                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        December 28, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RAYMOND VEGA, personally and as
personal representative of the Estate of
Jose Martin Vega,

      Plaintiff - Appellant,                                No. 16-1028
                                                  (D.C. No. 1:12-CV-01144-RPM)
v.                                                         (D. Colorado)

BLAKE R. DAVIS and certain additional
unknown agents of the United States
Bureau of Prisons,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________


       This appeal arises from a Bivens action in which Petitioner Raymond Vega

(Plaintiff) claims that former warden Blake Davis (the Warden) was deliberately

indifferent to the serious medical needs of Plaintiff’s brother Jose Vega (Vega), in

violation of the Eighth Amendment. See generally Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges that the

Warden failed to provide Vega with adequate mental health care, which led Vega to


       *
         This order and judgment is not binding precedent, except under the doctrines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.
commit suicide. After an initial round of litigation in which this court ultimately

reversed and remanded the district court’s denial of qualified immunity, the district

court permitted Plaintiff to amend his complaint. After reviewing the newly amended

complaint, the district court granted the Warden qualified immunity. We affirm

because the allegations in the amended complaint fail to state a plausible Eighth

Amendment violation. As tragic as the facts of this case are, nothing in the amended

complaint supports a reasonable inference that the Warden was deliberately

indifferent to Vega’s mental health needs.

                                 I. BACKGROUND

                                 A. Factual History1

      On May 1, 2010, while housed at the U.S. Penitentiary, Administrative

Maximum, in Florence, Colorado (ADX Florence), Jose Vega hanged himself from

his cell door using his bedsheet. Prison staff attempted to revive him but were

unsuccessful, and Vega died. Plaintiff alleges that Vega’s suicide risk should have

been eminently clear to the Warden, given Vega’s history of psychiatric treatment,

including the fact that Vega was classified in March 2003 as a “high suicide risk” and

underwent psychiatric treatment several times over the following two years at the

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

Springfield).
      1
        Much of the factual history of this case has been explored in the prior panel’s
order and judgment. See Vega v. Davis, 572 F. App’x 611, 613–14 (10th Cir. 2014)
(unpublished). Though we highlight some of the more salient facts here, we focus
largely on the “newly discovered” evidence presented in the Second Amended
Complaint.
                                             2
      The Warden was assigned to ADX Florence from July 13, 2009 to April 21,

2012, so much of Vega’s psychiatric history pre-dates his tenure. This includes

Vega’s alleged diagnosis of paranoid schizophrenia, his multiple transfers to MCFP

Springfield, and his multiple transfers back to ADX Florence’s Control Unit. The

Control Unit is the most secure unit at the facility, and prisoners housed there “are

isolated from the other prisoners at all times, even during recreation, for extended

terms often lasting six years or more.” Vega was initially placed in the Control Unit

after an incident in which he “slashed the left side of [a staff member’s] face with a

single edged razor blade,” causing a deep laceration to the staff member’s left cheek

and ear lobe which required 28 sutures to close. Vega’s final transfer back to ADX

Florence occurred in November 2006; Vega remained in the Control Unit from then

until his death in May 2010. Plaintiff alleges that Vega’s assignment to the Control

Unit prevented him from receiving proper mental health treatment.

      Plaintiff alleges that in the months prior to his death, Vega was placed into

four-point ambulatory restraints on several occasions. Plaintiff also alleges that Vega

“had lost as much as 50 pounds, customarily wore grossly ill-fitting clothes and

shoes, was no longer maintaining physical hygiene, and was largely incoherent.” The

Warden claims that there is no evidence he was involved in several of the restraint

incidents, that several of the allegations are unsupported by record evidence, and that

there is nothing to suggest Vega was placed in restraints for mental health reasons.




                                           3
      Plaintiff also alleges a number of “newly discovered” facts2 in his amended

complaint which he suggests demonstrate the Warden was aware of Vega’s behavior

and deteriorating medical condition. This includes a behavior management plan the

Warden sent to the Bureau of Prisons’ (BOP) Regional Director, which was

implemented a few days before Vega’s death. The plan outlines the need for prison

staff to place Vega in hard, ambulatory restraints. In the plan, the BOP staff

psychologist concluded that Vega had “no current mental health issues” and that the

restraints did “not seem to [have] a negative impact on mental health functioning.”

