Opinion
Civil Action 22-cv-00406-CNS-STV
04-06-2023
ABDU-LATIF KAZEMBE ABU-NANTAMBU-EL, Plaintiff, v. COLORADO DEPARTMENT OF CORRECTIONS, DEAN WILLIAMS, Executive Director, Colorado Department of Corrections, LONG, Warden, Sterling Correctional Facility, DORSEY, Major, BARNES, Captain, UNKNOWN HOUSING CAPTAIN, PEIL, Lt., CUSTER, Lt., COONROD-BROWN, BEDSAUL, Sgt., WALTER, UNKNOWN OFFICER, REINHART, Medical Doctor, UNKNOWN CORRECTIONAL OFFICERS, UNKNOWN CRIMINAL INVESTIGATOR, and DICK, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This matter comes before the Court on the Motion to Dismiss Amended Complaint in Part Pursuant to Fed.R.Civ.P. 12(b)(6) (the “Motion”) [#48] filed by Defendants Barnes, Bedsaul, Coonrod-Brown, Custer, Dick, Dorcey, Long, and Piel (collectively the “CDOC Defendants”), which has been referred to this Court [#49]. The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN PART.
The facts are drawn from the allegations in Plaintiff's Amended Complaint [#14], which must be taken as true when considering the Motion. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). In addition, the Court may take judicial notice of certain “documents and docket materials filed in other courts,” as relevant to this case. Brickert v. Deutsche Bank Nat'l Tr. Co., 380 F.Supp.3d 1127, 1133 n.1 (D. Colo. 2019) (quoting Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir. 2014)). The Court does not consider any additional allegations raised by Plaintiff in briefing. See In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (disregarding additional factual claims asserted in briefing on a motion to dismiss, explaining that “plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss”).
Plaintiff is in the custody of the Colorado Department of Corrections (the “CDOC”) at the Limon Correctional Facility in Limon, Colorado. [#76] Plaintiff, proceeding pro se, asserts claims for violations of his constitutional rights based on conduct that occurred while he was incarcerated at the Sterling Correctional Facility (“SCF”). [See generally #14]
Many of Plaintiff's claims were dismissed following the Court's review of the Complaint under 28 U.S.C. § 1915. [## 18; 19] The Court does not address those claims. Moreover, the Court notes that proceeding past a Section 1915 review-where the Court, without briefing, determines whether a plaintiff's claims are appropriate for summary dismissal- does not mean necessarily that the plaintiff has stated a claim. That question is appropriately considered upon the filing of a motion to dismiss.
Plaintiff generally alleges that he experienced issues with other inmates in his pod and that the CDOC Defendants failed to protect Plaintiff. [Id.] Specifically, Plaintiff asserts that other inmates threatened Plaintiff and stole his property while Plaintiff's cell door was unlocked. [See, e.g., id. at 5-7] Plaintiff contends that he raised these concerns with various CDOC Defendants over the course of 2019 and into early 2020. [Id. at 6, 10-11, 13, 18-19] Plaintiff alleges that he requested “movement,” “protection and safety,” “further appropriate action,” and “investigation or administrative steps.” [Id. at 6-7, 10-11] Plaintiff also requested that the officers in charge of Plaintiff's cell door stop opening the door in Plaintiff's absence, as doing so allowed other inmates to steal Plaintiff's property. [Id. at 11] Plaintiff generally alleges that the CDOC Defendants took no action in response. [See, e.g., Id. at 9-11, 18-19]
On one occasion, on or around September 2019, an inmate, Martell White, pulled a knife on Plaintiff but did not use it on Plaintiff because Mr. White noticed Defendant Bedsaul and an unknown officer in the pod. [Id. at 10] Mr. White told Plaintiff that he would be back to stab Plaintiff after the officers left. [Id.] Plaintiff immediately informed an officer what had occurred. [Id.] No action was taken until the next day, when officers shook down Mr. White's cell and failed to find a knife. [Id.] Plaintiff was not transferred after this incident. [Id.]
At one point, Plaintiff met with Defendants Barnes, Piel, Bedsaul, and an unknown officer to discuss his safety concerns. [Id. at 11] Plaintiff requested that either he or an unnamed inmate be moved. [Id.] Defendants Piel and Barnes told Plaintiff that the reason he was having all his problems was “because [Plaintiff] associated with the ‘fags.'” [Id.] When Plaintiff told the officers that he “was one of the LGBTQ people and community,” the officers began to laugh. [Id.] Defendants Barnes, Piel, and Bedsaul then informed Plaintiff that they would place him in protective custody while they completed an investigation. [Id.] This would mean placing Plaintiff in segregation. [Id.] If, at the end of the investigation, there was insufficient evidence to substantiate Plaintiff's complaints, then Plaintiff would be returned to the same pod. [Id.] Plaintiff told the officers that he would be contacting his lawyers about their discrimination and failure to protect Plaintiff and other LGBTQ prisoners. [Id.] Plaintiff alleges that, in retaliation for these comments, Plaintiff was placed in segregation, resulting in the loss of Plaintiff's “personal property, job, [and] cell assignment.” [Id. at 12] After fifteen days in segregation, Plaintiff was returned to the same pod. [Id.]
