Glenn v. Brown

          ORDER

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Defendants' Motion to Dismiss Amended Complaint [#22]^[1] (the “Motion”). Plaintiff, who proceeds in this matter pro se, ^[2] filed a Response [#29] in opposition to the Motion, and Defendants did not file a reply. The parties have consented to proceed before the undersigned for all proceedings pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2(d). See [#17, #25, #27]. The Court has reviewed the entire case file and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#22] is GRANTED.

         I. Background

         Plaintiff is currently an inmate in the custody of the Colorado Department of Corrections (“CDOC”), but for all times relevant to this case was a parolee in Denver, Colorado and resided at the Denver Rescue Mission and Crossroads Shelter. Am. Compl. [#9] at 5; see Notice of Change of Address [#21].^[3] Defendants Jacqueline Brown (“Brown”) and John Cribari (“Cribari”) appear to have been Plaintiff's parole officers and Defendant Rick Raemisch (“Raemisch”) is the former Executive Director of the CDOC. The circumstances of Plaintiff's parole form the basis for Plaintiff's claims.

         The facts alleged in the Amended Complaint [#9] are sparse. While on parole, Plaintiff alleges that her Community Parole Officer, Defendant Brown, “force[ed] her to reside at the Denver Rescue Mission and Crossroads Shelter.” Am. Compl. [#9] at 5. While staying at these locations, Plaintiff claims that she was “threatened and almost robbed” and subjected to “serious harm or injury”.^[4] Id. Plaintiff returned to Defendant Brown and “pleaded for a transfer, ” which Defendant Brown “vehemently refused”. Id. Further, Plaintiff alleges that Defendant Cribari, a supervising Community Parole Officer, “failed to intervene” in her situation and that her circumstances were the result of a policy approved by Defendant Raemisch that leaves parolees homeless. Id. at 5-6.

         Plaintiff initiated this lawsuit on August 10, 2018, see Compl. [#1], and filed an Amended Complaint [#9] on October 1, 2018. On its face, the Amended Complaint asserts three separate claims. “Claim One” was dismissed as legally frivolous by the Court on October 11, 2018.^[5] Order to Dismiss in Part and to Draw in Part [#11]. Accordingly, only “Claim Two” and “Claim Three” remain.

         In “Claim Two, ” Plaintiff alleges that Defendant Brown's actions violated Plaintiff's Fourteenth Amendment rights “which tie[ ] into the cruel and unusual punishment clause of the Eighth Amendment.” Am. Compl. [#9] at 5. Plaintiff further asserts in “Claim Two” that Defendant Cribari, in “a supervisory capacity and direct capacity, ” failed to intervene and protect Plaintiff from serious harm and injury; and was “deliberately indifferent to the conditions of confinement [P]laintiff was being forced to reside in.” Id.

         In “Claim Three, ” Plaintiff alleges that Defendant Raemisch permitted “a well-known policy of paroling offenders homeless [sic], especially at risk mental health offenders like [P]laintiff . . . without proper assistance, supervision and guidance[.]” Id. at 6. Plaintiff asserts that “[t]his violates [her] Fourteenth Amendment rights based upon the equal protection clause and [ ] procedural due process.” Id. “Claim Three” further alleges that Defendant Cribari violated Plaintiff's Fourteenth Amendment rights to equal protection and procedural due process by failing to “properly train his subordinates, ” “act and intervene in appropriate situations, ” and “properly ensure at risk mental health offenders like [P]laintiff[ ] were assisted and supervised in accordance with proper parole standards[.]” Id. at 6-7.

         Based on the foregoing, and liberally construing the Amended Complaint [#9], Plaintiff appears to assert the following claims: (1) violation of the Eighth Amendment based on Defendants Brown and Cribari's deliberate indifference to Plaintiff's safety; (2) violation of Fourteenth Amendment substantive due process against Defendants Brown and Cribari; (3) violation of Fourteenth Amendment equal protection against Defendants Raemisch and Cribari; and (4) violation of Fourteenth Amendment procedural due process against Defendants Raemisch and Cribari.

