United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT TONYA
WHITNEY'S MOTION TO DISMISS (DKT. #34)
REID NEUREITER UNITED STATES MAGISTRATE JUDGE
case is before the Court pursuant to an Order (Dkt. #35)
issued by Judge R. Brooke Jackson referring Defendant Tonya
Whitney's Motion to Dismiss. (Dkt. #34.) The Court has
carefully considered the motion and the supplements thereto
(Dkt. ##63-1-63-4), and Plaintiff Calvin Johnson's
Response. (Dkt. #37.) On December 11, 2018, the
Court heard argument on the subject motion. (Dkt. #67.) The
Court has taken judicial notice of the Court's file,
considered the applicable Federal Rules of Civil Procedure
and case law, and makes the following recommendation.
Johnson's allegations are relatively straightforward. Mr.
Johnson is an inmate of the Colorado Department of
Corrections (“CDOC”). Defendant Whitney works in
the CDOC's Inmate Banking Office. (Dkt. #25 at 2.) On
November 1, 2016, Mr. Johnson alleges that Ms. Whitney
withheld $3.82 of his inmate pay and refused to deposit it
into his inmate account in violation of CDOC Administrative
Regulation (“AR”) 200-15. (Id. at 5.) On
February 3, 2017, Mr. Johnson alleges that Ms. Whitney and a
prison official identified as Jane Doe #2 withheld $1.41 of
his inmate pay in retaliation for an administrative grievance
he filed regarding the withholding of funds in November 2016.
29, 2017, Judge Babcock entered an Order (Dkt. #7) dismissing
Mr. Johnson's original Prisoner Complaint (Dkt. #1) as
legally frivolous. Mr. Johnson appealed, and on January 24,
2018, the United States Court of Appeals for the Tenth
Circuit reversed and remanded for further proceedings.
See Johnson v. Whitney, 723 Fed.Appx. 587, 589 (10th
Cir. 2018) (unpublished). The Tenth Circuit determined that
the Court erred in dismissing Mr. Johnson's due process
claims because (1) Mr. Johnson may state an arguable claim
that he was deprived of a protected property interest; and
(2) the Court failed to consider whether Mr. Johnson's
failure to plead that his state post-deprivation remedy was
inadequate was a defect that could be cured by amendment
Id. at 591. The Tenth Circuit also concluded that
Mr. Johnson pled sufficient facts to connect Ms.
Whitney's alleged retaliation in withholding the $1.41 to
his filing of the previous grievance. Id. at 594-95.
remand, Magistrate Judge Gallagher determined that amendment
would not be futile and directed Mr. Johnson to file an
amended complaint if he wished to pursue his due process and
retaliation claims. (Dkt. #20 at 2, 5.)
March 14, 2018, Mr. Johnson filed an Amended Prisoner
Complaint. (Dkt. #21.) The Amended Prisoner Complaint
asserted new claims against Magistrate Judge Gallagher and
CDOC Executive Director Rick Raemisch, in addition to the due
process and retaliation claims against Defendant Whitney and
Jane Doe. Magistrate Judge Gallagher then recused, and the
case was reassigned to Magistrate Judge Mix to complete the
initial review. (Dkt. #23.) Magistrate Judge Mix ordered Mr.
Johnson to file a second amended complaint, noting that the
claims against the newly-named defendants were improper, and
determining that the Amended Prisoner Complaint was deficient
because Mr. Johnson failed to provide a short and plain
statement of his due process and retaliation claims against
Ms. Whitney and Jane Doe. (Dkt. #24.)
April 20, 2018, Mr. Johnson filed a Second Amended Prisoner
Complaint. (Dkt. #25.) On April 25, 2018, Judge Babcock
dismissed Mr. Johnson's official capacity claims for
damages and his individual capacity due process claims. (Dkt.
#27 at 7-8.) The only remaining claim-Mr. Johnson's
retaliation claim against Ms. Whitney and Jane Doe #2 in
their individual capacities-was assigned to Judge Jackson and
Magistrate Judge Watanabe. (Id.) When Magistrate
Judge Watanabe retired, the case and the subject motion were
referred to me. (Dkt. #42.)
Pro Se Plaintiff
Johnson is proceeding pro se. The Court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them 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) (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) (the court may not “construct
arguments or theories for the plaintiff in the absence of any
discussion of those issues”). A plaintiff's pro se
status does not entitle him to an application of different
rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “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 at1198. “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) (citing Bell
Atlantic 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
Iqbal evaluation requires two prongs of analysis.
First, the court identifies “the allegations in the
complaint that are not entitled to the assumption of truth,
” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory.
Id. at 679-81. Second, the court considers 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 679.
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.
Moreover, “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads ...