Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Richardson v. Butler

United States District Court, D. Colorado

January 28, 2014

JACQUES RICHARDSON, Plaintiff,
v.
SUSAN BUTLER, JOHN DAVIS, DAVE COTTEN, DR. T. FISHER, KERRI BARONI, and DEBBIE CAMPBELL, Defendants.

RECOMMENDATION REGARDING CDOC DEFENDANTS' MOTION TO DISMISS

CRAIG B. SHAFFER, Magistrate Judge.

THIS MATTER comes before the court on Defendants Susan Butler, John Davis, Dave Cotten, Kerri Baroni, and Debbie Campbell's (collectively the "CDOC Defendants") Motion to Dismiss (doc. #41), filed on April 8, 2013. Plaintiff Richardson filed his Response to the Defendants' Motion to Dismiss (doc. #53) on May 9, 2013. Pursuant to the Order of Reference dated February 4, 2012 (doc. #28) and separate memorandum dated April 9, 2013, the instant motion was referred to this Magistrate Judge. The court has reviewed the parties' briefs, the pleadings, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the following reasons, I recommend that Defendants' motion be granted.

BACKGROUND

The pro se Plaintiff, Jacques Richardson, commenced this action on November 5, 2012 with the filing of a Prisoner Complaint. At that time, Mr. Richardson was incarcerated at the Buena Vista Correctional Facility (BVCF).[1] Plaintiffs original Complaint asserted two claims for relief based upon violations of the Eighth Amendment, and named the CDOC Defendants, as well as Dr. T. Fisher[2] and Tom Clements.[3] On November 19, 2012, Mr. Richardson moved for Leave to Amend Complaint (doc. #6), indicating that he wished to file an amended complaint that would "include all facts as well as all Request (sic) for Relief." That motion was granted by Magistrate Judge Boyd Boland on November 26, 2012. Three days later, Plaintiff filed an Amended Prisoner Complaint (doc. #14).

On December 7, 2012, Magistrate Judge Boland issued an Order Directing Plaintiff to File Second Amended Complaint (doc. #16). In particular, Judge Boland found that the Amended Complaint was deficient because Mr. Richardson had failed "to allege facts to show that each of the named Defendants, in their individual capacities, participated in a deprivation of his constitutional rights." Mr. Richardson was told that "[p]ersonal participation by the named defendants is an essential allegation in a civil rights action" and that his allegations must demonstrate "an affirmative link between the alleged constitutional violation and each defendant's participation, control or direction, or failure to supervise." If he wished to pursue additional allegations against Department of Corrections personnel, Mr. Richardson was advised to include those allegations in a second amended complaint. Judge Boland gave Mr. Richardson thirty days to file "a second amended complaint that complies with the directives in this Order." Plaintiff filed his Second Amended Complaint (doc. #18), the operative pleading in this case, on December 26, 2012.

The Second Amended Complaint alleges that Mr. Richardson is disabled because of a chronic knee injury. Mr. Richardson states that while he was incarcerated at BVCF in 2011, Dr. Fisher imposed several medical restrictions which gave Plaintiff a disability status. In October 2011, Defendants Davis, the BVCF Warden, and Defendant Cotten, a BVCF Major and the ADA facility coordinator, approved Mr. Richardson's transfer to Sterling Correctional Facility, an ADA-designated facility which allowed Plaintiff daily access to a gym, the library, employment and housing living areas. However, in October 2012, Defendant Butler, the DOC Offender Services Supervisor, transferred Mr. Richardson back to BVCF, a non ADA-designated facility. At that time, Defendant "Davis, medical personnel and case management" told Plaintiff that he would not remain at BVCF because of his medical restrictions and necessary accommodations. Mr. Richardson insists that at the time of his return to BVCF, "all of Plaintiffs medical restrictions were still active and still in place." On October 16, 2012, Defendant Campbell, the BVCF Case Manager Supervisor, informed Plaintiff that Defendant Baroni, the BVCF Health Services Administrator, and Dr. Fisher had removed his medical restrictions. Mr. Richardson alleges that there was no valid basis for removing the restrictions, given that Dr. Fisher had not evaluated his knee upon Plaintiffs return to BVCF, and his condition had worsened since his transfer to Sterling, causing him to use crutches.

In his first claim, Mr. Richardson alleges that Defendants Davis, Cotten, Baroni, Campbell and Butler violated his Eighth Amendment right to be free from cruel and unusual punishment by "placing Plaintiff in a knowing hazardous facility endangering Plaintiffs health both physical (sic) and mentally." (See doc. # 18). Mr. Richardson contends that his return to BVCF resulted in "numerous falls due to the structure of the facility, " and prevented him from "partak[ing] in the incentive programs, general library, gym, ... housing areas and employment." The First Claim alleges that all the named defendants "have the power to remove Plaintiff from the hazardous environment" they have placed him in, but have refused to do so. Mr. Richardson insists that Defendants personally participated in the alleged constitutional violation "by official omission."

Plaintiffs second claim also alleges a violation of the Eighth Amendment. Mr. Richardson avers that Dr. Fisher and Defendant Baroni removed his medical restrictions "without his knowledge, without his consent, and without any physical examination or medical treatment since the removal of Plaintiff from BVCF in 2011." ( See doc. # 18 at 9 of 14). More specifically, the second claim points to "falsifying reports by Dr. Fisher inside of the Plaintiffs medical file, the deliberate disregard to Plaintiffs ADA approved accommodations by all named defendants, [and] the continuous disregard of medical attention to which the Plaintiff continued to request by filing medical request."

The third claim does not specifically reference any individual defendant, but generally alleges that on October 9, 2012, "said named Defendants knowingly with knowledge of Plaintiffs history of medical limitations, restrictions and ADA accommodations did place Plaintiff in a serious physical, mental environment" and have deliberately kept Mr. Richardson in that environment despite having the authority to remove him from those hazards.

Plaintiff has sued the CDOC Defendants in their official and individual capacities. The Second Amended Complaint seeks Mr. Richardson's removal from BVCF, restoration of Plaintiffs medical restrictions and ADA accommodations, and placement in a DOC facility that provides Mr. Richardson with access to all programs, a gym facility, library, employment "and incentives." ( See doc. # 18). Mr. Richardson also seeks compensatory damages.

The CDOC Defendants have moved to dismiss the Second Amended Complaint[4] pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). In summary, the CDOC Defendants contend that Mr. Richardson has failed to state a plausible claim under the Eighth Amendment or the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., and that Plaintiffs constitutional claims are barred by the qualified immunity doctrine. Defendants further argue that Mr. Richardson's pursuit of compensatory damages is barred by the Prison Litigation Reform Act and the Eleventh Amendment, to the extent damages are sought against the Defendants in their official capacities. Finally, the CDOC Defendants assert that Mr. Richardson's request for injunctive relief is moot in light of his transfer to Fremont Correctional Facility.

In his Response, Mr. Richardson insists that the Second Amended Complaint does properly allege violations of his "constitutional rights, the Americans with Disability Act, State law, and the administrative regulations of the Colorado Department of Corrections." Mr. Richardson attached to his Response various Exhibits that he contends "show the facts stated within the Plaintiffs Complaint."[5]

ANALYSIS

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss may be granted if the court does not have subject matter jurisdiction. The determination of subject matter jurisdiction is a threshold question of law. Madsen v. United States ex. rel. United States Army Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them authority to hear. See U.S. Const. Art. III, §2; Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). The court applies a rigorous standard of review when presented with a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Consumers Gas & Oil, Inc. v. Farmland Indus. Inc., 815 F.Supp. 1403, 1408 (D. Colo. 1992). Ultimately, "[t]he burden of establishing subject matter jurisdiction is on the party asserting jurisdiction." Stine v. Wiley, No. 07-cv-01250-WYD-KMT, 2008 WL 4277748, at *3 (D. Colo. 2008).

Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed.R.Civ.P. 12(b)(6). At this stage of the proceedings, the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010), quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Id. As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." "The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 555 U.S. at 556). A complaint must set forth sufficient facts to elevate a claim above the level of mere speculation. Id.

The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted. In doing so, the Court must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff. However, the Court need not accept conclusory allegations.... Even though modern rules of pleading are somewhat forgiving, a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. The plausibility standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible.

Jordan-Arapahoe, LLP v. Board of County Commissioners of the County of Arapahoe, Nos. 08-cv-02790-PAB-CBS, 08-cv-02794-PAB-CBS, 2009 WL 2924777, at *2 (D. Colo. Sept. 9, 2009) (internal quotation marks and citations omitted). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

1. Claims Against Defendants in their Official Capacity

To the extent that Mr. Richardson is suing the CDOC Defendants in their official capacities, he is in reality attempting to impose liability on their employer, the Colorado Department of Corrections. See Meade v. Grubbs, 841 F.2d 1512, 1529 (10th Cir. 1988). A suit against a state official in his or her official capacity is treated as a suit against the state. Hafer v. Melo, 112 S.Ct. 358, 361 (1991). Absent a waiver, the Eleventh Amendment forbids a suit for damages against a state in federal court. Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir. 1993) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). Eleventh Amendment immunity extends to the states themselves and to those governmental entities that are "arms of the state." Ambus, 995 F.2d at 994. States, state officials sued in their official capacities, and governmental entities that are considered "arms of the state" are not "persons" within the meaning of 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). Such entities cannot be sued for monetary damages arising from alleged conduct that deprives a plaintiff of his or her civil liberties. The Colorado Department of Corrections is an arm of the state and thus is entitled to Eleventh Amendment immunity.

The Eleventh Amendment, however, does not bar actions in federal court seeking injunctive relief against state officials. See Ex parte Young, 209 U.S. 123, 159-60 (1908) (holding that the Eleventh Amendment generally does not bar official-capacity claims seeking prospective injunctive relief from a state official). See also Will, 491 U.S. 58, 71 n. 10 (1989) ("Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.") (internal quotation marks and citation omitted). To the extent that Mr. Richardson is suing the CDOC Defendants in their official capacities for money damages, that claim must be dismissed. The court proceeds to evaluate whether Mr. Richardson states a claim against the CDOC Defendants in their individual capacities or in their official capacities for injunctive relief.

B. Qualified Immunity

The CDOC Defendants have raised the defense of qualified immunity as to any claims asserted against them in their individual capacities. Under the doctrine of qualified immunity, government officials are immune from civil damages liability for constitutional torts as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity protects defendants not only from liability, but also from suit. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Such immunity is qualified in that it does not obtain when otherwise immune officials violate clearly established statutory or constitutional rights of which a reasonable person would have known." Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1260 (10th Cir. 1998) (quoting Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). Whether Defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).

This court must review Defendants' claim of qualified immunity "under the customary motion to dismiss standard." Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. However, the court is also mindful of the United States Supreme Court's admonition that a ruling on the issue of qualified immunity should be made at the earliest possible stage of the proceeding in order to preserve the protections of the privilege. See Saucier v. Katz, 533 U.S. 194 (2001).

Resolution of a dispositive motion based on qualified immunity involves a two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, ... the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.

Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks and citations omitted). In determining whether a right is clearly established, the relevant inquiry is "whether it would be clear to a [reasonable government official] that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "A reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. "Qualified immunity is applicable unless" the plaintiff can satisfy both prongs of the inquiry. Id. The plaintiff bears the burden of showing with particularity facts and law establishing the inference that the defendant violated a clearly established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994).

The defense of qualified immunity also implicates the pleading requirements of Fed.R.Civ.P. 8(a). Robbins, 519 F.3d at 1248. Qualified immunity insures that public officials are not subjected to "broad-ranging discovery' that can be peculiarly disruptive of effective government." Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987).

Although we apply "the same standard in evaluating dismissal in qualified immunity cases as to dismissals generally, " complaints in § 1983 cases against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically involve complex claims against multiple defendants.... Without allegations sufficient to make clear the "grounds" on which the plaintiff is entitled to relief, it would be impossible for the court to perform its function of determining, at an early stage in the litigation, whether the asserted claim is sufficient clear.

Robbins, 519 F.3d at 1249. The court will proceed to apply these standards to the claims asserted in the Second Amended Complaint.

C. Plaintiff's Eighth Amendment Claims

Title 42 U.S.C. § 1983 creates a cause of action where a "person... under color of any statute, ordinance, regulation, custom or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person... to the deprivation of any rights, privileges or immunities secured by the Constitution." Section 1983 does not create any substantive rights; rather, it creates only a remedy for violations of rights secured by federal statutory and constitutional law. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 616-18 (1979). To establish a claim under § 1983, a plaintiff must prove he was deprived of a right secured by the Constitution or laws of the United States and that the alleged deprivation was committed under color of law. AmericanMfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

The court has construed "the second amended complaint liberally as asserting a § 1983 claim against the Defendants for violation of his Eighth Amendment right to be free from prison officials' deliberate indifference to a substantial risk of harm to his health or safety, as well as a claim under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (2012)." (See "Order to Dismiss in Part and to Draw Case to a District Judge and to a Magistrate Judge" (doc. # 24)). Mr. Richardson's first and third claims appears to allege Eighth Amendment violations based upon the conditions of confinement he faced while at BVCF between October 2012 and February 12, 2013. I interpret the second claim as asserting an Eighth Amendment claim based upon Defendants' deliberate indifference to Mr. Richardson's knee injury and associated medical conditions. While these claims for relief may allege separate Eighth Amendment violations, the legal standard governing these claims is the same.

The Eighth Amendment prohibits cruel and unusual "punishments." Farmer v. Brennan, 511 U.S. 825, 832 (1994). On a motion to dismiss an Eighth Amendment claim, an inmate must allege facts demonstrating that the deprivation suffered or the medical condition at issue was objectively "serious" and that the defendant had a "sufficiently culpable state of mind" or was "deliberately indifferent" to the inmate's health or safety. Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). To survive a motion to dismiss, the Second Amended Complaint must allege facts supporting both the objective and subjective elements essential for an Eighth Amendment claim.

The Eighth Amendment requires prison officials to "provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care." DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)). The Supreme Court has acknowledged that prison conditions may be "restrictive and even harsh'" without violating the Eighth Amendment. See Rhodes v. Chapman, 143 U.S. 337, 347 (1981). The objective prong of the Eighth Amendment standard "turns not only on the severity of the alleged deprivations, but also on their duration." Bainum v. Sedgwick County Commissioners, No. 01-3207, 27 F.App'x 965, 969 (10th Cir. 2001). "In general, the severity and duration of deprivations are inversely proportional, so that minor deprivations suffered for short periods would not rise to an Eighth Amendment violation, while substantial deprivations of shelter, food, drinking water, and sanitation may meet the standard despite shorter duration." DeSpain, 264 F.3d at 973 (citations and internal quotation marks omitted). The Supreme Court also recognizes that "[s]ome conditions of confinement may establish an Eighth Amendment violation in combination when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth or exercise.'" Wilson v. Seiter, 501 U.S. at 304. In determining whether the inmate has been subjected to "sufficiently serious conditions" of confinement, the court must balance the exigencies of running a prison and the "broad and idealistic concepts of dignity, civilized standards, humanity and decency" embodied in the Eighth Amendment. Id. at 973.

The Second Amended Complaint does not allege a denial of basic necessities, such as food, clothing, shelter or sanitation. Rather, Mr. Richardson broadly asserts that his chronic knee condition and loss of medical restrictions and/or ADA accommodations effectively prevented him from participating in unspecified incentive programs and employment opportunities, as well as accessing the library, gym and various housing areas at BCVD. But see Simpson v. Sebenick, No. 12-634-C, 2013 WL 2644728, at *11 (W.D. Okl. June 11, 2013) (while an inmate has a constitutional right of access to the court, that does not equate to an "abstract, freestanding right to a law library") and Howard v. Jaramillo, No. 07-cv-01268-CMA-CBS, 2008 WL 5381469, at *8 (D. Colo. Dec. 22, 2008) (noting that inmates do not have a constitutional right to preferable housing assignments). For purposes of the pending motion, this court need not decide whether Mr. Richardson's cursory allegations, standing alone, are sufficient to demonstrate unconstitutional conditions of confinement, because the first and third claims clearly fail to satisfy the subjective prong of the Eighth Amendment standard.

The second claim challenges Defendants' alleged failure to treat or properly address his medical conditions. To satisfy the objective standard for this Eighth Amendment claim, Mr. Richardson must allege facts showing that he suffered from an objective serious medical need or condition; that is a condition "that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).[6] To the extent that Mr. Richardson's second claim is based on a delay in receiving medical care, he must show that the alleged delay resulted in substantial harm.

That "substantial harm" can be the ultimate physical injury caused by the prisoner's illness, so long as the prisoner can show that the more timely receipt of medical treatment would have minimized or prevented the harm. The "substantial harm" can also be an intermediate injury, such as the pain experienced while waiting for treatment and analgesics. Although "not every twinge of pain suffered as a result of delay in medical care is actionable, " when the pain suffered during the delay is substantial, the prisoner "sufficiently establishes the objective element of the deliberate indifference test."

Kikumura v. Osagie, 461 F.3d 1269, 1292 (10th Cir. 2006) (quoting Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000)), overruled on other grounds, Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008). For purposes of the pending motion, I will presume that Mr. Richardson's chronic knee injury satisfies the objective prong of the second claim. But as to this claim as well, the Second Amended Complaint does not set forth an actionable Eighth Amendment violation.

The subjective prong of the Eighth Amendment standard follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" Farmer, 511 U.S. at 834. A finding of deliberate indifference requires a showing that the defendant "knows of and disregards an excessive risk to inmate health or safety." Id. at 837. Under this standard, "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. Deliberate indifference requires a higher degree of fault than negligence or even gross negligence. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990). The Supreme Court explained the test for deliberate indifference:

a prison official cannot be found liable under the Eighth Amendment... 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.

Farmer, 511 U.S. at 837. See also Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997). "To be guilty of deliberate indifference, the defendant must know he is creating a substantial risk of bodily harm." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks and citation omitted).

Finally, to properly assert a claim under § 1983, Mr. Richardson must set forth sufficient facts to demonstrate that Defendants personally participated in the alleged Eighth Amendment violations. Cf. Persaud v. Doe, No. 06-6234, 213 F.App'x 740, 743 (10th Cir. 2007). See also Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (personal participation is an essential allegation in a civil rights action) (citation omitted). A defendant may not be held liable merely because of his or her supervisory position. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996). There must be an affirmative link between the alleged constitutional violation and the defendant's own participation or failure to supervise. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.1993). Cf. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1157 (10th Cir.2001) (for a § 1983 claim, an affirmative link between the defendant's conduct and any constitutional violation "must be alleged in the complaint as well as proven at trial").

From the descriptions contained in the Second Amended Complaint, it appears that each of the CDOC Defendants has "supervisory" responsibilities. "A plaintiff may therefore succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional violation, and (3) acted with the state of mind required to establish the alleged constitutional deprivation." Id. at 1199. Although the first claim broadly alludes to "policy and customs under which unconstitutional practices occurred, " the Second Amended Complaint does not identify those policies or customs or identify any particular Defendant having responsibility for those policies or customs.

When weighed against the foregoing established precedents, Mr. Richardson's constitutional claims fail to allege facts that demonstrate each of the CDOC Defendants had the requisite state of mind and participated in the alleged violations. Mr. Richardson alleges that each Defendant was "involved" in his original transfer from BVCF due to "medical restrictions and ADA accommodations, " and therefore summarily asserts that each defendant had "the power to remove Plaintiff from the hazardous environment they have placed Plaintiff in but yet refuse to do so."[7] Mr. Richardson contends that each Defendant personally participated in the alleged constitutional violations "by official omission."[8] That conclusory allegation will not suffice. Luttrell v. Corrections Corp. of America, No. 10-3137-SAC, 2010 WL 2817266, at *2 (D. Kan. July 16, 2010) (to recover for an Eighth Amendment violation, the plaintiff must "allege facts showing the personal participation of each person named as defendant by describing the acts or omissions of each individual defendant including the dates and times or each incident... and other facts showing how the acts of each defendant violated plaintiffs federal constitutional rights"). Cf. Elliot v. Staton, No. 3:11-cv-1536-ST, 2012 WL 2374986, at *12 (D. Or. April 20, 2012) (to establish individual liability for a plaintiffs civil rights claim, the personal participation inquiry "must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional violation"). Although the second claim alleges that Defendant Baroni and Dr. Fisher removed Mr. Richardson's medical restrictions without his knowledge or consent, and without any physical examination or treatment, that allegation alone, does not indicate that Defendant Baroni acted with deliberate indifference. Cf. Perkins v. Kansas Department of Correction, 165 F.3d 803, 811 (10th Cir. 1999) (holding that a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation). See also Farmer, 511 U.S. at 838 (holding that "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, " will not sustain a claim under the Eighth Amendment).

The Second Amended Complaint must "make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations" against the entire group of defendants. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (quoting Robbins. 519 F.3d at 1250) (emphasis in original). See also Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). The purpose of this pleading requirement is two-fold: "to ensure that a defendant is placed on notice of his or her alleged misconduct sufficient to prepare an appropriate defense, ' and to avoid ginning up the costly machinery associated with our civil discovery regime on the basis of a largely groundless claim.'" Kansas Penn Gaming, LLC, 656 F.3d at 1215 (quoting Pace v. Swerdlow, 519 F.3d 1067, 1076 (10th Cir. 2008) (Gorsuch, J., concurring)).

When various officials have taken different actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his rights "were violated" will not suffice. Likewise insufficient is a plaintiffs more active-voice yet undifferentiated contention that "defendants" infringed his rights. Rather, it is incumbent upon a plaintiff to "identify specific actions taken by particular defendants" in order to make out a viable § 1983... claim.

Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir. 2013) (emphasis in original and internal citations omitted).

The Second Amended Complaint does not provide each defendant with the required "fair notice."[9] For example, the third claim simply refers to the "said named Defendants, " "each named defendant, " or "the named defendants" in alleging that Mr. Richardson was kept "in a serious, physical, mental environment." While the Second Claim for Relief specifically mentions Dr. Fisher and Defendant Baroni, it does not attribute any affirmative conduct to any other Defendant. Rather, the second claim refers generally to "the deliberate disregard to Plaintiffs ADA approved accommodations by all named defendants" and unspecified actions and continuing actions by "named defendant." (See doc. # 18 at 9 of 14). Such sweeping statements will not suffice to place each Defendant "on notice of his or her alleged misconduct sufficient to prepare an appropriate defense." Id.

In conclusion, I find that the Second Amended Complaint fails to properly allege a violation of the Eighth Amendment by any of the CDOC Defendants and those claims should be dismissed.[10]

D. Physical Injury

It is well-established that in an action brought pursuant to 42 U.S.C. § 1983, a plaintiff must provide not only a constitutional violation, but also demonstrate that the constitutional deprivation caused him some actual injury. Miner v. City of Glen Falls, 999 F.2d 655, 660 (2d Cir. 1993). The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, has heightened this requirement by barring a prisoner from bringing a civil action "for mental or emotional injury suffered while in custody without a prior showing of physical injury." See 42 U.S.C. § 1997e(a) and (e).[11]

"[A]lthough claims for mental and emotional distress can be brought pursuant to § 1983, ... § 1997e(e) provides that such a suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms.'" Turner v. Schultz, 130 F.Supp.2d 1216, 1222-23 (D. Colo. 2001) (quoting Perkins v. Kansas Department of Corrections, 165 F.3d 803, 807 (10th Cir. 1999)). However, the CDOC Defendants' argument sweeps too broadly to the extent they suggest that Mr. Richardson is barred from any monetary award in the absence of physical injury. Cf. Calhoun v. Detella, 319 F.3d 936, 940-43 (7th Cir. 2003) and cases cited therein.

In the Second Amended Complaint, Mr. Richardson contends that his return to BVCF and the actions of the defendants "threaten[ed] his welfare being physical [and] mental." Plaintiff further claims that Defendants' action caused him "pain and suffering, physical injury, [and] physical limitations." Mr. Richardson alleges that following his return to BVCF in October 2012, he fell "numerous times" and faced a continued "risk of injury and... falling." The Second Amended Complaint does not describe how many times Mr. Richardson fell after his return to BVCF, how those falls occurred, and whether or to what extent he sustained any physical injuries proximately caused by those falls.

At this juncture, it is not at all clear that Mr. Richardson is seeking compensatory damages for emotional or mental injuries, or that Mr. Richardson suffered more than a de minimis physical injury as a result of conduct attributable to the CDOC Defendants. Based on the allegations presently before the court, I must conclude that Mr. Richardson has failed to present factual allegations that would permit an award of damages for emotional or mental injury. The PLRA does not preclude nominal or punitive damages. Cf. Searles v. Van Bebber, 251 F.3d 869, 881(10th Cir. 2001); Brosh v. Duke, No. 12-cv-00337-CMA-MJW, 2012 WL 5289536, at *6-7 (D. Colo. Oct. 24, 2012).

E. Plaintiff's ADA Claim

Although the Second Amended Complaint does not expressly assert a claim under the Americans with Disabilities Act, Mr. Richardson refers to his "disabilities, " insists that he was declared eligible for "ADA accommodations, " and that Defendants subsequently denied those "ADA approved accommodations" following his return to BVCF in October 2012. Out of an abundance of caution, Defendants devote slightly more than a page of their 15-page Motion to Dismiss to arguing that Mr. Richardson has not alleged facts that would demonstrate an actionable claim under the ADA. In his response brief, Mr. Richardson reiterates that his action is brought under § 1983 to "redress deprivation, under color of state law, of rights secured by the Constitution of the United States." Although Mr. Richardson continues to assert that Defendants violated the Americans with Disabilities Act, his response brief does not address directly the arguments advanced in Defendants' Motion.

As previously noted, Plaintiffs pleading must be construed liberally because he is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards that formal pleadings drafted by lawyers"); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ("[a] pro se litigant's pleadings are to be construed liberally") (citations omitted). However, a plaintiff may not defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting violations that have not been pled. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). In this case, Mr. Richardson's passing references to "ADA accommodations" leave the court wrestling with allegations and legal arguments that are illdefined at best. Compounding the problem, the Second Amended Complaint seeks injunctive relief that may be largely, if not completely, moot in light of Mr. Richardson's transfer to Fremont Correctional Facility. In the final analysis, however, I must determine whether the Second Amended Complaint alleges an ADA claim that is plausible on its face.

Title II of the Americans with Disabilities Act states, in pertinent part, that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." See 42 U.S.C. § 12132. This provision applies to prisoners. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1998). "To state a claim under Title II, the plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and (3) such exclusion, denial of benefits... was by reason of a disability." Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1193 (10th Cir. 2007). To establish the third element of a prima facie ADA claim, the plaintiff must "present some affirmative evidence that disability was a determining factor" in the decision to exclude the plaintiff from services, programs, or activities. Selenke v. Med. Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001). Although discriminatory motive need not be the sole reason for the defendant's actions, it must be a "determining factor." Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134, 1149 (10th Cir. 2011). Cf. Muhammad v. Department of Corrections, 645 F.Supp.2d 299, 314 (D. N.J. 2008) (holding that prisoner amputee stated an actionable claim under Title II of the ADA after he was transferred from a handicapped accessible cell to the upper-level bunk of a second floor cell with limited access to the handicapped-accessible shower, without any penological explanation for the transfer). See also Pierce v. County of Orange, 526 F.3d 1190, 1221 (9th Cir. 2008) ("an inmate cannot be categorically excluded from a beneficial prison program based on his or her disability alone").

The ADA is intended to "eliminate discrimination on the basis of disability and to ensure evenhanded treatment between the disabled and able-bodied." Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998). A "qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." See 42 U.S.C. § 12131. A disability within the meaning of the ADA is, inter alia, "a physical or mental impairment that substantially limits one or more of the major life activities' of an individual." Robertson, 500 F.3d at 1193-94 (quoting 42 U.S.C. § 12102(2)(A)). "Individuals attempting to prove disability status under this test may not merely rely on evidence of a medical diagnosis of an impairment." Id. "Instead, the ADA requires those claiming the Act's protection... to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience... is substantial.'" Id. at 1194 (internal quotation marks and citations omitted).

The Second Amended Complaint alleges that prior to August 2011, Mr. Richardson suffered from a "chronic knee injury" that has significantly limited his mobility. In August 2011, Mr. Richardson was placed on medical restrictions that included "no stairs and no standing more than 20 minutes, " as well as "lower tier, lower bunk, cane, knee brace and no squatting." The Second Amended Complaint also alludes to, but does not describe, various "ADA approved accommodations" that Mr. Richardson received in 2011 and 2012.[12] For purposes of the instant motion, I will presume, without deciding, that Plaintiff's chronic knee condition substantially limited his mobility and qualifies as a disability under the ADA.

Unfortunately, the Second Amended Complaint leaves unclear the nature of Mr. Richardson's presumed ADA claim. In the Second Claim for Relief, which is captioned "8th Amendment Cruel & Unusual Punishment, " Mr. Richardson alleges that Dr. Fisher and Defendant Baroni improperly removed his medical restrictions without any prior physical examination, and that Dr. Fisher thereafter "falsified" Plaintiffs medical records and only provided treatment for tendentious. Yet, "the failure to provide medical treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation."[13] Rashad v. Doughty, No. 00-6088, 4 F.App'x 558, 560 (10th Cir. 2001). As the Tenth Circuit noted in Nasious v. Colorado, No. 11-1450, 495 F.App'x 899, 902 (10th Cir. 2012), "the ADA does not provide a remedy for medical negligence or a means to challenge purely medical decisions' regarding the propriety of a course of treatment." See also Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) ("The ADA prohibits discrimination because of disability, not inadequate treatment for disability."); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (suggesting that the ADA could not be used to do "an end run" around those decisions that have refused to transform the Eighth Amendment into a medical malpractice statute); Alexander v. Tilton, No. 1:07-cv-00759-LJO-DLB PC, 2009 WL 464486, at & (E.D. Cal. Feb. 24, 2009) (noting that "other courts have found that the ADA... does not create a federal cause of action for prisoners challenging the medical treatment provided for their underlying disabilities").

To further compound the difficulty in deciphering Plaintiff's "ADA claim, " the Second Amended Complaint alleges generally that the CDOC Defendants "deliberately disregarded" his "ADA approved accommodations" but does not attribute any specific discriminatory conduct to the CDOC Defendants. Rather, Mr. Richardson seems to fault these Defendants for not immediately effecting his transfer following his return to BVCF in October 2012. Title II, however, only provides damages if a public official intentionally discriminates because of a disability. See Garcia v. S.U.N.Y Health Services Center of Brooklyn, 280 F.3d 98, 111-12 (2d Cir. 2001) (holding that a private suit for money damages under Title II may only be maintained where the plaintiff establishes that the violation was motivated by either discriminatory animus or ill will due to the disability).[14] As the court noted in Morris v. Kingston, No. 09-3326, 368 F.App'x 686, 690 (7th Cir. 2010), while a prison official's delay in accommodating an inmate's disability might be negligent, "negligence alone cannot support a Title II claim." Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'").

Even if Mr. Richardson properly pled a Title II claim, he cannot sue the CDOC Defendants in their individual capacities. The ADA does not create liability against individuals who do not otherwise qualify as employers under the statutory definition. See Butler v. City of Prairie Village, Kansas, 172 F.3d 736, 744 (10th Cir. 1999) (noting that the reasons for precluding individual liability under Title VII apply equally to ADA). Cf. Sindram v. Merriwether, 507 F.Supp.2d 7, 11-12 (D.D.C. 2007) and cases cited therein. "[T]he proper defendant in a Title II claim is the public entity itself or an official acting in his or her official capacity." Hicks v. Keller, No. 11-cv-0422-WJM-KMT, 2012 WL 1414935, at *6 (D. Colo. April 24, 2012). Any ADA claims against the CDOC Defendants in their individual capacities must be dismissed.

Finally, Mr. Richardson's ability to obtain injunctive relief for the CDOC Defendants' alleged violation of Title II may be moot in light of more recent events. Mr. Richardson has been transferred from BVCF and, therefore, is no longer under the authority of the staff of that facility. Cf. Nasious, 495 F.App'x at 903 ("[i]t is well-settled that a prisoner's transfer out of a prison moots his requests for declaratory or injunctive relief against staff at that prison"). See also Burnett v. Jones, No. 11-6093, 454 F.App'x 655, 657 (10th Cir. 2011) (holding that claims for injunctive relief are moot where a prisoner has been transferred and is no longer subject to the conditions of confinement on which his claims are based). This court has not been provided with any information to suggest that Mr. Richardson does not have reasonable access to all the facilities, programs or activities at Fremont Correctional Facility.

Mr. Richardson has filed a Complaint (doc. # 1), an Amended Complaint (doc. # 14), and a Second Amended Complaint (doc. # 18). On April 23, 2013, the court gave him permission to file a Third Amended Complaint. Mr. Richardson did not take the opportunity to file a Third Amended Complaint. At this juncture, I conclude that Mr. Richardson has not alleged facts that would support a proper claim for disability discrimination under Title II of the ADA. I recommend that the Second Amended Complaint be dismissed without prejudice to the extent it encompasses a claim under Title II of the Americans with Disabilities Act.

CONCLUSION

For the foregoing reasons, I recommend that the CDOC Defendants Motion to Dismiss (doc. #41) be granted and that the Second Amended Complaint be dismissed without prejudice as to Defendants Butler, Davis, Cotten, Baroni and Campbell, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). I further recommend that Defendant Fisher be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m).

Advisement to the Parties

Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

PHILIP A. BRIMMER, District Judge.

*1 This matter is before the Court on the Recommendation of United States Magistrate Judge Craig B. Shaffer filed on July 29, 2013 [Docket No. 45]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. See 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on July 29, 2013. No party has objected to the Recommendation.

In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991); see also Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). In this matter, the Court has reviewed the Recommendation to satisfy itself that there is "no clear error on the face of the record."FN1 Fed.R.Civ.P. 72(b), Advisory Committee Notes. Based on this review, the Court has concluded that the Recommendation is a correct application of the facts and the law. Accordingly, it is

FN1 This standard of review is something less than a "clearly erroneous or contrary to law" standard of review, Fed.R.Civ.P. 72(a), which in turn is less than a de novo review. Fed.R.Civ.P. 72(b).

ORDERED as follows:

1. The Recommendation of United States Magistrate Judge [Docket No. 45] is ACCEPTED.

2. This case is dismissed without prejudice for failure to effect service of process, failure to identify anonymous parties, and failure to prosecute.

EDWARD PETER CONYAC, Plaintiff,
v.
DR. NOONAN, D.R.D.C., General Practitioner, DEANNE ROMERO, D.R.D.C., Physician Assistant, JESSICA ZAINES, D.R.D.C., Nurse Practitioner, JANE DOE # 1, D.R.D.C., Nurse, JANE DOE # 2, D.R.D.C., Nurse, and JANE DOE # 3, D.R.D.C., Nurse, Defendants.FN1
FN1 Defendant Hudson was dismissed with prejudice from this action by a Joint Stipulated Motion of the parties. ( See Docs. # 30, # 31).

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, United States Magistrate Judge.

This civil action comes before the court regarding Mr. Conyac's failure to effect service of process, failure to identify anonymous parties, and failure to prosecute. Pursuant to the Order Referring Case dated March 22, 2012, this civil action was referred to the Magistrate Judge. ( See Doc. # 16). The court has reviewed the entire case file, the proceedings held on June 26, 2012, April 3, 2013, and May 30, 2013 (see Courtroom Minutes/ Minute Orders (Docs. # 29, # 38, and # 43)), the "Order to Plaintiff to Show Cause" (filed October 12, 2012) (Doc. # 34), Mr. Conyac's "Motion to Show Cause..." (filed November 2, 2012 (Doc. # 35) (treated as his Response to the Order to Show Cause)), and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Proceeding pro se, Mr. Conyac filed his initial "Prisoner Complaint" on October 20, 2011. (See Doc. # 1). At the court's direction, Mr. Conyac filed his "Amended Prisoner Complaint" ("AC") on February 14, 2012. (See Docs. # 8, # 11). Mr. Conyac alleges one claim against all of the Defendants for "Deliberate Indifference" to his serious medical needs based on failure to properly diagnose his medical condition. ( See AC (Doc. # 11) at 3-5 of 8). He alleges that while he was incarcerated at the Denver Reception and Diagnostic Center ("DRDC"), "[o]n October 14, 2009, after returning from breakfast I reported a medical emergency." ( See id. at 3 of 8). Mr. Conyac alleges that Defendants performed three EKG tests on him on October 14, 2009. He also alleges that he was treated by the Defendants at the medical clinic of the DRDC on October 15 and 16, 2009. ( See id. at 4-5 of 8). On October 17, 2009, Mr. Conyac was transferred to the emergency room at Denver Health, where he was diagnosed with a heart attack. ( See id. at 5 of 8). He was transferred to University Hospital, where he was treated with the insertion of a balloon pump and stents. ( See id.). He seeks "exemplary and nominal damages, " attorney fees, "pain and suffering, " filing fees, and medical expenses, among other things. ( See id. at 7 of 8).

II. Lack of Personal Jurisdiction over Defendants

*2 Mr. Conyac commenced this action in forma pauperis pursuant to 28 U.S.C. § 1915. (See November 30, 2011 "Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915" (Doc. # 6)). The Clerk of the Court initiated service of process on the Defendants. On March 29, 2012, a Waiver of Service of Summons was filed with the court. ( See Doc. # 18). The Waiver was completed by Teresa Reynolds, Legal Services Group Leader, Office of Legal Services, Colorado Department of Corrections ("CDOC"), and indicated that service was not waived as to Defendants Noonan and Romero because they were no longer employed by the Colorado Department of Corrections. ( See id.). The waiver also indicated that "[t]he DOC has no record" of Defendant Zaines "as an employee either current or former." ( See id. ).

