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Reynolds v. Director, Colorado Department of Corrections, Michael Lind

United States District Court, D. Colorado

February 13, 2014

JOHNNY L. REYNOLDS, #113703, Plaintiff,
DIRECTOR, COLORADO DEPARTMENT OF CORRECTIONS, MICHAEL LIND, Captain #3620, CORDOVA, Lieutenant #3191, JONI CORCORAN, Lieutenant #12916, and JOHN REILLY, Correctional Industries Supervisor, Defendants.


KATHLEEN M. TAFOYA, Magistrate Judge.

This case comes before the court on Defendants' "Motion to Dismiss" (Doc. No. 44, filed May 6, 2013.) The court also considers herein Plaintiff's "Motion for Summary Judgment Pursuant to USCS Fed. R. Civ. Proc. R. 56(b)." (Doc. No. 56, filed Dec. 12, 2013 [Mot. Summ. J.].) For the following reasons, the court recommends that Defendants' Motion to Dismiss be GRANTED and that Plaintiff's Motion for Summary Judgment be DENIED as moot.


The following facts are taken from Plaintiff's Second Amended Prisoner Complaint (Doc. No. 29, filed Jan. 31, 2013 [SAC]), the "Evidence, " or exhibits, (Doc. No. 1-1), [1] attached to Plaintiff's Original Complaint (Doc. No. 1, filed Sept. 26, 2013), and the parties briefing with respect to this Recommendation.[2] In this action, Plaintiff, an inmate in the custody of the Colorado Department of Corrections (CDOC), maintains that Defendants violated the Americans with Disabilities Act (ADA) and retaliated against him for exercising his constitutional rights.

Plaintiff alleges that sometime between January 2007 and December 2010, while he was housed at the Limon Correctional Facility (LCF) in Limon, Colorado, he filed a grievance against a female staff member for unprofessional behavior of a sexual nature during "pat down searches." (SAC at 6.) On March 3, 2010, Plaintiff was transported from LCF for a medical appointment with a Neurosurgeon at Denver Health Medical Center. ( Id. at 7.) Upon returning to LCF, Plaintiff learned that Defendant Corcoran, a Sergeant at LCF, had released him from his job as a living unit custodian. ( Id. )

Plaintiff filed several grievances regarding this incident, and received several differing responses for why he was terminated. The response to his first grievance, filed April 6, 2010, stated that Plaintiff was released from this job because he was unable to perform the duties of a living unit custodian. ( Id.; Doc. No. 1-1 at 6-7.) Plaintiff maintains that this is untrue because he was performing the duties of his job up until he left for his medical appointment and, while he did have an "episode of re-injury, " it was only temporary and he later returned to full duty. (SAC at 7.) Plaintiff also maintains that even if he was unable to perform the duties of his job, LCF staff were required to offer him "job accommodations" until he could return to his regular duties. ( Id. )

Plaintiff later filed another Step One grievance regarding this incident on September 12, 2010.[3] (SAC at 8; Doc. No. 1-1 at 22.) In denying this later grievance, Defendant Cordova, an LCF Lieutenant, stated that Plaintiff was terminated from his Living Unit Custodian job due to a Code of Penal Discipline conviction for his conduct while attending the medical appointment at Denver Health. ( See id. ) Plaintiff maintains that this could not have been the justification for the termination of his job because, while he was convicted of a COPD offense, his conviction did not occur until March 16, 2010-one day after he was terminated from his position as a Living Unit Custodian. (SAC at 7.) As such, Plaintiff maintains that Defendant Cordova, "knowingly made false statements" in responding to this grievance. (SAC at 8.)

Plaintiff was later assigned to a job in the LCF kitchen while on "Medical Restrictions" from his back surgery in April 2010. ( Id. at 8.) On or about July 2, 2010, Plaintiff was terminated from this position for refusing to perform duties that violated his medical work restrictions. ( Id. ) Lieutenant Nesby, the kitchen supervisor who initially fired Plaintiff, claimed that Plaintiff's work restrictions were not listed in the computer system and told Plaintiff that if he retrieved documented proof of the restrictions from the LCF medical department, she would reinstate his job. ( Id. )

On July 9, 2010, Plaintiff was ultimately able to obtain proof of his medical work restrictions from his medical provider, Physician's Assistant Giesla Walker. ( Id . at 9.) Upon returning to his living unit, Plaintiff spoke with Captain Outen, the living unit captain, about an unspecific "situation between [Plaintiff] and the living unit staff members in question."[4] ( Id. ) Defendant Corcoran was present during this meeting. ( Id. ) Cpt. Outen stated that he would resolve the unspecified issues in the living unit, but instructed Plaintiff to resolve his issues with respect to his kitchen job on his own. ( Id. )

On July 12, 2010, at 8:00 AM, Plaintiff went to the LCF kitchen to meet with Lt. Nesby. ( Id.; Doc. No. 1-1 at 12.) Lt. Nesby, however, was away, so Plaintiff spoke with Sergeant Schneider. (SAC at 9.) Sgt. Schneider informed Plaintiff that Defendant Corcoran had just called to inform her that the Plaintiff's documentation confirming his work restrictions was false and that Plaintiff should not be rehired. ( Id. )

That same day, Plaintiff filed a grievance against Defendant Corcoran regarding this incident. ( Id.; Doc. No. 1-1 at 12.) That grievance was denied because Plaintiff requested a remedy that was not available to him-namely, that Defendant Corcoran apologize and cease any further harassment. (Doc. No. 1-1 at 12.)

