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Lovett v. Ruda

United States District Court, D. Colorado

August 17, 2018

BRENT EDWARD LOVETT, Plaintiff,
v.
TAMMY RUDA, individually and officially as Food Service Supervisor, SAINT, individually and officially as Corrections Officer, BOILING, individually and officially as Corrections Officer, HARRISON, individually and officially as Corrections Officer, THOMAS, individually and officially as Corrections Officer, VERSAW, individually and officially as Corrections Officer, MCCLENNON, individually and officially as Corrections Officer, and PENA, individually and officially as Corrections Officer, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss [#32][1] (the “Motion”). Plaintiff filed a Response [#40] in opposition to the Motion, and Defendants[2] filed a Reply [#41]. The Motion has been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). See [#33]. Having reviewed the entire case file and being sufficiently advised, the Court respectfully RECOMMENDS that the Motion [#32] be GRANTED in part and DENIED in part.

         I. Summary of the Case

         At all times relevant to this lawsuit, Plaintiff has been a prisoner in the custody of the United State Bureau of Prisons (“BOP”) at the Florence Prison Camp (“FPC”) in Florence, Colorado. Second Am. Compl. [#13] at 2. Defendants in this matter consist of the Food Service Supervisor Tammy Ruda (“Ruda”) and Correctional Officers Saint, Boling, [3]Harrison, Thomas, Versaw, McClendon, [4] and Pena. Id. at 2-3.

         Plaintiff suffers from celiac disease, [5] and, in connection with the following events, he asserts three constitutional claims primarily relating to the provision of his food by the BOP's staff: (1) “Eighth Amendment, Deliberate Indifference, Cruel and Unusual Punishment, Deprivation of Food and Fiber, ” (2) “Equal Protection Claim” under the Fourteenth Amendment, (which he combines with a claim under the American with Disabilities Act (“ADA”)), and (3) “Retaliation” under the First Amendment. Id. at 17-20. All three claims appear to be asserted against all Defendants. See Id. In short, [6] Plaintiff complains about the food he receives in prison, alleging that, since his incarceration, there have been many times when he has not been fed or has only been provided food containing gluten or other contaminants. See Id. at 4-16. He also alleges that, when he has complained about the food through the use of the grievance system or otherwise, Defendants have “stepped up the harrassment [sic] and denial of food . . . .” See generally Id. at 20.

         As a result of these circumstances, Plaintiff seeks damages against the individual Defendants[7] and injunctive relief requiring BOP staff in their official capacities “to provide the Gluten-Free diet as directed by the BOP Medical Department, and to cease their harassment of [Plaintiff], and order that the BOP can not relocate [Plaintiff] in an effort to avoid this action . . . .” Id. at 27. In the present Motion [#32], Defendants seek dismissal of Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         II. Standards of Review

         A. Federal Rule of Civil Procedure 12(b)(1)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1).

         Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

         B. Federal Rule of Civil Procedure 12(b)(6)

         The 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).

         To 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 omitted).

         C. Pro Se Litigants

         The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

         III. Analysis

         A. Jurisdiction Over Official Capacity Claims

         Defendants argue that “Plaintiff does not provide a basis for the Court's jurisdiction over any official-capacity claims.” Motion [#32] at 23. “When an action is one against named individual defendants, but the acts complained of consist of actions taken by defendants in their official capacity as agents of the United States, the action is in fact one against the United States.” Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989). Accordingly, the United States has effectively been named as a defendant in this case. See Davis v. Holder, No. 12-cv-02122-REB-KMT, 2014 WL 1713429, at *6 (D. Colo. Apr. 23, 2014) (citing Atkinson, 867 F.2d 589, 590 (10th Cir. 1989)).

