                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    July 22, 2014
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



RAYMOND VEGA, personally and as
personal representative of the estate of
Jose Martin Vega, deceased,

      Plaintiff - Appellee,

v.                                                       No. 13-1268
                                               (D.C. No. 1:12-CV-01144-RPM)
BLAKE R. DAVIS, and certain                               (D. Colo.)
additional unknown agents of the
United States Bureau of Prisons,

      Defendant - Appellant.



                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, HOLLOWAY ** and PHILLIPS, Circuit Judges.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         The late Honorable William J. Holloway, Jr., United States Senior Circuit
Judge, participated as a panel member when this case was heard, but passed away
before final disposition. “The practice of this court permits the remaining two
panel judges, if in agreement, to act as a quorum in resolving this appeal.”
United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997); see also 28
U.S.C. § 46(d) (noting circuit court may adopt procedure permitting disposition of
an appeal where remaining quorum of panel agrees on the disposition). The
remaining panel members have acted as a quorum with respect to this Order and
Judgment.
      This is an interlocutory appeal from a denial of qualified immunity. The

plaintiff, Raymond Vega, brought an action under Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against former

warden Blake Davis, alleging he had a role in Vega’s brother’s suicide. Following

a hearing on Davis’ motion to dismiss count one, which alleged deliberate

indifference to a serious medical need in violation of the Eighth Amendment, the

district court denied Davis’ motion. Davis appeals this denial. We exercise

jurisdiction under 28 U.S.C. § 1291 and reverse and remand with direction to grant

Davis’ motion as to count one.

      I. BACKGROUND

      In May 2012, Raymond Vega (“R.V.” or the “plaintiff”) brought this action

against Blake Davis and other unknown Bureau of Prisons (“BOP”) agents. R.V.’s

brother, Jose Martin Vega (“J.M.V.”), was held at the United States Penitentiary,

Administrative Maximum Facility near Florence, Colorado (“ADX” or “ADX

Florence”) when he committed suicide on May 1, 2010. The amended complaint

(or “complaint”) alleges two causes of action, both under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Count

one alleges the defendants were deliberately indifferent to J.M.V.’s serious

medical needs, in violation of the Eighth Amendment. Count two alleges the

defendants interfered with R.V.’s relationship with J.M.V., in violation of the First

and Fourteenth Amendments.

                                          2
      The plaintiff rests his Eighth Amendment claim upon the assertion that

J.M.V. suffered from a serious mental illness during his incarceration at ADX, that

defendants exhibited persistent and deliberate indifference to his serious mental

illness, and that as a result J.M.V.’s mental illness was not properly treated, which

led to his suicide. The complaint alleges that the defendants regularly violate BOP

policies and federal regulations by transferring seriously mentally ill inmates to

ADX, by placing them in ADX’s Control Unit, and by failing to provide these

inmates any mental health care, including psychotropic drugs. The complaint

alleges that the consequences are stark: ADX prisoners scream in their cells,

mutilate themselves, have delusional conversations, and spread their feces in their

cells. According to the complaint, since the time ADX opened, at least five other

ADX inmates have committed suicide in addition to J.M.V. The complaint states

that ADX began housing BOP prisoners in late 1994.

      The complaint details J.M.V.’s history of mental illness. We briefly outline

plaintiff’s allegations here. After attacking an associate warden at another facility

in March 2003, J.M.V. was transferred to Allenwood United States Penitentiary

for nearly two weeks, where he was placed on suicide status, and then transferred

to the United States Medical Center for Prisoners in Springfield, Missouri (“MCFP

Springfield”) for mental health evaluation and treatment. In April 2004, J.M.V.

was transferred to ADX Florence and placed in the Control Unit. In December

2004, an ADX psychologist diagnosed J.M.V. with paranoid schizophrenia. In

                                          3
March 2005, he was transferred to MCFP Springfield because of a suicide attempt,

and his evaluation there found he had “a history of depression and antisocial

personality disorder.” Id. at 21. The complaint alleges that J.M.V.’s year-long

stay at MCFP was unusually long when compared to the average length of stay,

indicating J.M.V. had a serious mental illness. J.M.V. was transferred back to

ADX in 2006, despite BOP’s policy against transferring inmates with serious

psychiatric illnesses to ADX. J.M.V. was again placed in the Control Unit, in

apparent violation of federal regulations that bar placing inmates with “significant

mental disorder[s]” into control units. Id. at 16-17. According to the complaint,

this placement also prevented J.M.V. from receiving the mental-health medication

he required.