The U.S. Marshal next attempted to serve Defendants Noonan and Romero at their forwarding addresses provided by the CDOC. The Process Receipt and Return filed on May 7, 2012 indicates that a Deputy U.S. Marshal made three unsuccessful attempts to serve Defendant Romero at her forwarding address. ( See Doc. # 23). Her last known telephone number was disconnected. ( See id.). The Process Receipt and Return filed on May 2, 2012 indicates that a Deputy U.S. Marshal attempted to serve Defendant Noonan at his forwarding address. ( See Doc. # 21). The Deputy obtained a second forwarding address in Palm Desert, California. ( See id.). The Clerk of the Court thereafter attempted to serve Defendant Noonan at his second forwarding address. ( See Doc. # 23). The Process Receipt and Return completed by a Deputy U.S. Marshal and filed with the court on October 11, 2012 indicates that Defendant Noonan "works at an unknown state prison" and that three attempts to serve him at his second forwarding address were unsuccessful. ( See Doc. # 33).

On October 12, 2012, the court issued an Order to Show Cause directing Mr. Conyac to show cause in writing why all of the Defendants should not be dismissed for failure to effect service of process, failure to identify anonymous parties, and failure to prosecute. On November 2, 2012, Mr. Conyac filed his "Motion to Show Cause and Full Discovery, " asking "the court to order that a full copy of Plaintiff's medical file be made available to the court." ( See Doc. # 35). "This would show... the names of the Jane Does # 1, # 2, # 3, ... as well as Jessica Zaines as an employee of C.D.O.C." ( See id.). The court held a Telephonic Status Conference on April 3, 2013, at which it noted that Mr. Conyac had previously reviewed his medical records and that, in any event, his medical file would not contain the current addresses of the Defendants. ( See Doc. # 38).

On May 30, 2013, the court held another Telephonic Status Conference, at the conclusion of which it afforded Mr. Conyac until July 1, 2013 to submit any additional information to enable service of process on the Defendants to be made by the U.S. Marshal. ( See Docs. # 43, # 44). The court warned Mr. Conyac that should he fail to timely respond to the Order, the court will issue a Recommendation to District Judge Brimmer that this civil action be dismissed without prejudice. ( See Doc. # 44). As of this date, Mr. Conyac has submitted no additional information. Based upon the record before the court, Defendants Noonan, Romero, Zaines, and the Jane Does cannot be served at any of the addresses that have been provided to the court.

*3 "[S]ervice of process [under Fed.R.Civ.P. 4] provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the party served." Hukill v. Oklahoma Native American Domestic Violence Coalition, 542 F.3d 794, 797 (10th Cir.2008) (internal quotation marks and citation omitted). A court cannot obtain personal jurisdiction over a party without proper service of process. See Murphy Brothers, Inc. v. Mitchetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) ("Before a... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.") (citation omitted); Oklahoma Radio Associates v. F.D.I. C., 969 F.2d 940, 943 (10th Cir.1992) ("Rule 4 service of process provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the party served") (citations omitted); Lampe v. Xouth, Inc., 952 F.2d 697, 700-01 (3d Cir.1991) ("A court obtains personal jurisdiction over the parties when the complaint and summons are properly served upon the defendant. Effective service of process is therefore a prerequisite to proceeding further in a case."). Here, the court lacks personal jurisdiction over any of the Defendants.

Fed.R.Civ.P. 4(m) provides that the court shall dismiss an action without prejudice as to any defendant who has not been served within 120 days of the filing of the action:

"[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed.R.Civ.P. 4(m). Defendants Noonan, Romero, and Zaines have been named as Defendants in this case since the filing of the initial Prisoner Complaint on October 20, 2011. As of this date, 21 months have passed since the filing of the initial Prisoner Complaint and Defendants Noonan, Romero, and Zaines have not been served in this action and have not filed a waiver of service or appeared in the case.

While an incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, the U.S. Marshal and the Clerk of the Court have performed their duties to serve Defendants Noonan, Romero, and Zaines. The court need not require the U.S. Marshal to search for or make any further attempts to serve these Defendants. Sufficient time has been afforded and sufficient efforts have been made by the Clerk of the Court and the U.S. Marshal to serve these Defendants. Defendants Noonan, Romero, and Zaines may properly be dismissed without prejudice from this civil action for failure to effect service within the time limit of Fed.R.Civ.P. 4(m) and pursuant to D.C. COLO. LR 41.1 for failure to prosecute.

*4 As to the Jane Doe Defendants, there is no provision in the Federal Rules of Civil Procedure for the naming of fictitious or anonymous parties in a lawsuit. Coe v. U.S. Dist. Court for Dist. of Colorado, 676 F.2d 411, 415 (10th Cir.1982). See also Wenzel v. Arpaio, 2009 WL 4154926, at *3 (D.Ariz.2009) ("Generally, the use of anonymous type appellations to identify defendants is not favored. Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to include the names of the parties in the action."); Watson v. Unipress, Inc., 733 F.2d 1386, 1388 (10th Cir.1984) (Under Colorado law, naming of "John Doe" defendant does not toll statute of limitations with respect to such defendant); Tolefree v. Ritz, 382 F.2d 566, 567 (9th Cir.1967) (per curiam) (affirming dismissal "as to the fictitious defendants....") (citation omitted). To the contrary, the Federal Rules provide:

"[e]very pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties...."

Fed.R.Civ.P. 10(a). Because anonymous parties are not permitted by the Federal Rules, the time period for serving the summons and complaint has expired, and Mr. Conyac has not identified the anonymous Defendants, the Jane Doe Defendants may properly be dismissed from the AC.

Mr. Conyac has failed to serve the Defendants, failed to identify anonymous Defendants, and failed to prosecute this action. Based on these instances of non-compliance, this civil action may be dismissed with or without prejudice. See AdvantEdge Business Group v. Thomas E. Mestmaker, 552 F.3d 1233, 1236 (10th Cir.2009) (internal quotation marks and citation omitted) ("A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules."); Schafer v. City of Defiance Police Dept., 529 F.3d 731, 736 (6th Cir.2008) ("Rule 41(b) of the Federal Rules of Civil Procedure confers on district courts the authority to dismiss an action for failure of a plaintiff to prosecute the claim or comply with the Rules or any order of the court."); Rogers v. Andrus Transp. Services, 502 F.3d 1147, 1151 (10th Cir.2007) ("Rule [41(b)] has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute...."); Fed.R.Civ.P. 4(m) ("[i]f a defendant is not served within 120 days after the complaint is filed, the court... must dismiss the action without prejudice against that defendant....").

Here, the court recommends dismissal without prejudice. When dismissing a case without prejudice, "a district court may, without abusing its discretion, enter such an order without attention to any particular procedures." AdvantEdge Business Group, 552 F.3d at 1236 (internal quotation marks and citation omitted). The Tenth Circuit "has recognized that a dismissal without prejudice can have the practical effect of a dismissal with prejudice if the statute of limitations has expired." Id. (citation omitted). Mr. Conyac has not addressed the possible running of a statute of limitations or identified any tolling provisions. The court notes that because Mr. Conyac brings his claim pursuant to § 1983, it is subject to a two-year statute of limitations. See Colo.Rev.Stat. § 13-80-102(g) (establishing a two-year limitation period for "all actions upon liability created by a federal statute where no period of limitation is provided in said federal statute" and for "all other actions of every kind for which no other period of limitation is provided"); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.1993) (applying § 13-80-102 to § 1983 claim). "Section 1983 claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action." Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir.1991) (internal quotation marks and citation omitted). Mr. Conyac alleges that the conduct underlying his claims occurred on October 14 through 16, 2009 and that on October 17, 2009 he was informed that he was having a heart attack and that "I should have had this fixed when I started having the heart attack." ( See Doc. # 11 at 3-5 of 12). The statute of limitations as to Mr. Conyac's claim arguably had already expired when he initiated this civil action more than two years later, on October 20, 2011. ( See initial Prisoner Complaint (Doc. # 1); "Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915" (Doc. #2)).

*5 To the extent that dismissal of the AC without prejudice may implicate the statute of limitations governing his claim, "[t]he nonexhaustive list of factors" that the court should consider when dismissing a case include: "(1) the degree of actual prejudice to the other party; (2) the amount of interference with the judicial process; (3) the litigant's culpability; (4) whether the court warned the party in advance that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions." AdvantEdge Business Group, 552 F.3d at 1236 n. 2 (internal quotation marks and citations omitted). See also Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir.2002) (same) (citing Ehrenhaus, 965 F.2d at 918); Mobley v. McCormick, 40 F.3d 337, 340-41 (10th Cir.1994) ("[W]e see no principled distinction between sanctions imposed for discovery violations and sanctions imposed [pursuant to Rule 41(b), and]... involuntary dismissals should be determined by reference to the Ehrenhaus criteria."); EBI Securities Corp., Inc. v. Hamouth, 219 F.R.D. 642, 647 (D.Colo.2004) (setting forth factors for dismissal under Rule 37) (citing Ehrenhaus, 965 F.2d at 921)). "The factors do not create a rigid test but are simply criteria for the court to consider." Gripe, 312 F.3d at 1188 (citation omitted).

First, Mr. Conyac's failure to serve the Defendants, to identify anonymous Defendants, and to prosecute this action may cause actual prejudice to Defendants' ability to defend based on delay. Such prejudice is sufficient to justify dismissal. See Ehrenhaus, 965 F.2d at 921 (recognizing that delay can constitute prejudice); Armstrong v. Swanson, No. 08-cv-00194-MSK-MEH, 2009 WL 1938793, *4 (D.Colo. July 2, 2009) (finding "significant prejudice" where defendants deprived "of a prompt opportunity to have the claims against them adjudicated").FN2 The first factor weighs in favor of dismissal.

FN2 Copies of unpublished cases cited are attached to this Recommendation.

Second, the lack of advancement in this case has interfered with the judicial process. The court has held three hearings, issued an Order to Show Cause, and extended the deadline to serve the Defendants more than 17 months beyond the 120-day deadline set forth in Rule 4(m). Mr. Conyac has not complied with the court's Order to provide information to enable service by the U.S. Marshal on the Defendants. ( See Doc. # 43, # 44). "Progress toward the resolution of [the] case has been brought to a standstill" by Mr. Conyac's failure to serve the Defendants, failure to identify anonymous Defendants, and failure to prosecute this action. Gomez v. Dillon Companies, No. 09-cv-00676-REB-KLM, 2010 WL 1644610, at *3 (D.Colo. Apr.22, 2010). See also Armstrong, 2009 WL 1938793, at *4 (finding prejudice to the judicial system where plaintiff's neglect forced the Magistrate Judge to adjudicate a motion to compel, issue an Order to Show Cause, and entertain several motions to extend deadlines as a result of plaintiff's failure to participate in discovery). The second factor weighs in favor of dismissal.

*6 Third, the record is clear that no one other than Mr. Conyac is responsible for failing to serve the Defendants, identify anonymous Defendants, and prosecute this action. While the court acknowledges Mr. Conyac's argument that he has "no means" to effectuate service, neither the Clerk of the Court, the U.S. Marshal, nor the court can be held responsible for the failure to effect service. See Armstrong, 2009 WL 1938793 at *4 (finding plaintiff culpable when nothing in the record indicated external forces were to blame for plaintiff's failure to prosecute). Sufficient time has been afforded and sufficient efforts have been made by the Clerk of the Court and the U.S. Marshal to serve these Defendants. Mr. Conyac was repeatedly notified of his obligations in this case. ( See Docs. # 29, # 34, # 38, # 43, # 44). The third factor also weighs in favor of dismissal.

Fourth, the court has warned Mr. Conyac several times that dismissal is a possible sanction for noncompliance with local or federal procedural rules or court orders. ( See Docs. # 34, # 43, # 44). Further, "[t]he Federal Rules of Civil Procedure, as well as local rules of court, give ample notice to litigants of how to properly conduct themselves." Hal Commodity Cycles Management Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir.1987). See also Gross v. General Motors LLC, No. 08-3236, 441 F.App'x 562, 565 (10th Cir. Oct.6, 2011) (constructive notice sufficient to satisfy the notice element of the Ehrenhaus factors). The fourth factor weighs in favor of dismissal.

Finally, the record shows that there is no lesser sanction that is appropriate under the circumstances. The court's previous orders have not resulted in compliance. It would be fruitless to impose any lesser sanction, as this civil action cannot proceed without identification of and service of process on the Defendants. The fifth factor also weighs in favor of dismissal of the Amended Complaint.

Accordingly, IT IS RECOMMENDED that this civil action be dismissed without prejudice for failure to effect service of process, failure to identify anonymous parties, and failure to prosecute.

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).

Mikeal Glenn Stine, Florence, CO, pro se.

J. Benedict Garcia, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER AFFIRMING AND ADOPTING UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION

WILEY Y. DANIEL, District Judge.

I. Introduction

*1 This matter is before the Court on the Defendant's Motion to Dismiss which was filed on October 9, 2007 (docket # 21). The matter was referred to Magistrate Judge Mix for a recommendation by Order of Reference dated October 10, 2007. Magistrate Judge Mix issued a Recommendation on August 8, 2008, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b), D.C.COLO.LCivR. 72.1.

II. Analysis

Magistrate Judge Mix recommends that Defendant's Motion to Dismiss be granted. On August 15, 2008, Plaintiff filed a timely Objection, which necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1).

I now turn to the merits of the Recommendation. Magistrate Judge Mix found that Plaintiff's claims pursuant to Bivens against Defendant Ron Wiley in his official capacity are barred by sovereign immunity and recommended that these claims be dismissed for lack of subject matter jurisdiction. Recommendation at 7.

As to the Plaintiff's Claims One and Two, Magistrate Judge Mix found that although asserted as two separate claims they allege the same disparate and discriminatory treatment by Defendant and should be analyzed as one equal protection claim. Id. She also found that Plaintiff has not alleged that Defendant acted based upon a discriminatory intent or motive. Further, she found that Plaintiff does not allege that he experienced different conditions than other similarly situated inmates in the "C-Range" SHU. Nor has he alleged that his a member of a constitutionally protected class or that he has been denied a fundamental right. Id. at 8. Therefore, Defendant's action of prohibiting radios need only bear a rational relation to a legitimate state purpose. Id. (citing Vacco v. Quill, 521 U.S. 793, 799 (1997)). Magistrate Judge Mix found that Plaintiff's Complaint fails to allege facts sufficient to overcome the presumption of reasonableness applied to prison policies and Plaintiff's Claims One and Two should be dismissed. Id. at 10. I agree with Magistrate Judge Mix that Plaintiff's Claim One and Two should be dismissed.

As to the First Amendment claim, Magistrate Judge Mix found that Plaintiff merely makes a conclusory statement that his First Amendment rights were violated, that he does not state that his beliefs are religious in nature, that he has not alleged any facts showing the inability to watch religious programing was necessary to the practice of his religion, and that he has not clearly described the nature of the religious practice or ritual he was prevented from conducting or its relevance to his religion. Id. at 11. Therefore, Magistrate Judge Mix found, in the absence of such allegations, Plaintiff cannot show a violation of his First Amendment Free Exercise rights and Plaintiff's Claim Three must be dismissed. Id. I agree with Magistrate Judge Mix that Plaintiff's Third Claim for relief should be dismissed.

*2 Plaintiff objects to the Recommendation asserting that it is not his fault that the Court did not receive his response to the Motion to Dismiss and that because he is a pro se Plaintiff Magistrate Judge Mix should allow him to amend the Complaint. Plaintiff cites no case law and fails to provide any specific arguments as to why he believes Magistrate Judge Mix's recommendation is misplaced. While I acknowledge that Plaintiff is unhappy with Magistrate Judge Mix's recommendation, such complaints do not constitute a valid legal objection.

Having reviewed Magistrate Judge Mix's Recommendation and Plaintiff's Objection, I find that the Recommendation is well-reasoned and thorough. Accordingly, for the reasons stated above, it is

ORDERED that the Recommendation of United States Magistrate Judge (filed August 8, 2008) is AFFIRMED AND ADOPTED. In accordance therewith, it is

FURTHER ORDERED that Defendant's Motion to Dismiss, filed October 9, 2008 (docket # 21) is GRANTED. It is

FURTHER ORDERED that this case is DISMISSED.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KATHLEEN M. TAFOYA, United States Magistrate Judge.

This matter is before the court on "Defendant's Motion to Dismiss" (Doc. No. 21). Jurisdiction is premised upon 28 U.S.C. § 1331 (2007) and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

FACTUAL BACKGROUND

1. Facts

The following facts are taken from Plaintiff's Prisoner Complaint and the parties' submissions with respect to this Recommendation. Plaintiff is an inmate at United States Penitentiary in Florence, Colorado ("ADX Florence"). (Amended Prisoner Compl. at 2 [hereinafter "Compl."] [filed July 9, 2007].) Plaintiff states he was housed in "administrative housing" from October 2, 2006, through February 23, 2007, and, at the time of the filing of the Complaint, he was "pending" administrative detention ("AD") in Special Housing Unit ("SHU"). (Id. at 3.)

In Claim One, Plaintiff asserts Defendant violated mandates of 28 C.F.R. § 541.22, thereby violating his liberty interest by not allowing radio or television. (Id. at 3-4.) In Claim Two, Plaintiff asserts Defendant has discriminated against him by not allowing him a radio with headphones, thereby violating his equal protection rights. (Id. at 5.) In Claim Three, Plaintiff asserts he is being denied free exercise of religion because he is not allowed to listen to or watch religious services through closed circuit television. ( Id. at 6.) He claims without television and radio, he is denied the ability to practice any type of religion. (Id.)

Plaintiff has named Ron Wiley, the Warden of ADX Florence, as a defendant in both his individual and official capacities. ( Id. at 2.) Plaintiff seeks equitable relief and money damages. ( Id. at 8.)

Defendant has filed a motion to dismiss, asserting that (1) this court lacks jurisdiction over Plaintiff's official capacity Bivens claims; (2) there was no equal protection violation; (3) there was no religious violation; (4) 18 U.S.C. § 3626 prohibits the court from ordering the Bureau of Prisons to provide all inmates with radios; and (5) Defendant is entitled to qualified immunity. (Defendant's Mot. to Dismiss [hereinafter "Mot."] [filed October 9, 2007].)

2. Procedural History

*3 Plaintiff filed a Petition for Writ of Mandamus ("Writ") on June 14, 2007. (Doc. No. 3.) On June 18, 2007, Magistrate Judge Boyd N. Boland sent an order stating the writ would be construed as complaint pursuant to Bivens. (Doc. No. 4.) In his order, Magistrate Judge Boland directed Plaintiff to file an amended complaint within thirty days. (Id.) Plaintiff filed his Amended Prisoner Complaint on July 9, 2007. ("Compl.") On October 9, 2007, Defendant filed his motion to dismis (Mot.) No response or reply have been filed.FN1 This motion is ripe for review and recommendation.

FN1 Plaintiff states in a "Motion for Status Conference" filed on April 11, 2008, that he filed a response to the motion to dismiss "on or about November 28, 2007." (Doc. No. 45, Mot. for Status Conference at 1.) The court has reviewed the entire docket in this case, as well as the dockets in all other cases filed by Plaintiff in this District and pending in late-November/early-December 2007, including 07-cv-00121-WYD-KLM; 07-cv-00799-WYD-KLM; 07-cv-01839-WYD-KLM; 07-cv-02203-WYD-KLM. The court has been unable to locate any filing resembling a response to the motion to dismiss. In addition, in his response to the Motion for Status Conference, Defendant states, "Plaintiff never responded to the motion to dismiss." (Doc. No. 48, Resp. to Mot. for Status Conference at 3.) Therefore, this court must conclude that Defendant was never served with a response, and Plaintiff never filed a response.

STANDARD OF REVIEW

The court notes at the outset that because Plaintiff appears pro se, the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

1. Lack of Subject Matter Jurisdiction

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his claims.

2. Failure to State a Claim Upon Which Relief Can Be Granted

*4 Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) (2007). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted).

Thus, all well-pled factual allegations in a complaint are accepted as true and construed in the light most favorable to the plaintiff. Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir.2007). Further, the court is to make all reasonable inferences in the plaintiff's favor. Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (10th Cir.2002). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007), the Supreme Court articulated a new "plausibility" standard, under which a complaint must include "enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974.

The issue in reviewing the sufficiency of a plaintiff's complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ( overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Although a plaintiff does not need to state each element of his claim precisely, he must plead minimal factual allegations on those material elements that must be proved. See Fed.R.Civ.P. 8(a); Hall, 935 F.2d at 1110.

ANALYSIS

1. Bivens Claims and Sovereign Immunity

In Bivens, 403 U.S. at 388, the Supreme Court recognized "an implied private right of action for damages against federal officers alleged to have violated a citizen's constitutional rights." Correctional Services Corporation v. Malesko, 534 U.S. 61, 66 (2001). "To establish a Bivens cause of action, a party must have some evidence to support finding that [a] federal agent acting under color of such authority violated some cognizable constitutional right of plaintiff." Hron v. Jenkins, 15 F.Supp.2d 1082, 1085 (D.Kan.1998) (citing Bivens, 403 U.S. at 388).

"If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity." Malesko, 534 U.S. at 72. "The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP." Malesko, 534 U.S. at 72. See also Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir.2005) ("a Bivens claim lies against the federal official in his individual capacity-not... against officials in their official capacity"); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) (doctrine of sovereign immunity precludes a Bivens action against the United States or any agency thereof); Weaver v. United States, 98 F.3d 518, 520 (10th Cir.1996) (claim for damages against a federal defendant in his official capacity is treated as a claim against the United States).

*5 Plaintiff's claims pursuant to Bivens against Defendant Ron Wiley in his official capacity are barred by sovereign immunity and are thus properly dismissed with prejudice for lack of subject matter jurisdiction.

2. Equal Protection

Plaintiff's Claims One and Two, although asserted as two separate claims, allege the same disparate and discriminatory treatment by Defendant in not allowing Plaintiff a radio or television in the SHU. Therefore, Claims One and Two will be analyzed as one claim for violation of Plaintiff's equal protection rights. "[T]he Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups." Washington v. Davis, 426 U.S. 229, 239 (1976). See also United States v. McHorse, 179 F.3d 889, 897 n. 1 (10th Cir.1999) ("While the Fifth Amendment contains no equal protection clause, the equal protection standards of the Fourteenth Amendment are incorporated into the Fifth Amendment's promise of due process") (citation omitted). "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). The challenged disparate treatment must be the result of purposeful discrimination. Harris v. McRae, 448 U.S. 297, 323 n. 26 (1980).

To properly allege an equal protection claim, Plaintiff must plead sufficient facts to "demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002). Although unclear, it appears Plaintiff is alleging that some SHU inmates are treated differently with regard to possession of radios than "C-Range" SHU inmates and inmates in the General Population Unit. (Compl. at 4-5.) Plaintiff also states the C-Range inmates who are allowed to have access to radios and television are pending new murder and assault charges, whereas he is not. ( Id. )

Plaintiff has not alleged that Defendant acted based upon a discriminatory intent or motive. See Watson v. City of Kansas City, Kansas, 857 F.2d 690, 694 (10th Cir.1996) ("A plaintiff in an equal protection action has the burden of demonstrating discriminatory intent.") (citations omitted); Villanueva v. Carere, 85 F.3d, 481, 485 (10th Cir.1996) (Although "[t]he discriminatory purpose need not be the only purpose, ... it must be a motivating factor in the decision.").

Furthermore, even if Plaintiff properly alleged disparate treatment based upon intentional discrimination, the Complaint must also set forth facts demonstrating the disparate treatment lacks justification under the requisite degree of scrutiny. Veney, 293 F.3d at 731. Plaintiff does not allege that he experienced different conditions than other similarly situated inmates in the "C-Range" SHU. In fact, he alleges all inmates in the C-Range are denied access to radio and television. Plaintiff has not alleged that he is a member of a constitutionally protected class or that he has been denied a fundamental right, so the Defendant's action in prohibiting radios for certain SHU inmates need only bear a rational relation to a legitimate state purpose. See Vacco v. Quill, 521 U.S. 793, 799 (1997) (the Equal Protection Clause permits classifications and distinctions which neither burden fundamental rights nor target a suspect class, provided that such classification or distinction bears a rational relation to some legitimate end).

*6 When equal protection challenges arise in a prison context..., courts must adjust the level of scrutiny to ensure that prison officials are afforded the necessary discretion to operate their facilities in a safe and secure manner. In a prison context, therefore, we must determine whether the disparate treatment is "reasonably related to [any] legitimate penological interests."... Accordingly, to state a claim upon which relief may be granted, [Plaintiff] must allege facts sufficient to overcome the presumption of reasonableness applied to prison policies.

Veney, 293 F.3d at 732 (citations omitted). See also Heller v. Doe ex rel. Doe, 509 U.S. 312, 319-20 (1993) ("a classification neither involving fundamental rights nor proceeding along suspect lines... cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose") (citations omitted); Jones v. North Carolina Prisoners' Union, Inc., 433 U.S. 119, 134 (1977) (holding that prison administrators "need only demonstrate a rational basis for their distinctions" when classifying inmates); Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir.1994) (to "withstand equal protection review, " the challenged classification "must bear only a rational relationship to a legitimate" penological concern).

A prison control unit such as the SHU is recognized as "an internal disciplinary mechanism." See United States v. Johnson, 223 F.3d 665, 673 (7th Cir.2000). Because the classification of prisoners based upon their situs of incarceration does not employ a suspect class or burden a fundamental right, it "is accorded a strong presumption of validity." Heller, 509 U.S. at 319. Here, Plaintiff states in response to his grievance regarding this issue, he was told that radios that meet security requirements are being sought. (Compl. at 4.) Security requirements are necessary to afford prison officials the "necessary discretion to operate their facilities in a safe and secure manner." Veney at 732. Plaintiff's Complaint fails to allege facts sufficient to overcome the presumption of reasonableness applied to prison policies. Id. Therefore, Plaintiff has failed to state a claim upon which relief can be granted, and Plaintiff's Claims One and Two are properly dismissed. Id.

2. Free Exercise of Religion

It is long established that inmates retain their First Amendment rights while incarcerated. Pell v. Procunier, 417 U.S. 817, 822 (1974) (addressing freedom of speech claims); Cruz v. Beto, 405 U.S. 319 (1972) (holding that inmates must be afforded a reasonable opportunity to practice their religion). An inmate's exercise of constitutional rights is necessarily limited, however, "both from the fact of incarceration and from valid penological objectives-including deterrence of crime, rehabilitation of prisoners, and institutional security." Pell, 417 U.S. at 822-23; see also, O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Accordingly, prison regulations which impinge on an inmate's constitutional rights are valid if they are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987).

*7 The first questions in any free exercise claim are whether the plaintiff's beliefs are religious in nature, and whether those religious beliefs are sincerely held. Snyder v. Murray, 124 F.3d 1349, 1352 (10th Cir.1997) (citing United States v. Seeger, 380 U.S. 163, 185 (1965)). "If either of these requirements is not met, a court need not reach the question of whether a legitimate penological interest outweighs the exercise of the First Amendment right because there is simply no free exercise' to protect." Kay v. Friel, No. 2:06-CV-23TS, 2007 WL 295556, at *2 (D.Utah Jan. 26, 2007) (citing Carpenter v. Wilkinson, 946 F.Supp. 522, 525 (N.D.Ohio 1996). Plaintiff's only allegation regarding denial of free exercise of religion is that "[a]t USP-Florence ADX all religions and services are done over institutional closed circuit T.V. and not by allowing A/D inmates in SHU to have T.V./radio" denies him free exercise of religion in accordance with the First Amendment. (Compl. at 6.) Plaintiff further alleges that without T.V. and radio, he is denied the ability to practice any type of religion as all services at ADX are conducted by closed circuit T.V. ( Id. ) Plaintiff has failed to state anything other than a conclusory statement that his First Amendment rights have been violated. ( Id. ) Plaintiff fails to allege any facts showing why he needs to watch religious programming to practice his religion, or how the inability to watch religious programming prevents him from practicing any type of religion. Therefore, Plaintiff has failed to state any facts which may lead the court to conclude that what beliefs he might have, whether those beliefs are religious in nature, and whether those beliefs are sincerely held. Snyder, 124 F.3d at 1352. Accordingly, Plaintiff's Claim Three is properly dismissed.

WHEREFORE, for the foregoing reasons, the court respectfully

RECOMMENDS that "Defendant's Motion to Dismiss" (Doc. No. 21) be GRANTED.

ADVISEMENT TO THE PARTIES

Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Property, 73 F.3d at 1059-60 (a party's objections to the Magistrate Judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).

John William Madden, III, the Madden Law Firm, Wayne B. Schroeder, Jamie N. Cotter, Carrie Sue Bernstein, Grimshaw & Harring, P.C., Denver, CO, for Plaintiffs.

Thomas W. McNish, Ronald Alan Carl, Littleton, CO, for Defendant.

ORDER GRANTING MOTION TO DISMISS

PHILIP A. BRIMMER, District Judge.

*1 This matter is before the Court on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed on February 27, 2009 by defendant Board of County Commissioners of the County of Arapahoe ("BOCC") [Docket No. 9]. The BOCC seeks dismissal of plaintiffs' sole claim for relief-a claim under 42 U.S.C. § 1983 for deprivation of substantive due process in violation of the Fourteenth Amendment of the United States Constitution. Plaintiffs Jordan-Arapahoe, LLP ("Jordan-Arapahoe") and Jacob Mazin Company, Inc. ("Jacob Mazin") responded to the motion to dismiss on March 16, 2009 [Docket No. 18]. Defendant filed a reply brief on March 31, 2009 [Docket No. 22]. The motion is thus ripe for disposition. For the following reasons, the Court grants the motion.

I. FACTUAL BACKGROUND

Taking the allegations in the ComplaintFN1 as true, the relevant facts are as follows. Plaintiff Jordan-Arapahoe is the owner of a tract of land located in Arapahoe County, Colorado, which, as of January 1998, comprised approximately 185 acres. In January 1998, the BOCC approved a "preliminary development plan" ("1998 PDP") for a development known as the Centennial East Corporate Center. Pursuant to the 1998 PDP, the BOCC rezoned Jordan-Arapahoe's property from Agricultural and Open Space to Mixed Used-Planned Unit Development ("MU-PUD"). Under the 1998 PDP, the BOCC designated 87 acres of Jordan-Arapahoe's property as "Development Area A" and noted sixteen allowable uses for that development area, including "Automotive Sales and Repair." The BOCC amended the 1998 PDP in September 1999. The amended PDP retained "automotive sales and repair" as one of the allowable uses on the same 87 acre portion of Jordan-Arapahoe's property. The original and amended PDPs applicable to Jordan-Arapahoe's land both required that development in Development Area A observe a thirty-foot setback from public rights of way. The setback requirements and allowable uses specified in the MU-PUD zoning remained unchanged from 1998 to the present.

FN1 The Court derives relevant factual allegations primarily from the Complaint filed by Jordan-Arapahoe, LLP in Case No. 08-cv-02790, but also refers to the Complaint filed by Jacob Mazin in Case No. 08-cv-02794, which the Court consolidated with the instant case on February 5, 2009 [Docket No. 7], since the two pleadings are substantially similar.

In September 2002, Jacob Mazin purchased 2.74 acres located in Development Area A for $1, 019, 034 from Jordan-Arapahoe. In April 2006, Jordan-Arapahoe and Jacob Mazin concurrently contracted to sell property in Development Area A to CarMax. Jordan-Arapahoe was to sell 15.45 acres, while Jacob Mazin would sell its entire 2.74 acres, in exchange for a total sum exceeding $6.9 million. CarMax planned to assemble the two parcels in order to construct an automobile dealership. Accordingly, its contracts with plaintiffs were contingent upon confirmation that CarMax's intended use of the property was a use permitted by right under the pertinent Arapahoe County zoning regulations. CarMax presented its proposal for a dealership to Arapahoe County planning staff in March 2006.

In May 2006, the City Manager of the City of Centennial, Colorado wrote to Arapahoe County's Planning Division Manager requesting that Arapahoe County temporarily suspend all applications for development approval of automobile-salesrelated uses in Arapahoe County near the property at issue in this litigation. In turn, Arapahoe County's Planning Division Manager asked the BOCC in late May 2006 to impose a temporary suspension of all land use applications, including automobile sales, within an area including Development Area A. On May 23, 2006, the BOCC imposed a four-week moratorium on all development proposals within Development Area A. The City Manager for Centennial, among others, appeared before the BOCC on July 11, 2006 to request an extension to the moratorium. Plaintiffs and their representatives also attended this July 11, 2006 meeting and "advised the BOCC there had been long discussions with prior members of the BOCC to secure approval of the land uses" for the property held by Jordan-Arapahoe and Jacob Mazin. Compl. ¶ 26. CarMax representatives also relayed CarMax's interest in the property, and plaintiffs informed the BOCC that their contracts with CarMax would be jeopardized by continuation of the moratorium. However, the BOCC extended the moratorium until January 2, 2007.

*2 Over the remainder of 2006, the BOCC and the City of Centennial jointly developed proposals to alter the zoning and development standards applicable to an area that included plaintiffs' property. In November and December 2006, the BOCC and the City of Centennial proposed draft regulations addressing these changes. Among the modifications for development in this area were certain restrictions on properties then zoned for automobile and vehicle sales uses, including a 1500 foot setback requirement from Arapahoe Road. The Arapahoe County Planning Commission gave a unanimous negative recommendation to the BOCC on the draft regulations. Plaintiffs also opposed the draft regulations. The BOCC nonetheless adopted the regulations, effectively adding an "Overlay District" to existing zoning regulations. The Overlay District supersedes portions of the MU-PUD, such that a 1500 foot setback is required for all rights of way surrounding plaintiffs' property.

On December 23, 2008, plaintiffs filed this action to redress an alleged deprivation of their substantive due process rights under the Due Process Clause of the Fourteenth Amendment.

II. ANALYSIS

A. Standard of Review

Dismissal of a claim under Rule 12(b)(6) is appropriate where the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). For a complaint to state a claim it must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. (8)(a)(2). Rule 8(a)'s "short and plain statement" mandate requires that a plaintiff allege enough factual matter that, taken as true, makes his "claim to relief... plausible on its face." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003). In doing so, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007). However, the Court need not accept conclusory allegations. Moffet v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir.2002).

Generally, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Erikson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555) (alterations omitted). However, "where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (internal quotation marks and alterations omitted). Even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson, 534 F.3d at 1286 (alterations omitted). The "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson, 534 F.3d at 1286.

B. Substantive Due Process Claim

*3 To survive the BOCC's motion to dismiss, plaintiff's Complaint must sufficiently allege facts giving rise to the inference that the elements of a substantive due process claim are present. Specifically, plaintiffs must allege facts plausibly suggesting that (1) the BOCC deprived them of a "protectible property interest" and (2) such deprivation was arbitrary. See Hyde Park Co. v. Sante Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000). The BOCC argues that plaintiffs have failed to adequately allege facts supporting either of these elements. Because I agree that plaintiffs' allegations concerning the first element-whether plaintiffs were deprived of a protectible property interest-are deficient, an inquiry into plaintiffs' allegations of arbitrary government action is unnecessary.

"[T]o prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectible property interest." Hyde Park, 226 F.3d at 1210. A "protectible property interest" is a term describing the type of "property" referenced in the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1; see Hyde Park, 226 F.3d at 1210. The Supreme Court has defined such property to include a "legitimate claim of entitlement" to a particular benefit. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). However, "[a]n abstract need for, or unilateral expectation of, a benefit does not constitute property.'" Hyde Park, 226 F.3d at 1210 (quoting Roth, 408 U.S. at 577). Property interests do not arise from the Constitution. Roth, 408 U.S. at 577. "Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id.

Tenth Circuit precedent further elucidates the issue of what constitutes a property interest in the municipal land use context. In this arena, "the entitlement analysis presents a question of law and focuses on whether there is discretion in the defendants to deny a zoning or other application filed by the plaintiffs.'" Hyde Park, 226 F.3d at 1210 (quoting Norton v. Vill. of Corrales, 103 F.3d 928, 931-32 (10th Cir.1996)). "A property interest exists if discretion is limited by the procedures in question, that is, whether the procedures, if followed, require a particular outcome." Nichols v. Board of County Comm'rs of the County of La Plata, 506 F.3d 962, 970 (10th Cir.2007) (quoting Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1217 (10th Cir.2003)). "On the other hand, where the governing body retains discretion and the outcome of the proceeding is not determined by the particular procedure at issue, no property interest is implicated." Id. (internal quotation marks omitted). Under this standard, plaintiffs must show that the BOCC had limited discretion to disapprove the use of plaintiffs' property for automobile and vehicle sales purposes and that, had the BOCC followed its standard procedures, it would have issued plaintiffs "final development plans." If, on the other hand, the BOCC had the discretion to deny plaintiffs' final development plans then plaintiffs have no "protectible property interests."

