Opinion
Civil Action 1:20-cv-02116-RBJ-NYW
12-16-2020
LOUIS PEOPLES, JR., Plaintiff, v. JEFF LONG, DENNY OWENS, and CYRUS CLARKSON, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang United States Magistrate Judge
This matter comes before the court for recommendation on Defendants Jeff Long (“Warden Long”), Denny Owens (“Major Owens”), and Cyrus Clarkson's (“Captain Clarkson” and collectively, “Defendants”) “Motion to Dismiss for Lack of Subject Matter Jurisdiction and For Failure to State a Claim” (“Motion to Dismiss” or “Motion”) [#20, filed October 5, 2020], which seeks dismissal of Plaintiff Louis Peoples, Jr.'s (“Plaintiff” or “Mr. Peoples, Jr.”) Complaint [#1] under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated July 22, 2020 [#6], and Memorandum dated October 6, 2020 [#21]. This court concludes that oral argument will not materially assist in the resolution of these matters. Accordingly, having carefully reviewed the Motion and associated briefing [#22; #26], the docket, and applicable law, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED IN PART and DENIED IN PART as follows.
BACKGROUND
Plaintiff, an individual currently incarcerated at Sterling Correctional Facility (“SCF”) and in the custody of the Colorado Department of Corrections (“CDOC”), initiated this action pro se on July 20, 2020, by filing a Complaint asserting two claims pursuant to 42 U.S.C. § 1983 for alleged violations of his Eighth Amendment rights. See generally [#1]. Specifically, Plaintiff contends that Defendants have failed to take adequate measures to protect himself and other “members in his same class” from contracting COVID-19. [Id. at ¶ 2]. In his first claim for relief (“Claim I”), Plaintiff alleges that Defendants require medically vulnerable inmates, including Plaintiff, to work in the SCF kitchen during the COVID-19 pandemic. [Id. at 5-8]. In his second claim for relief (“Claim II”), Plaintiff alleges that he has been placed at greater risk of contracting COVID-19 because fellow members of his “incentive program” have contracted COVID-19; his cellmate is 26 years old and “makes him more at risk for contracting the virus”; and the CDOC has failed to implement adequate preventative measures to protect against COVID-19. [Id. at 8-9].
Because Plaintiff appears pro se, the court “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). Consistent with this principle, at times, the court will quote from Mr. Peoples, Jr.'s filings without the use of [sic] or the correction of spelling or syntax. However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (“[The court's] role is not to act as [pro se litigant's] advocate”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“The court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues.”) (internal citation omitted). Moreover, the court applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).
Plaintiff's Complaint seeks relief in the form of a declaratory judgment; an injunction (a) preventing Defendants and CDOC staff more generally from placing Plaintiff and other vulnerable inmates “in a position described above, ” and (b) and requiring an “adequate classification system” for vulnerable inmates; and an order of compassionate release to home incarceration and electronic monitoring. [Id. at 10].
In Paragraph 15 on page 7 of Mr. Peoples, Jr.'s Complaint, he states “Pursuant to Federal Rule of Civil Procedure 65(a) Plaintiff moves this Honorable Court for a preliminary Injunction when plaintiff reasonable likelihood his life is in danger, and will can prevail on the merits put forth before this Court for an Eighth Amendment violation.” It does not appear that Mr. Peoples, Jr. seeks a temporary restraining order, and the Local Rules of Civil Practice of this District to require parties seeking temporary restraining orders to file a motion separately from the underlying complaint. See D.C.COLOLCivR 65.1(a). Mr. Peoples filed a Motion for Emergency Injunction that was construed as a Motion for Preliminary Injunction. As discussed below, the presiding judge, the Honorable R. Brooke Jackson, denied Plaintiff's Motion for Preliminary Injunction and indicated that “[t]he Court has to decide whether it has jurisdiction before it can entertain further action in the case.” [#25].
I. Factual History
The following facts are drawn from Plaintiff's Complaint and are, unless otherwise noted, taken as true for purposes of the instant Motion to Dismiss.
