United States District Court, D. Colorado
ORDER
Scott
T. Varholak Magistrate Judge
This
matter comes before the Court on Defendant Bruce
Bradley's Motion to Dismiss Plaintiff's First Amended
Complaint [#39] (the “Bradley Motion”) and the
Motion to Dismiss filed by Defendants Raemisch, Johnson,
White, Wang, Urich, Avant, Smith and Lake [#40] (the
“State's Motion”). The parties have consented
to proceed before the undersigned United States Magistrate
Judge for all proceedings, including entry of a final
judgment. [#14, 29, 37, 38] This Court has carefully
considered the motions and related briefing, oral argument
held on January 10, 2019, the case file, and the applicable
case law. For the following reasons, IT IS
ORDERED that the Bradley Motion is GRANTED
IN PART AND DENIED IN PART and the State's
Motion is GRANTED IN PART AND DENIED IN
PART.
I.
BACKGROUND [1]
Plaintiff
is a former inmate of the Denver Women's Correctional
Facility (“DWCF”), a facility within the Colorado
Department of Corrections (“DOC”). [#22 at
¶¶ 1, 6-7] In early 2014, Plaintiff began working
in Canteen Services at DWCF. [Id. at ¶ 19] She
was primarily responsible for assisting in loading and
unloading goods from trucks at the facility's loading
dock. [Id.] Defendant Correctional Support Trades
Supervisor Bruce Bradley was Plaintiff's most senior
supervisor at Canteen Services, though Defendants
Correctional Officers David Wang and David Urich were also
supervisors. [Id. at ¶¶ 12, 20]
Plaintiff
worked with three other female inmates. [Id. at
¶ 19] According to the Amended Complaint, shortly after
Plaintiff began working at Canteen Services, Defendant
Bradley began sexually harassing Plaintiff and the three
other female inmates. [Id. at ¶¶ 21, 24]
For instance, on one occasion, Defendant Bradley closely
observed the inmates remove their boots and inquired whether
the women took good care of their feet and painted their
toenails. [Id. at ¶ 25] He told them to wear
red nail polish because it was his favorite color.
[Id.] In the following days, he repeatedly told them
that it was time for a “pedi check.”
[Id. at ¶ 26] When the inmates refused to show
him their toenails or did not paint their toenails, Defendant
Bradley would behave rudely toward them. [Id.]
Defendant Bradley also repeatedly told Plaintiff that his
wife's feet “turned [him] on” and that he
wanted Plaintiff to paint her toenails because that would
sexually excite him. [Id. at ¶ 27]
“Defendant Bradley's practice of sexually harassing
the women he supervised became so pervasive that the women
who worked on the dock made an agreement that if Defendant
Bradley was ever seen talking to one of the women, another
would join her so that she would not be left alone with him
and thereby [become] vulnerable to his harassment.”
[Id. at ¶ 29]
Though
Defendant Bradley sexually harassed all four women, he
focused most of his harassment on Plaintiff. [Id. at
¶ 24] For example, on at least one occasion, Defendant
Bradley told Plaintiff about a new sex toy that he had
purchased to use with his wife. [Id. at ¶ 28]
He also described to Plaintiff in graphic terms the sex acts
that he performed with his wife. [Id.]
Approximately
eight months after she began working in Canteen Services,
Plaintiff and the other Canteen Services workers were tasked
with performing inventory, which entailed tracking the goods
in storage at DWCF. [Id. at ¶ 31] Defendant
Bradley, who directly supervised this process, used this
opportunity to increase his sexual harassment of Plaintiff.
[Id. at ¶¶ 31-32] He repeatedly approached
Plaintiff from behind and forcefully pressed his genitals
into her buttocks, lasciviously moaning “mmmmmm”
in Plaintiff's ear. [Id. at ¶¶ 32-33]
In an attempt to escape Defendant Bradley's constant
sexual harassment, Plaintiff told him that she was a lesbian.
[Id. at ¶ 34] Defendant Bradley responded by
discussing with Plaintiff the possibility of sexual
encounters involving himself, Plaintiff, and another woman.
[Id.]
Around
October 2015, two of the four female inmates in Canteen
Services were released from prison. [Id. at ¶
35] Following those inmates' release, Defendant
Bradley's harassment of Plaintiff escalated.