*4 To identify the nature of plaintiffs' interest in the zoning of the MU-PUD, I turn first to the statutes and regulations bearing on zoning use classifications applicable to plaintiffs' property. See Nichols, 506 F.3d at 970 ("constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules and understandings developed by state officials"). In Colo.Rev.Stat. § 24-68-103(1), the Colorado General Assembly defined when a "vested property right" arises in regard to site specific development plans. "A vested property right shall be deemed established with respect to any property upon the approval, or conditional approval, of a site specific development plan, following notice and public hearing, by the local government in which the property is situated." Colo.Rev.Stat. § 24-68-103(1)(b). It is the obligation of "each local government" to "specifically identify, by ordinance or resolution, the type or types of site specific development plan approvals within the local government's jurisdiction that will cause property rights to vest." Id. § 24-68-103(1)(a). The purpose of the statute, known as the Vested Property Rights Act, is, among other things, "to ensure reasonable certainty, stability, and fairness in the land use planning process...." Id. XX-XX-XXX(1).

In Arapahoe County's case, the relevant ordinances defining the types ofapprovals ofa "site specific development plan" that cause property rights in zoning classifications to vest are set forth in the Arapahoe County Land Development Code (the "Code"), portions of which the BOCC attached to its motion. See Def.'s Mot. to Dismiss [Docket No. 9], Ex. B. The Court finds it appropriate, pursuant to Fed.R.Evid. 201, to take judicial notice of the ordinances contained therein. See Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1503-04 (10th Cir.1997) ("Federal Rule of Evidence 201 authorizes a federal court to take judicial notice of adjudicative facts at any stage of the proceedings.... This includes taking notice of provisions in municipal ordinances." (citations omitted)). Subsection 1-4902.04 of the Code states that "owners of land wishing to develop their land for uses specified in... MU... districts shall follow the P.U.D. procedure outlined in this section." Relevant to the present inquiry, subsection 1-4901.09 outlines the following general procedure:

In a standard P.U.D., the development standards are established after the completion of two steps: the Preliminary and Final Development Plans. The final document must achieve the County's nine state goals for P.U.D. zoning, and must comply with all other applicable restrictions of the Regulations. The preliminary development plan ("PDP") establishes general land uses and siting restrictions, including proposed site development criteria.

Subsection 1-4903.01 provides that a preliminary development plan is "the first step in establishing land uses and siting restrictions for a parcel of land" and states that the "uses, minimums and maximums provided in the PDP will be reviewed at the Final Development Plan stage to further determine the appropriateness for the particular site and neighborhood." Under this subsection, a final development plan "must be submitted and approved prior to the issuance of building permits for improvements to any site." Code § 1-4903.01. The Code specifically addresses what constitutes a "vested property right" in the context of planned unit development zoning. Citing the provisions of Article 68 of Title 24 of the Colorado Revised Statutes, subsection 1-4912.01 states that a "vested property right" may arise from either "approval of a site specific development plan' or by approval of a developmenteement' relating to the proposed development."FN2 A final development plan for property that has received final plat approval by the BOCC qualifies as a "site specific development plan, " which, if approved, gives rise to a vested property right. Id.

FN2 Subsection 1-4912.04 of the Code provides that "[t]he process for establishing a vested property right' relating [to] a development agreement shall involve negotiation of an agreement between the County and the developer." Plaintiffs did not allege that either of them, or CarMax, reached an agreement through negotiation with Arapahoe County that constitutes such a "development agreement." Nor have they raised such an argument in their response to the BOCC's motion to dismiss. The Court therefore considers the vesting of any property rights in plaintiffs only with respect to approval by the BOCC of a site specific development plan.

*5 In addition to the foregoing statutory and regulatory structure, Colorado law defines whether plaintiffs have identified a valid property interest. See Colo.Rev.Stat. § 24-68-106(3) (stating that nothing in the Vested Property Rights Act "shall preclude judicial determination, based on common law principles, that a vested property right exists in a particular case"). The general rule under Colorado law is that "uses permitted by particular zoning classifications are not vested rights, and subsequent zoning regulations are binding upon owners." Board of County Comm'rs of Adams County v. City and County of Denver, 40 P.3d 25, 33 (Colo.App.2001) (citing Town of Lyons v. Bashor, 867 P.2d 159, 160 (Colo.App.1993)); Cline v. Boulder, 168 Colo. 112, 450 P.2d 335, 338 (Colo.1969) (citing favorably the "majority rule" that a property owner "must take some steps in reliance on [their building] permit before his rights vest thereunder" and before the owner is "protected against revocation... by subsequent enactment or amendment of zoning laws prohibiting the building" (quoting 8 McQuillin Mun. Corp. § 25.156 (3d ed.1965)). Of particular note, in City of Aspen v. Marshall, 912 P.2d 56, 60-61 (Colo.1996), the Colorado Supreme Court stated that, "generally speaking, no preliminary proceedings to the obtaining of a permit give rise to any vested right to pursue a use in a zoned district. Thus, no vested right to a particular use in a zoned district is acquired by approval of a plan for it." (quoting 8 McQuillin Mun. Corp. § 25.155, at 691 (3d ed.1991)). In Eason v. Board of County Comm'rs of County of Boulder, 70 P.3d 600, 605 (Colo.App.2003), the Colorado Court of Appeals addressed the issue of whether "a landowner has a protected property interest in a prior zoning classification." The Eason court concluded that "Colorado law recognizes a protected property interest in a zoning classification when a specifically permitted use becomes securely vested by the landowner's substantial actions taken in reliance, to his or her detriment, on representations and affirmative actions by the government." Id. at 605-06.

Under the foregoing statutes, ordinances, and case law, plaintiffs have not adequately alleged a "protectible property interest" within the meaning of the Fourteenth Amendment. Plaintiffs cite their allegations that "[u]nder Colorado law, the MU-PUD zoning and the automotive sales and repair uses permitted by right on the [plaintiffs'] Property are securely vested common law property rights, " Compl. ¶ 51, and that "[a]utomobile sales and repair uses were permitted by right when [plaintiffs] negotiated to sell [their property] to CarMax for automobile sales and repair uses." Compl. ¶ 41. The key component of these allegations supporting a due process claim-that certain zoned uses were "permitted by right"-is a legal conclusion. Under Ashcroft v. Iqbal, 129 S.Ct. at 1950, these allegations "are not entitled to the assumption of truth." It is the very conclusion posited in these allegations that the BOCC tests with its motion to dismiss. "While legal conclusions can provide the complaint's framework, they must be supported by factual allegations." Id. at 1940.

*6 The factual allegations contained in plaintiffs' pleadings show that, in fact, they had no protectible property interest in the MU-PUD zoning of their property and the allowable uses identified in that zoning. Plaintiffs allege that in January 1998, "the BOCC approved a Preliminary Development Plan for the Centennial East Corporate Center... and rezoned [Jordan-Arapahoe's] 185.395 acres of land lying south of Arapahoe Road between Potomac Street and Jordan Road from Agricultural and Open Space to Mixed Use-Planned Unit Development." Compl. ¶ 6. They further allege that this rezoning recognized "Automotive Sales and Repair" among the "allowable uses" within Development Area A-a subset of their property. Id. ¶ 7. These factual allegations are dispositive on the issue of whether plaintiffs have a protectible property interest under the Due Process Clause of the Fourteenth Amendment. They make clear that plaintiffs claim a vested property right in a preliminary zoning, not a final approval of a site specific use. This cannot constitute a vested property interest under the authorities discussed above. Rather, plaintiffs' pleadings show that they were at the first step of the process mandated under the Arapahoe County Code and had yet to obtain approval of a final development plan.

Because plaintiffs have alleged only preliminary approval of certain uses of their property by the BOCC, they have failed to plausibly allege a property interest protected under the Fourteenth Amendment. It is clear from the Arapahoe County ordinances governing development of plaintiffs' property that, like the ordinances in Hyde Park, 226 F.3d at 1211, Arapahoe County has a "two-tiered" approval process requiring both preliminary and final approval of a particular development. Based on the Court's review, the governing ordinances provide only two statements specifically addressing the standard by which the BOCC evaluates a final development plan. First, a final development plan "must meet the PDP-minimum development standards and also be an application which is desirable overall when weighed against the P.U.D. standards." Code § 1-4901.09. Second, at a hearing on a final development plan, the BOCC will take action either approving, with or without conditions, continuing, or denying the proposal, or taking it under advisement. Id. § 1-4904.08. In taking such action, the BOCC's decision "shall be based upon the evidence [in] the record relating to the application, applying the standards set forth in this Section 1-4901." Id. These ordinances do not provide a discernable limitation governing the BOCC's exercise of discretion in approving a final development plan. Plaintiffs therefore cannot show that the BOCC had limited discretion to disapprove the zoning classifications in a final development plan applicable to their property. Accordingly, plaintiffs' allegations establish no more than a "unilateral expectation" that the BOCC would approve the development of their property as an automobile dealership and, thus, fail to show a protectible property interest. See Hyde Park, 226 F.3d 1212.

*7 The Eason case is distinguishable from this one. There the landowner relied on an affirmative promise from the municipal planning authority, made in writing, that a specific use was allowed. Eason, 70 P.3d at 606. The closest plaintiffs come to alleging a similar representation in this case is their assertion that, on July 11, 2006, Jordan-Arapahoe's "representatives advised the BOCC there had been long discussions with prior members of the BOCC to secure approval of the land uses for the Jordan-Arapahoe Property." Compl. ¶ 26. As discussed above, the land use ordinances applicable to plaintiffs' property require approval of both a preliminary development plan and a final development plan before a property owner has a vested property right in a particular use of its property. Even reading the foregoing allegation broadly, the only plausible conclusion it supports is that negotiation was required to obtain approval of certain uses in the preliminary development plan assigned to plaintiffs' property in 1998.

Plaintiffs also rely on Moreland Properties, LLC v. City of Thornton, 559 F.Supp.2d 1133 (D.Colo.2008), to argue that their reliance on the MU-PUD zoning gives rise to a protectible property interest. However, like Eason, the Moreland case is distinguishable from this one. At the time the property in Moreland was purchased, it was zoned to permit certain automobile-related uses without any further need to apply for a specific or temporary use permit. 559 F.Supp.2d at 1137. Unlike this case, the municipality in Moreland did not identify additional procedures that the property owner was required to complete prior to obtaining a vested right in the particular zoning classification. Id. at 1137, 1146-47.

III. CONCLUSION

Plaintiffs stake their legal argument on detrimental reliance. While their expenditures are unfortunate, their reliance was not justified in light of section 1-4900 of the Arapahoe County Land Development Code and Colo.Rev.Stat. § 24-68-103(1)(b). For the foregoing reasons, it is

ORDERED that defendant Board of County Commissioners of the County of Arapahoe's motion to dismiss [Docket No. 9] is GRANTED. It is further

ORDERED that this matter, and all claims asserted therein, is dismissed with prejudice. The Clerk shall forthwith enter judgment in favor of defendant Board of County Commissioners of the County of Arapahoe and against plaintiffs Jordan-Arapahoe, LLP and Jacob Mazin Company, Inc. Defendant is entitled to its costs. See D.C.COLO.LCivR 54.1; Fed.R.Civ.P. 54(d)(1).

*967 Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT FN*

FN* This order and judgment is not binding precedent, except under the doctrines of res judicata, collateral estoppel, and law of the case. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

HENRY, Circuit Judge.

**1 After examining the briefs and appellate record, this panel has determined unanimously to honor the appellant's request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f). The case is therefore submitted without oral argument.

Mr. Bainum, a state prisoner proceeding pro se, appeals the dismissal of his 42 U.S.C. § 1983 civil rights complaint, in which he alleged various constitutional violations concerning his four-day confinement in a holding cell at the Sedgwick County Adult Detention Center (the "Center") during his criminal trial. Upon consideration of Mr. Bainum's brief and review of the record, we exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that the district court prematurely dismissed one of Mr. Bainum's claims, we affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

Construed in favor of Mr. Bainum, his complaint indicates that he appeared at the Sedgwick County Courthouse for his four-day jury trial at noon on June 14, 1999. He was arrested shortly thereafter, and, during his four-day trial, detained in the booking section of the Center. There, Mr. Bainum endured several deprivations, namely the denial of (1) basic hygiene, including showers, dental, shaving and "ability to waste, " see Rec. doc. 1, at 4 ¶ 9; (2) phone privileges, precluding communication with his attorney; (3) law library and writing material access; and (4) a bed on which to sleep. Mr. Bainum contends that the criminal trial judge directed the detention center's officers to provide Mr. Bainum with showers, but that they did not comply with that directive. He maintains that these conditions constituted inhumane treatment that violated his right to due process and the Eighth Amendment's ban on cruel and unusual punishment.

The district court concluded that although conditions in the jail during plaintiff's stay "may have been restrictive and unpleasant" they did not constitute punishment in violation of his constitutional *968 rights. Rec. doc. 3, at 2 (dist. ct. order filed June 22, 2001). The district court concluded that "the complaint should be dismissed" because Mr. Bainum could "state no claim for relief under § 1983." Id. (citing 28 U.S.C. § 1915(e)(2)(B)(ii)).

II. DISCUSSION

We review the sufficiency of a complaint de novo, upholding a dismissal for failure to state a claim only where the plaintiff failed to plead facts which, if proved, would entitle him to relief. See Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir.1999) (establishing de novo standard of review for a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim). A district court may sua sponte dismiss a pro se complaint for failure to state a claim only where it is "patently obvious" that the plaintiff cannot prevail on the facts alleged, and allowing the plaintiff an opportunity to amend the complaint would be futile. See id.; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

**2 A pro se plaintiff is entitled to a liberal construction of his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). This "means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. However, it is not the proper function of the district court to assume the role of advocate for the pro se litigant. See id. We "will not supply additional facts, [or] construct a legal theory for plaintiff that assumes facts that have not been pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989).

A. Claim for Denial of Access to the Courts

In order to establish a claim for denial of access to the courts, a pretrial detainee must demonstrate that the alleged deprivations "hindered his efforts to pursue a legal claim." McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir.2001) (quoting Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). Here, as to Mr. Bainum's alleged deprivation of phone privileges, legal and writing materials, and the ability to communicate with counsel, he alleges no actual injury. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Lewis, 518 U.S. at 349, 116 S.Ct. 2174; Cosco v. Uphoff 195 F.3d 1221, 1224 (10th Cir.1999). Therefore, we agree with the district court that Mr. Bainum has failed to state a claim for denial of access to the courts. See Petrick v. Maynard, 11 F.3d 991, 995 (10th Cir.1993) (noting that "a prisoner must do more than make a conclusory allegation of need for unspecified or unlimited materials").

B. Claim Regarding Other Conditions of Confinement

While the conditions under which a prisoner is held are subject to scrutiny under the Eighth Amendment, the conditions under which a pretrial detainee is confined are scrutinized under the Due Process Clauses of the Fifth and Fourteenth Amendments. See Bell v. Wolfish, 441 U.S. 520, 535 & n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). "Although the Due Process Clause governs a pretrial detainee's*969 claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims." Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998) (citation omitted). The Eighth Amendment requires jail officials "to provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates' safety." Barneyv. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998); see also Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.1980) (holding that prison officials must provide "reasonably adequate ventilation, sanitation, bedding, hygiene materials, and utilities (i.e. hot and cold water, light, heat, and plumbing")).

**3 To hold a prison official personally liable for violating an inmate's right to humane conditions of confinement, a plaintiff must satisfy two requirements, consisting of a subjective and an objective component. See id. The subjective component is satisfied only if the "[prison] official knows of and disregards an excessive risk to inmate health and safety.'" Barney, 143 F.3d at 1310 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). "It is not enough to establish that the official should have known of the risk of harm." Id.

The objective component requires that the alleged deprivation be "sufficiently serious." See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Jail conditions may be "restrictive and even harsh'" without violating constitutional rights. Barney, 143 F.3d at 1311 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). "[O]nly those deprivations denying the minimal civilized measure of life's necessities... are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at 298, 111 S.Ct. 2321 (internal quotation marks and citation omitted).

As to both components, our inquiry turns not only on the severity of the alleged deprivations, but also on their duration. See Barney, 143 F.3d at 1311 ("An important factor in determining whether the conditions of confinement meet constitutional standards is the length of the incarceration."). Additionally, when, as inthis case, a claim involves a number of inhumane confinement conditions, the court must bear in mind that:

We have held that a situation involving filthy cells, poor lighting, inadequate ventilation or air cooling, and unappetizing food "simply [did] not rise to the level of a constitutional violation" where prisoners were exposed to the conditions for only forty-eight hours. In general, the severity and duration of deprivations are inversely proportional, so that minor deprivations suffered for short periods would not rise to an Eighth Amendment violation, while substantial deprivations of shelter, food, drinking water, and sanitation may meet the standard despite a shorter duration.

DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir.2001) (citations and internal quotation marks omitted); accord Mitchell v. Maynard, 80 F.3d 1433, 1442-43 (10th Cir.1996) (stating that "[i]t is important to consider the conditions of confinement as a whole" and citing cases where deprivation of human needs found to be Eighth Amendment violation); Johnson v. Lewis, 217 F.3d 726, 733 (9th Cir.2000) (denying motion for summary judgment where plaintiff alleged a variety of deprivations, *970 including inaccessibility of toilets, over a four-day period); cert. denied, 532 U.S. 1065 , 121 S.Ct. 2215, 150 L.Ed.2d 209 (2001); Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir.1990) (stating that "courts have been especially cautious about condoning conditions that include an inmate's proximity to human waste").

**4 Here, Mr. Bainum's complaint alleges that, for a four-day period from June 14, 1999 through June 17, 1999, he was "without a bed or mattress, no shower or ability to waste, shave, brush his teeth or any other hygiene needed during the course of his 4 day jury trial." Rec. doc 1, at 4 (Complaint filed June 5, 2001). In our view, that section of the complaint is ambiguous, particularly with regard to the allegation that Mr. Bainum was without "the ability to waste" for four days.

We have noted that "human waste has been considered particularly offensive so that 'courts have been especially cautious about condoning conditions that include an inmate's proximity to [it].'" McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir.2001) (quoting Fruit, 905 F.2d at 1151). Although it is unclear to what conditions Mr. Bainum refers when he asserts that he was without "the ability to waste" for four days, we cannot say at this Fed.R.Civ.P. 12(b)(6) dismissal stage that it would be futile to allow him an opportunity to amend his complaint to clarify the specific conditions regarding the inability to waste to which he was allegedly subjected during his confinementFN1 We therefore conclude that the district court erred, at this stage, in dismissing Mr. Bainum's complaint as to his contention that he was denied access to waste facilities.

FN1 We note that Mr. Bainum paid the district court filing fee in full and never moved to proceed in forma pauperis in that court. As a result, the district court's dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) was incorrect. However, a complaint may also be dismissed sua sponte under Fed.R.Civ.P. 12(b)(6) on similar grounds-if it is patently obvious that he could not prevail on the facts alleged and that allowing him an opportunity to amend would be futile. See Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir.1997). We thus review Mr. Bainum's complaint under that standard.

Accordingly, the judgment of the district court is AFFIRMED in part and REVERSED in part and the case is REMANDED for further proceedings consistent with this opinion.

Michael Laroy Simpson, Stringtown, OK, pro se.

Darrell L. Moore, J. Ralph Moore PC, Pryor, OK, Don G. Pope, Don G. Pope & Associates PC, Norman, OK, for Defendants.

ORDER AFFIRMING REPORT AND RECOMMENDATION

ROBIN J. CAUTHRON, District Judge.

*1 This civil rights action brought by a prisoner, proceeding pro se, was referred to United States Magistrate Judge Gary M. Purcell, consistent with the provisions of 28 U.S.C. § 636(b)(1)(B). Judge Purcell entered a Report and Recommendation on March 12, 2013, to which Plaintiff has timely objected. The Court therefore considers the matter de novo.

The facts and law are accurately set out in the Magistrate Judge's Report and Recommendation and there is no purpose to be served in repeating them yet again. In his objection, Plaintiff raises no issue not fully and accurately addressed and rejected by the Magistrate Judge.

Accordingly, the Court adopts, in its entirety, the Report and Recommendation of the Magistrate Judge, and for the reasons announced therein, the Motion to Dismiss of Defendants Crane, Hall, Hilligoss, Sebenick, and Shannon; and the Motion for Summary Judgment of Defendant Pope are granted. A judgment will enter accordingly.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

On June 4, 2012, Plaintiff, a state prisonerFN1 appearing pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. The Defendants named in Plaintiff's Amended Complaint filed July 9, 2012, are: Mr. Sebenick, who is identified as a facility investigator at Cimarron Correctional Facility ("CCF"), a private prison located in Cushing, Oklahoma; "M." Crane, who is identified as a disciplinary hearing officer at CCF; Mr. Hilligoss, who is identified as a unit manager at CCF; "K." Hall, who is identified as a correctional officer at CCF; Ms. Shannon, who is identified as a property officer/case manager at CCF; and Mr. Pope, who is identified as a private attorney providing legal assistance to CCF inmates.

FN1 At the time he filed this action, Plaintiff was confined at the Cimarron Correctional Facility in Cushing, Oklahoma. He filed a notice of change of address on August 17, 2012, and dated August 13, 2012, stating that he had been transferred to the Mack Alford Correctional Center in Stringtown, Oklahoma.

Plaintiff states that he is suing the CCF Defendants in their individual capacities and that he is suing Mr. Pope in his individual and official capacities. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).FN2

FN2 The case was initially referred to former United States Magistrate Judge Robert Bacharach on June 7, 2012 (Doc. # 6), and the referral was transferred to the undersigned United States Magistrate Judge on March 5, 2013.

Defendants Crane, Hall, Hilligoss, Sebenick, and Shannon ("CCF Defendants") have moved to dismiss Plaintiff's claims against them pursuant to 42 U.S.C. § 1997e(a) and Fed.R.Civ.P. 12(b)(6). (Doc. # 40). The CCF Defendants have also caused the filing of a Special Report consistent with Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978), and the Court's Order (Doc. # 15). Mr. Pope has filed a Motion for Summary Judgment seeking judgment as to Plaintiff's claims against him pursuant to Fed.R.Civ.P. 56. (Doc. # 43). Plaintiff has responded to these dispositive motions. (Doc. # 58). Plaintiff has also filed a supplement to his response. (Doc. # 66). For the following reasons, it is recommended that Defendants' Motions be granted.

I. Background and Claims

At the time Plaintiff filed his initial Complaint, Plaintiff was confined at CCF.FN3 Subsequently, Plaintiff was transferred to the Mack Alford Correctional Center located in Stringtown, Oklahoma. (Doc. # 36).

FN3 Plaintiff is serving a 60-year sentence for Robbery by Force after former conviction of multiple felonies entered May 18, 1995, in Case No. CF-94-313, District Court of McCurtain County. He has a consecutive 5-year sentence to serve for Possession of Contraband Within a State Penal Institution. Defendant Pope's Motion to Dismiss (Doc. # 43), Ex. 1; http://www.doc.state.ok.us/ (offender lookup last accessed March 5, 2013); Plaintiff's Amended Complaint, at 20.

*2 Plaintiff has alleged eight claims in his Amended Complaint, In his first count (designated (1)(A) by Plaintiff), Plaintiff alleges that he was charged with the misconduct of Menacing on January 30, 2012, and that this misconduct charge violated his First Amendment right to freedom of speech and his Fourteenth Amendment due process rights.

In his second count (designated (1)(C) and (1)(D) in the Amended Complaint), Plaintiff alleges that his request for a witness, CCF Librarian Ms. Murrell, to appear at his disciplinary hearing on the Menacing misconduct charge was denied by Defendants Hall and Crane, in violation of his Fourteenth Amendment due process rights. Plaintiff also alleges that his due process rights were violated in connection with the same disciplinary proceeding because Defendant Crane conducted the disciplinary hearing without giving Plaintiff prior notice of the hearing.

In his third count (designated (1)(B) by Plaintiff), Plaintiff alleges that on January 25, 2012, Defendant Shannon inventoried Plaintiff's personal property, apparently when he was transferred to an administrative segregation unit, and that some of his personal property was missing from the inventory. Plaintiff alleges that Defendant Shannon "matrixed" Plaintiff's property in violation of his substantive due process rights.

In his fourth count (designated (1)(E) by Plaintiff), Plaintiff alleges that Defendant Pope denied Plaintiff his constitutionally-protected right of access to the courts. As support for this claim, Plaintiff alleges that Defendant Pope, who provides legal assistance to CCF inmates under a contract with the private company which owns CCF, failed to provide "necessary materials" to Plaintiff to assist him in filing the initial Complaint in this action "as evidenced by the need for [his] amended complaint." Plaintiff further alleges in this count that Defendant Pope "unlawfully conspire[d]" with Corrections Corporation of America, which employs him to provide legal assistance to CCF inmates" "to impede [Plaintiff's] efforts to pursue a non-frivolous petition with claims in this civil rights complaint."

In his fifth count (designated (1)(F) by Plaintiff), Plaintiff alleges that he requested protective measures on February 5, 2012, "due to conflict with specific gang members" by submitting an RTS form to his case manager Ms. Waters. Plaintiff alleges that the request was denied, and that he submitted another request for protective measures to Defendant Hilligoss, which was also denied. Plaintiff further alleges that Defendant Hilligoss "refus[ed] to transfer [Plaintiff] to another prison." He alleges that this action by Defendant Hilligoss constituted deliberate indifference to a substantial risk of harm to Plaintiff in violation of his Eighth Amendment rights.

In his sixth count (designated (1)(F) by Plaintiff), Plaintiff alleges that on March 9, 2012, Defendant Hilligoss recommended that Plaintiff be placed into CCF's long-term administrative detention unit, known as "ISU, " and that he was forced to transfer to the ISU on March 12, 2012, without a prior hearing in violation of his Fourteenth Amendment rights. Plaintiff also alleges that the ISU at CCF is not authorized by the Oklahoma Department of Corrections ("ODOC"). He also alleges in count six that the conditions of his confinement in the ISU Program constituted an atypical and significant hardship because he was confined in a cell for "23 & 24" hours each day with a black cover over the cell door's window, he was not allowed outdoor recreation, and he was not allowed to get haircuts or buy commissary food items for a period of time.

*3 In his seventh count (designated (1)(F) by Plaintiff), Plaintiff alleges that during his confinement in the ISU he was not allowed to attend religious services with other inmates in violation of his First Amendment to freely exercise his chosen Christian religion.

He alleges in his eighth and final count that Defendant Hilligoss deprived Plaintiff of his right to equal protection by promulgating "discriminatory practices" in the ISU "concerning priviledges [sic], haircuts, property, commissary [sic] food purchases, etc...." Plaintiff's Amended Complaint, at 3-H.

As relief for the claims asserted in the Amended Complaint, Plaintiff seeks damages.

II. Standard of Review

A motion to dismiss may be granted when the plaintiff has "failed to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under this standard, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Factual allegations, as opposed to conclusory allegations, are accepted as true and viewed in the light most favorable to the nonmoving party. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007).

A pro se plaintiff's complaint must be broadly construed under this standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction to be given the pro se litigant's allegations "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). See Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir.1997)(courts "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf").

Defendants Crane, Hall, Hilligoss, Sebenick, and Shannon have moved for dismissal under Fed.R.Civ.P. 12(b)(6). However, with respect to the Plaintiff's claims in counts three through eight, the Court has considered matters outside of the pleadings in resolving the CCF Defendants' Motion and Plaintiff was provided notice of his obligations in responding to the CCF Defendants' Motion under Rules 12(b)(6) and 56. The Court therefore will proceed to review Plaintiff's claims in counts three through eight under the governing summary judgment standard, unless otherwise indicated.

Summary judgment may be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir.2006)(quotation omitted), cert. denied, 550 U.S. 933 (2007). A dispute is "genuine" if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are "facts which might affect the outcome of the suit under the governing law." Id. "At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." Burke, 462 U.S. at 1258 (internal quotation marks and citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(quotations omitted).

III. Counts One and Two-Misconduct, Heck's Bar, and Exhaustion of Administrative Remedies

*4 In Plaintiff's first two claims, Plaintiff alleges that he was deprived of his rights under the Due Process Clause because he was found guilty of the misconduct charge of Menacing without sufficient evidence and because he was not provided a ate due process in the disciplinary proceeding.FN4

FN4 In these grounds for relief, Plaintiff does not specifically seek the restoration of good-time credits. Therefore, the Court should not construe the action as one seeking a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)("[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that confinement, his sole federal remedy is a writ of habeas corpus.").

Plaintiff was charged with the offense of Menacing on February 1, 2012. Defendant Sebenick authored the offense report. Plaintiff's Complaint (Doc. # 1), Ex. 3 (labeled "Ex. B-B" by Plaintiff), at 6. The offense report charged that on January 30, 2012, Plaintiff "wrote and submitted a RTS which was sexually explicit to the facilities [sic] librarian." Id. Plaintiff refused to sign the offense report. Id. In an investigator's report dated February 4, 2012, and completed by Defendant Hall in his capacity as the CCF Investigating Officer, Defendant Hall notes Plaintiff requested that Ms. Murrell, the CCF Librarian, be called as a witness. Plaintiff's Complaint (Doc. # 1), Ex. 3 (designated Exhibit D-D by Plaintiff), at 20. This report also reflects that Plaintiff was given notice of the date and time of the disciplinary hearing, and the report includes an attachment indicating Defendant Hall elected to take a statement from Ms. Murrell in lieu of her live testimony at the hearing. Id. at 20-21. Plaintiff's signature appears on the Report acknowledging his receipt of the report and attachments. Id. at 20.

On February 22, 2012, a hearing was conducted on the misconduct charge by Defendant Crane in his capacity as the CCF Disciplinary Hearing Officer, and Plaintiff was found guilty of the misconduct charge. Plaintiff's Supplemental Response (Doc. # 66), Ex. 1 (labeled Exhibit NN by Plaintiff), at 1. The report of the hearing sets forth Defendant Crane's findings that Plaintiff "did write a RTS to the Librarian eluding to a sexual tone" and that Plaintiff "did refuse to participate in his hearing." Id. The discipline imposed included 30 days confinement in the segregation unit, reduction to classification level one for 90 days, and the forfeiture of 365 days of earned credits. Id. The facility head affirmed the disposition, and Plaintiff refused to sign the disciplinary hearing report on February 25, 2012, to indicate he received a copy of the disposition. Id.

In an Incident Statement authored by Defendant Crane, and dated February 22, 2012, Defendant Crane states that

On the above date and time I was in Segregation to do hearings. I had [inmate] Simpson... pulled out of his cell for the purpose of holding his hearings. [Inmate] Simpson had two misconducts to be heard, Misconduct number # 4242 (13-1/B) and # 5395 (05-4/X). At some point when he was brought into the area where I was to hold his hearing, he began arguing with me about something. I do not recall what the argument was about but it had something to do with his misconducts and he did not agree with the way things were going to be done. He then said he wanted to be taken back to his cell and did not want to have anything to do with the hearings. He was advised that if he did not attend his hearing, he would have no recourse in the way of appeals. He turned to me and yelled "I know how the system works, you don't need to tell me anything." Over the next few days [inmate] Simpson asked me several times when he was going to have his hearing like he did not even remember the incident. I told him each time that his hearing was held the same day he refused to come to them and that this matter was completed.

*5 Plaintiff's Supplemental Response, Ex. 3 (labeled Exhibit PP by Plaintiff), at 4.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court recognized that damages may not be recovered in a 42 U.S.C. § 1983 action "for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid" unless the plaintiff first proves "that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Id. at 487. This rule applies to prison disciplinary convictions. Edwards v. Balisok, 520 U.S.641, 643 (1997).

Ordinarily, the claims of inmates like Plaintiff who seek damages from correctional officials for alleged procedural or substantive due process deprivations, including insufficiency of evidence, related to a misconduct conviction would be dismissed without prejudice as barred by Heck unless the inmate shows that the misconduct conviction has been reversed or vacated.

However, in Muhammad v. Close, 540 U.S. 749 (2004) ( per curiam ), the Supreme Court recognized an exception to Heck's bar. In Muhammad, the prisoner brought a § 1983 action seeking damages for being placed in a segregation unit prior to a disciplinary hearing in which he was acquitted of the misconduct offense and thus did not forfeit earned credits. Id. at 752. In that case, where the inmate did not challenge the underlying disciplinary conviction, the Court found that the inmate had raised no claim on which habeas relief could have been granted and therefore " Heck's favorable termination requirement was inapplicable." Id. at 755.

In a recent unpublished order, the Tenth Circuit Court of Appeals interpreted the Muhammad decision and recognized that "Muhammad left open the possibility that Heck might not apply when a habeas remedy is unavailable." Harrison v. Morton, 490 Fed.Appx. 988, 992 (10th Cir.2012) (unpublished order)(quoting Muhammad, 540 U.S. at 752 n. 2). In that case, Harrison was ineligible to earn good time credits under Oklahoma lawFN5 and the appellate court reasoned that the prisoner "likely would not be able to file a habeas petition challenging his disciplinary conviction" because the § 2241 habeas remedy is available only to challenge prison disciplinary proceedings when those proceedings affect the fact or duration of the prisoner's custody, "such as when a prisoner is deprived of earned credits." Id.

FN5 Harrison, as the appellate court found, was "serving an 85% sentence, which means that under Oklahoma law, he is ineligible for parole and cannot earn good time credits until he has served 85 % of his sentence." Id. at 990.

The Tenth Circuit's decision in Harrison is distinguishable, however, from the instant action because Plaintiff is serving a sentence for a conviction entered in 1995, prior to the adoption of the law which established what is commonly known as the "85% rule." See Okla. Stat. tit. 21, § 13.1 (effective July 1, 1999). Thus, Plaintiff's sentence is not subject to the "85% rule, " and Plaintiff is eligible to earn good time credits under Oklahoma law.

*6 Consequently, to the extent Plaintiff is challenging the validity of his misconduct conviction, Heck applies to bar Plaintiff's § 1983 claims in counts one and two challenging his misconduct conviction. However, the CCF Defendants did not argue that Heck bars judicial review of the merits of Plaintiff's claims in counts one and two. Moreover, Plaintiff also challenges the conditions of his confinement and the loss of privileges as a result of the misconduct conviction, and these claims would not implicate the Heck bar. See Slack v. Jones, 348 Fed.Appx. 361, 364 (10th Cir.2009)(unpublished order)("[T]o the extent Mr. Slack challenged the conditions of his confinement and loss of privileges, Heck and Edwards do not apply."), cert. denied, ___ U.S. ___ , 130 S.Ct. 2067 (2010).

The CCF Defendants assert that Plaintiff's claims should not be reviewed because Plaintiff failed to exhaust administrative remedies. Alternatively, with respect to Plaintiff's claim in count one of the Amended Complaint, the CCF Defendants assert that Plaintiff failed to state a First Amendment claim of a violation of his right to freedom of speech. Because Plaintiff failed to exhaust available administrative remedies concerning the claims asserted in counts one and two of the Amended Complaint, the CCF Defendants' Motion to Dismiss these claims should be granted on this basis.

The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[E]xhaustion requirements are designed to... give the agency a fair and full opportunity to adjudicate their claims" before the plaintiff files an action in federal court. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Exhaustion of administrative remedies is mandatory under the PLRA. Booth v. Churner, 532 U.S. 731, 741 (2001). The PLRA's exhaustion requirement "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002). To properly exhaust administrative remedies, Plaintiff must "us[e] all steps that the agency holds out and [do] so properly (so that the agency addresses the issues on the merits)." Woodford, 548 U.S. at 90 (quotation and citation omitted).

The record shows that Plaintiff filed a grievance concerning the misconduct on March 6, 2012, in which Plaintiff requested that the misconduct be expunged from his prison record. Defendants' Motion to Dismiss and Briefin Support ("CCF Defendants' Motion"), Ex. 3, at 28-30 (Court's index page numbers 29-31). The grievance was returned to Plaintiff unanswered on March 6, 2012, with the explanation that misconduct appeals are not a grievable issue pursuant to ODOC policy OP-090124(II(B). Id. The CCF Defendants contend that Plaintiff did not appeal the misconduct conviction through the proper procedures provided in ODOC policy OP-060125.

*7 In his responsive pleading, Plaintiff has not provided evidence demonstrating that he exhausted ODOC's administrative appeal process for challenging his misconduct for Menacing. On March 1, 2012, Plaintiff submitted a Misconduct Appeal Form to CCF Warden Miller, and the appeal was file-stamped as received on March 2, 2012. Plaintiff's Response (Doc. # 58), Ex. 4, at 25. In a due process review conducted for purposes of the misconduct appeal, the reviewer, D. Wesson, found that no due process violation occurred with respect to the disciplinary proceeding. Plaintiff's Complaint (Doc. # 1), Ex. 3, at 10 (labeled Ex. B-B by Plaintiff). CCF Warden Miller affirmed the misconduct conviction and punishment. Id. Plaintiff refused to sign a copy of the disposition. Id.

Plaintiff appealed the decision to the ODOC administrative review authority ("ARA"). Plaintiff asserted that he was not provided copies of the evidence and/or reports, that he was not permitted the opportunity to present relevant witnesses, that he was not permitted to attend the hearing, and that insufficient evidence was presented to support the finding of guilt. Id. at 11. The ODOC ARA returned the misconduct appeal unanswered and advised Plaintiff that "an amended response will be provided to [sic] the warden." Plaintiff's Response, Ex. 4, at 27. Plaintiff submitted a Request to Staff form to CCF Warden Miller, file-stamped as received on March 16, 2012, in which Plaintiff requested that Warden Miller answer/respond to Plaintiff's misconduct appeal. Id. at 28.