The prison’s review board, which included the Warden and the staff psychologist,

signed off on the plan.

      A subsequent “Psychology Services Restraint Check Form” completed by the

staff psychologist notes that Vega requested a transfer, but that it was denied because

“Vega’s behavior is not accounted for by mental illness.” That form also notes that a

summary of Vega’s “psychology history” was included on the prior day’s form, but

that prior day’s form is not in the record. The district court relied heavily on the

psychologist’s conclusions in holding that the Warden was entitled to qualified

immunity.

      2
         As an alternative ground for affirmance, the Warden suggests the district
court erred in granting Plaintiff leave to amend his complaint. Specifically, the
Warden argues that all of the “newly discovered” facts were not “new” at all, since
Plaintiff could have filed FOIA requests and otherwise gained access to the “new”
information before filing his initial complaint. See Kirby v. Resmae Mortg. Corp.,
626 F. App’x 746, 748 (10th Cir. 2015) (unpublished) (noting that relief may be
warranted “when there is new evidence that was previously unavailable” (emphasis
added)). We need not reach this issue because we decide that the motion to dismiss
the amended complaint was properly granted.
                                            4
      Plaintiff’s Second Amended Complaint also cites to various other documents,

including Control Unit Review Forms and the coroner’s report. The Control Unit

Review Forms discuss Vega’s adjustment to the Control Unit and his “release

readiness” factors, which include quarters sanitation, personal grooming and

cleanliness, personal relationship with others and staff, work involvement, and self-

improvement activities. Although the Warden did not participate in the Control Unit

reviews, he did sign seven of Vega’s forms, which consistently showed poor

quarter’s sanitation, poor personal grooming and cleanliness, and poor relationships

with other inmates and staff. In addition to these forms, Plaintiff submitted three

Control Unit Executive Panel Review Forms which summarize the reasons for

Vega’s placement in the Control Unit and make recommendations regarding Vega’s

continuation in the Control Unit. The Warden reviewed these forms, but he was not a

member of the Executive Panel that actually conducted the reviews.3 Each of the

Control Unit Executive Panel Review Forms showed that Vega had received incident

reports requiring him to be on “Disciplinary Segregation status.” The forms also

indicated that his interactions with staff were deemed poor.

      Next, Plaintiff’s Second Amended Complaint contains a transcript of record

from a separate lawsuit in which another inmate indicated that Vega was “well-

known at ADX Florence for having committed most of the assaults on staff members

from 2008-2010.” The inmate was “pretty sure he had written to Warden Davis

      3
        See 28 C.F.R. § 541.45 (“The Executive Panel is composed of the Regional
Director of the region where a control unit is located . . . and the Assistant Director,
Correctional Programs Division.”).
                                            5
expressing alarm at the condition of inmate Vega,” but he lacked specific memory of

it. Plaintiff also provided the coroner’s report for Vega’s death, in which the coroner

opined that Vega “died as a result of hanging” and that the manner of death was

suicide. The report also noted that the attending physician’s assistant and the ADX

health administrator reported that Vega “had a long psychiatric history.”

      Finally, the Second Amended Complaint references several BOP policies

which Plaintiff alleges create an inference that the Warden was aware of Vega’s

mental health issues but disregarded them. To begin, the BOP’s Program Statement

5310.13 on the Institutional Management of Mentally Ill Prisoners, provided that the

Warden was to assign a program coordinator to assess and treat mentally ill inmates.

That policy also required the coordinator to report to relevant staff members,

including the Warden, and to train staff members on identifying and reporting mental

illness. The policy also required incoming inmates like Vega, who have mental health

issues or are at risk of suicide, to undergo a screening process, and Plaintiff alleges

that ADX Florence gave only “perfunctory interviews that are wholly inadequate as a

form of screening or diagnosis.”

      Plaintiff also cites to the BOP’s policy on the use of force, which specified the

process for the Warden to receive documented reviews of an inmate during his time

in restraints. BOP Program Statement P5566.06, “Use of Force and Application of

Restraints,” p. 18. The reviews included a fifteen-minute check, a two-hour

lieutenant check, a health services staff review, and a psychology staff check. Id. at

18–19. These reviews were provided to the Warden each 24-hour period the inmate

                                            6
was in restraints. Id. Also, prison staff were required to ensure the inmate’s time in

the restraints was video recorded. Id. at 19. The Warden received and reviewed any

such videos and then forwarded them to the Regional Director for review. Id.