         As noted above, Plaintiff asserts claims seeking only non-monetary relief against Defendants in their official capacities. Plaintiff asserts, in part, that the Court has jurisdiction pursuant to 28 U.S.C. § 1331. Second Am. Compl. [#13] at 4. Legal authority from the Tenth Circuit Court of Appeals makes clear that 28 U.S.C. § 1331 provides jurisdiction over claims for equitable relief arising under federal law, and such claims are not barred by the doctrine of sovereign immunity. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005). The Administrative Procedures Act (“APA”), 5 U.S.C. § 702, waives sovereign immunity in most suits for claims “other than money damages.” Id. at 1238-39 (finding that the BOP is an agency subject to the waiver of sovereign immunity in § 702, and therefore sovereign immunity did not bar the prisoner-plaintiff's Eighth Amendment claim for denial of dental care).

         Although Plaintiff does not mention the APA, or even Simmat, in his Second Amended Complaint, he has affirmatively invoked federal question jurisdiction under 28 U.S.C. § 1331. [#13] at 4. Defendants have not directed the Court's attention to any case, and the Court is aware of none, in which a pro se prisoner-plaintiff's claims for non-monetary relief against prison officials in their official capacities have been dismissed under similar circumstances, and, given the clarity of the law in this area that the Court does in fact have jurisdiction over these types of claims, the Court recommends that Defendants' request to dismiss Plaintiff's official capacity claims on this basis be denied.

         B. Order to Show Cause re: Defendant Thomas

         On January 31, 2018, the Court issued an Order to Show Cause [#37] directing Plaintiff to show cause why the Court should not recommend that the case against Defendant Thomas be dismissed pursuant to Fed.R.Civ.P. 4(m). In that Order, the Court noted that Defendant “CO Thomas” had not been served with the Summons and Amended Complaint in this action and, therefore, that he was not currently a proper party.

         Plaintiff filed this civil action on August 21, 2017. See Compl. [#1]. The Second Amended Complaint [#13] was filed on September 28, 2017. On October 4, 2017, see [#16], the United States Marshal was directed to serve a copy of the Summons and Second Amended Complaint on all Defendants in the above-captioned matter. On December 12, 2017, a Waiver of Service of Summons [#26] was returned unexecuted as to Defendant Thomas with a notation that she was “currently on extended military leave away from the institution.” No forwarding address was provided.

         As the Court explained in the Order to Show Cause [#37], while Fed.R.Civ.P. 4(c) requires that the Court effect service of the Summons and Amended Complaint for a plaintiff who is proceeding in forma pauperis, as Plaintiff is here, see Order [#11], the plaintiff must provide sufficient information for the Court to do so. See Hill v. Ortiz, No. 07-cv-00571-LTB-CBS, 2008 WL 2020289, at *6 (D. Colo. May 9, 2008). In the absence of information which would allow service on Defendant Thomas, Plaintiff was directed to show cause why the Court should not recommend that the case against Defendant Thomas be dismissed pursuant to Fed.R.Civ.P. 4(m) & 41(b). Plaintiff was directed to file proof of service on Defendant Thomas, or respond, in writing, to the Order to Show Cause on or before March 2, 2018. Plaintiff was warned that failure to serve Defendant Thomas, respond and show good cause for his failure to properly serve this Defendant, or provide a current address to allow the United States Marshal to effect service, would result in the issuance of a recommendation to dismiss Plaintiff's action as to Defendant Thomas.

         Since issuing the Order to Show Cause [#37], Plaintiff has sought entry of default by the Clerk of Court and entry of default judgment by the District Judge, both of which have been denied. See [#39, #42]. Plaintiff did not otherwise respond to the Order to Show Cause [#37], and thus has not provided any information that the Court can use to effect service on this Defendant. On January 29, 2018, Defendants' counsel clarified that she represented Defendant Thomas, but in her official capacity only. See Motion [#32] at 5 n.2. Accordingly, to the extent the Order to Show Cause [#37] was directed at Defendant Thomas in her official capacity, the Order to Show Cause is discharged.

