United States District Court, D. Colorado
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 ...