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Blair v. Raemisch

United States District Court, D. Colorado

September 5, 2018

JERRY BLAIR, Plaintiff,
RICK RAEMISCH, Executive director C.D.O.C., STEVEN OWENS, CSP Warden, CPT. RICHARD, CSP Kitchen Supervisor, OFFRELIG, Creator of Religious Menue, C.D.O.C., CHARLEEN CROCKETT, Food Service Administrator, CAPT. PHIPPS, SCF Kitchen Supervisor, and CANTEEN REVIEW COMMITTEE, C.C.I., Defendants.



         This 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. Fed.R.Civ.P. 72(b)(3).

         I. BACKGROUND

         The 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 Plaintiff's objections.

         Plaintiff 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.)

         Defendants 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.


         The 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 citation omitted).

         In 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).

         Normally, 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.[1] 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).

         Because 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 Cir. 2001).

         III. ANALYSIS


         Freedom 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 ...

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