United States District Court, D. Colorado
Edward Allen, #122690, also known as Edward Clutts, Plaintiff, Pro se, Canon City, CO.
For Warden Falk of Sterling Correctional Facility, Defendant: Jacquelynn Nichole Rich Fredericks, LEAD ATTORNEY, Colorado Attorney General's Office, Denver, CO.
TO THE CASE MANAGER/INMATE COORDINATOR OF: Edward Allen, Interested Party, Pro se, Canon City, CO.
RECOMMENDATION ON (1) DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (DOC. 12) OR ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT (Docket No. 25); (2) PLAINTIFF'S SECOND MOTION PERSENT [sic] FRCP [sic] 65 (Docket No. 27); and (3) PLAINTIFF'S MOTION FOR JOINDER OF PARTIES (Docket No. 42)
MICHAEL J. WATANABE, United States Magistrate Judge
This case is before the undersigned pursuant to an Order of Reference to United States Magistrate Judge entered by Judge R. Brooke Jackson on October 24, 2014 (Docket No. 31).
The pro se incarcerated plaintiff raised three claims against thirteen defendants in his Amended Complaint brought pursuant to 42 U.S.C. § 1983. (Docket No. 12). However, following an Order issued by Judge Lewis T. Babcock (Docket No. 16 at 10), only one defendant and one claim remain, namely, plaintiff's Eighth Amendment claim against Defendant Warden Falk of Sterling Correctional Facility (claim three) (Docket No. 12 at 9; see Docket No. 24 amending caption to reflect Falk's name) in which plaintiff alleges the following.
In July 2004 plaintiff was sentenced to three concurrent terms of ten years to life, and the sentencing court stated that it could not order the plaintiff to take sex offender treatment. On or about August 15, 2004, plaintiff's case manager Mr. Jones informed plaintiff he was recommending the sex offender treatment program, and if plaintiff did not cooperate, plaintiff would be moved to a place where " things can be done." In 2005 the sex offender treatment program sent plaintiff a form which required him to confess a crime, which he refused to sign. He was thus deemed to be in denial and noncompliant with sex offender treatment.
Over the past ten years, plaintiff has been placed in several facilities where security threat group (STG) prisoners have threatened, beaten, and attempted to extort and kill him. On July 31, 2009, he arrived at Sterling Correctional Facility (" SCF"). He had already filed a civil case (Case No. 08-cv-02506-ZLW-BNB) about the violence he had already experienced, which was ultimately dismissed as frivolous. In that case, Magistrate Judge Boland conducted a hearing during which plaintiff informed the court he was still living under the threat of violence. After the hearing, plaintiff was moved to Living Unit 4 (" LU4") by the Warden/Designee of SCF. Plaintiff was housed in a cell with an inmate who informed him that if he stayed in that cell without a fight with the plaintiff, his boys would beat him down. That inmate was moved to another cell. Then inmate Zamora was moved in, and he also had gang affiliations. Plaintiff went to Sergeant Buckner on several occasions, but Buckner refused to move plaintiff. Zamora came back into the cell and starting hitting plaintiff until a voice came over the speaker stating, " Zamora you and Clutts stop your shit and you pack up your [sic] moving." On August 12, 2011, prisoner Edward Douglas snuck up behind the plaintiff with a lock in a sock and beat the plaintiff. On April 25, 2012, inmate Windschel attacked plaintiff in the " gang pod" where plaintiff was being housed.
Since 2008, after the hearing held by Judge Boland, plaintiff has suffered scars on his face, a broken rib, and a lost tooth. The Attorney General's Office has refused to do anything about the threats of violence. The Warden/Designee has gone out of his way to place plaintiff in with STG prisoners. Plaintiff has been told he will be protected from STG prisoners if he takes sex offender treatment. It violates plaintiff's Eighth Amendment right to not protect him from other prisoners. It is common knowledge that sex offenders are attacked, beaten, extorted, and killed by STG prisoners.
Plaintiff seeks injunctive relief in the form of a restraining order preventing the CDOC from placing him in a facility with STG prisoners. He also seeks declaratory relief and punitive and compensatory damages.
Now before the court for a report and recommendation are the following three motions: (1) Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 12) or Alternatively, Motion for Summary Judgment (Docket No. 25); (2) Plaintiff's Second Motion Persent [sic] FRCP [sic] 65 (Docket No. 27); and (3) Plaintiff's Motion for Joinder of Parties (Docket No. 42). Responses have been filed with respect to the first two motions (Docket Nos. 32 and 35). Defendant filed a reply in support of his motion (Docket No. 37). Plaintiff just filed an untimely reply in support of his motion for a temporary restraining order (" TRO") (Docket No. 44). The court has considered these motions, the responses thereto, the replies, and applicable case law and statutes. In addition, the court has taken judicial notice of the court file and plaintiff's other civil actions in this court. The court now being fully informed makes the following findings, conclusions of law, and recommendations.
Defendant's Motion to Dismiss or for Summary Judgment
Defendant moves to dismiss the Amended Complaint (Docket No. 12) pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the following grounds: (1) plaintiff failed to exhaust his administrative remedies and his claim should thus be dismissed pursuant to the Prison Litigation Reform Act (" PLRA"), (2) his claim is largely time-barred, (3) Falk is entitled to Eleventh Amendment immunity, (4) plaintiff fails to allege personal participation on behalf of Falk, (5) plaintiff fails to state an Eighth Amendment claim; (6) Falk is entitled to qualified immunity, and (7) plaintiff fails to state a claim for damages. The only argument alternatively brought pursuant to Fed.R.Civ.P. 56 is number 1, the non-exhaustion argument.
empowers a court to dismiss a Complaint for " lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them authority to hear. See U.S. CONST. art. III, § 2; Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir. 1994). Statutes conferring jurisdiction on federal courts are to be strictly construed. See F & S Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). A Rule 12(b)(1) motion to dismiss " must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th ...