[Id. at ¶ 38] He began demanding that Plaintiff
show him her breasts, and threatened her with punishment if
she refused. [Id. at ¶¶ 38-39] Believing
she had no choice, Plaintiff reluctantly showed Defendant
Bradley her breasts. [Id. at ¶ 39]
On
another occasion, Plaintiff was in Defendant Bradley's
office shortly after she had been informed of the death of a
family member. [Id. at ¶ 40] Defendant Bradley
suggested that him “jacking off and [his] semen hitting
[Plaintiff] in the face would make her feel better.”
[Id.] Defendant Bradley made similar comments on
other occasions. For example, he told Plaintiff something to
the effect of “you know I shoot porno loads” and
that he wanted to have anal sex with Plaintiff. [Id.
at ¶ 41] On yet another occasion, Defendant Bradley
offered to allow Plaintiff to use his personal cell phone if
she would masturbate for him-an offer Plaintiff refused.
[Id. at ¶ 42] On what appears from the Amended
Complaint to be a separate incident, Defendant Bradley told
Plaintiff that if she did not masturbate for him, he would
write her up for disobeying a lawful order, and that she
would lose her parole. [Id. at ¶ 45] Plaintiff
told Defendant Bradley that he was “fucking
crazy” and then left his office. [Id.]
Plaintiff
repeatedly complained to Defendants Wang and Urich that
Defendant Bradley “was sexually harassing and scaring
her.” [Id. at ¶ 43] Moreover, Defendant
Wang personally observed the incident where Defendant Bradley
told Plaintiff that he would write her up if she did not
masturbate for him. [Id. at ¶ 45] Defendants
Wang and Urich neither documented nor stopped Defendant
Bradley's behavior. [Id. at ¶ 44] Instead,
they told her that “that's how he is” and to
be “glad” that he “like[d] her.”
[Id.] On one occasion, after she complained about
Defendant Bradley, Defendant Wang told Plaintiff to put
Defendant Bradley “in a good mood.” [Id.
at ¶ 44]
On or
about April 15, 2016, Plaintiff met with Defendant
Investigator Scott Smith from the DOC Office of the Inspector
General (“OIG”) about an unrelated issue.
[Id. at ¶ 47] Plaintiff stated that she wanted
to report an incident of staff misconduct and asked to meet
with him another time. [Id.] Approximately four days
later, Defendant Smith summoned Plaintiff to the
administrative offices at DWCF. [Id. at ¶ 48]
Defendants Captain Ramona Avant, Associate Warden Terry
Jaques, and another OIG representative were also present at
the meeting.[2] [Id.]
At the
meeting, Plaintiff told the Investigators that her complaint
was related to Defendant Bradley. [Id. at ¶ 49]
The Investigators responded by saying something to the effect
of “they had assumed as much.” [Id.] The
Investigators stated that DOC had received numerous
complaints about Defendant Bradley sexually harassing or
assaulting inmates over the ten years that Defendant Bradley
had worked at DOC, but every time an investigation was
launched, “it became a he said/she said
situation.” [Id.] The Investigators asserted
that, as a result, DOC had no proof of Defendant
Bradley's misconduct, though they made clear that they
knew that Defendant Bradley had sexually harassed other
inmates. [Id. at ¶¶ 49-50]
The
Investigators told Plaintiff that they wanted hard evidence
of Defendant Bradley's misconduct. [Id. at
¶ 50] Plaintiff offered to provide personal, sexual
information about Defendant Bradley that she was aware of
from his past harassment, such as the type of sex toy
Defendant Bradley had given his wife. [Id.] The
Investigators believed that it would be too
“awkward” to confirm such information, and
instead asked her to wear a wire and record an act of
misconduct by Defendant Bradley. [Id. at ¶ 51]
Plaintiff initially refused to wear the wire, but after much
persuasion and assurances by the Investigators that they
would protect her from Defendant Bradley and any other
potential negative consequences of the undercover operation,
Plaintiff agreed. [Id. at ¶¶ 52-56]
Defendant Smith briefed Defendant Chief Investigator Danny
Lake about the operation, and Defendant Lake approved it and
assisted in advising Defendant Smith on the technology to be
used. [Id. at ¶ 58]
On or
around April 26, 2016, the Investigators fitted Plaintiff
with a wire. [Id. at ¶ 60] Defendant Avant
assisted Plaintiff to devise a cover to avoid the metal
detector. [Id.] Plaintiff returned to her normal
duties on the dock, with the wire active. [Id. at
¶ 61] Shortly thereafter, Defendant Bradley paged
Plaintiff to his office. [Id. at ¶ 63]
Defendant Bradley immediately started to harass Plaintiff and
demanded that she show him her breasts. [Id. at
¶ 64] He began to chide Plaintiff for her reluctance to
masturbate in front of him. [Id. at ¶ 65] When
Plaintiff asked Defendant Bradley what was wrong with him, he
became visibly angry. [Id. at ¶¶ 66-67] He
stood up, backed her into a wall, and forcefully thrust his
hand between her legs, groping her crotch. [Id. at
¶ 67] Plaintiff was left alone with Defendant Bradley
for approximately three minutes after the assault began, at
which point Sergeant Hall entered the office and removed
Plaintiff. [Id. at ¶¶ 68-69]
After
Plaintiff was taken from the office and the wire was removed,
she met with several of the Investigators. [Id. at
¶ 71] Plaintiff asked the Investigators why they had
taken so long to take her out of Defendant Bradley's
office. [Id.] The Investigators explained that the
device was not transmitting well initially. [Id.] In
fact, the connection between the wire transmitting device and
the listening device failed repeatedly, and Defendant Smith
was unable to hear Plaintiff or anyone else throughout most
of the wire operation. [Id. at ¶ 72] Despite
this inability to hear Plaintiff, Defendant Smith allowed the
operation to continue. [Id.]
