United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
SCOTT
T. VARHOLAK UNITED STATES MAGISTRATE JUDGE
This
matter comes before the Court on a Motion to Dismiss (the
“Motion”), filed by Defendants Lucille Reaux,
Dorean Vantlin, and Gayle Ross[1] on May 3, 2019. [#20] The Motion
has been referred to this Court. [#23] This Court has
carefully considered the Motion and related briefing, the
entire case file and the applicable case law, as well as
arguments made during the September 26, 2019 hearing on the
Motion. For the following reasons, this Court respectfully
RECOMMENDS that the Motion [#20] be GRANTED IN PART and
DENIED IN PART.
I.
FACTUAL BACKGROUND[2]
On May
20, 2018, Plaintiff was working in the recreation area at the
Denver Reception and Diagnostic Center
(“DRDC”)[3] when he was questioned by Defendant Rios
regarding dust balls and a rusty sink. [#7 at 4-5] Plaintiff
responded, “I am the only motherfucker working in
recreation.” [Id. at 5] After this encounter,
Defendant Rios ordered Defendant Vanlin to have
Plaintiff's property searched. [Id. 4-5] In
turn, Defendant Vanlin ordered Sergeant Sanchez to search
Plaintiff's cell in unit four. [Id. 4-6] The
search uncovered 28 unauthorized tokens in Plaintiff's
possession. [Id. at 6] Defendant Vanlin wrote the
disciplinary report for the tokens discovered during the
search of Plaintiff's cell. [Id.] The search was
not conducted according to DRDC operational standards because
only the lieutenant assigned to Plaintiff's unit is
authorized to request searches of that unit, and at the time,
neither Defendant Vanlin nor Sergeant Sanchez were working in
Plaintiff's unit. [Id. at 5-6]
Later
that same day, during Plaintiff's second work shift,
Correctional Officer Hines informed Plaintiff that he was to
sweep, mop, and burnish the entire recreation area, even if
it took him all night, pursuant to an order from Defendant
Ross. [Id. at 6] Defendant Rios had instructed
Defendant Ross to give that order, because of Plaintiff's
negative encounter with Defendant Rios earlier in the day.
[Id.]
The
following day, on May 21, 2018, a correctional officer told
Plaintiff that he had received a phone call from Defendant
Ross ordering him to strip search Plaintiff at the end of
every shift in recreation, and to notify the other
correctional officers of this new requirement. [Id.
at 6-7] Defendant Rios had contacted Defendant Ross and told
Defendant Ross to order the strip search. [Id. at 8]
The strip search required Plaintiff to remove “all of
his clothing, bend over, spread his anus, and allow various
[correctional officers] to look into his cavity.”
[Id. at 7]
Plaintiff
took issue with the strip searches and alleges that he was
the only recreation worker subjected to the strip searches.
[Id. at 8] Plaintiff filed an informal grievance
regarding the strip searches to Major Frayre, [4] who gave the
informal grievance to Major Two Bear. [Id. at 7]
Major Two Bear told Plaintiff that that he would talk to
Defendant Ross about the strip searches. [Id.] That
same day, the strip searches of Plaintiff stopped.
[Id.] Plaintiff also sent complaint letters to Major
Fryer, Warden Long of the DRDC, and Rick Raemisch, the
Executive Director of the Colorado Department of Corrections
(“CDOC”). [Id. at 10] Plaintiff alleges
that because of these complaints, he has been ostracized from
obtaining meaningful employment inside CDOC prisons, was
transported to Buena Vista Correctional Facility in an
“adverse action” transport move, and “code
words” such as “disruptive” were added to
his Inmate Classification Committee (“ICC”)
files, which prevent Plaintiff from being placed at a
facility with a higher quality of living and from getting a
job as an Offender Care Aid III (“OCA III”),
which has an above average hourly wage. [Id. at
10-11]
Plaintiff
filed the instant lawsuit on January 28, 2019 pursuant to 42
U.S.C. § 1983. [#1] Plaintiff was ordered to file an
amended complaint [#6], which he filed on February 27, 2019
[#7]. Although framed as alleging two claims, construing the
Amended Complaint liberally, Plaintiff appears to assert four
causes of action. [See generally id.] In claim one,
Plaintiff alleges that Defendants violated his Fourth
Amendment rights by conducting unreasonable strip searches.
[Id. at 4-5, 8] In claim two, Plaintiff contends
that the strip searches constituted cruel and unusual
punishment in violation of the Eighth Amendment.
[Id.] In claim three, Plaintiff asserts that the
strip searches violated his Fourteenth Amendment Equal
Protection rights because no other recreation worker was
subjected to the strip searches. [Id. at 8] Finally,
in claim four, Plaintiff contends that he was retaliated
against in violation of the First Amendment for telling
Defendant Rios “I am the only motherfucker working in
the gym, ” and for filing grievances. [Id. at
9-11] Plaintiff is suing all Defendants in both their
individual and official capacities. [Id. at 2-3]
Plaintiff seeks injunctive relief requesting that he be
employed as an OCA III and that the code words be removed
from his ICC files, compensatory damages in the form of
backpay for the duration of time he was removed from his OCA
III position, and nominal and punitive damages.[5] [Id. at
15] Defendants filed the instant Motion to Dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on May
3, 2019. [#20] Plaintiff has filed a response [#32], and
Defendants have filed a reply [#35].
