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Harvey v. Segura

United States District Court, D. Colorado

August 14, 2014

CATHERINE SEGURA, in her official and individual capacity and LT. BRET LANG, (Unit 4), in his official capacity, Defendants.


R. BROOKE JACKSON, District Judge.

This matter is before the Court on the April 29, 2014 Recommendation [ECF No. 76] of Magistrate Judge Boyd N. Boland that the Court grant in part and deny in part Defendants Segura and Lang's Motion to Dismiss Plaintiff's Second Amended Complaint [ECF No. 56]. The Recommendation is incorporated herein by reference. See 28 U.S.C. ยง 636(b)(1)(B); Fed.R.Civ.P. 72(b).

The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. [ECF No. 76 at16 n.5.] The defendants filed objections to portions of the Recommendation on May 13, 2014. [ECF No. 82]. The plaintiff effectively filed two requests for an extension of time to object to the Recommendation on the grounds that he did not receive a full copy of the Recommendation when it was published. [ECF Nos. 90 & 95]. The Court issued an order to send Mr. Harvey another copy of the Recommendation and also extended his response deadline to July 25, 2014. [ECF No. 96]. Mr. Harvey filed his objections on July 17, 2014. [ECF No. 105]. For the following reasons, the Recommendation is affirmed and adopted except to the extent that it recommends the Court maintain two claims that were left unaddressed by the defendants' original motion to dismiss. The Court will address each of these claims in this Order.


Following the issuance of a magistrate judge's recommendation on a dispositive matter, the district court judge must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). The district judge is permitted to "accept, reject, or modify the recommended disposition; receive further instruction; or return the matter to the magistrate with instructions." Id. "In the absence of timely objection, the district court may review a magistrate... [judge's] report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It 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.")). "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 note of advisory committee on rules (collecting cases).

The Court liberally construes the filings of a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as the advocate of the pro se litigant, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. E.g., Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).


A thorough summary of the factual background of this case was provided in the Recommendation, which has been incorporated herein. Plaintiff Nathaniel James Harvey III is a prisoner currently incarcerated at the Colorado Department of Corrections ("DOC") at the Colorado State Penitentiary. However, at all times relevant to the allegations of the Complaint Mr. Harvey was incarcerated at the Fremont Correctional Facility ("FCF"). The Complaint asserts seven claims for relief, though claims three and four have been dismissed. See [ECF No. 31]. The remaining claims are as follows:

Claim One: Illegal strip search (a) in violation of the Eighth Amendment and (b) in retaliation for complaints made about staff harassment in violation of the First Amendment;[1]

Claim Two: Confiscation of kufi (religious head covering) in violation of (a) the First Amendment; (b) the Religious Land Use and Institutional Persons Act ("RLUIPA"); and (c) the Equal Protection Clause of the Fourteenth Amendment;

Claim Five: Defendant Lang's (a) violation of the plaintiff's right to equal protection by "denying plaintiff a reasonable response to oral and written complaints;" (b) failure to properly supervise Defendant Segura; and (c) violation of the Eighth Amendment by being deliberately indifferent "to plaintiff's health or safety";

Claim Six: Strip Search in violation of (a) the Equal Protection Clause of the Fourteenth Amendment; and (b) the First Amendment;[2] and

Claim Seven: Confiscation of kufi in violation of (a) the First Amendment and (b) the Equal Protection Clause of the Fourteenth Amendment.

Mr. Harvey seeks declaratory and injunctive relief as well as compensatory and punitive damages.


The defendants moved to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns whether the Court has jurisdiction to hear the case before it. "Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). "Jurisdiction is a threshold question that a federal court must address before reaching the merits of a statutory question, even if the merits question is more easily resolved and the party prevailing on the merits would be the same as the party that would prevail if jurisdiction were denied." Id. "[S]tatutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction." F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Montoya, 296 F.3d at 955 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Subject matter jurisdiction may be challenged by a party or raised sua sponte by the Court at any point in the proceeding. Fed.R.Civ.P. 12(h)(3); Harris v. Illinois-California Exp., Inc., 687 F.2d 1361, 1366 (10th Cir. 1982).

In reviewing a 12(b)(6) motion to dismiss, the Court must accept the well-pleaded allegations of the complaint as true and construe them in the plaintiff's favor. However, the facts alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations that are purely conclusory need not be assumed to be true. Id. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). The Court looks to the factual allegations made within the pleadings and not in other filings with the Court. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) ("The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.").

For ease of reference, the Court analyzes each claim in the manner and order presented in the Recommendation.

A. Official Capacity Claims

Judge Boland recommended that the Court dismiss the official capacity claims for monetary damages on the basis of Eleventh Amendment immunity. [ECF No. 76 at 5]. In his objection, Mr. Harvey states that "[g]enerally, a suit against an employee is treated as a claim against the employer, which is D.O.C. Consequently, the motion should be denied to the extent it seeks dismissal of the claims against the defendants in their official capacities for retroactive monetary relief." [ECF No. 105 at 6]. The plaintiff cites one case in support of this conclusion, Farmer v. Perrill, 275 F.3d 958 (10th Cir. 2001). That case, however, discusses whether a Bivens action is barred by prior judgment under the Federal Tort Claims Act of a claim involving the "same subject matter." Simply put, the case does not resolve this issue.

As Judge Boland explained in his Recommendation, the Eleventh Amendment sovereign immunity doctrine provides that state officials acting in their official capacities cannot be sued for retroactive monetary relief. [ECF No. 76 at 5] (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03, 105-06 (1984)). This rule applies in all cases, ...

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