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Orwig v. Ladd

United States District Court, D. Colorado

July 26, 2018

CHRISTOPHER M. ORWIG, Plaintiff,
v.
SARGENT LADD, Sterling Correctional Facility Corrections Officer, Official and Individual Capacity, Defendant.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER

          Nina Y. Wang United States Magistrate Judge.

         This action is before the court on Defendant's Motion to Dismiss Amended Complaint [#29, filed February 9, 2018]. The Motion was referred to this Magistrate Judge pursuant to the Order of Reference dated December 14, 2017, [#10], and the memorandum dated February 9, 2018, [#30]. Having reviewed the Motion to Dismiss, the entire case file, and the applicable law, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.

         BACKGROUND

         Plaintiff Christopher M. Orwig ("Plaintiff or "Mr. Orwig") initiated this civil action on October 30, 2017, by filing a pro se prisoner complaint asserting one claim for an Eighth Amendment violation arising from a raw sewage spill at the Sterling Correctional Facility ("Sterling") on September 2, 2016. See [#1]. Plaintiff alleges that Defendant Sargent Ladd forced him "to clean up the raw sewage bio-hazard in his cell without the necessary personal protective equipment." [Id. at 3]. Plaintiff seeks compensatory and punitive damages against Defendant in his individual capacity and injunctive relief against Defendant in his official capacity. Plaintiff remains in the custody of the Colorado Department of Corrections ("CDOC") and is housed at the Cheyenne Mountain Re-Entry Center in Colorado Springs.

         On December 18, 2017, the court set a Status Conference to be held February 1, 2018. [#14]. On January 2, 2018, Defendant filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and asserted therein entitlement to qualified immunity. See [#16]. Defendant thereafter filed a motion to stay, asking the court to vacate the Status Conference and stay discovery in its entirety pending resolution of the motion to dismiss. See [#19]. On January 18, 2018, the undersigned granted the motion to stay. See [#21].

         On January 25, 2018, Plaintiff filed a motion to amend pursuant to Rule 15(a), see [#23], which the court accepted as the operative pleading. See [#27, #35]. The Amended Complaint adds neither new parties nor new claims, but rather asserts additional factual allegations to support Plaintiffs claim for an Eighth Amendment violation. See [#27]. The court determined that the Amended Complaint rendered the motion to dismiss moot and denied the motion, with leave to refile. See [#35]. Defendant filed the pending Motion to Dismiss on February 9, 2018, [#29], and the Parties completed briefing on March 16, 2018. See [#36, #37], STANDARD OF REVIEW

         I. Fed.R.Civ.P. 12(b)(1)

         Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex. U.S. Army, Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         II. Fed.R.Civ.P. 12(b)(6)

         Under Rule 12(b)(6) a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations ... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         "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, 129 S.Ct. 1937, 1949 (2009). 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.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citation omitted). "The burden is on the plaintiff to frame 'a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Id. The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         Because Plaintiff is appearing pro se, the court "review[s] [his] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not 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"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues") (internal citation omitted).

         ANALYSIS

         I. Eleventh Amendment Immunity

         While the Motion to Dismiss references Mr. Orwig's request for injunctive relief against Mr. Ladd in his official capacity, see [#29 at 2], Mr. Ladd does not separately move to dismiss Plaintiffs claim with respect to Defendant acting in his official capacity. See generally [#29], Instead, it appears that Mr. Ladd is implicitly relying upon his argument that Mr. Orwig fails to state a claim for relief under the Eighth Amendment to dismiss any request for injunctive relief.

         An official capacity suit is, for all intents and purposes, to be treated as a suit against the entity, in this case the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). The Eleventh Amendment bars suits against a state by its own citizens, and generally immunizes state defendants sued in their official capacities from liability for damages and retroactive equitable relief. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995). It is well-settled that an exception to the Eleventh Amendment's general bar is a suit in which a plaintiff seeks to prospectively enjoin a state official from violating federal law. Johns, 57 F.3d at 1552 (citing Exparte Young, 209 U.S. 123, 159-60 (1908)). See also Rounds v. Clements, 495 Fed.Appx. 938, (10th Cir. 2012) (noting "Ex parte Young permits suit against state employees for prospective relief whether the employee happens to be sued in his individual or official capacity") (citation omitted). The Ex parte Young exception "enables federal courts to end continuing violations of federal law by state officials...so as to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States." Johns, 57 F.3d at 1552 (citations and internal quotation marks omitted); Harris v. Owens, 264 F.3d 1282, 1289 (10th Cir. 2001) ("A suit within the Exparte Young doctrine is not considered a suit against the state; rather, it is a suit against individual state officers who are stripped of their official character") (citation omitted). To determine whether a suit falls within the Ex parte Young exception, the court "need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md. Inc. v. Pub. Serv. Comm'n o/Md, 535 U.S. 635, 645 (2002); Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012).

         Eleventh Amendment immunity is considered jurisdictional. See Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017). Nevertheless, the United States Supreme Court has observed that courts may, but need not, raise the question of Eleventh Amendment immunity sua sponte. Wisconsin Dep't o/Corr. v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J., concurring) (citing Patsy v. Board of Regents of Fla., 457 U.S. 496, 515, n.19 (1982)); U.S. ex rel. Burlbaw v. Orenduff 548 F.3d 931, 942 (10th Cir. 2008) (observing that "a court may raise the issue of Eleventh-Amendment immunity sua sponte but, unlike subject-matter jurisdiction, it is not obligated to do so") (citations omitted). While mindful that the court should not assume the role of advocate for any party, let alone a represented one, this court has determined that it is appropriate to address the application of the Eleventh Amendment to the official capacity claim.

         Plaintiff asks the court to "[i]ssue an[] injunction forcing defendant in his official capacity (Colorado Department of Corrections) to provide the necessary and prescribed medical screening, diagnosis, and treatment for any and all infectious diseases that may resulted [sic] due to these claims," and to order Defendant "to receive the proper and required training in hazardous waste identification and clean-up." [#27 at 10]. However, Plaintiff does not allege an ongoing violation of federal law in his operative complaint. The allegations reflect that the alleged constitutional violation arose from a single incident in which Defendant forced Plaintiff to clean up raw sewage for approximately two hours. There are no allegations that Plaintiff has been required to cleanup raw sewage on multiple occasions or on an ongoing basis. See generally [#27]. Indeed, Plaintiff states that when a second raw sewage spill occurred, Sterling staff prohibited him from cleaning it and rather addressed the spill "appropriately and in accordance with CDOC's AR 1550-05, and all of the state and local laws." [Id. at 8]. Upon review of the allegations and controlling authority, this court finds that Plaintiff has not alleged the ongoing constitutional violation necessary to invoke the Ex parte Young exception.[1] On this separate basis, the court concludes that Plaintiff is not entitled to injunctive relief against Defendant sued in his official capacity, and that the claim for such should be dismissed without prejudice for lack of jurisdiction. See Colby, 849 F.3d at 1278. The court now turns to Plaintiffs conditions of confinement claim brought against Defendant in his individual capacity.

         II. Eighth Amendment Violation

         A. Ap ...


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