An amended response was issued by Warden Miller on May 2, 2012. Plaintiff's Supplemental Response, Ex. 1 (labeled Exhibit NN by Plaintiff), at 2. This response included the findings that Plaintiff was provided written notice of the charge and afforded the opportunity to call witnesses. As reasons for affirming the misconduct conviction, Warden Miller's response referred to ODOC policy OP-060125(IV)(C)(3) and quoted the policy: "[I]f the offender refuses to attend the hearing, it will be documented and the disciplinary officer will impose discipline without hearing, as the refusal to attend constitutes a waiver by the offender to an opportunity for a hearing or an appeal." Id. The misconduct appeal form reflects that Plaintiff refused to sign the form to acknowledge that he received a copy of the disposition. Id.

Plaintiff attempted to appeal this decision to the ODOC ARA. Plaintiff's Supplemental Response (Doc. # 66), Ex. 3 (labeled Exhibit PP by Plaintiff) at, 3. The ODOC ARA returned the attempted appeal to Plaintiff unanswered and advised Plaintiff that he "waived/refused to attend the [disciplinary] hearing, thereby forfeiting the opportunity to have a hearing and to participate in the appeal process (OP-060125 IV, C 2)" and further advised Plaintiff that "[d]ocumentation from CCF states that you refused to attend your disciplinary hearing. You have waived your opportunity for an appeal to this office." Id. at 2.

*8 Although Plaintiff alleges in hyperbolic fashion that the exhaustion requirement should be excused because of "prison official's [sic] rampant practice of applying HYPERTECHNICAL techniques to prisoner's exhaustion of administrative remedies process in efforts to cause disfavorable grievance redress results against Plaintiff... through the sham prison grievance process'..., " Plaintiff's Response, at 2, Plaintiff has not demonstrated that any actions by correctional officials prevented him from complying with ODOC's administrative appeal process for challenging his Menacing misconduct or the conditions of his confinement or the loss of privileges resulting from the misconduct conviction.

Accordingly, the CCF Defendants' Motion to Dismiss Plaintiff's claims in counts one and two against them should be granted due to Plaintiff's failure to exhaust available administrative remedies, FN6 and these claims should be dismissed without prejudice.FN7

FN6 In light of this recommendation, the undersigned declines to address the CCF Defendants' alternative argument with respect to count one of the Amended Complaint.
FN7 Moreover, Plaintiff alleged that the conditions of his confinement in administrative segregation caused him "serious injuries and hardships, " including "excessive detention" and the "loss of privileges." Plaintiff's Amended Complaint, at 3-A. However, the Supreme Court held in Sandin v. Connor, 515 U.S. 472, 486 (1995), that discipline resulting in segregated confinement does "not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Plaintiff has not stated a claim of a due process deprivation with respect to his confinement in administrative or punitive segregation or the loss of privileges resulting from that segregated confinement.
Plaintiff also admits in his Amended Complaint that he had notice of "the scheduled February 22, 2012 disciplinary hearing." Plaintiff also admits he voluntarily failed to attend the disciplinary hearing (he alleges he failed to appear because he subjectively "thought" the hearing had been postponed). Plaintiff admits that his requested witness, Ms. Murrell, who was the recipient of Plaintiff's blatantly offensive RTS, gave a verbal statement to the investigator prior to the hearing. Even if Ms. Murrell was not called to appear in person at the hearing, Plaintiff has not demonstrated that this witness's testimony "would have affected the outcome of his case." Chesson v. Jaquez, 986 F.2d 363, 366 (10th Cir.1993). Plaintiff received an explanation of the reasons for the finding of guilt at the disciplinary hearing, even though the record shows he refused to sign a copy of the disciplinary hearing report containing that explanation. Thus, Plaintiff has not stated a claim of a due process deprivation concerning the disciplinary hearing procedure. Superintendent v. Hill, 472 U.S. 445, 454 (1984)(in prison disciplinary proceeding resulting in loss of earned credits, due process requires that inmate receive advance written notice of disciplinary charge, opportunity, when consistent with institutional safety and correctional goals, to present witnesses and documentary evidence, and written statement by factfinder of evidence relied on and reasons for disciplinary action).

IV. Count Three-Deprivation of Personal Property

In his third count (designated (1)(B) by Plaintiff), Plaintiff alleges that on January 25, 2012, Defendant Shannon inventoried Plaintiff's personal property, apparently when he was transferred to an administrative segregation unit, and that some of his personal property was missing from the inventory sheet he received after this inventory. He does not allege with specificity what property was missing. However, Plaintiff attached to his initial Complaint a copy of an ODOC inmate property inventory form dated January 24, 2012, and signed by CCF Inventory Officer Shannon. Plaintiff's Complaint (Doc. #1), Ex. 3, at 15 (designated Ex. CC by Plaintiff). On this form, officer Shannon notes that Plaintiff's property included several items of "unauthorized/excess property." Id. Plaintiff alleges that Defendant Shannon intentionally deprived Plaintiff of his "property" in violation of his due process rights.

"An unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available, " and "the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy." Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff does not allege that the deprivation was unauthorized, and thus the Hudson decision is not applicable. Although Plaintiff does not specifically allege that Defendant Shannon's actions were taken pursuant to ODOC policy, which requires that prisoners' personal property not exceed certain amounts, FN8 his allegations suggest that the property deprivation resulted from Defendant Shannon's application of ODOC policy.

FN8 The ODOC Policy and Operations Manual includes a policy governing offender property. Special Report (Doc. # 39), Ex. 4 (ODOC OP-030120). This policy establishes a Property Matrix of allowable property for inmates in the custody of ODOC, and specifies that "[f]or fire/safety reasons" an inmate's "legal material" is limited to one cubic foot. Id.
[W]hen the deprivation is not random and unauthorized, but is pursuant to an affirmatively established or de facto policy, procedure, or custom, the state has the power to control the deprivation and, therefore, generally must, in the absence of compelling reasons to the contrary, give the plaintiff a predeprivation hearing. In such cases, the availability of an adequate state post-deprivation remedy is irrelevant and does not bar a § 1983 claim.
*9 Gillihan v. Shillinger, 872 F.2d 935, 939-940 (10th Cir.1989). Plaintiff is required, however, to exhaust available administrative remedies prior to bringing his action based on a deprivation of his property to federal court. See Montana v. Hargett, 151 Fed.Appx. 633, 637 (10th Cir.2005) (inmate's claim of deprivation of personal property was properly dismissed without prejudice due to inmate's failure to exhaust administrative remedies).

The CCF Defendants move to dismiss this claim against them on the ground that Plaintiff failed to exhaust available administrative remedies. In ODOC's well-established grievance policy, OP-090124, ODOC has established a "four-step process for administrative exhaustion of prisoner claims. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member." Little v. Jones, 607 F.3d 1245, 1249 (10th Cir.2010). "If the matter is not resolved informally, the prisoner must submit an RTS [Request to Staff]." Id. "If the matter still remains unresolved, the prisoner may file a Grievance Report Form (grievance') with the reviewing authority, which is usually the prison's warden." Id. "Finally, a prisoner may appeal the warden's decision to the Administrative Review Authority (ARA')." Id. According to ODOC's grievance policy, "[t]he ruling of the [ARA]... is final and [concludes] the internal administrative remedy available to the inmate....'" Id. (quoting ODOC Inmate/Offender Grievance Process, § VII.D.1). See Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir.2010)("The ODOC grievance process has a requirement of informal consultation with staff, then three written steps: a Request to Staff form, a formal grievance, and an appeal to the administrative review authority."), cert. denied, ___ U.S. ___ , 131 S.Ct. 1691 (2011).

Plaintiff submitted a RTS form to Defendant Shannon dated February 17, 2012, in which Plaintiff requested that "at least a 30-day extension" be given to Plaintiff concerning his "property that you have (papers, letters, etc., etc.)" and that the property be placed "in 1 or 2 boxes (lockers) and [brought] to seg [regation] unit for storage for me..." as "other inmates in seg[regation] have more than (3) boxes of property." CCF Defendants' Motion, Ex. 3, at 45 (Court's index page number 46). Defendant Shannon responded to this RTS on February 23, 2012. Defendant Shannon stated that Plaintiff's "books are on your property sheet so it's in the box. I will hold your nonallowed items until you are released from Seg[regation]. You need to keep your property matrixed on your own. You know our rules." Plaintiff's Complaint (Doc. # 1), Ex. 3 (labeled Ex. CC by Plaintiff), at 14.

Plaintiff filed Grievance 12-83 on March 12, 2012, to CCF Warden Miller. In this grievance, Plaintiff stated that he was transferred to the prison's administrative segregation unit on January 24, 2012, and that his personal property was placed in the control of the intake property officer, Defendant Shannon. Plaintiff stated that Defendant Shannon deprived Plaintiff of his "personal property (photos, legal manuals, letters, certificates, phone numbers, and information, etc.)... by Matrixing (downsizing, cutback, discarding, trashing) without allowing [Plaintiff] due process of law." CCF Defendants' Motion, Ex. 3, at 44 (Court's index page number 45). Plaintiff requested to be compensated for the loss of his personal property.

*10 The Warden advised Plaintiff by letter that his grievance was being returned unanswered because he had abused the grievance process by, inter alia, submitting continual and repeated frivolous grievances and repeatedly submitting grievances previously addressed by staff. Id. at 43 (Court's index page number 44). Plaintiff was warned in this letter that he could be subject to grievance restriction for continued abuse of the grievance process. Id.

Plaintiff attempted to appeal to the ODOC ARA. Id. at 41 (Court's index page number 42). In a letter dated March 21, 2012, the ODOC ARA advised Plaintiff that he had presented an issue that was not grievable to ODOC under ODOC policy OP-090124 because it concerned property at a private prison. Id. at 40 (Court's index page number 41). Additionally, Plaintiff was advised that the attempted grievance appeal was being returned unanswered because he had submitted two grievance appeals in a single envelope in violation of ODOC policy requiring that grievance appeals be submitted in separate envelopes. FN9 Id.

FN9 Although the CCF Defendants assert that the ODOC ARA's letter advised Plaintiff he had another opportunity to submit the grievance appeal, the letter appearing in the record does not support this assertion.

Plaintiff's administrative grievance process effectively ended with the RTS response by Defendant Shannon, which advised Plaintiff that none of his "nonallowed property" would be disposed of until he was released from the segregation unit. Thus, Plaintiff's attempt to further exhaust his administrative remedies was not necessary. Under these circumstances, the CCF Defendants' Motion to Dismiss the claims against them in count three of the Amended Complaint should be denied.

Nevertheless, because Plaintiff has been granted leave to proceed with this action in forma pauperis, the Court is obligated to sua sponte examine the sufficiency of the Amended Complaint under 28 U.S.C. § 1915(e)(2)(b). In this preliminary review, the Court must dismiss a complaint or any portion of it presenting claims that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(b).

Plaintiff alleges in his Amended Complaint that Defendant Shannon's written response to his RTS "indicat[ed] that she had matrixed' [Plaintiff's] property... (to matrix property means to downsize, cutback, do away with, etc.)" and that "Defendant Shannon's adverse actions to deprive [Plaintiff] of his personal property without first providing him due process of law, is a violation of [his] Fourteenth Amendment Rights... [to] Procedural Due Process." Plaintiff's Amended Complaint, at 6. Plaintiff relies entirely on the RTS response provided by Defendant Shannon. However, the response set forth in this RTS by Defendant Shannon is not consistent with Plaintiff's allegations in his Amended Complaint and fails to demonstrate a deprivation of property without due process.

The RTS response by Defendant Shannon indicates that Plaintiff's "books" had been placed in his storage "box" and that Plaintiff's "nonallowed property" would not be disposed of until he was released from the segregation unit. Plaintiff's Complaint (Doc. # 1), Ex. 3 (labeled Ex. CC by Plaintiff), at 14. This RTS form does not support Plaintiff's claim that he was deprived of any personal property without prior notice or even that Defendant Shannon intended to deprive Plaintiff of any of his personal property in the future. Moreover, if Plaintiff felt that some of his property was missing, CCF Grievance Coordinator Ms. Kathy Jones advised Plaintiff to complete a "Lost/Stolen Property form" in rse to his grievance concerning the issue.FN10 Special Report (Doc. # 39), Ex. 7, at 29 (labeled Grievance Records-Pg. 73); Plaintiff's Response (Doc. # 58), Ex. 4, at 19. Thus, Plaintiff has failed to state a plausible claim of a due process deprivation with respect to Defendant Shannon's actions concerning his personal property, and this claim asserted in count three of the Amended Complaint should be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(b) for failure to state a claim upon which relief may be granted.

FN10 Internal notes between CCF officials appearing in the special report reflect that Plaintiff was advised by a CCF staff member that his property was being retained awaiting his decision to either send the excess property home or have it destroyed. Special Report (Doc. # 39), Ex. 7, at 31.

V. Count Four-Access to Courts

*11 In his fourth count (designated (1)(E) by Plaintiff), Plaintiff alleges that Defendant Pope denied Plaintiff his constitutionally-protected right of access to the courts by failing to provide "necessary materials" to Plaintiff to assist him in filing the initial Complaint in this action "as evidenced by the need for [his] amended complaint." Plaintiff's Amended Complaint, at 9.

Pursuant to Bounds v. Smith, 430 U.S. 817 (1977), inmates have a constitutionally-protected right of access to the courts, and States must affirmatively assure that inmates are provided "meaningful access to the courts." Id. at 820-821, 824. Because there is no "abstract, freestanding right to a law library or legal assistance, " however, an inmate alleging a denial of his right of access to the courts must show actual injury such that "an actionable claim [challenging a sentence or conditions of confinement] has been lost or rejected, or that the presentation of such a claim is currently being prevented, because [the] capability of filing suit has not been provided." Lewis v. Casey, 518 U.S. 343, 351, 356 (1996). See Christopher v. Harbury, 536 U.S. 403, 412-416 (2002)(recognizing that inmates alleging a denial of the right of access to the courts must show either "systemic official action [which] frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time" or a claim that "cannot now be tried (or tried with all material evidence)... [because past official action] caused the loss or inadequate settlement of a meritorious case....").

Defendant Pope has raised the affirmative defense of failure to exhaust administrative remedies. Therefore, it is Plaintiff's burden to demonstrate that he exhausted available administrative remedies concerning his denial-of-access-to-the-courts claim asserted in count four of the Amended Complaint. Although Plaintiff alleges that he exhausted administrative remedies concerning his claims, Plaintiff has not satisfied his burden with respect to the claim asserted against Defendant Pope. In his responsive pleading, Plaintiff addresses only the merits of his claim. Plaintiff's Response, at 4-5.

The record shows Plaintiff submitted a RTS form to Ms. Murrell, the CCF Librarian dated March 7, 2012, and file-stamped received March 12, 2012, in which Plaintiff requested to be allowed access to a prisoner's self-help legal manual and grievance forms and complaining that Defendant Pope sometimes does not respond for two or more weeks to requests for "legal materials." CCF Defendants' Motion (Doc. # 40), Ex. 3, at 53-54 (labeled Grievance Records-pgs. 52-53). In response to this RTS, Plaintiff was advised that the legal book could not be checked out but that forms were being provided to Plaintiff to request legal assistance. Id.

Plaintiff submitted a grievance to CCF Warden Miller date-stamped received March 12, 2012, in which he asserted that Mr. Pope was not provided timely or necessary legal material and that he needed access to the law books in the library despite his confinement in the segregation unit. In response to this grievance, Plaintiff was advised that the grievance was denied because CCF had no law library but had contracted with a private attorney to provide legal assistance to CCF inmates. Plaintiff was further advised that he must request an appointment with the contracted attorney and request information from the attorney. Id. at 51 (labeled Grievance Records-pg. 50. Plaintiff appealed this decision to the ODOC ARA. Id. at 49 (labeled Grievance Records-pg. 48). The ODOC ARA returned the attempted grievance appeal unanswered and advised Plaintiff that he had submitted two grievance appeals in a single envelope although ODOC policy required that grievance appeals be submitted in separate envelopes. Id. at 48 (labeled Grievance Records-pg. 47). Plaintiff was also advised that he had the opportunity to correct this deficiency by submitting a corrected grievance appeal within 10 days of his receipt of the form. Id.

*12 There is nothing in the record demonstrating that Plaintiff re-submitted his grievance appeal. Consequently, Plaintiff has not demonstrated that he exhausted available administrative remedies concerning his claim in count four of the Amended Complaint against Defendant Pope or that ODOC officials obstructed his ability to do so. Thus, Defendant Pope's Motion for Summary Judgment should be granted on this basis in favor of Defendant Pope and against the Plaintiff.

Alternatively, it is undisputed that Plaintiff was not prevented from filing a lawsuit because of any inadequacies in the legal assistance program provided to CCF inmates. It is also undisputed that Plaintiff did not miss a deadline or experience any other prejudice to a pending action as a result of inadequacies in the legal assistance program provided to CCF inmates. Plaintiff's claim of a denial of access to the courts is based entirely on his assertion that he requested and was granted leave to file an Amended Complaint in this action. Plaintiff has not shown actual injury with respect to this claim, as required by Casey, 518 U.S. at 351, and viewing the evidence in the light most favorable to Plaintiff there is no material issue of fact for trial concerning this claim. Therefore, Defendant Pope's Motion for Summary Judgment should be granted in favor of Defendant Pope and against the Plaintiff as to Plaintiff's claim in count four of the Amended Complaint.

VI. Count Five-Deliberate Indifference to Safety and Denial of Request for Protective Custody

In his fifth count (designated (1)(F) by Plaintiff), Plaintiff alleges that he requested protective measures on February 5, 2012, "due to conflict with specific gang members" by submitting an RTS form to his case manager Ms. Waters. Plaintiff alleges that the request was denied, and that he submitted another request for protective measures to Defendant Hilligoss, which was also denied. Plaintiff further alleges that Defendant Hilligoss "refus[ed] to transfer [Plaintiff] to another prison." He alleges that this action by Defendant Hilligoss constituted deliberate indifference to a substantial risk of harm to Plaintiff in violation of his Eighth Amendment rights.

In this case the analysis of Plaintiff's Eighth Amendment claim requires the Court to determine whether prison officials acted with deliberate indifference to Plaintiff's safety needs. Hope v. Pelzer, 536 U.S. 730, 737-738 (2002); Hudson v. McMilian, 503 U.S. 1, 8 (1992). "First, the deprivation alleged must be, objectively, sufficiently serious.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994)(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). "For a claim... based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. Secondly, the prison official must have a "sufficiently culpable state of mind." Wilson, 501 U.S. at 297. "In prisonconditions cases that state of mind is one of deliberate indifference' to inmate health or safety." Farmer 511 U.S. at 834. If the risk of harm is obvious, the existence of the necessary subjective state of mind may be inferred. Hope, 536 U.S. at 738 (citing Farmer, 511 U.S. at 842).

*13 In their dispositive motion, the CCF Defendants assert that Plaintiff failed to exhaust available administrative remedies concerning this claim. The record shows that Plaintiff submitted a grievance on February 16, 2012, to CCF Warden Miller in which he requested "protection from other inmates for reasons of safety." CCF Defendants' Motion, Ex. 3, at 19 (labeled Grievance Records-Pg. 18). He specifically alleged that he needed a "separtee/non-association" as to one inmate and that "due to the costly cellphone that I was busted/locked-up over, on 1-24-2012, My well-being is no longer safe at this facility, and [I] need to be moved for reasons of safety." Id. at 20 (labeled Grievance Records-Pg. 19). In a response dated February 29, 2012, Plaintiff was advised that his grievance was granted for the following reasons:

A [protective custody] investigation was conducted by [case manager] Waters through [unit manager] Hilligoss. [Case manager] Waters determined that there was not enough supporting information to validate your claims. However, [case manager] Waters recommended the ISU program with restrictions of no recreation or showers with gang members and upon completions [sic] of the ISU program you would be reevaluated for protective custody. You have protective custody to a degree in the ISU program.

Id. at 18 (labeled Grievance Records-Pg. 17). Plaintiff appealed this decision. Id. at 14-16 (labeled Grievance Records-Pg. 13-15). The ODOC ARA advised Plaintiff by letter dated March 12, 2012, that his grievance was being returned to the CCF Warden for further review and investigation and an amended response. Id. at 13 (labeled Grievance Records-Pg. 12).

In an amended response to his grievance dated March 22, 2012, Plaintiff was informed that his grievance was denied for the following reasons:

A [protective custody] investigation was conducted by [case manager] Waters through [unit manager] Hilligoss. [Case manager] Waters determined that there was not enough supporting information to validate your claims of needing protective custody. At this time protective custody is being denied.

Id. at 22 (labeled Grievance Records-pg. 21).

Plaintiff appealed the amended grievance response. Id. at 4 (labeled Grievance Records-Pg. 3). The ODOC ARA returned Plaintiff's grievance appeal unanswered and advised Plaintiff that he had presented additional issues not presented in the initial grievance and that he had not designated the facility where the grievance occurred. Plaintiff was advised he had another opportunity to submit a corrected grievance appeal within 10 days of his receipt of the form. Id. at 3 (labeled Grievance Records-Pg. 2).

Nothing in the record demonstrates that Plaintiff re-submitted his grievance appeal. Because Plaintiff failed to exhaust available administrative remedies concerning his claim in count five of the Amended Complaint, the CCF Defendants' Motion to Dismiss this claim on this basis should be granted.

VII. Count Six-Due Process and Eighth Amendment-Placement in Intensive Supervision Unit

*14 In his sixth count (designated (1)(F) by Plaintiff), Plaintiff alleges that on March 9, 2012, Defendant Hilligoss recommended that Plaintiff be placed into CCF's long-term intensive supervision unit ("ISU"), which Plaintiff describes as a longterm administrative detention unit, and that he was transferred to the ISU on March 12, 2012, without a prior hearing in violation of his Fourteenth Amendment rights.FN11 Plaintiff further alleges that the ISU at CCF is not authorized by the ODOC, and that the conditions of his confinement in ISU violated his Eighth Amendment rights as he was subjected to "atypical and significant hardship in relation to the ordinary incidents of prison life." As support for this Eighth Amendment claim, Plaintiff asserts that he was "locked in a room/cell 23 & 24 hours each day with a black cover over the cell door window to [prevent] communication with staff and/or other inmates, " he was deprived of outdoor recreation "due to Plaintiff needing protective measures" at CCF, and he had not been outside for recreation "since being placed in ISU pod dungeon" on March 12, 2012. Amended Complaint, at 21.

FN11 With his responsive pleading, Plaintiff has attached an ODOC Intra-Facility Assignment form dated March 12, 2012, reflecting that Plaintiff was transferred that date to ISU because he had committed "3 misconducts in a six month period." Plaintiff's Supplemental Response (Doc. # 66), Ex. 1 (designated Ex. NN by Plaintiff), at 3.

To assert a claim of a denial of due process in violation of the Fourteenth Amendment, a plaintiff must show the deprivation of a protected liberty or property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). As a lawfully incarcerated individual, Plaintiff retains only a narrow range of protected liberty interests. Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.1994). Ordinarily, the transfer of an inmate to segregation does not involve the deprivation of a protected liberty interest. Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir.2006). However, prison conditions that "impose [ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" may create a protected liberty interest. Sandin v. Connor, 515 U.S. 472, 484 (1995).

The CCF Defendants assert that Plaintiff did not exhaust available administrative remedies concerning these claims. Plaintiff has not pointed to any administrative grievances or grievance appeals submitted with respect to his due process and Eighth Amendment claims asserted in count six. The record shows that in a grievance appeal dated February 28, 2012, and date-stamped received March 5, 2012, Plaintiff asserted that he had been transferred to a long-term segregation unit "called ISU Program" at CCF. Special Report, Ex. 6, at 15 (labeled Grievance Records-pg. 14). However, this grievance appeal concerned CCF officials' denial of his request for protective custody, and Plaintiff did not allege unconstitutional conditions of confinement in the ISU or that he was denied due process in connection with his transfer to the ISU. Thus, this grievance appeal did not exhaust available administrative remedies concerning Plaintiff's claim in count six.

On March 15, 2012, Plaintiff submitted a RTS to correctional officer "J. Williams." Special Report, Ex. 7, at 13 (labeled Grievance Records-pg. 57). Plaintiff requested to be removed from the ISU Program and asserted that he was "falsely arrested" and falsely imprisoned in the administrative segregation unit. Only five days later, on March 20, 2012, Plaintiff submitted a grievance in which he asserted that officer Williams had failed to respond to his RTS. Id. at 15 (labeled Grievance Records-pg. 59). On March 20, 2012, Plaintiff was advised by the CCF Grievance Coordinator that his grievance was being returned unanswered because he did not provide "informal action, Request to Staff' response, " and he was given another opportunity to complete his grievance. Id. at 14 (labeled Grievance Records-pg. 58).

*15 Plaintiff submitted another grievance on April 5, 2012, in which he asserted that Unit Manager Hilligoss had failed to respond to an RTS concerning the "illegitimacy" of the ISU and his "unconstitutional placement in ISU Pod." Id. at 20 (labeled Grievance Records-pg. 64). In a letter dated April 6, 2012, CCF Grievance Coordinator Jones advised Plaintiff that his grievance was being returned unanswered because it was out of time according to ODOC policy, which provided that the inmate must submit a grievance 30 days after submitting a RTS without a response.

Plaintiff subsequently submitted a grievance dated-stamped as received April 17, 2012, in which he asserted that officer Williams had not responded to his RFC submitted in March 2012. Id. at 11 (labeled Grievance Records-pg. 55). Plaintiff's grievance was returned unanswered with the explanation that Plaintiff had failed to follow previous instructions for filing the grievance and Plaintiff's opportunity to file the grievance was "out of time." Id. at 10 (labeled Grievance Records-pg. 54).

As Plaintiff has not demonstrated that he exhausted available administrative remedies concerning his claims in count six or that prison officials obstructed his opportunity to do so, the CCF Defendants' Motion to Dismiss the claims in count six against them should be granted.

VIII. Count Seven-First Amendment Right to Freely Exercise Chosen Religion

In his seventh count (designated (1)(F) by Plaintiff), Plaintiff alleges that during his confinement in the ISU Program he was not allowed to attend religious services with other inmates in violation of his First Amendment to freely exercise his chosen Christian religion.

"The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment... means, first and foremost, the right to believe and profess whatever religious doctrine one desires." Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 876-877 (1990). However, as recognized by the Supreme Court in Smith, "the Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws." Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 424 (2006)(citing Smith, 494 U.S. at 883-890). In the context of prisons, the First Amendment's Free Exercise Clause requires "a reasonable opportunity to pursue [one's] religion." Stewart v. Beach, 701 F.3d 1322, 1330-1331 (10th Cir.2012)(quotation omitted). "In determining the constitutionality of restrictions on the exercise of religion, the Court must balance four factors: (1) the existence of a rational connection between the prison restriction and a legitimate governmental interest advanced as its justification; (2) the presence of alternatives for inmates to exercise the right; (3) the effect that elimination of the restriction would have on guards, other prisoners, and prison resources; and (4) the existence of alternatives for prison officials without restricting inmates' rights to religious expression." Derrick v. Ward, 91 Fed.Appx. 57, 61 (10th Cir.2004) (unpublished order)(citing Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1209 (10th Cir.1999)).

*16 The CCF Defendants contend that Plaintiff failed to exhaust his available administrative remedies concerning his seventh claim of a First Amendment violation of his right to freely exercise his chosen religion. In a grievance submitted April 17, 2012, Plaintiff asserted that his First Amendment rights were being violated because he was housed in ISU and he was not allowed to "pray together and [have] fellowship with other [Christian] believers." CCF Defendants' Motion, Ex. 3, at 69 (labeled Grievance Records-pg. 68). In response to this grievance CCF Grievance Coordinator Jones advised Plaintiff that his grievance was denied because his "current placement in the ISU program disallows your attendance to these group functions. [CCF] is not denying your right to practice or study your religion in your own cell. Out of time to file grievance from time of knowing about this incident." Id. at 70 (labeled Grievance Records-pg. 69). The grievance response also explains to Plaintiff that pursuant to "Policy 10-102 offenders in ISU will have access to religious services. The Chaplain will visit the unit at least once per week. Offenders may request additional visits from Chaplain through the Request to staff." Id.

Plaintiff has not demonstrated that he appealed this grievance response, and therefore Plaintiff did not exhaust available administrative remedies concerning his Free Exercise claim. The CCF Defendants' Motion to Dismiss Plaintiff's seventh claim of a denial of his First Amendment rights should be granted on this basis.

IX. Count Eight-Equal Protection

Plaintiff alleges in his eighth and final count that Defendant Hilligoss deprived Plaintiff of his right to equal protection by promulgating "discriminatory practices" in the ISU "concerning priviledges [sic], haircuts, property, commissary [sic] food purchases, etc...." Plaintiff's Amended Complaint, at 3-H.

The Equal Protection Clause guarantees that "all persons similarly situated shall be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "[A]bsent an allegation of a suspect classification, [judicial] review of prison officials' differing treatment of various inmates is quite deferential: in order to withstand an equal protection challenge, those classifications must be reasonably related to a legitimate penological purpose." Gwinn v. Awmiller, 354 F.3d 1211, 1228 (10th Cir.2004)(citing Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir.1994)). See Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir.1995)(stating that "[w]hen the plaintiff is not a member of a protected class and does not assert a fundamental right, we determine only whether government classifications have a rational basis").

The CCF Defendants assert that Plaintiff failed to exhaust his available administrative remedies concerning this claim. In his responsive pleadings Plaintiff does not point to any specific grievance or grievance appeal concerning this equal protection claim. In fact, Plaintiff does not address this claim at all. Consequently, Plaintiff has not shown that he exhausted available administrative remedies concerning his equal protection claim in his seventh count of the Amended Complaint. Nor has Plaintiff shown that prison officials obstructed his ability to exhaust available administrative remedies concerning this claim. Therefore, the CCF Defendants' Motion to Dismiss Plaintiff's seventh claim of an equal protection violation should be granted.

RECOMMENDATION

*17 Based on the foregoing findings, it is recommended that the Motion to Dismiss by Defendants Crane, Hall, Hilligoss, Sebenick, and Shannon be GRANTED as to Plaintiff's claims against these Defendants in counts one and two of the Amended Complaint and that the claims in counts one and two be DISMISSED without prejudice. It is further recommended that Defendants Crane, Hall, Hilligoss, Sebenick, and Shannon's Motion to Dismiss be GRANTED as to Plaintiff's claims against these Defendants in counts three and five through eight and that these claims against Defendants Crane, Hall, Hilligoss, Sebenick, and Shannon be DISMISSED without prejudice pursuant to 28 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. Finally, it is recommended that Defendant Pope's Motion for Summary Judgment be granted, and that judgment issue in favor of Defendant Pope and against the Plaintiff as to Plaintiff's claims against Defendant Pope.

Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by April 1st, 2013, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir.1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996)("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").

This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.

Scott L. Howard, Terre Haute, IN, pro se.

James Xavier Quinn, Colorado Attorney General's Office-Employment Law, Denver, CO, for Defendants.

ORDER ADOPTING AND AFFIRMING MAY 29, 2008 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE and JUNE 2, 2008 SUPPLEMENT TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINE M. ARGUELLO, District Judge.

*1 This matter is before the Court on the recommendations by the Magistrate Judge that Defendants' Motion to Dismiss (Doc. # 33), filed December 14, 2007 be granted.

Plaintiff has objected to this recommendation. In light of the objection, the Court has conducted the requisite de novo review of the issues, the recommendation and Plaintiff's objection. Based on this review, the Court has concluded that the Magistrate Judge's thorough and comprehensive analyses in its May 29, 2008 Recommendation and June 2, 2008 Supplement to Recommendation are correct. Accordingly,

IT IS ORDERED that the May 29, 2008 Recommendation of United States Magistrate Judge (Doc. # 69) is ACCEPTED and, for the reasons cited therein, Defendants' Motion to Dismiss (Doc. #33) is GRANTED. It is

FURTHER ORDERED that this complaint and civil action is DISMISSED.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, United States Magistrate Judge.

This civil action comes before the court on Defendants' Motion to Dismiss (filed December 14, 2007) (doc. # 33). Pursuant to the Order of Reference dated July 30, 2007 (doc. # 10) and the memorandum dated December 17, 2007 (doc. # 35), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, Mr. Howard's Response (filed March 14, 2008) (doc. # 54), Defendants' Reply (filed April 1, 2008) (doc. # 56), Mr. Howard's Amended Response (filed April 14, 2008) (doc. # 61), Defendants' Reply to Amended Response (filed May 15, 2008) (doc. # 68), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Mr. Howard is an inmate of the Colorado Department of Corrections ("CDOC"), currently incarcerated at the United States Penitentiary in Terre Haute, Indiana. ( See doc. # 58 (noting change of address)). Mr. Howard's claims arise from events and circumstances at the Arkansas Valley Correctional Facility ("AVCF") between February 27, 2006 and October 6, 2006. (See Complaint (doc. # 5) at pp. 8, 14 of 22). Defendant Jaramillo was employed as a "Custody/Control" manager at AVCF. ( See Complaint (doc. # 5 at p. 2 of 22). Defendant Serena was employed as a "Housing Captain" at AVCF. (See id.). Defendant Salazar was employed as a "Housing Lieutenant" and Defendant Grebenc was employed as a "Housing Sergeant" at AVCF. (See id.).

Proceeding pro se, Mr. Howard brings his claims pursuant to 42 U.S.C. § 1983. (See Complaint (doc. # 5) at p. 4 of 22). Mr. Howard has brought 10 claims in which he repeatedly alleges: (1) violation of Colo.Rev.Stat. § 24-34-601, (2) violation of the equal protection clause of the Fourteenth Amendment, and (3) deliberate indifference to a substantial risk of serious harm in violation of the Eighth Amendment. ( See Complaint (doc. # 5) at pp. 6-7 of 22). Mr. Howard seeks injunctive relief, nominal damages, compensatory damages, and punitive damages. ( See Complaint (doc. # 5) at p. 18 of 20).

II. Standard of Review

*2 Defendants move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted.

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss may be granted if the court does not have subject matter jurisdiction over the matter. In addressing a jurisdictional challenge, the court need not presume all of the allegations contained in the complaint to be true, "but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts...." United States v. Rodriguez Aguirre, 264 F.3d 1195, 1204 (10th Cir.2001) (citation omitted).

Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." To withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The burden is on the plaintiff to frame "a complaint with enough factual matter (taken as true) to suggest" that he or she is entitled to relief. Twombly, 127 S.Ct. at 1965. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.

The court must construe Mr. Howard's Complaint liberally because he is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) ("[a] pro se litigant's pleadings are to be construed liberally") (citations omitted). However, the court cannot be a pro se litigant's advocate. Hall, 935 F.2d at 1110. A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). See also Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

III. Analysis

A. Liability of Defendants in their Official Capacities under § 1983

Mr. Howard has indicated that he is suing all of the Defendants in both their individual and official capacities. (See docs. #31 and # 36). To the extent that Mr. Howard is suing Defendants in their official capacities, he is actually attempting to impose liability on Defendants' employer, the CDOC. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (suit against a state official in his or her official capacity is treated as a suit against the state); Johnson v. Board of County Com'rs for County of Fremont, 85 F.3d 489, 493 (10th Cir.1996) ("an official capacity suit is only another way of pleading an action against an entity of which an officer is an agent") (internal quotation marks and citation omitted).

*3 The CDOC is considered an agency of the State of Colorado. See Colo.Rev.Stat. § 24-1-128.5. States and state officials sued in their official capacities are not "persons" within the meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Further, the Eleventh Amendment bars a suit for damages in federal court against a state or entities considered arms of the state. Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir.1993) (citations omitted). The Eleventh Amendment confers total immunity from suit, not merely a defense to liability. Ambus, 995 F.2d at 994 (citation omitted). To the extent that Mr. Howard seeks damages, his claims against Defendants in their official capacities are properly dismissed with prejudice.

B. Liability of Defendants in their Individual Capacities under § 1983

The Eleventh Amendment does not bar actions for damages against state officials in their individual capacities. Kentucky v. Graham, 473 U.S. 159, 164, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). To the extent that Mr. Howard is suing Defendants in their individual capacities, personal capacity suits pursuant to § 1983 seek to impose personal liability upon a government official for actions he or she takes under color of state law. Graham, 473 U.S. at 165-67.

Individual liability under § 1983, regardless of the particular constitutional theory, must be based upon personal responsibility. See Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir.1997) (individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation) (citation omitted); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (personal participation is an essential allegation in a civil rights action) (citation omitted); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976) ("Personal participation is an essential allegation in a § 1983 claim."). A defendant may not be held liable merely because of his or her supervisory position. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996). There must be an affirmative link between the alleged constitutional violation and the defendant's own participation or failure to supervise. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.1993). A plaintiff must both allege in the complaint and prove at trial an affirmative link between the alleged constitutional violation and a defendant's participation. See Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1157 (10th Cir.2001) (for § 1983 claim, affirmative link between the defendant's conduct and any constitutional violation "must be alleged in the complaint as well as proven at trial").

Defendants Jaramillo and Serena argue that Mr. Howard has failed to plead sufficient facts to demonstrate that they had any personal participation in or any supervisory liability for the alleged violations of his constitutional rights. The court agrees.

The only allegations against Defendants Jaramillo and Serena are that: (1) Mr. "Howard and Mr. Garcia submitted a written request to Jaramillo asking him to review the situation and allow them to share a double-bunked cell;" (2) "Mental Health Clinician James A. Steelman noted the incident and contacted Jaramillo who intervened and stopped Grebenc's move of Howard;" (3) "[o]n or about September 18, 2006, Serena met with Howard regarding the grievance... Serena then referred the matter to Salazar;" (4) "[o]n September 27, 2006, Serena did deny Howard's Step I grievance number AV06/07-101;" (5) "Jaramillo did deny Step II of grievance AV06/07-101 as filed;" and (6) "Jaramillo, Serena, and Salazar removed Howard from the AVCF general population on October 5, 2006, and initiated an immediate transfer to another facility." (See Complaint (doc. # 5) at pp. 11-14 of 22).

