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Chrisco v. Scoleri

United States District Court, D. Colorado

March 19, 2019



          Michael E. Hegarty United States Magistrate Judge.

         All Defendants other than Governor John Hickenlooper, Kimberly Weeks, Donald Gibson, and Staci Whitehead seek to dismiss Plaintiff Luke Chrisco's Amended Complaint in part pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Mr. Chrisco's claims arise out of his interactions with Defendants during his incarceration at San Carlos Correctional Facility (“SCCF”). To the extent Mr. Chrisco's claims address Defendants in their official capacities for monetary relief, they are barred by sovereign immunity. Defendants sued in their individual capacity are entitled to qualified immunity for ten of Mr. Chrisco's claims. Further, Claim Three fails to state a viable cause for action. However, at the motion to dismiss stage I cannot find that Claim Four is barred by the statute of limitations. Accordingly, I recommend that the District Court grant in part and deny in part Defendants' Motion to Dismiss.


         1. Facts

         The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Mr. Chrisco in his Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(1) pursuant to Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) and under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         From July 2014 to April 2015, Mr. Chrisco consistently filed grievances against Colorado Department of Corrections (“CDOC”) unit staff, supervisors, mental health staff, and the law library employees. Am. Compl. ¶ 1, ECF 17. As a result, he claims the staff retaliated against him, forced him to take psychoactive medication, and obstructed his access to the law library. Id. ¶¶ 1-5. According to Mr. Chrisco, Defendant Dr. Joan Koprivnikar instructed her staff to “keep track of every bad [thing] Chrisco does and if it comes down to it fib a little.” Id. ¶ 4. These reports from her staff prompted Dr. Koprivnikar to eventually place Mr. Chrisco on long-term involuntary medication. Id. ¶ 5.

         Mr. Chrisco first alleges Dr. Koprivnikar illegally forced him to take emergency medications after he engaged in a verbal altercation with another inmate in September 2014. Id. ¶ 2. He believes this was in retaliation for his litany of grievances. Id. Dr. Koprivnikar continued the retaliation by force medicating Mr. Chrisco without investigating the underlying allegations. Id. ¶ 9. On April 15, 2015, CDOC unit staff reported he “put feces in his vent, made a slurry of feces and urine in his toilet, refused to give back cuffs and was banging his head.” Id. ¶ 5. However, Mr. Chrisco explains that another inmate left the feces and the mess in his toilet resulted from prison staff cutting off his water supply. Id. ¶¶ 7-8.

         On May 11, 2015, the Involuntary Medication Hearing Committee met to determine Mr. Chrisco's mental state. Id. ¶ 13. At the hearing, Defendant Donald Gibson, a mental health professional, reported on Mr. Chrisco's considerable criminal history; his attempted attacks on other inmates and prison staff; and his previous civil commitments or hospitalizations in Colorado, Florida, and Illinois. Id. ¶ 21. Defendant Dr. Pilgrim, a psychiatrist at the prison, stated Mr. Chrisco once declared he would “end up stabbing somebody if people [kept] making fun of [him].” Id. ¶ 23. Defendant Kimberly Weeks reported Mr. Chrisco previously had an altercation with another inmate and refused to stop fighting even after being sprayed with mace. Id. ¶ 26.

         Additionally, Dr. Koprivnikar's report insinuated Mr. Chrisco's insanity and warned he may be a danger to himself and his surroundings. Id. Mr. Chrisco believes Dr. Koprivnikar also retaliated against him due to his unusual religious beliefs. Id. ¶ 31. He is the founder of Alchemical Christianity, a sexuality based religion devoted to “Kabbalistic Ritual Invocations and sexually prostrat[ing] himself in energetic connection to his divine God the Universal Architect.” Id. ¶¶ 129-30. After discovering Mr. Chrisco's “Holy Creed of the Church of Alchemical Christianity, ” Dr. Koprivnikar reported his religion as psychotic and delusional thinking. Id. ¶ 29. Further, she described his religious beliefs as “manifestation[s] of ‘Schizoaffective disorder.'” Id. ¶ 30.

         The Hearing Committee decided to administer over thirty psychoactive medications for 180 days. Id. ¶ 58. These orders continued from May 2015 to March 2017. Id. ¶ 84. Although he admits to cheating his medication most of the time, Mr. Chrisco received three muscular injections of Halidol and a few doses of Zyprexa. Id. ¶ 85. He claims he has an increased risk of diabetes and liver disease, reduced sex drive, sciatica-like nerve pain, anxiety, permanent brain damage, weight problems, and depression due to the involuntary medication. Id. ¶¶ 86-87.

         II. Procedural History

         Based on these factual allegations, Mr. Chrisco filed his Amended Complaint on August 28, 2017. Am. Comp., ECF No. 17. Mr. Chrisco brings nineteen claims for relief. Id. Only twelve of these claims are relevant to my present analysis, each of which relates to his involuntary medication. Claim Sixteen asserts Defendant Richard Raemisch violated his First and Fourteenth Amendment rights. Id. ¶¶ 117-22. Claims Fourteen and Fifteen allege infringements on his Fourth and Fifth Amendment rights. Id. ¶¶ 106-15. Claims Two and Eleven assert behavior Mr. Chrisco alleges constituted cruel and unusual punishment. Id. ¶¶ 15, 84-87. Claims Eight, Twelve, Thirteen, Fifteen, and Seventeen assert equal protection violations. Id. ¶¶ 40-42, 89- 104, 115, 124-31. Claim Seven addresses an infringement of the Establishment Clause. Id. ¶¶ 36-38. Claim Three asserts Dr. Koprivnikar violated his Ninth Amendment right to privacy. Id. ¶ 17. Lastly, Claim Four alleges an infringement of his Fourteenth Amendment due process right. Id. ¶ 23.

