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Denson v. Rios

United States District Court, D. Colorado

December 23, 2019

MAJOR RIOS, LT. VANLIN, and LT. ROSS, Defendants.



         This matter is before the Court upon the September 27, 2019, Recommendation by United States Magistrate Judge Scott T. Varholak that various claims be dismissed. (Doc. # 49.) Plaintiff timely objected to the portions of the Recommendation that recommended dismissal of certain claims. (Doc. # 51.) Defendants timely objected to the portion of the Recommendation that recommended denial of dismissal of Plaintiff's Fourth Amendment claim as to Defendants Rios and Ross.[1] (Doc. # 52.) For the reasons described herein, Plaintiff and Defendants' Objections are overruled. The Court affirms and adopts the Recommendation.

         I. BACKGROUND


         Magistrate Judge Varholak extensively explained the factual background of this case in his Recommendation of United States Magistrate Judge. (Doc. # 49 at 2-4.) Magistrate Judge Varholak's Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). The Court therefore recounts only the facts necessary to address the Parties' Objections to Magistrate Judge Varholak's Recommendation.

         Plaintiff filed the instant lawsuit against all Defendants in their individual and official capacities on January 28, 2019, pursuant to 42 U.S.C. § 1983. (Doc. # 1.) He filed his Amended Complaint on February 27, 2019. (Doc. # 7.) On March 4, 2019, the Court referred Plaintiff's case to Magistrate Judge Varholak to conduct All Motion proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b). (Doc. # 9.)

         As Magistrate Judge Varholak summarized, Plaintiff asserts four causes of action in his Amended Complaint:

Although framed as alleging two claims, construing the Amended Complaint liberally, Plaintiff appears to assert four causes of action. In claim one, Plaintiff alleges that Defendants violated his Fourth Amendment rights by conducting unreasonable strip searches. In claim two, Plaintiff contends that the strip searches constituted cruel and unusual punishment in violation of the Eighth Amendment. 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.
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.
Plaintiff is suing all Defendants in both their individual and official capacities. Plaintiff seeks injunctive relief requesting that he be employed as an OCA III [Offender Care Aid 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.

(Doc. # 49 at 4.)

         Defendants filed the instant Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on May 3, 2019. (Doc. # 20.) Defendants argue that Plaintiff's claims against Defendants in their official capacity for monetary damages are barred by the Eleventh Amendment, that all of Plaintiff's claims are barred by qualified immunity, and that Plaintiff has failed to state any plausible claims for relief under the First, Fourth, Eighth, or Fourteenth Amendments. (Doc. # 20.) Plaintiff responded in opposition to Defendants' Motion to Dismiss on May 16, 2019 (Doc. # 32). Defendants filed a reply (Doc. # 35).


         Magistrate Judge Varholak issued his Recommendation on Defendants' Motion to Dismiss on September 27, 2019. (Doc. # 49.) Magistrate Judge Varholak first applied the Eleventh Amendment to Plaintiff's official capacity claims against Defendants, concluded that the Eleventh Amendment barred all such claims, and recommended that all official capacity claims be dismissed without prejudice. (Id. at 7-8.) Next, Magistrate Judge Varholak analyzed Plaintiff's individual capacity claims against Defendants under the Fourth, Eighth, Fourteenth, and First Amendments and recommended that all but Plaintiff's Fourth Amendment claims against Defendants Rios and Ross be dismissed. (Id. at 9-23.) Under his Recommendation, a Fourth Amendment claim against Defendants Rios and Ross in their individual capacities would remain. (Id. at 23.) Plaintiff and Defendants timely objected to the Recommendation on October 11, 2019, and October 15, 2019, respectively. (Doc. ## 51, 52.) Defendants responded to Plaintiff's Objection on October 16, 2019. (Doc. # 53.) Plaintiff responded to Defendant's Objection on October 24, 2019. (Doc. # 57.)



         When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to.” An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir.1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         In the absence of a timely objection, however, “the district court may review a magistrate [judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”)).