*4 To the extent that Mr. Howard alleges that Defendants Serena and Jaramillo became aware of constitutional violations against him through his administrative filings ( see Amended Response (doc. # 61) at p. 3 of 9; Complaint (doc. # 5) at pp. 19-21 of 22), they cannot be held liable for actions that occurred prior to their knowledge of such alleged actions. See McKee v. Heggy, 703 F.2d 479, 483 (10th Cir.1983) (an individual cannot be held liable in a section 1983 action unless he "participated or acquiesced" in an alleged constitutional violation). Further, without an allegation of direct responsibility for the alleged violations, Mr. Howard cannot hold Defendants Jaramillo and Serena liable for an alleged constitutional violation on the basis that they denied his grievance. See, e.g., Downing v. Clinton, 2006 WL 3054314, *15 (E.D.Wash.2006) (in granting motion to dismiss, held that defendant's receipt of grievances did not establish her personal participation in decisions relating to medical care); Johnson v. G.E.O./Lawton Correctional Facility, 2005 WL 2739212 (W.D.Okla.2005) (holding that plaintiff failed to state a claim for relief based upon a defendant's participation in the processing of a grievance; pro se plaintiff had not demonstrated the required "affirmative link" between the defendant and the underlying constitutional violation); Coates v. Sheahan, 1995 WL 430950, *2 (N.D.Ill.1995) (holding that grievances submitted to a supervisory official are insufficient to establish that official's onal participation in a constitutional violation).FN1

FN1 Copies of these unpublished cases are attached to this Recommendation.

Mr. Howard's allegations against Defendants Jaramillo and Serena do not identify specific actions these Defendants took that gave rise to any constitutional violation. The allegations that Mr. Howard and Mr. Garcia submitted a written request to Defendant Jaramillo and that Defendant Serena met with Howard regarding the grievance do not state a claim for a constitutional violation. Nor do the allegations that Defendant Jaramillo intervened and stopped a move of Howard and that Defendants "Jaramillo, Serena, and Salazar removed Howard from the AVCF general population on October 5, 2006, and initiated an immediate transfer to another facility, " actions that Mr. Howard desired, state a claim for any constitutional violation.

Other than conclusorily arguing that Defendants "Jaramillo and Serena actually knew of, approved of, and acquiesced in the violations" ( see doc. # 61 at p. 3 of 9), Mr. Howard does not allege any specific actions by Defendants Jaramillo or Serena that give rise to a constitutional violation. As Mr. Howard has not pled that Defendants Jaramillo and Serena caused or participated in the alleged constitutional violations, there is no basis for holding them individually liable under § 1983 and Defendants Jaramillo and Serena are properly dismissed from this civil action for lack of personal participation.

C. Eighth Amendment Claim

*5 Mr. Howard generally alleges in the Complaint that "defendants' actions equate to deliberate indifference to a known substantial risk of serious harm to his health and emotional wellbeing, in violation of the Eighth Amendment." (See Complaint (doc. # 5) at pp. 5-7 of 22; see also p. 15 of 22 ("prohibition against mixed-race cell assignments, did place [Howard] at greater risk of harm")). However, Mr. Howard has not argued in support of such a claim. ( See Amended Response (doc. # 61) at p. 2 of 9 ("aver[ring] that defendants' unwritten policy and actions equate [to] a violation of the Fourteenth Amendment and CRS § 24-34-601" and not mentioning an Eighth Amendment claim).

[I]t is well settled that the Eighth Amendment requires prison officials to provide humane conditions of confinement, which includes taking reasonable measures to guarantee the safety of the inmates, such as protecting inmates from violence at the hands of other prisoners. A prison official violates this right when the inmate is imprisoned under conditions posing an objectively substantial risk of serious harm, and the official acted with deliberate indifference to the inmate's health or safety. An official exhibits deliberate indifference when he was subjectively aware of the substantial risk posed by the inmate's circumstances and failed to take reasonable steps to ensure his safety.

( See "Order Concerning Magistrate Judge's Recommendation" (doc. # 106 in Civil Action No. 06-cv-00282-EWN-CBS, Howard v. Waide et al. ) at p. 17 (internal quotation marks and citations omitted)).

In describing the subjective component, the Court made clear 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. The subjective component is akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm. Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.

Id. at p. 15 (internal quotation marks and citations omitted).

Mr. Howard "was convicted of numerous Theft charges in various jurisdictions and for Federal tax code violations, " and "sentenced to a nine year term of imprisonment for his Colorado convictions." ( See Complaint (doc. # 5) at p. 8 of 22). "Throughout his entire incarceration within CDOC, Howard has been a target of the 2-11 Crew prison gang which is a white-supremacist security threat group with a well documented history of violence within CDOC... solely because he is a homosexual." ( See id.). Mr. Howard has been physically and sexually assaulted, "extorted, and threatened by members of the 2-11 Crew since December, 2004." ( See id.). "As a direct result of the attacks sustained, Howard was transferred to the AVCF in February 2006, for his protection from the gang's members." (See Complaint (doc. # 5) at p. 8 of 22).

*6 To the extent that Mr. Howard may be asserting an Eighth Amendment claim, he fails to allege a colorable claim. Mr. Howard has not adequately alleged that the Defendants were subjectively aware of a substantial risk posed to him or failed to take reasonable steps to ensure his safety. Mr. Howard alleges that upon his arrival at AVCF he "advised Salazar of his history with 2-11 Crew members as well as the attacks he sustained prior to arrival at the AVCF." ( See Complaint (doc. # 5) at p. 9 of 22). He has also alleged that he notified Intelligence Officer Lieutenant Lucero, Mental Health Supervisor Ybarra "to the circumstances surrounding his transfer." ( See id. at p. 8 of 22). Mr. Howard has not alleged that Defendants Jaramillo, Serena, or Grebenc were aware of the circumstances of his transfer to AVCF or the history of his treatment by gang members of the 2-11 Crew. Nor has Mr. Howard alleged that Defendant Salazar was aware of any substantial risk of serious harm to him at AVCF.

Mr. Howard's allegations do not suggest any imminent, substantial risk of harm to him. Soon after his arrival at AVCF Mr. Howard "realized that he was, in fact, surrounded by 2-11 Crew members. (See Complaint (doc. # 5) at p. 9 of 22). He alleges that he suffered generalized "anxiety/stress" and sought to change cells. (See id.). Mr. Howard alleges that he "suffered a panic attack" on one occasion when he found "known 2-11 Crew members lounging on [his] bunk and property box, watching his television." ( See Complaint (doc. # 5) at p. 10 of 22). According to his allegations, Mr. Howard's anxiety and panic attacks were caused by the mere presence of purported 2-11 Crew members, and not by any action taken against him. Mr. Howard alleges that his cellmates were targeted and "faced pressure" from 2-11 Crew members. ( See Complaint (doc. # 5) at pp. 10-11 of 22). Mr. Howard makes no allegations that 2-11 Crew members attempted to harm him.

Mr. Howard alleges only that his requests to change cells and to be housed with particular cellmates were denied. Mr. Howard alleges that Defendant Grebenc denied his specific requests to share a cell with inmate Holst and with inmate Garcia. (See id. at pp. 10, 11 of 22). Mr. Howard alleges that his further requests to share a cell with other non-Caucasion inmates were denied. (See id. at p. 11 of 22). Mr. Howard's grievances address the denial of his request to share a cell with a specific inmate, Anthony Garcia. ( See Complaint (doc. # 5) at pp. 19, 21 of 22). Mr. Howard's grievances indicated that based on past incidents that did not occur at AVCF, he does "not feel comfortable with white inmates" and is "unable to trust white inmates." ( See id.). Nowhere in his grievances does Mr. Howard indicate that he had been threatened at AVCF or was subject to any immediate substantial harm. A response to one of Mr. Howard's grievances indicates that his request to share a cell with inmate Garcia was denied "on a case by case basis" that "it was in the best interests of the offenders and the facility not to be housed together." (See Complaint (doc. # 5) at p. 19 of 22). There is simply no allegation that Mr. Howard suffered an objectively substantial risk of serious harm to his health or safety of which Defendants were subjectively aware.

*7 Ultimately, Mr. Howard reported a threat to his life, at which time Defendants "Jaramillo, Serena, and Salazar removed Howard from the AVCF general population on October 5, 2006, and initiated an immediate transfer to another facility." (See Complaint (doc. # 5) at p. 14 of 22). Mr. Howard alleges that immediately after he received a threat, Defendants responded by moving him. This allegation does not support a claim for an Eighth Amendment violation. Mr. Howard's Eighth Amendment claim is properly dismissed for failure to state a claim upon which relief can be granted.

D. Equal Protection Claim

Mr. Howard alleges that Defendants "enforced an unwritten policy that strictly prohibited inmates of different races from sharing a double-bunked cell." (See Complaint (doc. # 5) at pp. 4-7 of 22). Mr. Howard alleges that he was affected by this policy when his requests to change cells were denied. (See Complaint (doc. # 5) at pp. 10-13 of 22). Howard alleges that the "prohibition against mixed-race cell assignments, did subject him to invidious discrimination on the basis of his race." ( See Complaint (doc. # 5) at p. 15 of 22).

Discrimination between prisoners on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment. See Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) ("racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for the necessities of prison security and discipline.") (internal quotation marks and citation omitted). See also Johnson v. California, 543 U.S. 499, 515, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (where African-American inmate brought suit under § 1983 challenging prison policy of placing new or transferred inmates with cell mates of same race during initial evaluation, Supreme Court held that such practices are subject to strict scrutiny, without deciding whether policy violated Equal Protection Clause).

Even assuming the truth of Mr. Howard's allegations and applying strict scrutiny, prison officials have a compelling interest in protecting inmates from race-based violence, which can justify separating races in individual cells. Prison officials "have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline and good order in prisons and jails." Lee v. Washington, 390 U.S. 333, 333-34, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). "Without question, prison safety and security is a legitimate, indeed compelling, penological interest." Morrison v. Garraghty, 239 F.3d 648, 660 (4th Cir.2001) (citations omitted). See also Grutter v. Bollinger, 539 U.S. 306, 353, 123 S.Ct. 2325, 156 L.Ed.2d 304 (Thomas, J., concurring in part and dissenting in part) (citing Lee, 390 U.S. at 334 (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination)); Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees."); Pell v. Pecunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ("central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves"). Courts "may be expected to recognize the government's countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order." Cutter v. Wilkinson, 544 U.S. 709, 723 n. 11, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (citations omitted).

*8 Mr. Howard has not alleged that the cell assignments were not related to compelling security interests and nothing in the Complaint permits that inference. In light of Mr. Howard's allegation that Defendants Grebenc and/or Salazar made the cell assignment decisions, his allegation that Sergeant Rivas, Officer Cunningham, Officer Trujillo, Sergeant Larson, and Case Manager Martinez indicated "that mixed-race cell assignments don't happen' unless the inmate is Asian or Native American" ( see id. at pp. 8-9 of 22) are not sufficient to state an equal protection claim. All of Mr. Howard's allegations that Defendants Grebenc and Salazar enforced a segregated cell policy are associated with Mr. Howard's requests to share a cell with a particular inmate of his choosing. ( See Complaint (doc. # 5) at pp. 10, 11, 14 of 22; Response (doc. # 61) at pp. 1-2 ("His requests to share a cell with Inmates Kareme Holst and Anthony Garcia were denied solely because Mr. Holst and Mr. Garcia are African-American and Hispanic, respectively.")). Inmates have no right to preferable housing assignments. See Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) ("transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence"), overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Mr. Howard's complaints of racial segregation in cell assignments were answered with a denial that any such policy was applied. ( See Complaint (doc. # 5) at p. 10 of 22). While Mr. Howard has alleged that his requests for particular cellmates or cells were denied, he has not alleged that any other inmates' cell assignments were based only on racial criteria. Mr. Howard's subjective belief of racial discrimination is insufficient to raise an equal protection claim. Mr. Howard's demand to not be celled with any white inmates creates its own issue of racial segregation. The court concludes that Mr. Howard's allegations regarding cell assignment do not state an equal protection claim. See Baker v. Smith, 771 F.Supp. 1156, 1158 (D.Kan.1991) ("A complaint that contains only conclusory allegations of a deprivation of a constitutional right and thus fails to supply a sufficient factual basis to allow defendants to intelligently prepare a defense fails to state a cause of action and must be dismissed") (citations omitted). But see Perez v. Personnel Bd. of City of Chicago, 690 F.Supp. 670, 677 (N.D.Ill.1988) (to survive a motion to dismiss, plaintiff needed only to set forth sufficient facts to establish that strict scrutiny is warranted; it was for the defendants to raise in their answer the defense that the policy is necessary to serve a compelling state interest and to prove it on summary judgment or at trial).

E. Colo.Rev.Stat. § 24-34-601

Mr. Howard alleges that "[b]y using inmate race as the determinative factor in making cell/bunk assignments, defendants did violate C.R.S. XX-XX-XXX." (See Complaint (doc. # 5) at pp. 6-7 of 22).

*9 If the district court has dismissed all claims over which it had original jurisdiction, it may decline to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3). See also Estate of Harshman v. Jackson Hole Mountain Resort, 379 F.3d 1161, 1165 (10th Cir.2004) ("[F]ederal jurisdiction is not mandatory over pendent claims or parties."). Title 28 U.S.C. § 1367(c) "provides conditions where district courts may decline to exercise supplemental jurisdiction, and the Supreme Court repeatedly has determined that supplemental jurisdiction is not a matter of the litigants' right, but of judicial discretion." Harshman, 379 F.3d at 1165 (citation omitted).

Here, the court recommends dismissal of the claims over which it could have had original jurisdiction. The interests of judicial economy counsel against retaining supplemental jurisdiction over Mr. Howard's single remaining state law claim when his federal claims are dismissed at an early stage of the litigation. Further, principles of comity suggest that the Colorado County courts will be better suited to adjudicate Mr. Howard's claim raised under Colo.Rev.Stat. § 24-34-601. (See Colo.Rev.Stat. § 24-34-603 (2007 Supp.) (providing "[t]he county court in the county where the offense is committed shall have jurisdiction in all civil actions brought under this part 6...."). The court may properly decline to exercise supplemental jurisdiction over Mr. Howard's single remaining state law claim.

F. Qualified Immunity

Defendants argue that they are entitled to qualified immunity from Mr. Howard's claims. "The doctrine of qualified immunity provides that [w]hen government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mitchell, 80 F.3d at 1447 (internal quotation marks and citations omitted). Whether Defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir.2007), cert. denied, 552 U.S. 1181 , 128 S.Ct. 1229, 170 L.Ed.2d 62 (2008).

When [a defendant] asserts a defense of qualified immunity, the plaintiff bears a heavy two-part burden. Initially, the plaintiff must show the [defendant]'s conduct violated a constitutional right: A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendant]'s conduct violated a constitutional right? If the [defendant]'s conduct did not violate a constitutional right, the inquiry ends and the [defendant] is entitled to qualified immunity.

Wilder, 490 F.3d at 813 (internal quotation marks and citations omitted). See also Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (a court evaluating a claim of qualified immunity "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.") (citation omitted); Currier v. Doran, 242 F.3d 905, 917 (10th Cir.2001) ("Once a defendant raises the defense of qualified immunity in the context of a motion to dismiss, a court must first determine whether the plaintiff has asserted a violation of federal law.") (citationomitted).

*10 As the court has concluded in this Recommendation that Mr. Howard has failed to state a claim upon which relief can be granted, Defendants are entitled to qualified immunity. See Wilder, 490 F.3d at 815 (instructing district court on remand to enter judgment in favor of defendant on basis of qualified immunity, where plaintiff failed to carry his burden to show violation of a constitutional right).

G. Mr. Howard's Request for Injunctive Relief

Defendants argue that Mr. Howard's transfer from AVCF moots his request for preliminary and permanent injunctive relief. (See Complaint (doc. # 5) at p. 18 of 22). Mr. Howard has not specifically responded to Defendants' argument.

The court agrees that Mr. Howard's transfer from AVCF on or about October 6, 2007 (see doc. # 5 at p. 14 of 22; docs. # 15, # 16, # 26, # 43, # 57, # 58 (Notices of Change of Address)) moots his request for preliminary and permanent injunctive relief. See Smith v. Hundley, 190 F.3d 852, 855 (8th Cir.1999) (inmate's claims for declaratory and injunctive relief regarding prison conditions were moot when he was transferred to another facility and was no longer subject to those conditions) (citations omitted); Prins v. Coughlin, 76 F.3d 504, 506 (2nd Cir.1996) (transfer from a prison facility moots an action for injunctive and declaratory relief against the transferring facility because the inmate is no longer located there); Magee v. Waters, 810 F.2d 451, 452 (4th Cir.1987) (prisoner's transfer moots his request for injunctive relief against conditions of confinement in facility from which he was transferred); McKinnon v. Talladega County, Ala., 745 F.2d 1360, 1363 (11th Cir.1984) (prisoner's transfer to a different jail moots his claim for declaratory and injunctive relief even when prisoner argues that "there is no assurance that he will not be returned to the [first] jail"). As there is no reasonable expectation that Mr. Howard will be subjected to the challenged conduct again, this is not the type of claim to which an exception to the mootness doctrine applies. See Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (recognizing exception to the mootness doctrine where there is a "reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party") (internal quotation marks and citation omitted). See also Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.1983) ("The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.").

Accordingly, IT IS RECOMMENDED that Defendants' Motion to Dismiss (filed December 14, 2007) (doc. # 33) be GRANTED and this civil action be dismissed.

Advisement to the Parties

Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Property, 73 F.3d at 1059-60 (a party's objections to the Magistrate Judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).

*742 Ramanand Persaud, Fort Dix, NJ, pro se.

Robert A. Bradford, Asst. U.S. Attorney, Office of the United States Attorney, Glen D. Huff, Foliart, Huff, Ottoway & Bottom, Oklahoma City, OK, for Defendants-Appellees.

Before KELLY, McKAY, and LUCERO, Circuit Judges.FN*

FN* After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

ORDER AND JUDGMENTFN**

FN** 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.

PAUL KELLY, JR., Circuit Judge.

**1 Ramanand Persaud, a federal inmate appearing pro se, appeals from the district court's grant of summary judgment in favor of defendants, John Doe, T. Butt, FN1 Tom F. Goforth, L. Walker, T. Kelso, C. Williams, E. Barby, J. Parker, and the United States of America. On February 19, 2004, federal authorities transferred Mr. Persaud from a Federal Correctional Institute ("FCI") in Elkton, Ohio ("FCI Elkton") to an FCI in Schuykill, Pennsylvania ("FCI Schuykill"). En route, Mr. Persaud was housed temporarily for nearly two months at the Federal Transfer Center at Oklahoma City, Oklahoma ("FTC OKC"). Mr. Persaud claims that during transfer defendant Doe's actions, or lack thereof, caused injury to his left ankle and that he subsequently received inadequate medical treatment upon arrival at FTC OKC.

FN1 In the caption to this case, Ms. Butt is referred as Ms. Butts. Seeing as the defendants' submissions consistently refer to her as Ms. Butt, however, we will do the same.

As a result, Mr. Persaud brought an action against defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1), alleging that: during his transfer between federal prisons, defendants secured his legs using metal ankle cuffs, rather than flexicuffs, as allegedly required in his medical records; the metal ankle cuffs caused severe pain and bleeding because they rubbed against steel screws previously surgically inserted in his left ankle; and that defendants were deliberately indifferent to his medical needs during this time. The district court referred the matter to a magistrate judge and, after resolving Mr. Persaud's objections to the magistrate's report and recommendation, granted summary judgment to defendants. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

We review a district court's grant of summary judgment de novo, applying the same standards as the district court. Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 725 (10th Cir.2006). Summary judgment is appropriate only where there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

*743 I. Mr. Persaud's Bivens claims against Defendants Butt and Goforth

Mr. Persaud's Bivens claims against Defendants Butt and Goforth allege that both defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. At the time of Mr. Persaud's transfer, Ms. Butt was the associate warden at FTC OKC and Dr. Goforth was the Clinical Director of the medical clinic at OKC. Both Ms. Butt and Dr. Goforth argued below that they were entitled to summary judgment because Mr. Persaud failed to bring forth sufficient evidence that they were directly or personally involved in any decisions about Mr. Persaud's medical care, and the district court agreed.

In order to establish Bivens liability, a plaintiff is required to bring forth evidence that an individual defendant directly and personally participated in the purported constitutional violation. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir.2003), cert. denied, 543 U.S. 925 , 125 S.Ct. 344, 160 L.Ed.2d 222 (2004). As to Ms. Butt, Mr. Persaud alleges in his complaint that, nearly a month after he arrived at FTC OKC, Ms. Butt "personally saw and interviewed [Mr.] Persaud in regards to the leg injury, advising [Mr.] Persaud to contact [Dr.] Goforth." R. Doc. 1 at 14; see also id. at 8. Mr. Persaud also maintains that Ms. Butt claimed she would take steps to get him on a flight to Philadelphia as soon as possible. Id. at 8. For her part, Ms. Butt notes that Mr. Persaud's medical records do not indicate that he complained to her about an injury or that she referred him for medical care. R. Doc. 49, Ex. 2 at 1. Moreover, she has no memory of Mr. Persaud or of an inmate with the injury he describes. Id. Viewing the evidence in the light most favorable to Mr. Persaud, he has failed to create a genuine issue of material fact as to Ms. Butt's direct and personal involvement in any alleged deliberate indifference to his medical needs.

**2 The evidence only indicates that Ms. Butt, when presented with Mr. Persaud's complaint, attempted to help him (as she would any inmate) by informing him of the proper individual (Dr. Goforth) to contact within FTC OKC. After all, Ms. Butt is not a medical doctor and could not have treated Mr. Persaud herself. Also, the fact that Ms. Butt may have promised to transport him to Philadelphia in an expeditious manner does not constitute deliberate indifference given that he was seen at FTC OKC. As a result, the district court correctly determined that Ms. Butt is entitled to judgment as a matter of law.

The only concrete allegation Mr. Persaud asserts against Dr. Goforth is that the doctor "personally reviewed oral statements and written documentation in regards to [Mr.] Persaud's leg injury." R. Doc. 1 at 17; see also Aplt. Br. at 20. Dr. Goforth claims that "[t]he medical records indicate that I never saw or examined plaintiff while he was at the FTC." R. Doc. 49 Ex. 1 at 2. The doctor also claims that Ms. Butt never mentioned Mr. Persaud, let alone referred Mr. Persaud to him. Id. Taking Mr. Persaud's allegation at face value, the evidence indicates only that Dr. Goforth reviewed Mr. Persaud's medical file (and later expressed the opinion that the treatment received by Mr. Persaud was within the applicable standard of care, i.e. non-negligent). Id. This is insufficient, as a matter of law, to directly and personally implicate Dr. Goforth in the alleged deliberate indifference to Mr. Persaud's medical needs, and Dr. Goforth was entitled to summary judgment.

II. Mr. Persaud's Bivens claims against defendants Barby, Kelso, Parker and Walker

Mr. Persaud also claims that defendants Barby, Kelso, Parker and Walker were *744 deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.FN2 The government sought summary judgment on the grounds that during his stay at FTC OKC, Mr. Persaud was seen five times by medical personnel for various complaints, and was treated appropriately, particularly given that he did not mention the problem during some of those visits. The government also maintained that his problem was caused not by the metal ankle cuffs, but rather by his increase in work, which aggravated a preexisting injury which had been treated with surgical screws to stabilize the bone. Finally, the government maintains that in May 2004, Mr. Persaud had successful surgery to remove the loose surgical screws from his left ankle. The district court granted summary judgment to these defendants on the ground that Mr. Persaud "failed to point to any evidence of deliberate indifference by these Defendants of a serious health risk to [Mr. Persaud] or evidence which creates a genuine issue for trial." R. Doc. 86 at 2.

FN2 In his appellate brief, Mr. Persaud also argues that Sandra J. Craiger, a physician's assistant at FTC OKC, was also deliberately indifferent to his medical needs. See Aplt. Br. at 8-9. Ms. Craiger, however, has not been named as a defendant in this action.

The Eighth Amendment creates an obligation on the part of prison officials to provide adequate health care to inmates. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This does not mean, however, that a mere complaint that a physician has been negligent in diagnosing or treating a medical condition states a valid claim of medical mistreatment under the Eighth Amendment. Id. at 106, 97 S.Ct. 285. Rather, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. This standard is met when (1) there is a medical need "that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention, " Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000), and (2) a prison official "knows of and disregards an excessive risk to inmate health or safety, " Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

**3 On February 23, 2004, four days after Mr. Persaud arrived at FTC OKC, defendant Barby, an advanced registered nurse practitioner, treated Mr. Persaud. This was the one and only time Mr. Barby treated Mr. Persaud. While Mr. Persaud maintains that he informed the medical staff at FTC OKC of his ankle pain during each of his medical checkups, the medical records do not bear this out. Mr. Persaud's medical chart for the February 23 checkup with Mr. Barby does not indicate that Mr. Persaud complained of ankle pain. Rather, the chart indicates only that Mr. Persaud was provided with an over-the-counter antihistamine. R. Doc. 39 Ex. 2 at 3. Because Mr. Persaud has brought forth no evidence, other than conjecture, to indicate that Mr. Barby knew of Mr. Persaud's ankle pain, summary judgment in Mr. Barby's favor was appropriate.

Ms. Kelso, also an advanced registered nurse practitioner employed at FTC OKC, saw Mr. Persaud on two occasions-February 26, 2004 and March 2, 2004. Mr. Persaud's medical record indicates that Mr. Persaud, again, did not complain of ankle pain during his visit with Ms. Kelso on February 26. Instead, he complained of athlete's foot and was prescribed an antifungal cream. Id. Mr. Persaud's first complaint to FTC OKC staff regarding ankle pain occurred during his March 2 visit with Ms. Kelso. See id. *745 As to that visit, Ms. Kelso states that "[u]pon examination, I found the pedal pulse to be normal. No deformity was evident and the skin was intact (no broken skin)." R. Doc. 48 Ex. 3 at 1.FN3 In response to his complaint, Ms. Kelso prescribed Mr. Persaud over-the-counter pain medication and wrapped the ankle. R. Doc. 39 Ex. 2 at 3. Based on the foregoing, no reasonable jury could find that Ms. Kelso was deliberately indifferent to Mr. Persaud's medical needs. When informed of Mr. Persaud's ankle pain, Ms. Kelso responded with treatment-though Mr. Persaud disputes the efficacy of that treatment, he cannot establish deliberate indifference. Accordingly, the district court properly entered summary judgment for Ms. Kelso.

FN3 A week later, on March 9, 2004, in a visit with defendant C. Williams, Mr. Persaud rated the pain he was experiencing in his ankle, on a scale of one through ten, as a four. R. Doc. 39 Ex. 2 at 3.

Ms. Parker, an advanced registered nurse practitioner employed at FTC OKC as an independent contractor, saw Mr. Persaud on two occasions. During the first visit, on March 18, 2004, Ms. Parker notes that "[Mr. Persaud] did not complain of or present symptoms consistent with significant ankle pain." R. Doc. 53 Ex. A at 2. Mr. Persaud's medical records indicate that, nonetheless, Ms. Parker, consistent with prison policy, prescribed Mr. Persaud an over-the-counter pain medication. R. Doc. 39 Ex. 2 at 4. The medical records show that during Mr. Persaud's second visit with Ms. Parker, on March 23, 2004, Mr. Persaud did not complain of ankle pain, and was prescribed antifungal cream for athlete's foot. Id. Viewing the evidence in the light most favorable to Mr. Persaud, it appears that Ms. Parker cannot be deemed deliberately indifferent and was thus properly granted summary judgment.

**4 Finally, defendant Walker, a physician's assistant with the Bureau of Prisons, treated Mr. Persaud on March 26, 2004. This was the last time Mr. Persaud was treated at FTC OKC. Mr. Walker's notes in the medical records pertaining to Mr. Persaud's March 26 checkup are devoid of any mention of ankle pain. See R. Doc. 39 Ex. 2 at 4; see also R. Doc. 48 Ex. 4 at 1. Rather, according to Mr. Walker, he examined Mr. Persaud and prescribed him antibiotic ointment for chapped lips or skin. R. Doc. 48 Ex. 4 at 1; see also R. Doc. 39 Ex. 2 at 4. Mr. Persaud has brought forth absolutely no evidence, other than his own uncorroborated allegations, that Mr. Walker was even aware that Mr. Persaud was suffering ankle pain. And this lack of evidence as to awareness is fatal to Mr. Persaud's deliberate indifference claim against Mr. Walker.

III. Mr. Persaud's claims against defendants Doe and Williams.

Mr. Persaud also pressed deliberate indifference claims against John Doe, an unknown release and delivery officer at FCI Elkton, and C. Williams, a member of the medical staff at FTC OKC. The district court dismissed these claims without prejudice for failure to timely and properly effect service of process. See R. Doc. 86 at 4. Because Mr. Persaud's appellate brief makes no mention of the district court's dismissal as to these claims and does not argue why the district court may have been in error, the district court's dismissal of these claims is affirmed. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.1998) ("Arguments inadequately briefed in the opening brief are waived...."); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994) (observing *746 that appellant's pro se status does not excuse him from "comply[ing] with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure"); Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990) (holding issue not argued in appellate brief is waived).

IV. Mr. Persaud's FTCA claims against the United States of America

Like the district court, we liberally construe Mr. Persaud's complaint to allege two FTCA claims against the United States: (1) negligence based on an unknown release and delivery officer's failure to use flexicuffs, instead of metal cuffs, on Mr. Persaud's ankles during transport, and (2) negligence based on the failure of the FTC OKC medical staff to properly treat Mr. Persaud's alleged ankle injury.

The "test established by the Tort Claims Act for determining the United States' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred." Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). Negligence, of course, is a recognized cause of action in Oklahoma, requiring a plaintiff to show "(1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure properly to exercise or perform that duty, and (3) an injury to plaintiff proximately caused by the defendant's breach of that duty." Akin v. Missouri Pac. R.R. Co., 977 P.2d 1040, 1054 (Okla.1998).

**5 As noted, Mr. Persaud first claims that the United States should be held liable because its employee, the unknown release and delivery officer, failed to restrain Mr. Persaud's ankles with flexicuffs during transport. Mr. Persaud argues that, at the time of transport, there existed a medical directive requesting that prison personnel use flexicuffs on his ankles, and that the release and delivery officer was negligent in denying "reasonable requests to follow medically directed conduct." R. Doc. 1 at 10. While Mr. Persaud is correct that, at one time, there existed a Medical Report of Duty Status ("Report") that requested prison officials to use flexicuffs, that Report expired on December 3, 2003. See R. Doc. 39 Ex. 2 at 25. The existence of that Report demonstrates that Mr. Persaud was more than capable of informing medical personnel as to his ankle pain and that, when appropriate, the staff would recommend the use of flexicuffs. No other report in Mr. Persaud's medical file, however, requests that flexicuffs be used. See id. at 26-32. In fact, the form filled out exclusively for the purpose of Mr. Persaud's transfer between FCI Elkton and FCI Schuykill indicates no medical condition whatsoever. See id. at 31. The logical conclusion, therefore, is that Mr. Persaud failed to inform the medical staff at FCI Elkton that he had an ankle condition or that he did indeed inform them but they either disregarded the information or concluded that his condition was not so severe as to merit a recommendation of flexicuffs. Mr. Persaud has not brought suit, however, against the United States based on any purported negligence of the medical staff at FCI Elkton. Rather, he bases his claim on the actions of an officer involved in his transfer, but considering the lack of an unexpired recommendation or requirement of flexicuffs in Mr. Persaud's medical files at the time of transfer, there is no evidence that the release and delivery officer failed to take a medically directed action. As such, the basis for Mr. Persaud's first negligence claim against the United States fails.

Mr. Persaud also asserts a negligence claim against the United States based on an alleged failure of the medical staff at FTC OKC to properly treat his *747 ankle wounds. In Oklahoma, the elements of a medical malpractice claim are identical to those in any other negligence claim. See Roberson v. Jeffrey M. Waltner, M.D., Inc., 108 P.3d 567, 569 (Okla.Civ.App.2005). Additionally, "in all but the extraordinary medical malpractice case, the plaintiff has the burden of producing expert testimony to support a prima facie case of negligence." Id. This is not an "extraordinary medical malpractice case, " and because Mr. Persaud has failed to present any expert evidence, his second basis for a negligence claim against the United States similarly fails. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir.2004) (concluding that "the Colorado review statute is applicable to professional negligence claims brought against the United States under the FTCA" and dismissing the plaintiff's FTCA claim for failure to file a certificate of review).

V. Mr. Persaud's Motion for Sanctions

**6 Mr. Persaud argues that the district court erred in failing to sanction defendants as a result of their alleged failure to turn over certain requested documents. We review for an abuse of discretion the district court's ruling rejecting Mr. Persaud's motion for sanctions. See, e.g., Augustine v. United States, 810 F.2d 991, 996 (10th Cir.1987) ("The refusal to impose sanctions is solely within the discretion of the trial court, to be reversed only when that discretion is abused."). It appears that Mr. Persaud's primary basis for sanctions is defendants' purported failure to turn over an expired "Duty Status Report" along with "all documents regarding [his] transfer to [FCI] Schuykill...." Aplt. Br. at 21-22. Mr. Persaud, however, was given a copy of a special report, compiled specifically for this litigation by the Bureau of Prisons, which contains numerous medical records relating to Mr. Persaud's transfer to FCI Schuykill and his subsequent medical care. Among the medical records contained within the special report was the expired Medical Duty Status Report. See R. Doc. 39 Ex. 2 at 25. Mr. Persaud also fails to indicate what documents relating to his transfer to FCI Schuykill defendants have failed to hand over. Thus, the district court did not abuse its discretion in denying Mr. Persaud's motion for sanctions.

AFFIRMED. We grant Mr. Persaud IFP status, and remind him of his continuing obligation to make partial payments until the filing fee is paid.

Charles Luttrell, Leavenworth, KS, pro se.

ORDER

SAM A. CROW, Senior District Judge.

*1 This civil rights complaint was filed pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983 by an inmate of the Corrections Corporation of America (CCA) facility in Leavenworth, Kansas. Plaintiff names as defendants "CCA" and "John & / or Jane Does" to "be named in an Amended Complaint after initial discovery." The court finds this complaint is deficient in several respects.

As supporting facts, plaintiff alleges as follows. He was incarcerated at the CCA from February 12, 2010, through March 4, 2010, and from April 22, 2010, to the present. He has medical conditions, which he lists as cancer; hip, back and pelvic pain from fractures suffered in an accident; as well as bi-polar disorder and "ADD". He has been prescribed medication and treatment by Dr. Groete and Dr. McCandless, but it has been denied. He has been given the wrong medication and wrong dosage, and has been placed in isolation to receive pain medication. He had a tumor surgically removed, but could not "get fresh bandages resulting in severe infection". He "caught MSRA". He was denied glasses for over 10 weeks causing severe head and eye aches.

Mr. Luttrell asserts that he is being subjected to cruel and unusual punishment, and that "CCA" committed medical malpractice and negligence, and violated the Kansas ConstitutionFN1. He also cites "the Kansas Common Law Tort Claims".

FN1 Claims of medical malpractice, negligence and violations of state laws must be litigated in state, not federal, court.

In addition, plaintiff claims his legal mail is being tampered with, and his "commissary" including "basic hygiene supplies" are being withheld. He asserts that this also amounts to cruel and unusual punishment and punishment without due process.

Finally, plaintiff generally claims that "CCA" disregards administrative remedies to the point that they are futile, and retaliates when the grievance procedure is used. He asserts that his right to petition the government is being denied.

Mr. Luttrell seeks a "restraining order" and preliminary and permanent injunctive relief, as well as damages plus costs.

Plaintiff has not filed a motion for preliminary injunction and has not alleged any facts to establish those factors which must be shown in order for him to be entitled to extraordinary preliminary relief. The court will not grant such relief unless an adequate motion for preliminary injunction is filed.

APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES

At the outset the court informs plaintiff that the fee for filing a civil rights complaint is $350.00. He has filed an Application to Proceed Without Prepayment of Fees; however, he is forewarned that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without prepayment of fees will not relieve him of the obligation to pay the full amount of the filing fee. Instead, it entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2)FN2. Furthermore, § 1915 requires that a prisoner seeking to bring a civil action without prepayment of fees submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing" of the action "obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2). In addition, once the court receives plaintiff's financial information, it may assess an initial partial filing fee that must be submitted before this action may proceed.

FN2 Pursuant to § 1915(b)(2), plaintiff is currently confined may be of the prior month's income each time ten dollars ($10.00) until the filing the Finance Office of the facility where authorized to collect twenty percent (20%) the amount in plaintiff's account exceeds fee has been paid in full.

*2 Plaintiff has not provided financial information in an inmate account statement from each place in which he was incarcerated for the preceding six-month period. His conclusory statement on a sheet with his account balance that "staff here refuse to provide" a better statement is not sufficient given that numerous other inmates have obtained and provided this information. This action may not proceed unless and until plaintiff provides the financial information required by federal law or makes an adequate showing that he cannot provide this information due to circumstances beyond his control. To make the latter showing, he must submit documentation or summaries of his efforts, including names, dates, and content of his requests to particular staff and of any denials, to obtain the requisite financial information. He will be given time to do so, and is forewarned that if he fails to comply with the provisions of § 1915 in the time allotted, this action may be dismissed without further notice.

