United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Defendants' Motion
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
[#69] (the “Motion”). Plaintiff
filed a Response [#82] in opposition to the Motion [#69], and
Defendants did not file a reply before the time for doing so
elapsed. Pursuant to 28 U.S.C. § 636(b)(1) and
D.C.COLO.LCivR 72.1(c)(3), the Motion has been referred to
the undersigned for recommendation. See [#70]. The
Court has reviewed the Motion, the Response, the entire case
file, and the applicable law, and is sufficiently advised in
the premises. For the reasons set forth below, the Court
respectfully RECOMMENDS that the Motion
[#69] be GRANTED.
who proceeds pro se,  is a prisoner in the custody of the
Colorado Department of Corrections (“CDOC”) at
the Sterling Correctional Facility. He initiated this action
pursuant to 42 U.S.C. § 1983 against various prison
officials on August 11, 2016. Compl. [#1]. On
December 6, 2016, Plaintiff filed the Second Amended
Complaint [#24], which is the operative pleading. Plaintiff
challenges the replacement of his prescription eyeglasses
with state-issued eyeglasses that he alleges are inadequate.
He also challenges certain restrictions placed on his access
to the prison's law library and his legal materials, and
the alleged search and seizure of his property. See
id. at 36-50. The specific allegations will be discussed
in the Analysis below.
essentially brings seven claims: (1) blocked access to the
courts in violation of the First Amendment; (2) seizure of
his materials in violation of the Fourth Amendment; (3)
denial of due process and equal protection with regard to
accessing his legal files; (4) violations of his right to
confidentiality; (5) retaliation in violation of the First
Amendment; (6) medical deliberate indifference in violation
of the Eighth Amendment; and (7) unconstitutional policies
concerning administrative remedies. Plaintiff requests
declaratory and injunctive relief and money damages.
Id. at 55-60.
January 26, 2017, Defendants Vorwald, Deal, Reynolds,
Sanchez, Jacobson, Holst, DeCesaro, Ward, and Coffman were
dismissed with prejudice as legally frivolous due to lack of
personal participation. Order to Dismiss in Part and to
Draw Case [#29] at 4. Additionally, to the extent that
Plaintiff seeks money damages against the individual
Defendants in their official capacities, those claims were
dismissed as barred by sovereign immunity. Id. On
July 18, 2017, Defendant Samora was dismissed without
prejudice for failure to serve. Order [#94] at 11.
Defendants now seek to dismiss the remainder of
Plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(6).
Standards of Review
Federal Rule of Civil Procedure 12(b)(6)
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact ‘to state a claim to relief that is
plausible on its face.'” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must
plead sufficient facts, taken as true, to provide
‘plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations.”
(quoting Twombly, 550 U.S. at 570)). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n][
]that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second
brackets added; citation and internal quotation marks
immunity, in certain circumstances, protects government
officials from litigation when they are sued in their
individual capacities. See, e.g., Harlow v.
Fitzgerald, 457 U.S. 800, 814-18 (1982). A government
official is entitled to qualified immunity from liability for
civil damages when his or her allegedly unlawful conduct did
not violate any of the plaintiff's statutory or
constitutional rights that (1) were “clearly
established” at the time of the conduct, and (2) would
have been known to a reasonable person in the official's
position. Harlow, 457 U.S. at 818. A government
official is entitled to qualified immunity in “[a]ll
but the most exceptional cases.” Harris v. Bd. of
Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997).
threshold inquiry is whether the facts taken in the light
most favorable to the plaintiff sufficiently allege a
constitutional violation. Saucier v. Katz, 533 U.S.
194, 201 (2001). “If no constitutional right would have
been violated were the allegations established, there is no
necessity for further inquiries concerning qualified
immunity.” Id. However, “if a violation
could be made out on a favorable view of the parties'
submissions, ” a court must “ask whether the
right was clearly established.” Id.; see
also Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(holding that although qualified immunity determination
involves a two-part inquiry, if the plaintiff fails either
inquiry reviewed in any order, no further analysis need be
undertaken and qualified immunity is appropriate).
Claim One: First Amendment Right to Access the
Claim One, Plaintiff alleges that Defendant Anderson has
denied him access to and has threatened to delete legal
documents that he created from the prison computer system.
Second Am. Compl. [#24] at 36, 37. Allegedly,
Defendant Anderson has told him that the documents look like
notes, which are not allowed to be printed or stored on the
system. Id. at 37. He further alleges that he has
been “denied access to print-outs and copies on
frivolous grounds, ” including unreasonable page
limitations. Id. He also states that he has been
denied access to law library appointments and the law library
work station. Id. at 36. Specifically, he complains
that there are fourteen work stations shared among 1, 200
prisoners, Plaintiff has faced delays of up to six weeks
between appointments, and that Defendant Anderson schedules
Plaintiff for “assisting” other inmates more
frequently than scheduling him to work on his own documents.
