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Ramirez v. Cooke

United States District Court, D. Colorado

December 3, 2014

JOE RAMIREZ, Plaintiff,
v.
SHERIFF JOHN COOKE, UNDER SHERIFF JACK MCGRATH, BUREAU CHIEF STERLING GEESAMAN, and COMMANDER GREGORY BROSWELL, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, Magistrate Judge.

This civil action comes before the court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint. Pursuant to the Order of Reference dated February 5, 2014 (Doc. #10) and the memorandum dated May 2, 2014 (Doc. #39), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

At the time this civil action was filed, Mr. Ramirez was incarcerated at the Weld County Jail in Greeley, Colorado. ( See Prisoner Complaint (Doc. #1) at p. 2 of 13). Mr. Ramirez filed the Complaint on January 21, 2014. ( See id. ). On April 22, 2014, the court permitted Mr. Ramirez to amend his Complaint to add the following sentence to paragraph 9: "[A]lso during this time the plaintiff has suffered deterioration of his muscles to which he has lost 8 pounds." ( See "Courtroom Minutes/Minute Order" (Doc. #35)). Mr. Ramirez alleges one claim for relief pursuant to 42 U.S.C. §§ 1983 for "Fourteenth Amendment (Cruel and Unusual Punishment)" based on denial of "regular outdoor exercise, " "pull-up bars, " and "fresh air" between October 28, 2013 and December 26, 2013 and denial of "programming to change... negative behavior" and "any significant means to work his way off his ad-seg status." ( See Doc. #1 at 4-10 of 13). Mr. Ramirez seeks compensatory and punitive damages, and declaratory and injunctive relief, among other things. ( See Doc. #1 at 12-13 of 13).

II. Standard of Review

Defendants have moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on several grounds.[1]

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. 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. [S]tatutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction. The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.

Miller v. U.S. Department of Navy, No. 14-cv-00994-RBJ, 2014 WL 3632130, at *2 (D. Colo. July 23, 2014) (internal quotation marks and citations omitted).[2]

A court may also dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6).

To survive a 12(b)(6) motion to dismiss, the complaint must contain enough facts to state a claim to relief that is plausible on its face. While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, purely conclusory allegations are not entitled to be presumed true. 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.

Edmond v. Broadmoor Hotel, Inc., No. 13-cv-03262-RBJ-KLM, 2014 WL 4244015, at *1 (D. Colo. Aug. 27, 2014) (internal quotation marks and citations omitted).

Because Mr. Ramirez appears pro se, the court reviews his "pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, "the generous construction" that is afforded pro se pleadings has limits, and the court "must avoid becoming the plaintiff's advocate." Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012) (citation omitted). Although the court does not "hold the pro se plaintiff to the standard of a trained lawyer, " it nonetheless relies on "the plaintiff's statement of his own cause of action." Id. (internal quotation marks and citations omitted). Thus, the court "may not rewrite a [complaint] to include claims that were never presented." Id. 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. See Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (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").

On May 2, 2014, the court directed Mr. Ramirez to file any response he had to Defendants' Motion to Dismiss on or before June 2, 2014. ( See Minute Order (Doc. #40)). The court's records indicate that Mr. Ramirez's copy of the Minute Order was not returned in the mail as undeliverable. To date, he has not filed any response to the Motion. "[A] district court may not grant a motion to dismiss for failure to state a claim merely because [a party] failed to file a response." Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (internal quotation marks and citation omitted). "This is consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Issa, 354 F.3d 1177-78 (internal quotation marks and citations omitted). "Consequently, even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted." Id.

III. Analysis

A. Individual Capacity Liability

1. Personal Participation

Mr. Ramirez sues Defendants in both their individual and official capacities. ( See Doc. #1 at 2-3 of 13). To the extent that Mr. Ramirez is suing Defendants in their individual capacities, personal capacity suits pursuant to § 1983 seek to impose personal liability upon a government official for actions he or she takes under color of state law. Kentucky v. Graham, 473 U.S. 159, 164, 165-67 (1985). Individual liability under § 1983, regardless of the particular constitutional theory, must be based upon personal responsibility. See Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir.1997) (individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation) (citation omitted); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (personal participation is an essential allegation in a civil rights action) (citation omitted).

As to Defendant Cooke, Mr. Ramirez alleges only that "Sheriff John Cooke is in charge of the jail as a whole. As such he oversees any making of policy and procedure as well as ensuring that officers are adequately trained." ( See Doc. #1 at 8 of 13). As to Defendant McGrath, he alleges that "Under Sheriff Jack McGrath is a main link in the chain of command. Like Cooke oversees the enforcement and making of policy and procedure....[sic]"). (See Doc. #1 at 9 of 13). However, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A defendant may not be held liable merely because of his or her supervisory position. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). See also Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (noting that "§ 1983 could not be interpreted to incorporate doctrines of vicarious liability"). The Complaint does not set forth any facts to indicate or even imply that Defendants Cooke or McGrath participated directly in or had any direct knowledge of the alleged constitutional violations. See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998) (it is incumbent upon a plaintiff to "identify specific actions taken by particular defendants" in order to make out a viable § 1983 claim); Lewis v. v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010) ("The record before us lacks any evidence suggesting Dr. Tripp's involvement in any of these... unlawful activities."). Thus, Mr. Ramirez fails to state a claim to which relief can be granted against Defendants Cooke and McGrath.

Mr. Ramirez alleges that Defendant Geesaman "is the final step in the grievance process and the only step in appealing ad-seg status" and that Defendant Broswell "conducts ad-seg reviews monthly" and that the conditions of ad-seg were "brought to his and his supervisors['] attention through the grievance process." ( See Doc. #1 at 10 of 13). However, Mr. Ramirez cannot state these Defendants' personal participation in the alleged constitutional violations based merely on their involvement in the grievance process. See Vigil v. Colo. Dept. Corrections, No. 09-cv-01676, 2011 WL 1518660, at *1 (D. Colo. April 20, 2011) ("In the Tenth Circuit, constitutional allegations against an actor whose only involvement was during the grievance process do not state a claim.") (citations omitted); Walker v. Meyer, No. 08-cv-01911, 2009 WL 961490, *4 (D.Colo. Apr.7, 2009) ("[M]ere participation in the grievance process is an insufficient basis for asserting a violation of constitutional rights.... The mere involvement of processing a grievance at an administrative level does not establish the affirmative link required to establish supervisor liability for an employee's conduct.") (internal quotation marks and citations omitted). See also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) ("denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983"); Larson v. Meek, 240 F.App'x 777, 780 (10th Cir. 2007) (fact that Defendants rejected administrative grievances does not demonstrate personal participation in the underlying action that gave rise to the grievances); Whitington v. Ortiz, No. 07-1425, 307 F.App'x 179, 193 (10th Cir. Jan 13, 2009) (dismissing § 1983 claim against Defendant who denied grievance where "[t]here is no allegation that [defendant] had any authority with respect to official CDOC policy or that he personally participated in any of the deprivations that led [plaintiff] to file the grievance in the first place"). Mr. Rodriguez fails to plead sufficient facts to demonstrate that any of the Defendants personally participated in the alleged violation of his constitutional rights.

2. Cruel and Unusual Punishment

Mr. Ramirez alleges violation of the Fourteenth Amendment based on his status as a pre-trial detainee. ( See Doc. #1 at 8 of 13). The rights of "those persons who have been charged with a crime but who have not yet been tried on the charge, " are governed by the Fourteenth Amendment, which prohibits punishment "prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 535 (1979) (footnote omitted); see also Ingraham v. Wright, 430 U.S. 651, 672 n. 40 (1977) ("Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment."). The Supreme Court recognized that the same facts could give rise to both an Eighth Amendment cruel and unusual punishment claim and a substantive due process claim under the Fourteenth Amendment. Whitley v. Albers, 475 U.S. 312, 326-27 (1986). However, "the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners...." Id. at 327. See also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (while Eighth Amendment prohibits infliction of cruel and unusual punishment upon prisoners, it applies only "after [the State] has secured a formal adjudication of guilt in accordance with due process of law.") (internal quotation marks and citation omitted); Bell, 441 U.S. at 536 n. 17 (Punishment constrained by the Eighth Amendment can be imposed only when it "follow[s] a determination of guilt after trial or plea....").

"The due process rights of a person... are at least as great as the Eighth Amendment protections available to a convicted prisoner." City of Revere, 463 U.S. at 244 (citation omitted). "Every circuit that has considered the question has concluded that the Eighth Amendment is the primary source of substantive rights of prisoners and that, with regard to the rights of convicted prisoners, the legal standards under the Eighth and Fourteenth Amendments generally are congruous." Berry v. City of Muskogee, Okl., 900 F.2d 1489, 1494 n. 6 (10th Cir. 1990) (citations omitted).

We agree with the views of the other circuits. Thus, we conclude that the safety and bodily integrity of convicted prisoners implicates both the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's substantive protection against state deprivation of life and liberty without due process of law, and that the legal standards under the two amendments are identical under the facts of this case. Because the Eighth Amendment provides the primary source of protection for prisoners, we will, however, refer to the standard as an Eighth Amendment standard.

Berry, 900 F.2d at 1494 n. 6 (10th Cir. 1990) (citations omitted). Mr. Ramirez's claims are thus properly addressed under Eighth Amendment standards. See Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009) ("anything that would violate the Eighth Amendment would also violate the Fourteenth Amendment) (citation omitted); Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) ("Claims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.").

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. CONST. Amend. VIII. Certain conditions of confinement, if they inflict pain unnecessarily and wantonly, may constitute cruel and unusual punishment under the Eighth Amendment. Whitley v. Albers, 475 U.S. at 319. Where an Eighth Amendment claim is based upon conditions of confinement, an inmate must satisfy a two-prong test that (1) the deprivation suffered was "objectively sufficiently serious, '" and (2) the defendant had a "sufficiently culpable state of mind" or was "deliberately indifferent" to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)).

A prison condition is sufficiently serious under the objective component of the Eighth Amendment test if it denies the inmate "the minimal civilized measure of life's necessities." Anderson v. Colorado, 887 F.Supp.2d 1133, 1139 (D. Colo. 2012) (internal quotation marks and citation omitted). While the Tenth Circuit recognizes that prisoners are generally entitled to outdoor exercise, a denial of outdoor exercise is not an Eighth Amendment violation per se. See Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding that, where inmate was allowed to use outdoor exercise facility for one hour per week, "[a]though this amount of exposure to exercise and fresh air is still restrictive, we cannot say, without more, that it fails to satisfy the demands of the Eighth Amendment."); Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) ("Although we have never expressly held that prisoners have a constitutional right to exercise, there can be no doubt that total denial of exercise for an extended period of time would constitute cruel and unusual punishment prohibited by the Eighth Amendment."), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996); Smith v. Sullivan, 553 F.2d 373, 379 (5th Cir. 1977) ("[C]onfinement for long periods of time without the opportunity for regular outdoor exercise does, as a matter of law constitute cruel and unusual punishment."). Although there is no bright line rule for when denial of outdoor exercise becomes cruel and unusual punishment, the Tenth Circuit has held than an inmate who was denied outdoor exercise for nine months stated a claim for an Eighth Amendment violation. See Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 805 (10th Cir. 1999). See also Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006) (finding that an extended deprivation of outdoor exercise (three years) was a sufficiently serious deprivation to state an Eighth Amendment claim);

Mr. Ramirez does not allege total denial of out-of-cell exercise. He alleges that he was incarcerated in the Weld County Jail's administrative segregation unit from October 28, 2013 to December 26, 2013, a period of 59 days (See Doc. #1 at 4, 6-7 of 13). During his time in administrative segregation, he was allowed to be outside his cell an hour and a half each day in a 12 foot by 12 foot room with a telephone, shower and 2 small windows. (See Doc. #1 at 6 of 13). It is apparent from his allegations that Mr. Ramirez regularly participated in some exercise during the 59 days he was in administrative segregation. As to the objective component of an Eighth Amendment claim, the conditions which Mr. Ramirez alleges do not state a sufficiently serious deprivation to give rise to an Eighth Amendment violation. See Rosales v. Ortiz, No. 06-cv-2438-EWN-CBS, 2008 WL 877173, at **3, 11 (D.Colo. Mar. 27, 2008) (adopting Magistrate Judge's recommendation that a claim related to fifty minutes of indoor exercise per week and forty-five minutes of outdoor exercise every two weeks did not satisfy the objective sufficient deprivation requirement); Pastorius v. Romer, No. 96-1126, 1996 WL 528359, at * 1 (10th Cir. Sept. 17, 1996) (upholding dismissal as frivolous of inmate's claim that he only received one hour of exercise per day, inadequate fresh air, and no direct exposure to sunlight). Compare Parker v. Zavaras, No. 08-cv-00737-MSK-KLM, 2011 WL 1211487 (D.Colo. March 31, 2011) (concluding that denial of outdoor exercise to an inmate for a period of two years and five months stated a claim for relief under the Eighth Amendment).

The subjective component of the Eighth Amendment test requires that Defendants had the culpable state of mind known as "deliberate indifference." Farmer, 511 U.S. at 834. Deliberate indifference requires a higher degree of fault than negligence or even gross negligence. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (citation omitted). An official acts with deliberate indifference if his or her conduct "disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." Berry, 900 F.2d at 1496. "[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847. See also Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997).

Mr. Ramirez has failed to allege deliberate indifference by the Defendants. There are no allegations that Defendants "knew of a substantial risk of harm to plaintiff's well being resulting from the lengthy denial of outdoor exercise and... disregarded that harm." Perkins, 165 F.3d at 810. See also Farmer, 511 U.S. at 837 ("the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference"); C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000) (in order to state a claim under § 1983 for failure to supervise, a complaint must allege that the supervisor had "contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents") (internal quotation marks and omitted). An allegation regarding Defendants' subjective knowledge is particularly important here given that Mr. Ramirez received "an hour and a half" of out-of-cell exercise "per day." ( See Doc. #1 at 6 of 13). As to the subjective component of an Eighth Amendment claim, Mr. Ramirez fails to allege deliberate indifference, as required to state a violation.

In addition to the objective and subjective elements, a plaintiff must demonstrate serious or significant injury resulting from the challenged cruel and unusual prison conditions. See Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993) ("a prisoner must suffer serious or significant physical or mental injury in order to be subjected to cruel and unusual punishment within the meaning of the Eighth Amendment") (internal quotation marks and citation omitted). "A de minimis injury is not sufficient to state an Eighth Amendment claim based upon deprivation of exercise." Hardy v. Bennett, No. 5:06-CT-3107-FL, 2008 WL 5640099, at *3 (ED. N.C. Feb.1, 2008) (citations omitted). Mr. Ramirez alleges no facts in support of his conclusory allegation that he "has suffered from mental and physical health problems due to the defendants['] actions." ( See Doc. #1 at 5 of 13). See Strickler, 989 F.2d at 1380-1381 ("At a minimum, an inmate must specifically describe not only the injury but also its relation to the allegedly unconstitutional condition."). While he alleges that he lost 8 pounds during his placement in administrative segregation, he does not allege his previous or current weight. As Mr. Ramirez fails to allege that he suffered a serious injury resulting from the challenged conditions, he fails to state an Eighth Amendment claim. See, e.g., Garnica v. Washington Dept. of Corrections, 965 F.Supp.2d 1250, 1262 (W.D. Wash. 2013) ("An eight pound weight loss in one month is not considered significant and should not cause adverse health consequences."); McFadden v. Butler, No. 3:10-3104-JMC-JRM, 2012 WL 847754, at * 4 (D.S.C. Feb. 6, 2012) (weight loss of 6 pounds in two months failed to establish any serious or significant physical or emotional injury resulting from the alleged conditions); Evans v. Albany County Correctional Facility, No. 9:05-CV-1400 GTS/DEP, 2009 WL 1401645, at *10 (even assuming that plaintiff lost 30 pounds and experienced dizziness and headaches over a four-month period the court concludes that there is no evidence in the record from which a reasonable fact finder could conclude that plaintiff's " weight loss concerns represented a condition of urgency or resulted in degeneration or extreme pain sufficient to implicate an Eighth Amendment violation'") (citation omitted).

3. Due Process

Mr. Ramirez also alleges denial of "programming to change... negative behavior" and "any significant means to work his way off his ad-seg status." ( See Doc. #1 at 5 of 13). The necessary predicate to a due process claim is a deprivation of a protected interest. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) ("The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property' or liberty.'") (citing U.S. Const., amend. XIV ("nor shall any State deprive any person of life, liberty, or property, without due process of law")). Prisoners do not have a constitutionally recognized liberty interest in their security classification or placement. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration"); Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006) ("classification of a plaintiff into segregation does not involve deprivation of a liberty interest independently protected by the Due Process Clause") (quotation and alterations omitted); Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (Tenth Circuit has explicitly held that "the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.") (internal quotation marks and citation omitted).

However, in Sandin v. Conner, the Supreme Court held that administrative segregation may implicate a liberty interest protected by the Due Process Clause if it "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, " 515 U.S. at 484, or if it "will inevitably affect the duration of his sentence." Id. at 487. See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006) ("the Supreme Court held that a deprivation occasioned by prison conditions or a prison regulation does not reach protected liberty interest status and require procedural due process protection unless it imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'") (quoting Sandin, 515 U.S. at 484). "[T]he touchstone of the inquiry... is not the language of regulations regarding those conditions but the nature of those conditions themselves in relation to the ordinary incidents of prison life." Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (internal quotation marks and citation omitted). Whether confinement "conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination...." Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (citing Sandin, 515 U.S. at 485-87).

"The Tenth Circuit has listed a number of factors that can be considered in determining whether a liberty interest exists in the context of prison segregation, i.e., whether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement... and (4) the placement is indeterminate.'" Anderson v. Colorado, 887 F.Supp.2d 1133, 1149 (D. Colo. 2012) (quoting Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007)). "[A]ny assessment must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." DiMarco, 473 F.3d at 1342 (citation omitted).

Here, the relevant factors weigh against an enforceable liberty interest in Mr. Ramirez's claim regarding his placement in administrative segregation between October 28 and December 26, 2013. Mr. Ramirez has not alleged any effect of his placement in administrative segregation on the duration of his sentence. Nor is there any allegation of atypical or extreme conditions or how the conditions of his confinement differ in any way from those of other prisoners. See Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996) ("In Sandin, the Court held that the plaintiff's discipline in segregated confinement was not the sort of atypical, significant deprivation that would give rise to a liberty interest entitled to due process protection.") (citation omitted); DiMarco, 473 F.3d at 1343 (inmate had access to the basic essentials of life, although her access to certain amenities was more limited than the general population); Blum v. Federal Bureau of Prisons, No. 98-1055, 189 F.3d 477 at * 3 (10th Cir. (Colo.) Aug. 23, 1999) (disciplinary segregation that left inmate "without store privileges, radio, phone calls, etc. that other inmates just being held in segregation had the privileges of" was "not different in such degree and duration as compared with the ordinary incidents of prison life to be a protected liberty interest under the Due Process Clause") (internal quotation marks citations omitted).

Mr. Ramirez does not allege that his placement in administrative segregation is indeterminate; rather, he alleges that it was determinate, from October 28 to December 26, 2013. ( See Doc. #1 at 6 of 13). Mr. Ramirez alleges "ad-seg reviews monthly." ( See Doc. #1 at 10 of 13). See Jones v. Mabry, 723 F.2d 590, 594 (8th Cir. 1983) (due process requires procedure for periodic review of administrative segregation status); Hunt v. Sapien, 480 F.Supp.2d 1271, 1277 (D. Kan. 2007) (placement was not indefinite where reviewed weekly for the first 60 days, and subsequently reviewed monthly, after 180 days, and annually). Mr. Ramirez's allegations based on his administrative segregation placement for 59 days in 2013 do not state a claim to which relief can be granted for violation of his right to due process under the Fourteenth Amendment.

B. Official Capacity Liability

To the extent that Mr. Ramirez is suing Defendants in their official capacities, "a judgment against a public servant in his official capacity imposes liability on the entity he represents...." Brandon v. Holt, 469 U.S. 464, 471-73 (1985) (internal quotation marks and citation omitted). See also Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998) ("[a]n action against a person in his official capacity is, in reality, an action against the government entity for whom the person works."); Smith v. Plati, 56 F.Supp.2d 1195, 1202 (D. Colo.1999) ("a suit against a government employee in his official capacity [is] tantamount to a suit against the government entity itself"). Mr. Ramirez's § 1983 claims against Defendants in their official capacities are properly brought against their employer, the Weld County Sheriff's Office. ( See Doc. #1 at 2-3 of 13).

Municipalities and other local government entities such as the Weld County Sheriff's Office are "persons" under § 1983, and can therefore be sued for their constitutional torts. Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978). However, "[a] municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff." Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quotations omitted). Only "its own unconstitutional or illegal policies" can supply the basis for liability. Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). A municipality or other governmental entity "can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citation omitted). See also Monell, 436 U.S. at 690-91, 694 ("Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.").

In order to hold Defendants liable in their official capacities under § 1983, Mr. Ramirez must allege (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged." Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir. 1996). "[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force' behind the injury alleged."). Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 404 (1997).

[M]unicipal liability under § 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Municipal liability may be based on a formal regulation or policy statement, or it may be based on an informal custom so long as this custom amounts to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage' with the force of law. Municipal liability may be also be based on the decisions of employees with final policymaking authority or the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval. Finally, municipal liability may be based on injuries caused by a failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.

Brammer-Hoelter v. Twin Peaks Charter Academy, 602 F.3d 1175, 1188-89 (10th Cir. 2010) (internal quotation marks and citations omitted).

The policy violation must also demonstrate deliberate indifference to the rights of the plaintiff. City of Canton, 489 U.S. at 388. See also Bryan County, 520 U.S. at 407 ("a plaintiff who seeks to establish municipal liability... must demonstrate that the municipal action was taken with deliberate indifference as to its known or obvious consequences.") (internal quotation marks and citation omitted); Carr v. Castle, 337 F.3d 1221, 1229 (10th Cir. 2003) ("The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm."); Brammer-Hoelter, 602 F.3d at 1188-89 ("municipal liability may be based on injuries caused by a failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused") (internal quotation marks and citations omitted).

First, as the court has determined that Mr. Ramirez fails to allege the requisite predicate of an underlying constitutional violation, he fails to state a claim for relief against Defendants in their official capacities. See Estate of Larsen ex. Rel Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir.2008) ("without the predicate constitutional harm inflicted by an officer, no municipal liability exists") (citation omitted); Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir.2004) (same) (citation omitted). See also Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir.2002) ("We will not hold a municipality liable [for constitutional violations] when there was no underlying constitutional violation by any of its officers.") (internal quotation marks and citation omitted); Ricciuti v. New York City Transit Authority, 124 F.3d 123, 132 (2d Cir.1997) ("a claim of inadequate training and supervision under § 1983 cannot be made out against a supervisory body without a finding of a constitutional violation by the persons supervised") (citation omitted); Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir.1996) ("a municipality may not be held liable where there was no underlying constitutional violation by any of its officers.").

Second, Mr. Ramirez does not identify any policy, practice, or custom of the Weld County Sheriff's Office or allege any facts to suggest a direct causal link between any action of the local government entity and a constitutional violation. See Bryan County, 520 U.S. at 404; Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir.1997). Nor has Mr. Ramirez alleged deliberate indifference. See, e.g., Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th Cir. 1996) (general, conclusory allegations, without supporting factual averments, are insufficient to state a claim for deliberate indifference in violation of the Eighth Amendment); Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (municipal liability attaches only when the entity's policy, practice, or custom "amounted to a deliberate indifference to the constitutional right and was the moving force behind the constitutional violation") (internal quotation marks omitted); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (A municipality may be liable for the failure to supervise or discipline its employees "only where the need to act is so obvious, and the inadequacy of the current practices so likely to result in a deprivation of federal rights, that the municipality or official can be found deliberately indifferent to the need.") (citing City of Canton, 489 U.S. at 390). In sum, Mr. Ramirez's allegations are insufficient to state a claim to which relief can be granted against Defendants in their official capacities under § 1983.

C. Declaratory and Injunctive Relief

Mr. Ramirez alleges that he "was released from ad-seg status on Dec. 26th, 2013." ( See Doc. #1 at 6 of 13). At the Status Conference held on April 22, 2014, he represented that he has not been returned to administrative segregation. As he is no longer in administrative segregation or subjected to the conditions alleged in his Complaint, Mr. Ramirez does not have a viable claim for declaratory or injunctive relief pertaining his access to "fresh air, direct sunlight, regular outdoor exercise, and denial of a pull-up bar" or "jungle gyms." ( See Doc. #1 at 12-13 of 13). See Weaver v. Wilcox, 650 F.2d 22, 27 n. 13 (3d Cir. 1981) (stating that prisoner's transfer from the prison moots claim for injunctive and declaratory relief with respect to prison conditions); Smith v. Hundley, 190 F.3d 852, 855 (8th Cir.1999) (inmate's claims for declaratory and injunctive relief regarding prison conditions were moot when he was transferred to another facility and was no longer subject to those conditions) (citations omitted); Ricco v. Conner, No. 04-3261, 146 F.App'x 249, 253 (10th Cir. Aug. 8, 2005) (prisoner no longer in administrative segregation does not have viable claims pertaining to the administrative segregation sanction) (citation omitted). While Mr. Ramirez alleges that he "was told on his last review that he was subject to being ad-segged again at any time, " he alleges no facts to support a reasonable expectation that he will be subjected to these conditions again. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (recognizing exception to the mootness doctrine where there is a "reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party") (internal quotation marks and citation omitted). The allegations do not support a finding that this is the type of claim to which an exception to the mootness doctrine applies.

D. Qualified Immunity

To the extent that Mr. Ramirez is suing Defendants in their individual capacities, Defendants raise the defense of qualified immunity. Whether a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007), cert. denied, 128 S.Ct. 1229 (2008).

Resolution of a dispositive motion based on qualified immunity involves a two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, ... the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.

Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks and citations omitted). "A reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. "Qualified immunity is applicable unless" the plaintiff can satisfy both prongs of the inquiry. Id.

As the court concludes in this Recommendation that Mr. Ramirez has failed to state any claim for violation of a constitutional right, Defendants in their individual capacities are entitled to qualified immunity. See Wilder, 490 F.3d at 815 (instructing district court on remand to enter judgment in favor of defendant on basis of qualified immunity, where plaintiff failed to carry his burden to show violation of a constitutional right).

Accordingly, IT IS RECOMMENDED that "Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 30)" (filed May 1, 2014) (Doc. #38) be GRANTED and that this civil action be dismissed pursuant to Rule 12(b)(6) for failure to state a claim to which relief can be granted.

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

Before BRORBY, EBEL and LUCERO, Circuit Judges.

ORDER AND JUDGMENT*

* After examining appellant's brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2) and 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

EBEL.

*1 Petitioner-Appellant Chester Blum brought a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Blum raised five claims to establish that his sentence was enhanced without due process of law by prison officials in two related disciplinary hearings. The district court sua sponte denied Blum's petition for relief prior to service of process on respondent, the Federal Bureau of Prisons ("BOP") and denied Blum's motion to proceed in forma pauperis on appeal. We deny Blum's application for in forma pauperis status, and dismiss.

We construe the dismissal of Blum's § 2241 petition as a dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) because (1) he was proceeding in forma pauperis; (2) dismissal occurred prior to service of process; and (3) the district court found most of Blum's claims "without merit." See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993) ("The district court dismissed [plaintiffs § 2241] petition prior to service of process on the defendants; thus, we find that it dismissed the petition as frivolous under 28 U.S.C. § 1915(d), " the precursor to § 1915(e).) We review a dismissal under § 1915(e)(2)(B) (i) for abuse of discretion. See McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir.1997).

On February 12, 1998, Blum, a prisoner at the United States Penitentiary at Leavenworth, Kansas, was found guilty at a prison disciplinary hearing of escape from a secure institution and possession, manufacture, or introduction of a hazardous tool. Blum appealed his disciplinary conviction, and on March 31, 1998, the BOP regional director ordered a de novo rehearing of the charges. On May 5, 1998, Blum was again found guilty of the disciplinary charges against him, and was punished with disciplinary segregation for ninety days, loss of fifty-four days of good time credit, and a disciplinary transfer to the United States Penitentiary in Florence, Colorado.

Blum asserts a due process violation at his disciplinary hearing on February 12, 1998 because his conviction was not supported by evidence in the record. This argument fails because Blum had a de novo rehearing on May 5, 1998 regarding the disciplinary charges against him. Blum was convicted at that rehearing and his subsequent segregation, loss of good-time credit, and transfer were sanctions imposed as a result of the second hearing. Thus, even if there were due process violations at the February 12, 1998 hearing, we would have no basis for overturning Blum's conviction at his May 5, 1998 hearing.1

1 Blum points us to a provision of BOP Directive 5270.07 which states:
Where a remand is directed, the appropriate Unit Discipline Committee or DHO [Disciplinary Hearing Officer] is bound by the original sanction(s), except where the remand is made specifically because of the sanction....
This language has no bearing on Blum's appeal because there was no remand directed regarding Blum's disciplinary conviction. Rather, his disciplinary conviction on February 12, 1998 was reheard anew on May 5.

*2 Blum's second claim alleges a violation of due process under Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), because his May 5 rehearing was not held within a reasonable time after it was ordered on March 31, and a violation of due process under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), because between March 31 and May 5, prison officials continued to house him in harsh, disciplinary segregation.2

2 Blum also refers to this type of segregation as "punitive" confinement or detention.

In Hewitt, the Court held that while a prisoner has no right under the Due Process Clause to remain within the general population, id. at 468, the state of Pennsylvania had created a protected liberty interest through its prison regulations to engage in an "informal, nonadversary review of the information supporting [the prisoner's] administrative confinement... within a reasonable time after confining him to administrative segregation, " id. at 472. However, the Court concluded that the prisoner received all the process due, in part because his hearing took place five days after transfer to administrative segregation. Id. at 477. Blum compares his case to Hewitt and asserts a due process violation occurred because prison officials violated regulations in holding his rehearing nearly five weeks after it was ordered.3

1 We reject Blum's conclusory assertion that we should somehow infer that the result in his rehearing was prejudiced by the fact it was not held until May 5th or by the fact that he had allegedly been "predesignated" to the federal prison in Florence, Colorado. (Aplt.Br. at 11.)

The error in this argument, besides the fact that the Pennsylvania regulations at issue in Hewitt have no relevance to Blum's federal incarceration in Kansas, is that the Supreme Court itself no longer follows the Hewitt methodology to determine whether regulations create liberty interests protected by the Due Process Clause. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Court stated: States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek [v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) ] (transfer to mental hospital), and Washington [v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) ] (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

*3 Id. at 483-84 (other internal citation omitted). In Sandin, "the Court held that the plaintiffs discipline in segregated confinement was not the sort of atypical, significant deprivation that would give rise to a liberty interest entitled to due process protection." Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir.1996). "To reach this conclusion, the Court carefully examined the specific conditions of the prisoner's confinement. The Court determined that the prisoner's conditions essentially mirrored those conditions imposed upon inmates in administrative segregation and protective custody, ' so the prisoner's confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.'" Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 808-09 (10th Cir.1999) (quoting Sandin ).

In Perkins, this court reversed a district court dismissal of a prisoner's due process claim under Sandin where the prisoner alleged that he was wrongfully confined to an eight-foot by fourteen-foot concrete cell for twenty-three and one-half hours a day; was permitted to leave his cell for thirty minutes a day to take a shower, but, when he left his cell, was required to wear a face mask covering his entire head; and was not permitted to exercise outside his cell for over a year. Id. at 809. Unlike the prisoner in Perkins, here, Blum has alleged no facts to show that his confinement presented the type of atypical, significant deprivation that would implicate a liberty interest. Blum alleges that his disciplinary segregation left him without "store privileges, radio, phone calls, etc. that other inmates just being held in segregation had the privileges of, " and that he wrongfully endured mental stress for being punished for an offense "that was fabricated against" him. (Aplt.Br. at 10.) Though mental stress and the loss of benefits complained of may be difficult, we conclude that such conditions are not different in such degree and duration as compared with "the ordinary incidents of prison life" to be a protected liberty interest under the Due Process Clause. See Sandin, 515 U.S. at 484; see also Hewitt, 459 U.S. at 467 ("[L]awfully incarcerated persons retain only a narrow range of protected liberty interests... [O]ur decisions have consistently refused to recognize more than the most basic liberty interests in prisoners."); Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994) ("Changing an inmate's prison classification ordinarily does not deprive him of liberty, because he is not entitled to a particular degree of liberty in prison.").

*4 Blum's third claim alleges interference with and denial of the constitutional right of access to the courts and a First Amendment right to petition the government because the charges levied against him that warranted a disciplinary hearing were supposedly "fabricated" by the investigating officer in retaliation for Blum's prior filing of grievances in regards to his placement in the prison's special housing unit. (Aplt.Br. at 12.). We reject this argument, as the district court below did, because even if an officer were to have filed disciplinary charges against a prisoner for retaliatory purposes, that reason by itself does not provide a basis for this court on habeas review to expunge Blum's underlying disciplinary conviction.4

4 To the extent that Blum's characterization of the charges against him as "fabricated" is a challenge to the sufficiency of the evidence, after reviewing the record, we find that there was sufficient evidence at the May 5 rehearing to support a conviction. Most compelling was the information provided by two confidential sources that detailed the contraband items seized despite no opportunity to observe the items once they were detected by the prison staff. (App.Att. 15.)

Blum also alleges his due process rights were violated because he was denied a purported mandatory right under 28 C.F.R. § 40.7 to appeal to the BOP general counsel the regional director's decision to rehear, instead of dismiss outright, the disciplinary charge. 28 C.F.R. § 40.7 is contained within the Minimum Standards for Inmate Grievance Procedures, regulations authorized by 42 U.S.C. § 1997e(b), which is part of the Prison Litigation Reform Act of 1995. In relevant parts, 28 C.F.R. § 40.7 provides:

(d) Reasoned, written responses. Each grievance [filed by an inmate] shall be answered in writing at each level of decision and review. The response shall state the reasons for the decision reached and shall include a statement that the inmate is entitled to further review, if such is available, and shall contain simple directions for obtaining such review.
(e) Fixed time limits. Responses shall be made within fixed time limits at each level of decision. Time limits may vary between institutions, but expeditious processing of grievances at each level of decision is essential to prevent grievance from becoming moot. Unless the grievant has been notified of an extension of time for a response, expiration of a time limit at any stage of the process shall entitle the grievant to move to the next stage of the process. In all instances grievances must be processed from initiation to final disposition within 180 days, inclusive of any extensions.
(f) Review. The grievant shall be entitled to review by a person or other entity, not under the institution's supervision or control, of the disposition of all grievances, including alleged reprisals by an employee against an inmate. A request for review shall be allowed automatically without interference by administrators or employees of the institution and such review shall be conducted without influence or interference by administrators or employees of the institution.

*5 The district court rejected Blum's due process argument premised on these regulations "because Mr. Blum does not allege that he was denied any of the process to which he is entitled pursuant to Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)...."5 However, Wolff does not necessarily dispose of Blum's claim, because Wolff only addressed (as is relevant here) whether certain statutes and regulations, which were complied with, violated the Due Process Clause. Wolff did not address whether a due process claim arises when an agency violates its own regulations. See Mitchell v. Maynard, 80 F.3d 1433, 1444-45 (10th Cir.1996) (analyzing under Wolff, prisoner's claim that disciplinary hearing violated due process because unreliable evidence was admitted; separately analyzing under Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), prisoner's claim that disciplinary hearing violated due process because defendants failed to follow their own established policy of banning staff members directly involved in the disciplinary case from being the disciplinary officer because "a fundamental requirement of due process is the opportunity to be heard"); see also Caldwell v. Miller, 790 F.2d 589, 609-10 (7th Cir.1986) ("An agency must conform its actions to the procedures that it has adopted. An inmate, too, has the right to expect prison officials to follow its policies and regulations.") (internal citations omitted).

5 To meet the standards of due process in a disciplinary proceeding under Wolff,
the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.
Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); see also Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir.1996). "If there is some evidence to support the disciplinary committee's decision... then the requirements of procedural due process have been met." Id. Nevertheless, we dismiss because even accepting Blum's allegations as true, there has been no violation of federal regulations. Under the regulations' plain language, a prisoner's claim is only entitled to review "by a person... not under the institution's supervision or control." 28 C.F.R. § 40.7(f). Blum's claim was reviewed by the BOP regional director, and Blum is only arguing on appeal that the BOP General Counsel should also have reviewed his claim. Since the BOP General Counsel and the Regional Director are equally independent from the local federal prison, Blum received one level of independent review, which is all that § 40.7(f) requires. Blum does not allege, nor does the record support, that the Regional Director was, and the General Counsel was not, under Blum's prison's "supervision or control." Accordingly, the defendants complied with federal regulations in its handling of Blum's grievance, and no due process violation thereby arises.

*6 Blum also alleges interference with and denial of the constitutional right of access to the courts because he, once again, allegedly was denied his mandatory right under 28 C.F.R. § 40.7 to appeal to the BOP general counsel the regional director's decision to rehear, instead of dismiss outright, the disciplinary charge. According to Blum, though he had appealed the regional director's rehearing order, a rehearing was held despite the absence of any resolution of his intervening appeal to the BOP general counsel. Blum contends that under federal regulations, once he made his appeal to the BOP general counsel, "no further action by prison officials were allowed." (Aplt.Br. at 13.) The district court rejected this claim on jurisdictional grounds, finding in part that Blum had not alleged any "actual injury" in his ability pursue a habeas petition. We agree.