      The complaint alleges J.M.V.’s declining mental state was evidenced by his

appearance and behavior. He looked “totally shot out,” when he returned to ADX,

his behavior changed between 2006 and 2008 from “normal” to a “‘weird,’ ‘bat

shit’ crazy man who talked to himself,” and thought people were poisoning him,

he experienced “dramatic weight loss” from 2006 and 2008, and he began self-

mutilating sometime between 2006 and 2008. Id. at 25-26. In July 2008, J.M.V.

filed a pro se complaint in federal district court alleging severe mistreatment by

ADX staff. J.M.V.’s complaint contained a host of allegations, including his

contentions that he was regularly physically and sexually assaulted by ADX staff,

was given poisoned food or food containing human waste, and was given a razor

                                          4
blade by ADX staff, who encouraged J.M.V. to kill himself. Attached to J.M.V.’s

complaint was documentation of the administrative complaints he had filed

regarding these issues. According to the plaintiff, J.M.V.’s pro se complaint

shows he was either seriously abused or had an untreated mental illness. J.M.V.’s

lawsuit was dismissed on December 15, 2008.

      The present complaint contains this description of J.M.V.’s final days. In

2010, J.M.V. had lost 50 pounds and was “largely incoherent.” Id. at 26. In early

April, J.M.V. “was in ambulatory restraints for three to four days, yelling and

throwing feces.” Id. He screamed on April 20, 2010 that “he was tired of the

treatment he was receiving, and was going to do something about it.” Id. On or

about April 30, 2010, J.M.V. was again placed into ambulatory restraints, despite

being in “obvious psychological distress.” Id. ADX staff did not request mental

health care for J.M.V. They “left him in his cell chained hand and feet, and utterly

alone.” Id. On May 1, 2010, J.M.V. was found dead in his cell. The coroner’s

report determined hanging was the cause of death, and the investigation indicated

the injuries J.M.V. sustained were intentional and self-inflicted. The coroner’s

report stated the ADX health administrator indicated J.M.V. had a “long

psychiatric history.” Id. at 27.

      The complaint states that “[a]t certain relevant times Defendant Blake R.

Davis was the Warden at ADX Florence,” including the day J.M.V. committed

suicide. R. at 8. The complaint’s only other references to Davis state:

                                          5
96.   As warden of ADX during certain periods relevant
      to this action, Defendant Davis was responsible for
      the care and safety of ADX inmates, including
      Vega.

97.   Upon information and belief, during relevant
      periods Defendant Davis visited the ADX Control
      Unit and spoke with inmates confined there, and
      through those interactions and through other means
      became familiar with events occurring in the
      Control Unit and the condition of the prisoners
      confined there.

98.   Upon information and belief, Defendant Davis was
      aware of the discipline imposed on ADX inmates,
      serious medical issues among the inmates, and
      other information bearing on the care and well
      being of inmates under his custody and control,
      including Vega.

99.   Upon information and belief, during relevant
      periods Defendant Davis had the discretionary
      authority to authorize the transfer of ADX inmates,
      including Vega, to medical facilities such as MCFP
      Springfield, where they could be treated for mental
      health problems more serious than could
      effectively be treated at ADX.

100. Upon information and belief, Defendant Davis
     knew about or was willfully ignorant of Vega’s
     serious medical needs, his deterioration while
     confined in the ADX Control Unit, the availability
     of constitutionally adequate mental health services
     at BOP medical facilities such as MCFP
     Springfield, and the means of accessing other
     mental health services required by Vega.
     Nevertheless, Defendant Davis failed and refused
     to make any of those resources and medical
     services available to Vega.

101. Upon information and belief, Defendant Davis also

                            6
                      failed to prevent the abuse of Vega by ADX staff,
                      failed to ensure that Vega was adequately fed and
                      safely housed, failed to implement adequate
                      suicide prevention programs at ADX, and
                      otherwise failed to address Vega’s serious, chronic
                      and growing mental illness. As a result, Vega’s
                      mental deterioration continued, and ultimately
                      resulted in his death. Defendant Davis’s failure to
                      discharge their obligations relating to Vega was a
                      legal cause of Vega’s death.

                102. Upon information and belief, Defendant Davis
                     engaged in similar misconduct with respect to
                     other ADX inmates, some of whom have injured or
                     killed themselves as a result, and many of whom
                     have suffered unnecessarily and for months or
                     years on end because of the failure of Defendants
                     and other ADX staff members to provide
                     constitutionally required mental health care to
                     inmates whom they knew or should have know
                     [sic] suffered from serious mental illnesses.

Id. at 28-29.