SCREENING

Because Mr. Luttrell is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A (a) and (b). Having screened all materials filed, the court finds the complaint is subject to being dismissed for the following reasons.

FAILURE TO NAME PROPER DEFENDANT AND TO STATE SUFFICIENT FACTS

In order to state a valid claim under either § 1331 or § 1983, a plaintiff must name the person or persons who actually participated in the violation of his constitutional rights and allege sufficient facts showing that the acts or omissions of that person amounted to a federal constitutional violation. A pro se complaint must be given a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, conclusory allegations are not sufficient to state a claim; and the court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997). The only defendant named by plaintiff is "CCA". "CCA" is a private corporation rather than a "person", and is not a proper defendant in this suit for money damages and injunctive relief.

In order to recover on claims of denial of medical treatment, plaintiff must name as defendant the person or persons who actually denied him prescribed medication and necessary treatment. In addition, he must allege facts showing the personal participation of each person named as defendant by describing the acts or omissions of each individual defendant including the dates and times of each incident, the medical request or symptom involved, and other facts showing how the acts of each defendant violated plaintiff's federal constitutional rights. To do this now, he must file an "Amended Complaint" in which all defendants are named in the caption.FN3

FN3 This must be submitted on forms provided by the court, and plaintiff must write the case number of this action and "Amended Complaint" at the top of the first page of the form. In addition, plaintiff may not simply refer to the original complaint, but must fully answer all questions on the "Amended Complaint" and set forth therein all claims and supporting facts in the "Amended Complaint." Once an Amended Complaint is filed, the original complaint is no longer considered. Thus, any claims or allegations not made in the "Amended Complaint" will not be before the court.

*3 Plaintiff's claims of the withholding of hygiene supplies and commissary items and mail tampering also fail to name a proper defendant and show his or her actual participation, and do not include dates and circumstances. Moreover, these claims are not shown to be properly joined with his claims of denial of medical treatment. Plaintiff is given the opportunity in his "Amended Complaint" to allege facts showing that joinder of these claims is proper and to cure the deficiencies in these claims, or they shall be dismissed.

As noted, plaintiff is given time to file an "Amended Complaint" curing the deficiencies in his complaint. If he fails to comply with this Order within the time allotted, this action may be dismissed without further notice.

FAILURE TO SHOW ADMINISTRATIVE REMEDIES ARE FUTILE

Plaintiff is required to exhaust all available administrative remedies on all his claims prior to bringing an action in federal court. He states that he has not fully exhausted such remedies. His conclusory statements that the CCA disregards grievances and retaliates for them are not supported by any facts whatsoever. They are therefore not only insufficient to state a federal constitutional claimFN4, but are also insufficient to excuse the exhaustion prerequisite on all his claims in this case. He must provide the court with exhibits of his grievances and any administrative responses showing that he has attempted to exhaust administrative remedies on each of the claims he raises in his complaint, or provide the dates and summarize the contents of each grievance, name the person each grievance was addressed to, and name the person who responded, as well as the substance of each response. He also must describe any effort he made to continue to the next level if any grievance was not addressed in a timely fashion, or to appeal any denial.

FN4 Moreover, there is no independent federal constitutional right to a prison grievance process. An inmate does have a right of access to the courts, but to show denial of this right he must demonstrate actual damage. That is, he must show that a non-frivolous case of his was impeded by acts of defendants.

Plaintiff will be given time to show full exhaustion of administrative remedies or to provide facts proving that the process is futile. If he fails to make this showing within the allotted time, this action may be dismissed without further notice.

IT IS THEREFORE ORDERED that plaintiff is granted twenty (20) days in which to satisfy the statutory requirement that he provide particular financial information to support his motion to proceed without prepayment of fees, or this action will be dismissed.

IT IS FURTHER ORDERED that within the same twenty-day period, plaintiff is required to file an "Amended Complaint" that cures the deficiencies in his original complaint.

IT IS FURTHER ORDERED that within the same twenty-day period, plaintiff must provide facts or exhibits showing cause why this action should not be dismissed for failure to exhaust administrative remedies on all his claims.

The clerk is directed to send plaintiff § 1331 forms for use in filing an "Amended Complaint."

IT IS SO ORDERED.

Michelle R. Burrows, Michelle R. Burrows, PC, Sara K. Staggs, Law Office of Michelle Burrows, Portland, OR, for Plaintiff.

Katharine Von Ter Stegge, Jenny M. Morf, Portland, OR, for Defendants.

FINDINGS AND RECOMMENDATION

STEWART, United States Magistrate Judge:

*1 In connection to his employment at the Multnomah County Sheriff's Office, plaintiff, Brett Elliot ("Elliot"), filed a Complaint on December 21, 2011, against Multnomah County and five of its current and former employees: Sheriff Daniel Staton ("Staton"), Chief Deputy Tim Moore ("Moore"), Captain Monte Reiser ("Reiser"), Bob Skipper ("Skipper"), and Captain Carol Hasler ("Hasler"), as well as John Does 1-10. He alleges substantive and procedural due process claims pursuant to 42 USC § 1983 (First and Second Claims), conspiracy to deprive him of equal protection of the law pursuant to 42 USC § 1985 (Third Claim), whistleblower retaliation in violation of ORS 659A.230 and 659A.199 (Fourth and Fifth Claims), and common law claim of intentional infliction of emotional distress ("IIED") (Sixth Claim).

This court has subject matter jurisdiction over the § 1983 and § 1985 claims pursuant to 28 USC §§ 1331 and 1343 and over the state law claims under 28 USC § 1367.

Defendants have filed a Motion to Dismiss all claims except the procedural due process claim (Second Claim) (docket # 14). At the hearing on the motion, Elliot voluntarily dismissed the Third and Sixth Claims (docket # 24). Therefore, the motion is directed only at the First, Fourth and Fifth Claims. For the reasons set forth below, that motion should be GRANTED in part and DENIED in part.

ALLEGATIONS

Elliot started his career with the Multnomah County Sheriff's Office ("MCSO") in 1985 and holds basic, intermediate, and advanced level certifications as a Corrections Officer and Executive as a Police Officer. Complaint, ¶ 16. In addition, he has completed over 2, 000 documented hours of job-related training, served as a subject matter expert in preparation of multiple promotion exams for Sergeants and Lieutenants, worked as a firearms instructor for several years, and participated in multiple state-wide task forces. Id. He was promoted to Law Enforcement Sergeant in 1997, Law Enforcement Lieutenant in 2000, and Law Enforcement Captain in 2002. Id. He is a 2006 Federal Bureau of Investigation National Academy graduate which is an honor accorded to only 1% of law enforcement personnel. Id.

In 2006 Moore, Chief Deputy of the Corrections Division, sought a transfer to the Law Enforcement Division, although he had no state certification or experience. Id., ¶ 17. State certification requires completion of the Field Training Evaluation Program ("FTEP") and the Field Training Evaluation Manual, supervised by coaches. Id., ¶ 18.

Moore claimed that he completed the state certification requirements, but he falsified the documentation. Id., ¶ 19. He listed Elliot and other deputies as coaches on his Field Training Manual, but none of them had formally served as FTEP coaches or signed off on any portion of the Manual. Id. Reiser signed off on significant portions of Moore's manual without ever working in the field, in uniform, in a patrol district, or in a patrol cruiser with Moore. Id. On January 17, 2006, Sheriff Giusto appointed Moore as Chief Deputy of the Law Enforcement Division. Id., ¶ 18.

*2 In February 2009, Elliot reported Moore's falsification to Sheriff Skipper who had replaced Sheriff Giusto. Id., ¶ 20. At Sheriff Skipper's request, Elliot submitted a formal complaint with a mutually agreed-upon decision for an outside agency investigation. Id. Sheriff Skipper told Elliot that he would call the Superintendent and send the complaint to the Oregon State Police for investigation. Id. Sheriff Skipper, however, later changed his mind and did not follow through with the investigation. Id.

The Multnomah District Attorney's Office ("DA's office") then became aware of the complaint and requested an investigation. Id. The DA's office commenced a criminal investigation, but ultimately declined to prosecute. Id. Despite being under formal criminal investigation, neither Moore nor Reiser was placed on administrative leave. Id.

Sheriff Skipper wrote a letter to Elliot, accusing him of "lack of loyalty" and telling him to "stop spreading discontent." Id., ¶ 21. On April 10, 2009, Sheriff Skipper transferred Elliot from Law Enforcement Patrol Captain to the Court Services Section of the Corrections Division. Id. At the time of this transfer, Elliot was the senior Law Enforcement command member. Id. He was told that the transfer was not a punishment but he was being moved because he "talked." Id.

After Sheriff Skipper resigned in November 2009, Sheriff Staton became Interim Sheriff. Id., U 22. In December 2009, Sheriff Staton transferred Elliot back to Law Enforcement under the supervision of the Business Services Director. Id. Elliot was assigned to a cubicle in the Multnomah County building and performed very little law enforcement work. Id. Elliot was the only Captain in the 1, 000 member organization to be assigned to a cubicle instead of an office. Id. Moore also denied his request for an empty office in the building. Id. Elliot instead used a report writing room in the basement for months. Id. Elliot alleges that this move was retaliation and intended to force him to resign. Id.

In June 2010, Elliot celebrated 25 years of service to the MCSO. Id., ¶ 23. On June 23, 2010, at a meeting with Sheriff Staton and the Human Resources Director, Elliot was given a notice of demotion from Captain to Lieutenant. Id. Sheriff Staton explained that he had "too many captains, " even though the number of captains had not increased significantly in the recent time. Id. There were no other captain demotions. Id. Sheriff Staton added that he "wanted to remain neutral" in "that thing" Elliot "had going with Skipper and Moore." Id. He told Elliot that he had documents from three agencies reviewing "the situation" and that he could not do anything with it. Id.

In July 2010, Elliot received the formal Notice of Demotion. Id., ¶ 24. Sheriff Staton transferred him to the River Patrol Unit as a Lieutenant, even though Elliot had previously served the River Patrol Unit as a Captain. Id. The transfer and demotion included a pay reduction and a significantly lower potential maximum pay. Id. His classification was changed to "executive/unclassified service." Id. Unclassified employees are considered at will employees who may be terminated at any time, with or without cause. Id. According to the terms of the classification acceptance document, if Elliot did not accept this new classification, he would be considered "resigning his employment with Multnomah County." Id. Sheriff Staton also told Elliot that if he did not like the change, he could find employment elsewhere. Id. This was contrary to the common agency practice of a demotion not causing a reduction in pay. Id. After his demotion, Elliot was in fear for his employment and the sudden new potential to be dismissed without cause. Id. As a result, he suffered considerable anxiety and alarm. Id.

*3 In October 2010, Elliot's firearm was removed from the authorized firearm list. Id., ¶ 25. Elliot was the only MCSO employee who used that specific weapon and had used it for years without complaint. Id.

Since the time Elliot filed his complaint against Moore in February 2009, he has been treated differently by his superiors and his co-workers, including the defendants, and is subjected to daily negative treatment in a hostile environment. Id. He has also been isolated and outcast from his coworkers at the MCSO. Id.

On February 1, 2011, Moore became Undersheriff of the MCSO. Id., ¶ 26. Reiser was transferred to the Law Enforcement Division and made Patrol Captain on June 6, 2011. Id. Elliot is still assigned to the River Patrol Unit. Id. The retaliation and adverse treatment in the workplace continues. Id.

STANDARDS

In order to state a claim for relief, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief [.]" FRCP 8(a)(2). This standard "does not require detailed factual allegations, '" but does demand "more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id., quoting Twombly, 550 U.S. at 555. In order to survive a motion to dismiss for failure to state a claim pursuant to FRCP 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id., quoting Twombly, 550 U.S. at 570.

In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir1995). In addition to the allegations of the complaint, the court may also consider documents whose authenticity no party questions which are attached to, or incorporated by reference into, the complaint, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir2005). The court need not accept as true allegations in the complaint that contradict these sources. Lazy Y Ranch, Ltd., v. Behrens, 546 F.3d 580, 588 (9th Cir2008).

FINDINGS

I. Fourteenth Amendment: Substantive Due Process (First Claim)

The First Claim alleges that the defendants violated Elliot's substantive due process rights under the Fourteenth Amendment. A plaintiff may bring an action under § 1983 to redress violations of his "rights, privileges, or immunities secured by the Constitution and [federal] laws" by a person or entity, including a municipality, acting under the color of state law. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-95 (1978). To a state a Fourteenth Amendment claim, a plaintiff must show that a person acting under the color of state law deprived the plaintiff of the "rights, privileges, or immunities secured by the Constitution and laws of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994); Giba v. Cook, 232 F.Supp2d 1171, 1179 (D Or 2002). The substantive due process component of the Fourteenth Amendment protects against actions so arbitrary that they shock the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 846-47, (1998); see also Collins v. City of Harker Heights, 503 U.S. 115, 130 (1992). Negligent action is insufficient to establish a violation of substantive due process.

A. Qualified Immunity

*4 The individual defendants contend that they are entitled to qualified immunitr the alleged substantive due process violation.FN1 The doctrine of qualified immunity protects "government officials performing discretionary functions... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (982). Therefore, public officials are generally immune from civil liability unless their actions violate clearly established law because "a reasonably competent public official should know the law governing his conduct." Id. "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citation and internal quotations omitted).

FN1 At the hearing on the motion, Elliot's counsel clarified that the First Claim is not alleged against defendant Multnomah County.

The qualified immunity inquiry has traditionally involved two prongs. First, the court must decide whether the plaintiff has shown that a constitutional or statutory right has been violated. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the first step is satisfied, the court must then decide whether the right at issue was "clearly established" at the time of the alleged violation. Id. However, the Supreme Court recently held that courts may "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009).

B. Analysis

Elliot argues that he has a protected property right in his job and reputation and a liberty interest to be free from daily hostility and negative treatment in employment. He asserts that each right has been significantly impacted without due process by defendants' illegal and unconstitutional actions, including an arbitrary and capricious decision to transfer him to a lesser position because he "talked, " threats meant as punishment, demotion from captain to lieutenant after 25 years of service, and daily negative treatment. Complaint, ¶¶ 28-29. Defendants claim that they are entitled to qualified immunity because Elliot has alleged no substantial due process right that defendants violated, and even if he had, that right was not clearly established.

The Ninth Circuit has recognized a substantive due process right to pursue the occupation of one's choice. FDIC v. Henderson, 940 F.2d 465, 474 (9th Cir1991). In addition, "a substantive due process right to a non-defamed reputation exists only to the extent that the defamation is so severe as to interfere with the exercise of other fundamental freedoms such as... the right to engage in any of the common occupations of life.'" Halbig v. Navajo Cnty., Case No. CV 09-8124-PCT-DGC, 2010 WL 432335, at *6 (D Ariz Feb. 2, 2010), citing Beitzell v. Jeffrey, 643 F.2d 879, 877 (1st Cir1981).

*5 However, whether a person has a substantive due process right to his public employment is an unsettled question of law in the Ninth Circuit. Engquist v. Oregon Dep't of Agric., 478 F.3d 985, 996-97 (9th Cir2007). Most other circuits have rejected the claim that substantive due process protects the to a particular public employment position.FN2 However, one circuit has found such a right when "school authorities... make an arbitrary and capricious decision significantly affecting a tenured teacher's employment status." Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir1989). In that case, the plaintiff was barred from voting on degrees and serving on committees or as chair of a department, and a letter of censure was placed in her permanent file, which "undoubtedly affects her ability to secure other employment in the future.... it [is] obvious that this severe sanction substantially damaged plaintiff's property interest in her position." Id., at 25, n.6. Here, in contrast, Elliot did not receive official censure and nothing indicates that any of the defendants' actions will affect his ability to secure other employment.

FN2 See Local 342, Long Island Public Serv. Employees v. Town Bd. of Huntington, 31 F.3d 1191, 1196 (2nd Cir1994) ("We do not think, however, that simple, state-law contractual rights, without more, are worthy of substantive due process protection."); Nicholas v. Pa. State Univ., 227 F.3d 133, 142-43 (3rd Cir2000); Huang v. Board of Governors of Univ. of N.C. , 902 F.2d 1134, 1142 n.10 (4th Cir1990) (professor's interest in position in university department "is essentially a state law contract right, not a fundamental interest embodied in the Constitution"); Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th Cir1992) ("plaintiffs' state-created right to tenured employment lacks substantive due process protection"); Kauth v. Hartford Ins. Co. of Ill., 852 F.2d 951, 958 (7th Cir1988) ("In cases where the plaintiff complains that he has been unreasonably deprived of a statecreated property interest... the plaintiff has not stated a substantive due process claim."); Singleton v. Cecil, 176 F.3d 419, 425-26 (8th Cir1999) (en banc) ("a public employee's interest in continued employment with a governmental employer is not so fundamental' as to be protected by substantive due process"); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir1994) ( en banc ) ("employment rights are state-created rights and are not fundamental' rights created by the Constitution.").

Even if Elliot has a substantive due process right as alleged, defendants are entitled to qualified immunity because there is "no clearly established constitutional right to substantive due process protection of continued public employment." Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir1989). In that case, Lum was employed by the California Department of Justice, and after meeting with defendant employer on two previous occasions to discuss his job performance, he was placed on administrative leave and then terminated. He filed a claim alleging denial of both substantive and procedural due process violations, arguing that his termination was arbitrary, capricious, and pretextual. The Ninth Circuit granted summary judgment to the defendants, explaining: "In our view, the absence of binding precedent in this circuit plus the conflict between the circuits is sufficient, under the circumstances of this case, to undermine the clearly established nature of a right." Id. The law has not become any clearer since then.

Elliot attempts to distinguish Lum by arguing that his allegations are based on the irrational and arbitrary actions of defendants in their hostile treatment of him. In support of this theory, he cites several Supreme Court cases generally describing impermissible governmental restrictions on substantive due process rights. Each of these cases is easily distinguishable. In Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194 (1979), the Court found that the non-renewal of the teacher's contract due to her failure to earn required credits did not deprive her of her rights. In contrast, Elliot is still employed at MCSO. In DeShaney v. Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189, 196 (1989), the Court warned against government use of power as an instrument of oppression, but the issue concerned whether the state could violate due process rights by failing to protect an individual from private violence. Ultimately, the Court held it did not. In Collins v. City of Harker Heights, 503 U.S. 115, 127 n.10 (1991), the Court found that the city's failure to warn its employee about unknown hazards in the workplace did not violate due process rights. "The process' that the Constitution guarantees in connection with any deprivation of liberty thus includes a continuing obligation to satisfy certain minimal custodial standards. Petitioner cannot maintain, however, that the city deprived Collins of his liberty when it made, and he voluntarily accepted, an offer of employment." Id. at 127-28, citing DeShaney, 489 U.S. at 200.

*6 None of these cases advance Elliot's argument for a deprivation of his rights based on his demotion, transfers, and daily negative treatment. If termination of employment is not a clearly established right, as in Lum, then neither is a demotion, transfer or hostile workplace. Moreover, Elliot has alleged a claim based on the same conduct under state law for whistleblower retaliation. As explained in Collins, "[b]ecause the Due Process Clause does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society, we have previously rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law." 503 U.S. at 128 (citations and quotations omitted).

In sum, even if Elliot has a substantive due process right to a job free of hostility, that right has not been clearly established. Government officials who perform discretionary functions are protected from liability for civil damages as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 0800, 818 (1982). Thus, the First Claim should be dismissed with prejudice.

II. Whistleblowing Claims (Fourth and Fifth Claims)

The Fourth and Fifth Claims both allege violations of Oregon's Whistleblowing Act, ORS 659A.199-.236. The Fourth Claim alleges that defendants violated ORS 659A.199 which provides as follows:

It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.

ORS 659A.199(1).

The Fifth Claim alleges that defendants violated ORS 659A.230 which bars such adverse actions by an employer against an employee "for the reason that the employee has in good faith reported criminal activity by any person, has in good faith caused a complainant's information or complaint to be filed against any person, has in good faith cooperated with any law enforcement agency conducting a criminal investigation, has in good faith brought a civil proceeding against an employer or has testified in good faith at a civil proceeding or criminal trial."

To establish a prima facie case of retaliation under ORS 659A.199 and 659A.230, a plaintiff "must show 1) that [he] was engaging in a protected activity, 2) that [he] suffered an adverse employment decision, and 3) that there was a causal link between the protected activity and the adverse employment decision." E.g., Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir1986); Shultz v. Multnomah Cnty., No. 08-CV-886-BR, 2009 WL 1476689, at * 13 (D Or May 27, 2009).

A. Proper Defendant

*7 The Oregon Tort Claims Act ("OTCA"), ORS 30.260-.300, applies to claims against a public body's "officers, employees and agents acting within the scope of their employment or duties[.]" ORS 30.265(1) (2009). "The sole cause of action for any tort of officers, employees, or agents... shall be an action against the public body, " which is substituted as the sole defendant. Id

Here, Elliot has alleged both whistleblower retaliation claims against officers and employees of the MCSO, a political subdivision of the State of Oregon. Accordingly, as Elliot concedes, the State of Oregon must be substituted for all defendants on these tort claims, FN3 and the individually named defendants (Staton, Moore, Reiser, Skipper, Hasler, and John Does) should be dismissed from the tort claims, leaving Multnomah County as the proper defendant.

FN3 The 2011 Revised Statutes were not in effect until January 1, 2012. The 2011 revisions to the OTCA added subsection (4) which allows no actions against an officer, employee, or agent of a public body unless the plaintiff has claimed damages in excess of ORS 30.271-273 (2011). Therefore, even if Elliot alleged the requisite amount of damages, he cannot pursue tort claims against the individual defendants.

B. Statutes of Limitations

The OTCA has a mandatory notice provision: "No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section." ORS 30.275(1). Elliot was required to give this notice of his tort claims within 180 days after the alleged loss or injury. ORS 30.275(2)(b). "The pleading and proof of notice sufficient to satisfy the requirements of ORS 30.275 are a mandatory requirement and a condition precedent to recovery under the [OTCA]." Beaver v. Pelett, 299 Or 664, 671, 705 P.2d 1149, 1152 (1985) ( en banc ), quoting Urban Renewal Agency of City of Coos Bay v. Lackey, 275 Or 35, 40, 549 P.2d 657, 660 (1976) (brackets omitted). A complaint that fails to allege that notice was given in accordance with the OTCA is subject to dismissal. Brinkley v. Oregon Health Sciences Univ., 94 Or.App. 531, 537, 766 P.2d 1045, 1049 (1988), rev. denied 307 Or 571, 771 P.2d 1021 (1989).

The Complaint fails to allege that Elliot complied with the OTCA notice provision. However, in response to the Motion to Dismiss, his counsel has submitted a declaration containing OTCA Notices dated February 2, 2011, addressed to Sheriff Staton, Henry Lazenby, Jr. (Multnomah County Counsel), and Jeff Cogen (Multnomah County Chair). Burrows Decl., ¶¶ 2-4; Exs. 1-3. Although Elliot could easily amend his Complaint to allege compliance with the OTCA, defendants object to any such amendment as futile.

To the extent that the February 1, 2011 letters satisfy the OTCA notice requirements, they only give notice to events that occurred in the preceding 180 days (on or after August 5, 2010). Of the alleged injuries, only one, the removal of his firearm from the authorized firearm list which occurred in October 2010 (Complaint, ¶ 25), is within the 180-day period allowed under ORS 30.275(2)(b). His demotion from Captain to Lieutenant occurred in July 2010 ( id., ¶ 24); he was assigned to a cubicle in December 2009 ( id., ¶ 22); he was transferred to Court Services Section of the Correction Division in April 2009 ( id., ¶ 21); and he was threatened and accused of lack of loyalty during that same time period ( id.). Asserting that each of the alleged acts which occurred outside the 180-day period are discrete actions, defendants contend that they should be dismissed as untimely under the OTCA.

*8 In addition, a claim for an unlawful employment practice must be brought with one year. ORS 659A.875(1). The statute of limitations begins to run when "a reasonably prudent plaintiff perceives both the injury and the role that the defendant has played in that injury." T.R. v. Boy Scouts of Am., 344 Or 282, 291-92, 181 P.2d 758, 763 (2008). Because Elliot filed his Complaint on December 21, 2011, he may bring claims for acts occurring only after December 21, 2010. All of the alleged acts, except the delisting of the firearm, occurred before December 21, 2010. Thus, defendants assert that only the delisting of the firearm survives the one-year statute of limitations.

Elliot responds that all of the alleged acts comprise a continuing tort and should be reasonably construed as a systematic pattern of conduct. "[A]t the heart of the continuing tort idea is the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct." Davis v. Bostick, 282 Or 667, 671-72, 580 P.2d 544, 547 (1978). If Elliot is correct, then the Fourth and Fifth Claims are timely under both the OTCA and ORS 659A.875(1). In support of his continuing tort theory, he points to his allegations in paragraphs 25 and 26 that he has been treated differently, subjected to daily negative treatment in a hostile environment, been isolated and outcast from his co-workers, and subjected to ongoing retaliation and adverse treatment in the workplace.

In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), the Supreme Court substantially limited the continuing violation doctrine, holding that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."FN4 The Court went on to state that discriminatory or retaliatory acts such as "termination, failure to promote, denial of transfer, or refusal to hire" constitute discrete unlawful employment practices and cannot form the basis of a continuing tort. Id. The Ninth Circuit applied Morgan in Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir2003), noting that "each discrete discriminatory act starts a new clock for filing charges alleging that act" and that "[a] discriminatory practice, though it may extend over time and involve a series of related acts, remains divisible into a set of discrete acts, " such that legal action must be brought within the statutory limitations period. Id. at 1246-47; see also Lyons v. England, 307 F.3d 1092, 1107 (9th Cir2002). The fact that the alleged discrimination occurred over a period of time or had "successive effects" does not transform discrete acts into continuing violations. Dobie v. Liberty Homes, Inc., 53 Or.App. 366, 370, 632 P.2d 449, 451 (1981).

FN4 Although Morgan involved Title VII of the Civil Rights Act of 1964, the Supreme Court's analysis of the continuing violations doctrine is not limited to Title VII actions. It applies with equal force to the Rehabilitation Act and to actions arising under other civil rights laws. See, e.g., RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045 (9th Cir2002) (applying Morgan to § 1983 claims).

Hostile work environment claims, in contrast, are "different in kind from discrete acts" because they are based upon repeated conduct. Morgan, 536 U.S. at 115. The "unlawful employment practice" of a hostile work environment "cannot be said to occur on any particular day" because "a single act of harassment may not be actionable on its own." Id. Hostile work environment claims based on a course of conduct that cannot be broken down into "discrete, " actionable acts can be based on events that would otherwise be outside the statute of limitations. Id.

*9 In Griffin v. Tri-County Metro. Transp. Dist., 112 Or.App. 575, 580-82, 831 P.2d 42, 45-56 (1992), the continuing violation doctrine was applied in the employment context. Griffin sued Tri-Met for discrimination based on a physical impairment. Before trial, the defendant moved to strike allegations of facts that occurred more than 180 days prior to the date the plaintiff provided the OTCA notice. The court found that the three allegations which occurred outside of the 180-day notice period were "not the type of discrete, permanent events that would likely support separate actions for wrongful discrimination" and "can be reasonably construed as elements of a systematic pattern of conduct, aimed at causing plaintiff's eventual termination." Griffin, 112 Or.App. at 582-83, 831 P.2d at 46. The alleged acts involved a reprimand, a demand that plaintiff consent to an investigation of his health condition, and a threatened suspensionife plaintiff did not provide a list of his medications. Id. at 581, 831 P.2d at 46.

In contrast to the acts alleged in Griffin, the adverse actions alleged by Elliot relating to his transfers and demotion are the sort of "discrete, permanent events" similar to those alleged in Morgan which cannot form the basis of a continuing tort. Each of those acts would have been a sufficiently adverse action to support a separate claim by Elliot of an unlawful employment practice. Although Elliot alleges that the retaliation and adverse treatment continues, he has alleged no supporting facts of such treatment. His conclusory allegations in paragraphs 25 and 26 are not sufficient to meet the FRCP 8 pleading standards, which requires:

more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of"further factual enhancement."

Ashcroft, 556 at 678 (citations omitted).

Therefore, the Fourth and Fifth Claims should be dismissed as barred by the OTCA and statute of limitations with respect to all alleged acts except the delisting of the firearm. Since Elliot seeks the right to amend to allege more facts to support a continuing tort that will bring these claims within the statute of limitations period, the dismissal should be without prejudice and with leave to amend.

C. Delisting of Firearm

At this point, the only alleged adverse action admittedly within the statute of limitations is the delisting of Elliot's firearm. Defendants argue that the delisting alone is an insufficient retaliatory act to support either the Fourth or Fifth Claim.

For the purpose of proving retaliation under Title VII, an adverse action need not affect the terms or conditions of employment. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). However, it must be material and cause "an injury or harm, " meaning that it "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 67-68. Typically, "petty slights, minor annoyances, and simple lack of good manners" will not deter complaints by victims of discrimination. Id. at 68.

*10 The delisting of Elliot's firearm is more than a petty slight. He alleges that he is the only MCSO employee who used that specific weapon and had used the same weapon for years without complaint. Complaint, ¶ 25. However, he does not allege what injury or harm he suffered as a result that would dissuade a reasonable person from making a charge of discrimination. Nonetheless, this act occurred after a number of prior alleged retaliatory acts. Although the prior alleged retaliatory acts occurred outside the statute of limitations, they are relevant to show the materiality of later retaliatory acts taken within the statute of limitations. Considered in context, the delisting of Elliot's firearm may have been the straw that broke the camel's back. At this juncture, this court cannot definitively conclude that a reasonable person would be undeterred from making a complaint due to the delisting of a firearm. Therefore, defendants' motion should be denied as to this allegation.

III. Defendants Moore, Reiser, Hasler, and Skipper

Defendants move to dismiss all claims against Moore, Reiser and Hasler for failure to state a claim and against Skipper based on the statute of limitations. Given that the Fourth and Fifth Claims may be pursued only against Multnomah County, this argument pertains only to the constitutional claims.FN5

FN5 At the hearing on the motion, Elliot's counsel indicated that an additional constitutional claim may be alleged for violation of the First Amendment.

At the hearing on the motion, Elliot conceded that Hasler and Skipper should be dismissed. With respect to Moore and Reiser, Elliot requests permission to amend to add allegations concerning their past and ongoing retaliatory conduct. Defendants object to any amendments relating to Moore.

Public officials are not subject to suit under § 1983 unless they play an affirmative part in the alleged deprivation of constitutional rights. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir1987). The personal participation inquiry for individual liability for a plaintiff's civil rights claims "must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir1988). When a plaintiff fails to allege facts to support a claim for relief, the court should dismiss the complaint. Dumas v. Kipp II, 90 F.3d 386, 393 (9th Cir1996).

Elliot alleges that Moore falsified the documentation demonstrating that he had completed the state certification requirements (Complaint, ¶ 19) and denied Elliot's request for an empty office in the building ( id., ¶ 24). Even if Moore falsified his certification documents, that act caused no injury to Elliot. In addition, the denial of an empty office has nothing to do with the procedural due process claim concerning Elliot's transfers and demotion by Sheriff Staton. Thus, the current allegations do not support any constitutional claim against Moore. However, Elliot seeks to amend to allege facts regarding Moore acting in concert with Sheriff Staton and engaging in ongoing retaliation against Elliot. That amendment should be allowed.

RECOMMENDATION

*11 For the reasons set forth above, defendants' Motion to Dismiss (docket # 14) should be GRANTED in part and DENIED in part as follows:

1. Granted as to the First Claim alleging a substantive due process violation which should be DISMISSED with prejudice on the basis of qualified immunity;

2. Granted as to the Fourth and Fifth Claims alleging violations of ORS 659A.230 and ORS 659A.199 as to defendants Moore, Staton, Hasler, Reiser, Skipper, and John Does who should be DISMISSED with prejudice as improper defendants and as to defendant Multnomah County which should be DISMISSED without prejudice and with leave to replead additional retaliatory acts within the statute of limitations;

3. Granted as to all claims against defendants Hasler and Skipper who should be DISMISSED with prejudice and against defendants Moore and Reiser who should be DISMISSED without prejudice and with leave to replead; and

5. Otherwise should be DENIED.

SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if any, are due Monday, May 07, 2012. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.

If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.

Tiffany Jo Drahota, David Arthur Lane, Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiffs.

Kristin A. Ruiz, Jacquelynn Nichole Rich Fredericks, Colorado Attorney General's Office, Denver, CO, for Defendant.

ORDER ADOPTING IN PART AND REJECTING IN PART THE JULY 23, 2012 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, AND DENYING IN PART AND GRANTING IN PART DEFENDANT DUKE'S MOTION TO DISMISS

CHRISTINE M. ARGUELLO, District Judge.

*1 This matter is before the Court on the July 23, 2012 Recommendation of United States Magistrate Judge Michael J. Watanabe (Doc. # 18), in which he recommended that Defendant Sergeant Linda Duke's Motion to Dismiss (Doc. # 9) be granted. For the following reasons, the Court adopts in part and rejects in part the Recommendation of the Magistrate Judge and denies in part and grants in part Defendant Duke's Motion to Dismiss.

I. BACKGROUND

Plaintiffs Jeff Brosh and John Coon (collectively, "Plaintiffs") initiated this action on February 9, 2012. The following facts are taken from Plaintiff's Complaint. (Doc. #1.)

The incident that gave rise to this lawsuit occurred on February 12, 2010, at the Fremont Correction Facility ("Fremont") where Plaintiffs were incarcerated. On that date, Plaintiffs were participating in a kitchen work assignment under the supervision of Sergeant Rhonda Wheeler. At approximately 6:00 p.m., Plaintiffs were instructed to carry milk cartons into a large cooler, referred to as Cooler # 4. When Plaintiffs arrived at Cooler # 4, they found Defendant Duke supervising two other inmates. After Defendant Duke permitted Plaintiffs to enter Cooler # 4, she removed the two other inmates and locked Plaintiffs inside. After locking Plaintiffs in Cooler # 4, Defendant Duke continued with her normal workday, without notifying anyone of her actions. After approximately twenty minutes passed, Sergeant Wheeler discovered Plaintiffs, and freed them from Cooler # 4. Sergeant Wheeler later confronted Sergeant Duke, who admitted to intentionally locking Plaintiffs in the cooler.

Plaintiffs' single claim for relief, brought under 42 U.S.C. § 1983, asserts that Defendant Duke's intentional act of locking them in the cooler violated Plaintiffs' Eighth Amendment right to be free from cruel and unusual punishment. On April 17, 2012, Defendant Duke moved to dismiss Plaintiffs' Complaint. (Doc. # 9.) In her motion, Defendant Duke argued that Plaintiffs failed to state a claim upon which relief could be granted, that she is entitled to qualified immunity, that Plaintiffs were not entitled to compensatory damages absent physical injury, and that Plaintiffs' declaratory and injunctive claims were moot. Plaintiffs responded on May 11, 2012, and Defendant Duke replied on May 25, 2012. (Doc.15, 16.)

On July 23, 2012, the Magistrate Judge issued his Recommendation, finding that Plaintiffs had failed to state a claim upon which relief could be granted. (Doc. # 18 at 8.) Plaintiffs filed objections on August 20, 2012, and Defendant Duke responded to those objections on September 24, 2012. (Doc.21, 24.)

II. STANDARDS OF REVIEW

A. RECOMMENDATION OF MAGISTRATE JUDGE

When a magistrate judge issues a recommendation on a dispositive matter, a district court judge is required to "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." Fed.R.Civ.P. 72(b)(3). An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir.1996). An objection is timely if made within 14 days after the magistrate judge issues his recommendation. Id. An objection is sufficiently specific if it "enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." Id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). If objections are not made or if made improperly, the Court has discretion to review the recommendation under whatever standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991). In conducting its review, "[t]he district judge may accept, reject, or modify the [recommendation]; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

B. MOTIONS TO DISMISS

*2 The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim is to test "the sufficiency of the allegations within the four corners of the complaint." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). A complaint will survive such a motion only if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.. Twombly, 550 U.S. 544, 570 (2007). For a motion to dismiss, "[t]he question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir.2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted).

In reviewing a Rule 12(b)(6) motion, a court must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff. Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991). Nevertheless, a complaint does not "suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991).

III. ANALYSIS

The difficulty in this case stems from the fact that Plaintiffs did not specify what type of Eighth Amendment claim they intended to bring. (Doc. # 1.) As case law makes clear, there are several different types of Eighth Amendment claims that require different showings of proof. See Hudson v. McMillian, 503 U.S. 1, 8 (1992) ("[w]hat is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause depends upon the claim at issue"). In her Motion to Dismiss, Defendant Duke argued that Plaintiffs had failed to state a plausible Eighth Amendment conditions of confinement claim or a deliberate indifference to medical needs claim. In response, Plaintiffs contended that they had brought a conditions of confinement claim, but did not argue that they had pleaded any other type of Eighth Amendment claim. Understandably taking his cue from the parties' arguments, the Magistrate Judge also construed the Complaint as primarily bringing a conditions of confinement claim. Although the Court agrees with the Magistrate Judge that Plaintiffs have not pleaded a plausible conditions of confinement claim, FN1 the Court finds that the factual allegations in the Complaint are sufficient to sustain an excessive force claim under the Eighth Amendment.