         Plaintiff proceeds pro se. The Court, therefore, reviews his pleading “liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). Nor does pro se status entitle a litigant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         C. FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6)

         Rule 12(b)(1) provides for challenges to a court's subject matter jurisdiction. Davis ex rel. Davis v. United States, 343 F.3d 1282, 1294 (10th Cir. 2003). 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. Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         Dismissal is appropriate under Rule 12(b)(6) if the plaintiff fails to state a claim upon which relief can be granted. To survive a motion to dismiss pursuant to Rule 12(b)(6), “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility in this context means that the plaintiff pled factual content which allows “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plausibility standard is not a probability requirement, “but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “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.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1198. However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc. v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         III. ANALYSIS


         Defendants, to the extent they are sued in their official capacity, may assert Eleventh Amendment immunity as an ‘arm' of the state in that they assume the identity of the Colorado Department of Corrections (“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.”) (citation omitted).

         There are two primary exceptions to the sovereign immunity doctrine: (1) where Congress abrogates a state's sovereign immunity through statute; and (2) where the state waives its sovereign immunity and consents to being sued. Ruiz, 299 F.3d at 1181. Section 1983 “does not abrogate state sovereign immunity . . . .” Wood v. Milyard, 414 Fed.Appx. 103, 105 (10th Cir. 2011). “Neither states nor state officers sued in their official capacity [for monetary damages] are ‘persons' subject to suit under section 1983.” Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989)).

         Magistrate Judge Varholak analyzed whether Plaintiff's official capacity claims fall under either category of exception to the sovereign immunity doctrine. (Id. at 7-8.) Magistrate Judge Varholak concluded that Congress did not abrogate the state of Colorado's Eleventh Amendment immunity in Section 1983[2] and Colorado has not waived its sovereign immunity and consented to this lawsuit, so neither exception to the sovereign immunity doctrine applies in the instant case. Magistrate Judge Varholak thus concluded that Plaintiff's official capacity claims for damages are barred by the Eleventh Amendment and recommended dismissal of those claims without prejudice. (Doc. # 49 at 7-8.)

         No objection to this portion of the Recommendation has been filed.[3] After reviewing the Recommendation of Magistrate Judge Varholak, in addition to applicable portions of the record and relevant legal authority, the Court is satisfied that the Recommendation is sound and not clearly erroneous or contrary to law as to Plaintiff's official capacity claims. See Fed. R. Civ. P. 72(a); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).


         “[Q]ualified immunity . . . is both a defense to liability and a limited ‘entitlement not to stand trial or face the other burdens of litigation.'” Iqbal, 556 U.S. at 672 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Public officials are entitled to qualified immunity “in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties.” Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 864 (10th Cir. 2016) (quoting Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013)).

         Once an official has raised qualified immunity as a defense, the plaintiff must show that: “(1) the public official violated the plaintiff's constitutional rights; and (2) these rights were clearly established at the time of the alleged violation.” Id. (citation omitted). Courts may consider each factor in the “sequence [the court] deems best in light of the circumstances of the particular case.” Mink v. Knox, 613 F.3d 995, 1000 n.4 (10th Cir. 2010). “If the Plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).

         Personal liability under § 1983 must be based on personal involvement in the alleged constitutional violation. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Common to all § 1983 claims is the requirement that liability be predicated on a violation traceable to a defendant-official's own individual actions. Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)) (quoting Iqbal, 556 U.S. at 676). To establish a violation of § 1983 by a supervisor, as with everyone else, the plaintiff must establish a deliberate, intentional act on the part of the defendant to violate the plaintiff's legal rights. Porro v. Barnes, 624 F.3d 1322, 1327-28 (10th Cir.2010). “To state a claim against a supervisor-defendant under this circuit's traditional standard, a plaintiff must allege facts suggesting that the supervisor's ‘personal participation, his exercise of control or direction, or his failure to supervise' resulted in the constitutional violation.” Martinez v. Milyard, 440 Fed.Appx. 637, 638 (10th Cir. 2011) (citing Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).

         The Court applies these legal standards to Plaintiff's First, Fourth, Eighth, and Fourteenth Amendment claims, in turn.

         1. First Amendment

         To succeed on a First Amendment retaliation claim against a government official, a plaintiff must allege:

(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct

Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007).

         Plaintiff asserts two instances of retaliation under the First Amendment, as laid ...

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