      Davis moved to dismiss, noting first of all that he was not warden in 2004-

2008, when many of the events relating to J.M.V.’s history of mental illness

occurred. Davis also argued the complaint failed to show he was personally

involved in any constitutional violation, failed to show he had the requisite state of

mind for an Eighth Amendment violation, and improperly extended Bivens to the

First and Fourteenth Amendments in count two. Davis also argued that he was

entitled to qualified immunity on both claims.

      At the hearing on Davis’ motion to dismiss, the district court granted Davis’

motion on count two but denied it on count one. Although the court acknowledged

                                            7
that Davis was not warden until 2009 and the complaint did not allege Davis ever

personally observed J.M.V., the court concluded that Davis’ position as warden

imposed upon him “a responsibility to see to the health and welfare” of the

inmates, and “a special responsibility” to those in the Control Unit, making it

“hard” for the court to agree it “should dismiss this case because there is no

specific allegation of specific knowledge.” Id. at 378. The court stated that the

information about “who observed [J.M.V.] day to day and what reports” existed

were “what ought to be discovered in this case.” Id. at 379. The court asked if

Davis was “required by his position as warden of the institution to look into the

conditions” of the ADX inmates. Id. at 380. Davis’ counsel agreed that this was

generally true, but stated that if this general responsibility were sufficient to show

personal participation in a constitutional violation, wardens could be “sued

individually for anything that happens in the institution.” Id. The court asked

why the events in April 2010, when J.M.V. was in restraints and self-harming, did

not come to Davis’ attention. Defense counsel stated there were no facts

indicating Davis was aware of anything that happened before 2009. The court

asked, “Doesn’t he have records in front of him?” Id. at 381. Defense counsel

agreed he did, but stated there were over 450 inmates at ADX. The court

responded, “not all 450 inmates are in the Control Unit, and not everybody in the

Control Unit is manifesting mental health conditions as [J.M.V.] did, right?” Id.

Defense counsel agreed, but replied “there still are no facts alleged that he actually

                                           8
knew of any risk and that he subjectively drew that bad intent,” as required by the

Eighth Amendment. Id. The court then denied Davis’ motion to dismiss count

one, but the court granted the motion to dismiss count two. Plaintiff does not

appeal the dismissal of count two.

      II. ANALYSIS

      A. Does the complaint allege facts showing Davis’ personal participation?

      Davis’ first argument is that the district court erred in denying qualified

immunity because the plaintiff failed to allege facts showing Davis was personally

involved in any constitutional violation. We review de novo the legal question of

“whether a complaint sufficiently alleges a clearly established violation of law.”

Keith v. Koerner, 707 F.3d 1185, 1187 (10th Cir. 2013). This involves

considering both (1) whether the plaintiff has pled facts showing a violation of a

constitutional right, and (2) whether that right was clearly established when the

defendant acted. Id. at 1188. When evaluating a complaint, “all well-pleaded

allegations of the complaint are accepted as true,” and although “factual assertions

are taken as true, legal conclusions are not.” Berneike v. CitiMortgage, Inc., 708

F.3d 1141, 1144 (10th Cir. 2013). The complaint must present a plausible claim,

which means that the pleaded “factual content . . . allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

at 1144-45 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

      In a Bivens action, the plaintiff has a private right of action for damages

                                          9
against federal officers that violate the plaintiff’s constitutional rights. Iqbal, 556

U.S. at 675. In order to state a Bivens claim, the plaintiff must show that each

defendant violated that constitutional right through his or her “own individual

actions,” because “[g]overnment officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat

superior.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Iqbal,

556 U.S. at 676)). The complaint must “make clear exactly who is alleged to have

done what to whom, . . . as distinguished from collective allegations.’” Id.

(quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir.

2011)). It is therefore “incumbent upon a plaintiff to ‘identify specific actions

taken by particular defendants’ in order to make out a viable § 1983 or Bivens

claim.” Id. at 1226 (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532

(10th Cir. 1998)).

      Before beginning our analysis, we first respond to the plaintiff’s argument

that his “unique and profound informational asymmetries” justify denying the

motion to dismiss. Appellee’s Br. at 16. Or put another way, the plaintiff’s lack

of access to relevant information, when compared to defendant’s access, should

not result in the dismissal of his claim. The Supreme Court has already

considered, and rejected, this very possibility. Iqbal, 556 U.S. at 678-79 (“Rule 8

marks a notable and generous departure from the hyper-technical, code-pleading

regime of a prior era, but it does not unlock the doors of discovery for a plaintiff

                                           10
armed with nothing more than conclusions.”); id. at 686 (“We decline respondent’s

invitation to relax the pleading requirements on the ground that the Court of

Appeals promises petitioners minimally intrusive discovery. That promise

provides especially cold comfort in this pleading context, where we are impelled

to give real content to the concept of qualified immunity . . . .”). We clearly must

reject this argument as well.

