Rios v. Redding ( 2022 )

Appellate Case: 21-1060 Document: 010110661155 Date Filed: 03/22/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 22, 2022
_______________________________________
Christopher M. Wolpert
Clerk of Court
LUIS A. RIOS, JR.,
Plaintiff - Appellant.
No. 21-1060
v. (D.C. No. 1:20-CV-01775-MEH)
(D. Colo.)
FNU REDDING; FNU SIMMS;
FNU JONES,
Defendants - Appellees.
INSTITUTE FOR JUSTICE; BLACK
& PINK NATIONAL; CENTER FOR
CONSTITUTIONAL RIGHTS; DEE
FARMER; GLBTQ LEGAL
ADVOCATES AND DEFENDERS;
JUST DETENTION
INTERNATIONAL; LAMBDA
LEGAL DEFENSE AND
EDUCATION FUND; MUSLIM
ALLIANCE FOR SEXUAL AND
GENDER DIVERSITY; NATIONAL
CENTER FOR LESBIAN RIGHTS;
NATIONAL CENTER FOR
TRANSGENDER EQUALITY;
TRANSGENDER LAW CENTER;
TRANSGENDER LEGAL DEFENSE
& EDUCATION FUND; FORMER
CORRECTIONS OFFICIALS,
Amici Curiae.
__________________________________________
Appellate Case: 21-1060 Document: 010110661155 Date Filed: 03/22/2022 Page: 2
ORDER AND JUDGMENT *
__________________________________________
Before HARTZ, BACHARACH, and MCHUGH, Circuit Judges.
___________________________________________
BACHARACH, Circuit Judge.
____________________________________________
Ms. Divinity Rios 1 is a transgender woman housed in a federal prison
for males. She requested protective custody after allegedly being forced to
perform sexual acts on other inmates. Officials granted the request,
transferring Ms. Rios from general population to a special housing unit.
Three prison investigators then interviewed Ms. Rios and recommended
that she return to the general population. After authorities adopted the
recommendation and returned Ms. Rios to the general population, she
allegedly suffered another sexual assault.
Without legal representation, Ms. Rios sued the prison investigators,
alleging violation of the Eighth Amendment by failing to supply
protection. For the asserted violations, Ms. Rios sought money damages
under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
1
The caption identifies the plaintiff as Luis A. Rios, Jr. But the
plaintiff uses the name “Divinity Rios.”
2
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The investigators moved for dismissal, urging qualified immunity
and lack of a Bivens remedy. The district court granted the motion based
on the absence of a Bivens remedy, but declined to reach the issue of
qualified immunity. We affirm based on qualified immunity, concluding
that a concession in the complaint would preclude a finding of deliberate
indifference.
I. We may affirm on an alternative ground that the district court
didn’t decide.
We generally do not decide issues that the district court declined to
address. N. Tex. Prod. Credit Ass’n v. McCurtain Cnty. Nat’l Bank, 222
F.3d 800, 812 (10th Cir. 2000). But we have discretion to affirm on
alternative grounds when the record is adequate. United States v. Nelson,
868 F.3d 885, 891 (10th Cir. 2017). In deciding whether to affirm on an
alternative ground, we consider
 whether the ground was fully briefed here and in district court,
 whether the parties have had a fair opportunity to develop the
factual record, and
 whether our decision would involve only questions of law.
Harvey v. United States, 685 F.3d 939, 950 n.5 (10th Cir. 2012).
These factors support consideration of qualified immunity as an
alternative ground to affirm. The parties briefed the issue in district court
and on appeal, and the factual record is complete because the only
pertinent facts are those pleaded in the complaint. Truman v. Orem City, 1
3
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F.4th 1227, 1235 (10th Cir. 2021). Because we confine ourselves to the
allegations in the complaint, consideration of qualified immunity involves
a question of law. Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992).
So we consider whether to affirm based on qualified immunity.
II. We affirm based on qualified immunity because Ms. Rios failed to
state a claim under the Eighth Amendment.
To overcome qualified immunity, Ms. Rios needs to show that
 the investigators had violated the Constitution and
 the constitutional right had been clearly established.
Courtney v. Oklahoma ex rel., Dep’t of Pub. Safety, 722 F.3d 1216, 1222
(10th Cir. 2013). We consider the sufficiency of the showing based on Ms.
Rio’s reliance on the Eighth Amendment. This amendment applies only if
prison officials recognize the seriousness of a danger to inmates, and Ms.
Rios conceded in the complaint that the investigators failed to recognize
the seriousness of the danger. That concession is fatal to her constitutional
claim.
A. To state an Eighth Amendment claim, Ms. Rios needed to
allege the investigators’ subjective awareness of a
substantial risk.
To state an Eighth Amendment violation, an inmate must allege that
prison officials acted with at least “deliberate indifference” to a substantial
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risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Deliberate indifference involves two components:
1. The risk must be objectively serious.
2. The official must be subjectively aware of the risk.
Id. at 837–39. Subjective awareness exists when investigators know the
“facts from which the inference could be drawn that a substantial risk of
serious harm exists” and actually “draw the inference.” Id. at 837(emphasis added).