An inmate alleging a violation of constitutional access to the courts "must show actual injury." Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996) (per curiam) (interpreting Lewis). For example, an inmate cannot bring a constitutional access to the court claim simply because that person's prison law library is subpar. See Lewis, 518 U.S. at 351. Rather, such an inmate "must go one step further and demonstrate that the alleged shortcomings in the library... hindered his efforts to pursue a legal claim." Id. ; see also id. (stating that healthy inmate in a prison cannot claim constitutional violation because of inadequacy of the prison infirmary). Here, Blum has failed to show how an error, if any, in holding the disciplinary rehearing before resolution of his appeal to the BOP general counsel "hindered his efforts to pursue a legal claim" in the courts. Therefore, Blum has not suffered an actual injury from the alleged violation of internal grievance procedures, and his constitutional access to the courts claim was properly dismissed below. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.1990); ("[A]n isolated incident, without any evidence of improper motive or resulting interference with [the prisoner's] right to... access to the courts, does not give rise to a constitutional violation.").

Blum's fourth claim specifically alleges a denial of procedural due process under Wolff v. McDonnell . In particular, Blum contends that he was denied advance written notice of the May 5 rehearing, even though he received written notice of the original February 12 hearing, and even though he received oral notice of the rehearing. Blum argues that he was entitled to a written notice for the rehearing "due to changes in the charge or evidence." (Aplt.Br. at 22.) However, the record belies any suggestion that the charges against Blum changed at the rehearing, and, as the district court explained, under Wolff, Blum is entitled to advance written notice of the disciplinary charges against him, not to written notice of the evidence that will be used at the disciplinary hearing.

*7> Blum's fifth and final claim also alleges a denial of due process because the disciplinary hearing officer did not assess whether admitted evidence from two confidential informants was reliable. For the same reasons wellarticulated below, we disagree. The reliability of the confidential informants was established by "some evidence" in the record, as the written statement of reasons indicates that "the confidential informants had corroborating statements which added to their credibility."

The appeal is DISMISSED.

The mandate shall issue forthwith.

Parallel Citations

1999 WL 638232 (C.A.10 (Colo.)), 1999 CJ C.A.R. 4925

Attorneys and Law Firms

Michael Sean Edmond, Colorado Springs, CO, pro se.

Darin L. MacKender, Fisher & Phillips, LLP, Denver, CO, for Defendants.

ORDER

R. Brooke Jackson, United States District Judge

*1 This case comes before the Court on Defendant Barton's Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 22] and on Defendant Broadmoor Hotel, Inc.'s Motion for Partial Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) [ECF No. 23]. The Court asserts jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. For the following reasons, the motions are granted.

BACKGROUND

This case arises out of the plaintiffs failure to be hired as a Temporary Stock Clerk for the Broadmoor Hotel in early December 2010. On December 6, 2010 Mr. Edmond interviewed with Defendant Dana Barton, then Director of Recruitment for the Broadmoor Hotel, over the phone. During the call, Mr. Edmond voluntarily stated that he had a felony conviction from 1999 for sale of a Schedule II controlled substance. Ms. Barton then informed Mr. Edmond that the Broadmoor Hotel could not hire him because of his felony conviction. She sent Mr. Edmond a letter reiterating this position on December 9, 2010. On or around December 13, 2010, Mr. Edmond filed a charge of discrimination with the EEOC alleging race discrimination in violation of Title VII. The EEOC issued a Right to Sue letter on August 30, 2013. Mr. Edmond received this letter on September 2, 2013 and timely filed this lawsuit on November 29, 2013.

Mr. Edmond asserts three claims for relief against the defendants: (1) race discrimination in violation of Title VII; (2) violation of 42 U.S.C. § 1981; and (3) intentional interference with prospective business relations. The first two claims for relief are asserted against both defendants whereas the third is only asserted against Ms. Barton.

Ms. Barton filed an answer and a motion to dismiss simultaneously on June 24, 2014. The Broadmoor Hotel filed its answer on February 11, 2014 and moved for partial motion for judgment on the pleadings on June 24, 2014. Mr. Edmond failed to respond to either dispositive motion. As such, both motions are now ripe for review.

ANALYSIS

To survive a 12(b)(6) motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the wellpleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v. lqbal, 556 U.S. 662, 681 (2009). 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).

While a motion to dismiss must be filed prior to or simultaneously with an answer, a motion made after filing the answer should be treated as a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). The Court applies the same standard when evaluating 12(b)(6) and 12(c) motions. Id.

A. Title VII.

*2 Ms. Barton has moved to dismiss Mr. Edmond's Title VII claim for failure to state a claim upon which relief can be granted. In particular, Ms. Barton contends that she is not an employer under Title VII, and therefore cannot be sued under the Act. Title VII prohibits discrimination by an "employer." See 42 U.S.C. § 2000e-2(a). Under the statue, the term "employer" means "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person...." 42 U.S.C. § 2000e(b). The Tenth Circuit has held that an individual supervisor cannot be held personally liable under Title VII. SeeHaynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) ("[P]ersonal capacity suits against individual supervisors are inappropriate under Title VII."). As such, Ms. Barton cannot be held personally liable for the Broadmoor Hotel's alleged discrimination under Title VII and the claim against her must be dismissed. Because the Broadmoor Hotel did not seek a motion for judgment on the pleadings on this claim, the Title VII claim against it remains.

B. 42 U.S.C. § 1981.

Mr. Edmond alleges that the defendants violated his right under 42 U.S.C. § 1981 to form contracts in the same manner as white citizens when they refused to hire him. According to the Complaint, the defendants refused to hire Mr. Edmond in early December 2010. Because the alleged violation took place nearly three years before Mr. Edmond filed this lawsuit, both defendants have moved to dismiss the claim as time barred. 42 U.S.C. § 1981 does not contain a statute of limitations. The Tenth Circuit has held that "claims under § 1981 relying upon discrimination in contract formation ... [are] governed by residual state statutes of limitations, here two years." Cross v. The Home Depot, 390 F.3d 1283, 1288 (10th Cir. 2004) (applying Colorado state law) (emphasis in original). Because Mr. Edmond's claim relies upon the assertion that he was discriminated against in contract formation, his claim is subject to a two-year statute of limitations. SeeC.R.S. § 13-80-102; Cross, 390 F.3d at 1288. The limitations period begins to run when the plaintiff first knew or should have known of his injury; here, at the time the defendants refused to enter into a contract with Mr. Edmond. CfAlmond v. Unit' ied Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th Cir. 2011). The defendants refused to hire Mr. Edmond in early December 2010, nearly three years before he filed this lawsuit. As such, this claim is time barred and must be dismissed.

C. Intentional Interference with Prospective Business Relations.

Mr. Edmond alleges that Ms. Barton interfered with his prospective employment relationship with Hotel Broadmoor by intentionally misrepresenting the hotel's hiring policy. Ms. Barton argues that this claim is time barred under the applicable statute of limitations. Under Colorado law, tort actions, including ones for interference with relationships, are subject to a two-year statute of limitations. C.R.S. § 13-80-102(1)(a). Once again, the cause of action accrues when the plaintiff knew or should have known of the allegedly tortious conduct. According to Mr. Edmond, the hotel's employment application "specifically states that a criminal conviction or even a criminal charge pending does not automatically disqualify an applicant from employment, " and yet Ms. Barton allegedly stated that the hotel was unable to employ individuals with criminal charges." Complaint [ECF No. 1] at p. 5, ¶¶ 3, 5 (emphasis omitted). Though the Complaint does not say when he became aware of the hotel's official policy, Mr. Edmond's charge of discrimination dated December 24, 20101 states that "[t]he job application stated that my conviction would not prevent me from being hired." [ECF No. 22-1].2 The Court therefore finds that Mr. Edmond was aware of the alleged policy violation, and in turn the tortious conduct, by at least December 24, 2010. This lawsuit was not filed until nearly three years later, rendering it time barred by the applicable statute of limitations.

1 It appears that Mr. Edmond filed two charges of discrimination, one on December 13, 2010 with the EEOC and another on December 24, 2010 with the Colorado Civil Rights Division. Compare [ECF No. 1 at 5] with [ECF No. 22-1].
2 "[I]n general, a motion to dismiss should be converted to a summary judgment motion if a party submits, and the district court considers, materials outside the pleadings." Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999). However, "the district court may consider documents referred to in the complaint if the documents are central to the plaintiffs claim and the parties do not dispute the documents' authenticity." Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

COSTS

*3 The prevailing party is typically awarded its costs pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. However, the Court finds duplicative defense counsel's filing of two separate answers [ECF Nos. 13 & 21] as well as, in effect, two motions to dismiss [ECF Nos. 22 & 23]. Therefore, while costs will still be awarded, the clerk's office shall disregard any amount that would not have been incurred except for these duplicative filings.

ORDER

For the foregoing reasons, Defendant Barton's Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 22] and Defendant Broadmoor Hotel, Inc.'s Motion for Partial Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) [ECF No. 23] are GRANTED. All claims against Ms. Barton have been dismissed. The only claim remaining in this action is Mr. Edmond's Title VII claim against the Broadmoor Hotel.

The parties are hereby ORDERED to contact chambers to set a scheduling conference, which is to take place within the next fourteen (14) days.

As the prevailing party Defendants are awarded their costs pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1 in an amount to be determined by the clerk's office consistent with this Order.

Attorneys and Law Firms

Orrel Evans, Coxsackie, NY, pro se.

Thuillez, Ford, Gold, Butler & Young LLP, Kelly M. Monroe, Esq., of Counsel, Albany, NY, for Defendant Gloria Cooper.

Roche, Corrigan McCoy & Bush, Robert P. Roche, Esq., of Counsel, Albany, NY, for Remaining Defendants.

DECISION and ORDER

Hon. GLENN T. SUDDABY, District Judge.

*1 Currently before the Court in this pro se prisoner civil rights action are (1) Defendant Cooper's motion for summary judgment (Dkt. No. 53), (2) the remaining Defendants' motion to dismiss for failure to state a claim and/or for summary judgment (Dkt. No. 54), (3) United States Magistrate Judge David E. Peebles's Report-Recommendation recommending that Defendant Cooper's motion be granted, and that the remaining Defendants' motion be granted in part and denied in part (Dkt. No. 66), and (4) Defendants' timely Objections to the Report-Recommendation (Dkt. No. 67). For the reasons set forth below, the Report-Recommendation is adopted in part, Defendants' motions for summary judgment are granted in their entirety, and Plaintiff's Second Amended Complaint is dismissed in its entirety.

I. BACKGROUND

A. Relevant Procedural History

On November 9, 2005, Plaintiff filed this action against Albany County Correctional Facility ("ACCF") and five individuals employed by Albany County. On July 13, 2007, Plaintiff amended his Complaint for the second time. (Dkt. No. 27.)Generally, in his Second Amended Complaint, Plaintiff claims that Defendants violated his rights under the First, Eighth and Fourteenth Amendments by failing to provide him on a regular basis with a vegetarian diet which, he maintains, was necessitated by both an allergy to certain foods and his genuinely held religious beliefs. ( Id. ) More specifically, Plaintiff alleges that this failure (1) infringed upon his right to freely exercise his chosen religion, as guaranteed by the First Amendment to the United States Constitution, (2) exposed him to cruel and unusual punishment and/or deliberate indifference to a serious medical need, in violation of the Eighth Amendment, and (3) denied him equal protection under the law, as guaranteed under the Fourteenth Amendment. ( Id. )

On October 2, 2007, Defendants filed their Answer to Plaintiffs Second Amended Complaint. (Dkt. No. 31.)On May 15, 2008, Defendant Gloria Cooper filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 53.)The next day, the remaining Defendants filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and, in the alternative, a motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 54.)

On January 30, 2009, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendants' motions be granted in part and denied in part. (Dkt. No. 66.)Specifically, Magistrate Judge Peebles recommended that (1) all claims against Defendant Cooper be dismissed, (2) all claims against Defendant ACCF be dismissed, (3) Plaintiffs Fourteenth Amendment claim be dismissed, and (4) a trial be held on Plaintiffs remaining First and Eighth Amendment claims because of the existence of genuine issues of material fact. Familiarity with the grounds of the Report-Recommendation is assumed in this Decision and Order.

On February 12, 2009, Defendants (other than Defendant Cooper) filed their Objections to the Report-Recommendation. (Dkt. No. 67.)

B. Undisputed Material Facts

*2 Plaintiff was incarcerated at the ACCF on June 30, 2005. Upon intake, the staff at ACCF performed a medical screening of Plaintiff. During his screening, Plaintiff filled out a medical history and screening form.1 On the form (which he signed), Plaintiff indicated that he had no allergies, medical or otherwise, and further indicated that he did not require any special diet. On July 3, 2005, Plaintiff submitted a Health Services Request Form to the medical department.2 This form did not reference any special/vegetarian diet.

1 (Dkt. No. 54, Part 8, at 5.)
2 ( Id. at 12-13.)

On July 5, 2005, Plaintiff sent a letter to the Inmate Services Unit ("ISU"), in which he indicated-for the first time-that he was a vegetarian.3 Generally, there are at least four separate types of vegetarian diets offered at ACCF.4 In addition, there are at least three separate "vegetarian style" diets, which either include the use of fish, cheese or eggs.5

3 (Dkt. No. 54, Part 7, at 26.)
4 (Dkt. No 54, Part 2, at 3-4.)
5 ( Id. )

On July 7, 2005, Plaintiff submitted a second Health Services Request Form, which again made no reference to any special/vegetarian diet.6 However, on July 8, 2005, Plaintiff submitted a third Health Services Request Form that did indicate that he was a vegetarian, in addition to being allergic to meat and eggs.7 On that same day, the medical department wrote an order for Plaintiff to receive a vegetarian diet.8

6 (Dkt. No. 54, Part 8, at 14.)
7 ( Id. at 15.)
8 ( Id. [noting that a slip was sent].)

On July 20, 2005, Plaintiff submitted a letter to Defendant Rockwell at ISU, in which he complained that it took "years" for him to get his food.9 On July 29, 2005, Plaintiff submitted a letter to ISU, indicating that he was not receiving the proper meals, even though the medical department had indicated that he was a vegetarian.10 On that same day, ISU provided the letter to the kitchen supervisor and to the medical department. ISU also sent a letter to Plaintiff, informing him that his letter had been sent to the "kitchen and medical supervisor, " and that his card on his "tier is marked for a rasafarian [sic] vegitarian [sic] diet."11

9 (Dkt. No. 54, Part 7, at 28.)
10 ( Id. at 30.)
11 ( Id. at 31.)The Court notes that Plaintiff has not alleged facts plausibly suggesting, or adduced admissible record evidence establishing, the particular dietary requirements of his Rastafarian religion.

On July 30, 2005, the medical department prepared a Special Diet Request Form for Plaintiff, which indicated that Plaintiff should receive a vegetarian diet, and should not receive any animal products.12 However, according to Plaintiff, on August 5, 2005, he "again did not receive a meal because [, ] according to an unknown correctional officer, there was nothing in the kitchen stating Plaintiff was to receive vegetarian meals."13 Plaintiff unsuccessfully "tried explaining his situation regarding him not receiving his and having his name removed from the vegetarian diet list to an unknown supervising officer making rounds."14

12 (Dkt. No. 54, Part 8, at 10.)
13 (Dkt. No. 27, 24 [Plf.'s Second Am. Compl.].)
14 ( Id. at ¶ 25.)

As a result, Plaintiff submitted a Health Services Request Form to the medical department on August 20, 2005.15 In this Health Services Request Form, Plaintiff indicated that the "wrong meal" was being sent to him. The form was reviewed by the medical department on August 22, 2005. Defendant Cooper noted on the form that, according to the department's records, Plaintiff had already been placed on a vegetarian diet since August 5, 2005.16 However, according to Plaintiff, even after submitting a grievance on August 20, 2005, regarding the receipt of the wrong meals, he "continued to have problems receiving, and quality of his meals."17

15 (Dkt. No. 54, Part 8, at 16.)
16 ( Id. )
17 (Dkt. No. 27, ¶ 27 [Plf.'s Second Am. Compl.].) The Court notes that, in Plaintiffs last letter to Defendant Rockwell dated September 19, 2005, Plaintiff explained that he had to wait "over 30 minutes or more" for a "court sandwich that was so old bread hard and falling apart."(Dkt. No. 54, Part 7, at 33.) In the same letter, Plaintiff explained that on another occasion, he "had to wait over 40 minutes [to receive his meal] then they sent over a dirty tray. I don't no [sic] who the hell they think they are dealing with that way."( Id. )

*3 In early September 2005, Plaintiff submitted a Health Services Request Form complaining of skin irritation on his face and arm.18 The form did not mention any allergy, or problems with his vegetarian/special diet. After receiving the form, the medical department saw Plaintiff and gave him ointment for an acne breakout.

18 (Dkt. No. 54, Part 8, at 17.)

On October 13, 2005, Plaintiff submitted another Health Services Request Form regarding a problem with urinating.19 The form made no mention of any allergy, or problems with his vegetarian/special diet. On October 14, 2005, Plaintiff was seen for this complaint.

19 ( Id. at 18.)

According to Plaintiff, "[o]n October 20, 2005, [he] received a supposed' vegetarian meal" that was actually "badly burnt eggs and pears."20

20 (Dkt. No. 27, 28 [Plf.'s Second Am. Compl.].)

In addition, attached as an exhibit to his unsworn opposition memorandum of law, Plaintiff has provided the Court with a calendar, in which he has circled 72 days between June 29, 2005, and October 20, 2005, on which he asserts he either (1) "miss[ed]" a meal, or (2) received his meal late.21 The Court notes that, apart from not being attached to an affidavit, the calendar fails to specify which days Plaintiff missed a meal, and which days he simply received his meal late. In addition, the calendar fails to specify whether he missed the meal because (1) he was not given a meal at all, or (2) he was not given the (presumably vegetarian) meal he requested. Finally, the calendar indicates that Plaintiff did not receive a timely meal at ACCF on June 29, 2005 (though incarcerated there at the time), which appears inaccurate because he was not incarcerated at ACCF until June 30, 2005.

21 (Dkt. No. 57, Part 2, at 7, 30.)

In any event, in their memorandum of law in support of their motion for summary judgment, Defendants concede that Plaintiff did not receive a vegetarian meal on a few occasions.22 Furthermore, in their reply papers, Defendants attempt to quantify the extent of this deprivation by indicating that Plaintiff did not receive the proper meal "a half dozen or so times."23

22 (Dkt. No. 54, Part 4, at 3.)
23 (Dkt. No. 59, at 2.) The Court notes that, in their Objections, Defendants offer (for the first time) evidence in support of this estimate, although the Court declines to consider this late-blossoming record evidence, pursuant to the legal standard described below in note 26 of this Decision and Order. ( See, e.g., Dkt. No. 67, Part 1, ¶ 8 [Roche Affid.]: Dkt. No. 67, Part 5, ¶¶ 8-9 [Clark Affid.]; Dkt. No. 67, Part 8 [Ex. C to Clark Affid.]; Dkt. No. 67, Part 9, ¶ 7, 10, 11, 12 [Weis Affid.].)

As a result of the foregoing treatment, Plaintiff alleges that he lost thirty (30) pounds between June 28, 2005, and October 2005.24 Plaintiff also alleges that he suffered from migraine headaches, and dizziness because of his hunger. 25

24 (Dkt. No. 27, 33 [Plf.'s Second Am. Compl.].) Plaintiff alleges that the departmental medical staff at Downstate Correctional Facility (where Plaintiff was transferred on October 25, 2005) has a record of his weight, which supports his weight loss claim. (Id.)
25 ( Id. at 14.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review on Objection from Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).26 When only general objections are made to a magistrate judge's reportrecommendation, the Court reviews the reportrecommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept.22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999). 27 Similarly, when a party makes no objection to a portion of a reportrecommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."28 U.S.C. § 636(b) (1) (C).

26 On de novo review, "[t]he judge may... receive further evidence...." 28 U.S.C. § 636(b)(1)(C). However, a district court will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance. See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994) ("In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.") [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Intl Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990) (district court did not abuse its discretion in denying plaintiffs request to present additional testimony where plaintiff "offered no justification for not offering the testimony at the hearing before the magistrate").
27 See also Vargas v. Keane, 93-CV-7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec.12, 1994) (Mukasey, J.) ("[Petitioner's] general objection [that a] Report... [did not] redress the constitutional violations [experienced by petitioner]... is a general plea that the Report not be adopted... [and] cannot be treated as an objection within the meaning of 28 U.S.C. § 636."), aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169 (1996).

B. Standard Governing Motion to Dismiss for Failure to State a Claim

*4 After the pleadings are closed, a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is properly brought as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir.1983) [citations omitted]; see alsoFed.R.Civ.P. 12(b), 12(c). However, the motion for judgment on the pleadings is then decided according to the same standard as is a motion to dismiss for failure to state a claim. Id.

It has long been understood that a defendant may base a motion to dismiss for failure to state a claim on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F.Supp.2d 204, 211 nn. 15-16 (N.D.N.Y.2008) (McAvoy, J., adopting Report-Recommendation on de novo review) [citations omitted].

With regard to the first ground, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) [emphasis added]. By requiring this "showing, " Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Jackson, 549 F.Supp.2d at 212 n. 17 [citations omitted]. The main purpose of this rule is to "facilitate a proper decision on the merits." Id. at 212 n. 18 [citations omitted].28

28 See also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995) ("Fair notice is that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so it may be assigned the proper form of trial.") [citation omitted]; Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) ("[T]he principle function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial.") [citations omitted].

The Supreme Court has long characterized this pleading requirement under Fed.R.Civ.P. 8(a)(2) as "simplified" and "liberal, " and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement. Id. at 212 n. 20 [citations omitted]. However, even this liberal notice pleading standard "has its limits." Id. at 212 n. 21 [citations omitted]. As a result, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet this liberal notice pleading standard. Id. at 213 n. 22 [citations omitted].

Most notably, in Bell Atlantic Corp. v. Twombly , the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74.The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based], " it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965 [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level], " assuming (of course) that all the allegations in the complaint are true. Id. [citations omitted].29

29 See also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) ("[The Supreme Court] is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible plausibility standard, ' which obliges a pleader to atnplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. ")

*5 As have other Circuits, the Second Circuit has recognized that the clarified plausibility standard that was articulated by the Supreme Court in Twombly governs all claims, including claims brought by pro se litigants (although the plausibility of those claims is to be assessed generously, in light of the special solicitude normally afforded pro se litigants).30 It should be emphasized that Fed.R.Civ.P. 8's plausibility standard, explained in Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated, "Specific facts are not necessary" to successfully state a claim under Fed.R.Civ.P. 8(a)(2). Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) [citation omitted; emphasis added]. That statement was merely an abbreviation of the often-repeated point of law-first offered in Conley and repeated in Twombly-that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Twombly, 127 S.Ct. 1965 n. 3 (citing Conley, 355 U.S. at 47) [emphasis added]. That statement did not mean that all pleadings may achieve the requirement of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to relief above the speculative level to a plausible level.31

30 See, e.g., Jacobs v. Mostow, 271 F.App'x 85, 87 (2d Cir. March 27, 2008) (in pro se action, stating, "To survive a motion to dismiss, a complaint must plead enough facts to state a claim up relief that is plausible on its face.'") [citation omitted] (summary order, cited in accordance with Rule 32.1[c][1] of the Local Rules of the Second Circuit); Boykin v. KeyCorp., 521 F.3d 202, 215-16 (2d Cir.2008) (finding that borrower's pro se complaint sufficiently presented a " plausible claim of disparate treatment, " under Fair Housing Act, to give lenders fair notice of her discrimination claim based on lenders' denial of her home equity loan application) [emphasis added].
31 For example, in Erickson, the Supreme Court held that, because the plaintiff-prisoner had alleged that, during the relevant time period, he suffered fi-om hepatis C, he had alleged facts plausibly suggesting that he possessed a sufficiently serious medical need for purposes of an Eighth Amendment claim of inadequate medical care. Erickson, 127 S.Ct. at 2199-2200. Expressed differently, the Court held that such a plaintiff need not also allege that he suffered an independent and "substantial injury" as a result of the termination of his hepatis C medication (a requirement that had been imposed by the district court). This point of law is hardly a novel one, which is presumably why the Erickson decision was relatively brief. Prior to the Supreme Court's decision, numerous decisions, from district courts within the Second Circuit alone, had found that suffering from hepatitis C constitutes having a serious medical need for purposes of the Eighth Amendment. See, e.g., Rose v. Alvees, 01-CV-0648, 2004 WL 2026481, at *6 (W.D.N.Y. Sept.9, 2004); Verlev v. Goord, 02-CV-1182, 2004 WL 526740, at *10 n. 11 (S.D.N.Y. Jan.23, 2004); Johnson v. Wright, 234 F.Supp.2d 352, 360 (S.D.N.Y.2002); McKenna v. Wright, 01-CV-6571, 2002 WL 338375, at *6 (S.D.N.Y. March 4, 2002); Carbonell v. Goord, 99-CV-3208, 2000 WL 760751, at *9 (S.D.N.Y. June 13, 2000). The important thing is that, in Erickson, even the pro se plaintiff was required to allege some sort of fact.

Finally, in reviewing a complaint for dismissal under Fed.R.Civ.P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor. This standard is applied with even greater force where the plaintiff alleges civil rights violations and/or where the complaint is submitted pro se.However, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), 32 it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.Civ.P. 8, 10 and 12.33 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.34 Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F.Supp.2d at 214 n. 28 [citations omitted].

31 Sealed Plaintif v. Sealed Defendant #1, No. 06-1590, 2008 WL 3294864, at *5 (2d Cir. Aug.12, 2008); see also Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983).
33 See Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir.1972) (extra liberal pleading standard set forth in Haines v. Kerner, 404 U.S. 519 [1972], did not save pro se complaint from dismissal for failing to comply with Fed.R.Civ.P. 8); accord, Shoemaker v. State of Cal., 101 F.3d 108 (2d Cir.1996) (citing Prezzi v. Schelter, 469 F.2d 691) [unpublished disposition cited only to acknowledge the continued precedential effect of Prezzi v. Schelter, 469 F.2d 691, within the Second Circuit]; accord, Praseuth v. Werbe, 99 F.3d 402 (2d Cir.1995).
34 See McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The right of self-representation is not a license... not to comply with relevant rules of procedural and substantive law."); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) ( pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law") [citation omitted], accord, Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983); cf. Phillips v. Girdich, 408 F.3d 124, 128, 130 (2d Cir.2005) (acknowledging that pro se plaintiffs complaint could be dismissed for failing to comply with Rules 8 and 10 if his mistakes either "undermine the purpose of notice pleading [ ]or prejudice the adverse party").

C. Standard Governing Motion for Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed.R.Civ.P. 56(e)(2).

*6 A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation omitted]; see also Fed.R.Civ.P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts."[citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute - even if that nonmoving party is proceeding pro se. 35 (This is because the Court extends special solicitude to the pro se litigant, in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.36 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.36 For this reason, this Court has often enforced Local Rule 7.1(a) (3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement38-even where the nonmoving party was proceeding pro se in a civil rights case.39 35 Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) [citations omitted]; accord, Lee v. Alfonso, No. 04-1921, 2004 U.S.App. LEXIS 21432, 2004 WL 2309715 (2d Cir. Oct. 14, 2004), aff'd, 97-CV-1741, 2004 U.S. Dist. LEXIS 20746, at *12-13 (N.D.N.Y. Feb. 10, 2004) (Scullin, J.) (granting motion for summary judgment); Fox v. Amtrak, 04-CV-1144, 2006 U.S. Dist. LEXIS 9147, at *1-4, 2006 WL 395269 (N.D.N.Y. Feb. 16, 2006) (McAvoy, J.) (granting motion for summary judgment); Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2003) (Sharpe, M.J.) (granting motion for summary judgment); Prestopnik v. Whelan, 253 F.Supp.2d 369, 371-372 (N.D.N.Y.2003) (Hurd, J.).

36 Krug v. County of Rennselaer, 04-CV-0640, 2006 WL 2669122, at *3 (N.D.N.Y. Sept.18, 2006) (McAvoy, J.) ("When dealing with a pro se party, certain procedural rules apply so as to insure that the pro se litigant is not disadvantaged by the lack of legal training. In this regard, the Local Rules require that [a pro se party be informed of the consequences of failing to respond to a motion for summary judgment, before those consequences may be imposed]."); see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) ("This Court has also held that summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default.") [citations omitted].
37 See McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ("Nor does the Constitution require judges to take over chores for a pro se [litigant] that would normally be attended to by trained counsel as a matter of course."); Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) ("[I]in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law [even when that strict adherence inures to the detriment of a pro se litigant]."); Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The right of self-representation is not a license... not to comply with relevant rules of procedural and substantive law."); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) ( "[PJro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.") [citation omitted]; LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir.1995) ("Although pro se litigants should be afforded latitude, ... they generally are required to inform themselves regarding procedural rules and to comply with them.... This is especially true in civil litigation.") [internal quotation marks and citations omitted]; Edwards v. INS., 69 F.3d 5, 8 (2d Cir.1995) ("[W]hile a pro se litigant's pleadings must be construed liberally, .. pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.") [citations omitted]; Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) ("[T]he right [to benefit from reasonable allowances as a pro se litigant] does not exempt [the pro se ] party from compliance with relevant rules of procedural and substantive law.") [internal quotation marks and citations omitted].
37 Among other things, Local Rule 7.1(a)(3) requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3).
39 See, e.g., Hassig v. N. Y.S. Dep't of Envtl. Conservation, 01-CV-0284, Decision and Order, at 7 (N.D.N.Y. filed March 4, 2004) (McAvoy, J.), aff'd, No. 04-1773, 2005 WL 290210 (2d Cir. Feb.2, 2005); Lee, 2004 U.S. Dist. LEXIS 20746, at *12-13, 15, aff'd, No. 04-1921, 2004 U.S.App. LEXIS 21432; Harvey v. Morabito, 99-C1913, 2003 WL 21402561, at *1, 3-4 (N.D.N.Y. June 17, 2003) (Sharpe, M.J.), adopted by 99-CV-1913, Order, at 2-3 (N.D.N.Y. filed Jan. 15, 2004) (Munson, J.), aff'd, No 04-1008, 115 F.App'x 521 (2d Cir. Dec.23, 2004); Krug, 2006 WL 2669122, at *2-3; Fox, 2006 U.S. Dist. LEXIS 9147, at *2-3, 2006 WL 395269; Singleton v. Caron, 03-CV-0455, 2005 WL 2179402, at *3-4 (N.D.N.Y. Sept.5, 2005) (Peebles, M.J.), adopted by 03-CV-0455, 2006 WL 2023000, at *3 (N.D.N.Y. July 18, 2006) (Sharpe, J.); Govan, 289 F.Supp.2d at 295; Butler v. Weissman, 00-CV-1240, 2002 WL 31309347, at *3 (N.D.N.Y. June 20, 2002) (Sharpe, M.J.), adopted by 00-CV-1240, Decision and Order, at 1-2 (N.D.N.Y. filed July 22, 2002) (Kahn, J.); DeMar v. Car-Freshner Corp., 49 F.Supp.2d 84, 86 & n. 1 (N.D.N.Y.1999) (McAvoy, C.J.); Costello v. Norton, 96-CV-1634, 1998 WL 743710, at *1 n. 2 (N.D.N.Y. Oct.21, 1998) (McAvoy, C.J.); Squair v. O'Brien & Gere Eng'rs, Inc., 96-CV1812, 1998 WL 566773, at *1 n. 2 (N.D.N.Y. Aug.21, 1998) (Scullin, J.); see also Monahan v. N.Y. City Dep't of Corr., 214 F.3d 275, 292 (2d Cir.2000) (discussing, in pro se civil rights case, district courts' discretion to adopt local rules like 7.1[a] [3] "to carry out the conduct of its business").

III. ANALYSIS

A. Plaintiffs First Amendment Claim

Plaintiff claims that Defendants violated his rights under the Free Exercise Clause of the First Amendment by denying him food consistent with his Rastafarian faith. The First Amendment guarantees the right to free exercise of religion. U.S. Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)." Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause." Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir.2003) (citation omitted).

This protection extends "into... aspects of prison life including, pertinently, that of an inmate's diet...." Ward v. Goord, 06-C1429, 2009 WL 102928, at *9 (N.D.N.Y. Jan.13, 2009) (Hurd, J.) (citation omitted). "The Second Circuit has held that it is clearly established that a prisoner has a right to a diet consistent with his or her religious scruples." Ward, 2009 WL 102928, at *9 (citation omitted). Therefore, "Courts have generally found that to deny prison inmates the provision of food that satisfies the dictates of their faith does unconstitutionally burden their free exercise rights." Johnson v. Guiffere, 04-CV-0057, 2007 WL 3046703, at *4 (N.D.N.Y. Oct.17, 2007) (Hurd, J.) (internal quotation marks and citation omitted). "A free exercise claim arising from such a denial brings into focus the tension between the right of prison inmates to freely enjoy and exercise their religious beliefs on the one hand, and the necessity of prison officials to further legitimate penological interests on the other hand." Guiffere, 2007 WL 3046703, at *4 (citation omitted).

*7 "Examination of plaintiffs free exercise claim entails application of a three-part, burden shifting framework." Id. at 5 (citation omitted)." A party asserting a free exercise claim bears the initial burden of establishing that the disputed conduct infringes on his or her sincerely held religious beliefs." Id. (citations omitted)." Importantly, in evaluating this factor the court must be wary of questioning the centrality of particular beliefs or practices to a faith, or a validity of particular litigants' interpretations of those creeds, and instead may only consider whether the particular plaintiff holds a belief which is religious in nature." Id. (internal quotation marks and citations omitted). Stated another way, "[t]he freedom to exercise religious beliefs cannot be made contingent on the objective truth of such beliefs." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984). Rather, a subjective test must be employed to determine whether the disputed conduct infringes on the plaintiffs sincerely held religious beliefs. See Ford v. McGinnis, 352 F.3d 582, 589-90 (2d Cir.2003).

"Once a plaintiff has made this showing, the burden then shifts to the defendant to identify a legitimate penological purpose justifying the decision under scrutiny." Guiffere, 2007 WL 3046703, at *5 (citations omitted)." In the event such a penological interest is articulated, its reasonableness is then subject to analysis under the test set out by the Supreme Court in Turner v. Salley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)." Id. (citations omitted).

"Under Turner, the court must determine whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are rationally related to that objective." Id. (internal quotation marks and citation omitted). The court then asks whether the inmate is afforded adequate alternative means for exercising the right in question." Id. (citation omitted)." Lastly, the court must examine the impact that accommodation of the asserted constitutional right will have on others guards and inmates in the prison." Id. (internal quotation marks and citation omitted)." Decisions rendered since Turner have clarified that[, ] when applying this test, a court should examine the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.'" Id. (citations omitted).

With all of this in mind, it is important to note that "[t]here may be inconveniences [regarding denials of religiously required food] so trivial that they are most properly ignored." Tafari v. Annets, 06-CV-11360, 2008 WL 2413995, at *16 (S.D.N.Y. June 12, 2008) (quoting McEachm v. McGuinnis, 357 F.3d 197, 203 n. 6 [2d Cir.2004])." In this respect, this area of the law is no different from many others in which the time-honored maxim de minimis non carat lex applies. " McEachm, 357 F.3d at 203 n. 6.

*8 Here, as an initial matter, Plaintiff has not alleged facts plausibly suggesting, or adduced admissible record evidence establishing, that the disputed conduct infringed on his sincerely held religious beliefs. In particular, Plaintiff has not alleged or established how the meals that he received were actually "wrong." For example, Plaintiff has not alleged or established that the meals were "wrong" because they were not in conformity with his Rastafarian faith, or because they contained a product to which he is allergic. Nor has Plaintiff alleged or established how receiving non-vegetarian meals infringed on his sincerely held religious beliefs. See Benjamin v. Coughlin, 905 F.2d 571, 580 (2d Cir.1990) (dismissing Rastafarians'"dietary claim" asserting they had constitutional right to observe "Ital, " because plaintiffs "failed to clearly define the claim or to make the evidentiary showing required to establish any constitutional dietary claim").

In any event, Plaintiff has not alleged facts plausibly suggesting, or adduced admissible record evidence establishing, that the "wrong meals" he (allegedly) received constituted a burden that was anything more than de minimis in nature. As explained above in Part I.B. of this Decision and Order, Plaintiff has not established (or even alleged) the number of "wrong meals" that he (allegedly) received.40 As also explained above in Part I.B., in their motion for summary judgment, Defendants concede that Plaintiff was denied vegetarian food during "a few of his meals." Furthermore, in an effort to quantify the extent of this deprivation, Defendants estimate that Plaintiff received the "wrong meal" about "a half dozen or so times."

40 As explained above in Part I.B. of this Decision and Order, the closest Plaintiff comes to doing so is when he provides the Court with a calendar, in which he has circled 72 days between June 29, 2005, and October 20, 2005, on which he asserts he either (1) "miss[ed]" a meal. or (2) received his meal late.

For the sake of argument, the Court will assume that the number of "wrong meals" was three times the number of "wrong meals" conceded by Defendants, which would be the equivalent of one "wrong meal" per week for each of the 18 weeks that Plaintiff was incarcerated at ACCF. What is as significant as the number of "wrong meals" is the time period over which they occurred. Here, such "wrong meals" were not delivered to Plaintiff consecutively. Rather, Plaintiff asserts they were delivered over the course of Plaintiffs incarceration at ACCF, from June 30, 2005, until October 25, 2005 -a time period of approximately 118 days. Given that Plaintiff was supposed to receive three meals per day, Plaintiff was supposed to receive approximately 354 meals while at ACCF. Assuming that Plaintiff received the "wrong meal" approximately 18 out of 354 times, the Court finds that a rational juror could not conclude that the resulting burden on Plaintiffs religious beliefs was anything more than de minimis.