Plaintiff is a sixty-six year old individual currently in CDOC custody and housed at SCF. [Id. at 2]. Plaintiff suffers from a variety of medical conditions including chronic asthma, heart disease, diabetes, epilepsy, hypertension, and vision impairment. [Id. at 6 ¶¶ 9-10]. These preexisting conditions make Plaintiff particularly susceptible to adverse outcomes should he be infected by the novel coronavirus and fall ill with the disease it causes, COVID-19. [Id. at 6 ¶¶ 89].
On March 11, 2020, Executive Director of the CDOC, Dean Williams (“Executive Director Williams”), issued an Executive Order in response to the COVID-19 pandemic. [Id. at 7 ¶ 13]. Therein, Executive Director Williams stated that “Our primary goal is to reduce risk and to protect the safety of our staff, inmates, and parolees. Our biggest goals to prevent the accidental introduction of COVID-19 into a prison, which would present additional risks to staff and inmates.” [Id.]. Shortly after Executive Director Williams's Executive Order, a COVID-19 outbreak at SCF infected hundreds of inmates. [Id.]. Some inmates died from their infections. [Id.].
On April 14, 2020, SCF instituted a “complete lock-down, ” whereby Mr. Peoples, Jr. and his cellmate were isolated from all other inmates, including those within his living unit and the unit more generally. [Id. at 5 ¶ 4]. Mr. Peoples, Jr. was administered a COVID-19 test for the first time roughly one month later. [Id. at 5 ¶ 5]. He was tested for COVID-19 three more times on May 19, May 26, and June 1, 2020, respectively. [Id.].
Lockdown restrictions were lifted in Mr. Peoples, Jr.'s housing unit on June 19, 2020. [Id.]. Three days later, a second outbreak led to roughly 500 inmates contracting COVID-19 in the “East and West yards.” [Id. at 5 ¶ 6]. Because many of these inmates were working in Food Services prior to the outbreak, Defendant Major Owens, who oversees facility staffing and inmate feeding, subsequently ordered his staff to make inmates participating in the “incentive program” available to work in Food Services. [Id.].
Defendant Captain Clarkson then ordered Mr. Peoples, Jr. and other “elderly and medically vulnerable inmates, ” ranging in age between 60 and 84 years old, to work in Food Services for eight to ten hours per day. [Id. at 5-6 ¶ 7]. When working in Food Services, inmates are locked into the kitchen with approximately 15 staff members and 50 inmates. [Id. at 8 ¶ 18]. The kitchen is a “perfect breeding grounds to contract the virus” because the virus “is surging” and some of these individuals “have had” COVID-19 and/or fail to wear face masks at all times. [Id.].
Plaintiff claims that pursuant to Colorado Governor Jared Polis's (“Governor Polis”) April 26 Executive Order, Plaintiff and vulnerable inmates like him (1) should stay in their housing units, and (2) cannot be compelled to perform in-person work for any business or government functions, critical or otherwise. [Id. at 6 ¶ 8]. The Executive Order defines vulnerable individuals to include those aged 65 years and older. [Id.]. In addition, vulnerable individuals include people with chronic lung disease or moderate to severe asthma; serious heart conditions; and/or compromised immune systems. [Id.].
Although the Complaint sometimes refers to an Executive Order by Governor Polis dated “April 26, 2002, ” this court understands this as a typographical error, and elsewhere in the Complaint Plaintiff cites to the Executive Order and references an effective date of April 26, 2020. See [#1 at 8 ¶ 1].
In light of his medical vulnerabilities, Plaintiff begged Captain Clarkson to remove his name from the Food Services Roster, but his pleas went unanswered. [Id. at 6-7 ¶ 12]. Plaintiff fears that he will contract COVID-19 if forced to continue to work in the kitchen and the virus “returns” because he is “working in an area where most of the inmates have contracted [the virus]” and where “Officials who also had the [virus] . . . [have] returned to work after sick leave.” [Id.]. At some point, an inmate housed in Plaintiff's unit who-unlike Plaintiff-was not assigned to the kitchen by the classification board, died after returning from working in the kitchen. [Id. at 7 ¶ 14].
According to Plaintiff, for “more than eight weeks, ” Defendants have denied vulnerable inmates including Plaintiff the protections ordered by Governor Polis and Director Williams by continuing to require these inmates to work in Food Services. [Id. at 7-8 ¶ 16]. Mr. Peoples, Jr. seeks court intervention because refusal to work in Food Services despite a direct order from SCF staff is cause for his removal from the incentive program, and could result in his receipt of a “Class Two Disciplinary report” for refusing to work and/or disobeying a direct order. [Id. at ¶ 11].
