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Lovett v. Ruda

United States District Court, D. Colorado

September 28, 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.

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Recommendation of the United States Magistrate Judge [Docket No. 50] filed on August 17, 2018. The magistrate judge recommends that the Court grant in part and deny in part defendants' motion to dismiss plaintiff's second amended complaint. Plaintiff filed a timely objection to the magistrate judge's recommendation on September 6, 2018. Docket No. 52.[1] Defendants filed a response to the objection on September 20, 2018. Docket No. 54.

         I. BACKGROUND[2]

         Plaintiff is a federal prisoner at the Florence Prison Camp (“FPC”) in Florence, Colorado. Docket No. 13 at 2. Plaintiff has celiac disease. Id. at 4. He brings this lawsuit against Food Service Supervisor Tammy Ruda and several correctional officers, alleging that defendants violated his constitutional and statutory rights by failing to provide him with an adequate gluten-free diet at FPC. See Id. at 4-7, 17-20. In his second amended complaint, plaintiff asserts claims for (1) deliberate indifference under the Eighth Amendment; (2) denial of equal protection under the Fourteenth Amendment;[3] (3) violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and (4) retaliation under the First Amendment. Docket No. 13 at 17-20. Plaintiff appears to assert all of his claims against all of the defendants in their individual and official capacities. On January 29, 2018, defendants filed a motion to dismiss the second amended complaint arguing that (1) the Court should not imply a Bivens remedy for plaintiff's constitutional claims; (2) defendants are entitled to qualified immunity because plaintiff has failed to demonstrate a constitutional violation; (3) plaintiff has failed to assert a basis for the Court's jurisdiction over any official capacity claims; and (4) plaintiff's First and Fourteenth Amendment claims against defendants Saint, Boling, and Ruda are barred, in whole or in part, by the applicable two-year statute of limitations. See Docket No. 32.[4]

         On August 17, 2018, the magistrate judge recommended that the following claims be dismissed with prejudice: (1) plaintiff's ADA claims against all defendants in their official capacities and against all defendants except for defendant Thomas in their individual capacities; (2) plaintiff's Equal Protection claims against all defendants in their official capacities and against all defendants, except for defendant Thomas, in their individual capacities; (3) plaintiff's First Amendment claims against all defendants, except for defendant Ruda, in their official capacities and against all defendants, except for defendant Thomas, in their individual capacities; (4) plaintiff's Eighth Amendment claims against defendants Boling and Saint in their individual and official capacities to the extent that those claims are based on injuries other than sigmoid diverticulosis stemming from conduct occurring before August 21, 2015; (5) plaintiff's Eighth Amendment claims against defendants Harrison, McClendon, Versaw, Pena, and Boling in their individual capacities; and (6) plaintiff's Eighth Amendment claims against defendants Saint and Ruda in their individual capacities to the extent that those claims are not based on plaintiff's sigmoid diverticulosis. See Docket No. 50; see also Docket No. 54-1 (defendants' summary of recommended disposition).[5] The magistrate judge further recommended that the following claims be dismissed without prejudice: (1) all claims against defendant Thomas in her individual capacity; (2) plaintiff's Eighth Amendment claims against defendants Ruda and Saint in their individual capacities to the extent that those claims are based on plaintiff's diagnosed sigmoid diverticulosis; and (3) plaintiff's Eighth Amendment claims against defendants Harrison, Thomas, McClendon, Versaw, Pena, and Boling in their official capacities to the extent that such claims are not based on allegations that defendants failed to feed plaintiff for two days in a row on more than one occasion. See Docket No. 50 at 32-45, 65-66. Finally, the magistrate judge recommended that plaintiff be permitted another opportunity to amend his Eighth Amendment claims. See Docket No. 50 at 65-66.

         II. STANDARD OF REVIEW

         The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).

         In the absence of a proper objection, the Court reviews the magistrate judge's recommendation to satisfy itself that there is “no clear error on the face of the record.”[6]Fed. R. Civ. P. 72(b), Advisory Committee Notes.