The
next day, Defendant Bradley was placed on administrative
leave, and he would eventually resign in lieu of firing.
[Id. at ¶ 75] Word quickly spread through DWCF
that Plaintiff had worn a wire and caused Defendant Bradley
to lose his job. [Id. at ¶ 76] Inmates who
liked Defendant Bradley confronted Plaintiff and repeatedly
threatened her with physical harm and even death.
[Id. at ¶ 77] Plaintiff was forced to stop
leaving her unit because she feared that she would be killed.
[Id. at ¶ 79] She stopped sleeping out of fear
of an attack, and, when she did sleep, she had horrific
nightmares. [Id.] She was afraid to go to the food
hall, and was left with no choice but to request solitary
confinement so that she could eat. [Id. at ¶
80] She sent out requests pleading for help, and her mother
even called DOC asking to have Plaintiff transferred.
[Id. at ¶ 81] Neither the Investigators nor
anyone else addressed her concerns. [Id.]
Plaintiff
was released from DWCF on June 24, 2016. [Id. at
¶ 83] Nonetheless, she continues to suffer from her
experiences. [Id. at ¶¶ 84-88] She
continues to have flashbacks of Defendant Bradley's
sexual assault, and suffers from nightmares and night terrors
related to his conduct. [Id. at ¶¶ 84-85]
The trauma has impacted Plaintiff's relationship with her
fiancé, and she feels humiliated and disgusted with
herself. [Id. at ¶¶ 85-86]
Plaintiff
is not the first inmate to suffer sexual harassment and
assault by guards at DWCF. In 2009, a DWCF inmate was awarded
$1.3 million in her lawsuit against a DWCF guard who
repeatedly coerced her into performing sexual acts and
subsequently raped her. [Id. at ¶ 89] The guard
had a history of engaging in sexual misconduct with female
inmates, a fact well known to prison officials.
[Id.] As part of the settlement of the resulting
lawsuit, DOC agreed to conduct supplemental annual training
under the Prison Rape Elimination Act, focused on preventing
DOC employee-on-inmate sexual contact. [Id. at
¶ 91] DOC also agreed to uphold a
“zero-tolerance” policy for employee-on-inmate
sexual contact, mandating that DOC employees report any
information about such contact. [Id.]
Despite
these agreements, in 2011 and 2012, DWCF had the highest rate
in the country of alleged sexual assault or misconduct by
correctional facility staff members against inmates.
[Id. at ¶ 92] An estimated 10.7 percent of DWCF
inmates claimed that they were victims of sexual assault or
misconduct by staff members. [Id.] Of all DWCF
inmates subjected to sexual misconduct by staff, 7.3 percent
reported that they had been physically coerced or threatened
with physical force, ten times higher than the national
average. [Id.] Prison officials knew about the
ongoing and pervasive sexual misconduct and abuse at DWCF.
[Id. at ¶ 90]
Indeed,
for ten years prior to Defendant Bradley's assault on
Plaintiff, Prison officials knew that Defendant Bradley had
been engaged in sexual misconduct with inmates. [Id.
at ¶¶ 22-23, 94] Witnesses had observed Defendant
Bradley sexually harassing female inmates as early as 2008,
and DOC officials had received numerous complaints about
Defendant Bradley sexually harassing or assaulting inmates.
