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Walker v. Firman

United States District Court, D. Colorado

October 17, 2017




         Defendants seek to dismiss Plaintiff Edmond Walker's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or in the alternative, an order granting summary judgment in their favor. The Honorable R. Brooke Jackson referred Defendants' motion to this Court for report and recommendation. Defendants contend that all but two of Mr. Walker's causes of action fail to state a claim. Furthermore, Defendants argue Mr. Walker failed to exhaust his available administrative remedies for each of the incidents underlying his claims. As such, Defendants request that Mr. Walker's Amended Complaint be dismissed in its entirety.

         The Court recommends converting Defendants' motion to one for summary judgment and finding that Mr. Walker failed to exhaust his administrative remedies for all but one incident underlying his due process claim and one allegation giving rise to his retaliation claim. Proceeding to the merits of these two causes of action only, the Court finds that Mr. Walker fails to state a due process claim. Next, the Court finds that Mr. Walker's allegations, taken as true, plausibly state a claim for First Amendment retaliation. However, because Mr. Walker does not plead a physical injury, the Court recommends dismissing his claim for compensatory damages. As such, the Court respectfully recommends granting in part and denying in part Defendants' motion.


         Mr. Walker is a pre-trial detainee confined at the Denver County Jail. Am. Compl. 2, ECF No. 37; Defs.' Mot. to Dismiss 2, ECF No. 61. Mr. Walker initiated this case on September 1, 2016, alleging various constitutional violations arising from incidents occurring during his incarceration. Compl., ECF No. 1. Before Defendants were served with Mr. Walker's Complaint, the Honorable Gordon P. Gallagher directed Mr. Walker to file an amended complaint on two separate occasions. ECF Nos. 19, 31.

         Mr. Walker filed the operative Amended Complaint in response to Judge Gallagher's second order. Mr. Walker first asserts a claim for denial of procedural due process. Id. at 6. According to Mr. Walker, Defendants violated his due process rights when they placed him in disciplinary segregation without any procedure on five separate occasions. Id. at 4, 10-11. Mr. Walker's second claim alleges Defendants retaliated against him for filing lawsuits and administrative grievances. Id. at 5. Specifically, Mr. Walker contends: (1) Captain Romero placed him in a cell with feces on the floor and walls; (2) Sheriff Blaine punched him in the back and subsequently denied him medical attention and free time; (3) Captain Romero had him assaulted by other inmates; (4) Sheriff Simon “banged” on his cell door with a flashlight; (5) Sheriff Shuder destroyed his property; and (6) Sheriff Mozatti put him in disciplinary segregation, had his free time revoked, and made continuous death threats. Id. at 7, 12-14. Lastly, Mr. Walker asserts a claim for prosecutorial misconduct arising out of the District Attorney's alleged falsification of evidence. Id. at 8.

         On May 19, 2017, the Honorable Lewis T. Babcock issued an order dismissing Mr. Walker's Amended Complaint in part. ECF No. 41. Judge Babcock dismissed Mr. Walker's due process claim as to Defendants Denver, Blaine, Simon, Shuder, and Nathaniel for failure to allege personal participation. Id. at 4. Next, Judge Babcock found that Mr. Walker did not state a retaliation claim against Defendants Denver, Simon, and Nathaniel. Mr. Walker did not allege Denver and Nathaniel took any retaliatory conduct, and the assertion that Sheriff Simon “banged” on Mr. Walker's cell door is not “an adverse action sufficient to chill a person of ordinary firmness from exercising his protected rights.” Id. at 5. Furthermore, Judge Babcock dismissed Mr. Walker's malicious prosecution claim as barred by absolute immunity. Id. at 5-6. However, the order declined to address the merits of the due process claim against Firman, Romero, and Mozatti and the retaliation claim against Firman, Romero, Blaine, Shuder, and Mozatti. Id. at 3-4. Judge Babcock then assigned the case to a District Judge and a Magistrate Judge pursuant to D.C. Colo. LCivR 8.1(c) and D.C. Colo. LCivR 40.1. Id.

         After the United States Marshals Service served the remaining Defendants with the Amended Complaint, Defendants filed the present Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. ECF No. 61. Defendants first argue Mr. Walker does not allege sufficient facts to demonstrate that his placement in disciplinary segregation deprived him of a liberty interest. Id. at 7-9. Next, Defendants contend that to the extent Mr. Walker asserts a conditions of confinement claim, the Amended Complaint does not establish that Defendants' actions were sufficiently serious. Id. at 9-13. Defendants also assert that Mr. Walker has not stated a supervisory liability claim against Sheriff Firman. Furthermore, Defendants contend that even if Mr. Walker states a claim, the Prison Litigation Reform Act (“PLRA”) precludes him from receiving compensatory damages, because he does not allege a physical injury. Id. at 15.

         In the alternative, Defendants argue the Court should convert the present motion to one for summary judgment and dismiss this case for failure to comply with the PLRA's exhaustion requirement. Id. at 16-18. In support of their argument, Defendants attach the declaration of Bryan Moore-an inmate management major at the Denver Sheriff Department. Decl. of Bryan Moore ¶¶ 2-3, ECF No. 61-1. Major Moore is responsible for coordinating, directing, monitoring, and reviewing inmate grievances. Id. ¶ 4. Major Moore's declaration explains the grievance procedure at the Denver Sheriff Department and states that Mr. Walker did not complete the full process for many of the incidents giving rise to his claims. Id. ¶¶ 5-14. Because the PLRA's exhaustion requirement is mandatory, Defendants contend the Court should dismiss this case for failure to exhaust. Defs.' Mot. to Dismiss 18.

         Mr. Walker filed two documents in response to Defendants' motion. First, Mr. Walker submitted a Sworn Affidavit, which generally restates the allegations Mr. Walker made in his Amended Complaint. ECF No. 69. Second, Mr. Walker filed a Motion to Deny Defendants' Motion. ECF No. 72. Mr. Walker argues the Court should excuse his failure to exhaust, because Defendants threatened him with physical force. Id. at 1-2. Further, Mr. Walker contends that he need not plead a physical injury to collect compensatory damages for his First Amendment retaliation claim. Id. at 4.


         I. Fed.R.Civ.P. 12(b)(6)

         “To 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.

         Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (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.

         II. Fed.R.Civ.P. 56

         A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is 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). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

         If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”); Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

         III. Dismissal of a Pro Se Plaintiff's Complaint

         A 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. ...

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