United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (DKT.
REID NEUREITER UNITED STATE MAGISTRATE JUDGE.
case is before the Court pursuant to an Order (Dkt. #24)
issued by Judge Raymond P. Moore referring Defendants Andra
Cirbo and Derrick Porcher's (collectively
"Defendants") Motion to Dismiss Plaintiff's
Amended Complaint. (Dkt. #23.) Plaintiff Kristopher Hancock,
who proceeds pro se, filed a Response. (Dkt. #30.) No reply
was filed. On December 11, 2018, the Court held a hearing on
the subject motion. (Dkt. #35.) The Court has taken judicial
notice of the Court's file, considered the applicable
Federal Rules of Civil Procedure and case law, and makes the
September 19, 2017, Mr. Hancock filed, pro se, a Prisoner
Complaint (Dkt. #1) asserting a deprivation of his
constitutional rights pursuant to 42 U.S.C. § 1983 and
28 U.S.C. § 1343. Mr. Hancock was granted leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
(Dkt. #9.) On November 3, 2017, Magistrate Judge Gallagher
directed Mr. Hancock to file an amended prisoner complaint
that adequately asserted persona! participation by all named
defendants. (Dkt. #10.) Mr. Hancock filed an Amended Prisoner
Complaint on Decembers, 2017 (Dkt. 11), but was again
directed to amend his allegations. (Dkt. #12.) When he failed
to do so, Judge Babcock dismissed Mr. Hancock's claims
against certain defendants, and the remaining claims against
Defendants Porcher and Cirbo were drawn to Judge Moore and
Magistrate Judge Watanabe. (Dkt. #13.) When Magistrate Judge
Watanabe retired, the case was assigned to me. (Dkt. #33.)
following allegations are taken from the relevant,
non-dismissed portions of Mr. Hancock's Amended Prisoner
Complaint ("Amended Complaint") (Dkt. #11) and are
presumed to be true for the purposes of this motion.
Hancock is in the custody of the Colorado Department of
Corrections ("CDOC") and is currently incarcerated
at the Colorado Territorial Correctional Facility
("CTCF"). Mr. Hancock alleges that he is Jewish and
that his religious beliefs require him to eat a kosher diet.
(Id. at 4.) Mr. Hancock claims that he informed
officials at the El Paso County Jail and the CDOC that he
required a kosher meal for religious purposes. (Id.)
He alleges that Defendant Porcher, who oversaw prisoner
intake at the Denver Reception and Diagnostic Center
("DRDC"), failed to allow him to fill out a
preference sheet so that he could receive kosher meals.
(Id. 5.) Defendant Porcher also forced Mr. Hancock
to shave off his beard, the wearing of which is a part of Mr.
Hancock's religious beliefs. (Id.) Mr. Hancock
alleges that Defendant Cirbo, the "kosher
provider," denied several requests to provide him with a
kosher meal. (Id.) Although the Amended Complaint
does not specify how long he was denied religious meals, at
the hearing held on December 11, 2018, Mr. Hancock clarified
that it was two to three months. He also informed the Court
that he has since been permitted to grow out his beard.
Hancock claims that Defendants have violated his rights under
the First, Eighth, and Fourteenth Amendments, and under Colo.
Rev. Stat. § 17-42-101. He asserts the following request
The relief which l[']m requesting that the Defendants be
order[e]d to pay 10, 000 (Ten Thousand Dollars) a day for
everyday [sic] that Plaintiff went without his kosher diet,
and by them denieing [sic] him his religious beliefs for
the pain and humility, that all Defendants pay 10, 000
dollars a day for violating my const, rights[.] I also want
one million dollars in damages in this action.
(Id. at 7) (extraneous quotation marks omitted.)
Defendants' Motion to Dismiss
moved to dismiss Mr. Hancock's claims on April 4, 2018.
(Dkt. #23.) Defendants argue that Mr. Hancock's claims
should be dismissed under Rule 12(b)(1) and 12(b)(6).
Defendants state that they are immune from damages to the
extent that they are being sued in their official capacities.
They also claim that the Prison Litigation Reform Act
("PLRA") bars Mr. McDonald's claims for
damages. Defendants argue that Mr. Hancock has failed to
state claims for relief under the First, Eighth, or
Fourteenth Amendment. Finally, Defendants state that they are
entitled to qualified immunity.
Pro Se Plaintiff
Hancock is proceeding pro se. The Court, therefore,
"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).
However, a pro se litigant's "conclusory allegations
without supporting factual averments are insufficient to
state a claim upon which relief can be based." Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A
court may not assume that a plaintiff can prove facts that
have not been alleged, or that a defendant has violated laws
in ways that a plaintiff has not alleged. Associated Gen.
Contractors of Cat., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). See also
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (court may not "supply additional factual
allegations to round out a plaintiff's 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 plaintiff in the absence of any
discussion of those issues"). A plaintiff's pro se
status does not entitle him to an application of different
rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th
Lack of Subject Matter Jurisdiction
Rule of Civil Procedure Rule 12(b)(1) empowers a court to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS,23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction "must dismiss the case at any ...