[Id.] Though DOC had previously investigated
Defendant Bradley for such conduct, DOC officials failed to
take any significant action against him. [Id. at
¶¶ 23, 94]
On
April 10, 2018, Plaintiff initiated the instant action. [#1]
The Amended Complaint brings five claims for relief: (1) an
Eighth Amendment excessive force claim against Defendant Rick
Raemisch, DOC's Executive Director, and Defendants
Bradley, Johnson, and Jaques [#22 at ¶¶ 98-116];
(2) a Fourteenth Amendment substantive due process claim for
invasion of bodily integrity against Defendants Raemisch,
Bradley, Johnson, and Jaques [id. at ¶¶
117-131]; (3) a Fourteenth Amendment substantive due process
claim for state-created danger against Defendants Jaques,
Smith, Avant, and Lake [id. at ¶¶
132-146]; (4) a First Amendment retaliation claim against
Defendants Jaques, Smith, Avant, and Lake [id. at
¶¶ 147-156]; and (5) an Eighth Amendment failure to
protect claim against Defendants Urich and Wang [id.
at ¶¶ 157-168]. Plaintiff sued Defendant Raemisch
in his official capacity, and all other Defendants in their
individual and official capacities. [See generally
#22] Defendants have moved to dismiss the Amended Complaint.
[# 39, 40] Plaintiff responded to the Motions [#51], and
Defendants have replied [# 60, 61].
II.
STANDARD OF REVIEW
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).
III.
ANALYSIS
The
State's Motion seeks to dismiss the official capacity
claims because any damages claim is barred by the Eleventh
Amendment and any claim for injunctive relief is moot. [#40
at 4-6] The State's Motion further argues that: (1) the
Fourteenth Amendment does not apply to this case, because the
Eighth Amendment covers all of Plaintiff's claims
[Id. at 6-7]; (2) Defendants Johnson, Jaques, Lake,
Urich, and Wang should be dismissed for lack of personal
participation [id. at 8-12]; (3) Plaintiff fails to
state a First Amendment retaliation claim [id. at
13-15]; and (4) Defendants Johnson, Jaques, Wang, Urich,
Avant, Smith, and Lake are entitled to qualified immunity
[id. at 15-18]. The Bradley Motion argues that
Defendant Bradley is entitled to qualified immunity [#39 at
4-10, 12-13] and that the substantive due process claim
should be dismissed as redundant of the excessive force claim
[id. at 10-12]. The Court addresses Defendants'
arguments below.
A.
Official Capacity Claims
The
State's Motion argues that the Eleventh Amendment bars
Plaintiff's claims for damages against the Defendants in
their official capacities, and that any claim for injunctive
relief is moot now that Plaintiff has been released from
custody. [#40 at 4-6] Plaintiff consents to the dismissal of
her claims against Defendant Raemisch and of her claims
against all other Defendants in their official capacities.
[#51 at 4 n.2] Accordingly, the Court DISMISSES WITHOUT
PREJUDICE all claims against Defendants in their official
capacities and DISMISSES Defendant Raemisch as a Defendant in
this matter. See Colby v. Herrick, 849 F.3d 1273,
1278 (10th Cir. 2017) (noting that dismissal based upon
Eleventh Amendment immunity should be a dismissal without
prejudice).
B.
Individual Capacity Claims
Each
Defendant has raised the doctrine of qualified immunity as a
bar to each of the individual capacity claims asserted
against them. “The doctrine of 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.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quotation omitted).
Once the defense of qualified immunity has been raised,
“the onus is on the plaintiff to demonstrate ‘(1)
that the official violated a statutory or constitutional
right, and (2) that the right was “clearly
established” at the time of the challenged
conduct.'” Quinn v. Young, 780 F.3d 998,
1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 735 (2011)).
1.
Claim One - Cruel and Unusual Punishment, Excessive Force in
Violation of the Eighth Amendment
Claim
One alleges an Eighth Amendment excessive force claim against
Defendants Bradley, Johnson, and Jaques in their individual
capacities, based upon Defendant Bradley's sexual assault
of Plaintiff. [#22 at ¶¶ 98-116] Each Defendant
argues that he is entitled to qualified immunity on Claim
One. [#39 at 7-10; #40 at 15-18] Defendants Johnson and
Jaques (the “Supervisory Defendants”) also argue
that Plaintiff has failed adequately to allege their personal
participation in the sexual assault, and has therefore failed
to allege a constitutional violation. [#40 at 8-12] The Court
addresses each argument below.
a.
Defendant Bradley
i.
The Alleged ...