United States District Court, D. Colorado
Michael E. Hegarty United States Magistrate Judge.
the Court is Defendants' Motion to Dismiss Second Amended
Complaint in Part Pursuant to Fed.R.Civ.P. 12(b)(1) and (6)
[filed February 27, 2017; ECF No. 74]. The Motion is
adequately briefed, and the Court finds that oral argument
will not assist in the adjudication of the Motion.
Plaintiff's claims arise out of his interactions with
Defendants during his incarceration at San Carlos
Correctional Facility (“SCCF”). Defendants assert
they are entitled to qualified immunity over Plaintiff's
second, third, eighth, and ninth causes of action. For the
following reasons, Defendants' Motion is granted in part
and denied in part.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in the Second Amended
Complaint, which are taken as true for analysis under
Fed.R.Civ.P. 12(b)(6). See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
September 3, 2014, while Plaintiff was incarcerated at SCCF,
Defendant Martinez refused to provide Plaintiff with his
nightly dinner tray. Second Am. Compl. ¶ 14. Despite
Plaintiff's repeated requests for the tray, Martinez
stated that Plaintiff refused his meal. Id. Instead
of reporting the refusal, as prison policy requires, Martinez
falsified documents to represent that Plaintiff received his
nightly meal. Id. at ¶¶ 15, 17. As a
result, Plaintiff experienced significant hunger and had
difficulty sleeping. Id. at ¶ 18.
two weeks later, on September 15, 2014, Defendant
Koprivinikar placed Plaintiff on an emergency mental health
watch. Id. at ¶ 44. During the watch, Dr.
Koprivinikar administrated a variety of medications
involuntarily to Plaintiff. Id. at ¶¶
next day, Plaintiff was brought out of his cell to be
transported to a different facility pending his release to
parole. Id. at ¶ 56. Plaintiff repeatedly
requested that Defendants Larimore and Travis provide him
with his prescription eyeglasses, because he could see no
more than four inches without them. Id. at
¶¶ 56-57, 62. Instead of ensuring Plaintiff
received his glasses, Larimore ordered that Plaintiff be
given a spit mask. Id. at ¶ 57. Plaintiff did
not receive his glasses until December 2014-over three months
after the original incident. Id. at ¶ 59.
During the time that Plaintiff was without his glasses, he
prepared for and appeared in court without the benefit of his
vision. Id. at ¶ 62. When Plaintiff eventually
returned to SCCF on March 11, 2015, Travis told him that the
glasses were in his desk drawer the entire time. Id.
at ¶ 60.
on these factual allegations, Plaintiff filed his Second
Amended Complaint on February 13, 2017. ECF No. 69. Plaintiff
alleges nine causes of action against Defendants in their
individual capacities for violations of his constitutional
rights. Id. at ¶¶ 13, 19, 23, 49, 54, 66,
69. However, only Plaintiff's second, third, eighth, and
ninth claims are relevant to the Court's present
analysis. Plaintiff's second cause of action asserts a
First Amendment retaliation claim against Martinez for
allegedly depriving Plaintiff of a food tray. Id. at
¶¶ 14-19. Plaintiff's third claim contends
Martinez violated Plaintiff's substantive due process
rights by covering up facts surrounding the food tray denial.
Id. at ¶¶ 20-23. Plaintiff brings his
eighth claim against Travis and Larimore for denying
Plaintiff his prescription eyeglasses in violation of the
First and Eighth Amendments. Id. at ¶¶
55-66. Lastly, Plaintiff asserts his ninth cause of action
against Dr. Koprivinikar for violating his Ninth Amendment
right to privacy. Id. at ¶¶ 67-69.
responded to the Second Amended Complaint by filing the
present Motion to Dismiss in Part. Defs.' Mot. to
Dismiss, ECF No. 74. Defendants claim they are entitled to
qualified immunity over each of the four claims outlined
above. Id. Defendants contemporaneously filed an
Answer to the five claims not contested in the Motion to
Dismiss. Answer, ECF No. 75. Plaintiff responded to
Defendants' Motion on March 17, 2017. ECF No. 78.
Defendants did not file a Reply.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
Dismissal of a Pro Se Plaintiff's Complaint
federal court must construe a pro se plaintiff's
pleadings “liberally” and hold the pleadings
“to a less stringent standard than formal pleadings
filed by lawyers.” Smith v. United States, 561
F.3d 1090, 1096 (10th Cir. 2009). “[The] court,
however, will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on plaintiff's behalf.” Id. (citing
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997)). The Tenth Circuit interpreted this rule to mean:
[I]f the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so despite the plaintiff's failure to cite proper
legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity
with pleading requirements.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, this interpretation is qualified in that it
is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.”
Id.; see also Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989) (“[W]e will not supply additional
facts, nor will we construct a ...