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Hyberg v. Enslow

United States District Court, D. Colorado

February 28, 2019

DARREL ALAN HYBERG, JR., Plaintiff,
v.
KEN ENSLOW, TOM RITTENHOUSE, TIM QUINN, and MIKE CUNNINGHAM, Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (DKT. #16) AND PLAINTIFF'S REQUEST FOR LEAVE TO AMEND (DKT. #30)

          N. Reid Neureiter, United States Magistrate Judge

         This 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 pro se[1]

         Plaintiff 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.[2]) 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.

         I. BACKGROUND

         The 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.

         Mr. 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.

         Mr. 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.

         Mr. Hyberg alleges the illegal strip searches are particularly embarrassing for him because he has deformed and feminine looking breasts, a condition known as gynecomastia.[3] 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 denied.

         According 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.

         II. LEGAL STANDARDS

         A. Pro Se Plaintiff

         Mr. 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).

         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 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, 678 (2009).

         “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.'” 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 omitted).

         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 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).

         In 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).

         C. Qualified Immunity

         The 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).

         Although 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.

         While 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 deficient claims.

         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 sequence. Id.

         III. ANALYSIS

         In 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.

         A. Mr. Hyberg's Fourth Amendment Claim for Alleged Unconstitutional Strip ...


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