Ullery v. Raemisch

          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 ...