         Because plaintiff is proceeding pro se, the Court will construe his objection and pleadings liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         III. ANALYSIS[7]

         A. Individual-Capacity Claims Against Defendant Thomas

         The magistrate judge recommended dismissal of all claims against defendant Thomas in her individual capacity because defendant Thomas has not yet been served with the complaint. See Docket No. 50 at 8-10.[8] In his objection to the magistrate judge's recommendation, plaintiff requests an extension of time so that pro bono counsel can locate defendant Thomas. See Docket No. 52 at 7. On August 16, 2018, the magistrate judge entered an order appointing pro bono counsel. Docket No. 49. Since that time, however, no attorney has entered an appearance on plaintiff's behalf. There is no guarantee that an attorney from the Civil Pro Bono Panel will undertake representation of plaintiff in this case, and the Court declines to extend the deadline for service of process until some unspecified date while plaintiff awaits pro bono appointment. Moreover, plaintiff has provided no explanation for his failure to respond to the magistrate judge's order to show cause entered on January 31, 2018. Docket No. 37. The magistrate judge's order specifically warned plaintiff that the failure to “respond and show good cause for Plaintiff's failure to properly serve” defendant Thomas would result in the magistrate judge “issuing a recommendation to dismiss Plaintiff's action as to Defendant Thomas.” Id. at 2. Given that plaintiff failed to comply with the magistrate judge's order, the Court finds no basis on which to grant him an extension of time to perfect service on defendant Thomas. Plaintiff's objection as to this issue is therefore overruled.

         B. ADA Claim

         The magistrate judge sua sponte recommended dismissal of plaintiff's ADA claim under 28 U.S.C. § 1915(e)(2)(B)(ii) on the ground that Title II of the ADA does not apply to prisoners in federal correctional facilities. See Docket No. 50 at 10; see also Phillips v. Tiona, 508 Fed.Appx. 737, 752 (10th Cir. 2013) (unpublished). Plaintiff does not challenge this finding. See Docket No. 52 at 8. Instead, he argues that the Court should liberally construe his claim as being brought pursuant to §§ 504, 701, and 794(a) of the Rehabilitation Act. See Id. The Court declines to do so. While the Court must construe plaintiff's filings liberally, see Hall, 935 F.2d at 1110, it will not act as his advocate or construct legal theories on his behalf. See Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). Plaintiff makes only one allegation in his complaint that would have put defendants on notice that he was asserting a disability-related claim. See Docket No. 13 at 19. That allegation clearly invokes the ADA as the basis for relief. See Id. The Court has found no other indication that plaintiff intended to pursue a claim under the Rehabilitation Act. Accordingly, the magistrate judge's recommendation that the Court dismiss plaintiff's ADA claim is accepted and plaintiff's objection is overruled.

         C. Timeliness of Claims Against Boling, Saint, and Ruda

          The magistrate judge found that plaintiff's First and Fourteenth Amendment claims against defendants Boling and Saint are time-barred under the applicable two-year statute of limitations, that the same claims against defendant Ruda are time-barred to the extent that they are based on conduct occurring before August 21, 2015, and that plaintiff's Eighth Amendment claims against all three defendants are time-barred to the extent that they are based on injuries other than sigmoid diverticulosis. See Docket No. 50 at 11. Plaintiff appears to raise four arguments in response to the magistrate judge's findings: (1) plaintiff has provided a detailed account of the “infliction of pain to his body and mind” leading up to his injury in August 2015; (2) he is entitled to equitable tolling; (3) the claims accrued on the date that plaintiff learned of his injury, which is within the two-year limitations period; and (4) the magistrate judge's recommendation is inconsistent with the finding that plaintiff's injury fell within the two-year limitations period. Docket No. 52 at 9-10.

         Plaintiff's first argument is unavailing because it does not address the magistrate judge's determination that plaintiff has not alleged any facts showing that defendants Boling and Saint engaged in unconstitutional conduct during the limitations period. See Docket No. 50 at 11-12. As for plaintiff's second argument, there is no indication that this case involves the type of “extraordinary circumstances” that would warrant equitable tolling. In Fogle v. Pierson, 435 F.3d 1252 (10th Cir. 2006), the sole case upon which plaintiff relies, the Tenth Circuit declined to rule out the possibility of equitable tolling where the plaintiff's claims accrued at or near the beginning of a three- year period of administrative segregation in which plaintiff was kept in his cell “23 hours a day for 5 days each week and 24 hours the other two days with no access to . . . law library clerks or prison lawyers.” Id. at 1258-59. No such circumstances are present in this case.