During the first week of February 2020, Plaintiff made both written and verbal notifications to various CDOC Defendants that an inmate, Joshua Cummings, was making threats to kill Plaintiff and other LGBTQ inmates. [Id. at 6-7, 13-14, 18] Plaintiff alleges that Mr. Cummings was a proclaimed member of the ISIS Islamic Terrorist Group who had targeted Plaintiff specifically because Plaintiff was both Muslim and LGBTQ. [Id. at 5] Other LGBTQ inmates brought Mr. Cummings's threats to Defendant Custer's attention as well. [Id. at 13] On February 11, 2020, Defendants Custer, Walters, and three unknown officers were supervising Plaintiff's unit. [Id. at 14] Plaintiff was in one group of inmates, and Mr. Cummings was in another. [Id.] These groups were not supposed to interact. [Id.] Defendants Custer and Walters and the unknown officers let Plaintiff's group out for pod free-time, while allowing Mr. Cummings to remain out of his cell and enter the pod. [Id.] Mr. Cummings stabbed Plaintiff ten times while Defendants Custer, Walters, and three unknown officers watched without calling for assistance or attempting to stop the attack. [Id. at 14-15]
Defendants Custer, Walters, and the three unknown officers eventually opened the door to Plaintiff's pod, allowing Plaintiff to escape. [Id. at 15] Plaintiff was bleeding from the attack. [Id.] Upon Defendant Custer's orders, Plaintiff was handcuffed and locked in a closet instead of being taken to medical for treatment. [Id. at 15-16] Plaintiff was then walked to the medical department, where he received treatment. [Id. at 21]
Notably, in People v. Abu-Nantambu-El, a Colorado Court of Appeals (the “Court of Appeals”) issued an opinion reversing Plaintiff's conviction and remanding the case for a new trial. 457 P.3d 648, 649 (Colo.App. 2017), aff'd, 454 P.3d 1044 (Colo. 2019). The Colorado Supreme Court granted the State's petition for a writ of certiorari, and, on December 23, 2019, issued an opinion affirming the Court of Appeals. People v. Abu-Nantambu-El, 454 P.3d 1044 (Colo. 2019). The Colorado Supreme Court's mandate issued on January 15, 2020, affirming the judgment of the Court of Appeals and remanding to that Court. [#48-1] The Court of Appeals issued its mandate on February 10, 2020, reversing Plaintiff's conviction and remanding the case to the district court for a new trial. [#48-2] Plaintiff was held at SCF until February 14, 2020, when he was transferred to Jefferson County as a pre-trial detainee. [#14 at 5, 23]
Plaintiff filed this lawsuit on February 14, 2022 [#1] and filed his Amended Complaint on May 31, 2022 [#14]. Plaintiff asserts claims under 42 U.S.C. § 1983 alleging violations of the Eighth and Fourteenth Amendments, and claims under 42 U.S.C. §§ 1985 and 1986. [See id.] The CDOC Defendants filed the instant Motion on October 10, 2022 seeking the dismissal of all claims against the CDOC Defendants with the exception of the claim arising from allegations that the CDOC Defendants failed to protect Plaintiff from the assault by Mr. Cummings. [#48 at 6] A Response and Reply have been filed. [##62; 71]
Defendants assert that they “do not seek dismissal of [Plaintiff's] Eighth Amendment claim against all CDOC Defendants that they failed to protect [Plaintiff] from the February 11, 2020, attack by Mr. Cummings.” [#48 at 3 n.1] The Complaint is difficult to follow, the claims are not clearly delineated, and Plaintiff cites to both the Eighth and Fourteenth Amendments. [See generally #14] As explained in detail below, however, because Plaintiff was a pretrial detainee at the time of the February 11 attack, Plaintiff's failure to protect claim is a Fourteenth Amendment claim, not an Eighth Amendment claim.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” 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 is 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 ultimate duty of the court 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).
B. Qualified Immunity
“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) (quotation omitted). Once the defense of qualified immunity has been raised, “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)).
“To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent” such that it is “settled law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018). The Supreme Court has “not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity.” Id. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted). Nonetheless, the Supreme Court has made clear that it “do[es] not require a case directly on point, [provided] existing precedent . . . placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. The Tenth Circuit has explained the “clearly established” prong of the qualified immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established . . . . Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted) (alteration in original).
C. Pro Se Pleadings
“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 (10th 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). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
The CDOC Defendants contend that, with the exception of Plaintiff's Eighth Amendment claim “arising from allegations that CDOC Defendants failed to protect [Plaintiff] from the alleged assault by Inmate Cummings,” Plaintiff has failed to state any claim for relief against them and that they are entitled to qualified immunity for all claims. [See generally #48; see also id at 6; #71 at 2] The Court will address each of Plaintiff's claims against the CDOC Defendants in turn.
A. Claims Arising from Plaintiff's Continued Imprisonment in SCF Following the Reversal of His Conviction
Plaintiff alleges that he was improperly confined at SCF following the Colorado Supreme Court opinion reversing his conviction. [#14 at 5] Plaintiff alleges that various CDOC Defendants were aware of the reversal yet refused to transfer Plaintiff to the proper facility for 51 days. [Id. at 5, 7, 9, 23] During the time between the Colorado Supreme Court's decision and Plaintiff's transfer, Mr. Cummings assaulted Plaintiff. [Id. at 5] Plaintiff asserts claims under the Eighth Amendment and Fourteenth Amendment arising out of the CDOC Defendants' failure to timely transfer him from SCF.
The Court notes that the alleged assault also took place after the Supreme Court's mandate, as well as that of the Court of Appeals. [##48-1; 48-2]
Plaintiff alleges, and the CDOC Defendants do not appear to dispute, that Plaintiff was “technically . . . a pretrial detainee” upon the reversal of his conviction. [Id. at 9] “[W]hen a plaintiff finds himself in [pretrial detention], [courts] turn to the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities to evaluate claims of mistreatment.” Colbruno v. Kessler, 928 F.3d 1155, 1163 (10thh Cir. 2019) (quotation omitted); see also Bell v. Wolfish, 441 U.S. 520, 535 (1979)). “Although the Due Process Clause governs a pretrial detainee's claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (citations omitted).
