Tillmon v. County of Douglas

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss [#15]^[1] (the “Motion”). Plaintiff, who proceeds as a pro se litigant, ^[2] filed a well-written Response [#26] in opposition to the Motion, and Defendants filed a Reply [#31].^[3] The Motion has been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). See [#16]. Having reviewed the entire case file and being sufficiently advised, the Court respectfully RECOMMENDS that the Motion [#15] be GRANTED.

         I. Summary of the Case ^[4]

         At all times relevant to this lawsuit, Plaintiff was confined at the Douglas County Detention Center (“DCDC”) in Castle Rock, Colorado. See generally Compl. [#1]. Plaintiff generally asserts that Defendant Tony Spurlock (“Spurlock”) “operates racial discriminant [sic] practices and customs within the Douglas County Sheriff Department, and was aware that Plaintiff was being harassed based on his race and ethnicity as a Black man.” Id. at 12. Plaintiff states that “[t]he racial slurs and epithets [were] directed and targeted towards him, at times, from both, Douglas County Officers” as well as inmates, and that this “is a culture that is encouraged, condoned or custom” at DCDC. Id. at 13. Plaintiff states that this behavior began “from the moment Plaintiff was transported by the Deputies” from intake to the general population area of the facility. Id. at 14-15.

         Plaintiff further states that, “[i]nitially, after arriving at [DCDC], Plaintiff would regularly attend the Med-line expecting to receive his already prescribed mental-health medication: ‘Trazadone.'” Id. at 7. “Plaintiff believed the Trazadone prescription would have automatically followed him” from other facilities where he had been held, as it had in the past, but, despite his repeated inquiries and attempts to obtain his medication, the various unidentified medical personnel “wholly refused and failed to attend to or treat Plaintiff's mental health needs the entire time he was housed in [DCDC], . . . never receiv[ing] his prescription or any other mental health medication to treat his mental health diagnosis” while there. Id. at 8. As a result, Plaintiff regularly suffered from anxiety and panic attacks. Id. Plaintiff notes that while he was treated with Trazadone at other facilities, he never received a write-up. Id. at 9. However, during his roughly thirteen-month stay at DCDC without his medication, he received about twenty-three write-ups. Id.

         On November 26, 2015, Plaintiff's hand was broken in an altercation with another inmate. See Id. Despite his injury, his pain, and his repeated requests to unidentified deputies for medical care, Plaintiff was placed in segregation for eight hours before a nurse saw him and determined he needed to be sent to Castle Rock Adventist Hospital for proper treatment. See Id. at 6-7.

         Plaintiff incorporates into the Complaint a list of disciplinary actions he incurred prior to December 8, 2015, which covers most of his time at DCDC, although no specific dates are provided for these incidents: (1) a 15-day lockdown for creating/participating in a riot/disturbance; (2) a 5-day lockdown for not wearing his wristband, for disobeying an order, and for interfering with headcount; (3) a 10-day lockdown for disobeying an order and for using offensive language; (4) a 30-day lockdown for not cooperating with lockdown, for threatening, for using offensive language, and for throwing items; (5) a 48-hour lockdown for disobeying an order and for making excessive noise; (6) a 24-hour lockdown for violating food service rules; (7) a 24-hour lockdown for placing an item on a vent after having previously received a verbal warning; (8) a 48-hour lockdown for interfering with lockdown; (9) a 2-day lockdown for threatening and for making excessive noise; (10) a 24hour lockdown for violation of food service rules; (11) a 48-hour lockdown for not wearing/removing his wristband; (12) a 5-day lockdown for creating a disturbance, interfering with lockdown, possessing contraband, and interfering with duties of staff; (13) a 10-day lockdown for creating a disturbance, for interfering with duties of staff, and for threatening; (14) a 1-day lockdown for threatening and for disobeying an order; (15) a 48hour lockdown for not wearing/removing his wristband; (16) a 3-day lockdown for corresponding with separated inmates, for excessive noise, for making threats, and for placing hands on deputy station window; (17) a 3-day lockdown for throwing items; (18) a 15-day lockdown for assault on inmate and for entering another's cell; (19) a $5.00 monetary penalty for destruction of wristband; and (20) a 2-day lockdown for “entering a designated”^[5] and for refusing to obey an order. See Id. at 13 (incorporating [#715] at 5 in Criminal Action No. 14-cr-00231-WJM). Plaintiff states that the write-ups were “racially targeted” and “petty, ” and that they included incidents where, for example, he (1) gave another inmate sugar, (2) gave another inmate a piece of bread off his tray, and (3) put “a small piece of tissue in his vent to dispense a fragrant smell into his cell after he had cleaned it.” Compl. [#1] at 10-11. Plaintiff asserts that Defendant Keith Penry (“Penry”) failed to maintain and produce “video evidence regarding the issues surrounding Plaintiff's institutional violation convictions and assaults, ” despite Plaintiff's criminal counsel requesting a copy of the video(s). Id. at 11.