         Plaintiff brings her claims against all Defendants in their individual and official capacities. Id. at 2-3. For relief, Plaintiff seeks the following: (1) actual damages in the amount of $12, 500; (2) punitive damages in the amount of $1, 000, 000; (3) compensatory damages for emotional pain and suffering in the amount of $250, 000; and (4) injunctive relief in the form of a Court order requiring the CDOC and Defendant Raemisch “to conduct an audit of the parole department, policies, and procedures, employee conduct, and training and report this audit to this Court with proposed changes, along with a proposed structured and training regime for supervising at risk mental health offenders, like [P]laintiff, to be approved and implemented by this Court.” Id. at 10.

         Defendants filed the present Motion [#22] on January 16, 2019, in which they seek to dismiss Plaintiff's remaining claims pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). In short, Defendants argue that: (1) the Eleventh Amendment bars Plaintiff's claims for money damages against Defendants in their official capacities; (2) Plaintiff fails to state a claim under either the Eighth or Fourteenth Amendments; (3) Defendants are entitled to qualified immunity with respect to Plaintiff's Eighth Amendment claims; and (4) Plaintiff fails to state a claim for injunctive relief or compensatory damages. See Motion [#22] 4-13.

         II. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(1)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

         B. Federal Rule of Civil Procedure 12(b)(6)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. (alteration in original) (internal quotation marks omitted).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” a factual allegation has been stated, “but it has not show[n] that the pleader is entitled to relief, ” as required by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (first alteration in original) (citation and internal quotation omitted).

         “Under Rule 8, a plaintiff must provide a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Tuttamore v. Lappin, 429 Fed.Appx. 687, 689 (10th Cir. 2011) (quoting Fed.R.Civ.P. 8(a)(2)). As with Rule 12(b)(6), “to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible.” Id. Indeed, “Rule 8(a)'s mandate . . . has been incorporated into the 12(b)(6) inquiry.” United States ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir. 2010). Rule 8 enables “the court and the defendants to know what claims are being asserted and to determine how to respond to those claims.” Tuttamore, 429 Fed.Appx. at 689.

         C. Qualified Immunity

         “The doctrine of qualified immunity protects government officials from 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.” Herrera v. City of Alburquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). When qualified immunity is asserted, a Plaintiff must show that: “(1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (citing Pearson, 555 U.S. at 231). “The determination of whether a violation occurred under the first prong of the qualified immunity analysis turns on the substantive law regarding that right.” Davis v. City of Aurora, 705 F.Supp.2d 1243, 1255 (D. Colo. 2010). “With regard to the second [prong], the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful under the circumstances presented.” Herrera, 589 F.3d at 1070 (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1155 (10th Cir. 2008)). Judges are permitted to use their sound discretion in deciding which of the prongs should be addressed first. Davis, 705 F.Supp.2d at 1255 (citing Pearson, 555 U.S. at 231).

         III. Analysis

         A. Subject Matter Jurisdiction

         The Court first addresses Defendants' argument that the Eleventh Amendment bars Plaintiff's claims for monetary damages against Defendants in their official capacities. See Motion [#22] at 4-5. The Eleventh Amendment bars recovery of monetary damages from individual state Defendants sued in their official capacities. Dreismeier v. Fauvel, No. 12-cv-01131-KLM, 2013 WL 1365766, at *3 (D. Colo. Apr. 3, 2013). To the extent that Plaintiff sues Defendants in their official capacities, “[s]uits against state officials in their official capacit[ies] should be treated as suits against the state.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)); see also Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (stating that state officers sued in their official capacity are not “persons” subject to suit under 42 U.S.C. § 1983). Thus, pursuant to the Eleventh Amendment, the Court lacks subject matter jurisdiction to adjudicate an action brought by a citizen of a state against the state itself, its agencies, or its officials in their official capacities for monetary relief. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995).

         Therefore, Eleventh Amendment immunity bars claims against individuals sued in their official capacities “for money damages and relief for prior acts.” See Hunt v. Colo. Dep't of Corr., 271 Fed. App'x. 778, 781 (10th Cir. 2008). Here, all Defendants are state officers with the Colorado Department of Corrections. Accordingly, the Motion [#22] is granted to the extent that Plaintiff's claims seeking monetary relief against Defendants Brown, Cribari, and Raemisch in their official capacities are dismissed without prejudice for lack of subject matter jurisdiction. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 ...