United States District Court, D. Colorado
ORDER ADOPTING IN PART AND REJECTING IN PART THE
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE KATHLEEN M.
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Recommendation of
Magistrate Judge Tafoya, wherein she recommends that this
Court grant Defendants' Motion to Dismiss Plaintiff's
federal and state claims. (Doc. ## 19, 54.) This Court
adopted in part and rejected in part the Recommendation on
August 16, 2018. (Doc. # 55.) Later that day, Plaintiff's
Written Objection, which he mailed after the objection
deadline had passed, was filed in this case. (Doc. ## 57,
57-1.) Despite the untimely filing, the Court accepted the
Written Objection and vacated its previous order on the
Recommendation. (Doc. # 62.) The Court now considers
Plaintiff's Objection, and because Plaintiff objects to
the Recommendation in its entirety, the Court reviews the
issues raised in Defendants' Motion to Dismiss de novo.
Magistrate Judge's Recommendation provides an extensive
recitation of the factual and procedural background of this
case. The Recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
Accordingly, the factual background of this dispute will be
reiterated only to the extent necessary to address
brings numerous causes of action in this case-all primarily
stemming from his contention that various employees of the
Colorado Department of Corrections (CDOC) have violated his
constitutional right to practice Buddhism and eat a
corresponding vegan diet. Plaintiff specifically asserts
First, Eighth, and Fourteenth Amendment claims against
Defendant Phipps for being served only rice and beans for
several months; First Amendment claims against Defendants
Crockett, Richard, and Offrelig and a claim under the
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) against Defendant Raemisch for being
served “nutra loaf” patties; and a state
discrimination claim pursuant to Colo. Rev. Stat. §
24-36-601(2)(a) against Defendants Raemisch, Crockett,
Offrelig, Richard, and Phipps. Plaintiff asserts claims
against all the defendants in their individual capacities and
against Defendant Raemisch and the Canteen Review Committee
in their official capacities. (See Id. at 13, 20,
28, 34, 38.)
request dismissal of Plaintiff's claims under Federal
Rule of Civil Procedure 12(b)(6), arguing that
Plaintiff's Complaint fails to allege sufficient facts to
support those claims.
purpose of a motion to dismiss for failure to state a claim
under Rule 12(b)(6) is to test “the sufficiency of the
allegations within the four corners of the complaint.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.
1994). A complaint will survive such a motion only if it
contains “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). For a motion to
dismiss, “[t]he question is whether, if the allegations
are true, it is plausible and not merely possible that the
plaintiff is entitled to relief under the relevant
law.” Christy Sports, LLC v. Deer Valley Resort
Co., 555 F.3d 1188, 1192 (10th Cir. 2009). “The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and
reviewing a Rule 12(b)(6) motion, a court “must accept
all the well-pleaded allegations of the complaint as true and
must construe them in the light most favorable to the
plaintiff.” Williams v. Meese, 926 F.2d 994,
997 (10th Cir. 1991). Nevertheless, a complaint does not
“suffice if it tenders ‘naked assertion[s]'
devoid of ‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557).
when considering a motion to dismiss, a court must disregard
facts supported by documents other than the complaint unless
the court first converts the motion to dismiss into a motion
for summary judgment. Jackson v. Integra Inc., 952
F.2d 1260, 1261 (10th Cir. 1991). However, a court may
consider outside documents to which Plaintiff refers to in
the complaint if they are central to the claims and the
parties do not dispute their authenticity. Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009); GFF
Corp. v. Associated Wholesale Grocers, 130 F.3d
1381, 1384 (10th Cir. 1997).
Mr. Tucker is proceeding 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, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the Court is “not required to fashion [a
d]efendant's arguments for him where his allegations are
merely conclusory in nature and without supporting factual
averments.” United States v. Fisher, 38 F.3d
1144, 1147 (10th Cir. 1994) (citing Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991)). Indeed, “[i]t is
[not] the proper function of the district court to assume the
role of advocate for the pro se litigant.”
Hall, 935 F.2d at 1110; Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court
may not “supply additional factual allegations to round
out a [movants] complaint”); Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court
may not “construct arguments or theories for the
[movant] in the absence of any discussion of those
issues.”). Further, pro se litigants are still
subject to the Federal Rules of Civil Procedure.
Abdelsamed v. Colorado, 6 Fed.Appx. 771, 772 (10th
EIGHTH AMENDMENT CLAIM - DEFENDANT PHIPPS
from cruel and unusual punishment is a clearly-established
constitutional right pursuant to the Eighth Amendment. More
specifically, the Eighth Amendment's prohibition of cruel
and unusual punishment imposes a duty on prison officials to
provide [nutritionally] adequate food . . . .”
Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.
2006). “A substantial deprivation of food may be
sufficiently serious to state a condition of confinement
claim under the Eighth Amendment, ” Thompson v.
Gibson, 289 F.3d 1218, 1222 (10th Cir.2002), but only
where the prison officials demonstrated “deliberate
indifference, ” Estelle v. Gamble, 429 U.S.
97, 105; Helling v. McKinney, 509 U.S. 25, 35
(1993). A ...