Hancock v. Cirbo

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (DKT. #23)

          N. REID NEUREITER UNITED STATE MAGISTRATE JUDGE.

         This 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^[1] (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 following recommendation.

         I. BACKGROUND

         a. Procedural History

         On 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.)

         b. Plaintiffs Allegations

         The 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.

         Mr. 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.

         Mr. 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 for relief:

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 belief[]s 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.)

         c. Defendants' Motion to Dismiss

         Defendants 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.

         II. LEGAL STANDARDS

         a. Pro Se Plaintiff

         Mr. 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 Cir. 2002).

         b. Lack of Subject Matter Jurisdiction

         Federal 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 ...