                                B. Procedural History

      Plaintiff initially filed this Bivens action on behalf of Vega in May 2012,

alleging that the Warden’s deliberate indifference to Vega’s serious mental health

needs resulted in Vega’s death. Vega v. Davis, 572 F. App’x 611, 612 (10th Cir.

2014) (unpublished) [hereinafter Vega I]. The district court denied the Warden’s

motion to dismiss based on qualified immunity, and we reversed and remanded,

concluding that Plaintiff’s complaint failed to allege the Warden’s personal

participation in any constitutional violation. Id. at 615–19.

      On remand, the district court entered judgment for the Warden, and Plaintiff

then filed a motion for relief from judgment and leave to file a Second Amended

Complaint pursuant to Federal Rules of Civil Procedure 59(e) & 60(b)(2), in order to

include “newly discovered evidence.” The district court granted the motion,

reasoning that the evidence presented a reasonable inference that the Warden knew

“Vega was a high risk of suicide requiring protective measures that would have kept

him alive and that the warden had a duty to direct such actions.” Vega filed his

Second Amended Complaint on July 15, 2015, and the Warden again moved to

dismiss.

      In December 2015, the district court granted the Warden’s motion to dismiss,

relying heavily on the staff psychologist’s report from days before Vega’s death. As

                                            7
mentioned above, the report indicated that Vega’s behavior was “not accounted for

by mental illness.” The district court found that the “defendant [could] reasonably

rely on the staff psychologist and approve the continued use of restraints because of

assaultive behavior without himself determining that inmate Vega had untreated

mental health issues.” The court also determined that the “additional allegations [did]

not meet the requirements stated by the appellate court to support a finding that

Warden Davis knew that inmate Vega had a mental condition that required treatment

to keep him from hanging himself.” Plaintiff timely appealed.

                                  II. DISCUSSION

      On appeal, Plaintiff argues that the district court erred in granting the

Warden’s motion to dismiss. He asserts that the Second Amended Complaint

properly alleges the Warden’s deliberate indifference toward Vega’s mental health

needs, including that the Warden personally participated in depriving Vega of needed

medical care. The Warden disagrees, claiming that the complaint lacks sufficient

allegations with respect to his personal participation and subjective state of mind. He

also contends that the conduct alleged in the complaint does not constitute a violation

of clearly established law. We agree the complaint fails to state a plausible Eighth

Amendment deliberate indifference claim, and we accordingly affirm.

                                 A. Standard of Review

      “This court reviews de novo a district court’s grant of a motion to dismiss

based on qualified immunity.” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir.

2010). “To survive a motion to dismiss, a complaint must allege facts that, if true,
                                           8
state a claim to relief that is plausible on its face. A claim is facially plausible when

the allegations give rise to a reasonable inference that the defendant is liable.”

Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (citation and internal

quotation marks omitted). The complaint must be dismissed if a plaintiff fails to

“nudge[] [his] claims across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

      B. The Second Amended Complaint Does Not Support a Claim of Deliberate
                                  Indifference

       Although Plaintiff’s Second Amended Complaint does “nudge” his deliberate

indifference claim more toward the line of plausibility than his initial complaint, id.,

it still fails the facial plausibility standard. “In resolving a motion to dismiss based on

qualified immunity, the court considers (1) whether the facts that a plaintiff has

alleged make out a violation of a constitutional right, and (2) whether the right at

issue was clearly established at the time of defendant's alleged misconduct.” Keith v.

Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal quotation marks omitted).

“This standard, by design, ‘gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions.’” Pahls v. Thomas,

718 F.3d 1210, 1227 (10th Cir. 2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011)).

       The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments,” which includes deliberate indifference to the serious medical needs of

prisoners in custody. Estelle v. Gamble, 429 U.S. 97, 104–06 (1976). To prevail on


                                            9
an Eighth Amendment deliberate-indifference claim against prison officials, an

inmate must satisfy “a two-pronged inquiry, comprised of an objective and subjective

component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). The objective

component is met where the deprivation is “sufficiently serious.” Sealock v.

Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation marks omitted).

