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Bueno v. Chekush

United States District Court, D. Colorado

December 21, 2018



          Scott T. Varholak United States Magistrate Judge

         This matter comes before the Court on a Motion to Dismiss (the “Motion”), filed by Defendants Marcie Chekush, Scott Willard, and Larry Turner[1] on August 8, 2018. [#25] The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [## 31, 32] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the Motion's disposition. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.


         In January 2017, Plaintiff Michael Bueno, an inmate currently imprisoned at the Sterling Correctional Facility (“SCF”), was transferred from SCF to the Denver Reception and Diagnostic Center (“DRDC”) to work as an Offender Care Aide (“OCA”) in the facility's infirmary. [#9 at ¶ 2] As an OCA, Plaintiff is specially trained to assist inmates with serious disabilities under the Americans with Disabilities Act, and inmates who require hospice care. [Id.] DRDC is a facility where many Colorado Department of Corrections (“CDOC”) inmates are sent for serious medical procedures or end-of-life transitions. [Id.]

         At DRDC, Plaintiff began working at the infirmary and training with other OCAs as an “OCA III.” [Id. at ¶ 3] The OCA III position is particularly advantageous because of the quality of work and the hourly wage, which is significantly higher than other positions within the CDOC. [Id.] Because Plaintiff's position was considered a “facility needs” job, Plaintiff was classified as a permanent resident at DRDC. [Id.] Plaintiff was placed in the incentive unit, a desirable assignment due to superior living conditions, in recognition for his many years of good behavior. [Id.]

         On April 6, 2017, Plaintiff was informed by another inmate that Correctional Officer Houran had opened Plaintiff's mail, and displayed and laughed at photographs of Plaintiff's wife in lingerie. [Id. at ¶¶ 4-5] Officer Houran had harassed Plaintiff since his arrival at DRDC, including calling Plaintiff a homophobic slur over a facility intercom. [Id. at ¶ 9] Plaintiff reported the issue to two correctional officers, who reviewed the camera footage of Officer Houran delivering mail. [Id. at ¶ 6] The officers informed Plaintiff that they would contact the shift commander about the incident, and apologized to Plaintiff for Officer Houran's misconduct. [Id.]

         On April 7, 2017, Lieutenant Marcie Chekush, who was Officer Houran's supervising officer, informed Plaintiff that she had heard about Officer Houran's misconduct, and noted that staff is not allowed to deliver mail when inmates are out of their cells. [Id. at ¶¶ 7-8] A few days later, on April 10, 2017, Plaintiff again spoke with Lieutenant Chekush who informed Plaintiff that she would investigate the mail incident. [Id. at ¶ 10] On that same day, Lieutenant Chekush contacted Officer Willard, Plaintiff's case manager, and requested that Plaintiff be removed from the facility because he had complained about staff. [Id. at ¶ 11] Lieutenant Chekush, Officer Willard, and Case Manager Shoaga, head supervisor for all DRDC case managers, discussed Plaintiff's complaints regarding Officer Houran and agreed that Plaintiff should be removed from the facility for complaining about Officer Houran. [Id. at ¶ 18; see also Id. at ¶ 23] Plaintiff was transported back to SCF on April 11, 2017, losing his incentive unit housing and his OCA III position. [Id. at ¶ 12] Plaintiff discovered his transfer had been justified as a bed space reclassification, approved by Officers Willard and Shoaga, even though Plaintiff was immediately replaced by another OCA III who was transferred from SCF to DRDC. [Id. at ¶¶ 15-16, 19, 23]

         Plaintiff filed the instant lawsuit on March 22, 2018 pursuant to 42 U.S.C. § 1983. [#1] Plaintiff was ordered to file an amended complaint [#5], which he filed on May 29, 2018, alleging four First Amendment retaliation claims against Officers Chekush, Willard, Shoaga, and Turner, respectively. [#9 at 4-9] Plaintiff alleges that the officers retaliated against him for complaining about Officer Houran's conduct by transferring Plaintiff back to SCF, in violation of his First Amendment rights. [See generally #9] Plaintiff is suing all Defendants in both their individual and official capacities. [Id. at 2-4] Plaintiff seeks declaratory relief, injunctive relief enjoining Defendants from retaliating against Plaintiff for making complaints against Officer Houran and compelling the CDOC to investigate Officer Houran, and nominal, compensatory, and punitive damages. [Id. at 10] Defendants Chekush, Willard, and Turner filed the instant Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on August 8, 2018. [#25] Plaintiff opposes the Motion. [#40]


         Federal Rule of Civil Procedure 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, but only a determination that the court lacks authority to adjudicate the matter. 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). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, at 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

         III. ANALYSIS

         Defendants argue that Plaintiff's claims against them should be dismissed in their entirety. [#25] Specifically, Defendants contend that: (1) they are entitled to qualified immunity because Plaintiff has failed to allege a First Amendment retaliation claim, or that Defendants violated clearly established law [id. 5-8, at 10-11]; (2) Plaintiff's official capacity claims are barred by Eleventh Amendment sovereign immunity to the extent Plaintiff seeks damages [id. at 3-4]; (3) Plaintiff has failed to establish Defendants' personal participation in the alleged constitutional violations [id. at 4-5]; (4) Plaintiff cannot recover compensatory damages under the Prison Litigation Reform Act (“PLRA”) [id. at 8-9]; (5) Plaintiff cannot recover punitive damages [id. at 9-10]; and (6) any claims for injunctive relief are moot [id. at 11-12]. The Court addresses each argument in turn.

         A. First Amendment Retaliation and Qualified Immunity

         Plaintiff's four claims allege that each Defendant retaliated against him after he exercised his First Amendment rights to complain about Officer Houran's misconduct. [#9 at 4-9] Defendants move to dismiss these claims on the grounds that Plaintiff has not adequately pled a retaliation claim. [#25 at 5-8] Alternatively, Defendants assert that they are entitled to qualified immunity as they did not violate clearly established law. [Id. at 10-11] The Court disagrees with both arguments.

         “Qualified immunity ‘protects government officials from liability for civil damages insofar as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”'” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To defeat a claim of qualified immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a constitutional right, and (2) that the right at issue was “clearly established” at the time of the defendant's alleged misconduct. See Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir. 2010).

         1. Constitutional Violation

         “It is well-settled that prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts.” Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (quotation omitted). “Nor may prison officials retaliate against prisoners for filing administrative grievances.” Leek v. Miller, No. 16-3225, 2017 WL 2459812, at *2 (10th Cir. June 7, 2017) (citing Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991)). Nevertheless, “it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison” and “an inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).

         To state a First Amendment retaliation claim against a government official, a plaintiff must prove three elements:

(1) That the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a ...

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