In the analogous case of Odom v. Dixion, the Western District of New York held that the New York State Department of Correctional Services' failure to provide a prisoner with Kosher meals on seven out of 33 occasions ( i.e., over an eleven-day time period) did not "support a § 1983 violation under either the First Amendment or RLUIPA." Odom v. Dixion, 04-CV-0889, 2008 WL 466255, at *11 (W.D.N.Y. Feb.15, 2008) (noting that deprivation was due to "an administrative error based on [the prisoner's] failure to timely advise [the facility's] food service personnel of his brief confinement on keeplock status"). Other courts have issued similar rulings. See, e.g., Norwood v. Strada, 249 F.App'x. 269, 272 & n. 1 (3d Cir.2007) (denial of religiously certified "halal" meals on seven out of seven occasions, during prison's two-and-one-half-day emergency lock-down, was "a mere de minimis intrusion" that failed to substantially burden the inmate's religious beliefs); Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir.1999) (affirming summary judgment for defendants because denial of pork-free meal on three occasions out of 810 meals constituted de minim is burden, where the denials were caused by "institutional shortage, " and plaintiff "has not alleged a routine or blanket practice of denying him pork-free meals."); Thomas v. Picio, 04-CV-3174, 2008 WL 820740, at *6 & n. 8 (S.D.N.Y. Mar.26, 2008) (assuming that inmate plaintiff was denied three or four Kosher meals for one or two consecutive days, "such a denial is not a substantial burden" on her free exercise of religion); Omar v. Casterline, 414 F.Supp.2d 582, 593 (W.D.La.2006) ("[T]he refusal to hold three meals [until sunset] because of Ramadan states only a de minimis imposition on... free exercise rights.")41

40 Cf. Tafari, 2008 WL 2413995, at *16 (denial of Kosher meals on a few separate occasions "did not substantially burden [Plaintiffs] religious beliefs and constituted, at most, a de minimis violation."); Ward, 2009 WL 102928, at *9 ("The failure to provide a single meal is insufficient to allege a constitutional violation."); Peterson v. Price, 06-CV-0106, 2007 WL 2893009, at *6 (N.D.W.Va. Sept.28, 2007) ("[T]he failure to provide inmates with one or two kosher meals does not rise to the level of a constitutional claim.").

*9 For each of these alternative reasons, Plaintiffs First Amendment claim is dismissed.

B. Plaintiff's Eighth Amendment Claim

Plaintiff claims that Defendants violated his Eighth Amendment rights in two separate ways. First, he claims that, by denying him food consistent with his vegetarian diet, which was approved by the medical department at ACCF, he was denied the right to adequate prison conditions. Second, he claims that, by knowingly being allowed to lose significant weight, he was denied the right to adequate medical care. The relevant legal standard governing both claims is the same.

"The Eighth Amendment prohibits cruel and unusual punishments' in the course of incarceration." Labounty v. Gomez, 94-C3360, 1998 WL 214774, at *2 (S.D.N.Y. May 1, 1998)." To bring a cause of action pursuant to Section 1983 of Title 42, United States Code, for a violation of the Eighth Amendment's prohibition, a plaintiff must establish that the deprivation of which he is complaining is sufficiently serious' to constitute cruel and unusual punishment and that a defendant's actions in allowing the deprivation must have amounted to deliberate indifference." Labounty, 1998 WL 214774, at *2 (citing Farmer v. Brennan, 511 U.S. 825, 114 [1994, 114 S.Ct. 1970, ___ ____, 128 L.Ed.2d 811, ___ ___])." Thus, there is an objective and subjective component to the test." Id. (citing Rivera v. Senkowski, 62 F.3d 80, 84 [2d Cir.1995]).

"The denial of a medically proscribed diet may constitute an Eighth Amendment violation under certain circumstances." Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 180 (N.D.N.Y.1996) (citing Robles v. Coughlin, 725 F.2d 12, 15-16 [2d Cir.1983]) (other citations omitted). Likewise, "under certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension." Robles, 725 F.2d at 15-16 [citations omitted]; see also Chapdelaine v. Keller, 95-C1126, 1998 WL 357350, at *12 (N.D.N.Y. Apr.16, 1998) (Sharpe, M.J.) ("[T]he Eighth Amendment requires that prisoners receive nutritionally adequate food prepared and served in conditions that do not present an immediate danger to the health of the inmates who consume it"). However, "[m]ere negligence or inadvertent failure to provide a medically necessary diet is not a constitutional violation." Abdush-Shahid, 933 F.Supp. at 180.

To establish a valid claim that the denial of food (or the denial of a medically proscribed diet) constitutes an Eighth Amendment violation, one must establish that there was a "sufficiently serious condition" that resulted from the food not being received. See, e.g., Labounty, 1998 WL 214774, at *2. A condition is serious for constitutional purposes if it presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (internal quotation marks and citations omitted).42

42 See also Bost v. Bockelmann, 04-CV-0246, 2007 WL 527320, at *8 (N.D.N.Y. Feb.20, 2007) (Sharpe, J.) (concluding that, although Plaintiff allegedly lost fifteen pounds in two days, "there is no evidence in the record from which a reasonable factfinder could conclude that plaintiffs food intake and weight loss concerns represented a condition of urgency or resulted in degeneration or extreme pain sufficient to implicate an Eighth Amendment violation"); cf. Beckford v. Portuondo, 151 F.Supp.2d 204, 213 (N.D.N.Y.2001) (Kahn, J.) (material issue of fact existed with regard to inmate's Eighth Amendment claim because evidence showed that inmate was deprived of two out of three meals per day for eight days); Moss v. Ward, 450 F.Supp. 591, 594, 597 (W.D.N.Y.1978) (material issue of fact existed with regard to inmate's Eighth Amendment claim because evidence showed that inmate was completely deprived of food for four consecutive days, and was given only one meal a day for next three days).

If Plaintiff is able to establish a "sufficiently serious condition, " he must also establish "that corrections personnel intentionally denied, delayed access to, or interfered with the [receipt of food]." Abdush-Shahid, 933 F.Supp. at 180; see also Portuondo, 151 F.Supp.2d at 213. Stated another way, deliberate indifference requires more than "negligent oversight." Bockelmann, 2007 WL 527320, at *10. In addition, a showing of deliberate indifference requires more than just "vague and conclusory allegations." Labounty, 1998 WL 214774, at *2. Finally, it is worth noting that a plaintiff has "a duty to inform [facility] staff that he was not receiving his medically prescribed diet, " and if he "fail[s] to do so[, ] [d]eliberate indifference does not exist." Laboun, 1998 WL 214774, at *2.

1. Whether Plaintiffs Weight Loss Constitutes a Serious Medical Need

*10 As an initial matter, Plaintiffs claim that he is allergic to meat and eggs is problematic because the admissible record evidence before the Court fails to establish a diagnosis by any medical professional that Plaintiff suffers from allergies to meat or eggs. See Bockelmann, 2007 WL 527320, at *8 (noting, as an initial problem to Plaintiffs claim that his medical condition constitutes a serious medical need, that "the record before the court fails to disclose a diagnosis by any medical professional that [Plaintiff] suffers from a medical condition requiring the high calorie diet which he so persistently sought"). The only proof that Plaintiff has offered that supports his claim that he is allergic to meat and eggs is his statement to medical staff, as well as the letters he wrote to Defendant Rockwell, indicating that he is allergic to meat and eggs. (Dkt. No. 54, Part 7, at 26, 28, 30, 32.) Apart from the conclusory and self-serving nature of this "evidence, " it should be noted that (1) Plaintiff failed to inform Defendants of this alleged allergy for roughly a week, despite having multiple opportunities to do so, and (2) he affirmatively indicated during his screening on June 30, 2005, that he did not suffer from any allergies.

However, even assuming that Plaintiff is indeed allergic to meat and eggs, and was entitled to a vegetarian diet for that reason, the only harm that he has alleged as a result of being deprived vegetarian meals on an unspecified number of occasions is that he lost thirty (30) pounds over a four-month period, and that this weight loss contributed to him suffering migraine headaches and dizziness. There are three problems with this alleged harm.

First, although Plaintiff claims that Downstate Correctional Facility has a record of his weight, which supports his weight loss claim, Plaintiff has failed to adduce admissible record evidence establishing this loss of thirty pounds. Second, the record reflects that, at no point in any of the complaints that Plaintiff filed between July and October 2005, or during any of his visits with medical staff, did Plaintiff indicate that he had lost any weight or was experiencing headaches or dizziness. Finally, Plaintiff does not adduce admissible record evidence establishing (or even allege facts plausibly suggesting) that he has been unable to gain weight since leaving ACCF, or that the headaches and dizziness have persisted since October 2005.

As a result, even assuming that Plaintiff lost thirty pounds and experienced dizziness and headaches over a four-month period (from June 30, 2005 to October 25, 2005), as the District Judge Gary L. Sharpe of this Court concluded Bost v. Bockelmann, the undersigned concludes that "there is no evidence in the record from which a reasonable factfinder could conclude that plaintiffs weight loss concerns represented a condition of urgency or resulted in degeneration or extreme pain sufficient to implicate an Eighth Amendment violation." Bockelmann, 2007 WL 527320, at *8.

2. Whether Defendants Were Deliberately Indifferent to any of Plaintiff's Serious Medical Needs

*11 Even if the Court were to find a question of fact as to whether Plaintiffs weight loss constituted a sufficiently serious condition, the Court could not find any admissible record evidence establishing that Defendants were deliberately indifferent to this condition. When viewing the record in the light most favorable to Plaintiff, the Court finds that, during his incarceration at ACCF, Plaintiff (1) wrote four letters to Defendant Rockwell at ISU, (2) complained twice to unidentified corrections officers about his food, and (3) notified the medical staff that he was receiving the "wrong meals" one time in a Health Services Request Form. See Part I.B. of this Decision and Order.

Based on these undisputed facts, the Court finds that there is at least a question of fact as to whether there were certain days on which Plaintiff did not receive vegetarian meals. However, the Court also finds that "[t]here is no evidence in the record... to suggest that this deprivation was deliberate and calculated to deprive the plaintiff of the nourishment constitutionally required and necessary to avoid... weight loss, as distinct from the result of negligent oversight[, ] which does not rise to a level of deliberate indifference." Bocke/mann, 2007 WL 527320, at *10. "Simply stated, the evidence is lacking that any of the constituent groups sued in this action, including the county defendants, prison medical personnel, and the food service providers at [ACCF], were both cognizant of a serious medical need on the part of the plaintiff and aware that their failure to be faithful in providing the prescribed... diet would result in a substantial risk of serious harm." Bockelmann, 2007 WL 527320, at *10.

In support of this finding, the Court makes four points. First, of the four letters that Plaintiff wrote to ISU, two focused almost exclusively on the quality of the food he received, 43 and another was the first letter that he sent to ISU, notifying them that he was a vegetarian. (Dkt. No. 54, Part 7, at 26, 28, 33.) The remaining letter, written on July 29, 2005, explained that Plaintiff was a vegetarian and implied that Plaintiff had problems receiving vegetarian meals. (Dkt. No. 54, Part 7, at 30.) However, neither this letter, nor any of the other letters, in any way stated that Plaintiff was losing weight, or suffering from other side-effects as a result of receiving the "wrong meal." (Dkt. No. 54, Part 7, at 26, 28, 30, 32, 33, 35, 38, 40, 42.)

43 "The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing." Bockelmann, 2007 WL 527320, at *10 (citing LeMaire v. Maass, 12 F.3d 1444, 1456 [9th Cir.1993] [other citation omitted]).

Second, the Court notes that Plaintiff indicated on August 20, 2005, in a Health Services Request Form, that "everyday they send up the wrong meal." The record reflects that, after filling out this form, Plaintiff filled out Health Services Request Forms on two separate occasions (once in early September 2005 and once on October 13, 2005). On neither occasion did Plaintiff mention that he was still receiving the "wrong meal." The Court finds this fact material because, if Plaintiff was having a problem with his meals, based on the fact that he had previously notified the medical department in a Health Services Request Form of his problem, it would be reasonable to expect that he would have again voiced this problem to the medical department.

*12 Third, the record reflects that, in all of the visits that Plaintiff had from the medical department throughout his four-month stay at ACCF, never once did he speak of weight loss, or mention other side-effects that he was suffering as a result of receiving the "wrong meal."

Finally, the record reflects that Defendant Rockwell took action to make the kitchen staff and medical staff aware of Plaintiffs issues; the medical staff also took action to so notify the kitchen staff; and the kitchen staff did not intentionally deprive Plaintiff of his vegetarian diet.44 Simply stated, whatever harm Plaintiff suffered cannot be attributed to anything more than negligence, which, again, is not actionable under the Eighth Amendment.

44 In his memorandum of law in opposition to Defendants' motion for summary judgment, Plaintiff argues that "a screw up or simple negligence or inadvertent failure to provide food or care as requested automatically [gives rise] to a deprivation of constitutional privilege." However, the law is clear that simple negligence does not rise to the level of deliberate indifference. See Bockelmann, 2007 WL 527320, at * 10. Rather, deliberate indifference is a state of mind akin to criminal recklessness. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003); Hathaway v. Coughlin ("Hathaway II"), 99 F.3d 550, 553 (2d Cir.1996).

For all of these reasons, Plaintiffs Eighth Amendment claims are dismissed.

C. Plaintiffs Fourteenth Amendment Claim

Magistrate Judge Peebles recommended that the Court dismiss Plaintiffs Fourteenth Amendment claim that Defendants' refusal to adhere to the Court Order that he receive a special vegetarian diet associated with his religious practices violated Plaintiffs right to equal protection under the law. Neither party has objected to this recommendation. As a result, the Court reviews the recommendation for clear error, and finds no such error. Accordingly, for the reasons set forth in Magistrate Judge Peebles's Report-Recommendation, Plaintiffs Fourteenth Amendment claim is dismissed.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles's Report-Recommendation (Dkt. No. 66) is ADOPTED in part, as described above; and it is further

ORDERED that Defendants' motion for summary judgment (Dkt.Nos.53, 54) is GRANTED in its entirety; and it is further

ORDERED that Plaintiffs Second Amended Complaint (Dkt. No. 27) is DISMISSED in its entirety. The clerk is directed to enter judgment and close this case.

Attorneys and Law Firms

Lester Hardy, Raleigh, NC, pro se.

Lisa Y. Harper, N.C. Dept. of Justice, Raleigh, NC, for Defendants.

ORDER

LOUISE W. FLANAGAN, Chief Judge.

*1 This matter comes before the court on the motion for summary judgment (DE # 35) of defendants Boyd Bennett (hereinafter "defendant Bennett") and Dennis Rowland (hereinafter "defendant Rowland"). The matter is ripe for adjudication. For the following reasons, the court grants defendants' motion.

STATEMENT OF THE CASE

On October 17, 2006, plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that defendants Bennett and Rowland deprived him of his right to outdoor exercise in violation of the Eighth Amendment of the United States Constitution. The court conducted a frivolity review of plaintiff's claim on November 20, 2006, and allowed it to proceed. The court thereafter issued an order of investigation directing North Carolina Prisoner Legal Services (hereinafter "NCPLS") to investigate plaintiffs claim. On December 4, 2006, plaintiff notified the court that he was rejecting NCPLS's services.

On June 15, 2007, defendants filed a motion for summary judgment, arguing that plaintiffs claims are without merit. Alternatively, defendants argue that they are entitled to qualified immunity. Plaintiff filed a response to defendants' motion on June 22, 2007. Plaintiff thereafter filed several random pleadings.

STATEMENT OF THE FACTS

The facts viewed in the light most favorable to plaintiff are as follows. Plaintiff is a state inmate confined at Polk Correctional Institution in Butner, North Carolina (hereinafter "Polk"), who is serving a sentence of sixty-four (64) years, four (4) months, and fifteen (15) days. In November 2005, plaintiff was involved in an incident where he threw coffee on a female officer, punched her in the face, and threatened to kill her. (Defs.' Mem., Rowland Aff. ¶ 6, Ex. D.) The officer suffered a spinal cord strain and facial injuries as a result of the attack. (Id.)

Following the assault, plaintiff was convicted of assault on a staff member and was demoted to high security maximum control (hereinafter "H-CON") status. Plaintiff was evaluated by psychologist Robley Bowman and found to be psychologically suitable for transfer to CON, and subsequently was transferred to H CON on December 1, 2005. ( Id., Bowman Aff. ¶ 5.) While on H-CON status, plaintiff alleges that he was denied outdoor recreation. Plaintiff states that, as a result of this alleged deprivation, he has suffered high blood pressure, constipation, hemorrhoids, dry skin, and both side and stomach cramps. (Compl. p. 3.)

DISCUSSION

I. Motion for Summary Judgment

A. Standard of Review

Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

B. Analysis

*2 Defendants Bennett and Rowland assert the defense of qualified immunity. Qualified immunity shields government officials performing discretionary functions from personal liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which [a] reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir.1995). This immunity "protects law enforcement officials from bad guesses in gray areas' and ensures that they are liable only for transgressing bright lines.'" Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.1998) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992)). Immunity applies to "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Government officials performing a discretionary function are immune from civil damages unless: (i) the official's conduct violates a federal statutory or constitutional right; (ii) the right was clearly established at the time of the conduct; and (iii) an objectively reasonable officer would have understood that the conduct violated that right. Milstead v. Kibler, 243 F.3d 157, 161 (4th Cir.1991) (citing Wilson v. Layne, 526 U.S. 603, 614-15, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).

In analyzing qualified immunity, the first step is to determine whether defendants Bennett and Rowland violated a federal statutory or constitutional right. Plaintiff contends in his complaint that defendants Bennett and Rowland violated his Eighth Amendment rights because they deprived him of outdoor recreation. "In order to make out a prima facie case that prison conditions violate the Eighth Amendment, a plaintiff must show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'" Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.1993) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)), The Supreme Court has explained that the first prong is an objective one-the prisoner must show that "the deprivation of [a] basic human need was objectively sufficiently serious' "-and the second prong is subjective-the prisoner must show that "subjectively the officials act[ed] with a sufficiently culpable state of mind.'" See Strickler, 989 F.2d at 1379.Only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement. See Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In order to demonstrate such an extreme deprivation, a prisoner "must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions, " Strickler, 989 F.2d at 1381, or demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions. See Helling v. McKinney, 509 U.S. 25, 33-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). A de minimis injury is not sufficient to state an Eighth Amendment claim based upon deprivation of exercise. See Walker v. Williams, No. 9:07-110-PMD, 2007 WL 486468, *3 (D.S.C. Feb.12, 2007) (unpublished) (citing White v. Gregory, 1 F.3d 267, 269 (4th Cir.1993)).

*3 Plaintiff is unable to establish the objective prong of the Eighth Amendment test because he is unable to establish that he sustained a serious physical injury as a result of the alleged exercise deprivation. Plaintiff alleges that his deprivation of outdoor exercise resulted in high blood pressure, constipation, hemorrhoids, dry skin, and both side and stomach cramps. (Compl. p. 3.) Dr. Paula Y. Smith, Director of Health Services for the North Carolina Department of Correction, attested that the above-stated health problems are not related to plaintiffs alleged lack of outdoor exercise. (Defs.' Mem., Smith Aff ¶ 5.) Plaintiff has not presented any evidence to refute Dr. Smith's testimony. Even if plaintiff could establish that his alleged injuries were the result of a lack of outdoor exercise, he still would not be entitled to relief because the alleged injuries are de minimis. A de minimis injury does not satisfy the objective prong of the Eighth Amendment test, requiring that a prisoner to show that the injury inflicted was sufficiently serious. Therefore, plaintiff is unable to satisfy the objective prong of the Eighth Amendment test.

Even if plaintiff could establish the objective prong of the Eighth Amendment test, he is unable to satisfy the subjective prong because he is unable to show that defendants Bennett and Rowland acted with deliberate indifference. The general rule is that denial of out-of-cell exercise for an extended period of time violates that Eighth Amendment, absent exceptional circumstances. Mitchell v. Rice, 954 F.2d 187, 190 (4th Cir.1992).1 Claims concerning opportunities to exercise are evaluated by using a totality of the circumstances analysis, which includes "the overall duration of incarceration, the length of time for which prisoners are locked in their cells each day, ... and the practical opportunity for the institution to provide prisoners with increased exercise opportunities." Id. at 191. Penological necessities may justify exercise restrictions in some circumstances. See id. at 192; Patterson v. Mitzes, 717 F.2d 284, 289 (6th Cir.1983). The Fourth Circuit has held, for example, that summary judgment was appropriate where an inmate was held for five months in a county jail that had day rooms adjacent to cellblocks, and where there had been no showing that the inmate's mental or physical health had been threatened by not being provided more space for exercise. Clay v. Miller, 626 F.2d 345, 347 (4th Cir.1980).

1 The Fourth Circuit does not distinguish between indoor and outdoor exercise opportunities. Mitchell, 954 F.2d at 192, n. 4.

Applying a totality of the circumstances analysis, the evidence in the record demonstrates that plaintiff was placed on CON status on December 1, 2005, following a mental health evaluation. (Defs.' Mem., Bowman Aff. ¶ 5.) From that point on, plaintiffs custody status has been reviewed every six months to determine his eligibility for transfer from H-CON to maximum control status.2 (Defs.' Mem., Rowland Aff. ¶ 10.) Although plaintiff still was on CON status when he filed this complaint on October 17, 2006, he subsequently was transferred to maximum control status. see www.doc.state.nc.us. Accordingly, plaintiffs time on H-CON status is a small fraction of the overall duration of his over sixty-four (64) year sentence.

2 Defendant Rowland attests that inmates convicted of assault normally remain on H-CON status for eighteen (18) months. (Defs.' Mem., Rowland Aff. 10.)

*4 The evidence in the record further demonstrates that plaintiff has not been completely deprived of exercise opportunities while on H-CON status. Rather, he is allowed to exercise for one hour per day, four days per week, in a room adjoining his cell. ( Id., Rowland Aff. ¶ 7.) Although plaintiff is not permitted to exercise outdoors, the windows in the exercise room are opened so that he is allowed access to fresh air. ( Id. ) This policy is intended to promote institutional safety by limiting high risk inmates' hands on contact with staff. (Defs.' Mem., Rowland Aff. ¶ 8.) This policy is necessary because many of the inmates have serious disciplinary problems and are demoted to H-CON status for assaulting members of the staff or other inmates. Plaintiff was placed on IT-CON status for assaulting a staff member and continues to demonstrate an unwillingness to comply with prison rules and regulations because he has continued to accrue disciplinary infractions while on CON status. (Defs.' Mem., Rowland Aff. ¶ 8 and Ex. D.)

It is reasonable to infer that transporting high risk inmates, such as plaintiff, outdoors would create an increased risk of injury to staff and other inmates. Based upon a totality of the circumstances, plaintiff is unable to establish a violation of the Eighth Amendment because the temporary exercise restrictions placed on H-CON status inmates at Polk are necessary to preserve the safety of the staff and other inmates. Because plaintiff is unable to establish a constitutional violation, defendants are entitled to qualified immunity.

In addition to his Eighth Amendment claim based upon his access to outdoor exercise, plaintiff alleged several additional claims in various pleadings filed subsequent to the filing of defendants' motion for summary judgment. The court finds that plaintiff is precluded from raising these claims at this juncture. At no point has plaintiff filed a motion to amend his complaint, and allowing plaintiff the opportunity to amend his complaint at this point would "seriously undermine the fairness of the litigation and unfairly prejudice the defendants.'" United States ex. rel . DRC, Inc. v. Ouster Battles, LLC, 472 F.Supp.2d 787, 796 (E.D.Va.2007) (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir.2000)). Based upon the foregoing, the remaining claims plaintiff raised post-summary judgment are DISMISSED without prejudice.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment (DE #35) is GRANTED. The Clerk of Court is DIRECTED to close this case.

SO ORDERED,

Attorneys and Law Firms

*778 Jeffrey Larson, Sterling, CO, pro se.

Timothy R. Arnold, Lakewood, CO, for Defendants-Appellees.

Before O'BRIEN, HOLLOWAY, and BALDOCK, Circuit Judges.

ORDER AND JUDGMENT

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

TERRENCE L. O'BRIEN, Circuit Judge.

Jeffrey Larson, a Colorado state prisoner appearing pro se, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint alleging violations of his Eighth Amendment rights. We have jurisdiction under 28 U.S.C. § 1291. Because the district court primarily dismissed Mr. Larson's claims for failure to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), we VACATE the dismissal of the claims against Tom Meek and Lori McGowan and REMAND for further consideration in light of the recent Supreme Court decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). We AFFIRM the dismissal of the claims against Edd Gillespie.

I.

Mr. Larson asserted two claims arising from the conditions of his confinement at Four Mile Correctional Center.1 Essentially *779 he asserted that Mr. Meek interfered with his ability to receive prescribed medications for his diabetes and mental illnesses, that Mr. Meek's supervisor, Ms. McGowan, approved or allowed these deprivations, and that Mr. Gillespie also allowed the deprivations by denying his grievances.

1 Mr. Larson sought to amend his complaint after the magistrate judge recommended granting defendants' motion to dismiss. The district court refused to file his amended complaint and considered only the original complaint. Under Fed.R.Civ.P. 15(a), however, Mr. Larson was not obligated to seek the court's permission to file his amended complaint. That rule allows plaintiffs to amend their complaint "once as a matter of course at any time before a responsive pleading is served." Defendants' motion to dismiss is not considered a "responsive pleading" for purposes of Rule 15(a), and thus Mr. Larson could amend his complaint prior to the district court's ruling on the motion to dismiss. See Glenn v. First Nat'l Bank, 868 F.2d 368, 370 (10th Cir.1989). Accordingly, we consider the allegations of the amended complaint as well as the original complaint in our review.

The magistrate judge recommended Mr. Larson's complaint be dismissed for failure to state a claim for a number of reasons, including Mr. Larson's failures to describe with particularity how he exhausted his administrative remedies with regard to his first claim and to show exhaustion as to his second claim. The district court accepted the magistrate judge's recommendations, holding that Mr. Larson had failed to show he exhausted his administrative remedies on his claims and that he failed to show entitlement to either compensatory or punitive damages, leaving only "a de minimis case which cannot go forward." R. Doc. 53 at 8. Mr. Larson appeals.

II.

We must first address appellees' argument that this court lacks jurisdiction to hear this appeal because Mr. Larson failed to file his notice of appeal within thirty days of the district court's dismissal. See Fed. R. App. P. 4(a)(1) (A); Trotter v. Regents of the Univ. of N.M., 219 F.3d 1179, 1182 (10th Cir.2000).

Judgment was entered March 22, 2004, so that Mr. Larson had until April 21, 2004, to file his notice of appeal. He has submitted legal mail logs showing mailings to this court, the district court, and opposing counsel on April 21, 2004. This court received his misdirected notice of appeal on April 23, 2004, and transferred it to the district court. The district court filed that notice of appeal as of April 23, 2004, as directed by this court's transmittal letter.

The state defendants argue that Mr. Larson's notice of appeal was untimely for two reasons. First, they argue that Mr. Larson has never submitted a notarized statement or a statement that complies with 28 U.S.C. § 1746 (unsworn declarations filed under penalty of perjury), so that he is not entitled to invoke the prisoner "mailbox rule." Second, they contend that he cannot apply both the misdirected filing rule and the mailbox rule.

Mailbox Rule

Federal Rule of Appellate Procedure 4(c) (1) provides:

If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

This court has held that:

[W]e read Fed. R. App. P. 4(c)(1) to provide the This court has held that: mandatory method by which a prisoner, who does not have access to a legal mail system, proves compliance with the mailbox rule. If a prison lacks a legal mail system, a prisoner must submit a declaration or notarized statement setting forth the notice's date of *780 deposit with prison officials and attest that first-class postage was prepaid.

United States v. Ceballos-Martinez, 387 F.3d 1140, 1145 (10th Cir.2004). Unlike Ceballos-Martinez, however, Mr. Larson used a legal mail system. Ceballos-Martinez's requirement of a declaration or notarized statement, then, is inapplicable to this case. See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir.2005) ("To summarize, an inmate must establish timely filing under the mailbox rule by either (1) alleging and proving that he or she made timely use of the prison's legal mail system if a satisfactory system is available, or (2) if a legal mail system is not available, then by timely use of the prison's regular mail system in combination with a notarized statement or a declaration under penalty of perjury of the date on which the documents were given to prison authorities and attesting that postage was prepaid."). By alleging that he used the legal mail system and filing a copy of the prison's legal mail log with this court, Mr. Larson has satisfied his obligation to prove timely use of the legal mail system.

Misdirected Filing Rule

The defendants also submit that, under Federal Rule of Appellate Procedure 4(d), Mr. Larson's misdirected notice of appeal must be treated as if it were filed in the district court as of the date that it was received in this court, so that his notice was two days late. Rule 4(d) provides that when a notice of appeal is sent to the court of appeals, "the clerk of that court must note on the notice the date when it was received and send it to the district court. The notice is then considered filed in the district court on the date so noted."

Mr. Larson's notice of appeal would be considered timely, though, if Rule 4(c)(1) and 4(d) are applied together, with the "receipt" date at this court being considered the date when Mr. Larson placed his notice of appeal in the prison's legal mail system. We see no reason why the two rules should not be applied together. Thus, the mailbox rule and the misdirected filing rules combine to make this appeal timely, and we have jurisdiction to decide this appeal.

III.

We review a § 1997e(a) dismissal for failure to exhaust administrative remedies de novo. Ross v. County of Bernalillo, 365 F.3d 1181, 1185 (10th Cir.2004), abrogated on other issues by Jones, 127 S.Ct. at 923-25. "Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir.1999). "In determining whether dismissal is proper, we must accept the allegations of the complaint as true and... construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff." Id.

The district court properly dismissed the claims against Mr. Gillespie. Nothing in either the original complaint or the amended complaint indicates any action or omission by Mr. Gillespie beyond his denial of Mr. Larson's grievances. Mr. Gillespie's denial of the grievances alone is insufficient to establish personal participation in the alleged constitutional violations. See Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir.2002) (per curiam). This situation, which is fatal to Mr. Larson's case, cannot be corrected by amending the complaint. Consequently, we affirm the dismissal of the claims against Mr. Gillespie.

*781 Mr. Larson does allege personal participation by Mr. Meek in his original and amended complaints and appears to allege personal participation by and/or supervisory liability for Ms. McGowan in his amended complaint. Because the district court's dismissal primarily relied on Mr. Larson's failure to show he exhausted his claims against these defendants, these claims must be remanded for further consideration in light of Jones. Until Jones, this court's precedent characterized exhaustion as a pleading requirement and required prisoners to attach copies of administrative dispositions or describe the proceedings with specificity. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir.2003). In Jones, however, the Supreme Court concluded that "failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints." 127 S.Ct. at 921. Since "[e]xhaustion is an affirmative defense, ... the burden of proof is on the defendants." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006); accord Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir.2005) (per curiam). In light of this significant shift in the evidentiary burden, we conclude that the district court should be given the opportunity in the first instance to evaluate defendants' proof of nonexhaustion.2

2 We recognize the district court identified other reasons for dismissing Mr. Larson's action, including failures to show sufficient physical injury under 42 U.S.C. § 1997e(e) to recover damages for a mental or emotional injury and to show the level of conduct necessary for punitive damages. We are not certain the district court properly evaluated Mr. Larson's damages claims. But even if Mr. Larson cannot recover compensatory or punitive damages, he may still be entitled to pursue his action and receive an award of nominal damages. See Searles v. Van Bebber, 251 F.3d 869, 876, 878-79 (10th Cir.2001) (concluding that § 1997e(e) limits an inmate's ability to recover for mental or emotional injuries, but does not bar recovery of nominal or punitive damages); see also City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) ("Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards.").

Finally, on appeal Mr. Larson also claims that the PLRA discriminates against prisoners with mental impairments. We decline to address this issue because it was not raised in the district court in the first instance. See Oliveros v. Mitchell, 449 F.3d 1091, 1095 (10th Cir.2006).

IV.

We GRANT Mr. Larson's motion to proceed without prepayment of costs and fees, and he is reminded that he is obligated to continue making partial payments until the entire fee has been paid. We AFFIRM the dismissal of the claims against defendant Gillespie. With regard to the claims against defendants Meek and McGowan, we VACATE the district court's decision and REMAND for further proceedings in accordance with Jones, 127 S.Ct. at 921.

Parallel Citations

2007 WL 1705086 (C.A.10 (Colol)), 68 Fed.R.Serv.3d 205

Attorneys and Law Firms

Bernard McFadden, Kershaw, SC, pro se.

Joel Steve Hughes, William Henry Davidson, II, Davidson Morrison and Lindemann, Columbia, SC, for Defendants.

REPORT AND RECOMMENDATION

JOSEPH R. McCROREY, United States Magistrate Judge.

*1 Plaintiff filed this action, pro se, on December 16, 2010.1 He is an inmate at the Kirkland Correctional Institution ("KCI") of the South Carolina Department of Corrections ("SCDC"). Plaintiff filed an amended complaint on January 25, 2011. On June 16, 2011, the Honorable J. Michelle Childs, United States District Judge, denied Plaintiffs first motion for a preliminary injunction. On June 30, 2011, Defendants filed a motion for summary judgment. Because Plaintiff is proceeding pro se, an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) was issued on July 1, 2011, advising him of the importance of a motion for summary judgment and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' motion may be granted, thereby ending his case. Plaintiff failed to file a response to Defendants' motion. On July 12, 2011, Plaintiff filed a second (renewed) motion for preliminary injunction.

1 Pretrial matters in this case were referred to the undersigned pursuant to Local Civil Rule 73.02(B)(2)(e) DSC. Because these are dispositive motions, this report and recommendation is entered for review by the Court.

On November 28, 2011, the undesigned denied Plaintiffs motions to compel, appoint an expert witness, and extend the time to complete discovery. In the order, Plaintiffs motion to extend time to respond to Defendants' motion for summary judgment was granted. Plaintiff was directed to respond to Defendants' motion for summary judgment on or before December 14, 2011. See Doc. 57. He was specifically advised that if he failed to do so, the undersigned would recommend that this action be dismissed, pursuant to Fed.R.Civ.P. 41(b), for failure to prosecute. Plaintiff filed what appears to be both a response to Defendants' motion for summary judgment, as well as an appeal to the District Judge of the undersigned's November 28, 2011 order (as to the denial of his motion to compel, his motion for an expert witness, and his motion to extend the time for discovery).2

2 The undersigned has treated this filing as a response to Defendants' motion for summary judgment and addressed Plaintifffs claims on the merits. Alternatively, if Plaintiff has failed to respond to Defendants' motion for summary judgment (after being advised to do so in the July 1, 2011 Roseboro order and the undersigned's November 28, 2011 order), it is alternatively recommended that Plaintiffs claims be dismissed pursuant to Rule 41(b), Fed.R.Civ.P., for failure to prosecute.

STANDARD OF REVIEW

The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990), nor can the court assume the existence of a genuine issue of material fact where none exists.

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir.1991). The moving party "bears the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick County Comers, 945 F.2d 716, 718 (4th Cir.1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the moving party carries this burden, "the burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson, 477 U.S. at 247-48).

MOTION FOR SUMMARY JUDGMENT

*2 Plaintiff alleges that the food service at SCDC violates his constitutional rights and constitutes cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff alleges Defendants are violating his constitutional rights by providing extremely small food portions and/or no portions at all of specific types of foods. Plaintiff further alleges that he is being deprived of the necessary vitamins and nutrients in his diet to maintain his physical health. Also, Plaintiff appears to complain about the weekend brunch program at some SCDC institutions. Defendants contend that their motion for summary judgment should be granted because: (1) Plaintiff fails to state a constitutional claim as there is no evidence that the conditions of his confinement violated his rights; (2) they are entitled to qualified immunity; (3) in their official capacities they are not "persons" amenable to suit under § 1983; and (4) this action should be dismissed under 28 U.S.C. § 1915(E) and § 1915A, and should count as a strike.

In support of summary judgment in the case, the Defendants have submitted an affidavit from Marcia Fuller ("Fuller"), a Nutritionist IV at SCDC, who compiled the master menu to be served to inmates within SCDC institutions. See Fuller ¶¶ 1, 4; see also Exhibits A and B to Fuller Aff. Fuller is a Registered and Licensed Dietician in South Carolina, and according to her professional opinion, the menus at SCDC are nutritionally sound. Fuller Aff. ¶¶ 2, 9. Fuller also states that "the Master Menu at SCDC for the term of July 13, 2010 through July 13, 2011 was nutritionally sound, based upon the 1989 Recommended Dietary Allowances as published by the Food and Nutrition Board of the National Research Council at the National Academy of Sciences." Id. ¶ 9.

An affidavit from Hope Marshall ("Marshall"), a Food Service Director V with SCDC, has also been submitted by Defendants. She states that she helps oversee the operation of the cafeteria and food service at KCI, meals at KCI are prepared in accordance with the master menus proved by Fuller, and the menu provides approximately 3, 200 calories per day per inmate. Marshall Aff., ¶ 1, 3, 5, and 6.

Defendants have also submitted an affidavit from John Thomas ("Thomas"), Food Service Director at KCI, who states that he has been employed with SCDC in food service for approximately nineteen years. See Thomas Aff. ¶ 1. In his affidavit, Thomas explains the brunch program which he refers to as the "pilot Weekend Brunch program." Thomas asserts that inmates are served a brunch meal and a supper meal on the "weekday, "3 but receive breakfast, lunch, and dinner during the week. Thomas Aff. ¶¶ 4, 5. Thomas further states that this program was instituted because there are fewer security staff available on the weekends and "the Brunch program is a way to minimize the number of controlled movements of inmates during the weekend." Thomas Aff. ¶6. Thomas states that the brunch and supper meals have additional food items that provide the requisite calories to meet nutritional standards. Thomas Aff. ¶ 5.

3 This appears to be a scrivener's error as it is apparent that the brunch program is a weekend plan.

*3 Finally, Defendants have submitted copies of Plaintiffs medical records for review which are attached as Exhibit A to the affidavit of Nadine Pridgen, Administrative Assistant with the Health Information Resources Office.

With his first motion for a preliminary injunction, Plaintiff submitted an affidavit signed by numerous inmates in which they state that they believe SCDC is providing meat that is not pure and wholesome, is serving extremely small portions of certain food, is serving less than three ounces of meat per meal, the meat is mostly made of ground turkey organs, they are served no potatoes or margarine, and their meals are unbalanced and not nutritious. He also submitted his own affidavit in which he claims he has lost twelve pounds, been constipated, and had small amounts of blood in his stool because his food portions are too small and the food is not nutritious. With his earlier motion to compel discovery, Plaintiff included a copy of what appears to be a medication label indicating he was prescribed Konsil (a fiber supplement).

