Johnson v. Little

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT (DKT. #36)

          N. Reid Neureiter United States Magistrate Judge.

         This case is before the Court pursuant to an Order (Dkt. #37) issued by Judge R. Brooke Jackson referring Defendants Lieutenant Wingert, Lieutenant Glissman, Captain Little, and Sergeant Lewis's (collectively “Defendants”) Motion to Dismiss Second Amended Complaint. (Dkt. #36.) The Court has carefully considered the motion and Plaintiff Calvin Johnson's Response.^[1] (Dkt. #37.) On December 11, 2018, the Court heard argument on the subject motion. (Dkt. #59.) 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

         The following allegations are taken from the relevant, non-dismissed portions of Mr. Johnson's Second Amended Prisoner Complaint. (Dkt. #25.) Mr. Johnson is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”) at the Sterling Correctional Facility (“SCF”) in Sterling, Colorado. He asserts two individual capacity claims for relief against Defendants, all of whom are correctional officers.

         In the first claim, Mr. Johnson alleges that Defendant Little violated his Eighth Amendment rights by being deliberately indifferent to his mental illness. Mr. Johnson claims that he informed Captain Little that SCF staff members were retaliating against him for filing grievances, threatening him with excessive force, and deliberating triggering his post-traumatic stress disorder (“PTSD”), which had a severe impact on his mental state. (Id. at 7.) He alleges that Captain Little denied his request to be moved to a different unit and condoned the actions of his staff. (Id. at 9-10.) Mr. Johnson also asserts that he was subjected to excessive force by prison staff on December 26, 2017. (Id. at 8.)

         Mr. Johnson contends in claim two that Lieutenant Glissman, Lieutenant Wingert, and Sergeant Lewis also subjected him to cruel and unusual punishment and retaliated against him for exercising his constitutional rights. Claim two relates to disciplinary reports written by Lieutenant Glissman, Lieutenant Wingert, and Sergeant Lewis on November 30, December 2, and December 6, 2017, respectively, in retaliation for Mr. Johnson's filing of grievances and lawsuits. (Id. at 10-11.) Mr. Johnson alleges that these Defendants “psychological[ly] torture[d]” him by writing disciplinary reports which led to him not having a television or library books in his cell. (Id. at 11.) Mr. Johnson asserts that these disciplinary reports were used to intentionally trigger his mental illness “to cause behavior they knew I'd exhibit as a result and also just lying on me in disciplinary reports.” (Id.)

         Defendants maintain that they are entitled to qualified immunity because Mr. Johnson's allegations fail to state actionable claims for relief.

         II. LEGAL STANDARDS

         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 ...