United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Craig B. Shaffer United States Magistrate Judge
This civil action comes before the court on: (1) Defendants’ “Motion to Dismiss or Alternatively for Summary Judgment, ” and (2) Mr. Medina’s “Motion of Appeal of [A]cceptance Re: 42 U.S.C. § 1983 Civil Complaint.” The case was directly assigned to this Magistrate Judge pursuant to 28 U.S.C. § 636(c) and D.C. COLO. LCivR 72.2. (See Order of Reference Pursuant to 28 U.S.C. § 636(c) (Doc. # 45)). The court has reviewed the Motion, Mr. Medina’s Response (filed June 25, 2015) (Doc. # 46), Defendants’ Reply (filed July 28, 2015) (Doc. # 51), the pleadings, the exhibits and affidavits, the entire case file, and the applicable law, and is sufficiently advised in the premises.
I. Statement of the Case
Mr. Medina is currently incarcerated at the Arkansas Valley Correctional Facility (“AVCF”) of the Colorado Department of Corrections (“CDOC”) in Ordway, Colorado. At the time of the filing of this civil action, he was incarcerated at the Sterling Correctional Facility (“SCF”) of the CDOC in Sterling, Colorado. Mr. Medina commenced this case in forma pauperis and in his pro se capacity on November 10, 2014. (See Prisoner Complaint (Doc. # 1), Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (Doc. # 16), “Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915” (Doc. # 18)). At the court’s direction, Mr. Medina filed amended pleadings on November 24, 2014 and February 6, 2015. (See Orders (Docs. # 4, # 11, # 14), amended pleadings (Docs. # 10, # 12, # 15)). On March 16, 2015, the court entered an order dismissing Defendant Denver Parole Office and Claim Two, and finding Claim Three to be merely “a restatement of the allegations he asserts in Claim One.” (See “Order to Dismiss in Part and to Draw in Part” (Doc. # 20)). The court ordered that “the only claims that remain involve visitation, disrobing, denial of association, and unnecessary force, which are properly addressed as a violation of Plaintiff’s Fourth Amendment rights.” (See id., Second Amended Complaint (“SAC”) (Doc. # 15)). Mr. Medina seeks as relief that Defendants “be relieved of their position” and that he be “financial[ly] compensate[ed].” (See Doc. # 15 at 9 of 9).
II. Standard of Review
Defendant moves to dismiss the SAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction over the subject matter.” Defendant’s assertion of Eleventh Amendment immunity constitutes a challenge to the allegations of subject matter jurisdiction in the SAC. See Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (“an assertion of Eleventh Amendment immunity concerns the subject matter jurisdiction of the district court”); Fent v. Okla. Water Res. Bd., 235 F.3d 553, 559 (10th Cir. 2000) (“Once effectively asserted [Eleventh Amendment] immunity constitutes a bar to the exercise of federal subject matter jurisdiction.”) (original emphasis omitted)). As the party asserting jurisdiction, Mr. Medina bears the burden of establishing that this court has jurisdiction to hear his claims. See Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (“Mere conclusory allegations of jurisdiction are not enough; the party pleading jurisdiction must allege in his pleading the facts essential to show jurisdiction.”) (internal quotation marks and citations omitted).
Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted."
In reviewing a motion to dismiss, this court must look for plausibility in the complaint. Under this standard, a complaint must include enough facts to state a claim to relief that is plausible on its face. The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Corder v. Lewis Palmer School Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009) (internal quotation marks and citations omitted). The burden is on the plaintiff to frame “a complaint with enough factual matter (taken as true) to suggest” that he is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).
Defendants move for summary judgment on the ground that Mr. Medina failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. § 1997e(a). After Jones v. Bock, 549 U.S. 199 (2007), a failure to exhaust administrative remedies constitutes an affirmative defense which must be pled and proved by defendants. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir.2007).
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. A dispute is “genuine” if the issue could be resolved in favor of either party. A fact is “material” if it might reasonably affect the outcome of the case.
A movant who does not have the burden of proof at trial must show the absence of a genuine fact issue. By contrast, a movant who bears the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. All the evidence must be viewed in the light most favorable to the party opposing the motion. However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence.
Wausau Business Ins. Co. v. U.S. Motels Management, Inc., 341 F.Supp.2d 1180, 1182-83 (D.Colo.2004) (citations omitted).
Because Mr. Medina 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). 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”). “The Haines rule applies to all proceedings involving a pro se litigant, including . . . summary judgment proceedings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) citations omitted). However, the court cannot be a pro se litigant's advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 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 Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court’s role is not to act as pro se litigant’s advocate). The court should not “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) (citation omitted).
In his remaining claim, Mr. Medina alleges that;
. . . in 2005, when he was serving a two-year parole sentence for escaping from a mental institution, and in 2013, when he again was serving parole, Defendant Julie David harassed and mentally tortured him in violation of his Eighth Amendment rights. Plaintiff further asserts that Defendant David was offended by Plaintiff’s relationship with a “veteran officer, ” harassed Plaintiff and his wife by making comments about their relationship and making visits to their residence late at night, but then discontinued the harassment after Plaintiff’s wife assisted Defendant David with the licensing of her motorcycle at the DMV where she worked. Plaintiff contends that Defendant David felt “exposed” by the Plaintiff’s wife helping her, may have feared retaliation, and “backed off.” Then again in 2013, when Plaintiff was released to parole, Defendant David, along with Defendant Genie Cannahan, were the parole officers who transported him from the Denver Rehabilitation and Diagnostic Center. Id. Plaintiff contends that Defendant David shoved him into the vehicle and told Defendant Cannahan that Plaintiff is a narcissistic punk with too much power and connections, and that he is a thug who compromises “cops.” Plaintiff further asserts that Defendant Cannahan then intentionally isolated Plaintiff from his support system, by not allowing Plaintiff to attend his brother’s funeral service, participate in Christmas celebrations, and to be at the family business. Defendant Cannahan further required Plaintiff to partially disrobe on one occasion. Id. Finally Defendants Cannahan and David used their position to terrify him and mentally torture him, resulting in Plaintiff “doing something to jeopardize his parole [sic].”
(See “Order to Dismiss in Part and to Draw in Part” (Doc. # 20) ...