The distinction between a pretrial detainee and a convicted prisoner is an important one in excessive force cases because the Eighth Amendment prohibits “cruel and unusual” punishment whereas “punishment is never constitutionally permissible for presumptively innocent individuals awaiting trial.” Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013) (emphasis in original).
Plaintiff generally alleges that, after his conviction was reversed, the CDOC Defendants had no authority to continue detaining him at SCF. [#14 at 5] In Meadows v. Sutula, a district court was faced with nearly identical allegations as those brought by Plaintiff here. 18-cv-2432, 2019 WL 1226835, at *1, 3-4 (N.D. Ohio Mar. 14, 2019). There, the plaintiff was being detained in a state correctional institution when an appellate court reversed the plaintiff's conviction. Id. at *1. That court, however, did not order the plaintiff's release, but remanded the case to the trial court for further proceedings. Id. at **1, 3. A state statute provided that if a criminal case is remanded to the trial court, “the warden shall forthwith cause the defendant to be conveyed to the jail of the county in which the defendant was convicted, and committed to the custody of the sheriff of that county.” Id. at *3 (quoting Ohio Rev. Code § 2953.13). It took 97 days for the plaintiff to be transferred from the state correctional institution to a county correctional center. Id. at *1. The plaintiff brought Section 1983 claims alleging that this delay violated his constitutional rights. Id. The district court dismissed the plaintiff's claims arising from the delay in transfer, explaining that “whether an inmate is a convicted prisoner or pretrial detainee, he has no constitutional right to be incarcerated in a particular prison or jail.” Id. at **3-4 (citing Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983)). This was true even in the face of the state statute, which placed an affirmative duty on the state facility's warden to convey the plaintiff to the custody of a county sheriff upon reversal of the plaintiff's conviction. Id.
As in Meadows, neither the Colorado Supreme Court nor the Court of Appeals ordered Plaintiff's release. [##48-1; 48-2] The Colorado Supreme Court's mandate remanded to the Court of Appeals, and the Court of Appeals' mandate remanded to the district court for a new trial. [Id.] Throughout this process, Plaintiff does not contest that he was, at least, a pretrial detainee. [#14 at 9] This classification, alone, does not create any constitutional right, much less a clearly established one, to be transferred out of a convicted inmate population. Burciaga v. Cnty. of Lenawee, 123 F.Supp.2d 1076, 1078 (E.D. Mich. 2000) (collecting cases); Sherman v. Washington Cnty. Det. Ctr., No. 2:16-CV-27-TWP-MCLC, 2018 WL 1405279, at *3 (E.D. Tenn. Mar. 20, 2018); see also Bell v. Wolfish, 441 U.S. 520, 561 (1979) (contemplating the same facility “hous[ing] pretrial detainees, convicted inmates, or both”); Powell v. Sheriff, Fulton Cnty., 511 F. App'x. 957, 964 (11th Cir. 2013) (stating that pretrial detainees awaiting release have “no constitutional right, much less a clearly established one, to be held in a particular cell or a separate area of a Jail and not be placed back in the general jail population”).
However, Plaintiff does not ground his claim solely on his status as a pretrial detainee. Plaintiff also alleges that, while a pretrial detainee at SCF, the CDOC Defendants failed to guarantee his safety, leading to an assault by Mr. Cummings. [See generally #14] “[T]he overwhelming weight of persuasive authority holds that unless the state has an intent to punish, or at least displays an indifference toward potential harm to an inmate, pre-trial detainees have no due process right to be housed separately from sentenced inmates.” Burciaga, 123 F.Supp.2d at 1078 (emphasis added) (collecting cases). Put differently, “the placement of a pretrial detainee in a . . . facility with convicted inmates does not violate the Eighth Amendment, without evidence demonstrating that a pretrial detainee was injured by the cell placement.” Sherman, 2018 WL 1405279, at *3 (emphasis added) (citing Brodak v. Nichols, 162 F.3d 1161 (Table), 1998 WL 553032, at *2 (6th Cir. 1998)).
Here, Plaintiff challenges his conditions of confinement as a pretrial detainee by alleging that his continued placement with convicted inmates resulted in injury. And the CDOC Defendants do not contest the sufficiency of Plaintiff's allegations under the Eighth Amendment standard regarding this alleged failure to protect. [##48 at 6; 71 at 2] Accordingly, the Court finds that Plaintiff, as a pretrial detainee, has stated a claim of unconstitutional conditions of confinement under the Fourteenth Amendment due to the CDOC Defendants' alleged failure to protect Plaintiff from assault. The Court therefore respectfully RECOMMENDS that the Motion be DENIED to the extent that it seeks to dismiss Plaintiff's Fourteenth Amendment claims relating to his conditions of confinement at SCF while a pretrial detainee.
It is unclear whether this allegation-that the CDOC Defendants improperly kept Plaintiff confined with convicted inmates, leading to injury-states a separate claim of relief from Plaintiff's allegation that the CDOC Defendants failed to protect Plaintiff from Mr. Cummings' assault (which the CDOC Defendants concede states a claim), as both arise from the same basic facts and challenge Plaintiff's conditions of confinement as a pretrial detainee under the Fourteenth Amendment. Ultimately, to the extent the claims differ, the Court suspects that the separate claims will functionally merge because, for both, Plaintiff will need to establish a deliberate indifference to the potential harm to Plaintiff of an inmate attack.