      Davis argues the district court erred in denying qualified immunity because

the complaint fails to plead facts showing Davis’ personal participation. He

argues that all pre-2009 incidents should be disregarded because Davis was not

warden at that time. 1 Further, Davis argues the complaint seeks to hold him liable

“solely on the basis of his position as the warden.” Appellant’s Br. at 19. The

complaint does not allege Davis “knew or ever interacted with inmate Vega.” Id.

at 22. Davis also argues that the complaint provides no facts to support its

conclusory allegations that Davis knew about the discipline of ADX inmates, that

he knew about serious medical issues among the inmates, or that he knew about or

was willfully ignorant of J.M.V.’s medical needs. Davis argues that under Iqbal,


       1
        The plaintiff does not dispute that Davis was not warden until 2009.
After oral argument, Davis submitted supplemental authority, pursuant to Fed. R.
App. P. 28(j), stating he served as warden of ADX from July 13, 2009 until April
21, 2012. We judicially notice this fact under the Federal Rules of Evidence,
Rule 201. Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219 n.2 (10th Cir.
2011) (noting that under Rule 201, judicial notice may be taken “whether
requested or not,” and “at any stage of the proceeding”) (quoting Fed. R. Evid.
201(c), (f)).

                                          11
such conclusory statements are not entitled to a presumption of truth. Davis also

contends that the complaint fails to meet the standard for supervisory liability set

forth in Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010).

      Given that Davis was not warden until July 13, 2009, the only way Davis

could conceivably be linked to J.M.V.’s suicide is through his neglect in

addressing J.M.V.’s untreated mental illness from July 13, 2009 to May 1, 2010,

by failing to use his discretionary authority to transfer J.M.V. out of ADX to

MCFP Springfield to receive treatment. 2 For this claimed neglect to constitute

personal participation in the constitutional violation alleged, Davis must also have

acted with the requisite mental intent, which is Davis’ second issue on appeal. We

thus proceed to address that question.




       2
        The complaint could also be read to allege that Davis failed to correct the
systematic denial of mental health care to Control Unit inmates during his tenure
as warden. This kind of allegation would likely fall under Dodds, which requires
the plaintiff show: “(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2)
caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” 614 F.3d at 1199
(emphasis added). However, the plaintiff has specifically stated he is not relying
on a theory of supervisory liability under Dodds. To the extent the plaintiff seeks
to employ a theory of supervisory liability not outlined in Dodds, he has failed to
argue how such a theory survives Iqbal. These arguments are thus waived.
Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 788 (10th Cir. 2013)
(“‘Arguments inadequately briefed in the opening brief are waived.’”) (quoting
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)).

                                          12
      B. Did the district court err in denying qualified immunity based on the

plaintiff’s failure to allege Davis was deliberately indifferent?

      Davis’ second issue on appeal is that he is entitled to qualified immunity

because the plaintiff failed to support his allegation that Davis violated J.M.V.’s

Eighth Amendment rights. An Eighth Amendment claim based upon inadequate

medical attention requires the plaintiff show “deliberate indifference to serious

medical needs.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)

(internal quotation and citation omitted). Davis’ appeal focuses on the second

prong of this test, which requires the plaintiff “show that the defendants knew [the

plaintiff] faced a substantial risk of harm and disregarded that risk, by failing to

take reasonable measures to abate it.” Id. at 1089 (citation omitted). The

defendant-official must both “know[] of and disregard[] an excessive risk to

inmate health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)). If the risk was “obvious,” this may be circumstantial evidence of the

official’s subjective state of mind, though an obvious risk is not conclusive

because “a prison official may show that the obvious escaped him.” Id. (quoting

Farmer, 511 U.S. at 842, 843 n.8).

      Davis argues the complaint fails to allege facts supporting the plausible

inference that Davis “was aware that inmate Vega was at a substantial risk of

                                           13
serious harm or that Mr. Davis actually drew such an inference that the risk of

harm existed.” Appellant’s Br. at 29. Although the complaint does allege that

Davis “knew about or was willfully ignorant of Vega’s serious medical needs,”

Davis notes that this allegation is conclusory and not supported by any facts in the

complaint. Id. at 30. Davis contends there are no facts showing Davis “knew

anything at all about inmate Vega,” including his mental state, lack of treatment,

and risk of suicide. Id.