A. Eighth Amendment Claims>

Plaintiff alleges that the portions of food served to inmates at SCDC are insufficient, that the specific food items served to inmates are not sufficiently nutritious, and that the brunch program at select SCDC institutions causes "extreme and unnecessary infliction of hunger pains."4 Defendants contend that Plaintiff has failed to state a constitutional claim as he has not shown any serious injury or substantial risk of harm from the alleged condition as shown by his medical records. They argue that the food served is nutritious such that Plaintiff is not in any danger or susceptible to harm. In his December 12, 2011 pleading, Plaintiff appears to dispute Fullers' opinion that the meals served are nutritious. He argues that he had blood tests results that showed the need for niacin and multivitamins such that vitamins were prescribed. Plaintiff also argues that this action is supported by his affidavit in which other inmates attest to the absence of certain foods in their diet, the small portions served, the low quality of food served. Plaintiff argues that he has been harmed by the food served because he has been constipated, vitamins have been prescribed for him, he has had blood in his stools, and he has lost weight.

Plaintiff appears to complain of problems other inmates have experienced as a result of the food served. Judge Childs, in her December 30, 2010 order, denied Plaintiffs request to certify this as a class action. See Doc. 6. Plaintiff cannot assert a claim on behalf of others. See Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). See also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant); Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir.1981) (a prisoner cannot act as a "knight-errant" for others).Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 & n. * (4th Cir.1975) (a pro se prisoner cannot be an advocate for others in a class action); and McNeil v. Guthrie, 945 F.2d 1163, 1164 & nn. 1-2 (10th Cir.1991).

The Eighth Amendment provides protection with respect to "the treatment a prisoner receives in prison and the conditions under which he is confined." Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). However, the constitutional prohibition against the infliction of cruel and unusual punishment "does not mandate comfortable prisons, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Eighth Amendment protection from cruel and unusual living conditions has both objective and subjective components. First, deprivations must be objectively serious in the sense that they violate contemporary notions of decency. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Second, the plaintiff must show that subjectively the prison officials acted with a sufficiently culpable state of mind. Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.), cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993). The Supreme Court has held that prison officials cannot be held liable under the Eighth Amendment unless they knew of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A plaintiff must produce evidence of serious or significant physical or emotional injury resulting from the challenged conditions to withstand summary judgment on a prison living conditions claim. Strickler, 989 F.2d at 1380-81.

*4 Prisons and detention facilities are required to provide "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." See French v. Owens, 777 F.2d 1250, 1255 (7th Cir.1985), cert. denied, Owens v. French, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986). Assuming a diet's nutritional adequacy, prison officials have the discretion to control its contents. Divers v. Dep't of Corrs., 921 F.2d 191, 196 (8th Cir.1990); see also Madyun v. Thompson, 657 F.2d 868, 874-75 (7th Cir.1981) (allegation that food served to segregated prisoners was cold and not on the menu served to general prison population was insufficient to state an Eighth Amendment violation); Hoitt v. Vitek, 497 F.2d 598, 601 (1st Cir.1974) (prisoners' allegation of deprivation of hot meals failed to state a claim of cruel and unusual punishment, given the stipulation that three meals were provided daily); Prophete v. Gilless, 869 F.Supp. 537 (W.D.Tenn.1994) (food which was cold by the time it was served did not constitute cruel and unusual punishment).

Plaintiff fails to establish a constitutional claim because he has not shown any serious or significant physical or emotional injury resulting from the alleged conditions. See Strickler, 989 F.2d at 1380-1381. His medical records reveal that he is five feet, seven inches tall and that his weight from November 22, 2010 was 184 and on January 19, 2011 was 192. He complained of constipation during one medical visit (January 19, 2011), for which medication was given and Plaintiff was encouraged to increase his fluids and exercise more. The records fail to reveal any serious physical or emotional injury to Plaintiff resulting from the food served to him at KCI. See Ex. E.

Further, Plaintiff fails to show that Defendants knew of and disregarded an excessive risk to inmate health or safety. Defendants have provided affidavits from a nutritionist stating that the menus at KCI meet the appropriate nutritional guidelines. Marshall states that the menus provided by Fuller are served at KCI and provide approximately 3, 200 calories per inmate per day.

Plaintiff claims that certain other food items (such as beef, margarine, potatoes, and fruit) are needed on the menu. He has, however, provided no evidentiary support for this. He admits he is not a dietician and has never spoken to a dietitian about his complaints. Defendants' Motion for Summary Judgment, Ex. A (Plaintiffs Responses to Requests for Admission). Prisoners simply cannot expect the "amenities, conveniences and services of a good hotel." Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988); see also Lunsford v. Bennett, 17 F.3d 1574 (7th Cir.1994) (holding that allegations of cold, poorly prepared beans were insufficient to state a constitutional claim); Lasure v. Doby, C/A No. 0:06-cv-1527, 2007 WL 1377694, *5 (D.S.C. May 8, 2007) (unpublished) (noting that plaintiff was "being held in a[ ] jail facility, not a hotel").

B. Immunity

*5 Defendants contend they are entitled to summary judgment to the extent they are sued in their official capacities because in such capacity they are not "persons" under § 1983. The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Further, Eleventh Amendment immunity "extends to arm[s] of the State, ' including state agencies and state officers acting in their official capacity, " Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir.1996) (alteration in original) (internal citations omitted), because "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office... [and] is no different from a suit against the State itself, Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (internal citation omitted). Therefore, Eleventh Amendment immunity protects state agencies and state officials sued in their official capacity from liability for monetary damages under 42 U.S.C. § 1983. Id. As a result, to the extent Plaintiff has alleged claims against Defendants in their official capacities, those claims must be dismissed because Defendants are entitled to immunity pursuant to the Eleventh Amendment.

Defendants also contend that they are entitled to qualified immunity in their individual capacities. The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), established the standard which the court is to follow in determining whether a defendant is protected by qualified immunity.

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Id. at 818.

The Court of Appeals for the Fourth Circuit, discussing qualified immunity, stated:

Qualified immunity shields a governmental official from liability for civil monetary damages if the officer's "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"In determining whether the specific right allegedly violated was clearly established, ' the proper focus is not upon the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged." Moreover, "the manner in which this [clearly established] right applies to the actions of the official must also be apparent." As such, if there is a "legitimate question" as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity.

Wiley v. Doory, 14 F.3d 993 (4th Cir.1994) (internal citations omitted), cert. denied, 516 U.S. 824, 116 S.Ct. 89, 133 L.Ed.2d 45 (1995). As discussed above, Plaintiff fails to show that Defendants violated any of his clearly established constitutional or statutory rights. Therefore, Defendants are entitled to qualified immunity in their individual capacities.

RENEWED MOTION FOR PRELIMINARY INJUNCTION

*6 A review of Plaintiffs motion filed July 12, 2011, reveals that he essentially alleges, as he did in his previous motion for preliminary injunction, that his constitutional rights have been violated because he is served inadequate portions of food and the diet served is not nutritionally adequate. He has resubmitted an affidavit (which he submitted in conjunction with his first motion for a preliminary injunction) in which he addresses the factors outlined in Winter v. Natural Res. Del Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

As a preliminary injunction temporarily affords an extraordinary remedy prior to trial that can be granted permanently after trial, the party seeking the preliminary injunction must demonstrate that: (1) he is likely to succeed on the merits at trial; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. See Winter v. Natural Res. Del Council, Inc., 555 U.S at 20.

Plaintiff again fails to show that he is entitled to relief under the factors set out in Winter. He has not shown that he is likely to succeed on the merits at trial as discussed above. Plaintiff argues that he can succeed on the merits because he has submitted an affidavit from other inmates indicating that the foods that he believes should be served have not been served at KCI. He, however, fails to show that the diet currently being served at KCI is not nutritious or that the foods he desires must be served in order to have a nutritious diet. Plaintiff argues that he is likely to suffer irreparable harm because a lack of nutritious food may cause unforeseen medical problems. Fuller, a registered and licensed dietitian at SCDC, has stated that the KCI weekly and brunch menus are nutritionally sound. She further stated that Plaintiff is not in any immediate danger or susceptible to any harm as a result of the SCDC menus, and that the brunch program at KCI provides adequate nutritional and caloric value. Additionally, Plaintiff has not shown that the balance of equities tips in his favor. He appears to argue that the balance of equities is in his favor because the only harm to Defendants is that they would have to spend more money to provide him with the desired foods. This however, would appear to cause harm to SCDC as it would have to pay additional funds when it is already providing inmates with an adequate diet. Plaintiff also has not shown that an injunction is in the public interest. Plaintiff argues that by feeding him and the other inmates his desired foods that it will prevent the public from having to pay medical expenses to treat disease. He, however, has provided no evidence to show this. Further, SCDC has provided evidence that the menus currently being served are nutritious and comply with recommended guidelines. Further, as Plaintiff has not offered any new evidence in his current motion and his previous motion for a preliminary injunction was denied, it is recommended that Plaintiffs renewed motion for a preliminary injunction be denied.

CONCLUSION

*7 Based on the foregoing, it is recommended that Plaintiffs motion for a preliminary injunction (Doc. 54) be denied. It is further recommended that Defendants motion for summary judgment (Doc. 48) be granted.

Attorneys and Law Firms

Robert E. Miller, Monument, CO, pro se.

Zeyen Julian Wu, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER

R. Brooke Jackson, United States District Judge

*1 This matter arises before the Court on Defendant's Motion to Dismiss [ECF No. 34]. The defendant alleges that this Court lacks subject matter jurisdiction over this case or, in the alternative, that the plaintiff has failed to state a claim upon which relief can be granted. The Court agrees that it lacks jurisdiction to hear this case and therefore dismisses the case without prejudice.1

1 SeeBrereton v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006) (noting that dismissal on jurisdictional grounds should be made without prejudice).

BACKGROUND

This case arises from Mr. Miller's failed attempt to gain employment with the United States Department of the Navy. In August 2012 the Navy advertised a position for a Logistics Management Specialist pursuant to its Expedited Hiring Authority. This job was open for applications for two days. Though Mr. Miller applied for the job, he was not selected on the grounds that he was found ineligible for failing to meet the Quality Ranking Factor provided for in the application description. In his Complaint, Mr. Miller alleges that the Navy discriminated against him by "denying me fair access to compete for a job." [ECF No. 1 at 2, ¶ 4 ("Background and Facts of the Case")]2. He alleges that the Navy failed to follow a number of procedures and guidelines, specifically that the Navy pre-determined and pre-selected the persons who were awarded the position; it used false, misleading, and incorrect information to restrict and confuse the job applicant pool; it restricted the application period to less than five days without authorization; and it "illegally" used a Quality Ranking Factor to make applicants ineligible for the position in violation of the Expedited Hiring Authority guidelines. Id. at 2, ¶¶ 1-8 ("Claims for Relief and Supporting Factual Allegations").

2 The plaintiff restarts his numbering on the second page of the Complaint. Where necessary, the Court distinguishes the paragraphs based on identifying descriptions listed in the Complaint.

The Complaint asserts that this Court has jurisdiction under 5 U.S.C. § 2302(b)(1)-(b) (12) and, alternatively, simply because the defendant is an agency of the United States government. Id. at 1, ¶ 3. Mr. Miller has also attested that he exhausted all of his administrative remedies before filing in this Court, specifically by filing a complaint with the United States Merit Systems Protection Board ("MSPB") and directly appealing that decision to the Assistant Secretary of the Navy (Manpower and Reserve Affairs). Id. at 2, ¶ 4 ("Background and Facts of the Case"). The government submits that as to the MSPB decision, Mr. Miller is bound to file an appeal to the Federal Circuit Court of Appeals. Further, the government argues that the Court has no jurisdiction to hear this case under 5 U.S.C. § 2302, a provision of the Civil Service Reform Act ("CSRA"), and that any of Mr. Miller's complaints arising under the CSRA must be filed with the Office of Special Counsel ("OSC"). The Court agrees with the government on both grounds and hereby dismisses this case for lack of subject matter jurisdiction.

ANALYSIS

*2 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). A motion to dismiss pursuant to Rule 12(b)(1) may challenge the complaint on its face or based upon additional facts. "In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation omitted). When reviewing a factual attack supported by affidavits or other documents, the Court makes its own factual findings and, in doing so, does not convert the motion to one brought pursuant to Fed.R.Civ.P. 56. Id. at 1003.

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 subjectmatter 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)).

A. Merit Systems Protection Board Final Order Review.

After being found ineligible for the Logistics Management Specialist position, Mr. Miller filed a complaint with the MSPB claiming that the Navy violated one or more of his statutory or regulatory veterans' preference rights under the Veterans Employment Opportunities Act of 1998 ("VEOA"). See MSPB Initial Decision [ECF No. 34-4]. The MSPB issued a decision on the merits in favor of the government on March 8, 2013, and Mr. Miller subsequently filed a petition for review. The MSPB issued a Final Order on November 27, 2013 affirming the initial decision. MSPB Final Order [ECF No. 34-5]. In all, the Board found that the Navy had not violated a statutory or regulatory provision relating to veterans' preference when it filled the Logistics Management Specialist position. It issued no opinion as to whether the Navy's actions in filling the position were otherwise proper, as it noted that it had no jurisdiction to do so. Seeid. at 3. However, it did find that there was "no merit" to Mr. Miller's argument that the agency's use of Qualifying Ranking Factors violated its internal guidelines. Id. at 4. In fact, it found that the guidance "explicitly provides for the use of Quality Ranking Factors." Id. at 5.

The Court has reread Mr. Miller's Complaint numerous times and finds that it is unclear whether he is attempting to appeal the MSPB decision through this action. Notably, there is no mention that he is a veteran or any allegation that the Navy violated the VEOA in failing to hire him. If anything, the only ground on which Mr. Miller could be appealing the decision of the MSPB is as to its finding that the Navy was permitted to use Qualifying Ranking Factors when determining eligibility for the contested position. However, the Board's Final Order makes it clear that under 5 U.S.C. § 7703(b) (1)(A), Mr. Miller may only request review of this decision by appealing to the United States Court of Appeals for the Federal Circuit. MSPB Final Order [ECF No. 34-5] at 8. Therefore, insofar as Mr. Miller may be attempting to appeal the MSPB Final Order, this Court lacks jurisdiction to hear that appeal.

B. Civil Service Reform Act Complaints.

*3 On the face of the Complaint, it appears that Mr. Miller is alleging violations of a specific provision of the CSRA: 5 U.S.C. § 2302. This section is entitled Prohibited Personnel Practices-which Mr. Miller refers to as "PPP" in his Complaint-and lists practices that a governmental agency is prohibited from taking with respect to a number of individuals including job applicants. Mr. Miller wants this Court to hear his case on the merits. He would like the Court ultimately to determine whether the Navy committed any of these prohibited personnel practices, specifically those barred by 5 U.S.C. § 2302(b) (1)-(b)(12). The government argues that there is no private cause of action arising under 5 U.S.C. § 2302, and that any complaint Mr. Miller may have regarding the use of prohibited personnel practices must be brought to the attention of the OSC, not to this Court.

5 U.S.C. § 1800.1(a) provides that the OSC has investigative jurisdiction over allegations of prohibited personnel practices. Further, 5 U.S.C. § 1800.1(c) discusses the procedures for filing any such complaint. Once a complaint is filed, OSC must conduct an investigation. 5 U.S.C. § 1214(a)(1)(A). If the results of the investigation are not to the complainant's liking, the complainant's "sole remedy is to follow the grievance procedures provided by the [CSRA]." Nowick v. Strickland, Nos. 98-1206, 98-1207, 98-1212, 1999 WL 282389, at *1 (10th Cir. Apr. 30, 1999) (citing United States v. Fausto, 484 U.S. 439, 454-55 (1988)). However, should OSC fail to carry out its statutory obligation to investigate, the complainant may file for a writ of mandamus in federal court. See e.g., Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 492 (6th Cir. 2011); Nowick, 1999 WL 282389 at *3 (noting its authority to ensure that the OSC complied with its statutory obligations).

A number of circuit courts have found that the comprehensive remedial scheme outlined in the CSRA indicates that Congress intended for such scheme to be exclusive, in turn finding no private cause of action under the statute. See e.g., Schrachta v. Curtis, 752 F.2d 1257, 1260 (7th Cir. 1985); Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984); Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983); Braun v. United States, 707 F.2d 922, 925 (6th Cir. 1983). The Fourth Circuit specifically held that "[t]he absence of a provision for direct judicial review of prohibited personnel actions among the carefully structured remedial provisions of the CSRA is evidence of Congress' intent that no judicial review in district court be available for the actions involved in this case." Pinar v. Dole, 747 F.2d 899, 910 (4th Cir. 1984). According to the Tenth Circuit (in an unpublished case), the authority of the federal courts "goes no further than ensuring that the OSC complied with its statutory obligations"; it does not extend to review of the merits of the personnel issue. Hyde v. Office of Special Counsel, No. 94-1406, 1995 WL 238340, at *1 (10th Cir. Apr. 21, 1995).

As noted above, the burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction. Mr. Miller has put forth no argument that this Court has jurisdiction over alleged violations of the CSRA, in particular over allegations of prohibited personnel practices. The Court was likewise unable to find authority in support of such a position. As such, the Court finds that it has no subject matter jurisdiction over these claims.

C. Right to Sue United States Agency.

Lastly, Mr. Miller contends that this Court has subject matter jurisdiction over his case simply because the Navy is a United States agency. However, federal law has long held that "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (emphasis added) (citations omitted). The presumption, therefore, is that the Navy is immune from suit. As Mr. Miller has made no showing that such immunity has been waived, the Court finds this jurisdictional assertion unavailing.

CONCLUSION

*4 I understand that Mr. Miller believes that the government is using unfair legal maneuvers to prevent this Court from hearing the case on the merits. However, a court cannot hear a case if it does not have jurisdiction over the matter. Therefore, even if I want to hear this case on the merits, I cannot do so.

ORDER

For the foregoing reasons, Defendant's Motion to Dismiss [ECF No. 34] is GRANTED WITHOUT PREJUDICE. As the prevailing party the defendant is awarded its costs pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1.

Attorneys and Law Firms

Keith Parker, Canon City, CO, pro se.

James Xavier Quinn, James Xavier Quinn, Colorado Attorney General's Office-Employment Law, Denver, CO, for Defendants.

OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO AMEND, MOTION FOR RECONSIDERATION, MOTIONS FOR ADDITIONAL DISCOVERY, MOTIONS FOR INJUNCTIVE RELIEF; GRANTING PLAINTIFF'S MOTIONS FOR CONSIDERATION OF UNTIMELY FILED EXHIBITS AND MOTION FOR UPDATE ON CASE; GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND DENYING AS MOOT PLAINTIFF'S MOTIONS FOR RULINGS

MARCIA S. KRIEGER, District Judge.

*1 THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment (#401), to which the Plaintiff Keith Parker responded (#404), [1] the Defendants replied (#422), [2] and Mr. Parker filed a Surreply (#439).[3] In connection with the pending Motion for Summary Judgment, there are a number of other pending motions. First, Mr. Parker's Motion for Review (#443), to which the Defendants responded (#449), addresses claims Mr. Parker believes were inappropriately omitted from the Amended Complaint (#191) by prior volunteer counsel. The Court construes this as a motion to amend the complaint to assert these claims.

Second, Mr. Parker has filed three motions seeking to submit additional exhibits for the Court's consideration in connection with the Defendants' Motion for Summary Judgment: (1) "Affidavit to Invoke Personal Knowledge of Claims" (#412), to which no response was filed; (2) Motion to Include Exhibits in Motion for Summary Judgment (#416), to which the Defendants responded (#423); and (3) Motion to Include Another Exhibit with the Summary Judgment Motion (#429), to which the Defendants responded (#437).

Third, Mr. Parker has requested additional discovery prior to consideration of the Motion for Summary Judgment regarding his "Institutional File, " and a recording of an administrative segregation hearing: (1) Request for In Camera Inspection of his Institutional File (#411), to which no response was filed; (2) Motion for Hearing or Conference (#428) regarding discovery of his institutional file, to which the Defendants responded (#437); (3) Rule 56(f) Motion (#440) for additional discovery on his Institutional File, to which the Defendants responded (#448); and (4) Motion for In Camera Review (#441)[4] of Mr. Parker's Institutional File and a recording of the administrative segregation hearing, to which no response was filed.

Fourth, Mr. Parker has filed three motions for injunctive relief: (1) Motion for Temporary Restraining Order (#433), to which the Defendants responded (#445); (2) Motion for Injunctive Relief (#435), to which the Defendants responded (#444);[5] and (3) Motion for Temporary Restraining Order, Preliminary Injunction (#462), to which a response is not yet due.

Finally, with respect to the status and progress of his case, Mr. Parker has filed four motions: (1) Motion for a Hearing or Conference on the Case and Pending Motions (#451), to which the Defendants' responded (#455); (2) Motion for Update on Case (#456), to which the Defendants responded (#458); (3) Motion for Ruling (#457), to which the Defendants responded (#458); and (4) Motion for Ruling (#463), to which no response is yet due.

Having considered the same, [6] the Court FINDS and CONCLUDES the following.

I. Jurisdiction

This Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

II. Issues Presented

*2 As discussed infra, this action grows out of Mr. Parker's confinement with the Colorado Department of Corrections ("CDOC"). Mr. Parker's three remaining claims are (1) an Eighth Amendment failure to protect claim based upon alleged inaction by Director Zavaras, Warden Arellano, Mr. Hollenback, and Captain Hall during Mr. Parker's confinement at the Arkansas Valley Correction Facility ("AVCF"); (2) an Eighth Amendment conditions of confinement claim against the Colorado Department of Corrections ("CDOC") based upon alleged lack of outdoor exercise during Mr. Parker's confinement at the Centennial Correctional Facility ("CCF"); and (3) a retaliation claim against Lieutenant McCormick, Ms. Webster, and Lieutenant Piper for actions allegedly taken against Mr. Parker based on his filing of this lawsuit.

In the Motion for Summary Judgment (#401), the Defendants seek summary judgment as to all three of the remaining claims. As to the failure to protect claim, the Defendants assert that Mr. Parker has failed to demonstrate personal participation as to any of the pertinent defendants; that all pertinent defendants are entitled to qualified immunity; and that Mr. Parker is unable to demonstrate a prima facie case for failure to protect. As to the outdoor exercise claim, the Defendants argue that Mr. Parker cannot establish his prima facie case for an Eighth Amendment violation. As to the retaliation claim, the Defendants argue that Mr. Parker is not entitled to any relief and that he has not presented any evidence demonstrating a retaliatory motive, as he is required to do to demonstrate a prima facie case.

III. Preliminary Issues

The Court first addresses some of the preliminary issues that are raised in Mr. Parker's pending motions, identified supra.

A. Motion to Amend

Mr. Parker's Motion for Review (#443) primarily complains about the representation provided by volunteer counsel, who withdrew shortly after filing the Amended Complaint (#191). Mr. Parker complains that counsel omitted certain claims in the Amended Complaint. Liberally construing this motion, the Court understands Mr. Parker to request that he be allowed to file another complaint in order to assert these claims. To the extent that it seeks any other relief, including action against volunteer counsel for the representation provided, it is DENIED.

Mr. Parker maintains that volunteer counsel failed to include three claims: (i) an equal protection claim against Captain Hall; (ii) a racial discrimination claim against Lieutenant Piper for calling Mr. Parker a "nigger"; and (iii) a claim for violation of disciplinary procedures based on Mr. Parker's placement in administrative segregation in June 2008 for longer than allowed under prison guidelines. However, he does not contend that there was any omission in the factual allegations in the Amended Complaint.

Assuming that Mr. Parker's volunteer counsel overlooked these claims in preparing the Amended Complaint (#191), they have not escaped the Court's review and consideration. Indeed, Mr. Parker raised these same issues in his response (#227) to the Motion to Dismiss (#201) the Amended Complaint. In ruling on this motion (#379), the Court recognized that Mr. Parker's counsel had withdrawn and that he believed that more claims were shown in the Amended Complaint than those specifically denominated. As a consequence, the Court gave deference to the Amended Complaint as if it had been prepared by Mr. Parker. It treated all facts alleged in the Amended Complaint as true and gave broad deference as to the scope of the legal claims that might be asserted. The Court considered the claims that Mr. Parker now seeks to advance, finding (probably as did Mr. Parker's volunteer counsel) that the alleged facts were insufficient to support them.[7] Mr. Parker does not direct the Court to any allegation in the Amended Complaint which would remedy the deficiency, nor offers additional facts that would remedy the deficiency. Accordingly, the Motion for Review (#443), construed as a motion to amend, is DENIED, as futile.

B. Motion for Reconsideration

*3 Although the Court generally construes Mr. Parker's "Motion to Dismiss Defendants [sic] Motion for Summary Judgment Due to the Fact Genuine Issue's [sic] of Material Fact Exist and Grant Relief Under Rule 38, 40" (#404) as a response to the Defendants' Motion for Summary Judgment, certain statements appear to request reconsideration of the Court's March 2010 Opinion and Order Granting in Part Motion to Dismiss (#379).

In considering these, the Court is mindful that although the Federal Rules of Civil Procedure do not recognize a "motion to reconsider, " a litigant has two options when subject to an adverse judgment: file a motion to alter or amend an order or judgment pursuant to Fed.R.Civ.P. 59(e) or file a motion seeking relief from an order or judgment pursuant to Fed.R.Civ.P. 60(b). See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991). Because Mr. Parker's motion was filed more than 28 days after the Order from which he seeks relief, his motion is governed by Rule 60(b). See Fed.R.Civ.P. 59(e).Rule 60(b) permits the Court to reconsider an order due to, inter alia, a substantive "mistake of law or fact" by the Court, Fed.R.Civ.P. 60(b)(1), Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999), "newly discovered evidence that, with reasonable diligence, could not have been discovered [earlier], " Fed.R.Civ.P. 60(b)(2), or as a result of "any other reason that justifies relief." Fed.R.Civ.P. 60(b)(6).

Here, Mr. Parker contends that relief from the order of dismissal is warranted because the Court did not correctly determine the facts. Mr. Parker contends that there is an inconsistency in the Court's factual recitation, [8] that certain factual statements are in error, [9] and that his claim for failure to protect at BVCF should be reinstated.

The first two contentions do not justify reconsideration because the recitation of the facts in the Order on the Motion to Dismiss (#349) referred only to the allegations made by Mr. Parker in the Amended Complaint (and other documents before the Court). The Court did not determine these to be true or false, only whether they were sufficient to state the claims that he identified. Because he does not identify any factual allegation that would satisfy the deficiencies specified in the Order, dismissal of certain claims remains appropriate.

Mr. Parker's third contention is that his claim for failure to protect at BVCF should be reinstated. The Court dismissed this claim for failure to allege that he was in any danger while at BVCF. Now Mr. Parker directs the Court to his Exhibit X-10 (#429), which is a record of an "Inmate Staffing Roundtable, " dated August 21, 2008. This document states "Offender Parker will probably need to be moved out. He was beat up at BVCC and AVCF."

Again, construing pleadings most liberally to Mr. Parker, the Court assumes (without deciding) that this document has been newly discovered and for that reason was not timely included in the allegations of or as an exhibit to the Amended Complaint. Assuming that it had been timely presented, the Court's reasoning would not have changed, however.

*4 "BVCC" is an acronym for the Buena Vista Correctional Complex, which includes BVCF. Thus, this evidence construed most favorably to Mr. Parker, indicates that as of Aug. 21, 2008, some staffers were aware that Mr. Parker had been "beaten up" at BVCF and AVCF. However, these facts taken as true, remain insufficient to state a claim failure to protect at BVCF. This document does not disclose when the event at BVCF occurred, who the offender was, or whether any action was taken by officials at BVCF or BVCC. Accordingly, reconsideration would result in the same determination-Mr. Parker has not adequately alleged a failure to protect claim for his placement at BVCF.

Accordingly, Mr. Parker's Motion to Dismiss Defendants [sic] Motion for Summary Judgment Due to the Fact Genuine Issue's [sic] of Material Fact Exist and Grant Relief Under Rule 38, 40a" (#404) is DENIED.

C. Exhibits for Consideration in Conjunction with the Defendant's Motion for Summary Judgment

Although the scope of Mr. Parker's "Affidavit to Invoke Personal Knowledge of Claims" (# 412) is somewhat unclear, the Court understands him to request that the Court treat all allegations in Amended Complaint as verified. In accordance with its obligation to liberally construe Mr. Parker's pleadings, the Court treats all allegations for which Mr. Parker has personal knowledge as if they had been attested to under penalty of perjury. Accordingly, to this extent the Motion (#412) is GRANTED. To the extent that the Motion seeks any other relief, it is DENIED.

In two separate motions (#416 and #429), Mr. Parker submits exhibits in opposition to the Defendants' Motion for Summary Judgment. The Defendants oppose these requests as untimely, but have not demonstrated that any prejudice that would result if the Court were to consider them. Indeed, they contend that the exhibits are irrelevant. Accordingly, to provide Mr. Parker with the full opportunity to present his arguments, the Court GRANTS the motions (#416 and #429) to the extent they seek to submit exhibits for the Court's consideration in connection with the Defendants' Motion for Summary Judgment. The motions are DENIED insofar as they seek any additional relief.

D. Additional Discovery of "Institutional File" and Recording of Administrative Segregation Hearing

Mr. Parker has filed several motions related to discovery of (i) his prison records including his Institutional File and Security Threat Group File, which the Court understands to include records of the complaints that Mr. Parker has made to CDOC officials about the threat to his safety from incarcerated gang members; and (ii) a recording[10] of an "administrative segregation hearing, "

With respect to his prison files, Mr. Parker requests that the Court conduct an in camera review of the files because they have either not been provided to him based on a claim of privilege or institutional security or provided in redacted form. He does not identify the specific information that he contends is missing; instead, he states only that the Defendants are withholding information that would support his claims.

*5 With respect to the recording of the hearing on administrative segregation, Mr. Parker requests that this Court not only consider it in connection with the Defendants Motion for Summary Judgment, but also that it retrieve the recording from the Defendants. He admits that he had heard the recording but does not state why he is unable to submit the evidence. It is unclear on what precise date this hearing occurred-(#349) states that the hearing occurred on November 24, 2008; (#357) states that the hearing occurred on November 23, 2009. It is also unclear what the purpose and scope of this hearing were. Based on the name that Mr. Parker has ascribed to the recording and the fact that the conduct at issue in this case occurred at the prison, it may have involved a prison facility's hearing on administrative segregation. However, Mr. Parker also has stated that it pertains to a November 20, 2008 Scheduling Conference before the Magistrate Judge. He contends that at this hearing, Ms. Webster threatened him with administrative segregation in retaliation for his pursuit of his claims in this lawsuit.

This Court has previously addressed the disclosure of each of these items. On January 28, 2010, the Magistrate Judge addressed (#315) various motions to compel filed by Mr. Parker. With respect to Mr. Parker's request for his "Institutional File, " the Magistrate Judge noted that the Defendants had produced portions of the file to Mr. Parker, excluding the portions that the Defendants deemed "security sensitive documents." As the Magistrate Judge understood Mr. Parker to complain only that other documents were produced in conjunction with his Institutional File, not that portions of the file were not produced, she did not address whether the Defendants' production was sufficient nor did she order any further production. See Minute Order dated 1/28/2010 (#315), at 7-8. As to Mr. Parker's request for "transfer, custody records which includes a copy of the plaintiffs enemy list, " the Magistrate Judge ordered the Defendants to produce "the list maintained by CDOC which contains the names of those inmates who Plaintiff has identified as his enemies, " but authorized the Defendants to exclude or redact the names of other inmates who have reported threats from or fear of Mr. Parker. See id. at 9. Finally, as to the "Security Threat Group" documents that discussed complaints by Mr. Parker, including records regarding "every time plaintiff went and talked to security, case manager, administrator, sent letters, " the Defendants asserted that they should not be required to disclose the information because it constituted gang intelligence. The Magistrate Judge ordered that the Defendants to either produce the documents, as they related to Mr. Parker only, for in camera review or to disclose to Mr. Parker that no such document exists. See id. at 12-13.

On February 16, 2010, Mr. Parker requested reconsideration by the Magistrate Judge (#327). The Magistrate Judge denied the Motion on March 4, 2010 (#346). As to Mr. Parker's request for his institutional file, the Magistrate Judge noted that the Defendants had already disclosed the portions of the file that pertained to Mr. Parker and provided a privilege log as to the remaining documents. Because Mr. Parker had not made any specific objection to any entry in the privilege log, the Magistrate Judge determined that the Defendants had sufficiently produced the requested Institutional File. See Minute Order dated 3/4/2010 (#346), at 3-4. As to Mr. Parker's request for the Security Threat Group file and the list of the list of Mr. Parker's identified enemies, the Magistrate Judge concluded that Mr. Parker had not made any argument as to why disclosure beyond that ordered in the previous order was warranted.

*6 On February 23, 2010, Mr. Parker requested that the Defendants be ordered to produce the recording (#334) so that he could present the recording as evidence during the Court's hearing regarding his Motion for Preliminary Injunction. The Magistrate Judge denied (#338) the Motion, concluding that Mr. Parker's request was untimely and he had not adequately explained how the recording was relevant to the Motion for Preliminary Injunction.

On April 1, 2010, Mr. Parker filed a "Motion to Grant Subpoena's [sic] for Plaintiffs Files and Administrative Hearing Disk"(#388). The Magistrate Judge concluded that the requests were untimely and had already been determined in previous orders. As to the disclosure of Mr. Parker's prison records, however, the Magistrate Judge noted that the Defendants had not filed a certificate of compliance regarding the Court's January 28, 2010 Order (#315), which required production of Mr. Parker's prison files for in camera review or notice to Mr. Parker that no such files existed. Accordingly, the Magistrate Judge ordered compliance by April 9, 2010.

On April 9, 2010, the Defendants filed a Certificate of Compliance (#400), stating that they had provided redacted copies of all of the documents in Mr. Parker's prison file that were covered by his discovery requests.

Turning to Mr. Parker's current motions and requests for disclosure and in camera review, the Court notes that the motions essentially request what has already been denied- production of non-redacted prison files for in camera review and production of the recording

of the administrative segregation hearing for consideration in connection with the Defendants' Motion for Summary Judgment. Mr. Parker has not provided any colorable argument as to why such actions are necessary. As to the request for in camera review of the contents of his Institutional File, Security Threat Group File, and list of enemies, Mr. Parker alleges only that the Defendants are hiding something by redacting portions of the documents. He provides no basis for this allegation and does not include any specific objections to any particular entry in the privilege log. Nor does he address the Defendants' contention that the portions that are redacted relate to other inmates. Conclusory allegations that the redacted portions support his claims and that he is unable to defend the Motion for Summary Judgment without the documents are not sufficient. Accordingly, the Court finds that Mr. Parker has not provided a sufficient basis on which to conduct an in camera review of these documents.

As to the recording of the administrative segregation hearing, Mr. Parker acknowledges that he has listened to the recording, but provides no detail as to the contents and how they support his claims, nor any reason why he has been unable to provide the recording himself Accordingly, the Court declines to order the Defendants to produce the recording as its relevance is unclear and Mr. Parker could have submitted it himself

*7 Accordingly, Mr. Parker's Motions (#411, 428, 440, 441) are DENIED.

IV. Material Facts

The Court has reviewed all of the parties' submissions. For purposes of this Motion only, the Court construes all disputed facts most favorably to Mr. Smith. Furthermore, because Mr. Smith is proceeding pro se, the Court construes his pleadings liberally, treating all allegations for which he has personal knowledge as if they had been attested to under penalty of perjury. Viewing the facts in such light, the material facts are as follows.

In 2004, Mr. Parker completed a term of incarceration in the CDOC. During this term of incarceration, he was assaulted and threatened by members of certain a gang or gangs who believed that he had cooperated with law enforcement in a case in Chicago.

In 2008, Mr. Parker plead guilty to a drug offense and was sentenced to a term of 12 years of imprisonment in the CDOC. After a short, initial placement in the Denver Reception and Diagnostic Center ("DRDC"), Mr. Parker was designated to serve his sentence in the Arkansas Valley Correctional Facility ("AVCF"). During his entry interview with Lieutenant Lucero, [11] a Gang Intelligence Officer, Mr. Parker recounted the previous assaults by gang members and requested protection. He iterated this request in letters to Defendants Zavaras (Director of the Colorado Department of Corrections), Arellano (Warden of AVCF), and Hollenbeck (responsible for approving placements and transfers through the CDOC). Despite these requests, Mr. Parker was released into the general population at AVCF. As a result, Mr. Parker initiated this lawsuit on April 4, 2008, challenging the CDOC's policies regarding protective custody and alleging he was assaulted as a result of the policies.

While at AVCF, Mr. Parker was assigned to Housing Unit #6. He told Captain Hall of the danger he faced from gang members in that housing unit. She responded that he should "man up and fight, do what you need to do, handle your business." Mr. Parker was placed in a cell with a gang member from one of the gangs that he feared. Mr. Parker was assaulted sometime in April 2008 under unidentified circumstances, and again on June 5, 2008 by his cellmate. Shortly after the June 2008 assault, but apparently unrelated to the assault, Mr. Parker's cell was searched and a shank was found. Both Mr. Parker and his cellmate were placed in administrative segregation.

Apparently in an effort to protect him from the gangs at AVCF, but despite his warning that he would face danger from gangs at LCF, Mr. Parker was transferred to the Limon Correctional Facility ("LCF").[12] While at LCF, Mr. Parker states that Lieutenant Piper told Mr. Parker that if he did not sign a statement to be cleared to enter the general population, that he would tell all the inmates that he was a snitch. Lieutenant Piper then placed Mr. Parker in a cell with a pink tag indicating that he was a snitch and stated to Mr. Parker "since you requesting P.C.[13] (my help) then you will sweat until I transfer you."