To the extent these incidents occurred while Plaintiff was technically a pretrial detainee, the Claims are properly brought under the Due Process Clause of the Fourteenth Amendment. Craig, 164 F.3d at 495; Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013). Nonetheless, because the Eighth Amendment standard provides the benchmark for Plaintiff's failure to protect claims, Craig, 164 F.3d at 495, the Court's analysis remains the same regardless of whether the claims occurred while Plaintiff was still a convicted inmate or a pretrial detainee. Routt v. Howard, 764 Fed.Appx. 762, 770 (10th Cir. 2019) (noting that the district court correctly acknowledged that the Due Process Clause governed the plaintiff's claims as a pretrial detainee and further correctly noted that the Eighth Amendment provided the benchmark for such claims).
In addition to Plaintiff's claims relating to the CDOC Defendants' failure to protect Plaintiff from assault by Mr. Cummings, Plaintiff appears to assert a separate Eighth Amendment claim arising out of the incident with Mr. White. [#14, 10-11] Plaintiff also alleges a claim relating to Defendant Custer's deliberate indifference towards Plaintiff's medical needs. [Id. at 15-16] Plaintiff further seeks to impose liability upon Defendants Dorcey, Custer, and Long based on their failures to supervise and failures to enforce sufficiently protective policies. [See Id. at 6-9, 15] The Court takes each issue in turn.
1. Failure to Protect from Mr. White
Plaintiff alleges that various CDOC Defendants failed to adequately protect Plaintiff from, or respond to, threats made by Mr. White. [Id. at 10-11] The CDOC Defendants argue that any claim arising out of Plaintiff's interaction with Mr. White is barred by the statute of limitations. [#48, 9-10]
“[A]lthough a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss ‘when the dates given in the complaint make clear that the right sued upon has been extinguished.'” Radloff-Francis v. Wyo. Med. Ctr., Inc., 524 Fed.Appx. 411, 413 (10th Cir. 2013) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980)). Here, Plaintiff brings his Eighth Amendment claims under 42 U.S.C. § 1983. [#14, 3] Because Section 1983 does not contain a statute of limitations, courts look to the corresponding state statute of limitations. See Owens v. Okure, 488 U.S. 235, 236 (1989). “‘[T]he statute of limitations for § 1983 actions brought in Colorado is two years from the time the cause of action accrued,' unless this period is equitably tolled.” Romero v. Lander, 461 Fed.Appx. 661, 666 (10th Cir. 2012) (quoting Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)) (citation omitted); see also Colo. Rev. Stat. § 13-80-102(1)(g) (establishing a two-year statute of limitations for “[a]ll actions upon liability created by a federal statute where no period of limitation is provided in said federal statute”). Under Colorado law, “equitable tolling of a statute of limitations is limited to situations in which either the defendant has wrongfully impeded the plaintiff's ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or her claim despite diligent efforts.” Romero, 461 Fed.Appx. at 666 (quoting Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 149 (Colo. 2007) (en banc)). And under Colorado law the plaintiff bears the burden of demonstrating that the statute of limitations should be tolled. Id.
Plaintiff also cites to 42 U.S.C. § 1985 and 42 U.S.C. § 1986. [#14 at 3] Those claims are discussed in more detail below. Plaintiff's Americans with Disabilities Act claim was previously dismissed. [#19]
“In a § 1983 action, state law governs issues regarding . . . tolling.” Johnson v. Garrison, 805 Fed.Appx. 589, 593 (10th Cir. 2020) (quotation omitted). “But that rule is not absolute.” Id. Rather, courts “apply a state's limitations and tolling rules unless doing so ‘defeat[s] either § 1983's chief goals of compensation and deterrence or its subsidiary goals of uniformity and federalism.'” Id. (quoting Hardin v. Straub, 490 U.S. 536, 539 (1989)). And the Tenth Circuit has held that a state's “lack of a tolling provision to allow for the exhaustion of mandatory prison grievances is contrary to § 1983's goals.” Id. at 594.
Plaintiff alleges that the incident with Mr. White occurred “on or about Sept[ember] ¶ 2019.” [#14 at 10] Plaintiff alleges that he personally contacted various CDOC Defendants regarding this incident “in the summer and fall of 2019.” [Id.] Thus, liberally construing Plaintiff's complaint, Plaintiff alleges that the incident took place sometime in the fall of 2019, at the latest. Plaintiff filed this lawsuit in February 2022 [#1], which is more than two years from any possible date within the fall of 2019. The Complaint provides no reason for the Court to conclude that Plaintiff's claim did not accrue until after February 2020, or that the two-year statute of limitations should be equitably tolled. Accordingly, the Court RECOMMENDS that Plaintiff's claims arising out of the incident with Mr. White be DIMISSED without prejudice.
“While state law governs the length of the statute of limitations in a § 1983 action, ‘federal law controls . . . when federal causes of action accrue.'” Romero, 461 Fed.Appx. at 666 (quoting Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004)). “[A] civil rights action accrues when [the] facts that would support a cause of action are or should be apparent.” Id. (quoting Alexander, 382 F.3d at 1215).
Plaintiff does not argue for equitable tolling and has thus failed to satisfy his burden of demonstrating equitable tolling. [#62 at 17] Instead, Plaintiff appears to make two arguments: (1) the facts are alleged to demonstrate a continuing conspiracy, and (2) the allegations about Mr. White are relevant because they show that the CDOC Defendants failed to take any steps to stop or investigate the incident. [Id.] To the extent that Plaintiff seeks to bring a continuing violation claim arising out of this incident, the Court notes that the Tenth Circuit “ha[s] never formally adopted the continuing violation doctrine for § 1983 actions.” Gosselin v. Kaufman, 656 Fed.Appx. 916, 919 (10th Cir. 2016) (citing Graham v. Taylor, 640 Fed.Appx. 766, 769 n. 2 (10th Cir.2016)). Accordingly, the CDOC Defendants would be entitled to qualified immunity on any such claim, as Plaintiff's right is not clearly established. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236-37 (2009)). To the extent the allegations about Mr. White and the CDOC Defendants' response to that situation may be relevant to Plaintiff's surviving claims that the CDOC Defendants failed to protect Plaintiff from assault by Mr. Cummings, the Court believes that it is premature to decide such questions of relevance and admissibility at this stage of the proceedings. Judge Sweeney will ultimately decide whether the allegations about Mr. White should be considered as part of any summary judgment motions or admitted at any future trial.