FN1 Based on the Court's de novo review of the Complaint, it does not appear that Plaintiffs intended to bring an Eighth Amendment deliberate indifference to medical needs claim. To the extent that such a claim was brought, however, the Magistrate Judge was correct in finding that Plaintiffs failed to allege an affirmative link between Defendant and the alleged one-day delay in medical care. (Doc. # 18 at 8.) Plaintiffs raised no objection to this aspect of the Magistrate Judge's Recommendation, and the Court finds "there is no clear error on the face of the record." Fed.R.Civ.P. 72 advisory committee's note.

*3 The Court will begin its analysis by briefly explaining why it finds Plaintiffs' objections unconvincing. The Court will then explain, however, why the factual allegations in the Complaint are sufficient to state an excessive force claim under the Eighth Amendment. Finally, because the Court finds that the factual allegations in the Complaint are sufficient to state a claim for relief, the Court will also discuss the other arguments made by Defendant Duke in her Motion to Dismiss; specifically, her arguments that she was entitled to qualified immunity, that Plaintiffs are not entitled to compensatory damages absent physical injury, and that Plaintiffs' claims for declaratory and injunctive relief are moot.

A. PLAINTIFFS' OBJECTIONS

Plaintiffs' first objection is that the Magistrate Judge applied an incorrect legal standard because he "incorrectly [ruled] on the ultimate issue as to whether Plaintiffs will prevail at trial." (Doc. #21 at 3.) This argument is wholly without merit. The Magistrate Judge made no improper credibility determinations as Plaintiffs claim; rather, he accepted as true the facts alleged by Plaintiffs and found that the factual allegations were insufficient to sustain a plausible conditions of confinement claim. As Defendant Duke observes, that the Magistrate Judge "construed the facts in a light most favorable to Plaintiffs and found them wanting, is not indicia that the facts were not construed favorably to Plaintiffs." (Doc. # 24 at 4.)

Plaintiff's second objection is that the Magistrate Judge erred by finding that Plaintiffs had not pleaded a viable conditions of confinement claim. Again, the Court finds this argument without merit. To state a conditions of confinement claim under the Eighth Amendment, a prisoner must allege "an objective component and subjective component associated with the deficiency." Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir.2001). The objective requirement is that the conditions complained of must be "sufficiently serious" to implicate constitutional rights. Because discomfort is "part of the penalty that criminal offenders pay for their offenses against society, " Rhodes v. Chapman, 452 U.S. 337, 347 (1981), Plaintiffs must show that the challenged condition was more than uncomfortable, and rose to the level of "posing a substantial risk of serious harm" to their health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

In the instant case, Plaintiffs were locked in Cooler # 4 for approximately twenty minutes.FN2 To determine whether this is "sufficiently serious, " the Court must examine the particular facts of the situation, including the circumstances, nature, and duration of the challenged condition. See Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir.2001). Although exposure to cold temperatures can give rise to conditions of confinement claims, the Court agrees with the Magistrate Judge that "the approximately twenty minutes plaintiffs were in the cooler is, by several magnitudes a shorter period of time facing cold conditions than in other cases." (Doc. # 18 at 7) (citing cases). Given this only brief exposure to cold temperature, the Court finds that the condition complained of is not "sufficiently serious" to sustain an Eighth Amendment conditions of confinement claim. See Despain, 264 F.3d at 974 ("the length of exposure to the conditions is often of prime importance."); see also Whitnack v. Douglas Ctny., 16 F.3d 954, 958 (8th Cir.1994) ("the length of time required before a constitutional violation is made out decreases as the level of filthiness endured increases."). Because amendment of this claim would be futile, Plaintiffs' conditions of confinement claim should be dismissed with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.2006) ("A dismissal with prejudice is appropriate where a complaint fails to state a claim... and granting leave to amend would be futile.").

FN2 The Complaint does not allege the precise temperature of Cooler # 4, but it is reasonable to infer that Cooler # 4's temperature was above freezing, considering that milk was being stored in it.

B. EXCESSIVE FORCE CLAIM

*4 Although the Court finds Plaintiffs' objections without merit, the Court also finds that the factual allegations pleaded in the Complaint are sufficient to sustain an excessive force claim against Defendant Duke.FN3 A prisoner's Eighth Amendment right to be free from cruel and unusual punishment is implicated when a prison official uses force against the prisoner. Whitley v. Albers, 475 U.S. 312, 319 (1986).

FN3 To be sure, this is not the theory of relief Plaintiffs relied upon in their Response to the Motion to Dismiss. Although Plaintiffs discuss some considerations relevant to an excessive force claim in their objections, it is clear that Plaintiffs have merely conflated their conditions of confinement claim with the law pertaining to excessive force claims. (Doc. # 24 at 8.) In the future, Plaintiffs should pay more attention to the distinctions between the different Eighth Amendment claims.

At first glance, it seems that excessive force is not at issue here because Defendant Duke employed no direct physical force against Plaintiffs' bodies, as is the case in so many excessive force claims. See, e.g., Hudson, 503 U.S. 9-10 (stating that "[t]he Eighth Amendment's prohibition of cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.") (emphasis added, citation and internal quotations omitted). However, by locking Plaintiffs in Cooler # 4, Defendant Duke forcibly restricted Plaintiffs' movement, and it is reasonable to infer that Defendant Duke's purpose was to cause harm to Plaintiffs. The Court finds that this use of force, although indirect, implicates the Eighth Amendment's prohibition against the excessive use of force by prison officials. See Washington v. Hively, 695 F.3d 641, 2012 WL 3553419, at *2 (7th Cir.2012) ("persecution... involves the use of significant physical force against a person's body, or the infliction of comparable physical harm without direct application of force"). In Washington, the Seventh Circuit stated that locking a person in a cell and starving him would be an example of excessive force. Id. Similarly, locking Plaintiffs in a cooler for a potentially indefinite amount of time was an act offorce.

The Tenth Circuit has also held that a prison official's indirect application of force may give rise to a plausible Eighth Amendment excessive force claim. See Despain, 264 F.3d at 978 (holding that spraying pepper spray into a cell block "implicates the excessive use of force."). Moreover, in the context of a Fourth Amendment excessive force claim, the Tenth Circuit has stated that "[p]hysical contact is similarly not required to demonstrate the unreasonableness of the force used to effect a particular seizure." Martin v. Bd. of Ctny. Comm'rs of Pueblo, 909 F.2d 402, 406 (10th Cir.1990). As Martin recognized, "[i]t would require a perverse reading... to conclude that officers can employ whatever threat or nonphysical force they want, regardless of the amount of injury inflicted, so long as no physical contact exists." Id. at 407. Given the recognition in case law that the indirect use offorce can constitute "excessive force, " the Court finds it appropriate to apply the Whitley standard for excessive force claims to the factual allegations pleaded in the Complaint.

*5 When prison officials use force against prisoners, the core judicial inquiry in determining whether the force was excessive is "whether force was applied in good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7; Whitley, 475 U.S. 320-21. The Court considers the need for the use of force, the relationship between that need and the amount of force used, the extent of the prisoner's injuries, the extent of the perceived threat that the prisoner posed, and any efforts made by the prison officials to lessen the severity of the response. See Hudson, 503 U.S. at 7.

Accepting the factual allegations in the Complaint as true, the Court finds that the excessive force test is easily met in this case. Locking Plaintiffs in Cooler # 4 was not a good faith effort by Defendant Duke to maintain or restore order; indeed, it appears that Defendant Duke acted with no legitimate penological purpose whatsoever. "Where no legitimate penological purpose can be inferred from a prison employee's alleged conduct..., the conduct itself constitutes sufficient evidence that force was used maliciously and sadistically for the very purpose of causing harm." Despain, 264 F.3d at 978 (internal quotations and citations omitted).

In his Recommendation, the Magistrate Judge stated that the action of Defendant Duke was "unprofessional, unbecoming of a person in her position, and juvenile at best." (Doc. # 18 at 7.) Certainly, this is one way to view Defendant Duke's conduct. However, it is also reasonable to view Defendant Duke's actions as far more sinister. Fortunately, Plaintiffs were discovered by Sergeant Wheeler approximately twenty minutes after they were locked in Cooler # 4. Had Sergeant Wheeler not discovered Plaintiffs, however, Defendant Duke's conduct to have caused substantial injury to Plaintiffs.FN4 As such, it is reasonable to infer that Defendant Duke acted with malicious intent to harm Plaintiffs.

FN4 It is unclear when Plaintiffs might have been discovered had Sergeant Wheeler not found them locked inside Cooler # 4.

In Hudson, the Court explained that the distinct test applied in excessive force claims stems from society's expectations. 503 U.S. at 8-9. When a prison official maliciously and sadistically uses force to cause harm, "contemporary standards of decency always are violated." Id. at 9. This is because, as a society, we expect that prison officials, when applying force to prisoners, will act only for legitimate purposes. See Despain, 264 F.3d at 978. ("We will not require inmates to be subjected to the malicious whims of prison guards."). As explained, Defendant Duke acted with no such legitimate purpose in applying force to Plaintiffs. Thus, the Court finds that her conduct was "repugnant to the conscience of mankind." Whitley, 475 U.S. at 327.

Based on the allegations in the Complaint, it does not appear that Plaintiffs suffered any significant physical harm from the approximately twenty-minute exposure to cold temperature inside Cooler # 4.FN5 The Court recognizes that de minimis "applications of force are necessarily excluded from the cruel and unusual punishment inquiry." Despain, 264 F.3d at 978; Hudson 503 U.S. at 9 ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights."). However, the Supreme Court has held that the focus of an excessive force inquiry should be on the force used, not on the seriousness of the injury sustained. See Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (2010) ("Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts."). Prisoners do not lose their excessive force claims simply because they may have the good fortune to escape serious injury. See id. Here, the force employed by Defendant Duke was not de minimis because it could have caused serious injury to Plaintiffs had Sergeant Wheeler not found them after twenty minutes. Thus, at least at this stage in the litigation, the seemingly insignificant injury suffered by Plaintiffs does not preclude them from pursuing their Eighth Amendment claim against Defendant Duke.

FN5 Plaintiffs allege only that they "suffered physical and emotional injury as a result of the incident." (Doc. # 1, ¶ 4.) Plaintiffs do not specify the nature or seriousness of their injuries, and there are no other allegations in the Complaint that Plaintiffs suffered any substantial injury.

C. QUALIFIED IMMUNITY

*6 In her Motion to Dismiss, Defendant Duke asserts that she is entitled to qualified immunity. Under the doctrine of qualified immunity, government officials are protected "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotation marks omitted)).

"Qualified immunity requires a two-step sequence.'" Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir.2012) (quoting Pearson, 555 U.S. 223). "When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established." Id. (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009)).

Having already determined that Plaintiffs have sufficiently alleged that Defendant Duke violated their constitutional right to be free of excessive force, the Court must determine whether this right was clearly established when Defendant Duke locked Plaintiffs in Cooler # 4 on February 12, 2010. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that [her] conduct was unlawful in the situation [she] confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001). The Court finds that Defendant Duke had sufficient notice that her conduct was unlawful.

Although the Court has been unable to find any Supreme Court or Tenth Circuit cases in which a prisoner was intentionally locked in a cooler by a prison official, it is well-established that prisoners possess a right to be free from the use of excessive force. See Hudson, 503 U.S. 1. As the Supreme Court explained, "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated... whether or not significant injury is evident." Id. at 9. Thus, at this stage of the proceedings, Defendant Duke's assertion of qualified immunity must fail.

D. WHETHER PLAINTIFFS ARE ENTITLED TO COMPENSATORY DAMAGES

Defendant Duke also argues that Plaintiffs' claim should be dismissed under the Prison Litigation Reform Act ("PLRA"). The PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). However, even when prisoners do not allege physical injury, § 1997e(e) does not foreclose a prisoner's claim for nominal or punitive damages. Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir.2001). Punitive damages are available when "the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). As the Court has already explained, it is reasonable to infer from the factual allegations that Defendant Duke acted with malicious intent. Thus, the Court denies Defendant Duke's request to dismiss Plaintiffs' claim in the entirety.

*7 Although the case may move forward on Plaintiffs' claim for punitive and nominal damages, the Court agrees with Defendant Duke that Plaintiffs may not recover emotional distress damages because the Complaint does not contain sufficient factual allegations of physical injury. The PLRA provides no statutory definition for the term "physical injury" and the Tenth Circuit has provided little guidance. See McConnell v. Cirbo, No. 11-cv-02342, 2012 WL 3590762, at *11 (D.Colo. Apr. 24, 2012) (unpublished). However, it is clear that while an injury "need not be significant to satisfy the physical injury requirement, " a de minimis injury does not satisfy the statutory requirement. See Clifton v. Eubank, 418 F.Supp.2d 1243, 1245 (D.Colo.2006) (citing Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir.2003)).

Defendant Duke contends that Plaintiffs' claim for compensatory damages should be dismissed because Plaintiffs do not allege that they suffered from any actual physical injury. (Doc. # 9 at 9.) In response, Plaintiffs point to the allegation in the Complaint that they "suffered physical and emotional injury as a result of the incident." (Doc. # 1, ¶ 4.) However, this vague and conclusory allegation provides no detail on the nature of the alleged injuries sustained by Plaintiffs. As such, Plaintiffs' allegation is insufficient to show that Plaintiffs' injuries were more than de minimis. Thus, Plaintiffs' claim for compensatory damages should be dismissed.FN6

FN6 As it is possible that Plaintiffs can amend this claim, dismissal is without prejudice. See Brereton, 434 F.3d at 1219.

E. WHETHER PLAINTIFFS' CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF ARE MOOT

Finally, Plaintiffs seek injunctive and declaratory relief.FN7 In her Motion to Dismiss, Defendant Duke asserts, and Plaintiffs concede, that neither Plaintiff is presently incarcerated at FCF.FN8 As such, the Court agrees with Defendant Duke that Plaintiffs' request for equitable relief is moot.

FN7 Although the Complaint does not specify what sort of equitable remedies Plaintiffs request, both parties seem to assume that Plaintiffs' request for "[d]eclaratory relief and other appropriate equitable relief (Doc. # 1 at 6) refers to their desire to avoid working with Defendant Duke.
FN8 Plaintiff Brosh is presently incarcerated at the Arkansas Valley Correctional Facility, and Plaintiff Coon is on parole.

"Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir.1996). "This requirement exists at all stages of federal judicial proceedings, and it is therefore not enough that the dispute was alive when the suit was filed; the parties must continue to have a personal stake in the outcome." Id. Despite conceding that they are not presently at FCF, Plaintiffs argue that their claim for equitable relief is not moot because Plaintiff Brosh may be transferred back to FCF.FN9 Plaintiffs' concern, however, is wholly speculative. See Jordan v.. Sosa , 654 F.3d 1012 , 1032 (10th Cir.2011) (rejecting prisoner's argument that his claims were not mooted by transfer to new prison when it was "entirely speculative" that the prisoner might be transferred back to his former facility). Thus, the Court finds that Plaintiffs' claim for equitable relief should be dismissed as moot.

FN9 Plaintiffs make no argument as to why their claim for injunctive and declaratory relief is not moot with respect to Plaintiff Coon.

IV. CONCLUSION

Based on the foregoing, the Court ADOPTS IN PART AND REJECTS IN PART the Magistrate Judge's Recommendation. (Doc. # 18.)

*8 Accordingly, it is ORDERED that Defendant Duke's Motion to Dismiss (Doc. # 9) is DENIED IN PART and GRANTED IN PART. Specifically, Plaintiffs' claim for compensatory damages is DENIED WITHOUT PREJUDICE, and Plaintiffs' claim for declaratory and injunctive relief is DENIED AS MOOT. Defendant Duke's Motion to Dismiss is DENIED in all other respects.

*560 Before BALDOCK, HENRY, and LUCERO, Circuit Judges.FN*

FN* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). Therefore, appellant's request for oral argument is denied, and the case is ordered submitted without oral argument.

ORDER AND JUDGMENT FN**

FN** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

HENRY, Circuit Judge.

**1 Bilal Rashad, a prisoner in the custody of the Oklahoma Department of Corrections, filed this pro se action against two corrections officials, alleging that the Department failed to provide adequate treatment of his post-traumatic stress disorder. According to Mr. Rashad, this failure to provide treatment violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 and the Eighth Amendment. He sought an injunction directing the defendants to provide the requested treatment.

In a thorough and well-reasoned report and recommendation, the magistrate judge concluded that Mr. Rashad's complaint failed to state a claim upon which relief could be granted. He further recommended that the dismissal count as a "prior occasion" under 28 U.S.C. § 1915(g). The district court agreed and dismissed Mr. Rashad's complaint. Upon de novo review, see Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir.1999), we agree with the magistrate judge and the district court.

With regard to Mr. Rashad's ADA claim, it is clear that prisons are "public entities" covered by Title II of the ADA. See Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). However, contrary to Mr. Rashad's assertions, the failure to provide medical treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) (concluding that the ADA "would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners" and that the statute "does not create a remedy for medical malpractice"); McNally v. Prison Health Servs., 46 F.Supp.2d 49, 58 (D.Me.1999) (distinguishing between "claims that the medical treatment received for a disability was inadequate from claims that a prisoner has been denied access to services or programs because he is disabled, " and concluding that only the latter class of claims states an ADA violation). In contrast, the allegation that a disabled prisoner has been denied services that have been provided to other prisoners may state an ADA claim. See, e.g., McNally, 46 F.Supp.2d at 58 (concluding that an HIV patient's claim of discriminatory denial of prescription services provided to general prison population would state an ADA claim).

Here, as the magistrate judge noted, Mr. Rashad's complaint alleges inadequate treatment of his post-traumatic stress disorder but does not allege that the defendant corrections officials discriminated against him on the basis of that disorder. We therefore agree that Mr. Rashad has failed to state an ADA claim.

As to Mr. Rashad's second claim, the magistrate judge properly noted that *561 the Eighth Amendment protects prisoners from officials' deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Eighth Amendment claims have two elements: "an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind." Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.1996) (internal quotation marks omitted). The objective component requires an "extreme deprivation" denying a "minimal civilized measure of life's necessities." Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks omitted). As to the subjective component, in order to be held liable, the defendant official must act with deliberate indifference to the prisoner's health or safety. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

**2 "A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.'" Green v. Branson, 108 F.3d 1296, 1303 (10th Cir.1997) (quoting Estelle, 429 U.S. at 106, 97 S.Ct. 285). However, delays in providing treatment may violate the Eighth Amendment- "if there has been deliberate indifference which results in substantial harm.'" Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993) (quoting Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993)). "Delays in providing medical care that courts have found to violate the Eighth Amendment have frequently involved life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner's medical problems." Hunt. v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999).

We agree with the magistrate judge's assessment of Mr. Rashad's Eighth Amendment claim. Although he alleges that prison officials refused to grant his request for treatment at a Veterans Administration facility, Mr. Rashad acknowledges that mental health professionals are available to provide him with treatment within the Department of Corrections. The fact that Mr. Rashad has not been provided with treatment at the facility of his choice is insufficient to state an Eighth Amendment claim.

In his appellate brief, Mr. Rashad contends that the magistrate judge and the district court erred in failing to allow him to amend his complaint and to conduct additional discovery. Although we construe pro se pleadings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991), we need not allow the amendment of pleadings and the conducting of discovery when the plaintiff has failed to assert specific facts to support his claims. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir.1992). Here, there is no indication that further proceedings would reveal valid claims against the defendants.

III. CONCLUSION

Accordingly, we AFFIRM the district court's dismissal of Mr. Rashad's complaint. The district court's dismissal counts as a "prior occasion" for the counting purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County Detention Center Medical Facility, 175 F.3d 775, 780 (10th Cir.1999).

*900 John Nasious, Denver, CO, pro se.

Craig William Cain, Kristine K. Hayter, Elizabeth K. Potter, Cain & Hayter, LLP, Colorado Springs, CO, for Defendants-Appellees.

Before HARTZ, ANDERSON, and O'BRIEN, Circuit Judges.

ORDER AND JUDGMENTFN*

FN* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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.

TERRENCE L. O'BRIEN, Circuit Judge.

**1 John Nasious, a Colorado prisoner proceeding*901 pro se, appeals the district court's judgment against him in his prison-conditions lawsuit under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134(ADA). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Nasious filed an amended complaint with four claims. On appeal, he focuses on two of those claims: a § 1983 claim alleging denial of medical treatment in violation of the Eighth Amendment and an ADA claim alleging denial of the ability to participate in programs and services and/or discrimination against him because of his disabilities. Because his opening brief fails to present sufficient argument regarding the reasons for granting judgment for defendants on the other two claims, he has waived any challenge regarding those claims. See Guttman v. Khalsa, 669 F.3d 1101, 1116 (10th Cir.2012).

Nasious asserted his Eighth Amendment claim against certain defendants who were medical providers or their gatekeepers and against other defendants who were not involved with medical decisions. Nasious does not make any appellate argument regarding the dismissal of the allegations against the non-medical defendants. Therefore, we focus on the medical defendants. The magistrate judge recommended granting summary judgment to them because (1) the Eleventh Amendment barred an award of money damages against defendants in their official capacities, and (2) Nasious failed to establish any violation of his constitutional rights because he did not show defendants were deliberately indifferent to his serious medical needs. The district court agreed and adopted the recommendation. We review the grant of summary judgment de novo. See White v. Colorado, 82 F.3d 364, 366 (10th Cir.1996).

In his opening brief, Nasious argues he sustained injuries from defendants'"failure to treat or admit his disabilities." Aplt. Br. at 2. We agree with the district court that the Eleventh Amendment bars Nasious from recovering, under § 1983, money damages against defendants in their official capacities. See White, 82 F.3d at 366. We also agree Nasious failed to show defendants were deliberately indifferent to his serious medical needs. Clearly Nasious disagrees with defendants' medical opinions and their prescribed courses of treatment for his various conditions, but such disagreement fails to establish an Eighth Amendment violation. See Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir.1999); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993). At most, Nasious's allegations of incorrect treatment might establish malpractice, which also fails to establish an Eighth Amendment violation. See Estelle, 429 U.S. at 106-07, 97 S.Ct. 285; Perkins, 165 F.3d at 811. Accordingly, we affirm the district court's judgment for defendants on the Eighth Amendment claim for substantially the reasons stated in the magistrate judge's report and recommendation filed on April 22, 2011.

**2 Regarding the ADA claim, Title II of the ADA provides "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The magistrate judge recommended granting summary judgment on the ADA claim because:*902 (1) some of Nasious's allegations were not cognizable under the ADA, (2) Nasious failed to provide any evidence of a qualifying disability, and (3) Nasious failed to produce any evidence he had been discriminated against because of a disability. With one exception with regard to photophobia, which we discuss below, the district court agreed and adopted the recommendation. The district court also held defendants could not be sued in their individual capacities under Title II; Title II did not abrogate Colorado's Eleventh Amendment immunity against money damages; and the majority of Nasious's ADA-related allegations were conclusory and non-specific with regard to disabilities other than photophobia.FN1

FN1 Earlier in the litigation, the district court had dismissed the ADA claim against defendant Ritter in his individual capacity for failure to plead sufficient facts to establish an ADA violation. Nasious does not appeal that decision.

Before this court, Nasious again argues he is disabled within the meaning of the ADA. Because the events underlying Nasious's suit straddle the January 1, 2009, effective date of the ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (ADAAA), in which Congress provided for a broader construction of "disability" than had previously applied, we shall assume solely for purposes of this appeal that Nasious suffers from a disability. Instead, we affirm substantially on the alternate grounds identified by the district court in its order filed on June 29, 2011. As the district court stated, many of Nasious's ADA-related complaints concern defendants' failure to provide him the medical treatment he desires. But the ADA does not provide a remedy for medical negligence or a means to challenge "purely medical decisions" regarding the propriety of a course of treatment. Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir.2005); see also Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) (stating the ADA "would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners. No discrimination is alleged; [plaintiff] was not treated worse because he was disabled.... The ADA does not create a remedy for medical malpractice."). To the extent that any of Nasious's ADA allegations can overcome Fitzgerald, he failed to produce evidence to show defendants denied him access to a prison program or discriminated against him because of his asserted disabilities.

The district court made one exception to the grant of summary judgment on the ADA claim. It held Nasious could proceed with a claim that defendants Holst and Jacobson, in their official capacities, violated Title II by failing to accommodate his photophobia while he worked his prison job. The district court limited this claim to injunctive relief only, holding Nasious could not recover money damages. The claim, however, was never decided on the merits. While it was pending, Nasious was transferred from Sterling Correctional Facility to a halfway house. Because Nasious no longer worked at Sterling, the district court granted defendants' Fed.R.Civ.P. 12(b)(1) motion to dismiss the claim as moot.FN2 We review this dismissal *903 for constitutional mootness de novo. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1122 (10th Cir.2010).

FN2 Nasious did not object to the magistrate judge's recommendation to grant the motion to dismiss. Under this court's firm waiver rule, a failure to object to a recommendation waives appellate review. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). In response to a show-cause order issued by this court, Nasious asserted he had filed objections. Apparently they did not reach the district court. With regard to nearly every other recommendation Nasious did file objections, so it was anomalous for him not to object to this particular recommendation. Thus, we accept his representation that he did try to file objections and consider this issue under the "interests of justice" exception to the firm waiver rule. See Casanova v. Ulibarri, 595 F.3d 1120, 1123-24 (10th Cir.2010); Wirsching v. Colorado, 360 F.3d 1191, 1197-98 (10th Cir.2004).

**3 Nasious argues the claim is not moot because he remains in the custody of the Colorado Department of Corrections, and he "could end up back at Sterling Correctional, tomorrow, that quick." Aplt. Br. at 3. But it is well-settled that a prisoner's transfer out of a prison moots his requests for declaratory or injunctive relief against staff at that prison. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir.2010). In McAlpine v. Thompson, 187 F.3d 1213, 1217 (10th Cir.1999), we applied this rule to a prisoner who was released on parole, holding, "the hypothetical possibility that [the plaintiff], a former inmate on supervised release, will violate the terms of that supervised release and be returned to the same prison and same conditions of confinement cannot save an otherwise moot claim for prospective injunctive reliefrelating to prison conditions." We continued, "we are not inclined to speculate that [the plaintiff] will break the law or otherwise violate the conditions of the[ ] release agreement." Id. at 1218. Similarly, we are not inclined to speculate that Nasious will violate the terms of his commitment to the halfway house and be returned to Sterling. The district court correctly determined the ADA claim for injunctive relief was moot.

Nasious also claims entitlement to money damages under United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), in which the Supreme Court held, "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." Id. at 159, 126 S.Ct. 877. A claim for money damages would survive Nasious's transfer to the halfway house. But Nasious's argument is unavailing, because the conduct underlying the claim against Holst and Jacobson would not establish an actual violation of the Fourteenth Amendment.

We have not considered the numerous documents attached to Nasious's reply brief. He did not move to supplement the record on appeal, and even if he had, we would have denied any such request. The judgment of the district court is AFFIRMED.

Larry C. Alexander, Corcoran, CA, pro se.

ORDER REQUIRING PLAINTIFF EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN THIRTY DAYS

DENNIS L. BECK, United States Magistrate Judge.

I. Screening Order

*1 Plaintiff Larry C. Alexander ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on May 23, 2007. (Doc. 1.) Plaintiff filed a first amended complaint on August 13, 2007. (Doc. 7.) The Court ordered that Plaintiff either filed an amended complaint or notify court of willingness to proceed only on cognizable claims on March 12, 2008. (Doc. 9.) After receiving extensions of time, Plaintiff filed his second amended complaint on July 28, 2008. (Doc. 16.) Plaintiff's second amended complaint is presently before the Court for screening.

A. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion the reofif the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir.2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir.2004) ("Pleadings need suffice only to put the opposing party on notice of the claim....'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir.2001))). However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n. 9, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir.1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982)).

B. Summary of Plaintiffs Second Amended Complaint and Rule 18(a)

*2 Plaintiff is currently a state prisoner at California Substance Abuse Treatment Facility and State Prison ("CSATF/SP") in Corcoran, California, where the acts he complains of occurred. Plaintiff names the following defendants: Secretary of California Department of Corrections ("CDCR") James C. Tilton; Chief of CDCR's Inmate Appeals Branch Nancy Grannis; Director of Division of Correctional Health Care Service ("DCHCS") Renee Kanan; Warden of CSATF/SP Ken Clark; Warden of California State Prison-Los Angeles County ("CSP-LAC") John Doe 1; Warden of Calipatria State Prison ("CSP-CAL") John Doe 2; Chief Medical Officer ("CMO") of CSP-LAC J. Fitter; CMO of CSATF/SP E. Flores; CMO of CSP-CAL John Doe 3; Correctional Captain at CDCR P. Enriquez; Correctional Counselor II ("CCII")/Appeal Coordinators at CSP-LAC A. Kittner, C.A. Collins, C.R. Carlson, and Shelly Baumgardner; CCII at CSP-CAL H. Fasolo and D. Edwards; CCII at CSATF/SP R. Gomez, R. Hall, and S.A. Smith; Medical Appeals Analyst at CSP-LAC B. Deliberto; SSA at CSATF/ SP Corrina M. Heck; Medical Doctors at CSP-LAC J. Sighn, M. Attygalla, and P. Fortaleza; Medical Doctors at CSPCAL Nguyen and Sands; Dermatologist at CSP-CAL Alex Peterson; Medical Doctor at CSATF/SP Nandan Bhatt; and Does 1 through 150. (Doc. 16, pp. 1-2.). Plaintiff's complaint suffers from several deficiencies, as set forth below.

1. Federal Rule of Civil Procedure 18(a)

Plaintiff alleges activities that span from his incarceration at CSP-CAL in 2002 ( Id., p. 12, ¶¶ 24-25), CSP-LAC in 2003 ( Id., pp. 17-18, ¶ 32), and CSATF/SP in 2006 ( Id., pp. 26-27, ¶ 49.) Though the claims alleged concern a similar general subject matter, namely Plaintiff's medical treatment, the Court finds that the events alleged at each prison are unrelated. Plaintiff's complaint thus fails to comply with Federal Rule of Civil Procedure 18(a). "The controlling principle appears in Fed.R.Civ.P. 18(a) A party asserting a claim to relief as an original claim, counterclaim, crossclaim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.' Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." George v. Smith, 507 F.3d 605, 607 (7th Cir.2007).

The Court focuses its analysis on Plaintiff's allegations regarding events at CSATF/SP. Plaintiff's allegations regarding events at CSP-LAC and CSP-LAC and all defendants related therein, namely, John Doe 1, John Doe 2, J. Fitter, John Doe 3, A. Kittner, C.A. Collins, C.R. Carlson, Shelly Baumgardner, H. Fasolo, D. Edwards, B. Deliberto, J. Sighn, M. Attygalla, P. Fortaleza, Nguyen, Sands, and Alex Peterson, are dismissed without prejudice for non-compliance with Rule 18(a). The Court notes that the Eastern District of California is not the proper venue for complaints regarding events at CSP-CAL and CSP-LAC. See 28 U.S.C. § 1391(b). Plaintiff is advised that if he wishes to pursue a claim against defendants concerning events at CSP-CAL and CSP-LAC, Plaintiff should file a separate action against each group of defendants in the correct venue.

*3 Plaintiff's allegations regarding CSATF/SP makes distinctions between surgical/medical treatment and dental treatment. (See Doc. 16, ¶¶ 49, 50, 52, 53, 55, 56; Id., ¶¶ 51, 54, 56.) Other than occurring in the same prison, the dental treatment allegations concern a distinct set of defendants from the medical treatment allegations. Consequently, these claims also cannot be joined together in this complaint. Fed.R.Civ.P. 18(a). The Court for purposes of this order will analyze only Plaintiff's allegations regarding medical treatment at CSATF/SP. Plaintiff is advised to file a separate complaint regarding his dental treatment at CSATF/ SP if he wishes to pursue a section 1983 claim.

2. Alleged Events at CSATF/SP Concerning Medical Treatment

Plaintiff alleges the following concerning events at CSATF/SP. Plaintiff had contracted both Condyloma Accuminata Popaloma Virus ("CAPV") and Hepatitis C Virus ("HCV") while incarcerated. (Doc. 16, p. 9, ¶ 17.) Plaintiff was transferred to CSATF/SP on June 7, 2006. On August 16, 2006, defendant Bhatt conducted a diagnostic intake of Plaintiff. ( Id., pp. 26-27, ¶ 49.) Plaintiff informed Bhatt that warts were migrating to Plaintiff's genitalia, resulting in extreme pain. Plaintiff sought treatment for this to no avail. ( Id. ) Plaintiff sought pain relief medicine and treatment for HCV, but Bhatt failed to act. ( Id. ) Plaintiff filed an inmate appeal on August 21, 2006, seeking surgical/ medical treatment because of complications with urination and internal bleeding. ( Id., p. 27, ¶ 50.) The appeal was erroneously categorized as a Category 7 appeal, which precluded Plaintiff's ability to obtain medical attention via appeal. ( Id. )

On September 11, 2006, defendant Heck interviewed Plaintiff regarding his appeal. ( Id., pp. 28-29, ¶ 52.) Plaintiff conveyed to Heck that the purpose of his appeal was to obtain immediate medical attention, and defendant Heck failed to assist Plaintiff. ( Id. ) The appeal was partially granted as a "category 7" inquiry, concerning only staff misconduct. ( Id. ) Plaintiff appealed to the second level. ( Id., pp. 29-30, ¶ 53.) On November 21, 2006, Defendant Flores responded by partially granting Plaintiff's appeal. ( Id. ) Plaintiff appealed to the offices of Tilton, Grannis, Kanan, and Enriquez. ( Id. ) On November 28 and 29, 2006, Plaintiff wrote confidential mail to IAB and the Sacramento Officer of Internal Affairs, which were intercepted in order to chill Plaintiff's First Amendment rights. ( Id. ) On February 27, 2007, defendant Enriquez responded to Plaintiff's appeal, concurring with the lower level responses and denying the appeal. ( Id. ) Plaintiff filed another grievance on March 13, 2007. ( Id., pp. 31-32, ¶ 56.) Heck refused to process it. ( Id. )

On July 26, 2007, Plaintiff was examined by CSATF/SP medical Does regarding Plaintiff's internal bleeding. ( Id. ) On August, 6, 2007, blood was discovered in Plaintiff's stool sample. ( Id. ) On August 24, 2007, medical Does scheduled Plaintiff for a colonoscopy, which as of the filing date of this action has not occurred. ( Id. ) On December 3, 2007, Plaintiff was transported to a specialist for surgery of anal warts and external hemorrhoids only. ( Id. ) CSATF/SP medical Does refused to change Plaintiff's post-surgical bandages or monitor his post-surgical recovery process. ( Id. ) Plaintiff submitted a medical request for treatment on December 11, 2007, which medical Does ignored. ( Id. ) On March 24, 2008, Plaintiff developed a severe anal infection as a result. (Id.)

*4 Plaintiff alleges 1) retaliation, denial of due process and equal protection, 2) deliberate indifference to a serious medical need, 3) failure to train, supervise, and discipline, 4) violation of Americans with Disabilities Act and 5) violation of Section 504 of the Rehabilitation Act of 1973. ( Id., pp. 36, 37, 41, 51, 54.) Plaintiff seeks monetary damages. ( Id., pp. 55-56.)

D. Plaintiffs Claims

1. Eighth Amendment

Plaintiff alleges deliberate indifference to Plaintiff's serious medical needs, a violation of the Eighth Amendment. "What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). "The objective component of an Eighth Amendment claim is... contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 9-10 (internal quotations marks and citations omitted).

"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Id. (internal quotation marks and citations omitted). "The absence of serious injury is... relevant to the Eighth Amendment inquiry, but does not end it." Id.

Based on the alleged facts, Plaintiff states a cognizable Eighth Amendment claim for deliberate indifference to a serious medical need against defendants Bhatt and Heck.

A. Medical Does

Plaintiff's claims against "medical Does" do not meet the linkage requirement for section 1983. The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

*5 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that "[a] person subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). In order to state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

Plaintiff names in his complaint Doe defendants, referring to them as "medical Does." (Doc. 16, pp. 30, 31-32, ¶ 56.). Rule 10(a) of the Federal Rules of Civil Procedure requires a plaintiff to include the names of the parties in the action. As a practical matter, it is impossible in most instances for the United States Marshal or his designee to serve a summons and complaint upon an anonymous or unnamed defendant.

The Ninth Circuit has held that where identity is unknown prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities or that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980)). However, Plaintiff does not list the number of Doe defendants named as "medical Does, " nor does he identify which defendant Does committed what alleged act. This is insufficient to put prospective defendants on notice of their alleged actions or omissions that Plaintiff claims violate his federal rights. In order to link these Doe defendants to the alleged acts or omissions that demonstrate a violation of Plaintiff's federal rights, the Court shall grant Plaintiff leave to amend, to either name the defendants involved or list the number of Doe defendants involved. If Plaintiff can only list these defendants as John Doe, Plaintiff should try to allege specific acts that these Doe defendants did, such as "John Doe 1 did X" and "John Doe 2 and 3 did Y." Plaintiff is reminded that "[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998).

B. Supervisory Liability

Plaintiff names as defendants James C. Tilton, Nancy Grannis, Renee Kanan, Ken Clark, E. Flores, and P. Enriquez, each of whom hold supervisory positions. Supervisory personnel are generally not liable under section 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.1978), cert. denied, 442 U.S. 941 , 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979). To state a claim for relief under section 1983 based on a theory of supervisory liability, plaintiff must allege some facts that would support a claim that supervisory defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy itself is a repudiation of constitutional rights' and is the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989).