         Plaintiff next contends that the statute of limitations began to run on the date he knew of his injury. See Docket No. 52 at 9-10. He suggests that the magistrate judge's recommendation of dismissal is inconsistent with the finding that his sigmoid diverticulosis was diagnosed within the two-year limitations period. Id. The Court agrees, but finds that this fact weighs in favor of dismissal. As indicated in the magistrate judge's recommendation, a plaintiff's claims accrue on the date that he knows or has reason to know of “facts that would support a cause of action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (internal quotation marks omitted); see also Vasquez v. Davis, 882 F.3d 1270, 1276 (10th Cir. 2018) (finding that claims accrued “when [the plaintiff] had a complete and present cause of action; that is, when he could have filed suit and obtained relief”). Under this rule, the statute of limitations on plaintiff's Eighth Amendment claims began to run when defendants' “deliberate indifference caused [plaintiff] substantial harm, even [if] the full extent of the injury [was] not then known or predictable.” Vasquez, 882 F.3d at 1276; see also Bauer v. City & Cty. of Denver, 642 Fed.Appx. 920, 924 (10th Cir. 2016) (unpublished) (finding that Eighth Amendment claim accrued when defendants were deliberately indifferent to plaintiff's medical needs, not when plaintiff's foot was ultimately amputated).

         The magistrate judge found that plaintiff's Eighth Amendment claims against defendants Saint, Boling, and Ruda were not time-barred to the extent that they were based on plaintiff's sigmoid diverticulosis, which was formally diagnosed on September 4, 2015. See Docket No. 50 at 12-13; see also Docket No. 13 at 11-12. However, plaintiff's allegations demonstrate that he was aware that defendants' deliberate indifference had caused him substantial harm before that date. See, e.g., Docket No. 13 at 8 (describing informal grievance form, filed on March 16, 2015, which stated that the “staff ha[d] acted with deliberate indifference to [plaintiff's] medical condition which ha[d] resulted in substantial and serious harm, danger to health and loss of weight”). Accordingly, any claims based on plaintiff's sigmoid diverticulosis are also time-barred insofar as they depend on conduct occurring outside of the limitations period. See Vasquez, 882 F.3d at 1276. The magistrate judge's recommendation on this issue is rejected in part.

         D. Equal Protection Claims

         The magistrate judge recommended that the Court dismiss plaintiff's Equal Protection claims against all defendants in their individual and official capacities for failure to plead facts demonstrating that plaintiff was treated differently from other, similarly situated inmates. See Docket No. 50 at 14; see also Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1179 (10th Cir. 2003) (stating that an equal protection claim requires a showing that the plaintiff was “treated differently from others who were similarly situated to him”). In his objection, plaintiff argues that the magistrate judge “misse[d] the point” of his claim, which is that plaintiff was treated differently from other inmates who were entitled to “special meals.” Docket No. 52 at 11-12. Additionally, plaintiff suggests that he was treated differently from gluten-free inmates at other prisons on the Federal Correctional Complex. Id. at 12. As to plaintiff's first argument, the magistrate judge correctly found that plaintiff's Equal Protection claim is based primarily on conclusory allegations that plaintiff was “similarly situated to prisoners who were adequately fed.” Docket No. 50 at 14; see also Docket No. 13 at 19 (alleging that defendants deprived plaintiff of “the foods and fiber as was provided to all other similarly situated inmates”). At no point does the operative complaint compare plaintiff's experience to that of other inmates with special dietary needs at plaintiff's facility, and plaintiff cannot amend his complaint by making new factual allegations in response to defendants' motion to dismiss. Sudduth v. Citimortgage, Inc., 79 F.Supp.3d 1193, 1199 n.3 (D. Colo. Jan. 28, 2015) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)).

         To the extent plaintiff asserts that he was treated differently from inmates (those with gluten allergies or other dietary restrictions) at other prisons, see Docket No. 13 at 19 (alleging that “BOP Food Service Staff at all other prisons prepare special meals for a long list of needs”), plaintiff's allegations do not demonstrate that he was “similarly situated” to those inmates in all relevant respects. See Carney v. Okla. Dep't of Pub. Safety, 875 F.3d 1347, 1353 (10th Cir. 2017) (stating that a plaintiff asserting an Equal Protection claim must “make a threshold showing that he was treated differently from others who were similarly situated to him” (internal quotation marks and brackets omitted)); Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (affirming dismissal of prisoner's Equal Protection claim where it was “‘clearly baseless' to claim that there [were] other inmates who [were] similar in every relevant respect”); Fausia v. Cates, 2012 WL 781817, at *8 (C.D. Cal. Jan. 13, 2012) (collecting cases that hold, as a matter of law, inmates at different institutions are not similarly situated for purposes of an Equal Protection claim), repo ...


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