Plaintiff's COVID-related concerns extend beyond his assignment to food services work. Four inmates within Plaintiff's incentive program have tested positive for COVID-19. [Id. at 9 ¶ 4]. These individuals “were placed right back” in Plaintiff's unit with Plaintiff and at least fifteen other inmates. [Id.]. Plaintiff further believes he is at greater risk for contracting COVID-19 because his cellmate is 26 years old and thus “makes him more at risk for contracting the virus”; inmates cannot properly wash their face masks; SCF has failed to provide soap on a consistent basis; and SCF remains non-compliant with “many rules and requirements.” [Id. at 9 ¶ 5]. SCF was also allegedly late in responding to and/or implementing procedures to help combat the virus by failing to pass out masks; rejecting from the infirmary inmates displaying symptoms of COVID-19; testing inmates only once for COVID-19; and subjecting the general inmate population to inmates that have previously tested positive for the virus. [Id.].
Based on the foregoing allegations, Mr. Peoples, Jr. asserts two claims under § 1983 for Defendants' alleged violations of his Eighth Amendment rights. See generally [id.]. In his prayer for relief, Mr. Peoples, Jr. seeks (1) a declaration that Defendants' conduct violates the Eighth Amendment; (2) “a preliminary or permanent injunction” preventing Defendants and other CDOC staff from placing Mr. Peoples, Jr. or other vulnerable inmates “in a position described above” (referencing his Complaint); and (3) an order of compassion release to home incarceration. [Id. at 10].
II. Procedural History
On July 20, 2020, Mr. Peoples, Jr. initiated this action [#1] and filed a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (“Motion to Proceed IFP”). [#2]. The following day, the Honorable Gordon P. Gallagher ordered Plaintiff to submit a copy of his inmate account statement for the six months immediately preceding this action, as required for Plaintiff's Motion to Proceed IFP, and ordered the case be reassigned. [#5]. This matter was assigned to Judge Jackson and drawn to the undersigned Magistrate Judge. [Id.]. On August 10, 2020, and upon referral from Judge Jackson [#12], the undersigned granted Plaintiff's Motion to Proceed IFP.
On October 5, 2020, Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a cognizable claim. [#20]. Plaintiff filed his Response to the Motion to Dismiss on October 30, 2020. [#22]. That same day, Plaintiff filed a Motion for Emergency Injunction, seeking a preliminary injunction related to allegedly unsafe conditions at SCF and retaliation by SCF staff against Plaintiff. [#24]. Judge Jackson subsequently denied Plaintiff's Motion for Emergency Injunction, explaining that the court could not entertain further action in this case until it decided the jurisdictional issue raised by Defendants' Motion to Dismiss, which was not yet ripe. [#25, filed November 3, 2020]. Defendants filed their Reply to the Motion to Dismiss on November 16, 2020. [#26]. The Motion to Dismiss is thus ripe for Recommendation.
On September 18, 2020, Defendants sought a 14-day extension to their deadline to file a responsive pleading. [#16]. The undersigned granted the requested extension on September 21, 2020, thereby extending Defendants' deadline to file a responsive pleading to no later than October 5, 2020. [Id.].
LEGAL STANDARDS
Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. Image Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
A plaintiff must establish Article III standing to bring each of his claims separately. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). The standing inquiry has two components: constitutional and prudential. To establish constitutional standing, a plaintiff must demonstrate “(1) an ‘injury in fact,' (2) sufficient ‘causal connection between the injury and the conduct complained of,' and (3) a ‘likel[ihood]' that the injury ‘will be redressed by a favorable decision.'” Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff must also satisfy the requirements of prudential standing. To establish prudential standing, a plaintiff must (1) assert his own rights, rather than those belonging to third parties; (2) demonstrate that his claim is not simply a “generalized grievance;” and (3) show that plaintiff's grievance falls within the zone of interests protected or regulated by statutes or constitutional guarantee invoked in the suit. See Bd. of Cty. Comm'rs of Sweetwater Cty. v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) (citations omitted). The elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff's case.” Lujan, 504 U.S. at 561. Therefore, Article III standing cannot be assumed; the court must resolve issues of standing before it may reach the merits of an issue. See Colorado Outfitters Ass'n v. Hickenlooper (“Colorado Outfitters II”), 823 F.3d 537, 543 (10th Cir. 2016).
