United States District Court, D. Colorado
PETER P. MAUCHLIN, Plaintiff,
WARDEN B.R. DAVIS, DR. P. ZHON, Psychologist, ASSOCIATE WARDEN MUNSON, ASSOCIATE WARDEN MILUSNIC, CHIEF CORRECTIONAL SUPERVISOR KRIST, CHIEF CORRECTIONAL SUPERVISOR LLOYD, UNIT MANAGER P. RANGEL, and CORRECTIONAL SUPERVISOR JANSON, Defendants.
RAYMOND P. MOORE, Judge.
This matter is before the Court on United States Magistrate Judge Boyd N. Boland's Recommendation ("Recommendation") (ECF No. 132) and Defendants' Objection to the Recommendation ("Objection") (ECF No. 133). Magistrate Judge Boland recommended that this Court grant Defendants' Motion to Dismiss (ECF No. 121) Plaintiff's Second Amended Complaint ("Complaint") (ECF No. 115) in its entirety as to Plaintiff's Fifth and Fourteenth Amendment claims. As to Plaintiff's Eighth Amendment claim, Magistrate Judge Boland recommended this Court grant Defendants' Motion to Dismiss as to Defendant Davis and deny as to Defendants Zohn, Munson, Milusnic, Krist, Lloyd, Rangel, and Janson.
For the reasons stated below, the Court AFFIRMS, ADOPTS, and MODIFIES in Part the Recommendation, OVERRULES in Part Defendants' Objection, GRANTS Defendants' Motion to Dismiss Plaintiff's Fifth and Fourteenth Amendment Claims, GRANTS Defendants' Motion to Dismiss to the extent Plaintiff's Complaint asserts supervisory liability under the Eighth Amendment as to all Defendants, GRANTS Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claim based upon personal participation as to Defendant Davis and DENIES Defendants' Motion to Dismiss Plaintiff's Eighth Amendment personal participation claim as to the remaining Defendants.
I. LEGAL STANDARDS
A. Review of the Magistrate Judge's Report and Recommendation
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. One Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("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.").
B. Standards for Dismissal
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must be dismissed if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Id. at 555 (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. A "plaintiff must nudge  [his] claims across the line from conceivable to plausible' in order to survive a motion to dismiss.... Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original, internal citation and quotation omitted).
The Tenth Circuit Court of Appeals has held "that 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) (internal quotation and citation omitted). The Tenth Circuit has further noted "that the nature and specificity of the allegations required to state a plausible claim will vary based on context." Id. (Internal quotation and citation omitted.) Thus, the Tenth Circuit "concluded the Twombly/Iqbal standard is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme C]ourt stated will not do.'" Id. (Citation omitted.)
For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pled factual allegations in the complaint as true and resolve all reasonable inferences in a plaintiff's favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir. 1998) (citation omitted); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996) (citations omitted). However, "when legal conclusions are involved in the complaint the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions...." Khalik, 671 F.3d at 1190 (quoting Iqbal, 556 U.S. at 678). "Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Id.
C. Pro Se Status
Plaintiff is proceeding pro se. The Court, therefore, reviews his pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). 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). 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 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf) (citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct arguments or theories for the plaintiff in the absence of any discussion of those issues) (citations omitted). Plaintiff's pro se status does not entitle him to application of different rules of civil procedure. See Hall, 935 F.2d at 1110; Wells v. Krebs, Case No. 10 CV 00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010) (citation omitted).
D. Biven's Claims
Plaintiff brought this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 115 at 4.) Under Bivens, "it is particularly important' that plaintiffs make clear exactly who is alleged to have done what to whom, ... as distinguished from collective allegations." Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (alteration in original) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). "When various officials have taken different actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his rights were violated' will not suffice. Likewise insufficient is a plaintiff's more active-voice yet undifferentiated contention that defendants' infringed his rights." Pahls, 718 F.3d at 1225-26 (emphasis in original and citations omitted). "It is incumbent upon a plaintiff to identify specific actions taken by particular defendants' in order to make out a viable... Bivens claim." Id. at 1226 (emphasis in original) (citing Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998)).
II. FACTUAL AND PROCEDURAL BACKGROUND
No party objects to the Magistrate Judge's recitation of Plaintiff's factual allegations against Defendants or to the Magistrate Judge's recitation of the case's procedural history. Accordingly, the Court adopts and incorporates the factual and procedural history included within the Recommendation as if set forth herein. (ECF No. 132 at 2-6.)
Briefly, Plaintiff, at times relevant to the Complaint, was an inmate of the Federal Bureau of Prisons ("BOP") incarcerated at the United States Penitentiary, Administrative Maximum in Florence Colorado ("ADX"). (ECF No. 115 at 6.) Plaintiff's Complaint arose from his conditions of confinement while housed in the ADX's "Lower A' Range" or the "Special Housing Unit" ("SHU"). (ECF No. 115 at 6.) Plaintiff made several general allegations that pertain to all Defendants or are couched in the passive-voice with the actor who subjected him to such treatment left undefined. (ECF No. 115 at 4-13.) Additionally, Plaintiff made specific allegations as to each Defendant regarding that Defendant's treatment of him. (ECF No. 115 at 13-18.)
Plaintiff brought claims against all Defendants for violating his Fifth, Eighth, and Fourteenth Amendment rights. (ECF No. 115 at 13-18.) Plaintiff did not specify which of his Fifth and Fourteenth Amendment rights are at issue despite briefly referring to "equal protection" and "due process" rights. (ECF No. 115 at 12-13.) The Magistrate Judge found no allegations supporting a Fourteenth Amendment claim. (ECF No. 132 at 6.) Moreover, the Magistrate Judge concluded that the Fifth Amendment claim was the improper vehicle for asserting the claims herein. (ECF No. 132 ...