United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON
DEFENDANTS' MOTION TO DISMISS (DKT. #16)
AND PLAINTIFF'S REQUEST FOR LEAVE TO AMEND (DKT.
Reid Neureiter, United States Magistrate Judge
matter is before the Court on Defendants' Motion to
Dismiss (Dkt. #16), referred by Judge Raymond P. Moore (Dkt.
#18). In their motion, Defendants seek dismissal of the five
claims brought against them in their individual capacities by
Darrell Alan Hyberg, Jr. pursuant to 42 U.S.C. § 1983.
The Court has carefully considered the motion and Mr.
Hyberg's Response, in which Mr. Hyberg also requests
leave to amend. (Dkt. #30 at 15.) The Court has taken
judicial notice of the Court's file, considered the
applicable Federal Rules of Civil Procedure and case law, and
for the following reasons RECOMMENDS that Defendants'
Motion to Dismiss be GRANTED, and that Mr. Hyberg's
request for leave to amend be DENIED.
following facts are taken from Mr. Hyberg's Prisoner
Complaint (Dkt. #1) and attachments thereto, and are presumed
to be true for purposes of this Recommendation.
Hyberg is an inmate in the custody of the Colorado Department
of Corrections (CDOC), and is currently confined at the
Sterling Correctional Facility (“SCF”). All
Defendants are SCF employees.
Hyberg works at SCF's Colorado Correctional Industries
Seating Factory (“CCI”). Mr. Hyberg alleges he
has been subject to numerous unconstitutional strip searches
when entering or leaving his job at CCI. Specifically, he
asserts these strip searches have been conducted in view of
other inmates and/or staff, violating his Fourth Amendment
right not to be subject to a public strip search unassociated
with any legitimate penological interest. Mr. Hyberg also
argues these strip searches violated CDOC Administrative
Regulation 300-06, and that the Defendants maliciously
disregarded this regulation.
Hyberg alleges the illegal strip searches are particularly
embarrassing for him because he has deformed and feminine
looking breasts, a condition known as
gynecomastia. Mr. Hyberg believes that smoking marijuana
as a child and post pubescent teenager caused this condition.
Mr. Hyberg also asserts these illegal strip searches have put
him “at risk of being targeted by other inmates after
they saw his naked body and the appearance of female
breasts.” In his complaint, Mr. Hyberg alleges two
specific searches were unconstitutional: one conducted by
Defendant Ken Enslow on January 24, 2017 in a
“booth” or “cubicle” located in the
area designated for strip searches (the strip out area), and
one conducted by Defendant Tim Quinn on April 18, 2017 in a
“booth” or “cubicle” in the strip out
area with a curtain (after the January 24, 2017 search, the
strip out area was demolished and the cubicles rebuilt, one
with a curtain). Defendant Tom Rittenhouse ordered both
searches. Mr. Hyberg completed the three-step grievance
process with respect to both searches. These grievances were
to Mr. Hyberg, the January 24, 2017 search took place
“in front of” three other inmates. Mr. Hyberg
alleges that during the April 18, 2017 search, Mr. Quinn
retaliated against him for filing a grievance relating to the
January 24 search by “purposely and maliciously”
allowing one other inmate to view the search, and making a
derogatory statement to him: “You get the cubicle with
the curtain, Just for you, ” thereby violating Mr.
Hyberg's First Amendment rights.
Pro Se Plaintiff
Hyberg 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). See also Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (holding allegations of a pro se
complaint “to less stringent standards than formal
pleadings drafted by lawyers”). 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”). Mr. Hyberg's pro
se status does not entitle him to application of
different rules. See Montoya v. Chao, 296 F.3d 952,
957 (10th Cir. 2002).
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 at 1198. Notwithstanding, 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.” Ashcroft v. Iqbal, 556 U.S. 662,
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.'”
Id. (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 has pled facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). 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 a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (citing
Twombly, 550 U.S. at 555, 557) (internal citation
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
conclusion, bare assertions, or merely conclusory.
Id. at 680. 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. But
“[w]here a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Id. at 678 (citation omitted).
making the required determination, “courts must
consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007). See also Utah Gospel Mission v. Salt Lake
City Corp., 425 F.3d 1249, 1253-54 (10th Cir. 2005)
(“[A] document central to the plaintiff's claim and
referred to in the complaint may be considered in resolving a
motion to dismiss, at least where the document's
authenticity is not in dispute.”). “[F]actual
allegations that contradict . . . a properly considered
document are not well-pleaded facts that the court must
accept as true.” GFF Corp. v. Associated Wholesale
Grocers, 130 F.3d 1381, 1385 (10th Cir. 1997).
doctrine of qualified immunity shields government officials
from individual 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.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Qualified immunity is “an immunity
from suit rather than a mere defense to liability; and like
an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.” Saucier v.
Katz, 533 U.S. 194, 200-01 (2001).
qualified immunity is most often raised at the summary
judgment stage, the Tenth Circuit has recognized the
propriety of raising a qualified immunity defense in a motion
to dismiss. See Pueblo Neighborhood Health Ctr., Inc. v.
Losavio, 847 F.2d 642, 645-46 (10th Cir. 1988). Once the
defense is asserted, the burden shifts to the plaintiff to
establish 1) that the defendant's actions violated a
federal constitutional or statutory right and 2) that the
federal right was clearly established at the time of the
challenged conduct. PJ ex rel. Jensen v. Wagner, 603
F.3d 1182, 1196 (10th Cir. 2010). See also Losavio,
847 F.2d at 646.
the plaintiff bears this burden, at the motion to dismiss
stage, well-pleaded factual allegations are taken as true,
although the court must consider whether they plausibly give
rise to a claim for relief. Weise v. Casper, 593
F.3d 1163, 1166 (10th Cir. 2010). The plaintiff first must
establish that his allegations, taken in the light most
favorable to plaintiff, show that the officer's conduct
violated a constitutional right. Saucier, 533 U.S.
at 201. If the plaintiff establishes a violation of a
constitutional or statutory right, “the next,
sequential step is to ask whether the right was clearly
established.” Id. This determination must be
made “in light of the specific context of the case, not
as a broad general proposition.” Id.
“[T]he relevant, dispositive inquiry . . . is whether
it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.”
Id. at 202. If the plaintiff fails to satisfy either
part of this “heavy two-part burden, ” the court
must grant the defendant qualified immunity and dismiss the
United States Supreme Court has altered somewhat the
analytical process outlined in Saucier, holding that
the sequence of the analysis is no longer mandatory.
Pearson v. Callahan, 555 U.S. 223 (2009). The judges
of the district courts and the courts of appeals are now
permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in
the particular case at hand. Id. at 236. The Supreme
Court noted, however, that the sequence set forth in
Saucier often is the appropriate analytical
their motion to dismiss, Defendants argue Mr. Hyberg has
failed to: (1) allege personal participation by Defendants
Rittenhouse and Cunningham; (2) state plausible Fourth
Amendment claims against any of the Defendants; (3) state a
plausible First Amendment retaliation claim; and (4) state
viable claims for compensatory or punitive damages under the
Prison Litigation Reform Act (PLRA). Defendants also argue
they are entitled to qualified immunity. I will address each
of these arguments, beginning with whether Mr. Hyberg has
stated a plausible Fourth Amendment claim.
Mr. Hyberg's Fourth Amendment Claim for Alleged
Unconstitutional Strip ...