Defendant filed another grievance regarding the termination of his LCF kitchen job on July 20, 2010. (SAC at 9; Doc. No. 1-1 at 9.) Shortly after filing the grievance, Plaintiff met with Defendant Lind. (SAC at 9.) After providing Defendant Lind with "verified documents"-presumably regarding his medical work restrictions-Defendant Lind allegedly agreed to reinstate Plaintiff's job. ( Id. ) However, because Defendant Lind refused to authorize back pay, Plaintiff informed Defendant Lind that he intended to continue to grieve the issue for the "full remedy requested." ( Id. )

On August 12, 2010, Plaintiff was placed back on the work schedule in the LCF kitchen. ( Id. ) That same day he received a response to his Step One grievance from Defendant Lind. ( Id.; Doc. No. 1-1 at 9.) Defendant Lind denied the grievance because Plaintiff's work restrictions were not in place at the time he was terminated from his kitchen job. (Doc. No. 1-1 at 9.) Plaintiff alleges that the denial of this grievance "in effect re-instead [his] wrongful termination and refused the back pay." (SAC at 9.)

On December 15, 2010, Plaintiff was transferred from LCF to Sterling Correctional Facility after he had begun drafting a civil rights complaint. (SAC at 10.) He was transferred back to LCF on March 30, 2012. ( Id. ) Plaintiff alleges that he was transferred to LCF as part of an inmate exchange to fill positions in the Correctional Industries Garment Factory, which is part of the LCF Incentive Unit. ( Id. ) However, before he could be assigned to the Garment Factory, it was required that Plaintiff first be assigned to the LCF kitchen for a minimum of 30 days. ( Id. )

When Plaintiff attempted to obtain the "promised" job assignment with the Correctional Industries Garment Factory, he was denied the job by Defendant Reilly. ( Id. ) Plaintiff filed a grievance and was told he was being denied the position due to "Disruptive Behavior." ( Id. at 6, 10; Doc. No. 1-1 at 35-36.)

Plaintiff also alleges that since he returned to LCF, he has been wrongfully charged for medical services and appointments and that he was injured by security staff during a medical transport. (SAC at 11; Doc. No. 1-1 at 38-40, 42-44.)


Plaintiff initiated this action on September 26, 2012 by filing his original Complaint. ( See Doc. No. 1.) After being directed by Magistrate Judge Boyd N. Boland to cure certain deficiencies in his pleading ( see Doc. Nos. 7, 15 & 23), Plaintiff's Second Amended Complaint was filed on January 31, 2013 (s ee SAC).

On March 6, 2013, Senior District Judge Lewis T. Babcock dismissed Plaintiff's Second Amended Complaint in part. Specifically, Judge Babcock dismissed the Warden of the Limon Correctional Facility, P.A. Giesla Walker, and Grievance Officer Anthony DeCesaro as defendants, as well as the Director of the CDOC in his or her individual capacity. (Order, Doc. No. 33.) Plaintiff's remaining claims are as follows:

Claim One for violations of the ADA against Defendant Director of the CDOC in his official capacity;
Claim Two, a § 1983 retaliation claim against Defendants Corcoran, Cordova, and Lind;
Claim Three, a § 1983 retaliation claim against unspecified defendants based on his transfer to SCF;
Claim Four, a § 1983 retaliation claim against Defendant Reilly; and
Claim Five, apparently a § 1983 claim against unspecified defendants for the wrongful medical charges and injuries caused by security staff during a medical transport.

Defendants' Motion to Dismiss was filed on May 6, 2013. ( See Mot. Dismiss.) On July 18, 2013, Plaintiff filed a "Motion to Deny Defendants [sic] Motion to Dismiss" (Doc. No. 52), which the court construes, and hereinafter refers to, as Plaintiff's Response to Defendants' Motion to Dismiss. Defendants Reply was filed on August 5, 2013. (Doc. No. 54.)

Plaintiff's Motion for Summary Judgment was filed on December 16, 2013. ( See Mot. Summ. J.) Defendants' Response to Plaintiff's Motion for Summary Judgment was filed on January 6, 2014. (Doc. No. 58.) Pursuant to D.C.COLO.LCivR 56.1C and Fed.R.Civ.P. 6(d), Plaintiff had until January 23, 2014 to file a reply. No reply was filed on or before that date.

Accordingly, these matters are ripe for the court's review and recommendation.


A. Pro Se Plaintiff

Plaintiff is proceeding pro se. The court, therefore, "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 (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) (citations omitted). 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, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a 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").

B. Lack of Subject Matter Jurisdiction

Rule 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." See Basso, 495 F.2d at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice is a disposition on the merits which a court lacking jurisdiction may not render).

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

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