United States District Court, D. Colorado
ORDER ADOPTING THE SEPTEMBER 27, 2019 RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE SCOTT T. VARHOLAK
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
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. (Doc. # 52.) For the reasons described
herein, Plaintiff and Defendants' Objections are
overruled. The Court affirms and adopts the Recommendation.
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.
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.)
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.)
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).
THE MAGISTRATE JUDGE'S RECOMMENDATION
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.)
STANDARDS OF REVIEW
REVIEW OF A RECOMMENDATION
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.
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.”)).
PRO SE 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
FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND
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).
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).
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.
OFFICIAL CAPACITY CLAIMS
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
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)).
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 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.)
objection to this portion of the Recommendation has been
filed. 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.
INDIVIDUAL CAPACITY CLAIMS: QUALIFIED IMMUNITY
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)).
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).
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).
Court applies these legal standards to Plaintiff's First,
Fourth, Eighth, and Fourteenth Amendment claims, in turn.
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).
asserts two instances of retaliation under the First
Amendment, as laid ...