Id. at 15, 16.
to the courts is a fundamental right protected by the
Constitution, including the First Amendment right to petition
the government for redress of grievances. Nordgren v.
Milliken, 762 F.2d 851, 853 (10th Cir.1985). To
successfully raise such a claim, “a prisoner must
demonstrate actual injury from interference with his access
to the courts - that is, that the prisoner was frustrated or
impeded in his efforts to pursue a nonfrivolous legal claim
concerning his conviction or conditions of
confinement.” Gee v. Pacheco, 627 F.3d 1178,
1191 (10th Cir. 2010) (citing Lewis v. Casey, 518
U.S. 343, 351-55 (1996)).
Defendants argue, the pleadings fail to articulate any actual
injury in support of Plaintiff's claim. Motion
[#69] at 7. Plaintiff asserts that he “has recently
found substantial constitutional cause for pursuit of state
post[-]conviction relief from his case by the help of a
jailhouse lawyer and legal research that exposes the
invalidity of his conviction and sentence.” Second
Am. Compl. [#24] at 13. It is unclear from these vague
allegations what the basis of Plaintiff's lawsuit or
potential lawsuit is, and therefore ascertainment of whether
it is frivolous or nonfrivolous is impossible. See
Gee, 627 F.3d at 1191. Plaintiff's argument that he
“need not present details of what his legal documents
contain or what they are for” is directly contradicted
by the law and therefore lacks merit. See Response
[#82] at 11; Gee, 627 F.3d at 1191; Wardell v.
Duncan, 470 F.3d 954, 959 (10th Cir. 2006) (stating that
conclusory allegations of injury will not suffice for a First
Amendment retaliation claim). Additionally, as noted in the
Recommendation to deny Plaintiff's motion for injunctive
relief, “the docket demonstrates that Plaintiff has
been able to prepare and submit numerous filings. He
therefore does not appear to be hindered by his limited
access to his legal work or law library access in the present
case.” Recommendation [#71] at 7. The Court
finds that Plaintiff has not sufficiently alleged an actual
injury stemming from interference with his access to the
courts. See Robbins, 519 F.3d at 1247.
that no constitutional violation has sufficiently been
alleged, the Court concludes that Defendants are entitled to
qualified immunity on this claim. See Escobar v.
Reid, 668 F.Supp.2d 1260, 1293 (D. Colo. 2009). The
Court respectfully recommends that Claim One
regarding restricted access to the courts be
dismissed without prejudice. See
Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir.
1990) (holding that prejudice should not attach to a
dismissal when plaintiff has made allegations “which,
upon further investigation and development, could raise
Claim Two: Search and Seizure of Property in Violation of
alleges that Defendants conducted a cell search and
confiscated and destroyed eyeglasses, shoes, books,
headphones, “box, ” and typewriter ribbons worth
$457.00. Second Am. Compl. [#24] at 18. He also
alleges that Defendant Anderson violated his Fourth Amendment
rights by searching through the content of Plaintiff's
legal documents, not allowing him access to them during
certain periods of time, refusing to print them out, sharing
them with other people without Plaintiff's consent, and
threatening to delete them because she incorrectly stated
that they were improper notes. Second Am. Compl.
[#24] at 38. The Court first considers Plaintiff's
allegations with respect to the cell search and confiscated
Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. amend. IV. “[P]risoners are not protected under
the Fourth Amendment from unreasonable searches of their
prison cells or from the wrongful seizure of property
contained in their cells because ‘the Fourth Amendment
does not establish a right to privacy in prisoners'
cells.'” Rodriguez-Rodriguez v. United
States, 4 F. App'x 637, 639 (10th Cir. 2001)
(quoting Hayes v. Marriott, 70 F.3d 1144, 1146 (10th
Cir. 1995)). Thus, the search of Plaintiff's cell and
confiscation of personal items did not violate
Plaintiff's Fourth Amendment rights, and Defendants are
entitled to qualified immunity on this claim.
alleges that confiscating his glasses left him
“blind” (limited to vision less than four inches)
and “disabled and exposed to [the] open prison
environment . . . unable to function reasonably.”
Second Am. Compl. [#24] at 24, 26. He asserts that
Defendants violated a “CDOC regulation not to take
prisoners['] necessary medical device[s] or allow
unethical conduct of [their] subordinates (or [themselves])
during regular operations.” Id. at 25.
“While an inmate's ownership of property is a
protected property interest that may not be infringed without
due process, ...