         Pursuant to Fed.R.Civ.P. 4(m), the deadline for service on Defendant Thomas in her individual capacity has now expired. At this stage, it is clear that Plaintiff cannot provide the necessary information to effect service on Defendant Thomas. Although the Court may extend the time for a plaintiff to serve a defendant even without a showing of good cause, Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir.1995), the Court is not inclined to do so here. The case against Defendant Thomas has been pending since August 2017. Plaintiff failed to effect service of Defendant Thomas within ninety days of her inclusion in this case, failed to provide sufficient contact information for the Court to do so, and failed to provide good cause for the Court to find that an opportunity exists to cure the service deficiency in the future. Further, Plaintiff was warned in advance that the penalty for lack of service or for failing to provide good cause for the service delay would be dismissal of the unserved Defendant. See generally Raeth v. Bank One, 05-cv-02644-WDM-BNB, 2008 WL 410596, at *3 & n. 4 (D. Colo. Feb. 13, 2008). Regardless of Plaintiff's desire to keep Defendant Thomas in the case and have her answer the claims asserted against her, neither can be accomplished without service.

         Accordingly, the Order to Show Cause [#37] is made absolute as to Defendant Thomas in her individual capacity, and the Court recommends that Defendant Thomas in her individual capacity be dismissed without prejudice. See Banks v. Katzenmeyer, 680 Fed.Appx. 721, 724 (10th Cir. 2017) (stating that dismissal without prejudice pursuant to Fed.R.Civ.P. 41(b) does not require consideration of the factors listed in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992)).

         C. ADA

         Defendants do not address Plaintiff's claim under the American with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. See Second Am. Compl. [#13] at 19 (“Defendants violated [Plaintiff's] right to food in violation of the [ADA] by failing to supply calorically sufficient foods and fiber which was [sic] supplied to and enjoyed by all other inmates.”). However, because Plaintiff proceeds in forma pauperis, see Order [#11], the Court may address this claim sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

         Although Plaintiff does not refer to any specific Title of the ADA, his allegations appear to most closely refer to a violation of Title II, which states, in relevant part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. However, “Title II of the ADA does not apply to federal prisoners in federal prisons . . . .” Phillips v. Tiona, 508 Fed.Appx. 737, 752 (10th Cir. 2013). “That is so because Title II covers only states and defined appendages thereof.” Id.

         Accordingly, the Court recommends that Plaintiff's ADA claim be dismissed with prejudice as to all Defendants in both their official and individual capacities. See Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (stating that prejudice should attach to a dismissal when the plaintiff has not made allegations “which, upon further investigation and development, could raise substantial issues”).

         D. Statute of Limitations

         Defendants argue that all claims against Defendant Saint and Boling should be dismissed as violating the statute of limitations, and that the claims against Defendant Ruda should be “limited” on that same basis. Motion [#32] at 23-24; Reply [#41] at 7-8. A statute of limitations defense may be resolved on a motion to dismiss where application of the limitations period is apparent on the fact of the complaint. Dummar v. Lummis, 543 F.3d 614, 619 (10th Cir. 2008).

         Colorado's general two-year statute of limitations, Colo. Rev. Stat. § 13-80-102, applies to actions arising under 42 U.S.C. § 1983. Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). Generally, “claims accrue and the statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). “A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.” Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994).

         Plaintiff filed this lawsuit on August 21, 2017, and thus, generally speaking, any claim based on conduct which occurred prior to August 21, 2015, is time-barred. See Fogle, 435 F.3d at 1258. Plaintiff does not dispute that all allegations asserted against Defendant Boling occurred prior to August 2015. Response [#40] at 15. In fact, the most recent actions allegedly taken by Defendant Boling appear to have occurred in March 2015. See Second Am. Compl. [#13] at 7, 22. With respect to Defendant Ruda, her allegedly relevant involvement in this case ranges from October 6, 2014, to September 2, 2017, a time frame which partially precludes the statute of limitations defense . Second Am. Compl. [#13] at 6, 16.

