United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter comes before the court on the "Partial Motion to Dismiss Third Amended Complaint" filed by Defendants Burke, Travis, Will, and Herrera. (Doc. No. 48 [Partial Mot. Dismiss], filed August 14, 2013.) Plaintiff filed his response on September 13, 2013 (Doc. No. 34 [Resp. Partial Mot. Dismiss]). Defendants did not file a reply.
Also before the court is the "Motion to Dismiss Third Amended Complaint" filed by Defendants Raemisch, Kirby, and Foster on October 21, 2013. (Doc. No. 62 [Mot. Dismiss].) Plaintiff filed his response on November 14, 2013. (Doc. No. 67 [Resp. Mot. Dismiss].) Defendants did not file a reply.
These motions are ripe for recommendation and ruling.
STATEMENT OF THE CASE
The following allegations are taken from Plaintiff's Third Amended Complaint (Doc. No. 47 [Complaint], filed July 13, 2013). At all times relevant to the Complaint, Plaintiff was a prisoner in the custody of the Colorado Department of Corrections ("CDOC"). During the relevant time period, Plaintiff was housed in the south building of the Centennial Correctional Facility ("CCF-South"), located in Cañon City, Colorado.
During his incarceration at CCF-South, a correctional officer, Malissa Jones ("Ms. Jones"), allegedly attempted to develop an inappropriate personal relationship with Plaintiff. Plaintiff alleges on or about January 20, 2011, Ms. Jones told Plaintiff that they should write to each other because she wanted to get to know Plaintiff and she wanted them to be friends. Plaintiff alleges on or about January 25, 2011, Ms. Jones escorted Plaintiff back to his cell from a shower. After letting Plaintiff back into his cell and shutting the door, and as Plaintiff was changing into a clean set of clothes, Ms. Jones peered through the window of Plaintiff's cell and asked to see his genitalia. Ms. Jones' behavior caused Plaintiff to feel extremely uncomfortable. After the January 25, 2011, incident, Plaintiff asked Ms. Jones to leave him alone. After Plaintiff rejected Ms. Jones' sexual advances, he later learned that on the same day, January 25, 2011, Ms. Jones had entered a negative chronological entry ("chron") against him. The negative chron alleged that Plaintiff had violated a posted operational rule that prohibited prisoners from placing any items on their in-cell computer kiosk. Plaintiff believed that the chron was illegitimate and lodged against him in retaliation for his refusal of Ms. Jones's sexual advances. On February 13, 2011, Plaintiff initiated the CDOC grievance process by filing a step one grievance against Ms. Jones, alleging that she had engaged in sexual misconduct and retaliated against him.
On March 8, 2011, Defendant Herrera came to CCF-South to speak with Plaintiff about the allegations made in his step one grievance, specifically Plaintiff's allegations that Ms. Jones had engaged in sexual misconduct. Defendant Herrera asked Plaintiff whether he could produce any evidence, other than his own statement, in support of the allegations of sexual misconduct contained in his grievance. Plaintiff responded that any evidence, other than his own statement, in support of his allegations was in the hands of CDOC. Defendant Herrera informed Plaintiff that because he could produce no evidence other than his own statement in support of his allegations of Ms. Jones's sexual misconduct, Plaintiff would be "written up"-i.e. prison disciplinary charges would be initiated against him-for "False Reporting to Authorities" ("False Reporting").
After his interview with Plaintiff, Defendant Hererra directed Defendant Travis to initiate Code of Penal Discipline ("COPD") charges against Plaintiff for False Reporting. On March 17, 2011, Defendant Travis interviewed Plaintiff about his grievance against Ms. Jones. He asked whether Plaintiff could produce evidence in support of the allegations contained in the grievance, and Plaintiff responded that perhaps Defendant Travis should check video footage and other prison records from the unit to see the frequency with which Ms. Jones would visit Plaintiff's cell to talk to him and search his cell. Plaintiff alleges that after Defendant Travis interviewed Plaintiff on March 17, 2011, Defendant Travis directed CDOC Correctional Officer Hartung ("Ms. Hartung") to go to Plaintiff's cell for the purpose of manufacturing evidence in support of the False Reporting charge.
On March 25, 2011, Defendant Travis signed a "Notice of Charge" ("COPD Notice") document indicating that Plaintiff was being charged with False Reporting. Defendant Will approved the charges, and signed the COPD Notice as the "reviewing supervisor." The factual summary set forth on the COPD Notice described Plaintiff's conversation with Defendant Travis on March 17, 2011, stated that the conversation was an "investigation, " and alleged Plaintiff had provided Mr. Travis with false information during that "investigation."
On April 1, 2011, Defendant Burke presided over a formal COPD hearing against Plaintiff. Defendant Will presented CDOC's case against Plaintiff as the disciplinary officer; specifically, she read the factual summary from the COPD Notice into the record, produced Plaintiff's chron record, an affidavit from Ms. Jones, and a memorandum from Mr. Herrera.
