United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
In this action, Plaintiff Theodore Vickers asserts claims under the Federal Tort Claims Act ("FTCA") and the Eighth Amendment arising from injuries he sustained when a fellow inmate attacked him. (2d Am. Compl.  at ¶¶ 32-47.) Defendants Officer J. Jensrud, the United States, and twenty Does moved  to dismiss. I granted the motion as to the FTCA claim under the discretionary function exception. (Op. & Order  at 4.) Because both parties submitted extensive materials outside the complaint with regard to the Eighth Amendment claim, I converted Defendants' motion into one for summary judgment. Id. at 3. I now grant the motion.
Except where otherwise indicated, the following facts are undisputed. Most are derived from testimony at Mr. Vickers's assailant's criminal trial for assault.
Mr. Vickers was an inmate at the Federal Correctional Institute at Sheridan, Oregon ("Sheridan") on November 21, 2010. On that date, as Mr. Vickers returned from a workout to his room "on the top tier, " fellow inmate Spears asked him how many burpees he did that day. (Mr. Vickers's Test. [29-1] at 316:9-317:6.) When Mr. Vickers answered, inmate Tommy Lee Vasquez called out that Mr. Vickers did not know how to do burpees correctly. Id. at 317:7-13. An argument ensued, lasting perhaps ten minutes, in which Mr. Vasquez accused Mr. Vickers of being unable to do burpees and Mr. Vickers "challenge[d] [Mr. Vasquez] to burpees." Id. at 317:17-318:13. Officer Jensrud overheard the altercation. (Ofc. Jensrud's Test. [34-1] at 43:1-8.) He reported to another officer that he heard Mr. Vickers saying to Mr. Vasquez, "I'm a 50-year-old man" and "[t]he old white man can whup your ass." Id. at 43:12-21.
After the argument, Mr. Vickers returned to his room to "calm down." (Mr. Vickers's Test. [29-1] at 318:21-319:5.) A few minutes later, he left to play cards with Mr. Spears. Id. at 319:6-9. By this time, he thought that "everything was over with" between him and Mr. Vasquez. Id. at 320:10-12. Minutes later, however, another inmate told Mr. Vickers that Mr. Vasquez was waiting for him "in the Mexican TV room." Id. at 320:16-17. Mr. Vickers decided to go to the TV room in order not to "look like a coward, " though he did not want to fight "over something this stupid, over burpees." Id. at 322:5-23.
At some point after the verbal altercation but before Mr. Vickers confronted Mr. Vasquez in the TV room, Officer Jensrud left Mr. Vickers's unit for "the patio" in order to facilitate a "recreation move." (Ofc. Jensrud's Test. [34-1] at 44:7-25; Mr. Vickers's Test. [29-1] at 324:19-325:20.) When he reached the patio, Officer Jensrud told Officer Michael Michaelson about the argument, but did not yet believe that it was likely to lead to a fight between Mr. Vickers and Mr. Vasquez. Id. at 45:1-15. A "couple of minutes later, " Officer Jensrud saw Teddy Morris, Mr. Vickers's cellmate, looking at him from the top tier of Mr. Vickers's unit. Id. at 45:19-46:2; Ofc. Jensrud Decl.  at ¶ 10. Because Officer Jensrud had never seen Mr. Morris standing in that location, he began to suspect that a fight might break out. (Ofc. Jensrud's Test. [34-1] at 46:3-19.) He communicated his fear to Officer Michaelson and asked him to contact Lieutenant Kyle Van Cleave. (Ofc. Michaelson's Test. [51-4] at 40:6-11; Supp. Resp. Ex. 5 [51-5] at 1.) Officer Jensrud then reentered Mr. Vickers's unit. (Ofc. Jensrud's Test. [34-1] at 46:20-22.)
Officer Michaelson warned Lieutenant Van Cleave that a fight was likely to break out between Mr. Vickers and Mr. Vasquez. (Resp. Ex. 5 [51-5] at 1.) The lieutenant instructed Officer Michaelson "to locate the inmates and send them one at a time to his office." Id.; Ex. 7 [51-7] at 1. Officer Michaelson heard a "body alarm" immediately after hanging up. (Supp. Resp. Ex. 5 [51-5] at 1.)
