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SWAN v. U.S.

March 21, 2001


The opinion of the court was delivered by: Jenkins, District Judge.


Before the Court is defendants United States of America and Linda Young-Miller, Ph.D.'s ("Young-Miller") motion for summary judgment. The defendants contend that plaintiff Eugene Oliver Swan's ("Swan") claim for violation of the Eighth Amendment to the United States Constitution against Young-Miller fails because she is shielded from liability by the doctrine of qualified immunity, and that Swan's negligence claim, brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., against the United States fails because Young-Miller did not breach any standard of care.*fn1 For the reasons set forth below, the Court GRANTS defendants' motion.


Swan is an inmate serving a sentence for bank robbery and escape from federal custody. His claims in this action arise from an incident that occurred on December 24, 1998 while he was incarcerated at the Federal Corrections Institute in Dublin, California ("FCI Dublin"). On that date, Swan was attacked by another inmate and suffered an injury which required the surgical removal of his left eye. Swan contends that prior to the attack he provided information to prison officials, specifically Young-Miller, which should have put the defendants on notice of an impending assault. Their subsequent failure to prevent the attack, Swan claims, violated his rights and thereby renders the defendants responsible for his injury.

Young-Miller is a staff psychologist at FCI Dublin who provided counseling to Swan from September 1997 through December 1997 and again from June 1998 through February 1999. This counseling involved crisis prevention through individual and group psychotherapy, and focused on the prevention of self-harm and suicide by Swan and on the management of his symptoms of psychosis and depression. According to Swan, he and Young-Miller had developed an open and honest relationship, and thus, during his counseling sessions with Young-Miller, he felt comfortable discussing his mental and emotional well-being, his prior sexual abuse and intimidation as an inmate, and his history of physical abuse. On one occasion, Young-Miller employed her knowledge of Swan's prior experiences to avert his transfer from FCI Dublin to a facility in Lompoc, California. Having been told by Swan that he had been sexually assaulted by another inmate during his incarceration at the Lompoc facility, Young-Miller requested that Swan not be designated for transfer.

On December 3, 1998, Swan requested an emergency session with Young-Miller. At that session, Swan informed Young-Miller that he had been confronted and intimidated by a group of inmates. The confrontation involved inmate Raymond Chow's ("Chow") demand that Swan allow Chow's cellmate to move into Swan's cell. When Swan told Chow that he did not want a cellmate, Chow threatened Swan, telling him that he "had better take this guy out of his cell, because if [he] didn't, [Swan] would be disrespecting him." See Swan Deposition ("Depo."), 45:19-25; 46:1-3. Swan related to Young-Miller that he had enlisted the assistance of a large friend in order to back down the threatening inmates. He also explained to Young-Miller that he "was afraid like when [he] was in reform school, when [he] had been physically and sexually abused, and that [he] had those same type of fears of happening here." Id. at 105:14-17. Swan further testified that he specifically remembers saying that he needed help; according to Swan, Young-Miller "asked me what should I do, or what do you want me to do," and he said "I don't know[,] I just need help." See id. at 105:3-11.*fn2

At her deposition, Young-Miller conceded that she "guess[ed] it did occur to [her] as a possibility" that the group of inmates might hurt Swan, but that "once entertaining that thought, [she] did not feel concerned that they would." See Young-Miller Depo., 27:8-12. Had Young-Miller believed that violence against Swan was likely, she could have pursued several measures intended to protect inmates, including placing Swan in protective custody, moving Swan to another unit at FCI Dublin, or moving one of the threatening inmates away from Swan. Alternatively, she could have kept Swan's December 3, 1998 disclosures confidential, but informed Swan of the protective measures that were potentially available to him. Young-Miller did not follow either of these courses of action. She "didn't seriously think [Swan] was in physical danger," see Young-Miller Depo., 28:2-3, but instead concluded that the intimidation from the group of inmates had caused Swan to relive childhood traumas. See Young-Miller Declaration ("Decl."), ¶ 7. She therefore did not inform Swan of the available protective measures, did not tell anyone about his confrontation with the other inmates, and did not take any other action in response to Swan's December 3, 1998 disclosures.

Various facts purportedly support Young-Miller's conclusion that Swan was not in immediate danger, as well as her decision to keep the session confidential. At some point in December 1998, Swan told Young-Miller that inmates spoke in pejorative terms about inmates like Swan who received treatment from the FCI Dublin psychology staff, yet he never stated a belief that those insults would escalate into violence against him. Furthermore, during the December 3, 1998 counseling session, Swan did not expressly ask for any kind of protection from other inmates. He did not ask Young-Miller to place him in protective custody, he did not ask for a change in his housing situation, such as being moved to another unit at FCI Dublin, nor did he ask that another inmate be moved away from him. Swan also failed to make any of the above-mentioned requests to the Administrator of FCI Dublin who was in the same room as Swan and Young-Miller during the December 3, 1998 session (but who was not privy to their conversation). Swan's statements following the December 3, 1998 session further indicate that his fears of being harmed had subsided and that he wished to keep confidential his disclosures regarding his confrontation with the threatening inmates. During his regularly scheduled appointment with Young-Miller on December 8, 1998, Swan indicated that he did not want her to disclose such information for fear of being labeled a "snitch," and asked Young-Miller: "You didn't tell anyone, did you?" See Young-Miller Decl., ¶ 8. Furthermore, he diagnosed himself as being "paranoid" and stated that his fears regarding the confrontation could have been misplaced. See id. At his December 16, 1998 and December 21, 1998 sessions with Young-Miller, Swan did not report any fear of danger or any intimidation from another inmate, nor did he request that any protective action be taken by the FCI Dublin staff.

LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of proving that there is no genuine issue of material fact. That burden may be discharged by showing that there is an absence of evidence to support the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To withstand summary judgment, the opposing party must set forth, by affidavit or other admissible evidence, specific facts showing that there is a genuine issue of material fact in dispute. See Fed.R.Civ.P. 56(e). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, "the moving party is entitled to a judgment as a matter of law." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The Court does not make credibility determinations with respect to evidence offered, and is required to draw all inferences in the light most favorable to the non-moving party. T.W Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Summary judgment is therefore not appropriate "where contradictory inferences may reasonably be drawn from undisputed evidentiary facts." Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir. 1980).


I. Young-Millers's Qualified Immunity from Swan's Eighth Amendment Claim

The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This rule "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'" Burns v. Reed, 500 U.S. 478, 494-95, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Therefore, regardless of whether or not a constitutional violation occurred, the official should prevail if the right asserted by the plaintiff was not clearly established or the official could have reasonably believed that his or her particular conduct was lawful. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). "The entitlement is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see also Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).

A court considering a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all. See Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1694, 143 L.Ed.2d 818 (1999); Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). The qualified immunity analysis then becomes a two-part test: (1) Was the law governing the official's conduct clearly established? and, (2) if so, under that law, could a reasonable official have believed his conduct was lawful? See Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993). The plaintiff bears the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. See Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992). If the plaintiff meets this burden, then the defendant bears the burden of establishing that his actions were reasonable, even if he violated the plaintiff's constitutional rights. See Doe v. Petaluma City School Dist., 54 F.3d 1447, 1450 (9th Cir. 1995); Maraziti, 953 F.2d at 523.

There is no dispute that Swan has alleged the deprivation of an actual constitutional right through his claim for violation of the Eighth Amendment. As a general matter, a plaintiff may seek damages for constitutional violations that cause injury to the plaintiff as a result of a federal officer's conduct. See Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The United States Supreme Court has further held that an inmate may name a federal officer, in an individual capacity, as a defendant in alleging an Eighth Amendment constitutional violation ...

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