Ordinarily, the Court would recommend dismissal with prejudice where a claim is barred by the statute of limitations. See, e.g., Gatrell v. City & Cnty. of Denver, No. 10-cv-02311-REB-KLM, 2012 WL 219434, at *4 (D. Colo. Jan. 23, 2012), recommendation adopted, 2012 WL 592889 (D. Colo. Feb. 22, 2012); see also Gee v. Pacheco, 627 F.3d 1178, 1181 (10th Cir. 2010) (affirming dismissal with prejudice of claims barred by the statute of limitations). Here, however, the Court is not convinced that Plaintiff cannot assert a basis for equitable tolling, though he has failed to do so in response to the instant Motion. As explained above, it is possible that the statute of limitations was tolled while Plaintiff exhausted his administrative remedies. See supra n. 9. As a result, and considering Plaintiff's pro se status, the Court is recommending dismissal without prejudice to allow Plaintiff to raise the issue of equitable tolling related to his exhaustion of administrative remedies, should he choose to do so.
2. Deliberate Indifference by Defendant Custer
Construing Plaintiff's allegations liberally, Plaintiff alleges that Defendant Custer violated Plaintiff's constitutional rights by delaying Plaintiff's access to medical care following the assault. [#14 at 15-16] The CDOC Defendants do not address this claim.
The Eighth Amendment is violated when correctional officials or prison medical providers act with deliberate indifference to an inmate's serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). In the prison medical context, “deliberate indifference is present when prison officials intentionally deny or delay access to necessary medical treatment for non-medical reasons.” Hammond v. Crum, No. 16-CV-0069-GPG, 2016 WL 153224, at *2 (D. Colo. Jan. 13, 2016) (citing Estelle, 429 U.S. at 104-05). “The test for [deliberate indifference by] prison officials ‘involves both an objective and a subjective component.'” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000)); see also Strain v. Regalado, 977 F.3d 984, 989-93 (10th Cir. 2020) (confirming that, in the Tenth Circuit, a pre-trial detainee asserting a deliberate indifference claim under the Fourteenth Amendment must satisfy both the subjective and objective components of an Eighth Amendment deliberate indifference claim).
In the context of a claim alleging inadequate or improper treatment of a medical condition, the objective component is met if the deprivation of medical care is “sufficiently serious.” Farmer, 511 U.S. at 834. A medical need is sufficiently serious “if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). The subjective component “is met if a prison official ‘knows of and disregards an excessive risk to inmate health or safety.'” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837). Mere negligence is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839).
Here, Plaintiff alleges that, after being stabbed ten times by Mr. Cummings, Defendant Custer placed Plaintiff in handcuffs and ordered that “instead of getting [Plaintiff] to medical for emergency treatment, [Plaintiff] was to be taken to and placed in a closet[.]” [#14 at 15] Plaintiff alleges that, upon these orders, he was “placed alone, bleeding, in a filthy dirty laundry and cleaning supply room by [Defendant] Custer.” [Id. at 21] Plaintiff alleges that he was bleeding profusely during this time, and that at least five of his stab wounds ultimately required stitches. [Id.]
Plaintiff's allegations suffice to state a claim for deliberate indifference. Plaintiff's condition was “sufficiently serious” to satisfy the objective component of a deliberate indifference claim, as multiple bleeding stab wounds are “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Oxendine v. Kaplan, 241 F.3d 1272, 1278 (10th Cir. 2001) (quoting Hunt, 199 F.3d at 1224). And while “[d]elay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm,” Sealock, 218 F.3d at 1210, Plaintiff adequately alleges that the delay resulted in severe pain. [#14 at 16 (alleging that Plaintiff was “thrown in this filthy room and locked in there and left while in handcuffs bleeding and in severe pain”)]; see also Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014) (“Although not every twinge of pain suffered as a result of delay in medical care is actionable, when the pain experienced during the delay is substantial, the prisoner sufficiently establishes the objective element of the deliberate indifference test.” (quotations omitted)); Sealock, 218 F.3d at 1210 (“Even if appellant [who was experiencing severe chest pain] failed to show that his heart was damaged by the delay, . . . we believe he has shown that his need was sufficiently serious to require prompt medical attention.”).
Plaintiff has likewise sufficiently alleged the subjective component of a deliberate indifference claim. Plaintiff has adequately alleged that Defendant Custer knew about Plaintiff's condition and consciously disregarded a substantial risk of serious harm. Indeed, Plaintiff alleges that Defendant Custer witnessed the attack and following the attack ordered Plaintiff to be handcuffed and placed in a dirty closet despite the fact that Plaintiff was “bleeding from several wounds and holes in [his] upper torso.” [#14 at 15] And although Plaintiff does not allege how long he remained in the closet awaiting medical attention, the Court notes that “[e]ven a brief delay [of medical care] may be unconstitutional.” Mata, 427 F.3d at 755; see also Est. of Beauford v. Mesa Cnty., 35 F.4th 1248, 1269 (10th Cir. 2022) (explaining that “delay-even brief delay-in summoning medical assistance, resulting in either unnecessary pain or a worsening of the prisoner's condition,” can provide the basis for liability under Section 1983 for deliberate indifference when an inmate is in obvious need of intensive medical care (collecting cases)).
While the CDOC Defendants do not specifically address Plaintiff's deliberate indifference claim, they do generally argue that Plaintiff has failed to establish an “affirmative link” between any actions taken by Defendant Custer as a supervisor and Plaintiff's alleged deprivations. [##48 at 10-12; 71 at 6-7] “A § 1983 defendant sued in an individual capacity may be subject to personal liability and/or supervisory liability.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). “Personal liability ‘under § 1983 must be based on personal involvement in the alleged constitutional violation.'” Id. (quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997). Supervisory status alone does not create Section 1983 liability, but rather “there must be ‘an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise.'” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997)).
Here, Plaintiff has sufficiently alleged Defendant Custer's personal participation in the constitutional violation. Plaintiff alleges that Defendant Custer “personally assisted” in handcuffing Plaintiff. [#14 at 15] And though Plaintiff does not directly allege that Defendant Custer placed Plaintiff in the closet, he does allege that this action was taken by Defendant Custer's subordinates upon Defendant Custer's explicit orders. [See, e.g., #14 at 15 (“While bleeding from several wounds and holes in my upper torso, [Defendant] Custer ordered that instead of getting me to medical for emergency treatment, I was to be taken to, and placed in a closet[.]”)] Plaintiff therefore alleges “an affirmative link” between Defendant Custer's “exercise of control or direction” (ordering Plaintiff to be placed bleeding in a closet) and the constitutional deprivation (Plaintiff being placed bleeding in a closet and not receiving medical care) sufficient to impose liability upon Defendant Custer for the alleged deprivation. See Smith v. Kenny, 678 F.Supp.2d 1124, 1180 (D.N.M. 2009) (“[B]ecause the parties agree that McDonnell was acting on Kenny's direct orders in apprehending N. Smith, detaining him, and searching his vehicle, the Court finds that Kenny is also liable for N. Smith's unlawful arrest.”).
Accordingly, the Court respectfully RECOMMENDS that the Motion be DENIED to the extent that it seeks to dismiss Plaintiff's Eighth Amendment claim against Defendant Custer arising out of a delay in medical treatment.
3. Remaining Eighth Amendment Issues
The Court next considers Plaintiff's remaining claims against Defendants Dorcey, Long, and Custer. Plaintiff appears to allege both that these defendants personally participated in the failure to protect Plaintiff from assault, and that they failed to adequately supervise other officers and failed to create and enforce sufficiently protective policies. [#14, 7-9, 15] The CDOC Defendants seek dismissal of any supervisory liability claims against these defendants. [##48 at 10-12; 71 at 6-7]
Once again, supervisory status alone does not create § 1983 liability, but rather “there must be ‘an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise.'” Gallagher, 587 F.3d at 1069 (quoting Green, 108 F.3d at 1302). “Supervisory liability ‘allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, [or] implements . . . a policy . . . which subjects, or causes to be subjected that plaintiff to the deprivation of any rights . . . secured by the Constitution.'” Brown, 662 F.3d at 1163-64 (quoting Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010)). To plausibly plead a claim for supervisory liability relating to policy implementation under Section 1983, Plaintiff must allege that: “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds, 614 F.3d at 1199.
With the exception of Plaintiff's allegations that Defendant Custer ordered that Plaintiff's medical treatment be delayed, Plaintiff merely asserts in a conclusory fashion that Defendants Dorcey, Long, and Custer each failed to properly exercise their supervisory authority and created or enforced insufficiently protective policies. [See #14 at 6 (“[Defendant Dorcey] failed to enforce policies and act upon [Plaintiff's] cries for help.”), 7 (“[Defendant Dorcey] failed to properly supervise officers involved.”), 8 (“[Defendant] Long had policies and procedures in effect at this time period . . . which failed to . . . protect [Plaintiff] . . . . [Defendant] Long failed to adequately train and/or supervise his subordinates.”), 15 (“[Defendant Custer] in his supervisory responsibilities . . . fail[ed] to supervise the other [officers] present under his command.”)] These allegations do not identify a policy or custom that could have led to Plaintiff's injuries, or create a non-conclusory affirmative link between these Defendants' alleged failures to supervise and Plaintiff's alleged injuries.
Thus, to the extent that Plaintiff seeks to assert claims arising out of any CDOC Defendant's supervisory or policy-making authority, the Court RECOMMENDS that such claims be DISMISSED without prejudice, with the exception of Plaintiff's claim against Defendant Custer relating to Plaintiff's delayed medical care. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
This recommendation likewise does not extend to Plaintiff's claims arising out of the CDOC Defendants' personal participation in the failure to protect Plaintiff from the assault by Mr. Cummings, which the CDOC Defendants do not seek to dismiss. [##48 at 6; 71 at 2]
C. Fourteenth Amendment Equal Protection Claim
Plaintiff asserts an equal protection claim under the Fourteenth Amendment against various CDOC Defendants for taking discriminatory actions against him based on his race, religion, and sexual orientation. [See #14 at 7, 14, 18] Plaintiff's allegations concerning discrimination on the basis of race or religion are entirely conclusory. [Id. at 14 (“I was also retaliated against by these actions and the actions which will be stated further, by [Defendant Custer] because of the complaints and grievances I had previously filed against him for his mistreatment and discrimination against me, as in the present case, due to my sexual orientation, race and religion as a Muslim.”), 18 (Officers “discriminat[ed] against [Plaintiff] and [did] not help[] [him] due to [Plaintiff's] disability, sexual orientation, friendships with other LGBTQ prisoners and for filing complaints and grievances against staff and being Muslim.”)] Such conclusory allegations fail to plausibly state an equal protection claim on the basis of either race or religion.