For his part, after learning that Mr. Vasquez was waiting for him, Mr. Vickers waited for Officer Jensrud to leave the unit and followed Mr. Vasquez to the TV room. (Mr. Vickers's Test. [29-1] at 324:19-325:20; Ofc. Jensrud's Test. [34-1] at 44:7-10.) Mr. Vasquez first struck Mr. Vickers in the face with a chair. (Mr. Vickers's Test. [29-1] at 326:10-11.) Mr. Vickers spoke to Mr. Vasquez to try to calm him down. Id. at 328:6-19. Undeterred, Mr. Vasquez "came at" Mr. Vickers, took him to the floor, and punched him. Id. at 329:13-330:2. As Mr. Vasquez continued to attack, Mr. Vickers lost consciousness. Id. at 330:3-21.
Officer Jensrud "heard a loud thump" as he approached the TV room, and entered to find Mr. Vickers lying on the floor. (Supp. Resp. Ex. 6 [51-6] at 1; Ofc. Jensrud's Test. [34-1] at 50:21-51:20.) Mr. Vasquez ran past him and fled the scene. (Supp Resp. Ex. 6 [51-6] at 1; Ofc. Jensrud's Test. [34-1] at 51:3-9.) Officer Jensrud activated his body alarm and issued a lock-down order. (Supp. Resp. Ex. 6 [51-6] at 1.)
At the time the events underlying this action occurred, Special Investigative Supervisor Lieutenant Debra Payne was responsible for monitoring prison gangs and investigating altercations between inmates. (Lt. Payne's Test. [51-4] at 107:24-108:8.) Sheridan called on her to investigate the fight between Mr. Vickers and Mr. Vasquez because it produced "significant injury" and because the participants were of different races. Id. at 108:11-16. Lieutenant Payne was concerned that a race-based conflict between inmates could expand into "some sort of riot." (Lt. Payne's Test. [34-2] at 13:24-14:5.) She learned from Mr. Vasquez, however, that the fight was no more than a "one-on-one issue, " not the germ of a dispute between the prison's ethnic gangs. (Lt. Payne's Test. [51-4] at 115:21-116:20.) Indeed, no further troubles developed between "the white inmates" and "the Hispanic inmates." (Lt. Payne's Test. [41-1] at 266:15-24.)
Mr. Vasquez had arrived at Sheridan a little more than a month prior to his assault on Mr. Vickers. (Syed Decl.  at ¶ 11.) Before their argument concerning burpees, Mr. Vickers did not know Mr. Vasquez well. (Mr. Vickers's Trial Test. [29-1] at 318:16-20.) Both inmates' Bureau of Prisons records reflect no prior violent behavior. (Mr. Vickers's Disc. Rec. [30-4] at 1-5; Mr. Vasquez's Disc. Rec. [30-7] at 1-2.) Despite having worked in Mr. Vickers's unit for four months, Officer Jensrud had never "witnessed any tension" between the inmates housed there before the fight. (Ofc. Jensrud's Decl.  at ¶¶ 3, 18.)
Mr. Vickers asserts a claim against Officer Jensrud and the twenty Doe defendants under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging a violation of the Eighth Amendment's guarantee of freedom from cruel and unusual punishment. (2d Am Comp.  at ¶¶ 32-40.) He alleges that Officer Jensrud's failure to prevent his fight with Mr. Vasquez showed deliberate indifference to a substantial risk of serious bodily harm. Id. Defendants moved to dismiss the Bivens claim under Rule 12(b)(6), arguing that Officer Jensrud is entitled to qualified immunity. (Mot.  at 1; Mem. in Supp.  at 4-12.) In support of the motion, they submitted extensive excerpts from testimony at Mr. Vasquez's criminal trial for assault. ( See Wight Decl. Ex. 1 [29-1].) Mr. Vickers offered further testimony excerpts in support of his opposition to Defendants' motion. ...