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Herbert Hayes, a federal prisoner currently at the U.S. Penitentiary in Florence, Colorado, filed this pro se civil rights action against four unnamed employees of a federal prison in California where Hayes was previously confined. The Colorado District Court granted Hayes leave to proceed in forma pauperis, but later sua sponte dismissed Hayes’s complaint as legally frivolous. Hayes appealed and sought leave to proceed on appeal in forma pauperis. Exercising jurisdiction, the 10th Circuit Court of Appeals affirmed the judgment of the district court and denied Hayes’s request to proceed on appeal in forma pauperis.
On June 21, 2023, Hayes initiated these federal proceedings by filing a pro se motion for appointment of counsel. The magistrate judge denied that motion without prejudice, concluding it was “premature because the case remain[ed] under initial review.”
On Aug. 21, 2023, Hayes filed a motion for leave to proceed in forma pauperis, as well as a complaint seeking money damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. The complaint listed four “John Does” as defendants, all in their official capacities. These defendants, according to the complaint, were employees at the U.S. Penitentiary in Victorville, California. The complaint alleged on Sept. 30, 2021, while Hayes was preparing for daily prayer in his cell, an unknown unit officer approached him and patted him down outside of the cell. After the search, Hayes entered his cell “to grab [his religious] books and prayer rug.” The unit officer allegedly asked to see Hayes’ book but Hayes “told [the unit officer] respectfully that he wasn’t in purification to touch [the] religious items.” Hayes then walked out of his cell but allegedly dropped his religious book on the floor. As Hayes reached down to pick up the book, the unit officer allegedly reached around Hayes while he was bent over and placed him in a chokehold.
Hayes allegedly began to lose consciousness due to the chokehold but attempted to break the hold by swinging a weapon in his left hand, ultimately missing both the unit officer and the officer’s partner. One of the two officers allegedly pepper sprayed Hayes, and Hayes ran into his cell and washed his face with water. Hayes alleged three to four unknown officers then ran into his cell and beat him until he was unconscious. Hayes was allegedly taken to the nearest hospital for treatment of severe injuries including a brain injury.
Hayes allegedly returned to “a hold over cell” at U.S. Penitentiary Victorville and on Sept. 30, 2021, was transferred to the U.S. Penitentiary in Atwater, California. Hayes allegedly remained in a special housing unit cell in the facility in Atwater for more than a year and, during that time, was allegedly deprived of an incident report relating to the alleged Sept. 30, 2021, incident at the U.S. Penitentiary in Victorville. Officials at the U.S. Penitentiary in Victorville also allegedly withheld and possibly threw away Hayes’ personal effects including a trial transcript.
The complaint also alleged Hayes was charged with using a weapon to assault the two officers at the facility in Victorville and prison officials relied on “false video footage.” In addition, the complaint generally alleged Hayes was deprived of access to the law library and “[an] item off commissary.”
Hayes requested compensatory and punitive damages and an injunction challenging his transfer to the facility in Florence “because his “due process ha[d] been violated.”
The Colorado District Court referred the case to the magistrate judge for initial proceedings, including a review of the complaint. On Aug. 30, 2023, the magistrate judge issued an order recommending Hayes’s complaint be dismissed as legally frivolous. In the order, the magistrate judge concluded “the Bivens claims lack[ed] merit” because such claims couldn’t be brought against the defendants in their official capacities. “Even construing” the complaint “liberally as asserting the constitutional claims against the John Doe Defendants in their individual capacities,” the magistrate judge concluded “the claims still should be dismissed because the District of Colorado [wa]s not the proper venue and any individual capacity Bivens claims [we]re not cognizable.” The magistrate judge explained the claims need to be raised in the appropriate court in California. The magistrate judge also noted the claims asserted in the complaint “would require an expansion of Bivens beyond the three categories of claims recognized [by the Supreme Court] in Bivens.”
The magistrate judge noted “the [Bureau of Prisons’] Administrative Remedy Program [wa]s an adequate alternative remedy for the claims . . . Hayes [wa]s attempting to plead.” As for Hayes’s request for an injunction prohibiting his transfer to Florence, the magistrate judge concluded Hayes’ complaint didn’t “allege facts that demonstrate[d] that he ha[d] been deprived of life or property based on his transfer to and placement at” the U.S. Penitentiary in Florence. The magistrate judge also concluded there was no indication the transfer to the facility in Florence “ha[d] subjected him to atypical and significant hardship in relation to the ordinary incidents of prison life.”
Hayes filed a written response to the magistrate judge’s recommendation. According to the 10th Circuit opinion, the response essentially repeated the allegations in Hayes’ complaint, while adding a few details that weren’t included in the complaint. Hayes’ response didn’t address the magistrate judge’s reasons for recommending the dismissal of the complaint.
On Sept. 25, 2023, the Colorado District Court issued an order accepting and adopting the magistrate judge’s recommendation. The order dismissed Hayes’ complaint as legally frivolous and denied Hayes leave to proceed in forma pauperis on appeal “without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.” Lastly, the order “certifie[d] pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from th[e] dismissal would not be taken in good faith.”
Final judgment was entered in the case on Sept. 25, 2023. Hayes filed a notice of appeal and filed a motion for leave to proceed on appeal in forma pauperis.
The 10th Circuit affirmed the judgment of the district court and denied Hayes’s motion to proceed on appeal in forma pauperis. Hayes is obligated to pay in full the filing fee for the appeal, according to the opinion.