II.
STANDARD OF REVIEW
Federal
Rule of Civil Procedure 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 Castaneda
v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (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.” Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974).
Under
Federal Rule of Civil Procedure 12(b)(6), a court may dismiss
a complaint for a “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must
“accept as true all well-pleaded factual allegations .
. . and view these allegations in the light most favorable to
the plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (alteration in original) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). Nonetheless, a plaintiff may not rely on mere
labels or conclusions, “and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
“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
Twombly, 550 U.S. at 570). 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.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
U.S. at 570). “The burden on the plaintiff to frame a
‘complaint with enough factual matter (taken as true)
to suggest' that he or she is entitled to relief.”
Id. (quoting Twombly, 550 U.S. at 556). The
court's ultimate duty is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A
pro se litigant's pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings
drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)). “The
Haines rule applies to all proceedings involving a
pro se litigant.” Id. at 1110 n.3. The court,
however, cannot be a pro se litigant's advocate. See
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
III.
ANALYSIS
Defendants
argue that Plaintiff's claims should be dismissed in
their entirety. [#20] Specifically, Defendants contend that:
(1) Plaintiff's official capacity claims are barred by
Eleventh Amendment sovereign immunity to the extent Plaintiff
seeks damages [id. at 3-4]; (2) Defendants are
entitled to qualified immunity with respect to the alleged
constitutional violations because Plaintiff failed to allege
that Defendants violated any constitutional rights; and (3)
Plaintiff has failed to establish Defendants' personal
participation in any of the alleged constitutional violations
[id. at 5-17]. The Court first addresses the
official capacity claims and then addresses the claims
against the officers in their individual capacities.
A.
Official Capacity Claims
Defendants
argue that to the extent Plaintiff has sued them in their
official capacities for monetary damages, Plaintiff's
claims are barred by the Eleventh Amendment. [#20 at 3-4] The
Court agrees.
“It
is well established that under the Eleventh Amendment,
sovereign immunity prohibits federal courts from entertaining
suits against states brought by their own citizens or
citizens of another state without their consent.”
Hunt v. Colorado Dep't of Corr., 271 Fed.Appx.
778, 780 (10th Cir. 2008). “State sovereign immunity is
more than immunity from liability--it actually deprives
federal courts of subject-matter jurisdiction.”
Wood v. Milyard, 414 Fed.Appx. 103, 105 (10th Cir.
2011). Sovereign immunity extends to state agencies
functioning as an “arm” of the state, including
the CDOC. Id. To the extent Defendants are being
sued in their official capacities, they may “assert
Eleventh Amendment immunity as an ‘arm' of the
state in that [they] assume[] the identity of” the
CDOC. Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th
Cir. 2002); see also Brackeen v. Brown, No.
11-cv-01677-RBJ-KMT, 2013 WL 328937, at *4 (D. Colo. Jan. 8,
2013) (“Plaintiff's claims for monetary relief
against the CDOC Defendants in their official capacities
constitute claims against the Colorado Department of
Corrections.” (citing Will v. Mich. Dep't of
State Police, 491 U.S. 58, 71 (1989)),
recommendation adopted, 2013 WL 329007 (D. Colo.
Jan. 29, 2013).
There
are two primary exceptions to the sovereign immunity
doctrine: Congress may abrogate a state's Eleventh
Amendment immunity, or a state may waive its sovereign
immunity and consent to be sued. Ruiz, 299 F.3d at
1181. Neither exception applies here. Section 1983
“does not abrogate state sovereign immunity-indeed,
states are not even ‘persons' within the meaning of
§ 1983.” Wood, 414 Fed.Appx. at 105
(citing Will, 491 U.S. at 70); see also Duncan
v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994)
(“Neither states nor state officers sued in their
official capacity [for monetary damages] are
‘persons' subject to suit under section
1983.” (citing Will, 491 U.S. at 70-71)). And
Plaintiff does not argue that Colorado has consented to this
suit. Wood, 414 Fed.Appx. at 105.
Accordingly,
the Court finds that the Eleventh Amendment bars
Plaintiff's damages claims against Defendants in their
official capacities. The Court thus lacks subject matter
jurisdiction over such claims. The Court RECOMMENDS that
Plaintiff's claims against Defendants in their official
capacities for damages be DISMISSED WITHOUT
PREJUDICE.[6]
B.
Individual Capacity Claims
Defendants
further argue that Plaintiff has failed to allege any
violations under the Fourth, Eighth, Fourteenth, and First
Amendments, and therefore that they are entitled to qualified
immunity with respect to all of Plaintiff's claims. [#20
at 5-17] 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.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). Once a defense of qualified
immunity is asserted, “the onus is on the plaintiff to
demonstrate ‘(1) that the official violated a statutory
or constitutional right, and (2) that the right was
“clearly established” at the time of the
challenged conduct.'” Quinn v. Young, 780
F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011)). ...