B. We conduct de novo review, construing the pro se complaint
liberally and viewing the factual allegations favorably to
Ms. Rios.
We apply de novo review when considering a dismissal for failure to
state a claim on the ground of qualified immunity. Truman v. Orem City, 1
F.4th 1227, 1235 (10th Cir. 2021). In applying de novo review, we credit
all well-pleaded allegations in the complaint and view them in the light
most favorable to the plaintiff. Id.Because Ms. Rios was pro se when she drafted the complaint, we
liberally construe the allegations there. Childs v. Miller, 713 F.3d 1262,
1264 (10th Cir. 2013). Despite liberal construction, even “pro se
complainant[s] can plead [themselves] out of court by pleading facts that
undermine the allegations set forth in [their] complaint[s].” Henderson v.
Sheahan, 196 F.3d 839, 846 (7th Cir. 1999). “Allegations in a complaint
are binding admissions, and admissions can of course admit the admitter to
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the exit from the courthouse.” Jackson v. Marion Cnty., 66 F.3d 151, 153–
54 (7th Cir. 1995) (citations omitted).
C. Ms. Rios alleged that the investigators had lacked subjective
awareness of a substantial risk.
In the complaint, Ms. Rios claimed deliberate indifference under the
Eighth Amendment. Despite this claim, she alleged under oath that the
investigators had “egregiously failed in their professional responsibilities
and duties when neglecting to adequately comprehend and realize the
seriousness of the situation.” Appellant’s App’x at A.12, 21 (emphasis
added). If the investigators did not “comprehend and realize the
seriousness of the situation,” as alleged, they would not have recognized a
substantial risk to Ms. Rios. Id. at A.12. And without recognition of that
risk, the investigators could not have been deliberately indifferent. Farmer
v. Brennan, 511 U.S. 825, 844 (1994). At most, they would have been
negligent.
Ms. Rios argues that her legal theory is not based on negligence,
pointing to her allegations that the investigators
 conspired to omit relevant facts when making a
recommendation and
 intentionally failed to conduct a proper investigation.
Appellant’s Reply Br. at 31. But these allegations are consistent with Ms.
Rios’s concession that the investigators failed to realize the seriousness of
the risk. That concession would prevent deliberate indifference irrespective
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of possible omissions in the recommendation or shortcomings in the
investigation.
Ms. Rios also argues that she adequately alleged the investigators’
subjective awareness, pointing to her allegations elsewhere that she had
informed the investigators of her
 identity as a transgender person,
 history of sexual assaults by other inmates, and
 request to stay in protective custody.
Appellant’s Reply Br. at 28–29; Oral Argument at 15:35–16:10. We credit
these allegations. But these allegations reflect only the investigators’
knowledge of facts that could imply a risk, not the investigators’ actual
recognition of the risk. The investigators wouldn’t have incurred liability
if they “knew the underlying facts but believed (albeit unsoundly) that the
risk to which the facts gave rise was insubstantial or nonexistent.” Farmer
v. Brennan, 511 U.S. 825, 844 (1994).
Ms. Rios asks us to liberally construe her language because she was
pro se when she sued. But Ms. Rios does not say how we can reconcile the
standard for deliberate indifference with her express allegation that the
investigators had failed to “comprehend and realize the seriousness of the
situation.” Appellant’s App’x at A.12. The failure to recognize the risk
could imply negligence, but not deliberate indifference. Farmer v.
Brennan, 511 U.S. 825, 844 (1994). Because Ms. Rios denied under oath
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that the investigators had realized the seriousness of the situation, she
pleaded herself out of an Eighth Amendment claim. See Gutierrez v.
Peters, 111 F.3d 1364, 1374 (7th Cir. 1997) (concluding that a pro se
complainant’s own allegations in the complaint had “fatally undermined”
his theory of deliberate indifference). 2
Ms. Rios also argues that she should be allowed to amend the
complaint in order to “clear up any potentially confusing language.”
Appellant’s Reply Br. at 29; Oral Argument at 16:10–16:25. But she didn’t
ask the district court for leave to amend. Nor does she point to any
“confusing language” in the complaint or say how she would clear up the
purported confusion.
* * *
Because Ms. Rios alleged that the investigators were not subjectively
aware of a substantial risk, she did not plausibly allege a basis of
deliberate indifference. 3 Without a plausible allegation of deliberate
2
Ms. Rios argues that under a liberal construction, she need not use
any “magic words” to state a deliberate indifference claim. Appellant’s
Reply Br. at 28. But we are not faulting Ms. Rios for omitting particular
language. To the contrary, we’re relying on Ms. Rios’s own
characterization of the investigators’ failure to comprehend or realize the
seriousness of the situation.
3
The investigators also argue that they are not liable because they
“respond[ed] reasonably” to the risk. Appellees’ Resp. Br. at 65 (citing
Farmer v. Brennan, 511 U.S. 825, 844 (1994)). We need not address this
argument.
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indifference, the investigators are entitled to qualified immunity. 4 The
district court thus properly dismissed the action.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4
Because the investigators enjoy qualified immunity based on the
absence of a constitutional violation, we need not decide whether the
underlying right was clearly established. See p. 4, above.
9