*8 Mr. Parker was subsequently transferred to the Buena Vista Correctional Facility ("BVCF"), even though he had previously advised the personnel at the DRDC that he would also be in danger at BVCF. At BVCF, Lieutenant McCormick advised Mr. Parker that he had the choice of returning to LCF or be sent to administrative segregation for 3-5 years, "due to the fact that we are tired of you and all these custody issues and lawsuits" and that Mr. Parker's placement in administrative segregation would "kill that lawsuit, solve the lawsuit problems." Mr. Parker was placed in administrative segregation at BVCF, but then apparently was released from administrative segregation. In September 2008, while in the dining hall at BVCF, Mr. Parker was confronted and threatened by a group of gang members.

After reporting this incident to Lieutenant McCormick, Mr. Parker was transferred to the Centennial Correctional Facility ("CCF"). Prisoners at CCF are on lock-down 23 hours each day. Although generally inmates at CCF are provided with the opportunity for outdoor exercise, see Recommendation on Mr. Parker's Motion for Preliminary Injunction (#398), Findings of Fact at 4-5, Mr. Parker is restricted to indoor exercise for one hour five times a week, and is not permitted outdoor exercise. He contends that he has not had any outdoor exercise since November 2008, and that as a result his mental health has deteriorated.[14]

Mr. Parker states that while at CCF, Ms. Webster has told him that he will be placed in administrative segregation indefinitely and "for real and for good" if he does not stop filing grievances and initiating lawsuits. Mr. Parker alleges that Ms. Webster has made these comments numerous times, including during the November 2008 scheduling conference in this case. He further contends that he was indeed placed at Colorado State Penitentiary ("CSP") "24-7 lock-down" by Ms. Webster.

In an Order (#379) addressing a Motion to Dismiss (#201) filed by the Defendants, the Court reviewed all of Mr. Parker's factual allegations concluding that the allegations potentially gave rise to six different claims. After analysis of the Defendants' assertion of qualified immunity in the context of a motion to dismiss, however, the Court concluded that only three claims were sufficiently plead. The three remaining claims are (1) an Eighth Amendment failure to protect claim for inaction during Mr. Parker's confinement at AVCF against Director Zavaras, Warden Arellano, Mr. Hollenback, and Captain Hall; (2) an Eighth Amendment conditions of confinement claim for lack of outdoor exercise during Mr. Parker's confinement at CCF (and/or CSP) against the CDOC, which is limited to injunctive relief;[15] and (3) a retaliation claim against Lieutenant McCormick, Ms. Webster, and Lieutenant Piper for actions taken against Mr. Parker based on his filing of this lawsuit.

V. Standard of Review

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248.When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002).

*9 When the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. SeeFed.R.Civ.P. 56(e). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

When the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, the claim or defense must be dismissed as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

VI. Analysis

A. Failure to Protect at AVCF

Defendants Zavaras, Arellano, Hollenbeck, and Hall move for summary judgment on this claim under three theories: (i) Mr. Parker has not demonstrated personal participation by Defendants Zavaras, Arellano, and Hollenbeck; (ii) Mr. Parker has not presented sufficient evidence for a prima facie case; and (iii) they are entitled to qualified immunity. Mr. Parker responds that he has validly asserted a claim for failure to protect against all of the Defendants and that they are not entitled to qualified immunity.

The Court turns first to Defendants Zavaras, Arellano, and Hollenbeck's argument regarding personal participation. Individual liability under section 1983 must be based on personal involvement in the alleged constitutional violation. See Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997). Thus, a supervisor may only be personally liable for the actions of an subordinate if the supervisor personally participated in the conduct, exercised control or direction over it, failed to supervise, failed to train, or tacitly authorized the conduct that resulted in the constitutional deprivation. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.2008); Currier v. Doran, 242 F.3d 905, 925 (10th Cir.2001). In other words, there must be an affirmative link between the constitutional deprivation and the supervisor's personal actions. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009).

Here, Defendants Zavaras, Arrellano and Hollenbeck argue that Mr. Parker has not demonstrated that they personally participated in the alleged failure to protect. They contend that Mr. Parker's allegations that he sent them letters and/or grievances are not sufficient to demonstrate their personal participation. The Defendants are correct that participation in the grievance process, without any connection to the violation of constitutional rights, generally is insufficient to establish personal participation. See, e.g., Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009); Walker v. Meyer, 2009 WL 961490, at *4 (D.Colo. Apr. 7, 2009) (unpublished). In some circumstances, however, participation in the grievance procedure can be sufficient to establish personal participation with regard to a failure to protect, if the unlawful conduct is the failure to appropriately respond to the grievance itself See Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir.2003) (a failure to act claim requires a showing of subjective knowledge of an objective substantial risk of harm and deliberate indifference to the risk, i.e., failure to act); Howard v. Waide, 534 F.3d 1227, 1237 (10th Cir.2008) (holding that "[r]egardless of how prison officials become subjectively aware of a substantial risk of serious harm to an inmate..., the Eighth Amendment requires them to respond reasonably" and noting that the plaintiff in that case had provided notice of his fears in both meetings and grievances). For participation in the grievance procedure to be adequate to establish personal participation, however, the prison official must be in a position to remedy the grievance or complaint. Absent such requirement, a plaintiff asserting a failure to protect claim could sue every prison official who was even marginally involved in the grievance process.

*10 In this case, Mr. Parker's failure to act claim is limited to his placement at AVCF in a housing unit with gang members. To establish personal participation, Mr. Parker must show that each named defendant was in the position to affect or determine his placement in the particular housing unit. He has not done so.

The record shows that Director Zavaras is the Executive Director of CDOC and is "responsible for the policies and administration of that agency, " but nothing more. As to Warden Arellano, the record offers nothing with regard to his duties or role in Mr. Parker's placement at AVCF. The record reveals only that Mr. Hollenbeck was responsible for "approving all transfers and inmate moves in the Department of Corrections." Because no evidence has been presented to show that Director Zavaras, Warden Arellano or Mr. Hollenbeck assigned (or was authorized to assign) Mr. Parker to a particular housing unit at AVCF, the Court cannot find a sufficient showing of personal participation. Consequently, each of them is entitled to judgment in his favor and the Motion for Summary Judgment is GRANTED insofar as it seeks summary judgment in favor of Director Zavaras, Warden Arellano, and Mr. Hollenbeck on the failure to protect claim. The remaining defendant is Captain Hall, who apparently concedes her personal participation in the alleged constitutional violation as she did not move for summary judgment on this ground. Notably, however, the record reveals that Captain Hall was the Commander of Housing Unit #6, where Mr. Parker was placed and that Mr. Parker personally informed Captain Hall of the danger he faced from certain gang members. A reasonable inference from these allegations is that Captain Hall had some degree of control over the cell assignments in the unit. Captain Hall asserts qualified immunity.

When a defendant raises a qualified immunity defense, the burden shifts to a plaintiff to satisfy a two-part test. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Green v. Post, 574 F.3d 1294, 1300 (10th Cir.2009). A plaintiff must show that he or she had a constitutional right that was infringed (the "violation prong"), and that such right was clearly established at the time of the alleged infringement (the "clearly established prong"). Although a plaintiff must ultimately establish both elements to avoid application of the doctrine, the Court has discretion to consider the elements in any order. See Pearson v. Callahan, 129 S.Ct. 808, 818 (2009); Green, 574 F.3d at 1299.

With respect to the violation prong, a plaintiff must show that the defendant's actions deprived him or her of a constitutional or statutory right. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). Identification of a constitutional right in the abstract is insufficient; instead, a plaintiff must precisely articulate the clearly established right that was allegedly violated and specifically identify the defendant's conduct that violated the right. See Green, 574 F.3d at 1300.

*11 For the clearly established prong, the question is whether the identified right was clearly established based on the specific facts of the case. Brosseau v. Haugen, 543 U.S. 194, 199-200 (2004). Typically, the inquiry is whether, on the operative date, there was binding authority from the Supreme Court or Tenth Circuit (or the clear weight of authority from other circuits) recognizing that particular conduct would constitute a violation of federal law. York v. City ofLas Cruces, 523 F.3d 1205, 1211-12 (10th Cir.2008). The inquiry is not whether there was previous case with identical facts, but instead, whether prior caselaw put the defendants on notice that the alleged conduct would be unconstitutional. See Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir.2006). This is essentially a legal question and is measured by an objective standard. See Crawford-El v. Britton, 523 U.S. 574, 589-90 (1998).

In this case, the Court previously determined that it was clearly established "that a prison official's decision to ignore an inmate's specific allegations that he was in danger from specific gangs and to place him in a cell with gang members violates the prisoner's constitutional rights." See Opinion and Order Granting In Part Motion to Dismiss (#379), at 16 (relying on Verdecia, 327 F.3d at 1175; Howard, 534 F.3d 1227). The Court sees no reason to vary from this legal determination. Thus, the question becomes whether Mr. Parker has presented sufficient evidence to establish a prima facie case.

As with all Eighth Amendment claims, to establish a failure to protect claim, the plaintiff must show both an objective component -that he is incarcerated under conditions posing a substantial risk of serious harm- and a subjective component-that the prison official acted with deliberate indifference to the prisoner's safety. The subjective component requires that a prison official be aware of facts from which it can be concluded that a substantial risk of harm exists and that the official draw such inference. Mere negligence is not sufficient to establish "deliberate indifference"; rather, the standard requires recklessness, i.e., disregarding a risk of which the official was aware. See Verdecia, 327 F.3d at 1175; Howard, 534 F.3d at 1236.

Mr. Parker's attestations are sufficient to establish a claim against Captain Hall. Mr. Parker attests that he had been labeled a snitch by a particular gang, that he had been assaulted by members of that gang, and that members of the gang remained active in the prison system. This evidence, viewed in the light most favorable to Mr. Parker, establishes an objective substantial risk of harm. See Howard, 534 F.3d at 1237 (holding that the threat of future sexual assault, based on past assaults by a particular gang, was sufficient for the failure to protect objective prong); Curley v. Perry, 246 F.3d 1278, 1282 (10th Cir.2001) (holding that the threat ofphysical assaults is sufficiently "serious" under the failure to protect rubric).

*12 As for the subjective prong, Mr. Parker states that prior to his placement in Housing Unit #6, he informed Captain Hall of the particular danger he faced from gang members in that housing unit. She responded that he should "man up and fight, do what you need to do, handle your business." This is sufficient to demonstrate that Captain Hall was subjectively aware of the risk that Mr. Parker faced and that she disregarded such risk.[16] Captain Hall's statement demonstrates that she was aware of the alleged danger and chose not to address it. The fact that Mr. Parker did not alert Captain Hall as to the danger from a particular gang member, i.e., his cellmate, does not change the calculus. Captain Hall's statement indicates a disregard for the risk regardless of whether it arose inside or outside of Mr. Parker's cell. See Howard, 534 F.3d at 1236 ("For Eighth Amendment purposes, it does not matter whether the risk comes from a single source or multiple sources.")

Accordingly, the Court DENIES the Motion for Summary Judgment as to the claim for failure to protect against Captain Hall, and DENIES her request for qualified immunity.

B. Cruel and Unusual Punishment

The CDOC moves for summary judgment on Mr. Parker's cruel and unusual punishment claim for his placement in administrative segregation contending that Mr. Parker cannot establish a prima facie case of cruel and unusual punishment. Mr. Parker responds that his placement in administrative segregation, without any outdoor exercise, since November 2008 establishes an Eighth Amendment violation.

As noted supra, an Eighth Amendment claim has both an objective component-whether the deprivation is sufficiently serious-and a subjective component-whether the official acted with a sufficiently culpable state of mind. See Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 809 (10th Cir.1999) (citing Wilson v. Seiter, 501 U.S. 294, 298-99 (1991)). The objective component is satisfied by a showing of unnecessary and wanton infliction of pain, sentences that are grossly disproportionate to the severity of the crime, or conditions that result in an unquestioned and serious deprivation of basic human needs. See Mitchell v. Maynard, 80 F.3d 1433, 1441-42 (10th Cir.1996). Thus, prisons must provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from bodily harm. See Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.2008) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). In cases challenging the conditions of a prisoner's confinement, the subjective standard is one of deliberate indifference to inmate health or safety. See Perkins, 165 F.3d at 809 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A court may infer that a prison official knew of a substantial risk from the very fact that the risk was obvious.

With respect to outdoor exercise, the Tenth Circuit has acknowledged that some degree of regular outdoor exercise is important to prisoners' psychological and physical well being. See Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir.1987). It has also determined that although denial of outdoor exercise is not a per se Eighth Amendment violation, continuous and prolonged denial of outdoor exercise can constitute an Eighth Amendment claim. See Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir.2006) (finding that an extended deprivation of outdoor exercise (three years) was a sufficiently serious deprivation).But see Ajaj v. United States, 293 Fed.App'x, 584 (10th Cir.2008) (unpublished) (concluding that deprivation of outdoor exercise for a year was insufficiently serious to constitute an Eighth Amendment violation).[17]

*13 Mr. Parker states that he has not been provided any outdoor exercise since November 2008, and for purposes of this motion, the Defendants agree. This would mean that Mr. Parker has had no outdoor exercise for approximately two years and five months. Viewed solely from a temporal perspective, a reasonable factfinder could determine that the denial of outdoor exercise for such an extended amount of time is sufficiently serious and that the CDOC acted with deliberate indifference in denying any outdoor exercise for this amount of time. See Fogle, 435 F.3d at 1260.

The Defendants justify Mr. Parker's inability to exercise outdoors by saying that this is a function of CDOC rules. Inmates at CSP are categorically denied access to outdoor recreation, in order to create an incentive for inmates to exhibit good behavior and earn a transfer to CCF, where outdoor exercise is permitted. This argument misses the mark. Continuous and prolonged deprivation of outdoor exercise can constitute an Eighth Amendment violation, regardless of whether the motives for withholding access to the outdoors are benign or malevolent. This is not to say that CDOC cannot use the carrot of greater outdoor recreation as an inducement to CSP inmates to reform their behavior; indeed, the caselaw cited above recognizes that outdoor recreation can be withheld for some limited period of time without running afoul of the Eighth Amendment. But at some point in time-a point in time not susceptible to the drawing of a bright line rule-the deprivation of all outdoor exercise for a prolonged period becomes a constitutional violation regardless of whether it is imposed for corrective or vindictive reasons.

Moreover, it is not clear that the prison operations rules act as a carrot for Mr. Parker. Here, the Defendants imply that if Mr. Parker complied with the rules, he could have outdoor recreation and exercise. This is not at all apparent from the record. There is evidence that Mr. Parker in administrative segregation because he is subject to risk of attack by other inmates. To the extent that his preclusion from outdoor exercise is related to security concerns, his compliance with the rules will have no beneficial effect.

Finally, the Defendants' general assertion that prison management should be left to the discretion of prison officials is unavailing. There may be circumstances where ensuring an inmate's safety requires that he/she not be exposed to outdoor recreation, but such showing has not been made in this case. The showing by Mr. Parker is sufficient for a prima facie claim, and accordingly, summary judgment on this claim is DENIED.

C. Retaliation

With respect to the retaliation claim, Defendants Webster, McCormick, and Piper argue that Mr. Parker is not entitled to any relief, summary judgment should enter in their favor.

In its previous Order, the Court determined that because Mr. Parker had not alleged a physical injury resulting from the alleged retaliation, he was not entitled to any compensatory damages pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). See Opinion and Order Granting In Part Motion to Dismiss (#379) at 22. Additionally, the Court concluded that because the retaliation claim was based solely on discrete, past acts, Mr. Parker was not entitled to an injunction.

*14 The Defendants now argue that this precludes Mr. Parker's claim in its entirety. Mr. Parker responds that he seeks only nominal damages and that he seeks an ongoing injunction against retaliation by Ms. Webster.

The Court rejects the Defendants' arguments. Nominal damages are an available remedy for § 1983 claims. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986); Manzanares v. City of Albuquerque, 628 F.3d 1237, 1241-42 (10th Cir.2010). In addition, if ongoing retaliation is proved, Mr. Parker may be entitled to an injunction.

Defendants Webster, McCormick, and Piper also argue that Mr. Parker cannot establish a prima facie case against them for retaliation. To maintain a retaliation claim under section 1983, a plaintiff must demonstrate (1) the plaintiff was engaged in a constitutionally protected activity; (2) the defendant's actions caused the plaintiff to suffer an injury sufficient to chill a person of ordinary firmness from continuing to engage in that activity; and (3) the defendant's adverse action was substantially based on the plaintiffs exercise of a constitutionally protected right. See Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836, 847 (10th Cir.2005). As to the second element, threats are actionable in a § 1983 clam, if they are sufficient to chill a person of reasonable firmness. See Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir.2001) ("Any form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom.").

The Defendants argue that Mr. Parker cannot demonstrate the element of causation, i.e., that the actual motivating factor behind the Defendants' actions was retaliation for Mr. Parker's prior or current litigation or filing of grievances. They contend that Mr. Parker's statements are entirely conclusory in nature and, therefore, insufficient to establish causation.

To examine whether Mr. Parker has adequately demonstrated causation, the Court must first identify the actions that Mr. Parker contends were retaliatory. He has asserted specific instances in which each of these three Defendants directly threatened him. Additionally, he has alleged that his current and past placement in administrative segregation was in retaliation for his complaints. Assuming these to be true, the question is whether any action was accompanied by a retaliatory motive.

As to the specific statements by each of the three Defendants, Mr. Parker attests that Lieutenant Piper told him that because he had requested protective custody, he was going to "make him sweat" by labeling him a snitch while he was in a cell visible to other prisoners, and that Lieutenant Piper carried out this threat.[18] He contends that Lieutenant McCormick told him that he could choose between returning to a prison where he was in danger from gang members or be sent to administrative segregation for 3-5 years, "due to the fact that we are tired of you and all these custody issues and lawsuits" and that Mr. Parker's placement in administrative segregation would "kill that lawsuit, solve the lawsuit problems." Finally, he alleges that Ms. Webster has told him that he will be placed in administrative segregation indefinitely and "for real and for good" if he does not stop filing grievances and initiating lawsuits. Each of these alleged threats reflects a retaliatory motive, either for requesting placement in protective custody or for filing grievances or this lawsuit. Therefore, construing the evidence most favorably to Mr. Parker, it is sufficient for a prima facie showing.

*15 Mr. Parker's allegation that he has been placed in administrative segregation in retaliation for initiating this lawsuit or filing grievances is not as clear. First, there is insufficient evidence to link the statements of these Defendants to the decisions to place Mr. Parker in administrative segregation. The Defendants have produced evidence demonstrating that Mr. Parker's placement in administrative segregation was at all times done for safety or disciplinary reasons. Neither Mr. Parker's allegations that he was provoked into filing grievances and filing this action, nor his conclusory statements rebut this showing by the Defendants. Assuming, without determining that Mr. Parker's actions were justified, there still is a lack of evidence to show that these individual defendants participated in the decision to place him in administrative segregation based upon a retaliatory motive. The undisputed evidence is that Mr. Parker requested placement in protective custody, i.e., segregation from groups which he views as threats, and that he has often behaved contrary to prison rules, thus subjecting him to punishment in the form of placement in administrative segregation.

Therefore, the Court DENIES the Motion for Summary Judgment (#401) on Mr. Parker's claims of retaliation against Defendants Webster, McCormick, and Piper for their threats, but GRANTS the Motion for Summary Judgment as to Mr. Parker's claim for retaliation against Defendants Webster, McCormick, and Piper for Mr. Parker's for placement in administrative segregation.

D. Motions for Preliminary Injunctive Relief

Mr. Parker seeks preliminary injunctive relief. As to the three motions currently before the Court, Mr. Parker seeks injunctive relief for the retaliation he alleges he is experiencing in the form of continued placement in administrative segregation. He also seeks injunctive relief to remedy his restriction from outdoor exercise and the failure to the prison system to accommodate his religious diet appropriately. The Defendants oppose these requests.

1. Legal Standard

A temporary restraining order or preliminary injunction is an "extraordinary remedy", used to preserve the status quo pending a final determination of the parties' rights, and, therefore, the right to relief must be "clear and unequivocal." See Nova Health Sys. v. Edmondson, 460 F.3d 1295, (10th Cir.2006); Otero Savings & Loan Ass'n v. Fed. Reserve Bank of Kansas City, Mo., 665 F.2d 275, 277 (10th Cir.1981). The decision to grant injunctive relief is a matter of discretion. See Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.2007) (noting that the Tenth Circuit reviews denials of preliminary injunctions for abuse of discretion). To obtain a preliminary injunction, the movant must show four factors: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. See id.; Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1224 (10th Cir.2008).

2. Analysis

*16 In each of Mr. Parker's motions, he seeks injunctive relief for retaliatory actions he alleges are being taken against him for his pursuit of claims in this lawsuit. Although he makes specific reference to a number of particular incidents, including bogus disciplinary charges for hair in his comb, forcing him to stand in a shower stall for thirty minutes before turning the water on, and rearranging the food on his trays, the thrust of Mr. Parker's contention is that he is being housed in administrative segregation in retaliation for raising the claims in this action. He contends that the particular actions are being taken to provoke him so that the perpetrators have a legitimate reason to hold him in administrative segregation. In addition to this overall contention, Mr. Parker also complains that he is not being fed a proper religious diet and has been denied all outdoor activity. As relief, Mr. Parker specifically seeks an order prohibiting the Defendants from engaging in retaliatory actions against him and that his administrative segregation unit be placed under continuous audio and visual surveillance. Given the nature of his complaints, i.e., that he has been placed in administrative segregation in retaliation and that he has been denied a proper religious diet and outdoor activity, the Court also understands Mr. Parker to seek his release from administrative segregation, an opportunity for outdoor exercise, and the provision of a proper religious diet.

The Defendants respond that Mr. Parker's motions are repetitive of motions for injunctive relief that have been denied; that there is no nexus between the relief sought by Mr. Parker and the underlying claims in the case; that Mr. Parker has not shown a substantial likelihood of success on the merits; and that Mr. Parker has not demonstrated that he will suffer an immediate and irreparable injury if the injunction does not issue.

With respect to Mr. Parker's allegations that he has been denied a proper religious diet and that he has been denied access to outdoor exercise, the Court has already addressed motions for injunctive relief based on these alleged deprivations. On May 23, 2010, the Court adopted (#425) the Magistrate Judge's Recommendation (#398) that Mr. Parker's motion (#256) for a preliminary injunction requiring he be provided outdoor exercise time be denied. The Recommendation, adopted by the Court in full, determined that Mr. Parker had not demonstrated any of the four factors necessary to issue a preliminary injunction. On the same day (#427), the Court adopted a separate Recommendation (# 414) from the Magistrate Judge, recommending that Mr. Parker's motion (#406) for a preliminary injunction requiring the CDOC to accommodate his religious beliefs be denied. The Recommendation, again adopted by the Court in full, determined that although his allegations of inability to practice his religion may assert constitutional violations, they were not related to any claims asserted in this action. Given these determinations, the Court DENIES the instant motions to the extent they are based on Mr. Parker's inability to practice his religion, including by eating a proper religious diet, and restriction to indoor exercise.

*17 As to the main deprivation alleged in Mr. Parker's motions-that he has been placed in administrative segregation for retaliatory purposes-the Court has granted summary judgment to Defendants Webster, McCormick, and Piper for Mr. Parker's placement in administrative segregation. Accordingly, Mr. Parker's motion for preliminary injunctive relief in the form of release from administrative segregation is not appropriate as it is beyond the scope of Mr. Parker's retaliation claim. Thus, his motions for preliminary injunctive relief (# 433, 435, 462) are DENIED.

E. Motions for Rulings

Mr. Parker has also filed numerous motions regarding the status of this case. In #457 and #463, Mr. Parker seeks a ruling on pending motions, including the motions for summary judgment. As the Court has now addressed all of the pending motions in this case, these motions are DENIED AS MOOT.

Given the Court's current ruling, a Final Pretrial Conference is appropriate and is scheduled as set forth infra. At the Final Pretrial Conference, trial will be set. Accordingly, Mr. Parker's Motion for a Hearing on this Case (#451) is DENIED AS MOOT.

Finally, Mr. Parker requests an update on his case (#456). The Court GRANTS this motion and instructs that in conjunction with the mailing of a copy of this Order to Mr. Parker, the Clerk of Court is directed to mail a copy of the docket report to Mr. Parker.

IT IS THEREFORE ORDERED that:

(1) Mr. Parker's Motion for Review (#443), construed as a Motion to Amend, is DENIED.

(2) Mr. Parker's "Motion to Dismiss Defendants [sic] Motion for Summary Judgment Due to the Fact Genuine Issue's [sic] of Material Fact Exist and Grant Relief Under Rule 38, 40" (#404) is generally deemed a Response and, to the extent it seeks any relief, including reconsideration of the Court's previous Order (#379), is DENIED.

(3) Mr. Parker's "Motion" (#439) is deemed to be a surreply, and, to the extent it seeks any relief is DENIED.

(4) Mr. Parker's "Affidavit to Invoke Personal Knowledge of Claims"(#412) is GRANTED IN PART to the extent it requests that the Court treat the allegations in his pleadings for which

he has personal knowledge as being attested to under penalty of perjury and DENIED IN PART insofar as it seeks any other relief.

(5) Mr. Parker's Motion to Include Exhibits in Motion for Summary Judgment (#416) is GRANTED IN PART insofar as it seeks consideration of the submitted Exhibits, but DENIED IN PART insofar as it seeks any other relief

(6) Mr. Parker's Motion to Include Another Exhibit with the Summary Judgment Motion (#429) is GRANTED IN PART insofar as it seeks consideration of the submitted Exhibit, but DENIED IN PART insofar as it seeks any other relief

(7) Mr. Parker's "Motion to Affirm by Notorized [sic] Affidavit All Statements and Exhibits in Plaintiff [sic] Motion for Summary Judgment" (#349) is DENIED AS MOOT.

*18 (8) Mr. Parker's Motion for Evidence Requested to be used as Exhibits (#357) is DENIED AS MOOT.

(9) Mr. Parker's Objection (#403) to the Magistrate Judge's Ruling (#396) denying his Motion (#388) is OVERRULED AS MOOT.

(10) Mr. Parker's Request for In Camera Inspection of his Institutional File (#411) is DENIED.

(11) Mr. Parker's Motion for Hearing or Conference (#428) regarding discovery of his prison records, including his Institutional File, is DENIED.

(12) Mr. Parker's Rule 56(f) motion (#440) for additional discovery on his Institutional File is DENIED.

(13) Mr. Parker's Motion for In Camera review of the Institutional File and the recording of the administrative segregation hearing (#441) is DENIED.

(14) Defendants' Motion for Summary Judgment (#401) is GRANTED IN PART insofar as it seeks summary judgment in favor of Defendants Zavaras, Arellano, and Hollenbeck for the claim of failure to protect and insofar as it seeks summary judgment in favor of Defendants Webster, McCormick, and Piper for the retaliation claim based on placement in administrative segregation and DENIED insofar as it summary judgment as to any other claim.

(15) The remaining claims are: (1) an Eighth Amendment failure to protect claim against Captain Hall based upon alleged inaction during Mr. Parker's confinement at the Arkansas Valley Correction Facility; (2) an Eighth Amendment conditions of confinement claim against the Colorado Department of Corrections based upon alleged lack of outdoor exercise during Mr. Parker's confinement at the Centennial Correctional Facility and/or Colorado State Penitentiary; and (3) a retaliation claim against Lieutenant McCormick, Ms. Webster, and Lieutenant Piper for discrete threats asserted against Mr. Parker based on his filing of this lawsuit or prison grievances.

(16) Mr. Parker's Motion for Temporary Restraining Order (#433) is DENIED.

(17) Mr. Parker's Motion for Injunctive Relief (#435) is DENIED.

(18) Mr. Parker's Motion for Temporary Restraining Order, Preliminary Injunction (#462) is DENIED.

(19) Mr. Parker's Motion for Ruling (#457) is DENIED AS MOOT.

(20) Mr. Parker's Motion for Ruling (#463) is DENIED AS MOOT.

(21) A final pretrial conference is scheduled for July 7, 2011 at 4:00 p.m. in Courtroom A901 before Judge Marcia S. Krieger. All provisions of the Court's Trial Preparation Order shall apply to the rescheduled conference.

(22) Mr. Parker's Motion for a Hearing or Conference on the Case and Pending Motions (#451) is DENIED AS MOOT.

(23) Mr. Parker's Motion for Update on Case (#456) is GRANTED.

(24) The Clerk of Court is directed to mail a copy of the Docket Report to Mr. Parker.

ORDER AND JUDGMENT*

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.**

** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case therefore is ordered submitted without oral argument.

*1 Plaintiff Tim D. Pastorius, an inmate at the Colorado State Penitentiary, filed this § 1983 action pro se1 alleging that Defendants, various state officials, violated his Eighth Amendment rights. Plaintiff claims that one hour of exercise per day combined with receipt of inadequate fresh air and no direct sunlight is constitutionally insufficient. The district court dismissed Plaintiffs complaint as legally frivolous under 28 U.S.C. § 1915(d). Our jurisdiction arises under 28 U.S.C. § 1291. We review the district court's dismissal under § 1915(d) for an abuse of discretion. Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir.1995) (quoting Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989)). We affirm.

1 Plaintiff filed his notice of appeal prior to the effective date of the recently enacted amendments to 28 U.S.C. § 1915. Pub.L. No. 104-134, Title VIII, §§ 801-10, 110 Stat. 1321. Accordingly, we apply the law in effect prior to the amendments. White v. Gregory, 87 F.3d 429, 430 (10th Cir.1996). Plaintiff had been granted permission to proceed in forma pauperis by the district court and may thus continue in forma pauperis in this court. SeeFed. R.App. P. 24(a).

Having reviewed Plaintiffs brief and complaint along with the entire record before us, we agree with the district court substantially for the reasons set forth in its order dismissing Plaintiffs suit as frivolous under 28 U.S.C. § 1915(d). Plaintiffs factual allegations are largely conclusory in nature. Moreover, his discernable factual allegations fail to state a claim under the Eighth Amendment. See Bailey v. Shillinger, 828 F. 651, 653 (10th Cir.1987) (finding one hour per week of exposure to exercise and fresh air sufficient to withstand Eighth Amendment challenge).

Accordingly, the district court did not abuse its discretion in dismissing Plaintiffs complaint.

AFFIRMED.

Parallel Citations

1996 WL 528359 (C.A.10 (Colo.))

Attorneys and Law Firms

*250 Wendell Elliott Ricco, Leavenworth, KS, pro se.

Tanya S. Wilson, Office of the United States Attorney, Topeka, KS, for Respondent-Appellee.

Before BRISCOE, ANDERSON, and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*

*This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

STEPHEN H. ANDERSON, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously *251 that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Mr. Ricco is a federal prisoner incarcerated at the United States Penitentiary in Leavenworth, Kansas. Mr. Ricco filed a habeas petition in the district court under 28 U.S.C. § 2241, alleging that the prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment by punishing him too severely for a disciplinary conviction. The district court dismissed Mr. Ricco's habeas petition, finding that there was "no basis to conclude petitioner has been subjected to excessive punishment." R., Doc. 10 at 3.

We conclude that the district court erred by failing to recognize that a habeas action under § 2241 is an improper vehicle for Mr. Ricco's challenges to the prison disciplinary sanctions that are at issue in this case. Although respondent did not bring this error to the district court's attention, the court had an independent duty to properly characterize Mr. Ricco's pro se claims. As a result, the court should have treated this case as a civil rights action or dismissed the case without prejudice. That said, this case ultimately presents a very discrete legal issue under the Eighth Amendment, and, because there are no material factual disputes, we see no reason for a remand at this point. Accordingly, we affirm the district court's denial of relief in this matter.

I. Background

At a disciplinary hearing held on March 16, 2000, Mr. Ricco was convicted by a discipline hearing officer (DHO) of stealing $46.40 worth of food and other items from the prison's food service. See R., Doc. 8, Ex. F. This was Mr. Ricco's third stealing offense in a three-month period, as he had previously been convicted of stealing at disciplinary hearings held on March 3, 2000 (for a stealing offense committed on January 28, 2000) and on January 21, 2000 (for a stealing offense committed on December 15, 1999). Id., Doc. 7, Ex. E at 11, 13.

As sanctions for Mr. Ricco's third stealing offense, the DHO revoked Mr. Ricco's visitation, commissary, and telephone privileges for the remaining twenty-five years of his sentence. Id., Doc. 8, Ex. F at 2. The DHO also imposed sixty days of disciplinary segregation and disallowed forty-one days of good conduct time. Id.

Mr. Ricco appealed the DHO's decision, and, on July 13, 2000, the warden affirmed the DHO's decision due to "the repetitive nature of [Mr. Ricco's] behavior coupled with the fact the prior sanctions did not serve as a deterrent of [his] behavior." Id., Ex. A. Mr. Ricco subsequently appealed to the Bureau of Prison's Administrator of National Inmate Appeals, and, on November 7, 2000, the latter affirmed the DHO's decision, finding that "the sanctions were appropriate for the offense committed." Id., Ex. B.

In the meantime, on July 26, 2000, the DHO issued a modified decision in which she reduced the loss of visitation, commissary, and telephone privileges to five years. Id., Doc. 7, Ex. C at 2. Subsequently, in July 2001, the warden fully restored Mr. Ricco's commissary and telephone privileges. Id., Ex. D.

II. Mr. Ricco's Habeas Petition

In October 2002, Mr. Ricco filed a petition for a writ of habeas corpus in the *252 district court, and he named the warden of Leavenworth as the sole respondent. Id., Doc. 1 at 1. In his habeas petition, Mr. Ricco stated that he was appealing the disciplinary sanctions imposed by the DHO, and he referred to the sanctions as "loss of visitation, telephone privileges, [commissary] privileges (disciplinary segregation and monetary restitution), all for 25-years." Id., Att. A. Mr. Ricco also alleged that he was "placed in [disciplinary] segregation for 100 days, and let out after approximately 2½ months only because somebody felt sorry for [him]." Id. In a supplement to his habeas petition, Mr. Ricco alleged that the disciplinary sanctions imposed by the DHO were excessive and in violation of the BOP's policies and the Code of Federal Regulations. Id., Doc. 4 at 11-B.

In his habeas petition and the supplement thereto, Mr. Ricco did not assert any specific constitutional claims, and he did not ask for any particular relief. However, in the response that he filed to respondent's answer to his habeas petition, Mr. Ricco asserted that the sanctions imposed by the DHO were "[a] violation of his 8th Amendment, etc., etc., etc., " and he requested that the district court "restore all his rights." Id., Doc. 8 at 2 (original in upper case letters).

In July 2004, the district court entered an order dismissing Mr. Ricco's habeas petition. Although the district court did not specifically characterize Mr. Ricco's claims as being based on the Eighth Amendment, the court noted that "[p]etitioner does not allege he was denied due process in the conduct of administrative disciplinary proceedings. He alleges the sanctions imposed are excessive." Id., Doc. 10 at 2. The court also noted that "[t]his matter is before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. 2241 by a prisoner in federal custody." Id. at 1. The court then addressed the merits of Mr. Ricco's claims, concluding as follows:

The lengthy sanctions imposed arise from the repetitive nature of petitioner's institutional misconduct. Under federal regulations, stealing is a High Category prohibited act. 28 C.F.R. Table 3, Prohibited Acts and Disciplinary Severity Scale, No. 219. The misconduct at issue on this matter is the third such offense by petitioner within three months, and the permitted sanctions for such misconduct include any sanctions in the High Category. 28 C.F.R. 541.13, Table 5, Sanctions for Repetition of Prohibited Acts Within Same Category. The available sanctions in the High Category include the loss of privileges. See id., Table 3.
The regulations do not prescribe the length of this sanction. The federal courts generally review the decisions of prison authorities with deference. See Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) ("federal courts ought to afford appropriate deference and flexibility to... officials trying to manage a volatile environment"). In this case, the sanctions were imposed in compliance with the federal regulations, and the decision furthers a legitimate goal of deterring institutional misconduct by withholding privileges. In addition, the sanctions were reviewed by prison authorities at intervals and modified. Viewing the record under a deferential standard, the court finds no basis to conclude petitioner has been subjected to excessive punishment.

Id. at 2-3.

III. Proper Characterization of Mr. Ricco's Claims

It is well established in this circuit that § 2241 is an improper vehicle for *253 challenges to the conditions of a prisoner's confinement. See McIntosh v. United States Parole Cornell, 115 F.3d 809, 811-12 (10th Cir.1997). Instead, "[p]etitions under § 2241 are used to attack the execution of a sentence, " id. at 811, and they "attack[ ] the fact or duration of a prisoner's confinement and seek[ ] the remedy of immediate release or a shortened period of confinement, " id. at 812. Consequently, while "a § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters, " id. at 811, this is only permitted in cases where the challenged action "affect[ed] the fact or duration of the [prisoner's] custody, " id. at 812. In this case, the cover page of Mr. Ricco's habeas petition expressly states that he is "attacting (sic) prison condictions (sic) and procedures, " R., Doc. 1 at 1 (original in upper case letters), and he has not asserted any claims that could affect the fact or duration of his confinement.1 Thus, the district court erred by failing to recognize that § 2241 is an improper vehicle for Mr. Ricco's claims.

1 In particular, Mr. Ricco is not pursuing any claims related to the portion of the DHO's decision disallowing fortyone days of good conduct time.

As recognized by respondent in his response brief, see Aplee. Br. at 11, one proper vehicle for Mr. Ricco's challenge to the disciplinary sanctions was a civil rights action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As presently postured, however, this is not a Bivens action. As another panel of this court recently recognized, while Bivens provides a remedy against individual federal officials who act in an unconstitutional manner, Bivens is best understood as providing only a cause of action for damages. See Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1230-32 (10th Cir.2005). In this case, Mr. Ricco did not assert a claim for damages in the district court proceedings. Moreover, although Mr. Ricco asserted in his opening brief that he "want[s] to be compensated for all [the alleged] mistreatment, " Aplt. Opening Br. at 4 (original in upper case letters), Mr. Ricco affirmatively stated in his reply brief that he is not seeking to recover damages in this case, see Aplt. Reply Br. at ii and 2. We therefore conclude that it would be improper for this court to now treat this case as a Bivens action.

