United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS SECOND AMENDED COMPLAINT (DKT. #36)
Reid Neureiter United States Magistrate Judge.
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. (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.
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.
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.)
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
maintain that they are entitled to qualified immunity because
Mr. Johnson's allegations fail to state actionable claims
Pro Se Plaintiff
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
Failure to State a Claim Upon Which Relief Can Be
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).
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.
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 ...