      Our first step is to eliminate all “allegations in the complaint that are not

entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. The plaintiff’s

conclusory allegations about Davis in paragraphs 97, 98, and 100 are not

supported by any facts, and thus not presumed to be true. We also cannot rely on

the pre-2009 events. Had Davis been warden when J.M.V. was transferred to

ADX, or to the Control Unit at ADX, or when he filed his administrative

complaints alleging assaults and poisoned food, we would have at least some basis

upon which to draw the inference that Davis knew J.M.V. was at risk due to his

untreated mental illness. Although the plaintiff acknowledges that Davis was not

warden when these events occurred, he fails to appreciate how this removes these

events from our consideration in determining whether Davis was deliberately

indifferent. See Appellee’s Br. at 24-25. After removing irrelevant or conclusory

allegations, we are left with only three facts that could begin to support an

inference of Davis’ knowledge: 1) J.M.V.’s records documenting his mental health


                                          14
issues, provided there is an inference Davis would have read them, 2) Davis’ visit

to the Control Unit, and 3) the events in April and May 2010.

      Our second step is to determine whether these facts are sufficient to allow

us “to draw the reasonable inference that the defendant is liable for the misconduct

alleged,” Iqbal, 556 U.S. at 678, and we conclude that they are not. The mere

presence of records, by themselves, does not create the reasonable inference that

Davis read them. The plaintiff fails to explain why it is reasonable to infer that a

warden would review all of the records of each inmate, or each inmate in the

Control Unit, or J.M.V.’s records in particular. And as Davis points out, J.M.V.’s

records were “voluminous,” making their review more time-consuming and less

likely. Appellant’s Reply Br. at 23. Davis’ one visit to the Control Unit does not

advance the plaintiff’s claim because there is no indication that this visit made him

aware of J.M.V.’s mental illness or lack of treatment. The events in April and

May 2010 also have no tie to Davis, as there are no facts indicating that Davis was

informed of J.M.V.’s actions or the ADX staff’s treatment of J.M.V. We agree

with Davis that it is not plausible to infer that “a warden is aware of everything

that happens to each inmate in his custody.” Id.

      In his response brief, the plaintiff essentially argues that the warden could

be liable for any suicide by a mentally ill person in the Control Unit because of his

knowledge that there were mentally ill people in the Control Unit that were not

receiving mental health services. However, the complaint’s only non-conclusory


                                          15
fact supporting the inference that Davis knew about the lack of treatment in the

Control Unit was his single visit there. Although it is certainly possible that on

his tour he witnessed enough in the Control Unit to make it obvious that there was

a systematic denial of mental health care, we conclude from our “judicial

experience and common sense” that a single visit does not “plausibly suggest” that

Davis knew enough to be deliberately indifferent to Control Unit inmates. See

Iqbal, 556 U.S. at 679, 680.

      This lack of factual support distinguishes this case from Keith, 707 F.3d at

1189, and Smith v. United States, 561 F.3d 1090, 1093-94 (10th Cir. 2009). In

Keith, a government report noted several prior instances of sexual misconduct,

inconsistent administrative responses to allegations of sexual misconduct, and

failures at the policy level that created the opportunity for sexual misconduct. 707

F.3d at 1189. These facts together supported the plausible inference of deliberate

indifference by the warden, who had served in that position “over a period of

years” during which the prior instances of sexual misconduct occurred. Id. at

1188, 1189. Similarly, in Smith there were facts indicating that the warden knew

about a report that documented the presence of asbestos in the prison. 561 F.3d at

1094, 1105. Davis’ single visit of unknown duration to the Control Unit pales in

comparison to the facts in Keith and Smith. 3

       3
      See Keith, 707 F.3d at 1188-89 (“[The warden] characterizes Ms. Keith’s
argument as: because [the warden] had the responsibility for managing the facility
                                                                    (continued...)

                                          16
       Certainly, there is much in this complaint that, if true, is deeply concerning.

However, we are counseled by Iqbal to remember that “each Government official,

his or her title notwithstanding, is only liable for his or her own misconduct.” 556

U.S. at 677. The fact that allegations in this complaint, if true, expose significant

shortcomings in the treatment of mentally-ill prisoners at ADX cannot negate that

requirement.

       We REVERSE the district court’s order denying Davis’ motion to dismiss

count one and REMAND with direction to grant Davis’ motion to dismiss count

one.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Chief Judge




       3
       (...continued)
and imposing discipline, and did in fact discipline employees for undue
familiarity and sexual misconduct,” the warden “must have been aware” of an
employee’s intent to engage in illegal sexual acts with the plaintiff, an inmate of
the prison. “Of course, that alone would be insufficient to withstand a motion to
dismiss. But there is more.” (internal citation omitted)).

                                          17
