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Johnson v. Whitney

United States District Court, D. Colorado

January 30, 2019




         This case is before the Court pursuant to an Order (Dkt. #35) issued by Judge R. Brooke Jackson referring Defendant Tonya Whitney's Motion to Dismiss. (Dkt. #34.) The Court has carefully considered the motion and the supplements thereto (Dkt. ##63-1-63-4), and Plaintiff Calvin Johnson's Response.[1] (Dkt. #37.) On December 11, 2018, the Court heard argument on the subject motion. (Dkt. #67.) 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

         Mr. Johnson's allegations are relatively straightforward. Mr. Johnson is an inmate of the Colorado Department of Corrections (“CDOC”). Defendant Whitney works in the CDOC's Inmate Banking Office. (Dkt. #25 at 2.) On November 1, 2016, Mr. Johnson alleges that Ms. Whitney withheld $3.82 of his inmate pay and refused to deposit it into his inmate account in violation of CDOC Administrative Regulation (“AR”) 200-15. (Id. at 5.) On February 3, 2017, Mr. Johnson alleges that Ms. Whitney and a prison official identified as Jane Doe #2 withheld $1.41 of his inmate pay in retaliation for an administrative grievance he filed regarding the withholding of funds in November 2016. (Id.)

         On June 29, 2017, Judge Babcock entered an Order (Dkt. #7) dismissing Mr. Johnson's original Prisoner Complaint (Dkt. #1) as legally frivolous. Mr. Johnson appealed, and on January 24, 2018, the United States Court of Appeals for the Tenth Circuit reversed and remanded for further proceedings. See Johnson v. Whitney, 723 Fed.Appx. 587, 589 (10th Cir. 2018) (unpublished). The Tenth Circuit determined that the Court erred in dismissing Mr. Johnson's due process claims because (1) Mr. Johnson may state an arguable claim that he was deprived of a protected property interest; and (2) the Court failed to consider whether Mr. Johnson's failure to plead that his state post-deprivation remedy was inadequate was a defect that could be cured by amendment Id. at 591. The Tenth Circuit also concluded that Mr. Johnson pled sufficient facts to connect Ms. Whitney's alleged retaliation in withholding the $1.41 to his filing of the previous grievance. Id. at 594-95.

         On remand, Magistrate Judge Gallagher determined that amendment would not be futile and directed Mr. Johnson to file an amended complaint if he wished to pursue his due process and retaliation claims. (Dkt. #20 at 2, 5.)

         On March 14, 2018, Mr. Johnson filed an Amended Prisoner Complaint. (Dkt. #21.) The Amended Prisoner Complaint asserted new claims against Magistrate Judge Gallagher and CDOC Executive Director Rick Raemisch, in addition to the due process and retaliation claims against Defendant Whitney and Jane Doe. Magistrate Judge Gallagher then recused, and the case was reassigned to Magistrate Judge Mix to complete the initial review. (Dkt. #23.) Magistrate Judge Mix ordered Mr. Johnson to file a second amended complaint, noting that the claims against the newly-named defendants were improper, and determining that the Amended Prisoner Complaint was deficient because Mr. Johnson failed to provide a short and plain statement of his due process and retaliation claims against Ms. Whitney and Jane Doe. (Dkt. #24.)

         On April 20, 2018, Mr. Johnson filed a Second Amended Prisoner Complaint. (Dkt. #25.) On April 25, 2018, Judge Babcock dismissed Mr. Johnson's official capacity claims for damages and his individual capacity due process claims. (Dkt. #27 at 7-8.) The only remaining claim-Mr. Johnson's retaliation claim against Ms. Whitney and Jane Doe #2 in their individual capacities-was assigned to Judge Jackson and Magistrate Judge Watanabe. (Id.) When Magistrate Judge Watanabe retired, the case and the subject motion were referred to me. (Dkt. #42.)


         a. Pro Se Plaintiff

          Mr. Johnson 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 Cal., 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. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “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.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at1198. “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads ...

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