinclair, and Parent about

the possible exposure approximately two years after in-

mate Gonzales pulled the insulation, causing the alleged

exposure. Furthermore, plaintiff does not allege defen-

dants’ Durbin, Gallegos, Lappin, and the Attorney Gen-

eral’s involvement in the possible exposure. Moreover,

defendant Durbin was the only named individual defen-

dant who was present at the time of the alleged expo-

sure. However, plaintiff fails to assert an action or inac-

tion taken by defendant Durbin that would constitute

deliberate indifference. Plaintiff’s complaint does not

demonstrate that defendants were aware of the expo-

sure, which fails to meet the required components for

“deliberate indifference.”

Finally, the court notes that even if plaintiff could

maintain his Bivens claim against the individual defen-

dants, plaintiff cannot sustain an action against defen-

dant Lappin, the Director of the Bureau of Prisons who

resides in Washington, D.C., due to a lack of personal

jurisdiction. Personal jurisdiction is determined by the

long-arm statute of the sate [sic] wherein a suit is

brought. Second, the plaintiff must establish that suffi-

cient minimum contacts exist to conform with Due Pro-

cess requirements. See Equifax Servs., Inc. v. Hitz, 905

F.2d 1355, 1357 (0th Cir. 1990).

Plaintiff fails to meet the requirements to establish

personal jurisdiction. Plaintiff’s allegations with respect

to defendant Lappin stem from the fact that he is the

Director of the Bureau of Prisons. However, plaintiff’s

complaint is silent with respect to defendant Lappin’s

50a

persona! involvement with the alleged Eighth Amend-

ment violation. Therefore, the court finds that plaintiff

fails to meet the jurisdictional requirements. For these

reasons, the court grants defendants’ motion to dismiss.

IT IS ACCORDINGLY ORDERED this 25th day of

July, 2007, that defendants’ motion to dismiss (Dkt. No.

35) is granted; plaintiff’s motion to strike untimely and

default (Dkt. No. 37) is denied; plaintiff’s motion for

default judgment (Dkt. No. 38) is denied; plaintiff’s mo-

tions for judicial notice (Dkt. Nos. 54 and 56) are denied;

and plaintiff’s motion for reconsideration (Dkt. No. 55)

is denied.

/s/ J.THOMAS MARTEN

J. THOMAS MARTEN, Judge

5la

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Case No. 06-3061-JTM

BYRON SMITH, PLAINTIFF

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

July 26, 2007

JUDGMENT IN A CIVIL CASE

IT IS ORDERED AND ADJUDGED in accordance

with the Memorandum and Order filed July 26, 2007,

that the defendants’ motion to dismiss (Dkt. No. 35) is

granted.

INGRID A. CAMPBELL, Acting Clerk

July 26, 2007 By /s/ R. Thompson

Date Deputy Clerk

52a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 07-3242

BYRON SMITH, PLAINTIFF-APPELLANT

YU,

UNITED STATES OF AMERICA, ET AL.,

DEFENDANTS-APPELLEES

|Filed: June 8, 2009]

ORDER

Before: BRISCOE, HOLLOWAY and MURPHY, Circuit

Judges.

Appellees’ petition for rehearing is denied.

The petition for rehearing en banc was transmitted

to all of the judges of the court who are in regular active

service. As no member of the panel and no judge in reg-

ular active service on the court requested that the court

be polled, that petition is also denied.

Entered for the Court,

/s/ ELISABETH A. SHUMAKER

ELISABETH A. SHUMAKER, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.