The question that remains is whether Mr. Ricco has any viable claims for injunctive relief that need to be treated as non-habeas claims. See Simmat, 413 F.3d at 1231-32 (noting, in civil rights action involving Eighth Amendment claim against federal prison dentists in their official capacities, that the prisoner could seek "an injunction, based on the federal courts' equity jurisdiction, to enforce the dictates of the Eighth Amendment, " and distinguishing such an equitable claim from a claim for damages under Bivens ). As a starting point, because Mr. Ricco is no longer in administrative segregation and his telephone and commissary privileges have been restored, we conclude that Mr. Ricco does not have any viable claims for injunctive relief pertaining to the administrative segregation sanction or the revocation of his telephone and commissary privileges. Cf. Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.1997) (holding that a prisoner's claims for declaratory and injunctive relief were moot in light of his release from prison).

By contrast, Mr. Ricco's visitation privileges have not been restored, and he has steadfastly pursued the restoration of his *254 visitation privileges, both in the district court and in this court. As a result, construing his pro se allegations liberally, we hold that Mr. Ricco has adequately pled an equitable claim for injunctive and/or mandamus relief against the warden of Leavenworth in his official capacity, and the relief being sought is the restoration of Mr. Ricco's visitation privileges. See Simmat, 413 F.3d at 1235-36 (holding that "federal district courts... have jurisdiction over claims by federal prisoners against federal prison officials seeking vindication of their constitutional rights under either 28 U.S.C. § 1331 or 28 U.S.C. § 1361, and may obtain relief in the nature of either injunction or mandamus"). For the reasons set forth below, however, we hold that Mr. Ricco's disciplinary punishment, as modified by the prison officials, does not violate the Eighth Amendment, and he is therefore not entitled to equitable relief

IV. Eighth Amendment Claim Regarding Visitation Restriction

In Overton v. Bazzetta, 539 U.S. 126, 136-37, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003), a prisoner class action brought under 42 U.S.C. § 1983, the Supreme Court held that a Michigan prison regulation which subjected inmates with two substance-abuse violations to a ban of at least two-years on future visitation did not violate the Eighth Amendment. The Court explained the rationale for its holding as follows:

Respondents also claim that the [minimum two-year] restriction on visitation for inmates with two substance-abuse violations is a cruel and unusual condition of confinement in violation of the Eighth Amendment. The restriction undoubtedly makes the prisoner's confinement more difficult to bear. But it does not, in the circumstances of this case, fall below the standards mandated by the Eighth Amendment.... Michigan, like many other States, uses withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline. This is not a dramatic departure from accepted standards for conditions of confinement. Cf. Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).

Id. The Court also noted, however, that "[i]f the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations." Id. at 137, 123 S.Ct. 2162.

Unfortunately, Overton does not provide any clear guidance for purposes of this case, as the Supreme Court held only that the minimum two-year revocation period for two substanceabuse violations did not violate the Eighth Amendment, and the court gave no specific indication as to what would constitute "a much longer period." In addition, while this court and other federal courts have applied Overton in subsequent cases, the cases are not particularly helpful for purposes of this case. See, e.g.,

Wirsching v. Colorado, 360 F.3d 1191, 1198-1201, 1205 (10th Cir.2004) (applying Overton and holding: (1) that prison officials did not violate a convicted sex offender's familial association and due process rights by refusing to allow prison visits by his daughter due to his refusal to comply *255 with requirements of prison's treatment program for sex offenders; and (2) "that visitation with a particular person does not constitute basic necessity, the denial of which would violate the Eighth Amendment"); Hernandez v. McGinnis, 272 F.Supp.2d 223, 228 (W.D.N.Y.2003) (holding that a three-year revocation of a prisoner's visitation privileges did not violate the Eighth Amendment where the revocation was punishment for the prisoner's conduct in attempting to smuggle a six-inch plexiglass shank into the prison's visitation area).

Nonetheless, having carefully considered both the circumstances of this case and the Supreme Court's Eighth Amendment analysis in Overton, we conclude that the five-year visitation restriction imposed in this case does not violate the Eighth Amendment. First, this was Mr. Ricco's third stealing offense during a three-month period, and there is no indication that the prison officials acted in an arbitrary manner. To the contrary, the record shows that Mr. Ricco received graduated punishment for a series of disciplinary infractions, and, as set forth above, the punishment was justified given the "repetitive nature of [Mr. Ricco's] behavior coupled with the fact the prior sanctions did not serve as a deterrent of [his] behavior." R., Doc. 8, Ex. A. Second, Mr. Ricco's mail privileges were not revoked and his telephone privileges were fully restored in July 2001, see R., Doc. 7, Ex. D, and he has therefore had multiple avenues available for contacting his family and others. Additionally, the prison officials have shown some flexibility in terms of the visitation restriction, as Mr. Ricco has been afforded at least one special visit with his mother and sister. See Aplee. Br., Att. B.

In short, as recognized by the district court, "[t]he lengthy sanctions imposed [in this case] arise from the repetitive nature of [Mr. Ricco's] institutional misconduct, " R., Doc. 10 at 2, and the visitation restriction "furthers a legitimate goal of deterring institutional misconduct by withholding privileges, " id. at 3. Accordingly, because we must "afford appropriate deference and flexibility to [prison] officials trying to manage a volatile environment, " Sandin, 515 U.S. at 482, 115 S.Ct. 2293, we hold that there is an insufficient legal basis to support Mr. Ricco's Eighth Amendment claim for equitable relief.

The judgment of the district court is AFFIRMED.

Parallel Citations

2005 WL 1864216 (C.A.10 (Kan.))

Attorneys and Law Firms

Daniel L. Rosales, Sterling, CO, pro se.

Nicole S. Gellar, Colorado Attorney General's Office-Department of Law, Denver, CO, Anthony Alfred Decesaro, Anthony Alfred Decesaro, Attorney at Law, Colorado Springs, CO, for Defendants.

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

EDWARD W. NOTTINGHAM, Chief Judge.

*1 This matter, a civil rights case brought by a prisoner in the custody of the Colorado Department of Corrections ("DOC"), is before the court on the "Recommendation of United States Magistrate Judge" (# 49). The magistrate judge has reviewed the prisoner's four1 claims and recommends that they all be dismissed. Plaintiff has objected to the recommendation.

1 The first and fourth claims both allege that Defendants have violated the Eighth Amendment to the United States Constitution by depriving the prisoner of adequate exercise. The two claims appear to be duplicative and redundant. Accordingly, the court will treat three claims as having been asserted.

Standard of Review

1. Review of a Magistrate Judge's Submission

The standard of review which this court employs in considering a magistrate judge's submissions depends upon whether the motion before the court and magistrate judge is viewed as dispositive or non-dispositive. For dispositive matters (such as a motion to dismiss), a district court assessing a magistrate judge's findings of fact and recommendations for disposition must make a "de novo determination of those portions of the report... to which objection is made." See 28 U.S.C.A. § 636(b)(1) (West 2007); Fed.R.Civ.P. 72(b)." When conducting de novo review, the district court makes its own determinations of disputed issues and does not decide whether the magistrate's proposed findings are clearly erroneous." Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir.1989).

2. Review of Motion to Dismiss

Although Defendants do not articulate which subdivision of Fed.R.Civ.P. 12 is the basis of their motions, the court agrees with the magistrate judge that the gravamen of their various arguments seems to be that Plaintiff has failed to state any claim upon which relief can be granted. 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) (2008)." 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).

Thus, all well-pleaded factual allegations in a complaint are accepted as true and construed in the light most favorable to the plaintiff. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007). Prior to the Supreme Court's recent decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007), dismissal of a complaint was appropriate only when it appeared the plaintiff could prove no set of facts in support of the claims that would entitle him to relief Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.1994). In Bell Atlantic, the Supreme Court articulated a new "plausibility" standard, under which a complaint must include "enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974.

Evaluation of Recommendation and Objections

1. Defendants Ortiz and DeCesaro

*2 Although the magistrate judge recommends dismissal as to all Defendants, two Defendants were discussed separately because there exist additional grounds supporting their dismissal which do not apply to the others. The first such Defendant is Joe Ortiz, director of the DOC. The magistrate judge correctly cited established law that an individual state actor's liability under 42 U.S.C. § 1983 can only arise from that individual's personal participation in the alleged constitutional wrong. A supervisory official cannot be held liable for a subordinate's wrong on any theory of respondeat superior. The lack of any allegation that Ortiz personally participated in the alleged wrongs has led the magistrate judge to suggest that this alone would be a sufficient basis for the dismissal of Ortiz.

In objecting to this recommendation, Plaintiff spins an elaborate but ultimately futile web. Referring to a "chain of command" claim, Plaintiff declares that Ortiz signed off on regulations, rules, and, indeed, the Code of Penal Discipline itself He avers that Ortiz transformed Plaintiff' erstwhile facility from a level four prison to a level five prison, contrary to Colorado statute. Plaintiff adds a bare-bones incantation that Ortiz did not adequately supervise the subordinates. He concludes that all of this somehow is an "affirmative link" between Ortiz and the alleged wrongs. The court fails to see any connection whatsoever. Despite all the verbiage, it is clear that Ortiz did not participate in any of the alleged wrongdoing and that, as use of the term "chain of command" suggests, Plaintiff is seeking to hold Ortiz vicariously liable for the wrongdoing. Ortiz is entitled to dismissal on this ground alone, in addition to the grounds supporting dismissal of the other Defendants. Defendant Anthony DeCesaro is the other Defendant as to whom there is a unique ground for dismissal. DeCesaro was the prison grievance officer who handled Plaintiff's grievances and made recommendations as to their disposition. He has acknowledged that, because of the volume of grievances and lack of staff, Plaintiff's grievances were not always decided within time limits established by prison regulations. For this he stands accused of violating Plaintiff's due process rights and of being responsible for the wrongs underlying the grievances.

Plaintiff's claims against DeCesaro must fail, for two reasons. First, there is no allegation or other suggestion that DeCesaro singled out Plaintiff's grievances for delay or has done anything in Plaintiff's eighteen cases except make recommendations to the DOC concerning their disposition. There is no allegation that he has refused to act on the grievances, only that he has not acted within time frames established by the regulations. Plaintiff cites no authority to hold him responsible for systemic delays over which he has no authority, and the court is aware of none.

The claim against DeCesaro must also fail for a second reason. There is no allegation that DeCesaro himself participated in the alleged wrongs which were the subject of Plaintiff's various grievances. Even a delayed adjudication of those grievances cannot be said to supply an "affirmative link" between DeCesaro and the underlying conduct. If it did, then every grievance officer recommending adverse action on a grievance would be open to a claim that the recommendation somehow makes the grievance officer responsible for the underlying conduct. The court regards such a result as absurd.

2. Remaining Claims Against Other Defendants.

*3 a. Equal Protection Claim. Notwithstanding bare allegations that he was treated differently from other similarly situated inmates, there is no coherent presentation in the objections to support the allegations. There is no merit whatsoever to the equal protection claim here.

b. Claim Based on Confiscation of Adult Reading Materials. Plaintiff alleges that this claim arises under the First Amendment, the Fourteenth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection Clause. The magistrate judge addressed each provision separately. This court's review discloses a fatal flaw in the claim, whichever theory is used to support it. The claim is barred by the applicable two-year statute of limitations, see Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.1993), and there are no circumstances which would toll the limitations period here.

In his objections, Plaintiff seems to reiterate his claim that the statute should be tolled due to his inability to file grievances- although he adds an incoherent reference to a previous court complaint which was evidently dismissed for failure to exhaust administrative remedies. The magistrate judge, however, convincingly demonstrates, with specific citations to Plaintiff's second amended complaint, that the alleged denial of grievance forms occurred before the alleged confiscation of the adult magazines. Plaintiff has not rebutted this persuasive marshaling of the facts, and the court is satisfied that his claim concerning adult reading materials- the second claim-is barred by the statute of limitations.

3. Remaining Claims. Plaintiff's remaining claims allege (1) deprivation of sufficient exercise, in violation of the eighth amendment (2) confiscation of personal property and maintenance of inadequate conditions in his prison cell, and (3) being removed from the general prison population for fourteen months. I have conducted the requisite de novo review of the issues, the record, and the recommendation. Based on this review, I have concluded that the recommendation is a correct application of the facts and the law. Accordingly, it is

ORDERED as follows:

1. The recommendation is ACCEPTED.

2. The motions to dismiss (23, 35) are GRANTED.

3. All claims are dismissed with prejudice.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, United States Magistrate Judge.

This civil action comes before the court on: (1) Defendant DeCesaro's Motion to Dismiss Complaint (filed May 15, 2007) (doc. # 23); and (2) the other Defendants' ("Defendants") "Motion to Dismiss Pursuant to Rule 12(B) [sic]" (filed June 22, 2007) (doc. # 35). Pursuant to the Order of Reference dated April 24, 2007 (doc. # 17) and the memoranda dated May 15, 2007 (doc. # 25) and June 22, 2007 (doc. # 36), these matters were referred to the Magistrate Judge. The court has reviewed the Motions, Mr. Rosales' Responses (filed September 10, 2007) (does. # 43 and # 44), Defendant DeCesaro's Reply (filed September 18, 2007) (doc. # 47), Defendants' Reply (filed September 25, 2007) (doc. # 48), the pleadings, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

*4 Plaintiff Daniel L. Rosales is currently incarcerated at the Sterling Correctional Facility of the Colorado Department of Corrections ("CDOC"). Mr. Rosales was previously incarcerated from December 4, 2002 to July 27, 2005 at the Centennial Correctional Facility ("CCF") in Canon City, Colorado. ( See Second Amended Complaint ("SAC") (doc. # 14) at pp. 5-6 of 15). Mr. Rosales alleges pursuant to 42 U.S.C. § 1983 that Defendants violated his constitutional rights while he was incarcerated at CCF. ( See SAC (doc. # 14) at p. 5 of 15).

Mr. Rosales alleges four claims: (1) that he was deprived of "exercise, property and many other privileges that should have been allowed..." in violation of his First, Fourth, Eighth, and Fourteenth Amendment rights; (2) that his adult magazines were confiscated without due process and equal protection in violation of his First and Fourteenth Amendment rights; (3) that he was removed from the general population for over fourteen months without due process and equal protection in violation of his Fourteenth Amendment rights; and (4) that he was deprived of exercise on a daily basis in violation of his Eighth Amendment rights. ( See SAC (doc. # 14) at pp. 11-13 of 15). Mr. Rosales also generally complains of certain conditions in the cells at CCF. ( See SAC (doc. # 14) at p. 8 of 15). Mr. Rosales seeks declaratory relief as well as "nominal, monetary, and punitive damages." ( See SAC (doc. # 14) at p. 15 of 15). Defendants move to dismiss Mr. Rosales' claims on numerous grounds.

II. Standard of Review

Defendant DeCesaro moves to dismiss without citation to any specific Federal Rule of Civil Procedure. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b), without citation to any specific subsection of Rule 12. DeCesaro and Defendants essentially argue that Mr. Rosales has failed to state a claim upon which relief can be granted.

The court is empowered to dismiss an action "for failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007) (quoting David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996)). The court "look[s] to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." Alvarado, 493 F.3d at 1215 n. 2 (citing Bell Atlantic Corp. v. Twornbly, 550 U.S. 544, ____, 127 S.Ct. 1955, 1968-69 (2007) ("the old standard, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief is best forgotten as an incomplete, negative gloss on an accepted pleading standard'")).1

1 The court notes that its Recommendation in this case would be the same regardless of whether it applied "the old no set of facts' standard, see, e.g., David, 101 F.3d at 1352, or... either a plausibility standard or a requirement that the complaint include factual allegations sufficient to raise a right to relief above the speculative level.'" See Alvarado, 493 F.3d at 1215 n. 2. (citing Bell Atlantic Corp., 127 S.Ct. at 1965).

Because Mr. Rosales appears pro se, the court "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 Govt, 472 F.3d 1242, 1243 (10th Cir.2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (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). 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 General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (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").

III. Analysis

A. Liability of Defendants under § 1983

*5 Section 1983 creates a cause of action where a "person... under color of any statute, ordinance, regulation, custom or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person... to the deprivation of any rights, privileges or immunities secured by the Constitution." Section 1983 does not create any substantive rights; rather, it creates only a remedy for violations of rights secured by federal statutory and constitutional law. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 616-18 (1979). To establish a claim under § 1983, a plaintiff must prove he was deprived of a right secured by the Constitution or laws of the United States and that the alleged deprivation was committed under color of law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

1. Liability of Defendants in their Official Capacities

Mr. Rosales sues all of the Defendants in their individual and official capacities. ( See SAC (doc. # 14) at p. 3 of 15). To the extent that Mr. Rosales is suing Defendants in their official capacities, he is actually attempting to impose liability on Defendants' employer, the CDOC. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (suit against a state official in his or her official capacity is treated as a suit against the state).

The CDOC is considered an agency of the State of Colorado. See Colo.Rev.Stat. § 24-1-128.5. States and state officials sued in their official capacities are not "persons" within the meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). Absent a waiver, the Eleventh Amendment forbids a suit for damages against a state in federal court. Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir.1993) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). Such entities cannot be sued for monetary damages arising from alleged conduct which deprives a plaintiff of his or her civil liberties. The Eleventh Amendment confers total immunity from suit, not merely a defense to liability. Ambus, 995 F.2d at 994 (citation omitted). To the extent that Mr. Rosales seeks damages, his claims against Defendants in their official capacities are properly dismissed with prejudice.

2. Liability of Defendants in their Individual Capacities

The Eleventh Amendment does not bar actions for damages against state officials in their individual capacities. Kentucky v. Graham, 473 U.S. 159, 164 (1985). To the extent that Mr. Rosales is suing Defendants in their individual capacities, personal capacity suits pursuant to § 1983 seek to impose personal liability upon a government official for actions he or she takes under color of state law. Graham, 473 U.S. at 165-67.

a. Failure to State Claim Against Defendants Ortiz and DeCesaro

Individual liability under § 1983, regardless of the particular constitutional theory, must be based upon personal responsibility. See Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir.1997) (individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation) (citation omitted); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (personal participation is an essential allegation in a civil rights action) (citation omitted); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976) ("Personal participation is an essential allegation in a § 1983 claim."). A defendant may not be held liable merely because of his or her supervisory position. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996). There must be an affirmative link between the alleged constitutional violation and the defendant's own participation or failure to supervise. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.1993). A plaintiff must both allege in the complaint and prove at trial an affirmative link between the alleged constitutional violation and a defendant's participation. See Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1157 (10th Cir.2001) (for § 1983 claim, affirmative link between the defendant's conduct and any constitutional violation "must be alleged in the complaint as well as proven at trial").

*6 Defendants Ortiz and DeCesaro argue that Mr. Rosales has failed to plead sufficient facts to demonstrate that they had any personal participation in or any supervisory liability for the alleged violations of his constitutional rights. The court agrees.

Mr. Rosales alleges no specific conduct by Defendant Ortiz. Mr. Rosales' only allegations against Defendant Ortiz are that "Ortiz is responsible for knowing all his Wardens move within their respected facilities [sic]" and that "Ortiz... knew these improper proceedings [denial of exercise] were detremental [sic] to the plaintiffs health and well-being." (SAC (doc. # 14) at p. 2 of 15 ¶ 3, p. 9 of 15 ¶ 65). Mr. Rosales argues that by virtue of the "chain of command, ... the plaintiff put both the Director of (DOC) and the Warden on the complaint." (Mr. Rosales' Response (doc. # 44) at p. 4 of 30). Mr. Rosales argues that "prison officials can't just sit on your duff and not do anything.'" (Mr. Rosales' Response (doc. # 44) at p. 5 of 30).

Mr. Rosales' allegations against Defendant Ortiz are vague, conclusory, and unsupported by the law. Mr. Rosales does not identify what specific action Defendant Ortiz took that gave rise to any constitutional violation. Mr. Rosales has not pled that Defendant Ortiz had any direct contact with him or that Defendant Ortiz in any way caused or participated in the alleged constitutional violations. See McKee v. Heggy, 703 F.2d 479, 483 (10th Cir.1983) (an individual cannot be held liable in a section 1983 action unless he "participated or acquiesced" in an alleged constitutional violation). As Mr. Rosales has failed to allege a basis for holding him individually liable under § 1983, Defendant Ortiz is properly dismissed from this civil action.

Defendant DeCesaro was acting as a Step III Grievance Officer at the time Mr. Rosales filed "18 grievances on 12/14/04." (SAC (doc. # 14) at p. 10 of 15 ¶ 76). Defendant DeCesaro denied the grievances on October 6, 2005. ( See SAC (doc. # 14) at p. 10 of 15 ¶ 76; initial Complaint (doc. # 3) at pp. 20-27 of 28). Mr. Rosales alleges that Defendant DeCesaro "is in violation of due process protected by the 5th Amendment, by not following DOC rules in a proper amount of time" and "for denying the plaintiff's grievences [sic]...." (SAC (doc. # 14) at p. 10 of 15 ¶ 76).2

2 To the extent that Mr. Rosales alleges violation of his Fifth Amendment rights, he fails to state a claim. The Due Process Clause of the Fifth Amendment protects against due process violations by the federal government. See Public Utilities Comm'n v. Pollak, 343 U.S. 451, 461 (1952) (Fifth Amendment applies to and restricts only the Federal Government and not private persons).

Defendant Decesaro concedes that "[t]he time frame for response was exceeded by Defendant DeCesaro for responding to Plaintiffs grievances." (Defendant DeCesaro's Motion to Dismiss (doc. # 24) at p. 2 of 8). However, the "failure to adhere to administrative regulations does not equate to a constitutional violation." Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir.1993). See also Maine v. Thiboutot, 448 U.S. 1, 4 (1980) (claim under section 1983 is available to redress violations of federal statutory and constitutional law). Mr. Rosales' allegation that Defendant DeCesaro violated DOC rules fails to state a claim upon which relief can be granted under § 1983.

*7 Mr. Rosales attempts to hold Defendant DeCesaro liable on the basis that he denied grievances. However, without an allegation of direct responsibility for the alleged violations, Defendant DeCesaro cannot be held liable for an alleged constitutional violation on the basis that he denied a grievance. See, e.g., Downing v. Clinton, 2006 WL 3054314, *15 (E.D.Wash.2006) (in granting motion to dismiss, held that defendant's receipt of grievances did not establish her personal participation in decisions relating to medical care); Johnson v. G.E.O./Lawton Correctional Facility, 2005 WL 2739212 (W.D.Okla.2005) (holding that plaintiff failed to state a claim for relief based upon a defendant's participation in the processing of a grievance; pro se plaintiff had not demonstrated the required "affirmative link" between the defendant and the underlying constitutional violation); Coates v. Sheahan, 1995 WL 430950, *2 (N.D.Ill.1995) (holding that grievances submitted to a supervisory official are insufficient to establish that official's personal participation in a constitutional violation).3 As Mr. Rosales has not alleged that Defendant DeCesaro in any way caused or participated in the alleged constitutional violations, there is no basis for holding him liable under § 1983 and Defendant DeCesaro is properly dismissed from this civil action.

3 Copies of these unpublished cases are attached to this Recommendation.

b. Failure to State Claim for Violation of Fourteenth Amendment

In Claim One, Mr. Rosales alleges that he was denied exercise and other privileges in violation of his Fourteenth Amendment due process and equal protection rights. (SAC (doc. # 14) at p. 11 of 15). In Claim Two, he alleges that Defendants confiscated his adult magazines in violation of his Fourteenth Amendment due process and equal protection rights. (SAC (doc. # 14) at p. 12 of 15). In Claim Three, he alleges that Defendants removed him from the general prison population in violation of his Fourteenth Amendment due process and equal protection rights. (SAC (doc. # 14) at p. 13 of 15; see also p. 8 of 15 (alleging he requested lateral transfer to another facility)). Mr. Rosales also alleges that he was placed in a diversion program and that other property was confiscated without due process, including toe nail clippers, bowls, toothbrushes, dental floss, candy, shampoo, and deodorant. (SAC (doc. # 14) at pp. 6 of 15 ¶ 43, p. 9 of 15 ¶¶ 67-70; see also Mr. Rosales' Response (doc. # 44) at p. 9 of 30).

"The Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property, without due process of law.'" Estate of DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334, 1339 (10th Cir.2007) (quoting U.S. Const. Amend. XIV). "A due process claim under the Fourteenth Amendment can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered." Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006) (citation omitted).

*8 While "the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement, ... a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Mr. Rosales has not identified any such laws or regulations. Further, the Supreme Court has instructed that unless conditions of confinement "impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, " state regulations or policies do not create a liberty interest for prisoners in the conditions of confinement." Sandin v. Conner, 515 U.S. 472, 484 (1995). See also Steffey, 461 F.3d at 1221 ("the Supreme Court held that a deprivation occasioned by prison conditions or a prison regulation does not reach protected liberty interest status and require procedural due process protection unless it imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.") (quoting Sandin, 515 U.S. at 484). Whether confinement "conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination...." Beverati v. Smith, 120 F.3d 500, 503 (4th Cir.1997) (citing Sandin, 515 U.S. at 485-87).

i. Removal from General Prison Population and Associated Restrictions

Prisoners do not have a constitutionally recognized liberty interest in their security classification or placement. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence."); Meachum v. Fano, 427 U.S. 215, 228 (1976) ("Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all."); Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994) (Colorado laws and regulations do not entitle inmates to remain in the general population absent certain conduct.); Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir.1990) ("a prisoner enjoys no constitutional right to remain in a particular institution and generally is not entitled to due process protections prior to such a transfer....").

Nor does Mr. Rosales' allegation of removal from the general prison population rise to a condition that is sufficiently "atypical" or "significant... in relation to the ordinary incidents of prison life" to implicate a liberty interest. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996) (Tenth Circuit has explicitly held that "the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.") (internal quotation marks and citation omitted); Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996) ("In Sandin, the Court held that the plaintiff's discipline in segregated confinement was not the sort of atypical, significant deprivation that would give rise to a liberty interest entitled to due process protection.") (citation omitted). The Tenth Circuit has identified relevant factors to consider when determining whether placement in administrative segregation implicates a protected liberty interest: (1) whether "the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) [whether] the conditions of placement are extreme; (3) [whether] the placement increases the duration of confinement...; and (4) [whether] the placement is indeterminate." Estate of DiMarco, 473 F.3d at 1342. Here, at least three of the relevant factors weigh against an enforceable liberty interest. Based on Mr. Rosales' allegations, the conditions were not atypical or extreme, his placement did not increase the duration of his confinement, and his removal from the general prison population was temporary. Likewise, Mr. Rosales' allegations of restricted exercise, canteen, and other privileges fail to rise to a condition that is sufficiently atypical or significant in relation to the ordinary incidents of prison life to implicate a liberty interest.

ii. Confiscation of "Adult" Magazines and Other Items

*9 The Tenth Circuit Court of Appeals "has ruled that property interest claims by prisoners are also to be reviewed under Sandin's atypical-and-significant-deprivation analysis." Steffey, 461 F.3d at 1221 (citing Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir.1999)) (other citations omitted)." The Supreme Court mandate since Sandin is that henceforth we are to review property and liberty interest claims arising from prison conditions by asking whether the prison condition complained of presents the type of atypical, significant deprivation in which a State might conceivably create a liberty [or property] interest.'" Cosco, 195 F.3d at 1224 (alteration in original, quoting Sandin, 515 U.S. at 486).

The confiscation of Mr. Rosales' adult magazines and various other items does not state a valid claim. "The regulation of type and quantity of individual possession" in prison cells reflects a typical type of restraint imposed on the prison population. See Cosco, 195 F.3d at 1224 (permanent separation of an inmate from his property does not amount to an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life).

Beyond demonstrating a protected interest, Mr. Rosales must also show that he was deprived of that interest without due process. See Parrish v. Mallinger, 133 F.3d 612, 615 (8th Cir.1998) ("this inquiry examines the procedural safeguards built into the statutory or administrative procedure for effecting the deprivation and any remedies for erroneous deprivations....'"). An unauthorized intentional deprivation of property by a state employee does not "constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984). Mr. Rosales' claim also fails because an adequate post-deprivation remedy was available to him. Mr. Rosales' asserted property deprivations are properly addressed by following his postdeprivation remedies, including Colo.Rev.Stat. § 24-10-106(1.5) (b). The Supreme Court has indicated that adequate inmate grievance procedures alone may provide a meaningful post-deprivation remedy for purposes of procedural due process. See Hudson, 468 U.S. at 536 n. 15.4 As Mr. Rosales has not demonstrated that he was denied an adequate postdeprivation remedy, he has not stated a claim for deprivation of due process.

4 Mr. Rosales alleges that he was prevented from filing grievances from May 2004 to on or about December 6, 2004. ( See SAC (doc. # 14) at p. 10 of 15). Mr. Rosales alleges that his property was seized on November 18, 2003, April 6, 2004, April 10, 2004, December 30, 2004, February 16, 2005, and March 9, 2005. ( See SAC (doc. # 14) at p. 7 of 15). By his own allegations, Mr. Rosales was not prevented from filing grievances regarding any of these seizures of his property.

In sum, Mr. Rosales' claim for violation of his due process rights is properly dismissed for failure to state a claim upon which relief can be granted.5, 6

5 To the extent that Mr. Rosales has alleged violation of his Fifth Amendment rights, he fails to state a claim. The Due Process Clause of the Fifth Amendment protects against due process violations by the federal government. See Public Utilities Comm'n v. Pollak, 343 U.S. at 461 (Fifth Amendment applies to and restricts only the Federal Government and not private persons). Further, in order to succeed under a Fifth Amendment due process claim, a plaintiff must show a cognizable property or liberty interest. Weatherford v. Dole, 763 F.2d 392, 393 (10th Cir.1985).See also Anglemyer v. Hamilton County Hasp., 58 F.3d 533, 536 (10th Cir.1995) (due process guarantees of the Fifth and Fourteenth Amendments apply only when a constitutionally protected liberty or property interest is at stake) (citation omitted).
6 To the extent that Mr. Rosales argues that Defendants acted negligently ( see Mr. Rosales' Response (doc. # 43) at p. 7 of 7; Mr. Rosales' Response (doc. # 44) at p. 6 of 30), he has not stated a claim upon which relief can be granted. Claims of § 1983 liability may not be predicated on negligence. Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662 (1986). See also Medina v. City and County of Denver, 960 F.2d 1493, 1500 (10th Cir.1992) ("negligence and gross negligence do not give rise to section 1983 liability"); Hudson, 468 U.S. at 533 (negligent deprivations of property do not violate the Due Process Clause).

iii. Failure to State Claim for Violation of Equal Protection

Mr. Rosales alleges violation of his equal protection rights. ( See, e.g., SAC (doc. # 14) at pp. 11-13 of 15 ¶¶ 79-81). Mr. Rosales' allegations do not state a claim for an equal protection violation.

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). The challenged disparate treatment must be the result of purposeful discrimination. Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct. 2671 n. 26 (1980). To properly allege an equal protection claim, a plaintiff must plead sufficient facts to "demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002). Treatment of dissimilarly situated persons in a dissimilar manner by the government does not violate the Equal Protection Clause.

*10 Mr. Rosales has failed to allege that he was treated differently than anyone similarly situated. Nor has Mr. Rosales alleged that Defendants acted based upon a discriminatory intent or motive. See Watson v. City of Kansas City, Kansas, 857 F.2d 690, 694 (10th Cir.1996) ("A plaintiff in an equal protection action has the burden of demonstrating discriminatory intent") (citations omitted); Villanueva v. Carere, 85 F.3d, 481, 485 (10th Cir.1996) (Although "[t]he discriminatory purpose need not be the only purpose, ... it must be a motivating factor in the decision"). Mr. Rosales' equal protection allegations are entirely conclusory and fail to state a claim.

c. Failure to State Claim for Violation of Eighth Amendment

In Claim One, Mr. Rosales alleges that he was denied exercise and other privileges in violation of his Eighth Amendment rights. ( See SAC (doc. # 14) at pp. 6-7, 8, 9, 11, 13 of 15). In Claim Four, Mr. Rosales alleges he was deprived of exercise in violation of his Eighth Amendment rights. ( See id.). Mr. Rosales also alleges various inadequate conditions in the cells at CCF. ( See id.).

"[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. CONST. Amend. VIII. Certain conditions of confinement, if they inflict pain unnecessarily and wantonly, may constitute cruel and unusual punishment under the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986). An Eighth Amendment claim includes both an objective component, whether the deprivation of a basic human need is sufficiently serious, and a subjective component, whether the officials acted with a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). As for the objective component, "extreme deprivations" are required to make out a conditions-of-confinement claim. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Thus, in a conditions-of-confinement case, a "sufficiently serious" deprivation is shown when "a prison official's act or omission... result[s] in the denial of the minimal civilized measure of life's necessities.'" Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The subjective component follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297). The "deliberate indifference" subjective standard applies to claims of inhumane conditions of confinement. Wilson, 501 U.S. at 303-04. A finding of deliberate indifference requires a showing that the defendant "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837.Under this standard, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.

*11 Mr. Rosales alleges that "[f]rom 4/2/04 to 5/6/04, the facility was put on an emergency 24 hour lockdown for 36 days straight for a stabbing in the PRO-UNIT." (SAC (doc. # 14) at p. 6 of 15, ¶ 38). The facility was again "on 24 hr lockdown, from 2/11/05 to 3/15/05...." ( Id. )." From 5/7/04 to the last day the plaintiff left on 7/27/05, the facility was and still is on 23 hr lockdown status." ( Id. ). Mr. Rosales alleges that "from 5/04 until the plaintiff left the facility on 7/27/05, inmates were allowed access to the gym once per week [for] 50 minutes...." and "outdoor exercise for 45 minutes once every two weeks...." (SAC (doc. # 14) at p. 7, 9 of 15, ¶¶ 45, 71).

Mr. Rosales alleges that he "was forced to wash with cold water during the 24hr lockdowns of 4/2/04 to 5/6/04 and 2/11/05 to 3/15/05." (SAC (doc. # 14) at p. 8 of 15, ¶ 59). Mr. Rosales also alleges that "[f]rom 5/04 until the plaintiff left the facility on 7/27/05, he was forced to order canteen from an ad seg canteen list, which was very limited with the max of $35.00 to spend." (SAC (doc. # 14) at p. 6 of 15, ¶ 41). Mr. Rosales further alleges that cell B-3-15 was "poorly vent[i]lated, " the window "would not close all the way, and a squirrel crawled into the plaintiffs cell, " "never did the staff spray for vermin, bugs or spiders, " and "there is no emergency buttons in the cells. (SAC (doc. # 14) at p. 8 of 15, ¶¶ 60-63).

As to the objective component, Mr. Rosales' allegations do not state a claim for deprivation "of the minimal measure of life's necessities, " as required to state a claim upon which relief can be granted pursuant to the Eighth Amendment. As the Tenth Circuit Court of Appeals "and other courts have recognized, some form of regular outdoor exercise is extremely important to the psychological and physical well being of inmates." Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 810 (10th Cir.1999) (internal quotation marks and citations omitted)." Although we have never expressly held that prisoners have a constitutional right to exercise, there can be no doubt that total denial of exercise for an extended period of time would constitute cruel and unusual punishment prohibited by the Eighth Amendment." Housley v. Dodson, 41 F.3d 597, 599 (10th Cir.1994) (concluding that an inmate who alleged he had received only thirty minutes of out-of-cell exercise in three months stated an Eighth Amendment claim). Mr. Rosales does not allege a total denial of out-of-cell exercise and has cited no legal authority from the Tenth Circuit that access to the gym once per week for 50 minutes and outdoor exercise for 45 minutes once every two weeks is a violation of the Eighth Amendment. Nor do Mr. Rosales' additional allegations regarding the limitations on canteen orders and temporary periods of washing with cold water, inter alia, state an Eighth Amendment violation. See Trujillo v. Williams, 465 F.3d 1210, 1225 n. 17 (10th Cir.2006) (allegations of limited access to education, employment, religious programming, housing assignment, recreation time and equipment, the telephone, and the commissary did not state an Eighth Amendment claim) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998)); Helling v. McKinney, 509 U.S. 25, 36 (1993) (allegations were not sufficient to show exposure "to a risk that is so grave that it violates contemporary standards of decency"); Estate of DiMarco, 473 F.3d at 1337-38 (conditions of confinement in most restrictive housing pod "met the basic necessities of life"). The conditions which Mr. Rosales alleges do not rise to the serious level implicating a violation of his Eighth Amendment rights.

*12 As to the subjective component, Mr. Rosales has not alleged that the responsible prison officials acted with "deliberate indifference." Mr. Rosales has not alleged that Defendants were personally involved in keeping him in those conditions and did so with deliberate indifference to a risk of harm. See Farmer, 511 U.S. at 837 ("the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference").