      The subjective component requires a plaintiff to demonstrate that officials

acted with a “sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298

(1991). Under this standard, “a prison official cannot be liable ‘unless the official

knows of and disregards 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.’” Self, 439 F.3d at 1231

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). This rigorous standard

separates Eighth Amendment claims from state-law negligence actions—“the

negligent failure to provide adequate medical care, even one constituting medical

malpractice, does not give rise to a constitutional violation.” Id. at 1233 (quoting

Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999)).

      Under the standard outlined above, Plaintiff was required to demonstrate that

the Warden was aware of facts from which the inference could be drawn that Vega

was at a substantial risk of harm or suicide, and the Warden “must also draw the




                                           10
inference.” Id. at 1231. The Second Amended Complaint fails in both respects.4 To

begin, it contains insufficient allegations with respect to the Warden’s knowledge.

The complaint does allege that the Warden was aware of Vega’s poor behavior via

the “Control Unit Reviews” and “Control Unit Executive Panel Reviews,” but those

documents do not indicate Vega was suicidal or suffering from mental illness.

Rather, as noted by the Warden, those forms “do not include any sort of

psychological review.” When a psychological review actually was conducted in the

days prior to Vega’s suicide as part of the decision to place Vega in restraints, the

review noted that Vega “ha[d] no current mental health issues.” And a review that

appears to have been conducted the following day adds that “Vega was polite, calm,

and cooperative” and displayed “[n]o evidence of mood disturbance or psychosis.”

Though Vega did request a transfer during this subsequent review, the psychologist

recommended against a referral to a mental health facility because his assaultive

behavior was “not accounted for by mental illness.”

      Against the daunting implication of this evidence with respect to the Warden’s

awareness of a mental health issue, Plaintiff cites to additional evidence, including

the BOP policies, the coroner’s report, and evidence of Vega’s institutional

reputation, to suggest the Warden was aware of Vega’s condition and behavior. But

one cannot plausibly draw an inference from this information that the Warden both

knew that Vega was suffering from a mental illness and then consciously disregarded

      4
        Because Plaintiff’s Second Amended Complaint fails to satisfy the subjective
component of the Eighth Amendment inquiry, we do not address whether the right at
issue was clearly established.
                                           11
the risks of leaving Vega’s condition untreated. To be sure, reliance on a medical

professional’s opinion does not foreclose a finding of deliberate indifference to a

prisoner’s serious medical needs in all circumstances. See Farmer v. Brennan, 511

U.S. 825, 842 (1994) (“[A] factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.”). But here Plaintiff has

provided no evidence that the Warden knew the psychological opinion was not a

valid expression of professional judgment, was based on materially false or outdated

information, or contradicted the contemporaneous opinion of a more qualified expert.

In short, there is nothing that creates a plausible inference that despite the contrary

report of the prison psychologist, the Warden knew Vega was currently suffering

from mental illness and at risk of suicide but was nonetheless deliberately indifferent

to that risk.

       Moreover, Plaintiff fails to demonstrate how one can infer the Warden was

aware of any of the facts that pre-dated his tenure. As this court admonished during

the prior appeal, “[t]he 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 [Vega’s] records in particular.” Vega I, 572 F.

App’x at 618. In the current appeal, Plaintiff suggests it is reasonable to conclude

that the Warden was aware of Vega’s earlier mental health history because he

“reviewed documents related to [Vega] that outlined his disciplinary history dating

back to 2003.” We are not persuaded.

                                           12
      Although the Warden did review documents that discussed Vega’s behavior in

2003—specifically, the assaultive behavior that landed Vega in the Control Unit—

those documents say nothing about mental illness. Though the Warden, by reviewing

these documents, clearly became aware of Vega’s conduct, there is nothing to suggest

he was aware of or knowingly disregarded Vega’s mental health, particularly where

the facility’s own psychologist opined that Vega “ha[d] no current mental health

issues.” See Farmer, 511 U.S. at 838 (“[A]n official’s failure to alleviate a significant

risk that he should have perceived but did not, while no cause for commendation,

cannot under our cases be condemned as the infliction of punishment.”).

                                 III. CONCLUSION

      Because Plaintiff’s complaint fails to state a plausible Eighth Amendment

deliberate indifference claim, we AFFIRM the district court’s order granting the

Warden’s motion to dismiss.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




                                           13
