United States District Court, D. Colorado
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 ...