Further, many of Mr. Rosales' allegations are too vague and conclusory to state a claim upon which relief can be granted. As to the ventilation, the squirrel that crawled into his cell, unspecified "spider bites" and "attacks, " and the lack of an emergency button, Mr. Rosales has not sufficiently alleged specific dates, circumstances, or conduct by the named Defendants. In sum, Mr. Rosales' allegations are not adequate to state an Eighth Amendment violation.7

7 In the prison context, the Fourteenth Amendment's due process clause affords no greater protection to a litigant claiming mistreatment than does the Eighth Amendment. Whitley v. Albers, 475 U.S. at 327. Thus, the court's review of Mr. Rosales' Eighth Amendment claim fully disposes of any Fourteenth Amendment due process claim he has asserted for the same conduct.

d. Failure to State Claim for Violation of Fourth Amendment

Mr. Rosales alleges in his first claim that he was denied exercise and other privileges in violation of his Fourth Amendment rights. Mr. Rosales fails to state a claim under the Fourth Amendment. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... "U.S. CONST. Amend. VIII. In analyzing any Fourth Amendment issue, the threshold question is whether there has been either a "search" or a "seizure." Mr. Rosales' claim that he was denied exercise and other privileges is not cognizable under the Fourth Amendment. Further, the Supreme Court has concluded "that prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells...." Hudson v. Palmer, 468 U.S. 517, 530 (1984). Mr. Rosales' claim under the Fourth Amendment is properly dismissed with prejudice.

e. Mr. Rosales' Claim for Violation of First Amendment

Mr. Rosales alleges that the confiscation of his "adult magazines" on November 18, 2003 and April 6, 2004 "was in violation of the plaintiff's first amendment rights." (SAC (doc. # 14) at p. 7 of 15 ¶ 48; see also ¶ 66). A prisoner retains all First Amendment rights that are "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Nevertheless, merely because prisoners "retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations...." Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). Prisoners' First Amendment rights "may be curtailed whenever the institution's officials in the exercise of their informed discretion, reasonably conclude that such [rights]... possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132 (1977). See also Thornburgh v. Abbott, 490 U.S. 401, 409 (1989) (relevant inquiry is whether the actions of prison officials were "reasonably related to legitimate penological interests") (quoting Turner v. Salley, 482 U.S. 78, 89 (1974)).

*13 Defendants argue that Mr. Rosales' First Amendment claim is barred by the statute of limitations. Mr. Rosales brings his First Amendment claim pursuant to 42 U.S.C. § 1983. Federal courts must look to the applicable state statute of limitations to determine the timeliness of a claim under § 1983. Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.1993). Colorado law provides a two-year statute of limitations for actions brought pursuant to § 1983. See Colo.Rev.Stat. § 13-80-102(g) (establishing a two-year limitation period for "all actions upon liability created by a federal statute where no period of limitation is provided in said federal statute" and for "all other actions of every kind for which no other period of limitation is provided"); Blake v. Dickason, 997 F.2d at 750 (applying § 13-80-102 to § 1983 claim).

The determination of when a § 1983 action accrues is controlled by federal rather than state law. Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir.2000) (citation omitted)." Section 1983 claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action.'" Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir.1991) (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980) (further quotations omitted)). Mr. Rosales executed the original complaint on August 21, 2006. ( See doc. # 3 at p. 19 of 28). A prisoner's pro se complaint alleging a § 1983 action against state prison officials is treated as filed with the court on the date the prisoner gave it to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 271 (1988).8 Mr. Rosales' claim arises from conduct that he alleges occurred on November 18, 2003 and April 6, 2004, more than two years before Mr. Rosales executed the initial Complaint and outside the statute of limitations. ( See SAC doc. # 14) at p. 7 of 15 ¶ 48).

8 The court received Mr. Rosales' Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (doc. # 1) and the initial Complaint (doc. # 3) on November 24, 2006.

Mr. Rosales argues that the statute of limitations must be tolled because he was prevented from filing any grievance regarding this claim. State law determines the applicable statute of limitations and accompanying tolling provisions for § 1983 actions. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995)." Once the statute of limitations is raised as an affirmative defense, the burden shifts to the plaintiff to show that the statute has been tolled." Overheiser v. Safeway Stores, Inc., 814 P.2d 12, 13 (Colo.App.1991). Mr. Rosales argues that Defendant Watkins "failed to distribute grievances, ... forc[ing] the plaintiff to file a § 1983 action prematurely...." (SAC doc. # 14) at p. 10 of 1573). See, e.g., Baldauf v. Garoutte, 137 Fed.Appx. 137, 141 (10th Cir. (Colo.) June 24, 2005) ("administrative remedies are not available' when prison officials refuse to provide prisoners with grievance forms"), cert. denied, 126 S.Ct. 1360 (2006).

*14 Defendants reply that Mr. Rosales' own allegations indicate that he was not prevented from filing grievances regarding the confiscation of his adult magazines. The court agrees. Mr. Rosales alleges that he was prevented from filing grievances from May 2004 to on or about December 6, 2004. ( See SAC (doc. # 14) at p. 10 of 15). Mr. Rosales alleges that his magazines were seized on November 18, 2003 and April 6, 2004. ( See SAC (doc. # 14) at p. 7 of 15). The alleged denial of grievance forms occurred after Mr. Rosales had the opportunity to file grievances regarding the seizure of his magazines. ( See AR 850-04 (doc. # 24-2) at p. 6 of 15 ("A Step I grievance must be filed no later than 30 calendar days form the date the offender knew, or should have known, of the facts giving rise to the grievance.")). By his own allegations, Mr. Rosales was not unable to file grievances regarding the seizure of his magazines. Nor does Mr. Rosales' argument that he was "forced... to file a § 1983 action prematurely" properly address the statute of limitations bar.

"At the motion-to-dismiss stage, a complaint may be dismissed on the basis of a statute-of-limitations defense only if it appears beyond a doubt that Plaintiffs can prove no set of facts that toll the statute." Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 n. 13 (11th Cir.2005) (internal quotation marks and citations omitted). See also United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005) (complaint may be dismissed where the "allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations") (citation omitted). The allegations support dismissal of Mr. Rosales' First Amendment claim as barred by the statute of limitations.

B. Declaratory Relief

Mr. Rosales' transfer from CCF on July 27, 2005 moots his request for declaratory relief. See Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir.2004) (following release from prison, inmate's claims for declaratory and injunctive relief were moot); McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir.1999) (stating that release to parole from prison generally moots claims for injunctive relief); Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir.1997) (holding that release from prison moots claims for declaratory and injunctive relief); Smith v. Hundley, 190 F.3d 852, 855 (8th Cir.1999) (inmate's claims for declaratory and injunctive relief regarding prison conditions were moot when he was transferred to another facility and was no longer subject to those conditions) (citations omitted). As there is no reasonable expectation that Mr. Rosales will be subjected to this conduct again, this is not the type of claim to which an exception to the mootness doctrine applies. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (recognizing exception to the mootness doctrine where there is a "reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party") (internal quotation marks and citation omitted).

*15 In sum, IT IS RECOMMENDED that:

1. Defendant DeCesaro's Motion to Dismiss Complaint (filed May 15, 2007) (doc. # 23) be GRANTED;

2. Defendants'"Motion to Dismiss Pursuant to Rule 12(B) [sic]" (filed June 22, 2007) (doc. # 35) be GRANTED;

3. Mr. Rosales' Claims One, Two, Three, and Four and this civil action be DISMISSED with prejudice for failure to state a claim upon which relief can be granted.

Advisement to the Parties

Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b) (1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Property, 73 F.3d at 1059-60 (a party's objections to the Magistrate Judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).

Attorneys and Law Firms

Frank Vigil, Jr., Canon City, CO, pro se.

Robert Charles Huss, Colorado Attorney General's Office, Denver, CO, for Defendant.

ORDER

PHILIP A. BRIMMER, District Judge.

*1 This matter is before the Court on plaintiff's motion for reconsideration [Docket No. 60] of the Court's September 13, 2010 order [Docket No. 57] granting defendants' motion to dismiss in part [Docket No. 32].

The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration. See Hatfield v. Bd. of County Comers for Converse County, 52 F.3d 858, 861 (10th Cir.1995); Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1224 n. 2 (10th Cir.2008) ("The District Court's partial summary judgment ruling was not a final judgment. Thus, [plaintiffs] motion for reconsideration is considered an interlocutory motion invoking the district court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.... In such a case, the district court is not bound by the strict standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure 59(e) and 60(b).") (quotations and citations omitted).

Where, as here, a party seeks reconsideration of a non-final order, that motion "falls within a court's plenary power to revisit and amend interlocutory orders as justice requires." United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, No. 06-cv-0003-PAB-CBS, 2010 WL 420046, *3 (D.Colo. Feb. 1, 2010); see also Fed.R.Civ.P. 54(b) ("[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities."). However, "[i]n order to avoid the inefficiency which would attend the repeated re-adjudication of interlocutory orders, judges in this district have imposed limits on their broad discretion to revisit interlocutory orders." United Fire & Cas. Co., 2010 WL 420046 at *3. Although courts in this district have applied different standards, see id. (noting cases applying Rule 59(e) standard, Rule 60(b) standard, and "law of the case" standard), the basic assessment tends to be the same: courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error. Motions for reconsideration are "inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion... Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000) (citations omitted).

Plaintiff argues that because the Court dismissed some claims without prejudice, it was required to dismiss all claims without prejudice. While there is no such legal rule, plaintiff is correct that his claims against the Colorado Department of Corrections ("CDOC") and other defendants in their official capacities for money damages should have been dismissed without prejudice. See Garman v. Campbell County School Dist. No. 1, 630 F.3d 977, 985 (10th Cir.2010) ("Generally, a dismissal for lack of subject matter jurisdiction is without prejudice and does not have a preclusive effect."). Plaintiff, however, has not identified any other valid basis for reconsideration of the Court's September 13, 2009 order. Therefore, it is

*2 ORDERED that plaintiff's motion for reconsideration [Docket No. 60] is GRANTED in part. It is further

ORDERED that the portion of the Court's September 13, 2010 Order [Docket No. 57] dismissing with prejudice plaintiffs claims against the CDOC and the other defendants in their official capacities for money damages is vacated. It is further

ORDERED that plaintiff's claims against the CDOC and the other defendants in their official capacities for money damages are dismissed without prejudice.

Attorneys and Law Firms

Clarence A. Walker, Centennial, CO, pro se.

Edward M. Caswall, Littleton, CO, Barbara Hruby Glogiewicz, Laura M. Wassmuth, Susan M. O'Brien, Catherine O'Brien Crum, Terry Cipoletti, Kennedy Childs & Fogg, PC, Denver, CO, for Defendants.

ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BLACKBURN, District Judge.

*1 The matter before me is the Recommendation of United States Magistrate Judge [# 73] filed March 9, 2009. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir.2005).1 Finding no such error in the magistrate judge's recommended disposition, I find and conclude that the recommendation should be approved and adopted.2

1 This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez, 418 F.3d at 1122. Of course, because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89 ___, 127 S.Ct. 2197, 2200. 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Hall v. Belnion, 935 F.2d 1106, 1110 (10th Cir.1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).
2 Although unlike the magistrate judge, I read plaintiffs complaint as asserting a First Amendment retaliation claim solely against defendants Meyer and Pritcher, I agree that plaintiff has failed to allege sufficient facts to support such a claim against movants Meyer and Courtney in any event.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [# 73] filed March 9, 2009, is APPROVED AND ADOPTED as an order of this court;

2. That Defendant "Lt. Cortney's" Motion To Dismiss [# 34] filed October 31, 2008, is GRANTED;

3. That Trent Rold, D.D.S. Motion To Dismiss [# 51] filed December 4, 2008, is GRANTED;

4. That plaintiffs claims against defendants, Lieutenant Harry Courtney, misidentified in the caption as "Lt. Cortney, " Trent Rold, D.D.S., are DISMISSED WITH PREJUDICE;

5. That at the time final judgment is entered, judgment SHALL ENTER on behalf of defendants, Lieutenant Harry Courtney, misidentified in the caption as "Lt. Cortney, " Trent Rold, D.D.S., and against plaintiff, Clarence A. Walker, as to all claims for relief and causes of action; and

6. That at the time final judgment is entered, defendants shall be AWARDED their costs, to be taxed by the Clerk of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Defendant "Lt. Cortney's"1 Motion to Dismiss [Docket 34; Filed October 31, 2008] ("Courtney's to Dismiss") and Defendant Trent Rold, D.D.S.'s2 Motion to Dismiss [Docket No. 51; Filed December 4, 2009] ("Rold's Motion to Dismiss"). Plaintiff failed to timely respond to Courtney's Motion to Dismiss. In conjunction with setting a deadline for Plaintiff to respond to Rold's Motion to Dismiss, the Court sua sponte extended Plaintiffs deadline to respond to Courtney's Motion to Dismiss [Docket No. 53]. Plaintiff filed a Response to Courtney's Motion to Dismiss on December 29, 2009 [Docket No. 56], and Defendant Courtney filed a Reply on January 13, 2009 [Docket No. 60]. Plaintiff failed to comply with the Court's Order to respond to Rold's Motion to Dismiss. Nevertheless, Defendant Rold filed a Reply on January 6, 2009 [Docket No. 58].3 The Motions to Dismiss have been fully briefed and are ripe for resolution. Pursuant to 28 U.S.C. § 636(b)(1) and D.C. Colo. L. Civ. R. 72.1.C, the Motions to Dismiss have been referred to this Court for recommendation. Having considered the pleadings and the docket in this case, the Court is fully advised of the issues presented in the Motions to Dismiss. As such, the Court recommends that Courtney's Motion to Dismiss be GRANTED and that Rold's Motion to Dismiss be GRANTED.

1 The correct name of "Lt. Cortney" is Lt. Harry Courtney [hereinafter "Courtney"].
2 Defendant Trent Rold, D.D.S. is referred to as "Dentist's [sic] Rold" in Plaintiffs complaint.
3 Dismissal of Defendant Rold may be appropriate based on Plaintiffs failure to follow the Court's Order. While some district court local rules within the Tenth Circuit authorize dismissal based solely on a failure to respond, the District of Colorado Local Civil Rules do not specify that failure to respond to a motion may be deemed as consent to its entry. See, e.g., D.C.N.M. L. Civ. R. 7.5(b); D.C. Kan. L. Civ. R. 7.4. In any event, when dealing with a pro se plaintiff, the Tenth Circuit has stated its preference for resolution of the substance of a motion to dismiss despite the pro se plaintiffs failure to respond. Persik v. Manpower, Inc., 85 Fed.Appx. 127, 130 (10th Cir. Dec.31, 2003) (unpublished decision). Given the judicial system's strong preference for resolving cases on their merits, the Court considers Rold's Motion to Dismiss on its merits.

I. Factual Background and Complaint

*2 Plaintiff's case arises from his alleged mistreatment while incarcerated at the Arapahoe County Detention Facility ("ACDF"), in Arapahoe County, Colorado. Plaintiff, who is proceeding pro se, filed a case pursuant to 42 U.S.C. § 1983 against Defendants on September 3, 2008 [Docket No. 3]. Plaintiffs initial complaint remains the operative complaint for purposes of resolution of the pending Motions to Dismiss.

Plaintiff's complaint is not a model of clarity. For instance, at first glance, the complaint appears to contain four separate claims for relief, but upon further inspection of the attachments, Plaintiff also appears to raise a fifth claim for relief Moreover, although it appears that Plaintiff intended to assert five separate claims for relief, the complaint raises only two constitutional injuries: (1) Claims I-III assert that Defendants caused Plaintiff to suffer an Eighth Amendment injury due to their failure to provide him with dentures, Complaint [# 3] at 5-9; and (2) Claims IV and V assert that Defendants caused Plaintiff to suffer a First Amendment injury due to their retaliation against him for filing past lawsuits and grievances, id. at 10, 20.Therefore, despite the varying labels Plaintiff has attached to his myriad claims, I will not be rigidly guided by Plaintiff's characterization of his claims and resolve his alleged injuries in relation to the Eighth and First Amendments.4 See Castro v. United States, 450 U.S. 375, 381 (2003) (noting that it is appropriate for federal courts to ignore the legal labels attached to a pro se party's claims "to create a better correspondence between the substance of [the party's claims] and [the] underlying legal basis").

4 The complaint also contains allegations against Defendants Elaine Meyer and Jill Pritcher. Neither of these Defendants moves to dismiss Plaintiffs complaint against them at this time. See Meyer's Answer [# 33]; Pritcher's Answer [# 48].

II. Standard of Review

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide plausible grounds' that discovery will reveal evidence to support the plaintiffs allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (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 plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (citation omitted).

Finally, the Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his or her] 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. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.1994).

III. Analysis

A. Courtney's Motion to Dismiss

*3 Defendant Courtney contends that Plaintiffs case against him should be dismissed for Plaintiffs failure to allege that Defendant Courtney personally participated in the conduct giving rise to Plaintiffs alleged constitutional injuries, or alternatively, that Defendant Courtney had the requisite intent to harm Plaintiff. Although Defendant Courtney failed to analyze the sufficiency of Plaintiffs complaint against him in relation to Plaintiff's First Amendment retaliation claim, I may do so here pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii). In regard to both claims, the allegations contained in Plaintiffs complaint against Defendant Courtney appear to be limited to his supervisory role over medical personnel and his participation in the grievance process. Specifically, Plaintiff contends that after he was denied his request for dentures, "he then turned his attention to the highest medical official who is the Luietenant [sic] medical administrator. I filed a grievance to him on 8-10-08 and he has refused, ignored, and failed, and deprived me of [sic] pain and suffering, discomfort, disfigurement which is a violation of my... constitutional rights." Complaint [# 3] at 7. He also contends that the grievances attached to the complaint show that Defendants, including Defendant Courtney, retaliated against him. Id. at 10.

Given the extent of the allegations against Defendant Courtney, I find that Plaintiff's claims against him fail because Plaintiff does not specifically attribute conduct committed by Defendant Courtney which led to the deprivation of a constitutional right. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). First, there is no evidence that Defendant Courtney was a treating physician or participated in the initial decision to deprive Plaintiff of dentures. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1983) (noting that personal participation is a threshold to liability); see also Thomas v. Ortiz, 07-cv-00400-WDM-MEH, 2007 WL 3256708, at *4 (D.Colo. Nov. 1, 2007) (unpublished decision) (holding that official deriving his knowledge of Plaintiff's alleged injury from the grievance process is not personally liable unless he was directly involved in the initial medical decision). An affirmative link must exist between the alleged constitutional violation and Defendant Courtney's participation, control or direction. Bennett, 545 F.2d at 1262-63; Whitelow v. Stanley, 06-cv-02256-ZLW-MEH, 2007 WL 4268961, at *6 (D.Colo. Nov. 28, 2007) (unpublished decision). Furthermore, general, conclusory allegations, without supporting factual averments, are insufficient to state a constitutional claim against a defendant. See Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th Cir.1996). Instead, "to state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her, and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.2007).

*4 To the extent that Plaintiff asserts supervisory liability against Defendant Courtney due to his participation in the grievance process, mere participation in the grievance process is an insufficient basis for asserting a violation of constitutional rights. Boles v. Dansdill, No. 05-cv-0166-PSF-CBS, 2007 WL 2770473, *4 (D.Colo. Sept.20, 2007) (unpublished decision); see also Coates v. Sheahan, No. 94-cv-6107, 1995 WL 430950, *2 (N.D.Ill. July 18, 1995) (unpublished decision) (holding that grievances submitted to a supervisory official are insufficient to establish the official's personal participation in a constitutional violation). The "mere involvement of processing a grievance at an administrative level does not establish the affirmative link required to establish supervisor liability for an employee's conduct." Boles, 2007 WL 2770473, *4 (citing Johnson v. G.E.O./Lawton Corr. Facility, No. Civ-04-1467-C, 2005 WL 2739212, at *1 (W.D.Okla. Oct.24, 2005)); Davis v. Ark. Valley Corr. Facility, 99 Fed.Appx. 838, 843 (10th Cir.2004) (sending "correspondence [to the warden] outlining [a] complaint... without more, does not sufficiently implicate the [supervisory official] under § 1983"). To hold a supervisory prison official liable on the basis of communications he received, "would be to hold any well informed [prison official] personally liable for damages flowing from any constitutional violation occurring at any jail within that [official's] jurisdiction. We believe that such a broad theory of liability is inconsistent with the personal responsibility requirement for... a section 1983 action." Crowder v. Lash, 687 F.2d 996, 1005-06 (7th Cir.1982).

Even were the Court to find that Plaintiff sufficiently alleged Defendant Courtney's personal participation, his claims fail on the merits. As will be discussed with more detail in relation to Rold's Motion to Dismiss, the Eighth Amendment analysis involves an objective and subjective determination. See Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Here, Plaintiff's complaint fails to attribute any subjective indifference to Defendant Courtney. Putting aside whether Plaintiff's alleged dental needs state a subjectively serious medical injury, Plaintiff has failed to allege that Defendant Courtney intended the deprivation, i.e., acted with deliberate indifference to the harm that could result. See Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The subjective element, which can only be addressed by showing that Defendant Courtney "kn[ew] of and disregard[ed] an excessive risk to inmate health and safety" or acted with a sufficiently culpable state of mind, Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), cannot be shown upon Defendant Courtney's mere involvement in the grievance process. See Thomas, 2007 WL 3256708 at *4.

As to Plaintiff's First Amendment claim, "to establish a First Amendment retaliation claim, a prisoner must demonstrate that he was (1) engaged in protected conduct; (2) that he suffered an adverse action; and (3) that a causal connection exists between the protected conduct and the adverse action." Baidauf v. Hyatt, No. 01-cv-01315-REB-CBS, 2008 WL 280839, at *7 (D.Colo. Jan.31, 2008) (unpublished decision) (quoting Scott v. Churchill, 377 F.3d 565, 569 (6th Cir.2004)). However, an inmate is not "inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he is engaged in protected activity." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998).

*5 To prevail on the causation element of a claim for retaliation, Plaintiff "must prove that but for' the retaliatory motive, the incidents to which he refers... would not have taken place." Id. (citing Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir.1990)). That is, "it is imperative that [a] plaintiffs pleading be factual and not conclusory. Mere allegations of constitutional retaliation will not suffice; plaintiffs must, rather, allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.1990); see also Jones v. Greninger, 188 F.3d 322, 325 (5th Cir.1999) ("[T]he inmate must allege more than his personal belief that he is the victim of retaliation."). Here, Plaintiff does not allege sufficient facts to create a causal connection between his alleged protected conduct and Defendant Courtney's action or inaction taken pursuant to the grievance process.

Accordingly, I RECOMMEND that Courtney's Motion to Dismiss be GRANTED and all claims against him be dismissed.5

5 Because I recommend dismissal of Defendant Courtney for Plaintiffs failure to state a sufficient claim against him, I necessarily recommend that any claims asserted against him in his official capacity be dismissed as well. Claims against public officials in their official capacity are essentially claims against the governmental entity itself. Monell v. Deprt of Social Servs., 436 U.S. 658, 690-91 & n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The request for injunctive relief remains viable against the non-dismissed Defendants in their official capacities.

B. Rold's Motion to Dismiss

Defendant Rold contends that Plaintiffs case against him should be dismissed for Plaintiff's failure to state an Eighth Amendment claim against him. Although Defendant Rold failed to analyze the sufficiency of Plaintiff's complaint against him in relation to Plaintiff's First Amendment retaliation claim, I may do so here pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). In regard to both claims, the allegations contained in Plaintiffs complaint against Defendant Rold appear to be that Defendant Rold took dental x-rays and recommended that Plaintiff receive dentures, but that Defendant Meyer did not authorize this type of medical care. Complaint 3] at 6. He also contends that "Defendant Rold violated my... constitutional amendment [sic] by depriving me of dentures and getting a seriously painful teeth [sic] pulled." Id. at 7. Finally, Plaintiff contends that the grievances attached to the complaint show that Defendants, including Defendant Rold, retaliated against him. Id. at 10.

The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend VIII. To this end, prison officials have a duty to "provide humane conditions of confinement." Farmer, 511 U.S. at 832. As such, the Eighth Amendment requires that "prison officials... ensure that inmates receive adequate food, clothing, shelter, and medical care, and [that they] must take reasonable measures to guarantee the safety of the inmates.'" Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). The Court's analysis of Plaintiffs' Eighth Amendment claim involves both an objective and subjective component. Wilson, 501 U.S. at 298-99.

As to the objective component, the Court considers whether Plaintiff has been deprived of a sufficiently serious basic human need, i.e., an extreme deprivation. "Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities... are sufficiently grave to form the basis of an Eighth Amendment violation.'" Hudson, 503 U.S. at 9-10 (citations omitted). As to the subjective component, the Court considers whether Defendant Rold intended the deprivation, i.e., acted with deliberate indifference to the harm that could result. See id. The subjective element can only be proved by showing that Defendant Rold "kn[ew] of and disregard[ed] an excessive risk to inmate health and safety" or acted with a sufficiently culpable state of mind. See Farmer, 511 U.S. at 837; Hudson, 503 U.S. at 8.

*6 Without deciding whether Plaintiff has stated an objectively serious medical need, I find that Plaintiff has failed to satisfy the subjective component of the Eighth Amendment analysis in relation to Defendant Rold. As a preliminary matter, it should be noted that an inmate's difference of opinion concerning the medical treatment that he receives or does not receive does not generally support a claim for cruel and unusual punishment. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993). A "prisoner's right is to medical care-not to the type or scope of medical care which he personally desires." Henderson v. Sec'y of Corr., 518 F.2d 694, 695 (10th Cir.1975) (citation omitted). To the extent that Plaintiff, in his opinion, asserts that Defendant Rold did not satisfactorily perform his duties given his failure to provide him with dentures, "such a difference of opinion amounts to a medical malpractice claim... [which] cannot be the basis for a federal [Bivens] action.... [A] medical malpractice claim does not become a constitutional violation simply because the plaintiff is a prisoner." Pearson v. Simmons, No. Civ.A. 95-3006-GTV, 1998 WL 154552, at *2 (D.Kan. Mar.17, 1998) (unpublished decision) (citations omitted) (noting that inmate's allegation that defendants were deliberately indifferent to his medical injury based upon a disagreement about the level of care he received for that injury did not state an Eighth Amendment claim).

"The question of whether a certain form of treatment should be prescribed is a classic example of a matter for medical judgment.' " Tivis v. Beecroft, No. 06-cv-02025-WYD-CBS, 2007 WL 2786434, at *10 (D.Colo. Sept.24, 2007) (unpublished decision) (quoting Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). As was the case in Pearson, "Plaintiff was not denied medical treatment, rather he merely disagrees" with his ultimate rejection to receive the desired treatment. See id.

More specifically, considering Plaintiff's allegations against Defendant Rold, Plaintiff states that while Defendant Rold recommended that Plaintiff receive dentures, it was ultimately Defendant Meyer's decision and she refused to provide Plaintiff this form of treatment. Complaint [# 3] at 6-7. The alleged conduct of Defendant Rold, namely his examination of Plaintiff and his attempt to discuss Plaintiffs alleged need for dentures with Defendant Meyer, does not evidence the degree of neglect sufficient to find that Defendant Rold was deliberately indifferent to Plaintiffs medical needs. See generally Free v. Unknown Officers of BOP, 103 Fed.Appx. 334, 336-37 (10th Cir. June 29, 2004) (unpublished decision). Indeed, it evidences no neglect at all.

The subjective component of a deliberate indifference claim requires an inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment. It is not enough to allege that prison official failed to alleviate a significant risk that [they] should have perceived but did not. To show the requisite indifference, [the prisoner] must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it.

*7 Kikumura v. Osagie, 461 F.3d 1269, 1291-93 (10th Cir.2006) (citations omitted). Here, the complaint does not contain any allegations that Defendant Rold was aware of or unreasonably disregarded a sufficiently serious risk. See Riddle v. Mondragon, 83 F.3d 1197, 1202-06 (10th Cir.1996) (holding that prisoner's complaint must go beyond conclusory allegations about the depravity of defendants' conduct). At the most, Plaintif's complaint contends that Defendant Rold knew that Plaintiff had a tooth that was "broken inside [Plaintiff's] gums." Complaint [# 3] at 6. As Plaintiff's complaint also infers, it was not Defendant Rold's decision to deny Plaintiff dentures, and he nevertheless examined Plaintiff and allegedly made dental recommendations. Because "[t]he subjective component is not satisfied [ ] absent an extraordinary degree of neglect, " the Court finds that the conduct and knowledge attributed to Defendant Rold fails to support a finding of deliberate indifference.6 See Self v. Crum, 439 F.3d 1227, 1232 (10th Cir.2006).

6 To the extent that the complaint can also be interpreted to contend that Defendant Rold exhibited deliberate indifference when he sought consultation with Defendant Meyer before he extracted Plaintiffs teeth, there is insufficient factual information regarding this alleged occurrence nor does Plaintiff seek any relief relating to it. Therefore, I find that this conclusory allegation, without any additional factual support, fails to state a viable injury which can be addressed herein.

As to Plaintiff's First Amendment claim, Plaintiff does not allege sufficient facts to create a causal connection between his protected conduct and Defendant Rold's action or inaction. While a later discussion in the complaint involving retaliation provides more detail as to the factual basis for Plaintiffs alleged First Amendment injury against Defendants Meyer and Pritcher, Plaintiff fails to attribute any specific connection between the exercise of Plaintiff's constitutional rights and Defendant Rold's conduct. Despite Plaintiff's assertion that the grievances attached to his complaint show that Defendant Rold retaliated against him for filing lawsuits and grievances, Complaint [# 3] at 10, I find no support for Plaintiffs conclusory statement in the grievances attached. Moreover, taking judicial notice of the four prior or pending lawsuits filed by Plaintiff in this District, I note that except for this case, Plaintiff has never sued Defendant Rold. Finally, given that Defendant Rold allegedly recommended that Plaintiff receive dentures, and his alleged lack of authority to provide them without Defendant Meyer's consent, Plaintiff has failed to state any adverse action taken by Defendant Rold.

Accordingly, I RECOMMEND that Rold's Motion to Dismiss be GRANTED and all claims against him be dismissed.7

7 Because I recommend dismissal of Defendant Rold for Plaintiffs failure to state a sufficient claim against him, I necessarily recommend that any claims asserted against him in his official capacity be dismissed as well. See supra note 5.

IV. Conclusion

For the aforementioned reasons, I respectfully RECOMMEND that Courtney's Motion to Dismiss [# 34] be GRANTED, that Rold's Motion to Dismiss [# 51] be GRANTED and that the case against them be dismissed in its entirety pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii).

IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have ten (10) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir.1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir.1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).

Attorneys and Law Firms

*180 Michael Whitington, Sterling, CO, pro se.

James X. Quinn, Attorney General for the State of Colorado, Department of Law, Jennifer L. Veiga, Hall & Evans, Denver, CO, for Defendants-Appellees.

*181 Thomas Bullard, Thomas R. Bullard, Attorney at Law, Sterling, CO, pro se.

Before McCONNELL, ANDERSON, and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.

STEPHEN H. ANDERSON, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This protracted1 state inmate case is before us a second time, 2 still at the initial pleading stage. Michael Whitington, an inmate within the Colorado Department of Corrections ("CDOC") system, filed this 42 U.S.C. § 1983 conditions of confinement action against Joe Ortiz, the Executive Director of the CDOC, two wardens, an assistant warden, and seven corrections officers, alleging a violation of his Eighth Amendment rights.3 He alleges that because of the CDOC's regulations and practices regarding inmate indigency and finances, he was required to purchase hygiene items from his own account but was left with no funds to do so if he paid for the costs of constitutionally protected litigation. The result, he claims, was that he was unable to buy and, despite requests, was not given, soap, toothpaste, toothbrushes, and razors for about 230 days of a thirteen-month period. This deprivation, which resulted from a claimed forced choice between constitutional rights, led to what he describes as bumps and rashes on his face and body, swollen and infected gums causing great pain for weeks, loss of a tooth, the need for an operation on his gums, loss of weight from not being able to eat due to pain in his mouth, and being compelled to remain dirty, stinking, and humiliated. Mr. Whitington's suit seeks compensatory and punitive damages, an injunction or restraining order, and declaratory relief.

1 The complaint in this case was filed on April 20, 2006. The appellate process has significantly contributed to the elapsed time.
2 We previously reversed a dismissal for failure to exhaust administrative remedies and remanded for further proceedings. See Whitington v. Ortiz, 472 F.3d 804 (10th Cir.2007) ("Whitington I").
3 The complaint does not list the full names of these defendants, nor does the district court's decision and judgment. From the defendants' brief and at some points in the body of the complaint and in other documents, we glean the following fuller identifications of the defendants, as they were denominated at the time of filing: Joe Ortiz, Executive Director of the Colorado Department of Corrections; Al Estep, Warden of the Limon Correctional Facility and the Fort Lyon Correctional Facility; Steven Green, Warden of the Delta Correctional Facility; Delayne Tornowski, Assistant Warden of the Limon Correctional Facility; Stephen Lockhart, Captain in charge of Unit 4 at the Limon Correctional Facility; Thomas Bullard, an outside party, serving as a Step III Grievance Officer; Sgt. Eric Olsen, Sergeant in living Unit 4 at the Limon Correctional Facility; Sgt. Melissa Huff, Sergeant in living Unit 4 at the Limon Correctional Facility; C/O Donna Barnes (as indicated infra n. 6), Correctional Officer in living Unit 4 at the Limon Correctional Facility; Lt. John Cordova, a Case Manager in Unit 8 at the Fort Lyon Correctional Facility; and Lt. Lisa Adelman, a Case Manager in living Unit 4 at the Limon Correctional Facility.

The district court, adopting the thorough report and recommendation of the magistrate judge, dismissed the action *182 pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted.4 Claims against the individual defendants were also dismissed on various additional grounds, but largely resting on the complaint's failure to state a claim. The district court also denied Mr. Whitington's motions for a preliminary injunction and a restraining order, leave to file a second amended complaint, and for the appointment of counsel.

4 Because the district court adopted as its own the magistrate judge's Report & Recommendation ("R & R"), any references and citations to the R & R hereafter are as if they were to the district court's own opinion, unless otherwise specified.

Mr. Whitington appeals from the denial of those motions and the dismissal of his action. For the reasons stated below, we affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

A.

Mr. Whitington filed his amended complaint, consisting of 191 numbered, and additional unnumbered, paragraphs, on July 17, 20065 The complaint covers roughly a thirteen-month period from May 2005 through mid-June 2006, and includes separate allegations directed at Mr. Whitington's incarceration at four CDOC facilities: the Limon Correctional Facility ("Limon") from at least May 2005 to August 24, 2005; the Fort Lyon Correctional Facility ("Fort Lyon"), from August 24, 2005, to November 10, 2005; the Kit Carson Correctional Center (a private contract facility) ("Kit Carson"), from November 15, 2005, to June 2, 2006; and the Sterling Correctional Center ("Sterling"), from June 2, 2006, to the date of filing. He remained at Sterling at the time of filing.

5 References to the complaint throughout this opinion refer to the first amended complaint.

The complaint generally alleges a denial of hygiene items throughout the period in question; but the only specific items specified repeatedly are soap, toothpaste, toothbrushes, and razors. Indeed, comparing ¶ 171 of the complaint with ¶ 189 (seeking a permanent injunction for the supply of hygiene items), the complaint limits itself to soap, toothpaste and razors. In other contexts the complaint will sometimes refer to some but not all of the four articles mentioned. It may be that sometimes some but not all four of the items mentioned were available (thus no denial of that item for a period), or some sort of shorthand reference was meant. Regardless, we take it at this juncture that the complaint sufficiently alleges the denial of four hygiene items: soap, toothpaste, toothbrushes and razors. And references to hygiene items hereafter will refer to those items unless otherwise stated.

An institution-by-institution and defendant-by-defendant breakdown of the complaint's allegations does not easily translate to the general claim of 230 days' denial of hygiene items. See Compl. ¶¶ 134, 136. But, Mr. Whitington does specify that at Limon, the defendants/corrections personnel Adelman, Huff, Barns6, and Olsen (staff member Harding is also mentioned, but not named), were personally responsible for the denial in question for 136 days, and Lt. Cordova was personally responsible for forty days. Warden Estep, Assistant Warden Tornowski, Captain Lockhart (in charge of Unit 4 at Limon), and grievance hearing officer Bullard are generally charged with 230 days' denial. *183 Specific recitals, by date and type of request, are set out for defendants Adelman, Huff, Barnes and Olsen. On June 1, 2005, Case Manager ("C/M") Adelman refused a request for hygiene items, saying Mr. Whitington did not qualify for indigent status (therefore entitlement to free hygiene items) because he received state pay. Id. ¶ 15. On June 10, 2005, Sgt. Olsen refused a request for hygiene items, and on July 1 Sgt. Olsen was specifically made aware of Mr. Whitington's lack of hygiene items but did not act. Id. ¶¶ 25, 28 and 29. On July 6, 2005, Mr. Whitington sent a written request to C/M Adelman for hygiene items but received no response. On, July 8, 2005, Sgt. Huff turned down a request for a razor and soap. Id. ¶ 36. On July 9, a second request was sent to C/M Adelman which was denied on July 12, due to the receipt of inmate pay. Id. ¶¶ 37-39. On July 15 and 26, Case Officer Barnes and Sgt. Olsen again denied requests for hygiene items, citing Mr. Whitington's choice to spend his money on litigation. Id. ¶¶ 40, 41. Generally, Sgt. Huff and Sgt. Harding (not named as a defendant) are charged with denials of hygiene items for the entire month of July. Id. ¶ 42. During the month of August 2005, C/M Adelman turned Mr. Whitington away again (for the reasons stated above) on August 9, and furnished him with a step I grievance form. Id. ¶¶ 45-47. Finally, with respect to the Limon facility, Warden Estep, Assistant Warden Tornowski, and Captain Lockhart, are alleged to have had authority and oversight over staff and failed to train and direct them regarding indigency and the need to supply hygiene items. Officer Bullard, as a Step III Grievance Officer, is similarly charged with failing to use his authority to correct the hygiene situation. Id. ¶¶ 135, 136.

6 The complaint spells the name "Barns." However, since the correct spelling appears to be "Barnes, " we will use that spelling.

At Fort Lyon, the complaint alleges requests to and denials by C/M Cordova on September 15, October 18, and November 8, 2005. Id. ¶¶ 57, 67, and 75. During those months, Mr. Whitington claims he was without hygiene items most of the time; that his gums were infected and painful; that his front teeth were loose; that he attempted to see the dentist and get antibiotics from a doctor, with no success; that he wrote to Warden Estep about the denials of his requests for hygiene items; and that, successively, Assistant Warden Tornowski and Captain Lockhart (in their capacities as hearing officers) turned down his grievances. Id. ¶¶ 69-76.

