Denson v. Rios

          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 (10^th 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)). ...