         With respect to Defendant Saint, Plaintiff asserts that he “claims actions against . . . Saint[ ] up to the time of notice of injury and throughout 2016 in the Nature of the case, and the exhibits and Declarations submitted.” Response [#40] at 15. Plaintiff did not, however, direct the Court's attention to any specific place in his filings where he alleged that Defendant Saint took any action after August 2015. See Id. In reply, Defendants note that they “cannot identify any allegations against Saint less than two years before the filing date.” Reply [#41] at 8. The Court has also independently examined the Second Amended Complaint [#13] and its voluminous attachments [#1-1] incorporated by Plaintiff, [8] and has found no instance of allegations against Defendant Saint occurring within the statute of limitations. Thus, the Court finds that the alleged actions in the Second Amended Complaint by Defendant Saint all occurred prior to the limitations period.

         On September 4, 2015, Plaintiff was diagnosed with sigmoid diverticulosis.[9] Second Am. Compl. [#13] at 11-12. This event occurred slightly less than two years before he filed this lawsuit, and Defendants concede that claims based on this injury therefore appear to be timely, with which the Court agrees. See Reply [#41] at 7. However, to the extent that any of Plaintiff's claims are based on other purported injuries stemming from conduct occurring prior to August 21, 2015, such as, for example, retaliatory conduct due to his complaints about the food, such claims are time-barred.

         Accordingly, the Court recommends that the Motion [#32] be granted with respect to (1) Plaintiff's First and Fourteenth Amendment claims for retaliation and equal protection against Defendants Boling and Saint; (2) Plaintiff's First and Fourteenth Amendment claims for retaliation and equal protection against Defendant Ruda to the extent these claims are based on conduct occurring prior to August 21, 2015; and (3) Plaintiff's Eighth Amendment claim for deliberate indifference against Defendants Boling, Saint, and Ruda to the extent this claim is based on purported injuries other than sigmoid diverticulosis stemming from conduct occurring prior to August 21, 2015, and that these claims against Defendants in both their official and individual capacities be dismissed with prejudice on the basis of statute of limitations. See Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010) (stating that claims barred by the statute of limitations may be dismissed with prejudice because permitting amendment of those claims would be futile).

         E. Official and Individual Capacity Fourteenth Amendment Claims

         Plaintiff argues that his equal protection rights were violated because Defendants deprived him “of the foods and fiber as was [sic] provided to all other similarly situated inmates.” Second Am. Compl. [#13] at 19.

         The Equal Protection Clause of the Fourteenth Amendment provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This guarantee “keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Nordinger v. Hahn, 505 U.S. 1, 10 (1992)). This means, in short, that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

         In the prison context, success on an equal protection claim requires an inmate to show that he was “similarly situated” to other inmates who are treated differently, and that the difference in treatment was not “reasonably related to legitimate penological interests.” Fogle, 435 F.3d at 1261; Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). If the classification is not made with respect to any suspect category such as, for example, race, then the classification is subject only to “rational-basis review” and “must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc'n, Inc., 508 U.S. 307, 313 (1993). A plaintiff who asserts that another similarly-situated inmate is receiving more favorable treatment must show that the two are alike “in every relevant respect.” Templeman, 16 F.3d at 371; Meek v. Jordan, 534 Fed.Appx. 762, 764 (10th Cir. 2013).

         Here, Plaintiff is not alleging that he is being treated differently from other inmates because of his race or any other suspect classification or membership in a protected class. See Second Am. Compl. [#13] at 19. He conclusorily states that he was similarly situated to prisoners who were adequately fed. See Id. He also asserts that gluten-free inmates at other BOP prison facilities have been adequately fed. See id.; see also Response [#40] at 11-12.