From November 15, 2005, to June 2, 2006, while Mr. Whitington was incarcerated at Kit Carson, he alleges intermittent, but not continuous, denial of hygiene items, just an insufficient amount, and (in great detail) insufficient money to purchase hygiene items. Id. ¶¶ 86-123. He did see the dentist during that time and the infection and other problems in his mouth were treated. Id. ¶ 99.7 Also during the period, Officer Bullard, acting as a Step III Grievance Officer, refused to supply or direct prison personnel to supply Mr. Whitington with hygiene items. Id. ¶ 122. No defendant is named who was directly connected with Kit Carson (a privately contracted facility) during the period.

7 As we noted in Whitington I, the complaint does not make a claim for denial or delay of medical or dental care.

On June 2, 2006, Mr. Whitington was transferred to Sterling. The complaint alleges that from April 20 to June 19, he was without hygiene items; but that on June *184 19, C/M Manning furnished him two bars of soap. Id. ¶¶ 127-29. No individuals connected with Sterling are named. But the complaint recites that Mr. Whitington had no money to purchase hygiene items for the month of June. Id. ¶ 131.

Finally, there are general allegations against named defendants Joe Ortiz, the Executive Director of the CDOC, Steven Green, Warden at the Delta Correctional Facility, charged with reviewing the CDOC hygiene policies, and others in authority mentioned above: Warden Estep, Assistant Warden Tornowski, Captain Lockhart, and Officer Bullard. The complaint claims that they abused their authority both in establishing allegedly defective inmate financial accounting policies and in failing to correct their deficiencies, which resulted in Mr. Whitington being charged with having to buy his own hygiene items, even though they knew or should have known he had no ability to do so and still pursue his protected litigation. Id. ¶¶ 133-36.

B.

The complaint places the responsibility for the alleged deprivations on CDOC policies and practices which require virtually all inmates to purchase many basic hygiene items from the canteen and pay for them out of a small stipend placed monthly by the CDOC in inmates' accounts in the inmate banking system. The problem, as recited in the complaint, is that the money deposited in the inmates' accounts is not fully available for hygiene item purchases because it is subject to a variety of deductions and charges. Id. ¶¶ 1-13, 132-34, 142-183. The result, it is averred, is that Mr. Whitington either had to forego exercising his right of access to the courts (resulting in costs and fees deductible from the inmate's account), or, upon exercise of that right, be denied access to basic hygiene items.

The details described in the complaint are as follows. CDOC Reg. 850-14 states that indigent inmates will be furnished basic hygiene items, but, among other things, an inmate will not be classified as indigent if the inmate has received "offender pay" in the preceding thirty days. See, e.g., id. ¶¶ 152-53. In turn, CDOC Reg. 850-03, provides that inmates are expected to work and will be paid according to grade level, but that even inmates who refuse to work will be given inmate pay at the lowest grade with the "pay" being credited by computer to the inmate's account on a monthly basis. See id. ¶¶ 133, 143, 146, 161, 173. That process results in an inmate classification of non-indigency by definition, and shifts to the inmate the responsibility of purchasing his or her own hygiene items. For that purpose the amount of "offender pay" at the lowest grade level is $0.23 per day not to exceed twenty-three days, or a minimum of $5.29 being deposited monthly in an inmate's account. Id. ¶ 43. According to the complaint, the cost of "the minimum of hygiene items (for a month) from the state operated canteen department... (is)... [t]wo tubes of toothpaste at.930 a piece, three soaps at.410 and one pack of razors at $1.19." Id. ¶ 171. That totals $4.29 per month (although the complaint variously refers to $4.32 or $4.34), for purchases. The cost of a toothbrush is not listed.

As indicated above, the problem, as recited in the complaint, is that the monthly "offender pay" deposited into the inmate's account (together with deposits from other sources such as family gifts, for instance) can be immediately subject to deductions and charges for present and preexisting obligations of the inmate. Such things as fines, medical co-pay obligations (which can cost up to $10.00 per visit, id. ¶ 133), *185 postage, and photocopy costs, are charged to the inmate's account even if the charges result in a negative balance. Id. ¶¶ 133, 181-82; CDOC Reg. 200-02. Fifty percent of any deposit into an account having a negative balance is immediately applied to reduce that balance. Compl. ¶¶ 146, 152, 160, 164, 169, 181-182; CDOC Reg. 200-02(IV) (E)(2). The remainder of the deposit is then subject to a further twenty percent reduction for any amounts due for restitution or child support, and a further twenty percent reduction for court filing fees. CDOC Reg. 200-02(IV) (E)(2).8 And, finally, some current charges for copying and postage, for instance, can be delayed from posting to a negative account balance and immediately applied in full to any deposit. According to Mr. Whitington, these charges and deductions have frequently depleted his account to zero, leaving no part of his "offender pay" available for the purchase of hygiene items. Compl. ¶ 164.

8 Colo.Rev.Stat. § 16-18.5-106(2) states that the CDOC "may fix the time and manner of payment for court ordered costs, surcharges, restitution, time payment fees, late fees, and any other fines... resulting from a criminal case" and authorizes the CDOC to "direct that a portion of the deposits into such inmate's bank account be applied to any outstanding balance" from a criminal case. Colo.Rev.Stat. § 16-18.5-106(2) (emphasis added). The only limit on the CDOC's discretion is that "[a]t a minimum, the executive director shall order that twenty percent of all deposits into an inmate's bank account, including deposits for inmate pay shall be deducted and paid toward any outstanding order from a criminal case or for child support." Id. (emphasis added). The CDOC interprets this statute as authorizing it to deduct between 20% and 99.9% of incoming deposits into an inmate's account for payment toward court judgments from a criminal case or for child support. See Backus v. Ortiz, 246 Fed.Appx. 561 (10th Cir.2007), cert. denied, 552 U.S. 1112, 128 S.Ct. 960, 169 L.Ed.2d 752 (2008).

In dozens of paragraphs which will not be repeated here, the complaint details expenses in the foregoing categories and deductions from his account almost week by week during the period of the suit. But there is no month by month listing and identification of outstanding obligations. The complaint does at least give examples. Thus, it is alleged, "[t]he cost for copy and postage fees for the plaintiffs habeus [sic] Corpus and post-conviction pleadings for June and July, 2005 were approximately $71.00. The cost to copy the plaintiffs opening brief to the supreme court was $22.00." Id. ¶ 81. And, with respect to his state action against prison officials, Mr. Whitington alleges that "[t]he cost to copy and send the complaint was approx. $7.00." Id. ¶ 182. Plus, the cost to certify the record was $15.00, the cost to copy and mail the opening brief was $8.00, and the filing fee was $136.00. Id. As a summary, Mr. Whitington alleges that he owes amounts for restitution, filing fees, postage and copying in such sums that even if he did not incur any further such obligations, his account would be in deficit for at least another two years. Id. ¶¶ 168, 181, 182. Thus, he states that his ability to purchase hygiene items was reduced to almost nothing during the period of the suit, and he "will not have enough money to purchase ample soap, toothpaste, and razors for the next 7 months and would never be able to purchase toothpaste or razors because the cost for these items exceeds.690. The plaintiff will only be able to purchase one soap each month that will last about 20 days." Id. ¶ 182.

Yet, despite having his inmate account depleted leaving no or insufficient funds to purchase hygiene items, and despite calling his problem to the attention of the defendants, including the submission of grievances and applications for indigent status, Mr. Whitington alleges that his requests *186 were virtually always denied on the ground that he was receiving "offender pay" during the month (not available to him after deductions and charges) and was choosing to spend his money on litigation rather than hygiene. Id. ¶¶ 13, 15, 25, 26, 28, 38-40, 57, 59, 61, 65-67, 70-72.

C.

The legal actions asserted to be the necessary cause of obligations accruing against Mr. Whitington's account are described in the complaint mostly in general terms. The complaint recites that "[t]he plaintiffs legal postage and copies were encurred [sic] to prosecute his post-conviction claims in his Denver County and Adams County felony convictions, two Habeus Corpuses [sic] challenging his conditions of confinement and for civil complaints challenging violations of the plaintiff civil rights." Id. ¶ 4. The "Previous Lawsuits" section of the complaint lists only one action, apparently a federal suit against a corrections officer claiming excessive use of force. But the other actions referred to above are alluded to elsewhere in the complaint as well. Id. ¶¶ 181, 182.

II. DISCUSSION

As indicated above, the district court dismissed the constitutional violation claim pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. The court's decision regarding the individual defendants, including qualified immunity, rested chiefly upon that determination. The court also denied preliminary injunctive relief, a motion to amend the complaint a second time, and a motion for the appointment of counsel. Mr. Whitington challenges all those rulings.

A. Eighth Amendment

We review de novo a Fed.R.Civ.P. 12(b) (6) dismissal of a complaint. See Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir.2007). Our standard for reviewing the dismissal of a pro se prisoner's complaint for failing to state a claim is solicitous. We must accept as true all the factual allegations contained in the complaint, and liberally construe those allegations in favor of determining that a claim has been stated. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In this exercise, we must be mindful that Fed.R.Civ.P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, " and, further, that "[s]pecific facts are not necessary;... only... fair notice of what the... claim is and the grounds upon which it rests.'" Erickson, 127 S.Ct. at 2200 (further citations omitted). We must interpret the allegations and "any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.'" Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir.2005) (quoting Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.2002)).

1.

It is well established that the Eighth Amendment "imposes duties on... [prison] officials, ... [to] provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care...." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Such duties include provision for basic hygiene. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996) (holding prisoner's claim that prison officials' refusal *187 to provide hygiene items, including access to toothpaste, causing "his gums to bleed and recede and tooth decay" states a claim for a violation of the Eighth Amendment); Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.2008).

But "a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious.'" Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). That is, the deprivation must deny "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Mere discomfort or temporary adverse conditions which pose no risk to health and safety do not implicate the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

And, subjectively, the "prison official must have a sufficiently culpable state of mind.' " Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321). Thus, "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Id. at 837, 114 S.Ct. 1970; Tafoya, 516 F.3d at 916. The subjective requirement is one of deliberate indifference. Wilson, 501 U.S. at 298-303, 111 S.Ct. 2321. See Tafoya, 516 F.3d at 916; Penrod, 94 F.3d at 1405-06.

The district court did not analyze the complaint under the deliberate indifference "to a sufficiently substantial risk of serious damage to... [the inmate's] future health'" standard. Farmer, 511 U.S. at 843, 114 S.Ct. 1970 (quoting Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Nor did the district court address the nature of the legal actions for which Mr. Whitington alleged he had a protected right to incur costs and expenses. See Lewis v. Casey, 518 U.S. 343, 354-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (inmates are entitled to tools to vindicate their constitutional right to access the courts for the purpose of pursuing post-conviction and habeas relief claims, and, to a more limited extent, civil rights claims).

Rather, the district court concluded that there was no deprivation of hygiene items by the defendants at all, but that "Mr. Whitington's own allegations indicate that he has chosen to spend his available funds on postage and copying related to his several lawsuits rather Whitington v. Ortiz, 307 Fed.Appx. 179 (2009) 134 than on hygiene items." R & R at 9, 2007 WL 2907874. Further, the court determined that "[a]s hygiene items are inexpensive, Mr. Whitington had sufficient funds each month to purchase such items." Id. at 10 (citing various paragraphs of the complaint). And, the court determined that "Mr. Whitington's allegations indicate that he purchased and received hygiene items." Id. (also citing various paragraphs of the complaint). Finally, the district court did make the conclusory statement, in the alternative, and without analysis, that Mr. Whitington "has not alleged that Defendants acted with deliberate indifference to his health and safety." Id. at 11.

For the most part, the district court apparently assumed for the purposes of disposition that, as recited in the complaint, Mr. Whitington in fact was without some or all of the hygiene items in question for substantial periods of time; that he suffered physical harm (infections, rashes, and so forth); and that he in fact complained personally to corrections staff about not having hygiene items, and that staff, having been made aware of the lack *188 of hygiene items, directly rebuffed his requests.

Since the district court stopped its analysis at the threshold, concluding that Mr. Whitington's problems were self-inflicted, the deprivations and harms alleged were not, and did not need to be, examined either objectively or, as to each defendant, subjectively.

In support, the district court, justifiably, relied on decisions from our court and other courts, which were adverse to inmate plaintiffs bringing remarkably similar challenges to department of corrections regulations and practices. See Smith v. Cooper, 2 F.3d 1161, 1993 WL 307650 (10th Cir.1993) (unpublished) (framed, on appeal, as an access-to-the-courts issue, but in the district court also claiming that using money for postage left the inmate with no money to buy hygiene items); see also Taylor v. Sebelius, 189 Fed.Appx. 752, 757 (10th Cir.2006) (challenging deduction of obligations from inmate account, leaving insufficient funds to purchase hygiene products); Sellers v. Worholtz, 86 Fed.Appx. 398 (10th Cir.2004) (same); Scott v. Case Manager Owens (SCF), 80 Fed.Appx. 640, 643 (10th Cir.2003) (challenging requirement that inmates who receive pay must purchase their own hygiene items); Owens v. Sebelius, 357 F.Supp.2d 1281, 1285-86 (D.Kan.2005) (lack of hygiene products); Breakiron v. Neal, 166 F.Supp.2d 1110, 1115-16 (N.D.Tex.2001) (challenging health care deductions from inmate's account). In addition, the defendants cite Gross v. Koury, 78 Fed.Appx. 690 (10th Cir.2003) (alleging insufficient funds to buy hygiene products due to litigation expenses).

Each of those cases is distinguishable largely due to vague, inapposite or inadequate factual allegations in the complaints. Thus, in Smith, the court first noted that the inmate failed to support his allegations that he was denied the opportunity to mail legal, as opposed to personal, letters; and, noted that, in any event, having "to choose occasionally between stamps and hygiene items is certainly no more a restriction than that which any indigent pro se non-prisoner must face.'" Smith, 1993 WL 307650, at *4 (quoting Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir.1978)). In contrast, the complaint in the case before us does not claim a denial of access to the courts, and does allege more than an occasional deprivation of hygiene products.

In Gross the inmate did allege actual injury, but without sufficient factual data. Reviewing the complaint, we said:

[T]he crux of his [Gross's] argument rests simply on vague and general allegations that he lacks sufficient funds to cover both the costs of litigation and personal hygiene products. In neither his Amended Complaint nor his appeal brief does he provide any specific allegations as to the actual costs of the hygiene products in comparison to his actual or future litigation costs, or make an allegation that his litigation costs are necessary for the purpose of successfully pursuing his claims.

Gross, 78 Fed.Appx. at 694. As the recitation of facts, above, shows, Mr. Whitington's complaint does not suffer from those deficiencies.

In Scott, unlike this case, the inmate claimed that "prison officials... did not allow him to use one-half of his inmate pay to purchase hygiene products and postage stamps from the prison canteen." Scott, 80 Fed.Appx. at 641. We held, however, that Scott "has not alleged any injury whatsoever, and he was unable to buy hygiene supplies only because he neglected to pay for them when he had available funds in his inmate account." Id. at 643.

*189 In Sellers the inmate mounted a constitutional challenge to the deduction of obligations from amounts deposited in the inmate's account, and claimed a resulting deprivation of hygiene products. We held that deductions were not unconstitutional and that if no money was left in the inmate's account the inmate could apply every month for an indigent package. Here, Mr. Whitington specifically disavows any challenge to the CDOC's right to deduct outstanding financial obligations from an inmate's account. See Appellant's Reply Br. at 10. ("The plaintiff does not and has never claimed that the act of taking any funds from his account and not giving him any funds violated any of his rights....") And, the complaint recites that the defendants largely (there were something like two exceptions) denied applications for an indigent package.

In Owens the district court held that officials could not be deemed to be aware of an excessive risk when the deprivation of hygiene items was only temporary. That is hardly the case here.

[1] In summary, under the standards governing our review, the allegations of Mr. Whitington's complaint, outlined in detail above, state an Eighth Amendment claim for the prolonged denial of hygiene products as a result of the pursuit of constitutionally protected litigation with its associated expenses. We respectfully disagree with the district court's conclusions that, on the face of the complaint, the alleged hygiene deprivation was simply a matter of choosing how to spend limited funds, and that there were sufficient funds in Mr. Whitington's account in any event to purchase hygiene items, or that he in fact received them. We likewise disagree with the conclusion that the complaint does not sufficiently allege deliberate indifference to the situation. Although the exact term was not used, the mental state of at least most of the defendants was directly or by implication alluded to. The complaint does acknowledge that in many, if not most, instances where corrections staff refused Mr. Whitington's requests for hygiene products they did so because of CDOC governing regulations together with a review of Mr. Whitington's account to see if he had received money during the month as well as if the account showed a present balance. That impact on a deliberate indifference analysis was not explored by the district court and, presumably, will be in further proceedings, together with an inquiry into the latitude, if any, accorded corrections staff in working around atypical situations to solve problems.

2.

a. Dismissal of all defendants/no constitutional violation

The district court's conclusion that no Eighth Amendment violation was sufficiently alleged largely controlled the court's rulings with respect to the individual defendants. Including the defense of qualified immunity in its ruling, the district court stated as to all defendants: "Having concluded above that Mr. Whitington has failed to establish a violation of the Eighth Amendment, the court need proceed no further...." R & R at 14. Accordingly, the district court granted motions to dismiss by all defendants, and dismissed the action for failing to state a claim. J., Doc. 127. Since, as indicated above, we conclude that the complaint does state a claim upon which relief may be granted, the omnibus judgment of dismissal in favor of all defendants, and judgment in their favor, on that ground must be reversed. However, dismissals were granted to some individual defendants on other grounds as well.

*190 b. Defendants Tornowski and Lockhart

The district court ruled separately that the complaint, as regards defendants Tornowski and Lockhart, should be dismissed pursuant to Fed.R.Civ.P. 4(m) because they were not served. Mr. Whitington does not dispute that ruling. Accordingly, the dismissals as to those two defendants are affirmed.

c. Executive Director Joe Ortiz

Mr. Whitington sued Director Ortiz both in his official and his individual capacities. Compl. ¶ 141. The magistrate judge concluded that Director Ortiz was immune from a damages claim in his official capacity. R & R at 5-6. The judgment entered by the district court is broad enough to include a dismissal of the complaint as to defendant Ortiz on that ground. J. at 1-2, Doc. 127 (unnumbered dispositive paragraphs one and four). Mr. Whitington does not contest that ruling, and it is affirmed. Mr. Whitington contends on appeal that it was error for the district court to dismiss the complaint as to Director Ortiz in his official capacity for injunctive purposes.9 But neither the magistrate judge nor the district court addressed that claim as to Director Ortiz, although the complaint was dismissed as to him on the ground that no Eighth Amendment violation had been stated. Since we reverse that holding, the action is reinstated as to Director Ortiz in his official capacity solely for potential injunctive purposes. We note that Mr. Ortiz is no longer the Executive Director of the Colorado Department of Corrections. That position is presently occupied by Mr. Aristedes Zavaras, who is automatically substituted for Mr. Ortiz in his official capacity.

9 This court has determined injunctive relief and punitive damages are available under 42 U.S.C. § 1997e(e), regardless of whether actual physical injury occurs. See Perkins v. Dept. of Corrections, 165 F.3d 803. 808 & n. 6 (10th Cir.1999).

[2] As indicated, the complaint states a damages claim against Director Ortiz in his personal capacity. The magistrate judge ruled that the complaint should be dismissed as to Director Ortiz on that claim for failure to state the required personal involvement. R & R at 6-7. And the district court's judgment is broad enough to include such a dismissal.

We agree with the reasoning of the magistrate judge. Individual liability under 42 U.S.C. § 1983, must be based upon personal participation of the individual in the alleged constitutional violation. See Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir.1997); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996). There must be an affirmative link between the alleged constitutional violation and the defendant's own participation or failure to supervise. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.1993).

Mr. Whitington's allegations against Director Ortiz rest almost entirely on the premise that Director Ortiz was responsible for regulations which Mr. Whitington claims are unconstitutional and which, as applied, infringed Mr. Whitington's constitutional rights. Compl. ¶¶ 133, 142-63, 176. The complaint avers that Director Ortiz instituted the policies in question to save the Department money, for administrative convenience, and to discourage inmates from filing legal actions, and seeking medical care for which co-payment obligations are imposed. Id. ¶¶ 133, 159, 163, 186. He claims that Director Ortiz knew or should have known that the regulations in question were unconstitutional or were going to place an unconstitutional burden on all the inmates in the custody of the CDOC (more than 20, 000), including *191 him. Id. ¶¶ 133, 158. Referring to the Gross and Scott cases by their Colorado federal district court docket numbers, he states that such litigation over the same CDOC regulations as those in question here would have put Director Ortiz on notice of the unconstitutionality of those regulations.

First, Mr. Whitington lacks standing to attempt to re-regulate the entire CDOC system, or to sue directly or indirectly on behalf of anyone but himself. See Lewis, 518 U.S. at 349, 116 S.Ct. 2174. To begin with, he must show actual injury to himself. Id. Second, the regulations in question are clearly not unconstitutional on their face. They are a permitted exercise of the State's right to manage its prisons. Id. at 360-61, 116 S.Ct. 2174. Finally, the allegations of the complaint show only a possible indirect involvement of the state prison administration in Mr. Whitington's personal situation, including whether and how much he might choose to incur expenses for litigation. The complaint fails, except for conclusory allegations, sufficiently to allege the necessary direct personal participation by Director Ortiz in Mr. Whitington's claimed injury. For the same reason-conclusory, general allegations -it also fails to connect Director Ortiz to a failure to train corrections personnel resulting in direct injury to Whitington. Certainly the existence of lawsuits over the regulations, especially ones which failed, as Gross and Scott did, does not connect Director Ortiz to participation in Mr. Whitington's affairs, either personally or by way of an alleged failure to train.

Accordingly, the dismissal of the action as to Director Ortiz is affirmed with the exception of the claim against him in his official capacity for possible injunctive relief

d. Steven Green

Mr. Green was warden at the Delta Correctional facility (a facility not involved in this suit) at the time this suit was filed. Mr. Whitington alleges only that Warden Green was delegated to review the CDOC's hygiene policy, and continued to approve the policy even though he knew that deductions from inmates' accounts might leave them without funds to purchase hygiene items. Compl. ¶ 134. There is no allegation of direct personal involvement by Warden Green in Mr. Whitington's situation. The complaint seeks damages in Mr. Green's personal capacity, and makes no claim against him in his official capacity.

For the same reasons that the claim against Director Ortiz fails, the claim against Warden Green is also flawed. However, neither the magistrate judge nor the district court in its order addressed the sufficiency of the complaint as to Warden Green. Accordingly, we make no separate ruling as to him.

e. Al Estep

[3] Mr. Estep was, allegedly, Warden of the Limon and Fort Lyon Correctional Facilities at the times identified in the complaint. Mr. Whitington did not sue him in his official capacity, only in his personal capacity, seeking damages. The magistrate judge concluded that the complaint failed to state a claim against Warden Estep for the same reason that it failed to state a claim against Director Ortiz, i.e., that he was in a position of responsibility over the prisons and staff of those prisons, but had no direct personal participation in Mr. Whitington's situation. Mr. Whitington claims that Warden Estep knew that he had no money to purchase hygiene items and that staff had not given him hygiene items, and also that Warden Estep failed properly to supervise staff. *192 Id. ¶¶ 72, 135. He also claims that he sent written complaints to Warden Estep but that Warden Estep failed to act on them. Id. ¶ 72. Finally, he alleges that, as warden, Mr. Estep knew that the prisons did not have hygiene items on hand because Warden Estep failed to keep an adequate supply of free hygiene items in the prisons.

Normally such allegations would be insufficient to establish the required personal participation, and the fact that Mr. Whitington sent a grievance or written complaint directly to the warden of a large institution would be insufficient to make the necessary link. However, two things make this claim somewhat different. First, although CDOC Reg. 200-02, "Business Services, " provides that the CDOC will control funds belonging to offenders, Reg. 200-2(IV)(A), Reg. 850-03, ch. "Offender Personnel, " ( re "Inmate Pay, ") provides that:

The administrative head, or designee, shall design and make readily available an annual pay plan for disbursement of the inmate pay allocation. The plan may utilize a computerized system for the generation of inmate pay funds to each inmate's account.

Reg. 850-03(IV)(C).

* * *

The administrative head is responsible to remain within the facility allocation for inmate pay. If a facility overspends its inmate pay allocation, the following year's allocation may be reduced by that amount. Extenuating circumstances may allow for relief from this restriction.

* * *

Each facility or unit will design and implement an inmate pay plan that does not exceed the annual allocation and monitor the disbursement of funds on a quarterly basis.

Id. (V)(A) & (C).

Thus, while CDOC Reg. 850-14 provides that inmates who receive "inmate pay" must purchase their own hygiene products, it remains to be seen how much latitude each individual facility might have in the face of the CDOC Inmate Job Classification Manual (which sets the pay grades, with the lowest, Grade 1, permitting no more than $0.23 per day for a maximum of twenty-three days) to place more money in an inmate's account for hygiene purchases. Or, for that matter to claim some latitude in treating an inmate who receives inmate pay that goes to existing obligations as indigent for the purpose of furnishing free hygiene items.

And, second, the complaint repeatedly recites that when corrections staff refused free hygiene products, they did so after reviewing Mr. Whitington's inmate account to determine if he had received inmate pay (hence the interposition of Reg. 850-14), and whether at least some money showed as a balance. These two circumstances at least allow the complaint to cross over the low hurdle for stating a claim against Warden Estep with respect to whether or not he had flexibility to remedy individual inmate account or hygiene problems, assuming a legitimate reason to do so, and whether that flexibility can be shown to have a link to Mr. Whitington's situation. Doubtless that will be cleared up early in further proceedings. However, for now, the judgment dismissing the complaint against Warden Estep is reversed.

f. Thomas Bullard

[4] Officer Bullard, serving as a temporary Step III Grievance Officer, denied Mr. Whitington's grievance regarding the denial of free hygiene items. The complaint named him as a defendant in this action claiming that Officer Bullard was *193 liable for damages because he allegedly failed to investigate the claimed lack of hygiene items, failed to order staff to furnish hygiene items, and failed to furnish them himself even though asked by Mr. Whitington to do so. Compl. ¶ 122. The magistrate judge ruled that such allegations failed to establish the necessary personal participation in Mr. Whitington's situation and recommended that Officer Bullard's motion for summary judgment or, in the alternative, for dismissal of the complaint as to him, be granted. The district court adopted that recommendation and entered a judgment dismissing the complaint as to Officer Bullard.

Mr. Whitington appeals that judgment essentially repeating the allegations of the complaint, including the bare assertion that Officer Bullard had the authority to supply hygiene items and to direct staff to do so as well. There is no allegation that Officer Bullard had any authority with respect to official CDOC policy or that he personally participated in any of the deprivations that led Mr. Whitington to file the grievance in the first place. While the panel decision is not binding on us, we agree with the reasoning in Larson v. Meek, 240 Fed.Appx. 777 (10th Cir.2007), that "the denial of the grievances alone is insufficient to establish personal participation in the alleged constitutional violations." Id. at 780; see also, Downing v. Clinton, No. 05-177, 2006 WL 3054314, *15 (E.D.Wash.2006); Johnson v. G.E.O./Lawton Correctional Facility, No. 04-1407, 2005 WL 2739212 (W.D.Okla.2005).

The judgment of the district court dismissing the complaint as to defendant Bullard is affirmed.

B. Preliminary Injunction/Restraining Order

[5] Mr. Whitington filed a motion for a preliminary injunction or a restraining order "requiring the CDOC to supply the plaintiff with hygiene items in ample supply for each month or the funds to purchase the hygiene from the CDOC canteen department." R & R at 18. The district court denied the motion for multiple reasons, including the fact that it sought the very relief Mr. Whitington could obtain after a full trial, and the motion was a disfavored mandatory injunction which would alter the status quo. The court further found that there was an insufficient showing of a likelihood of success on the merits, there was no showing of irreparable harm, and Mr. Whitington failed to demonstrate that the threatened injury outweighs damage to the opposing party or that the injunction would not be adverse to the public interest. Id.

We review a district court's denial of a preliminary injunction for abuse of discretion, which occurs where the court "commits a legal error or relies on clearly erroneous factual findings, or where there is no rational basis in the evidence for its ruling." Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.2002) (internal citations omitted). The standard for issuance of a preliminary injunction is well established:

To obtain a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) [that] the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and [that] the injunction, if issued, will not adversely affect the public interest.

Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.2007); accord, Country Kids #N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1283 (10th Cir.1996). Mandatory injunctions and injunctions that *194 would disturb, rather than preserve, the status quo are "specifically disfavored"; a party seeking such an injunction bears a "heightened burden" to show that "the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course." O'Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004) (en banc) (per curiam), aff'd, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). "Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003).

Even discounting that part of the district court's reasoning which relied upon its conclusion that no Eighth Amendment claim had been stated, we find no abuse of discretion in its denial of the motion for a preliminary injunction or restraining order. In his brief on appeal, Mr. Whitington largely turns the allegations of his complaint into self-proving facts, arguing that he has been without the hygiene items in question for enormous periods of time resulting in loss of a tooth, surgery on his ums, "contraction [of] Methiecillin-Resistant Staphyclococcus Aureus (MRSA)10 that resulted in multiple serguries [sic], numerous treatments, permanent and disfiguring loss, [and] extensive and sever [sic] pain." Appellant's Op. Br. at 24. All of that remains to be seen.

10 The contract of MRSA is not alleged in the complaint; it appears in Mr. Whitington's brief on appeal.

There is a significant difference between getting over the minimal threshold of dismissal under Fed.R.Civ.P. 12(b)(6) by relying on the bare allegations of the complaint, and thereafter having to prove those allegations. Significantly different standards apply.

A host of questions surround Mr. Whitington's allegations, each requiring proof Mr. Whitington must prove not only the fact and extent of his actual injuries, and the seriousness of them, sufficient to clear the Eighth Amendment hurdle, he must also link any injuries shown to exist to the denial of one or more of the four hygiene items in question. Thus, does a lack of toothpaste cause gum infections, loss of teeth, "MRSA, " permanent and disfiguring loss, surgeries, and permanent pain? Does a lack of a toothbrush, or use of a toothbrush without toothpaste cause such harms? Could scrubbing one's teeth and massaging the gums with a soapy washcloth suffice for oral hygiene which, in any event, goes without dental floss? Is there any link between oral health and lack of soap for washing? And, what link, if any, is there between lack of soap, and bumps and rashes on the skin? Is such linkage, if any, affected by CDOC Reg. 850-11, which requires facilities for three hot showers a week? See CDOC Reg. 850-11(IV)(B)(1).

What link is there between lack of a razor and the harms in question or, for that matter, any requirement for Eighth Amendment purposes? See, e.g., Gross, 78 Fed.Appx. at 694 n. 4 ("Mr. Gross fails to allege why the lack of a razor poses a health or safety risk to him, as required to allege a violation under the Eighth Amendment for inhumane conditions of confinement. Therefore, we find the district court also properly dismissed Mr. Gross' claim with respect to that item.").

Can each of the four hygiene items in question -soap, toothpaste, toothbrush and razor-be looked at in isolation for Eighth Amendment sufficiency, especially when searching for a linkage to claimed damage, or must they always be evaluated *195 in combination because they have a mutually reinforcing effect such as lack of a blanket and a cold cell? See Wilson, 501 U.S. at 304, 111 S.Ct. 2321. It is difficult to see why toothpaste and razors, for instance, must be evaluated together. And, to what extant might Mr. Whitington's infections and other claimed harms be attributable to conditions such as hepatitis C, which he concedes he suffers from, Compl. ¶ 7, or other causes unrelated to the instant matter?

Then, moving from the questions of injury in fact and seriousness, Mr. Whitington must actually prove his lack of funds to buy hygiene items essentially from day to day over thirteen months, or at least from deposit of funds to deposit of funds. That will require an audit of his computerized inmate account for the period, and will include the question of whether there was enough money at any one time to purchase, for instance, a bar of soap at $0.41. And, if soap could have been purchased, how would the lack of the three (or two, or one) remaining items relate to the claimed harms?

Finally, there remains the significant category of Mr. Whitington's claimed protected litigation and associated costs, and the relationship of that category to the question of whether Mr. Whitington was choosing to spend his money on elective, not protected litigation, rather than hygiene. Both that litigation and the extent of the costs of that litigation are in question. For example, Mr. Whitington's description of two of his actions as proceedings in habeas corpus "challenging his conditions of confinement, " id. ¶ 4, are problematic on their face.

With respect to a right of access to the courts, the Supreme Court has emphasized that such a right "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slipand-fall claims." Lewis, 518 U.S. at 355, 116 S.Ct. 2174. Furthermore, inmates do not have a right to file excessive motions, pleadings, exhibits or other documents simply because they either do not understand the rules or because they are inclined to keep pressing their case with afterthoughts, continuing argument, new examples or events, or the like.

In the category of deliberate indifference and qualified immunity, questions arise as to the culpable mental state of corrections personnel who are simply following regulations, who can see on the computer that Mr. Whitington received money during the month and, presumably, chose not to buy hygiene products with it. Are such personnel equipped to evaluate litigation expenses as relating or not relating to protected challenges to an inmate's sentence, or a protected conditions of confinement claim? See, id. at 361, 116 S.Ct. 2174. Only a narrow class of legal actions is protected. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355, 116 S.Ct. 2174. Not every push, shove, annoyance or inconvenience qualifies for a conditions of confinement suit. "It is the role of courts to provide relief to claimants... who have suffered, or will imminently suffer, actual harm." Id. at 349, 116 S.Ct. 2174. Costs and expenses relating to actions which are not constitutionally protected cannot be offset against amounts available for the purchase of hygiene products.

Considering the standards applicable to the grant of a preliminary injunction, and the deference we must accord a decision by the district court to deny a motion for such an injunction, together with the open questions such as the ones above, which *196 must be resolved before any claim to relief is sufficiently clear, we have no difficulty affirming the denial of Mr. Whitington's motion for a preliminary injunction or restraining order in this case.

C. Denial of Motion to Amend

[6] The district court denied Mr. Whitington's motion for leave to file a second amended complaint. Mr. Whitington appeals that decision contending that the various technical reasons cited by the district court are in error and that the amendment merely supplements the first amended complaint, especially so since there were copying and page limit restrictions that hampered Mr. Whitington's filings.

"We review the denial of a motion to amend for abuse of discretion." Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir.2007). Under Fed.R.Civ.P. 15(a)(2), "[r]efusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of the amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993).

The district court, among other reasons, cited undue prejudice to the defendants as a ground for denying the motion to amend. That was not an abuse of discretion. Mr. Whitington's first amended complaint added several months, additional defendants, and a fourth correctional facility, Sterling, to the litany of claimed deprivations, stretching the complaint to an alleged 230 days of deprivation out of thirteen months. His proposed second amended complaint would add more time periods, more defendants, and more focus on Sterling, stretching the alleged deprivation period to be addressed by all defendants in one way or another from 230 days out of thirteen months to twenty-two months out of twenty-six months, allegedly without hygiene. Appellant's Op. Br. at 12, 15, 16, 22. Or, 384 days out of 545 days. Id. at 24.

This ambitious goal of ongoing amendments corresponding to an alleged ongoing violation has no logical ending point short of the final judgment resolving the case. And each amendment with its additional allegations and circumstances forces the defendants to reevaluate and correlate their responses and defenses. This case, with its more than 200 numbered and unnumbered paragraphs, and numerous associated documents, and additional filings with yet more documents and allegations (the docket sheet in the district court alone runs to 134 entries, and that is only at the complaint stage), is already unwieldy. The complaint before us amply circumscribes the cause of action alleged and relief sought. As stated above, the district court did not abuse its discretion in drawing the line.

D. Denial of Motion for Appointed Counsel

The district court denied Mr. Whitington's motion for the appointment of counsel to assist him, but did so on the ground that it was premature. We review a district court's "refusal to appoint counsel for an indigent prisoner in a civil case for abuse of discretion. The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.2004) (quotation and citation omitted); see Steffey v. Orman, 461 F.3d 1218, 1223-24 (10th Cir.2006).

After the district court denied the motion for counsel as premature, Mr. Whitington did not renew his request at any later point in the proceedings. On appeal, Mr. Whitington does not reference the district *197 court's ruling that his motion was premature. Instead, he simply argues that the district court should have appointed counsel for the reasons stated in the motion, and, because, as he now claims on appeal, he has a serious mental disability.

If for no other reason than Mr. Whitington's prolific litigation, which demonstrates a significant level of sophistication, he fails to show that the district court abused its discretion. More to the point, however, since the district court's ruling was preliminary and Mr. Whitington did not pursue the matter, the denial of the motion in question is affirmed.

III. CONCLUSION

The district court's judgment dismissing all defendants on the ground that no Eighth Amendment claim has been stated is REVERSED. To the extent the judgment may be read as dismissing the complaint as to defendant Ortiz in his official capacity solely for injunctive purposes, it is REVERSED. The judgment dismissing the damages claims as to Director Ortiz in his personal and official capacities is AFFIRMED. The judgment dismissing the complaint as to defendant Estep is REVERSED. The judgment dismissing the complaint as to defendant Bullard is AFFIRMED. The dismissal of the action as to defendants Tornowski and Lockhart is AFFIRMED. The denial of Mr. Whitington's motion for a preliminary injunction or restraining order is AFFIRMED. The denial of Mr. Whitington's motion for leave to file a second amended complaint is AFFIRMED. The district court's denial of Mr. Whitington's motion to appoint counsel on the ground that it was premature is AFFIRMED.

We GRANT Mr. Whitington's motion for leave to proceed on appeal without prepayment of costs or fees, reminding Mr. Whitington of his continuing obligation to make such payments until the entire fee has been paid in full. We DENY Mr. Whitington's "Motion to Submit Additional Evidence To Support Appellantns Request For Oral Arguments Or To File Written Statements Regarding The Customs and Policies Of The CDOC Inmate Banking System."

The case is remanded for further proceedings consistent with this opinion.

Parallel Citations

2009 WL 74471 (C.A.10 (Colo.))


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