         Defendants responded to the Amended Complaint by filing the present Motion to Dismiss in Part. Defs.' Mot., ECF No. 50. As to Mr. Chrisco's claims for monetary relief against Defendants in their official capacities, they assert entitlement to sovereign immunity. Id. at 9. Defendants claim they are entitled to qualified immunity to ten of Mr. Chrisco's claims. Id. at 9- 25. They contend Claim Three is an improper Ninth Amendment claim. Additionally, Dr. Pilgrim argues the claim against her is barred by the applicable statute of limitations.[1] Id. at 13. Mr. Chrisco responded to Defendants' motion on March 19, 2018. Pl.'s Resp., ECF No. 82. Defendants filed their reply on April 2, 2018. Defs.' Reply, ECF No. 85


         I. Dismissal under Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Id. (citing Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013)). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Pueblo of Jemez, 790 F.3d at 1151. Accordingly, Mr. Chrisco in this case bears the burden of establishing that I have the jurisdiction to hear his claims.

         II. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         “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 Bell Atl. 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. Twombly requires a two prong analysis. First, I must identify “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 679B80. Second, I must consider 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 680.

         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.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         III. Dismissal of a Pro Se Plaintiff's Complaint

         A federal court must construe a pro se plaintiff's pleadings “liberally” and hold the pleadings “to a less stringent standard than formal pleadings filed by lawyers.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). “[The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Id. (citing Whitney v. New Mexico, 113 F.3d 1170, 1173B74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean:

[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (“[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.”).


         Defendants' Motion to Dismiss requires me to determine whether they are immune from suit. Mr. Chrisco has failed to state claims for substantive due process violations, compelled speech, an unlawful “seizure” and/or imprisonment of his mind/spirit, Eighth and Ninth Amendment violations, equal protection violations, and Establishment Clause violations. However, the face of the Amended Complaint does not make clear that Claim Four is barred by the statute of limitations, and, therefore, I cannot recommend dismissing this claim at the pleading stage.

         Additionally, Mr. Chrisco asserts many of his claims against Defendants in their individual capacities. Thus, I must determine whether Defendants are entitled to qualified immunity. Qualified immunity protects a public official whose violation of a plaintiff's civil rights was not clearly established at the time of the official's actions. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face the other burdens of litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006). “A qualified immunity defense is only available to parties sued in their individual capacity.” Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005). “When faced with a qualified immunity defense, the plaintiff must establish ‘(1) that the defendant's actions violated a federal constitutional or statutory right; and (2) that the right violated was clearly established at the time of the defendant's actions.'” Id. at 1069 (quoting Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999)). I find Defendants sued in their individual capacities are entitled to qualified immunity over Claims Two, Seven, Eight, Eleven, Twelve, Thirteen, Fourteen Fifteen, Fifteen, Sixteen, and Seventeen.

         Defendants also assert they are entitled to sovereign immunity from any monetary relief Mr. Chrisco seeks against them in their official capacities. Defs.' Mot. 8. I do not construe the Amended Complaint to seek more than injunctive relief from Defendants in their official capacities. Am. Compl. 25-26, ECF No. 17. However, to the extent Mr. Chrisco may seek monetary relief, I dismiss these claims. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”). Because Mr. Chrisco clearly asserts claims against Defendants in their official capacity for injunctive relief, I will address the constitutionality of those claims.[2]

         I. Claim Sixteen Fails to State a Cause of Action.

         Claim Sixteen alleges Mr. Raemisch, in both his individual and official capacities, infringed on Mr. Chrisco's First and Fourteenth Amendment rights by implementing a policy that compelled him to falsely answer questions during his involuntary medication hearings. Am. Compl. ¶¶ 117-22, ECF No. 17. Mr. Raemisch argues the questioning did not constitute compelled speech, because it related to the health and safety of Mr. Chrisco, prison staff, and other inmates, rather than political or ideological issues. Defs.' Mot. 22-24, ECF No. 50. Mr. Chrisco proposes the prison created a “Catch-22” situation in which he is compelled to falsely admit to his mental illness or deny it and continue forced medication. Pl.'s Resp. ¶ 53, ECF No. 82. According to Mr. Raemisch, the three questions were directly related to the Involuntary Medication Hearing's purpose, and therefore did not result in a constitutional violation. Defs.' Reply 10, ECF No. 85. I agree and recommend the District Court find Mr. Chrisco has failed to allege compelled speech or substantive due process violations.

         A. First Amendment Compelled Speech Violation

         It is clearly established “the government may not compel the speech of private actors.” Axson-Flynn v. Johnson,356 F.3d 1277, 1283 (10th Cir. 2004); Wooley v. Maynard,430 U.S. 705, 714-15 (1977); W.Va. State Bd. Of Educ. v. Barnette,319 U.S. 624, 642 (1943). The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley, 430 U.S. at 714. However, a prisoner's First Amendment liberties are inevitably restricted. Pell v. Procunier,417 U.S. 817, 822 (1974). “[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Id. (emphasis added); see Jones v. N.C. Prisoners' Union, 433 U.S. 119, 119 (1977) (prohibiting formation of prisoners' labor unions); see also Bell v. Wolfish, 441 U.S. 520, 520 (1979) (restricting inmates' receipt of hardback books). To evaluate prisoners' rights cases, I must inquire “whether a prison regulation that burdens fundamental rights is ‘reasonably related' to legitimate penological objectives, or whether it represents an ‘exaggerated response' to those concerns.” Turner v. Safley,482 U.S. 78, 87 (1987); Washington v. Harper,494 U.S. 210, 224 (1990) (“[T]he standard of review [] adopted in Turner applies to all circumstances in which the needs of ...

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