         However, the allegations provided in the Second Amended Complaint belie these assertions, because every allegation about the other gluten-free inmates in Plaintiff's prison facility (of which there seems to be only one) describes how Plaintiff and that inmate were treated the same. See, e.g., Second Am. Compl. [#13] at 13 (stating that Defendant Harrison “refuses to provide food to the Gluten free inmates”), 14 (describing “the fact that both Gluten-free inmates got sick from consuming the tainted foods” and that later “the Gluten-Free inmates only received 80 calories to eat”), 15 (stating that Defendant Ruda told Defendant Harrison “not to feed the Gluten-Free inmates” and that “[f]or 3 days the Gluten-Free inmates were not receiving food”). By these allegations, Plaintiff alleges that he was not treated differently from “other inmates who are similar in every relevant respect.” See Templeman, 16 F.3d at 371. In fact, he has merely alleged the opposite, i.e., that he has been treated the same as the one other similarly situated inmate at his facility. With respect to the non-gluten-free inmates, Plaintiff's complaint is focused on the fact that he has not been treated differently from them, i.e., that he has been provided the same food given to the non-gluten-free inmates. His stated problem, though, is that he cannot eat the same food given to the non-gluten-free inmates, and he therefore should be treated differently. This simply cannot be the basis of an equal protection claim.

         Accordingly, the Court recommends that Plaintiff's Fourteenth Amendment claim be dismissed with prejudice as to all Defendants in both their official and individual capacities. Reynoldson, 907 F.2d at 127.

         F. Official and Individual Capacity First Amendment Claims

         Plaintiff asserts that he filed grievances against Defendants “for failing to provide food and fiber, ” and that thereafter, “Defendants stepped up the harrassment [sic] and denial of food to [Plaintiff] after each time . . . .” Second Am. Compl. [#13] at 20.

         “[Prison] officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights . . . even where the action taken in retaliation would be otherwise permissible.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). A First Amendment retaliation claim is analyzed under the three-part test enunciated in Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). Flute v. United States, 723 Fed.Appx. 599, 603 (10th Cir. 2018) (discussing application of the Shero test to a BOP inmate's First Amendment retaliation claim). First, Plaintiff must allege that he “was engaged in constitutionally protected activity.” Shero, 510 F.3d at 1203. Second, he must allege that each Defendant's “actions caused [him] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity.” Id. Third, he must provide allegations demonstrating that each Defendant's “adverse action was substantially motivated as a response to [his] exercise of constitutionally protected conduct.” Id.

         Defendants primarily argue that Plaintiff fails to state a retaliation claim because he has failed to sufficiently allege the third element. Motion [#32] at 21-22. With respect to this element, a plaintiff “must prove that ‘but for' the retaliatory motive, the incidents to which he refers . . . would not have taken place.” Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990). Close temporal proximity between protected conduct and the ensuing detrimental action may show that the action was substantially motivated by the exercise of a protected right. Lewis v. Clark, 577 Fed.Appx. 786, 800 (10th Cir. 2014); Gee, 627 F.3d at 1189.

         As Defendants argue, see Motion [#32] at 22; Reply [#41] at 6-7, “by definition, where a person alleges that another has retaliated against them [sic] because of the person's prior protected activity, an essential element of the claim is that the person engaging in the retaliatory action must be shown to have had foreknowledge of that protected activity.” Gambina v. Fed. Bureau of Prisons, No. 10-cv-02376-MSK-KLM, 2011 WL 4502085, at *11 (D. Colo. Sept. 29, 2011). In other words, “Defendants cannot have intended to retaliate against [Plaintiff] for an act that the Defendants were not aware had occurred.” Id. Here, there are no allegations from which the Court can plausibly infer that Defendants Harrison, Thomas, Versaw, McClendon, or Pena knew of Plaintiff's various Inmate Requests to Staff or Trulincs submissions.[10]

