United States District Court, D. Colorado
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.
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). 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 and Tom Clements. 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 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."
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). 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." Mr. Richardson contends that each Defendant personally participated in the alleged constitutional violations "by official omission." 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." 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.
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).
"[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. 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." 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). 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.
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,
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.
*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.
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).
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.
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.
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.
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.
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)).
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 ...