United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is an Amended 12(b)(6) Motion to Dismiss filed by Defendants Intervention and its subsidiary, ICCS ("Intervention Community Correction Services "), Greg Kildow, CEO, All the Board Members of Intervention, and Geri Anna Echlenberg [filed August 24, 2014; docket #50]. Although provided the opportunity to do so, the Plaintiff did not respond to the motion. The Court concludes oral argument would not materially assist the Court in its adjudication of the motion. For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART the Defendants' motion.
Plaintiff, proceeding pro se, initiated this action on January 28, 2014 against Intervention Community Correction Services ("ICCS"), Greg Kildow, CEO, All the Board of Directors of ICCS, and Geri Anna Echlenberg, Case Manager at ICCS (collectively "Defendants"). Docket #1. Pursuant to a court order during initial review, Plaintiff subsequently filed an Amended Prisoner Complaint on February 26, 2014 and a Second Amended Complaint on March 24, 2014. Dockets ##11, 14. Defendants responded by filing a motion to dismiss the Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on June 6, 2014. Docket #33. Plaintiff filed a response to the motion on June 20, 2014 (docket #35), and Defendants filed a reply in support of their motion on July 3, 2014 (docket #36). The Court held a Scheduling Conference in this case on July 14, 2014 and three days later, Plaintiff filed a motion to amend her pleading again. Dockets ##37, 40.
After directing the Plaintiff to properly file a motion and a proposed amended pleading, the Court granted Plaintiff's motion, accepted her Third Amended Complaint re-naming the Defendants as set forth in the caption above, and denied without prejudice the Defendants' pending motion to dismiss. Dockets ## 48, 49. Plaintiff's operative claims against Defendants include: Claim 1, violation of the Eighth Amendment to the U.S. Constitution; Claim 2, violation of the Fourteenth Amendment to the U.S. Constitution; Claim 3, Duress; and Claim 4, violation of the Americans With Disabilities Act ("ADA"). Third Amended Prisoner Complaint, Docket #49.
The operative complaint seeks: (1) payment of Plaintiff's hospital bills approximating $800.00; and (2) $50, 000 in punitive damages for the alleged constitutional and statutory violations. Id. at 9. In support of these requests, Plaintiff alleges she has asthma and is severely allergic to cigarette smoke. She was moved to ICCS in August 2013 and placed in a room with five cigarette smokers. Id. at 3. Plaintiff claims Defendants refused to permit her to seek medical help and refill her rescue inhaler, denied her a prescribed Epi-Pen and, one night, denied all of her medication. Id. at 4. She asserts she had two severe asthma attacks: one during which she passed out from lack of oxygen, but Defendants would not call an ambulance; and one after which her rescue inhaler ran out and she was transported to the hospital for nebulizer treatments. Id. She alleges Defendants failed to enforce the "no smoking" rules and allowed inmates to smoke in the bathrooms next to Plaintiff's room. Id. Plaintiff also claims that Defendants refused to accommodate her "70% back disability" and forced her to perform chores requiring heavy lifting and prolonged standing. Id. Finally, Plaintiff alleges she was forced under threat of punishment to sign intake forms without having the opportunity to read them; the forms were later "used against her in court." Id.
As set forth above, the day Plaintiff's rescue inhaler ran out, she had a severe asthma attack. During the attack, ICCS staff members joked saying, "should we make her walk to the bus or call an ambulance?" Id. at 5. The thought of walking to the bus caused Plaintiff to have a panic attack in the middle of her asthma attack. Id. At the hospital, the doctor noted (in writing) that Plaintiff should reside in a smoke-free environment. Id. at 6. Plaintiff was placed in a non-smoking room for three days, but then transferred into a room with two inmates who used tobacco products. Id. The only place Plaintiff could get outside was the back porch at which smoking was allowed; often, the porch door was held open allowing smoke into the living room and laundry room. Id. Plaintiff states that "[s]moke smell permeated the entire building." Id.
Plaintiff alleges that, upon entering ICCS, she was presented a packet of intake paperwork to sign. Id. Because of her restraints, she could not see the content of the documents; however, staff ordered her to sign them under threat of punishment. Id. Plaintiff requested copies of the documents but ICCS would not provide them to her. Id. Plaintiff claims the documents were "later illegally used in a court of law against" her. Id.
Plaintiff also alleges she suffers from back pain and has been diagnosed as 70% disabled and given physical restrictions. Id. at 7. Her restrictions include no lifting over 15 pounds and no standing more than 20 minutes. Id. Plaintiff's was assigned to "kitchen duty" at ICCS, which required her to lift 50-pound bags of cookie mix and other heavy items, to stand longer than five hours, and to drag a heavy vacuum cleaner up two flights of stairs. Id. She informed Ms. Echlenberg and other ICCS staff of her restrictions and was told under threat of punishment that she had to do that chores. Id. Plaintiff claims she was also denied reasonable accommodation in the form of a non-smoking room. Id.
Defendants responded to the Third Amended Complaint by filing the present motion arguing the Plaintiff's claims should be dismissed for failure to state a claim because: there is no specific injury identified as a result of the asthma attack; no cruel and unusual punishment occurred; Plaintiff alleges no deprivation of life or serious bodily injury for her Fourteenth Amendment claim; Plaintiff alleges no damages or injury for signing the intake documents; ICCS is not an employer for purposes of the ADA and Plaintiff failed to exhaust the required administrative remedies; and "All the Board Members of Intervention" have been neither personally named nor served in this case.
I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
"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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . Twombly requires a two prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the 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 680.
Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
II. Dismissal of a Pro Se Plaintiff's Complaint
A federal court must construe a pro se plaintiff's "pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, "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 v. Bellmon, ...