With respect to his equal protection claim premised upon his sexual orientation, Plaintiff does allege a degree of hostility towards him because of his sexual orientation. [See, e.g., #14 at 11 (alleging the use of a homophobic slur by a CDOC official and that certain CDOC Defendants began laughing at Plaintiff after being informed that Plaintiff was “one of the LGBTQ people and community”)] But Plaintiff does not allege that the CDOC Defendants refused to protect or transfer LGBTQ inmates because of their sexual orientation, or otherwise provided LGBTQ inmates different levels of protection from non-LGBTQ inmates. Instead, Plaintiff alleges that the CDOC Defendants treated Plaintiff differently than the other LGBTQ inmates, stating that “other LGBTQ inmates were not treated this way and were frequently moved to other units, pods, or facilities for safety and protected after . . . threats, danger, and harassment.” [#14 at 7] Plaintiff thus appears to argue that he is a “class of one,” as he alleges that the CDOC Defendants transferred other LGBTQ prisoners to other living units in response to threats to their safety. [Id.]; see Melnick v. Williams, No. 21-CV-01695-CNS-KLM, 2022 WL 4545749, at *3 (D. Colo. Sept. 29, 2022) (“Plaintiff's Amended Complaint states that Plaintiff is being singled out and treated differently from other transgender female inmates. This presents a class-of-one claim because Plaintiff fails to allege that the CDOC discriminates against women or transgender women as a class based on sex or gender identity.”).
To state a viable claim under the Equal Protection clause of the Fourteenth Amendment, Plaintiff “must first make a threshold showing that [he was] treated differently from others who were similarly situated to [him].” Carney v. Okla. Dep' t of Pub. Safety, 875 F.3d 1347, 1353 (10th Cir. 2017) (alterations in original) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998)). “This element is especially important in class-of-one cases.” Jennings v. City of Stillwater, 383 F.3d 1199, 1213 (10th Cir. 2004); see also Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1213 (10th Cir. 2006) (“[C]ourts have imposed exacting burdens on plaintiffs to demonstrate similarity in class-of-one cases.”). Plaintiff must show that others similarly situated to him “in every material respect” were treated differently. Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (emphasis added) (quotation omitted). “It is . . . imperative for the class-of-one plaintiff to provide a specific and detailed account of the nature of the preferred treatment of the favored class.” Jennings, 383 F.3d at 1214 (emphasis added).
Plaintiff fails to make this threshold showing. The only allegation that Plaintiff makes of being treated differently than any other inmate is his allegation that other LGBTQ inmates were frequently moved for their protection and Plaintiff was not. However, this allegation alone fails to demonstrate that these LGBTQ inmates were similarly situated “in every material respect.” Kan. Penn Gaming, LLC, 656 F.3d at 1216. Plaintiff fails to allege any specific facts regarding these other LGBTQ inmates or the circumstances surrounding their alleged transfers sufficient to survive dismissal. See Melnick, 2022 WL 4545749, at *3 (“Plaintiff asserts a class-of-one equal protection claim by claiming that she knows of other transgender women at the Denver Women's Correctional Facility and that she has not received the same treatment that the other transgender women have received . . . . Because Plaintiff did not allege specific or detailed characteristics of the other transgender women that would make them similar to her, Plaintiff's assertion amounts to a conclusory allegation.”).
Accordingly, the Court respectfully RECOMMENDS that Plaintiff's Fourteenth Amendment Equal Protection claims be DISMISSED without prejudice. See Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
D. Conspiracy to Interfere with Civil Rights
Plaintiff appears to assert the existence of a conspiracy under 42 U.S.C. § 1985(3), alleging that the CDOC Defendants were acting in concert to deprive him of his constitutional rights because of his race, religion, or sexual orientation. [#14 at 9, 12, 17, 20] To state a claim under section 1985(3), Plaintiff must allege that the CDOC Defendants: “(1) conspired, (2) to deprive [Plaintiff] of equal protection or equal privileges and immunities under the law, (3) acted in furtherance of this objective, and (4) injured [Plaintiff] or deprived him of any right or privilege as a result.” Wolfson v. Bruno, 265 Fed.Appx. 697, 698 (10th Cir. 2008) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)). “The intent behind the [Section 1985(3)] conspiracy must be based on some invidious discriminatory animus, such as racial or otherwise class-based animus.” Id.
To satisfy the conspiracy element of Section 1985(3), Plaintiff must allege that defendants acted based on “a meeting of the minds” or agreement. Hinsdale v. City of Liberal, 19 Fed.Appx. 749, 770 (10th Cir. 2010). Conclusory allegations that Defendants conspired does not satisfy this requirement. Gowadia v. Stearns, 596 Fed.Appx. 667, 671 (10th Cir. 2014). And “[p]arallel action . . . or inaction . . . does not necessarily indicate an agreement to act in concert.” Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) (citing Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1361 (10th Cir.1989)).
Here, Plaintiff appears to assert that all of the CDOC Defendants engaged in a conspiracy: (1) to keep Plaintiff in an environment which was harmful, unsafe, and in which Plaintiff's life was in danger and, (2) to keep Plaintiff improperly detained at SCF after his conviction was reversed. [#14 at 9, 12, 17, 20] Plaintiff alleges that he requested to be protected and transferred on various occasions to various CDOC Defendants, and that they separately did not accommodate these requests for discriminatory reasons. [Id. at 6, 9-10, 12, 17-18] However, the Complaint has failed to plead any facts regarding a meeting of the minds by the CDOC Defendants to retaliate against Plaintiff, instead simply alleging that, for example, the CDOC Defendants were “conspiring to wrongfully confine [Plaintiff], discriminate against [Plaintiff], with a class-based discriminatory animus.” [Id. at 9] Plaintiff's “bare assertion[s] that [the CDOC Defendants] ‘conspired' [to keep Plaintiff in an unsafe environment for discriminatory reasons] is exactly the kind of conclusory statement [courts] are not to consider.” Gowadia, 596 Fed.Appx. at 671.
