United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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).
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. ...