Plaintiff presented his side at the hearing, explaining how Ms. Jones had made numerous inappropriate advances toward him, including the one documented in his grievance. Plaintiff advised that video footage from his unit might show the frequency with which Ms. Jones visited his cell and that cell search records would reveal the frequency with which Ms. Jones was in his cell going through his personal effects. Plaintiff also advised that simply because there was insufficient evidence available to pursue criminal charges against Ms. Jones, as Defendant Herrera had concluded, that did not mean that Plaintiff had knowingly made false allegations against Ms. Jones.
On April 4, 2011, Defendant Burke signed a Disposition of Charge ("COPD Disposition") form indicating that he had found Plaintiff guilty of False Reporting. Defendant Burke sanctioned Plaintiff with fifty days' punitive segregation and forty-five days' loss of good time. On April 6, 2011, Defendant Foster signed the COPD Disposition affirming the guilty finding. On April 7, 2011, Plaintiff filed an administrative appeal of the guilty finding asserting that CDOC lacked sufficient evidence to support a guilty finding for False Reporting and that the conviction was made in retaliation for Plaintiff's filing of a grievance. On May 17, 2011, Defendant Burbank signed the administrative appeal, upholding the guilty finding. Plaintiff began serving his sanction of fifty days punitive segregation on or around May 17, 2011.
Plaintiff alleges during his fifty-day punitive segregation sentence, he suffered extreme sleep deprivation and a psychotic break, as well as severe anxiety, depression, paranoia, and auditory hallucinations. On May 21, 2011, Plaintiff attempted suicide and subsequently was placed on suicide watch until May 30, 2011.
To challenge his False Reporting conviction, Plaintiff filed a civil complaint, pursuant to Colorado Rule of Civil Procedure 106.5, in Fremont County District Court, Case Number 2011-cv-79. The complaint alleged that CDOC had abused its discretion and exceeded its jurisdiction when Plaintiff was convicted of False Reporting, and that the conviction violated his rights to due process and to be free from retaliation for the exercise of his right to free speech. The Fremont County District Court judge agreed that CDOC had abused its discretion and exceeded its jurisdiction when it convicted Plaintiff of False Reporting, and on or around January 26, 2012, remanded the COPD case back to CDOC for a new hearing.
On remand, a new hearing chairperson, correctional officer R. Olivett ("Officer Olivett"), was assigned to Plaintiff's case. At the hearing on remand, Officer Olivett questioned Defendant Travis as to whether, as part of his investigation of the False Reporting charge, he had reviewed the video footage Plaintiff had previously directed him to. Defendant Travis responded that he had not. Subsequently, Officer Olivett went off the record and discussed the hearing with other CDOC staff members outside Plaintiff's presence. Upon return to the record, Officer Olivett found Plaintiff not guilty of False Reporting.
On February 13, 2012, the second COPD Disposition was signed, indicating that Plaintiff had been found not guilty. On February 15, 2012, an expungement order for the 2011 COPD conviction for False Reporting entered.
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).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 1950.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1940. Moreover, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. at 1949 (citation omitted). "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.'" Iqbal, 129 S.Ct. at 1949 (citation omitted).
At the outset, the court notes that Plaintiff's Complaint is inartfully drafted. Plaintiff asserts three claims for relief. The First Claim for Retaliation is asserted against Defendants Herrera, Travis, Burke, Will, Burbank, and Foster in their individual capacities. Plaintiff clarifies in his response to the Partial Motion to Dismiss that the Second and Third Claims for Relief are asserted against Defendants Raemisch and Kirby in their official capacities only. (Resp. Partial Mot. Dismiss at 6.)
1. First Claim for Relief for Retaliation asserted against Defendants Foster, Burke, and Will
Defendants Burke, Will, and Foster argue that Plaintiff fails to state a retaliation claim against them. (Partial Mot. Dismiss at 2-4; Mot. Dismiss at 2-5.)
"The existence of an improper motive for disciplining a prisoner which results in interference with a constitutional right" may give rise to a cause of action pursuant 42 U.S.C. § 1983. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). Access to the courts is a fundamental right protected by the Constitution, including the First Amendment right to petition the government for redress of grievances. Nordgren v. Milliken, 762 F.2d 851, 853 (10th Cir. 1985). Because a prisoner must first file a grievance in order to ultimately gain access to courts to state a claim for relief pursuant to 42 U.S.C. § 1997e, punishing him for actually filing a grievance would state a claim for both denial of access to the courts and violation of the First Amendment. See id. ("It is also one aspect of the First Amendment right to petition the government for redress of grievances"). Therefore, "[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts." Maschner, 899 F.2d at 947. "This principle applies even where the action taken in retaliation would be otherwise permissible." Id. at 948. Nevertheless, a prisoner is "not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prisons merely because he has engaged in protected activity." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). That is, not "every response to a prisoner's exercise of a constitutional right gives rise to a retaliation claim." Dawes v. Walker, 239 F.3d 489, 492-93 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). Instead, "in order to establish a First Amendment retaliation claim, a prisoner must demonstrate that he was (1) engaged in ...