United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, initiated this action on January 25, 2019,
asserting Defendant violated his constitutional rights by
moving him into a cell contaminated by blood and human waste.
Plaintiff filed an Amended Complaint on August 19, 2019,
asserting similar, however less detailed, factual
allegations. In response, Defendant filed the present Motion
to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing
Plaintiff fails to state a plausible claim for relief,
Defendant is entitled to qualified immunity, and the Prison
Litigation Reform Act (“PLRA”) bars
Plaintiff's claim for compensatory damages (ECF 50). For
the reasons that follow, the Court grants Defendant's
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in his Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
is incarcerated at the Fremont Correctional Facility
(“FCF”) in Canon City, Colorado, where Defendant
works as a correctional officer. On June 28, 2018, Defendant
moved Plaintiff from cell C-3 to cell A-12, in which he was
locked down upon arrival. Once inside, Plaintiff noticed the
cell “had a smell to it wich [sic] was caused by feces
and other human waste as well as blood on the floors and
walls of the cell.” Am. Compl. 4. There were multiple
open cells in A-pod and C-pod, the group of cells Plaintiff
had been moved from and moved into, respectively. Prior to
moving Plaintiff into A-12, Defendant had made a report to
his supervisor that a bio-hazard crew was needed to clean up
the cell, but a bio-hazard crew never showed up. Plaintiff
asked Defendant for help, but Defendant ignored Plaintiff and
continued to walk his rounds until his shift ended.
Correctional Officer “Vigil Smith” then came on
shift and was outraged by the smell and conditions of A-12.
She notified her supervisor, who was also outraged because
the cell was labeled “off-limits.” Plaintiff
suffers from multiple mental health conditions and believes
this experience caused him mental and emotional distress in
addition to putting him at risk of exposure to infectious
before Plaintiff's move to A-12, Plaintiff, Defendant,
and Defendant's supervisor had a meeting about problems
Plaintiff had been having with Defendant. Plaintiff was
removed from the mental health program at FCF, had not
received any mental health treatment for fourteen months and,
as of filing his Amended Complaint, was still not receiving
such treatment. Prior to that meeting, Plaintiff had filed a
lawsuit against a different correctional officer who had
allegedly left him in a cell full of human waste.
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.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in
the context of a motion to dismiss, means that the plaintiff
pleaded facts which allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The Supreme Court
requires a two-prong analysis. First, a court must identify
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations that are legal conclusions, bare assertions, or
merely conclusory. Id. at 678-80. Second, the Court
must consider the factual allegations “to determine if
they plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 680.
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.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation and citation omitted).
Treatment of a Pro Se Plaintiff's Complaint
federal court must construe a pro se plaintiff's
“pleadings liberally, applying a less stringent
standard than is applicable to pleadings filed by lawyers.
[The] court, however, will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico,113 F.3d 1170, 1173-74 (10th
Cir. 1997) (quotations and citations omitted). The Tenth
Circuit interpreted this rule to mean “if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon,935 F.2d 1106,
1110 (10th Cir. 1991). However, this interpretation is
qualified in that it is not “the proper function of the
district court to assume the role of advocate for the pro se
litigant.” Id. ...