*6 Additionally, the argument that anyone who knows about an alleged violation of the Constitution, and fails to cure it, has violated the Constitution himself is not correct. "Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation. A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not." George v. Smith, 507 F.3d 605, 609-10 (7th Cir.2007) citing Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996).

Plaintiff alleges liability against these defendants based on their failure to train, supervise, and discipline. (Doc. 16, pp. 41-42, ¶ 82.) Since this is liability based on respondeat superior, Plaintiff fails to state a cognizable section 1983 claim against defendants James C. Tilton, Nancy Grannis, Renee Kanan, Ken Clark, E. Flores, and P. Enriquez.

2. Retaliation, Due Process, and Equal Protection

Plaintiff alleges that defendants R. Gomez, R. Hall, S.A. Smith, and Heck retaliated against Plaintiff and denied him due process and equal protection under the law. (Doc. 16, pp. 36-37, ¶ 64.)

Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir.1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.2005).

Here, Plaintiff's allegations against Gomez, Hall, Smith, and Heck for retaliation are not sufficiently alleged. Plaintiff appears to allege that his appeals were processed by Heck, albeit not to his satisfaction. (See Doc. 16, pp. 28-29, ¶¶ 52-53.) There is thus no adverse action by Heck against Plaintiff because of his protected conduct. Furthermore, Plaintiff alleges no facts concerning alleged retaliatory conduct Gomez, Hall, and Smith. Plaintiff thus fails to link Gomez, Hall, and Smith to an alleged act or omission that demonstrates a violation of Plaintiff's federal rights as required for section 1983 claims. See Johnson, 588 F.2d at 743.

Furthermore, Plaintiff's allegations that concern solely actions in reviewing Plaintiff's grievance do not state a cognizable due process claim. To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006). "[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993) (citing Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill.1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.2003) (no liberty interest in processing of appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir.2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988). Actions in reviewing prisoner's administrative appeal cannot serve as the basis for liability under a section 1983 action. Buckley, 997 F.2d at 495. Plaintiff thus fails to allege a cognizable due process claim.

*7 Plaintiff also fails to allege a cognizable Equal Protection claim. The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiff makes no allegations that other persons similarly situated to Plaintiff are treated differently from Plaintiff.

3. Americans with Disabilities Act and § 504 of the Rehabilitation Act

Plaintiff alleges a violation of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. (Doc. 16, pp. 51-55.) Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act (RA) "both prohibit discrimination on the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.2002). Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by such entity." 42 U.S.C. § 12132. Section 504 of the RA provides that "no otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794. Title II of the ADA and the RA apply to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 1955, 141 L.Ed.2d 215 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir.1997); Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir.1996).

"To establish a violation of Title II of the ADA, a plaintiff must show that (1)[he] is a qualified individual with a disability; (2)[he] was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities; and (3) such exclusion or discrimination was by reason of [his] disability." Lovell, 303 F.3d at 1052. "To establish a violation of § 504 of the RA, a plaintiff must show that (1)[he] is handicapped within the meaning of the RA; (2)[he] is otherwise qualified for the benefit or services sought; (3)[he] was denied the benefit or services solely by reason of [his] handicap; and (4) the program providing the benefit or services receives federal financial assistance." Id.

Plaintiff alleges that the defendants failed to provide Plaintiff access to medicine and prevented Plaintiff from receiving adequate, timely, and competent medical provision and treatment. (Doc. 16, p. 53, ¶ 103.) Plaintiff thus alleges that he failed to receive medical treatment because of his disabilities. Though the Ninth Circuit has not addressed this issue specifically, other courts have found that the ADA and § 504 of the RA do not create a federal cause of action for prisoners challenging the medical treatment provided for their underlying disabilities. See, e.g., Burger v. Bloomberg, 418 F.3d 882, 882 (8th Cir.2005) (medical treatment decisions not a basis for RA or ADA claims); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.2005 (RA not intended to apply to medical treatment decisions); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir.2005) (medical decisions not ordinarily within scope of ADA or RA); Grzan v. Charter Hosp. Of Northwest Indiana, 104 F.3d 116, 121-22 (7th Cir.1997). Assuming that Plaintiff does have a disability, Plaintiff's allegations concern his medical treatment, not discrimination because of his disability. Plaintiff's claims are properly raised under the Eighth Amendment, not the ADA or RA. Plaintiff thus fails to state a cognizable claim under the ADA or § 504 of the RA.

II. Conclusion

*8 Plaintiff has stated a cognizable claim against defendants Bhatt and Heck for violation of the Eighth Amendment. Plaintiff fails to state any cognizable claims against defendants James C. Tilton, Nancy Grannis, Renee Kanan, Ken Clark, E. Flores, P. Enriquez, R. Gomez, R. Hall, S.A. Smith, dental Does, and medical Does. The Court dismisses without prejudice claims against defendants John Doe 1, John Doe 2, J. Fitter, John Doe 3, A. Kittner, C.A. Collins, C.R. Carlson, Shelly Baumgardner, H. Fasolo, D. Edwards, B. Deliberto, J. Sighn, M. Attygalla, P. Fortaleza, Nguyen, Sands, and Alex Peterson for violation of Rule 18(a) of the Federal Rules of Civil Procedure. The Court grants Plaintiff leave to file an amended complaint within thirty days.

If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only against defendants Bhatt and Heck, Plaintiff may so notify the Court in writing. The Court will then issue an order dismissing James C. Tilton, Nancy Grannis, Renee Kanan, Ken Clark, E. Flores, P. Enriquez, R. Gomez, R. Hall, S.A. Smith, dental Does, medical Does, John Doe 1, John Doe 2, J. Fitter, John Doe 3, A. Kittner, C.A. Collins, C.R. Carlson, Shelly Baumgardner, H. Fasolo, D. Edwards, B. Deliberto, J. Sighn, M. Attygalla, P. Fortaleza, Nguyen, Sands, and Alex Peterson from the complaint and will forward Plaintiff two summons and two USM-285 forms for completion and return. Upon receipt of the forms, the Court will direct the United States Marshal to initiate service of process.

If Plaintiff opts to amend his complaint, Plaintiff must demonstrate in his complaint how the conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980). The complaint must allege in specific terms how each named defendant is involved. There can be no liability under section 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

Plaintiff's amended complaint should be brief, Fed.R.Civ.P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights, Hydrick v. Hunter, 500 F.3d 978, 987-88 (9th Cir.2007). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted).

Plaintiff is further advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987), and must be "complete in itself without reference to the prior or superceded pleading, " Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981)); accord Forsyth, 114 F.3d at 1474.

*9 The Court provides Plaintiff with one final opportunity to amend to cure the deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his third amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.2007) (no "buckshot" complaints).

Based on the foregoing, it is HEREBY ORDERED that:

1. The Clerk's Office shall send Plaintiff a civil rights complaint form;
2. Within thirty (30) days from the date of service of this order, Plaintiff must either:
a. File an amended complaint curing the deficiencies identified by the Court in this order, and limited to alleged events regarding Plaintiff's medical treatment at California Substance Abuse Treatment Facility and State Prison, or
b. Notify the Court in writing that he does not wish to file an amended complaint and wishes to proceed only on the claims identified by the Court as viable/cognizable in this order;
3. Plaintiff may not add any new, unrelated claims to this action via his third amended complaint and any attempt to do so will result in an order striking the third amended complaint;
4. If plaintiff does not wish to pursue this action, plaintiff may file a notice of voluntary dismissal within thirty (30) days from the date of service of this order and
5. If Plaintiff fails to comply with this order, the Court will dismiss this action for failure to obey a court order.

IT IS SO ORDERED.

See

Darren D'Wayne Morris, Portage, WI, pro se.

Before JOEL M. FLAUM, Circuit Judge, MICHAEL S. KANNE, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge.

ORDER

**1 Darren D'Wayne Morris sued a number of prison officials, claiming that he missed meals, showers, and recreation time because his hearing disability prevented him from complying with prison rules. The district court granted summary judgment for the defendants. We affirm.

*688 The facts are uncontested. Morris is a Wisconsin prisoner who was housed in the segregation unit at the Waupun Correctional Institution in August 2006. (He was transferred to Columbia Correctional Institution in October 2006.) Prisoners in segregation at Waupun were alerted to receive their meals, showers, and other essentials by an audio tone sounded over the intercom. If a prisoner did not stand at his cell door when the tone sounded, prison officials assumed that he was refusing the meal or shower. Because Morris suffered from hearing loss in both ears, and at the time had only one functional hearing aid, he could not always hear the tone; he says he missed out on 17 meals between August 4 and August 27. He also sometimes missed showers and recreation, and on eight occasions was not given his medication. (Morris took three prescriptions to treat depression, psychosis, and a fungal infection on his foot.) Morris alerted prison officials numerous times that he had a hearing impairment, requesting a placard for his door so that he would not miss meals or medication. A placard was placed on his door on August 21, though he continued to miss a few meals after that date.

Morris sued for damages and injunctive relief under the Eighth and Fourteenth Amendments and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134. He claimed that the defendants knew about his disability but deliberately disregarded his needs by passing him over for meals and medication. Morris also claimed that the prison's policy requiring him to respond to an audio cue in order to get essential needs violated the ADA, which prohibits discrimination in the provision of public services. 42 U.S.C. § 12132; Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir.2006). He sought damages under the ADA for deprivation of food and medicine, and injunctive relief requiring Waupun to redesign lunchroom facilities to ensure that those with hearing disabilities would be safe even though they could not respond to an audible alarm.

The district court granted summary judgment to the defendants. The court concluded that missing a few meals and doses of medicine did not so seriously deprive Morris as to violate the Eighth Amendment. Moreover, the court concluded that Morris had not established that the defendants were deliberately indifferent to his needs for food and medicine, and that the prison officials were at most negligent. As for the ADA claims, the court concluded that his request for injunctive relief was mooted by his transfer from Waupun, and that his failure to make out an Eighth Amendment claim doomed his request for damages, which are available under Title II only for constitutional violations.

**2 On appeal, Morris contends that the district court improperly granted summary judgment for the defendants. He maintains that a genuine issue exists concerning how seriously he was affected by missing food and medicine. He also contends that his request for injunctive relief was not moot because, as a prisoner serving a life sentence, he is likely to be transferred back to Waupun at some later point.

The Eighth Amendment requires prison officials to provide adequate food, clothing, shelter, and medical care to prisoners. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sain v. Wood, 512 F.3d 886, 893 (7th Cir.2008). To establish an Eighth Amendment violation, a prisoner must show that he has been severely harmed and that prison officials were deliberately indifferent to that harm. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.2006). This requires that prison officials knew about a substantial risk of *689 harm to the inmate and refused to act to prevent that harm. Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Dale v. Poston, 548 F.3d 563, 569 (7th Cir.2008). Mere negligence-even gross negligencedoes not violate the Constitution. Lee v. Young, 533 F.3d 505, 509 (7th Cir.2008).

Morris argues that his weight loss while in segregation belies the district court's conclusion that he suffered no serious harm. But as the district court noted, he was examined five times by medical staff during his 24-day stay in segregation, and the staff noted no serious medical problem related to weight loss or otherwise caused by missing food or medicine. Whether or not the 17-day delay in placing the placard outside his cell suggests a failure to provide adequate care, Morris cannot establish a constitutional violation because he has not shown that missing his meals or medicine caused serious harm or lasting detriment. See Freeman v. Berge, 441 F.3d 543, 547 (7th Cir.2006) (concluding that even a 45-pound weight loss would not support a claim without evidence of serious suffering or lasting harm); Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir.2003) (upholding jury's finding that missing one week of HIV medication did not cause serious injury); Zentmyer v. Kendall County, III., 220 F.3d 805, 811-12 (7th Cir.2000) (concluding that missing some doses of medicine was not a constitutional violation without showing of serious harm).

As for his ADA claims, although Morris correctly notes that Title II applies to prisoners, see Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir.2000), the district court correctly rejected his request for injunctive relief. "[W]hen a prisoner who seeks injunctive relief for a condition specific to a particular prison is transferred out of that prison, the need for relief, and hence the prisoner's claim, become moot." Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir.2004); see also Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.1996). Morris was transferred to Columbia in October 2006, and he needed to provide more than just his conjecture of a possible return to Waupun to stave off dismissal for mootness. Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); Moore v. Thieret, 862 F.2d 148, 150 (7th Cir.1988).

**3 But his claim for damages based on past conduct is not mooted by his transfer. Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.2009). The district court correctly recognized that Title II creates a private cause of action for damages against states for conduct that violates the Fourteenth Amendment, and so Title II abrogates state sovereign immunity at least for those claims that independently violate the Constitution. United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006); Toeller v. Wis. Dep't of Corr., 461 F.3d 871, 874 (7th Cir.2006). As the district court properly stated, though, Morris's inability to establish an Eighth Amendment claim forecloses this avenue for relief.

But the district court did not note that in Georgia the Court left open the question whether the ADA could validly abrogate sovereign immunity for non-constitutional violations. 546 U.S. at 159 , 126 S.Ct. 877. In reserving this question, the Court instructed lower courts to determine in the first instance, claim by claim, whether Congress's purported abrogation of sovereign immunity is valid when the challenged conduct violates the ADA but not the Constitution. Georgia, 546 U.S. at 159, 126 S.Ct. 877.

But Title II only provides for damages if a public official intentionally discriminates because of disability. See *690 Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 278 (7th Cir.2007); Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir.2002); Delano-Pyle v. Victoria County, Tex., 302 F.3d 567, 574 (5th Cir.2002). And Morris has not shown that any discrimination he suffered was intentional. Prison officials initially subjected him to their policy requiring prisoners in segregation to respond to an audio cue. But Morris's complaints about not being able to hear the audio cue were heeded by the prison administrators, who placed a placard outside his cell to alert guards that he had a hearing disability, and the administrators followed up by sending the guards a memorandum regarding his condition. The fix was simple, low-cost, low-tech, and effective to bootwithin days Morris stopped missing meals. One wonders why then it took seventeen days to implement. Prison officials' initial failure to accommodate Morris's disability might at worst constitute negligence, but negligence alone cannot support a Title II claim. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001) (concluding that bureaucratic negligence would not establish intentional discrimination). Because Morris presented no evidence to support a damages claim under the ADA for intentional discrimination, we need not reach the question whether the ADA validly abrogates Wisconsin's sovereign immunity.

AFFIRMED.

Edward Lee Hicks, Canon City, CO, pro se.

James Lawrence Burgess, Writer Mott, Golden, CO, Jennifer Susan Huss, Colorado Attorney General's Office, Denver, CO, for Defendants.

ORDER ADOPTING THE RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE

WILLIAM J. MARTINEZ, District Judge.

*1 This matter is before the Court on (i) the January 23, 2012 Recommendation by U.S. Magistrate Judge Kathleen M. Tafoya (ECF No. 61) (the "January 23, 2012 Recommendation") that Defendants Keller, Holst, Russell, Steinbeck, and Nelson's (the "CDOC Defendants") Motion to Dismiss Plaintiff's Amended Complaint be granted in part and denied in partFN1, and (ii) the March 7, 2012 Recommendation by U.S. Magistrate Judge Tafoya (ECF No. 79) (the "March 7, 2012 Recommendation") (jointly, the "Recommendations"), that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot be granted. These Recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

FN1 On April 19, 2012, per stipulation, all claims against Defendants Anderson, Doe, Kemp, and Tawnie (the "Jefferson County Defendants") were dismissed with prejudice. (ECF No. 96.) Therefore, the Court only reviews the January 23, 2012 Recommendation insofar as it deals with the non-Jefferson County Defendants, and the Jefferson County Defendants' Motion to Dismiss (ECF No. 26) is Denied as Moot.

I. BACKGROUND

The facts relevant to a resolution of these Motions to Dismiss are detailed in the Recommendations. Briefly, Plaintiff is a currently incarcerated pro se prisoner with the Colorado Department of Corrections ("CDOC"). (Am. Compl. (ECF No. 15.)) Defendants are various employees of the CDOC. ( Id. ) The instant lawsuit arises from Plaintiff's claims that Defendants lost and failed to replace his hearing-aid.

Plaintiff's operative Complaint for purposes of resolving the Motions to Dismiss was filed on June 3, 2011.FN2 ( Id. ) Plaintiff's Amended Complaint alleges violations of the Eighth and Fourteenth Amendments of the United States Constitution, brought under 42 U.S.C. § 1983, and violations of the Americans with Disabilities Act ("ADA"). ( Id. )

FN2 Plaintiff's Amended Complaint does not feature any exhibits. However, Plaintiff's original Complaint, filed February 18, 2011 (ECF. No. 1) does contain exhibits, and it is clear that Plaintiff, in his Motion to Dismiss Response, is attempting to refer to the exhibits attached to his original Complaint. Accordingly, the Court construes Plaintiff's Amended Complaint to include the exhibits attached to his original Complaint-specifically pages 8-83 of Document Number 1 as scanned by the Clerk of Court.

On August 29, 2011, the CDOC Defendants filed their Motion to Dismiss requesting that the Court dismiss all claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of jurisdiction over the subject matter, failure to state a claim upon which relief can be granted, and qualified immunity. (CDOC Mot. to Dismiss (ECF No. 46.)) On October 28, 2011, Plaintiff filed his Response to the CDOC Defendants' Motion (ECF No. 55), and the CDOC Defendants filed their Reply to Plaintiff's Response on November 14, 2011 (CDOC Reply (ECF No. 57)).

On the January 23, 2012, the Magistrate Judge issued her Recommendation that the CDOC Defendants' Motion to Dismiss be granted in part and denied in part, as described below in the analysis section. (ECF No. 61.) On February 6, 2012, the CDOC Defendants filed a timely Objection to the January 23, 2012 Recommendation (CDOC Obj. (ECF No. 64)), and Plaintiff filed his Objection on February 27, 2012 (Pl. Obj. (ECF No. 77)).FN3

FN3 By Court Order, Plaintiff was given until February 28, 2012 to file his Objection to the January 23, 2012 Recommendation. (ECF No. 67.)

On January 30, 2012, the CDOC Defendants filed a Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot, arguing that Plaintiff's recent receipt of a hearing-aid mooted his claims for injunctive relief. (ECF No. 62.) On February 27, 2012, Plaintiff filed his Response to the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief. (ECF No. 76).

On the March 7, 2012, the Magistrate Judge issued her Recommendation that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot be granted. (ECF No. 79.) Neither party filed an objection to the March 7, 2012 Recommendation.

*2 For the reasons stated below, Plaintiff's and the CDOC Defendants' objections to the January 23, 2012 Recommendation are OVERRULED, the Magistrate Judge's January 23, 2012 Recommendation is ADOPTED in its entirety, and the CDOC Defendants' Motion to Dismiss is GRANTED in part and DENIED in part. Further, the Magistrate Judge's March 7, 2012 Recommendation is ADOPTED in its entirety, and the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot is GRANTED.

II. LEGAL STANDARDS

When a Magistrate Judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the District Court Judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." Fed.R.Civ.P. 72(b)(3). In conducting its review, "[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Id.

A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971). When considering a Rule 12(b)(1) motion, however, the court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's "factual allegations... [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.2007) ( citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf& Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (citation omitted).

*3 The concept of "plausibility" at the dismissal stage refers not to whether the allegations are likely to be true; the court must assume them to be true. See Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192-93 (10th Cir.2009). The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law. See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008).

Further, in considering the Magistrate Judge's Recommendations in the instant case, the Court is also mindful of Plaintiff's pro se status, and accordingly, reads his pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in Plaintiff's use of legal terminology and proper English. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Pro se status does not relieve Plaintiff of the duty to comply with various rules and procedures governing litigants and counsel or the requirements of the substantive law and, in these regards, the Court will treat Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994).

III. ANALYSIS

A. The January 23, 2012 Recommendation

The Magistrate Judge's January 23, 2012 Recommendation contains numerous findings and conclusions. (Jan 23, 2012 Rec. at 31-32.) Neither party objects to the majority of these findings. However, the CDOC Defendants object to the Magistrate Judge's recommendation that their Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity be denied (CDOC Obj. at 3-4), and Plaintiff objects to the Magistrate Judge's recommendation that all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities be dismissed. (Pl. Obj. at 1-8). The Court will review de novo each portion to which a specific objection was made. Otherwise, the Court will review the January 23, 3012 Recommendation for clear error. Fed.R.Civ.P. 72(b)(3).

1. The CDOC Defendants' Objections

The Magistrate Judge recommends that the CDOC Defendants' Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity be denied. (Jan. 23, 2012 Rec. at 20-25.) The CDOC Defendants object to this recommendation arguing that Plaintiff fails to state an Eighth Amendment claim against Defendant Nelson, and that she is entitled to qualified immunity. (Obj. at 3-9.)

Plaintiff seeks to establish that Defendant Nelson was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. (Am. Compl. at 20-23.) In order to state an Eighth Amendment cruel and unusual punishment claim, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.2006) ( quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), cert. denied, 549 U.S. 856 (2006). "The test for constitutional liability of prison officials [under an Eighth Amendment cruel and unusual punishment claim] involves both an objective and a subjective component.'" Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.2005). As the Tenth Circuit has explained:

*4 to properly set forth an Eighth Amendment claim on which relief may be granted, [the prisoner] must set forth facts demonstrating [1] that his alleged medical need... was sufficiently serious to meet the objective element of the deliberate indifference test, and [2] that the Defendants' delay in meeting that need caused him substantial harm. Finally, to meet the subjective element of the deliberate indifference test, [the prisoner] must allege facts supporting an inference [3] that Defendants knew about and disregarded a substantial risk of harm to his health or safety.

Oxendine v. Kaplan, 241 F.3d 1272, 1276-77 (10th Cir.2001) (quotations omitted). "A medical need is serious if it has been diagnosed by a doctor or is one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996) (citation and internal quotation omitted).

After a thorough examination of the record, the Magistrate Judge recommends that while Plaintiff fails to state a claim for deliberate indifference against Defendants Keller, Holst, Russell, and Steinbeck in their individual capacities, Plaintiff's allegations against Defendant Nelson satisfy both prongs of the Eighth Amendment inquiry. (Jan. 23, 2012 Rec. at 20-25.) The Court agrees.

Reading Plaintiff's Amended Complaint in the light most favorable to him, as the Court must on a Motion to Dismiss, Plaintiff has sufficiently alleged that Defendant Nelson denied Plaintiff a replacement hearing-aid with deliberate indifference to his serious medical need. (Am. Compl. at 20-23.) Plaintiff alleges that despite learning of the circumstances surrounding the loss of his hearing-aid, including that Plaintiff's hearingaid was provided by the CDOC and that he was not responsible for its loss, Defendant Nelson nevertheless informed Plaintiff that his request for a replacement hearing-aid was denied. ( Id., Exs. 4A, 14, 15.) Moreover, Defendant Nelson informed Plaintiff that he would be responsible for replacing the hearing-aid, at a cost of between $4, 000 and $5, 000. ( Id. at 14.) Plaintiff's allegations of intentional deprivation of his hearing-aid, a necessary medical devise, sufficiently state a claim that Defendant Nelson was deliberately indifferent to Plaintiff's serious medical needs. See Large v. Wash. Cnty. Detention Ctr., 915 F.2d 1564, 1990 WL 153978, at *2 (4th Cir. Oct. 16, 2007) ("under appropriate circumstances the refusal to supply a hearing aid to a convict could constitute deliberate indifference to a serious medical need"); Kollyns v. Gintoli, No. 04-cv-2322, 2006 WL 2706962, at *6 n. 7 (D.S.C. Sept. 15, 2006) ("In certain circumstances, the failure to provide basic corrective/medical devices may amount to deliberate indifference to a serious medical need."); Snodgrass v. Heinzl, 05-cv-608, 2005 WL 3465546, at *7 (W.D.Wisc. Dec. 16, 2005) (declining to dismiss a deliberate indifference claim based on "a state official's failure to provide a prisoner with hearing aids after tests show he needed them to hear because [i]t is arguable that if the normal function[ ] of... hearing can be restored easily by such things as a... hearing aid, a state's refusal to provide these things would violate the Eighth Amendment."). Accordingly, the Court finds that Plaintiff has sufficiently alleged a § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity.

*5 Defendants also argue that Defendant Nelson is entitled to qualified immunity in her individual capacity on Plaintiff's Eight Amendment claim. (CDOC Obj. at 9-10.) When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff who must meet a heavy twopart burden. See Maestas v. Lujan, 351 F.3d 1001, 1006-1007 (10th Cir.2006). The plaintiff must first establish that the defendant's actions violated a constitutional or statutory right. Id. If the plaintiff establishes a violation of a constitutional or statutory right, he must then demonstrate that the right at issue was clearly established at the time of the defendant's unlawful conduct such that a reasonable person in defendant's position would have known that his conduct violated that right. See Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir.2006). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in the defendant's position] that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001).

The Court finds that Defendant Nelson is not entitled to qualified immunity. "[T]here is little doubt that deliberate indifference to an inmate's serious medical need is a clearly established constitutional right." Mata, 427 F.3d at 749; see also Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir.2001) ("A prison official violates an inmate's clearly established Eighth Amendment rights if he acts with deliberate indifference to an inmate's serious medical needs"); Ayotte v. McPeek, 08-cv-02508, 2009 WL 1965705, at *5 (D. Colo. June 5, 2009) (concluding that a refusal to provide batteries for and/or service the plaintiff's hearingaid should not be dismissed because it remained to be seen whether the plaintiff's condition amounted to a "serious medical need"). Thus, a reasonable prison official in Defendant Nelson's position should or would have understood he was violating Plaintiff's constitutional rights to adequate medical treatment by denying him his prison-issued hearing-aid, and Plaintiff had an established constitutional right to his hearing-aid under the circumstances. See Saucier, 533 U.S. at 202. As such, viewing the facts in the light most favorable to Plaintiff, Defendant Nelson's conduct violated Plaintiff's established constitutional right to receive adequate attention for a serious medical condition, and Defendant Nelson is not entitled to qualified immunity on Plaintiff's Eighth Amendment claim.

For the reasons stated above, the CDOC Defendants' Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity is denied.

2. Plaintiff's Objections

Plaintiff objects to the Magistrate Judge's recommendation that all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities be dismissed. (Pl. Obj. at 1-8.)

*6 The Court has thoroughly reviewed the January 23, 2012 Recommendation and agrees with the Magistrate Judge that all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities should be dismissed. Plaintiff's factual allegations support an inference that Defendants Keller, Holst, Russell and Steinbeck either acted negligently by losing Plaintiff's hearing-aid or acted in a manner that did not constitute deliberate indifference to his medical needs. (Am. Compl. at 8-14, 20, Exs. 14, 14A, 14B, & 14C.) For example, Plaintiff admits that his hearing aid was "negligently lost." ( Id. at 8); see also Farmer, 511 U.S. at 834 (negligence is insufficient to state a claim for deliberate indifference). Accordingly, Plaintiff's allegations do not sufficiently establish that these defendants acted with deliberate indifference to his serious medical needs. See Larson v. Meek, 240 F.App'x 777, 781 (10th Cir.2007) (defendant's "denial of [ ] grievances alone is insufficient to establish personal participation in the alleged constitutional violations."); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (holding that mere participation in the grievance process, without any connection to the violation of constitutional rights, generally is insufficient to establish personal participation).

Plaintiff also fails to state a claim under the ADA against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities. Plaintiff's claim against these Defendants arises under Title II of the ADA, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; see also Robertson v. Las Animas Cnty. Sheriffs Dept., 50 F.34d 1185, 1193 (10th Cir.2007) (Title II of ADA "extends to discrimination against inmates detained in a county jail."). However, "[t]he proper defendant in a Title II claim is the public entity itself or an official acting in his or her official capacity." Nasious v. Colo.-Office ofGovernor Bill Ritter, 09-cv-01051, 2011 WL 2601015, at *3 (D. Colo. June 29, 2011) (citation omitted). Accordingly, to the extent that Plaintiff seeks to hold the CDOC Defendants individually liable for violations of the ADA, the Court finds that Plaintiff's ADA claims are properly dismissed.

Therefore, all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities are dismissed with prejudice.

3. Findings Without Objection

Neither party has objected to the following Magistrate Judge's recommendations:FN4

FN While neither party objected to the Magistrate Judge's recommendation that Plaintiff's § 1983 claims for injunctive relief proceed, Plaintiff's claims for injunction relief are discussed in the March 7, 2012 Recommendation section below.
(1) the dismissal of Plaintiff's § 1983 claims for damages and declaratory relief against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their official capacities;
*7 (2) the dismissal of Plaintiff's § 1983 Fourteenth Amendment claim against Defendant Nelson in her individual capacity;
(3) the dismissal ofPlaintiff's ADA claim against the Defendant Nelson in her individual capacity;
(4) denying dismissal of Plaintiff's ADA claims against the CDOC Defendants in their official capacities;
(5) denying dismissal of Plaintiff's request for punitive damages under § 1983; and
(6) denying dismissal of Plaintiff's request for compensatory damages for emotional and mental trauma.

(Jan. 23, 2012 Rec. at 31-32.)

The Court has reviewed these rulings of the Magistrate Judge and finds no clear error in these determinations. See Fed.R.Civ.P. 72(b) advisory committee's note; Thomas v. Arn, 7 U.S. 10, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). Accordingly, the Magistrate Judge's January 23, 2012 Recommendation is adopted with respect to these claims.

B. The March 7, 2012 Recommendation

The Magistrate Judge's March 7, 2012 Recommendation recommends that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot (ECF No. 62) be granted, and that Plaintiff's claims for injunctive relief be dismissed, because Plaintiff finally received a replacement prison-issued hearing-aid on December 7, 2011. (Mar. 7, 2012 Rec. at 2-4.) Neither party has objected to this recommendation.

The Court has reviewed the March 7, 2012 Recommendation and finds no clear error in its determination. See Fed.R.Civ.P. 72(b) advisory committee's note; Thomas, 474 U.S. at 150. Accordingly, the Magistrate Judge's March 7, 2012 Recommendation is adopted in its entirety.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Defendants' and Plaintiff's objections to the Magistrate Judge's January 23, 2012 Recommendation (ECF No. 61) are OVERRULED and the Recommendation is ADOPTED in its entirety;

2. The Magistrate Judge's March 7, 2012 Recommendation (ECF No. 79) is ADOPTED in its entirety;

3. The CDOC Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 46) is GRANTED IN PART and DENIED IN PART;

4. The Jefferson County Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 26) is DENIED AS MOOT;

5. Plaintiff's § 1983 claims for damages and declaratory relief against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their official capacities are DISMISSED WITH PREJUDICE;

6. Plaintiff's § 1983 Fourteenth Amendment claim against Defendant Nelson in her individual capacity is DISMISSED WITH PREJUDICE;

7. Plaintiff's § 1983 claims against Defendants Keller, Holst, Russell, and Steinbeck in their individual capacities are DISMISSED WITH PREJUDICE;

8. Plaintiff's ADA claims against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their individual capacities are DISMISSED WITH PREJUDICE;

*8 9. The CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot (ECF No. 62) is GRANTED, and Plaintiff's claims for injunctive relief are DISMISSED WITH PREJUDICE;

10. The CDOC Defendants' Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity is DENIED;

11. The CDOC Defendants' Motion to Dismiss Plaintiff's ADA claims against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their official capacities is DENIED;

12. The CDOC Defendants' Motion to Dismiss Plaintiff's request for punitive damages under § 1983 is DENIED; and

13. The CDOC Defendants' Motion to Dismiss Plaintiff's request for compensatory damages for emotional and mental trauma is DENIED.

*655 Stephen Craig Burnett, Holdenville, OK, pro se.

Kari Yvonne Hawkins, Esq., Assistant General Counsel, Oklahoma Department of Corrections, Oklahoma City, OK, Darrell L. Moore, J. Ralph Moore PC, Pryor, OK, for Defendants-Appellees.

Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

ORDER AND JUDGMENTFN*

FN* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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.

MICHAEL R. MURPHY, Circuit Judge.

**1 Plaintiff Stephen Craig Burnett, a state prisoner proceeding pro se, appeals from *656 the district court's order dismissing his civil-rights complaint and denying his motion to add a defendant. The magistrate judge assigned to the case issued a report and recommendation in which he concluded that Mr. Burnett's claims against Joseph Taylor, the warden at the Cimarron Correctional Facility (Cimarron) were moot and should be dismissed without prejudice. As to Justin Jones, the director of the Oklahoma Department of Corrections, the magistrate judge found that even if the claims against him were not moot, those claims should be dismissed with prejudice because the complaint failed to state any claims upon which relief could be granted and it would be futile to amend. Last, the magistrate judge denied Mr. Burnett's motion to add Robert Ezell, the warden at the Davis Correctional Facility (Davis), as a defendant. The district court adopted the report and recommendation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.

Mr. Burnett was confined at Cimarron when on April 8, 2010, Mr. Taylor ordered a facility-wide lockdown due to wide-spread gang activity. On May 7, Mr. Burnett filed suit for declaratory and injunctive relief under 42 U.S.C. § 1983 against Messrs. Taylor and Jones. Normal operations at Cimarron resumed on May 28.

The linchpin of Mr. Burnett's suit was not whether prison officials had the authority to impose a lockdown, but instead whether the restrictions imposed during the lockdown so altered the conditions of his confinement as to violate his constitutional rights: "Plaintiff's central claim... is that he was subjected to unconstitutional conditions of confinement while being on lockdown(s). It is the conditions of confinement during lockdown that is the issue, not the fact of being on lockdown itself." Aplt. Reply Br. at 2. In particular, he cited restricted showering, telephone use, inmate interaction, exercise, and visitation. He also complained that he was served brown bag meals more frequently and had to eat in his cell. In addition to not having access to the ice machine and microwave oven, he alleged that normal medium security activities such as rehabilitation programs, education classes, library use, and organized religious activities were suspended. In September 2010, while his suit was pending, Mr. Burnett was transferred to Davis.

Shortly after the transfer, Mr. Ezell placed Davis on a thirteen-day lockdown. Several months after the first lockdown at Davis had ended, Mr. Burnett sought to add Mr. Ezell as a defendant "in that the same situation regarding prison lockdowns [that existed at Cimarron] exists at the Davis Correctional Facility." Aplt.App. at 390. In his motion, Mr. Burnett did not question the authority of the warden or the department of corrections to institute a lockdown, but simply the resulting conditions of confinement: "Plaintiff is not complaining about being locked down... [which is a] normal situation[ ]. Plaintiff is, however, raising the same complaint as he raised already in this case regarding the overly harsh, punitive conditions of confinement and the duration of his being locked down." Id. Mr. Burnett's motion listed the same deprivations he experienced at Cimarron as discussed above.FN1

FN1 Following the filing of his motion to add Mr. Ezell as a defendant, Mr. Burnett notified the district court of two other lockdowns at Davis.

*657 **2 The magistrate judge concluded that Mr. Burnett's claims for declaratory and injunctive relief were moot for two reasons: (1) the lockdown at Cimarron had ended; and (2) Mr. Burnett had been transferred to another facility. The magistrate judge also concluded that even if Mr. Burnett's claims against Mr. Jones "were construed to come within the exceptions to mootness, such claims should be dismissed because the allegations in the complaint fail to state a claim against him." Id. at 415. He also denied Mr. Burnett's motion to add Mr. Ezell as a defendant.

We agree with the magistrate judge that Mr. Burnett's claims against Mr. Taylor are moot. See Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.1997) (holding that claims for injunctive and declaratory relief are moot where the prisoner has been transferred and is no longer subject to the conditions of confinement on which his claims are based). We also conclude that Mr. Burnett's claims against Mr. Jones are moot, but for a slightly different reason. We acknowledge that "where a prisoner brings a lawsuit challenging policies that apply in a generally uniform fashion throughout a prison system, courts have been disinclined to conclude that the prisoner's declaratory or injunctive claims are moot, even after he has been transferred to another prison in that system." Jordan v. Sosa, 654 F.3d 1012, 1028 (10th Cir.2011). And we also recognize that Mr. Jones, the director, was named as a defendant. However, Mr. Burnett has not pled or argued the existence of any policies that impose any particular restrictions during a lockdown, including the duration of any such action. As such, his claims against Mr. Jones are moot because they do not concern any policy that applies in a generally uniform fashion throughout the Oklahoma prison system. Because we affirm on the grounds of mootness, we do not reach the merits of the claim. Moreover, once a case becomes moot, "the federal court must dismiss the action for want of jurisdiction." Jordan, 654 F.3d at 1023 (quotation marks omitted). And "[i]t is fundamental... that a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore dismissal of the [ ] claim must be without prejudice." Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir.1973). Accordingly, Mr. Burnett's claims against Mr. Jones should have been dismissed without prejudice.

Last, we agree that the magistrate judge properly denied Mr. Burnett's motion to add Mr. Ezell as a defendant for substantially the same reasons explained by the magistrate judge in his report and recommendation, i.e., the failure to allege the sort of atypical and significant hardship necessary to trigger due process protections, citing Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Estate of DiMarco v. Wyoming Dep't of Corrections, Div. of Prisons, 473 F.3d 1334, 1339 (10th Cir.2007).

The judgment of the district court is therefore AFFIRMED in part and REVERSED and REMANDED in part, with directions to district court to dismiss Mr. Burnett's claims against Mr. Jones without prejudice. We GRANT Mr. Burnett's motion for leave to proceed on appeal without prepayment of costs or fees and remind him that he must make partial payments until the entire appellate filing fee is paid in full. We DENY Mr. Burnett's Motion For Leave To Supplement Appeal.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.