         Plaintiff asserts that Defendant Young was a Sergeant Deputy who was “the hearing and sanctioning Officer in Plaintiff's multiple and repeated disciplinary hearings, ” and that in each hearing, “she was aware that Plaintiff was the victim of racial discrimination and was being targeted, provoked and attacked by the [w]hite inmates because he was regularly placed in pods that consisted of 22 or 23 prisoners and was the only African-American in each . . . .” Id. at 9. Plaintiff notes that he was found guilty by Defendant Young on every occasion, that he “never received any prior written Notice of Charges within 24 [hours] of the scheduled hearing, ” and that his appeals were ignored. Id. at 10.

         On February 24, 2016, Plaintiff was sentenced in the criminal case for which he had been held at DCDC. See [#812] in Criminal Action No. 14-cr-00231-WJM. In imposing the sentence, the Court granted Plaintiff's motion for a downward variance from the federal minimum sentence, in part “due to the harshness of the time spent in pretrial confinement . . . .” Compl. [#1] at 14 (quoting [#825] at 3 in Criminal Action No. 14-cr-00231-WJM). Plaintiff was shortly thereafter transferred from DCDC.^[6] See generally Compl. [#1] at 4, 13, 16.

         As a result of these incidents, Plaintiff filed this lawsuit on February 27, 2018, against Defendant County of Douglas, Defendant Spurlock, Defendant Penry, Defendant Young, and unidentified Doe Medical Defendants and Doe Deputy Defendants. Id. at 1-3. Plaintiff asserts three claims: (1) Fourteenth Amendment due process and equal protection violations on the basis of racial discrimination; (2) Fourteenth Amendment and Eighth Amendment violations on the basis of lack of adequate medical care; and (3) Fourteenth Amendment due process and equal protection violations in connection with the disciplinary proceedings against him.^[7] Id. at 14-17. Plaintiff seeks damages and an order enjoining Defendants from future violations of his civil rights. Id. [#1] at 18. In the present Motion [#15], Defendants seek dismissal of all of Plaintiff's claims.

         II. Standards of Review

         A. Federal Rule fo Civil Procedure 12(b)(1)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide ranging discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

         B. Federal Rule of Civil Procedure 12(b)(6)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” a factual allegation has been stated, “but it has not show[n][ ]that the pleader is entitled to relief, ” as required by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).

         III. Analysis

         A. Purported Class Action Relief

         The Court first addresses Plaintiff's brief assertion that he brings this lawsuit so that “Defendants be enjoined from future violations of Plaintiff's and other similarly situated Protected Class Members' rights under the First, Sixth, Eighth and Fourteenth Amendments.” See Compl. [#1] at 18 (emphasis added).

         “Generally, a non-lawyer does not possess sufficient legal training or skills to represent others in class litigation.” Ransom v. U.S. Postal Serv., 170 Fed.Appx. 525, 528 (10th Cir. 2006). “A litigant may bring his own claims to federal court without counsel, but not the claims of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000). “The rule against pro se representation of others is particularly important in class actions because class litigation must comply with the complex and demanding requirements of Rule 23 of the Federal Rules of Civil Procedure.” Ransom, 170 Fed.Appx. at 529. “Indeed, Rule 23(g) requires appointment of class counsel, unless otherwise provided by statute.” Id. “Furthermore, a judgment in a class action may foreclose other class members from later bringing the same claims.” Id. The Tenth Circuit Court of Appeals has stated that, in the absence of any statute providing otherwise, it “will not entrust those claims to a non-lawyer.” Id. In short, “a pro se cannot litigate on behalf of a class.” Id. at 528.

         Accordingly, to the extent Plaintiff is asserting class claims in this action, the Court recommends that those class claims be dismissed without prejudice.^[8] Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir.1990) (stating that prejudice not should attach to a dismissal when the plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).

         B. Mootness of Injunctive Relief

          The Court next addresses Plaintiff's brief assertion that he brings this lawsuit so that “Defendants be enjoined from future violations of Plaintiff's . . . rights under the First, Sixth, Eighth and Fourteenth Amendments.” See Compl. [#1] at 18.

         “When a prisoner files suit against prison officials who work in the institution in which he is incarcerated, seeking declaratory and injunctive relief on the basis of alleged wrongful conduct by those officials, and then that prisoner is subsequently transferred to another prison . . ., courts are presented with a question of possible mootness.” Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). “Where the prisoner's claims for declaratory or injunctive relief relate solely to the conditions of confinement at the penal institution at which the prisoner is no longer incarcerated, courts have concluded that they are unable to provide the prisoner with effective relief.” Id. “Because a prisoner's transfer . . . signals the end of the alleged deprivation of his constitutional rights, an entry of equitable relief in his favor would amount to nothing more than a declaration that he was wronged, and would ...