         Plaintiff argues that these Defendants were informed of his submissions because the BOP's Program Statement regarding the Administrative Remedy Program, § 1330.18, “requires each staff member be notified of any grievance filed concerning their actions.” Response [#40] at 14. However, the Court has reviewed this provision and finds no such requirement embedded therein; rather, the investigative staff person appears to have discretion on this point. See § 1330.18(13)(b). Regardless, even if there were little or no discretion here, the subsection to which Plaintiff seems to refer only applies to formal grievances; it is simply not connected with any informal grievance resolution, including Inmate Request to Staff forms, Trulincs submissions, or even Informal Resolution Forms, i.e., BP-8. It only discusses “Requests” which by definition are formal Administrative Remedy Requests written on the BP-9 form.[11]

         The only formal grievance filed by Plaintiff was his March 30, 2015 BP-9 submission. Second Am. Compl. [#13] at 8 (citing Pl.'s Ex. 17 [#1-1] at 24-27). This grievance was filed nearly five months before the statute of limitations cut-off in this case, thus foreclosing the possibility of any “close temporal proximity” between Plaintiff's protected action and any purported retaliatory action, given that Plaintiff fails to allege that any staff member learned of his BP-9 submission at a time within or close to the statute of limitations cut-off, i.e., August 21, 2015. See United States v. Camick, 796 F.3d 1206, 1225-26 (10th Cir. 2015). Further, even assuming that Plaintiff is correct that the Administrative Remedy Program contains a requirement that staff members identified in a grievance be notified of the grievance against them, neither Plaintiff's informal BP-8 submission nor formal BP-9 submission refers to any staff member by name. Pl.'s Ex. 13 [#1-1] at 19 (BP-8); Pl.'s Ex. 17 [#1-1] at 24-27 (BP-9).

         As for Plaintiff's plethora of informal complaints, Plaintiff does not direct the Court's attention to any specific example of his submission of a complaint and subsequent retaliation by Defendants Harrison, Thomas, Versaw, McClendon, or Pena. See Response [#40] at 13-14; Second Am. Compl. [#13] at 20. For example, Plaintiff's August 30 and October 9, 2015 Trulincs Requests; January 14, 2016 Trulincs Request; April 6 and December 5, 2016 Inmate Requests to Staff; and January 15, March 10, and March 15, 2017 Trulincs Requests do not specify any staff member by name. Second Am. Compl. [#13] at 11-14 (citing Pl.'s Ex. 26 [#1-1] at 35; Pl.'s Ex. 29 [#1-1] at 37; Pl.'s Ex. 31 [#1-1] at 39; Pl.'s Ex. 33 [#1-1] at 41; Pl.'s Ex. 36 [#1-1] at 44; Pl.'s Ex. 37 [#1-1] at 45; Pl.'s Ex. 40 [#1-1] at 48; Pl.'s Ex. 41 [#1-1] at 49).

         Plaintiff's March 14, 2016 Trulincs Request mentions Defendant Harrison, see Pl.'s Ex. 32 [#1-1] at 40, but the first action alleged to have been taken thereafter by Defendant Harrison against Plaintiff occurred on September 30, 2016, when Defendant Harrison allegedly failed to provide Plaintiff with food. Second Am. Compl. [#13] at 22. Plaintiff's April 7, 2016 Trulincs Request mentions Defendant Thomas, see Pl.'s Ex. 34 [#1-1] at 42, but the first action alleged to have been taken thereafter by Defendant Thomas against Plaintiff occurred on October 2, 2016, when Defendant Thomas allegedly failed to provide Plaintiff with food. Second Am. Compl. [#13] at 23. Without more, a period of two or more months between a protected activity and alleged retaliatory action is insufficient to create an inference of retaliatory intent. See United States v. Camick, 796 F.3d 1206, 1225-26 (10th Cir. 2015). Here, six-and-a-half months passed before Defendant Harrison's first allegedly retaliatory action, and six months passed before Defendant Thomas's first allegedly retaliatory action. Plaintiff's protected activity and these Defendants' alleged retaliatory actions are simply too remote in time to create an inference of retaliatory intent, and Plaintiff's retaliation claims against them fail as a result.

