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Shapiro v. Falk

United States District Court, D. Colorado

August 26, 2014

WARDEN JAMES FALK, individually, and in his official capacity as Warden of the Sterling Correctional Facility, MAJOR RAYMOND BILDERAYA, individually, and in his official capacity as Major of Custody and Control of the Sterling Correctional Facility, LIEUTENANT STEVEN WEEDER, individually, and in his official capacity as Lieutenant of Intake and Receiving of the Sterling Correctional Facility, SERGEANT MARCUS RYNEK, individually, and in his official capacity as Sergeant of Intake and Receiving of the Sterling Correctional Facility, and UNIDENTIFIED NORTHERN TRANSPORT UNIT CORRECTIONAL OFFICERS 1 THROUGH 20, individually, and in their official capacities as Transport Officers for the Colorado Department of Corrections, Defendants.


KATHLEEN M. TAFOYA, Magistrate Judge.

This case comes before the court on Defendants Falk, Bilderaya, and Rynek's[1] (hereinafter "Defendants") "Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)." (Doc. No. 16, filed Feb. 3, 2014.) For the following reasons, the court RECOMMENDS that Defendants' Motion to Dismiss be GRANTED in part and DENIED in part.


The following facts are taken from Plaintiff's Amended Prisoner Complaint (Doc. No. 6, filed Nov. 25, 2013) and are presumed to be true for purposes of this Recommendation. Plaintiff is an inmate in the custody of the Colorado Department of Corrections (CDOC) and is currently confined at Sterling Correctional Facility (SCF). (Am. Compl. at 4, ¶ 1.)

On December 6, 2012, Plaintiff was called to the SCF Receiving Unit in order to place his property in storage before being transported to court. ( Id. ¶ 2.) After having his picture taken, Plaintiff was placed in a holding cell with approximately ten other inmates. ( Id. ¶ 6.)

Sometime later, a prison official Plaintiff believes was Defendant Rynek came through the holding cell door and instructed all the inmates to "Drop them!" ( Id. ¶ 10.) Defendant Rynek proceeded to conduct a strip search of all inmates, including Plaintiff. ( See id. ¶ 12.) Plaintiff was forced to lift up his arms and put his fingers in his mouth to show he was not concealing anything orally. ( Id. at 5, ¶ 17.) Plaintiff was then forced to separate his penis from his scrotum and then lift up his scrotum. ( Id. ¶ 18.) Plaintiff was then directed to turn around and lift both his feet so that the officer could inspect whether Plaintiff was concealing contraband in between his toes or on the bottom of his feet. ( Id. ¶ 19.) Finally, Plaintiff was told to bend over, spread his buttocks with his hands, and squat and cough. ( Id. ¶ 20.)

Plaintiff feels ashamed of his body because, in his adolescent, he was diagnosed with non-Hodgkins lymphoma. ( Id. ¶ 14.) He received significant scars from the surgery to remove cancerous tissue and from a reaction to his chemotherapy. ( Id. ) In addition, Plaintiff has large scars on his abdomen from a surgery to remove his spleen. ( Id. ¶ 15.) Finally, Plaintiff maintains that his chest is deformed, such that it appears that he has female breasts. ( Id. ¶ 16.)


Plaintiff's Amended Complaint, filed November 25, 2013, asserts a single claim pursuant to 42 U.S.C. § 1983 for violations of his Fourth Amendment right to be free from unreasonable searches and seizures. ( Id. at 6-7.) Defendants' Motion to Dismiss was filed on February 3, 2014. ( See Mot. Dismiss.) Plaintiff filed his Response on February 28, 2014 (Doc. No. 18) and Defendants filed their Reply on March 14, 2014 (Doc. No. 19). Accordingly, this matter is 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. Failure to State a Claim upon Which Relief Can Be Granted [2]

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). "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, 678 (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 680. Second, the Court considers the remaining factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

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, 556 U.S. at 663. 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 678 (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." Id. (citation omitted).

In making the required determination, "courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253-54 (10th Cir. 2005) ("[A] document central to the plaintiff's claim and referred to in the complaint may be considered in resolving a motion to dismiss, at least where the document's authenticity is not in dispute."). "[F]actual allegations that ...

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