On one occasion, Plaintiff alleges that he met with multiple CDOC Defendants to request a safe environment. [#14 at 11] Defendants Piel and Barnes informed Plaintiff at this meeting that Plaintiff was having problems with other inmates because he associated with “fags.” [Id.] Plaintiff alleges that he told the officers present that he intended to speak to his attorneys about their treatment of him and other LGBTQ inmates, and, as a result, the CDOC Defendants placed Plaintiff in segregation. [Id. at 11-12] This allegation fails to support a plausible inference that these CDOC Defendants agreed and acted in concert to deprive Plaintiff of equal protection with an actionable discriminatory intent. While a discriminatory remark was made towards Plaintiff at the meeting, Plaintiff fails to allege any agreement by the CDOC Defendants at the meeting to discriminate against Plaintiff. Instead, Plaintiff appears to allege that any negative action taken towards him was the result of a retaliatory motive for threatening to contact his lawyer, as opposed to the “invidious discriminatory animus” required to sustain a Section 1985(3) conspiracy. Wolfson, 265 Fed.Appx. 697 at 698.
This alleged retaliation claim is addressed in more detail below.
Plaintiff further asserts claims under 42 U.S.C. § 1986, which provides a cause of action against “[e]very person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 . . . are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so.” “[T]here can be no valid claim under § 1986 of neglect to prevent a known conspiracy, in the absence of a conspiracy under § 1985.” Santistevan v. Loveridge, 732 F.2d 116, 118 (10th Cir. 1984). Because this Court finds that Plaintiff fails to state a claim under Section 1985, he also fails to state a claim under Section 1986. Aniniba v. City of Aurora, 994 F.Supp. 1293, 1298 (D. Colo. 1998) (“A violation of section 1985, i.e., an actionable conspiracy, is a prerequisite for a claim under section 1986. Because plaintiff has not demonstrated the existence of a section 1985 conspiracy, his section 1986 claim must also fail.” (citation omitted)).
Accordingly, this Court RECOMMENDS that Plaintiff's claims under Sections 1985 and 1986 be DISMISSED without prejudice. See Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
E. Retaliation
Construing Plaintiff's complaint liberally, Plaintiff appears to allege a claim of retaliation arising out of the meeting with the CDOC Defendants described above. [#14 at 11-12] The First Amendment prohibits prison officials from retaliating against inmates for exercising their constitutional rights. Poole v. Cnty. of Otero, 271 F.3d 955, 960 (10th Cir. 2001) (“Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.” (quotation omitted)), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006). To state a First Amendment retaliation claim against a government official, a plaintiff must plausibly allege three elements:
(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, 510 F.3d 1196, 1203 (10th Cir. 2007). And, as the Tenth Circuit has held:
To make a prisoner's claim of retaliation by a prison official plausible, it must be supported by (1) specific facts about the adverse action taken against the prisoner to make it plausible that the action was not motivated by legitimate grounds and (2) specific facts showing why the particular official would be motivated to improperly harm the prisoner.Guy v. Lampert, 748 Fed.Appx. 178, 181 (10th Cir. 2018). “[T]emporal proximity between [the protected activity] and the alleged retaliatory conduct, without more, does not allow for an inference of retaliatory motive.” Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th Cir. 2014).
As applied here, Plaintiff fails to allege specific facts making it plausible that the action was not motivated by legitimate grounds. Plaintiff alleges that he went to the CDOC Defendants “requesting safety and protection and movement and help.” [#14 at 11] The CDOC Defendants told Plaintiff that they could place him in protective custody while they investigated, resulting in Plaintiff being placed in segregation. [Id.] And the CDOC Defendants made this decision prior to Plaintiff mentioning that he was going to contact his attorneys. [Id.] While being placed in protective custody may not have been Plaintiff's desired solution to his problem, Plaintiff does not provide sufficient facts to make it plausible that the decision to place Plaintiff in protective custody and move him into segregation following his request for “safety and protection and movement and help” was not motivated by legitimate grounds. Plaintiff has therefore not met his burden of pleading that “‘but for' the retaliatory motive, the incidents to which he refers . . . would not have taken place.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). The Court accordingly RECOMMENDS Plaintiff's retaliation claim be DISMISSED without prejudice. See Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion [#51] be GRANTED IN PART and DENIED IN PART. Specifically, the Court RECOMMENDS that:
(1) The Motion be DENIED to the extent that it seeks to dismiss Plaintiff's Section 1983 claims (arising under the Eighth and Fourteenth 30 Amendments) relating to the CDOC Defendant's failure to protect Plaintiff from assault by Mr. Cummings; (2) The Motion be DENIED to the extent that it seeks to dismiss Plaintiff's Section 1983 claim relating to Defendant Custer's deliberate indifference towards Plaintiff's medical needs following the assault by Mr. Cummings; (3) The Motion be GRANTED in all other respects, such that: a. Plaintiff's Fourteenth Amendment Equal Protection claims be DISMISSED without prejudice; b. Plaintiff's First Amendment Retaliation claims be DISMISSED without prejudice; c. Plaintiff's Section 1985 and 1986 claims be DISMISSED without prejudice; d. With the exception of the claim against Defendant Custer identified at (2), any claims asserting liability based on a CDOC Defendant's supervisory actions or policy enforcement be DISMISSED without prejudice; and e. Any independent claim arising out of Plaintiff's incident with Mr. White be DISMISSED without prejudice; and 31 (4) Plaintiff be given twenty-one (21) days from an order on this Recommendation to file an amended complaint addressing the deficiencies identified by this Recommendation.