         Plaintiff's February 8, 2017 document addressed to Warden Getz mentions Defendants McClendon and Versaw, see Pl.'s Ex. 39 [#1-1] at 47, but there are several issues here. First, the allegations of their failure to provide food to Plaintiff started long before this document was sent to Warden Getz and continue for some time after February 8, 2017, thus counseling against a finding of “but-for” causation. Second Am. Compl. [#13] at 23; see Shero, 510 F.3d at 1203 (stating that the adverse action must be “substantially motivated as a response to” the exercise of the plaintiff's right (emphasis added)). Second, the allegations of Defendant Versaw's humiliation of Plaintiff also start long before February 8, 2017, and continue for some time after. Second Am. Compl. [#13] at 23; see Shero, 510 F.3d at 1203. Third, there are no allegations that either Defendant McClendon or Defendant Versaw knew anything about this document at any time before or after it was delivered to Warden Getz. See Id. at 14; see Gambina, 2011 WL 4502085, at *11 (stating that “foreknowledge of [the] protected activity” prior to the alleged retaliatory conduct is required). For these reasons, Plaintiff's retaliation claim against these two Defendants fails.

         Finally, with respect to Defendant Ruda, although Plaintiff has not clearly directed the Court's attention to which specific allegations directly support his retaliation claim against her, the Court nevertheless finds that he has plausibly stated such a claim as to Defendant Ruda at this early stage of the proceedings. On January 15, 2017, Plaintiff sent Defendant Ruda a Trulincs Request “detailing the weeks and months without proper food, without the proper calories, the daily ridiclue [sic] and violation of our civil rights . . . .” Second Am. Compl. [#13] at 14 (citing Pl.'s Ex. 37 [#1-1] at 45). Then, five days later on January 20, 2017, Defendant Ruda “directly supervised that [Plaintiff] did not receive any eatable food.” Second Am. Compl. [#13] at 21. On February 8, 2017, Plaintiff sent another document to Defendant Ruda and to Warden Getz “denoting the on-going problems with food service and the lack of food being provided to the Gluten-free inmates.” Id. at 14 (citing Pl.'s Ex. 39 [#1-1] at 47). Then, two days later on February 10, 2017, Defendant Ruda “directly supervised that [Plaintiff's] meal was uneatable, and thus [Plaintiff] did not receive any food to eat.” Second Am. Compl. [#13] at 21. On March 10, 2017, Plaintiff sent Defendant Ruda another Trulincs Request, “stating that FPC Food Service staff is refusing to feed the Gluten-Free inmates.” Id. at 14 (citing Pl.'s Ex. 40 [#1-1] at 48. That same day, Defendant Ruda “directly supervised that [Plaintiff] did not receive any food.” Second Am. Compl. [#13] at 21.[12]

         These allegations[13] are enough to plausibly demonstrate that “but for” Defendant Ruda's retaliatory motive, the incidents to which Plaintiff refers would not have taken place. He sufficiently alleges that Defendant Ruda knew of his allegedly protected actions, see Gambina, 2011 WL 4502085, at *11, and the close temporal proximity between Plaintiff's conduct and Defendant Ruda's actions is enough to show that her actions may have been substantially motivated by the exercise of Plaintiff's protected rights. See Smith, 899 F.2d at 949-50; Lewis, 577 Fed.Appx. at 800; Gee, 627 F.3d at 1189. Accordingly, the Court finds that Plaintiff has adequately alleged a violation of his First Amendment rights by Defendant Ruda.

         Accordingly, the Court recommends that Plaintiff's First Amendment retaliation claim be dismissed with prejudice with respect to Defendants Harrison, Versaw, McClendon, Thomas, and Pena in both their official and individual capacities. Reynoldson, 907 F.2d at 127. The Court further recommends that the Motion [#32] be denied with respect to Defendant Ruda in her official capacity on this claim.[14]

         G. Official Capacity ...


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