United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge.
action arises out of the incarceration of the Plaintiff
during which the Defendant allegedly used racial slurs
against the Plaintiff and placed him in disciplinary
segregation in January 2017 in retaliation for
Plaintiff's complaints against the Defendant. In response
to the operative Complaint, Defendant filed the present
partial motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)
arguing the Plaintiff fails to state an official-capacity
claim against Defendant. For the reasons that follow, this
Court respectfully recommends that the Honorable R. Brooke
Jackson grant the Defendant's motion.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in the operative Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
January 18, 2017, Defendant approached Plaintiff outside of
his cell during Plaintiff's “free time, ”
used a racial slur, and told Plaintiff he “hated”
him for Plaintiff's complaint of racial discrimination,
which led to an investigation of Defendant and another
deputy. Defendant also told Plaintiff that if he pursued
complaints against him, Defendant would place Plaintiff in
disciplinary segregation. Plaintiff responded that he would
pursue the complaints. Plaintiff watched Defendant go to his
desk and get on the telephone; twenty minutes later,
Defendant came to Plaintiff's cell and told him to pack
his property because he was taking Plaintiff to disciplinary
next day, January 19, 2017, Defendant was serving breakfast
in the segregation unit; when Plaintiff approached him,
Defendant used racial slurs, gloated over sending Plaintiff
to segregation, and told Plaintiff that if he pursued
complaints against him, Defendant would poison his food and
kill him. Plaintiff was afraid for his life.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is
to test the sufficiency of the plaintiff's complaint.
Sutton v. Utah State Sch. For the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 2008). “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 pled 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, a court
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 679.
Second, the Court 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.
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.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
Treatment of a Pro Se Plaintiff's Complaint
federal court must construe a pro se plaintiff's
“pleadings liberally, applying a less stringent
standard than is applicable to pleadings filed by lawyers.
[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.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (quotations and citations omitted). The Tenth
Circuit interpreted this rule to mean, “if 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. ...