When a party goes beyond the allegations set forth in the complaint to challenge the facts upon which subject matter depends, the presumption of truthfulness typically afforded the complaint's allegations does not apply and the court has wide discretion to consider, inter alia, affidavits and other documents to resolve the disputed jurisdictional facts. United States v. Rodriquez Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)) (further citations omitted). See also Holt, 46 F.3d at 1002-03 (when a factual challenge is made, there is no presumption of truthfulness attached to the plaintiff's allegations).
II. Rule 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the 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) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nevertheless, 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory , unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “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, 129 S.Ct. 1937, 1949 (2009). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible”).
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). Should the court receive and consider materials outside the complaint, the court may convert a Rule 12(b)(6) motion to a motion for summary judgment if the parties have notice of the changed status and the nonmovant responded by supplying its own extrinsic evidence. See Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004). However, a district court may consider legal arguments contained in a brief in opposition to dismissal or documents referred to in the complaint that are central to a plaintiff's claim, without converting the Rule 12(b)(6) motion into a summary judgment motion, if the Parties' do not dispute their authenticity. See Cty. of Santa Fe, N.M. v. Public Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). In addition, the court may consider documents subject to judicial notice, including court documents and matters of public record. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
ANALYSIS
Defendants have moved to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim, but neither ground is asserted against the Complaint in its entirety. [#20]. Rather, Defendants argue for dismissal of Claim I on jurisdictional grounds and dismissal of Claim II for failure to state a claim. [Id.]. This court will begin by analyzing subject matter jurisdiction as to Claim I.
I. Subject Matter Jurisdiction
Defendants argue for dismissal of Claim I for lack of subject matter jurisdiction. Specifically, Defendants argue that Plaintiff's claim was rendered moot in July 2020 upon his removal from the SCF Food Services Roster. [#20 at 5-8]. Given the extrinsic evidence offered in this matter, I first consider the scope of the record before turning to whether this court has subject matter jurisdiction over Plaintiff's claim.
Extrinsic Evidence Submitted by Defendants.
Defendants submit in support of their Motion to Dismiss the Declaration of Kelli Reyes (“Reyes Declaration”), an Administrative Manager employed by the CDOC and assigned to SCF. [#20-1 at ¶ 1]. In sum, Ms. Reyes declares that, although Plaintiff was initially placed on the Food Services Roster at SCF on July 3, 2020, he was subsequently released from Food Services by Captain Clarkson ten days later. [Id. at ¶¶ 3, 6]. Ms. Reyes adds that, since his release from the roster and to date, Plaintiff has not worked in Food Services. [Id. at ¶ 7]. The court has wide discretion on Rule 12(b)(1) motions to dismiss to consider evidence outside the pleadings where the factual basis for subject matter jurisdiction is challenged. See, e.g., Holt, 46 F.3d at 1002. And Defendants rely on the Reyes Declaration to argue that, because Plaintiff is no longer assigned to work in Food Services, there is no longer a justiciable “case or controversy” to support subject matter jurisdiction over Claim I. [#20 at 5-8]. Because Defendants submit the Reyes Declaration to challenge the factual basis upon which subject matter jurisdiction over Claim I rests, I consider this evidence in assessing subject matter jurisdiction.
Application.
In seeking dismissal under Rule 12(b)(1), Defendants argue that Plaintiff's first claim, premised on his placement on the Food Services Roster and expectations that Plaintiff work in the SCF kitchen, “should be dismissed as moot.” [#20 at 5]. Defendants note that Plaintiff seeks only declaratory and prospective injunctive relief and contend that Plaintiff's “Eighth Amendment claim is moot to the extent he seeks redress for being placed in a kitchen work environment” because he “was removed from the kitchen work list by Defendant Clarkson on July 13, 2020 and has not worked in or near the kitchen since then.” [Id. at 7]. Indeed, Defendants point out that Plaintiff was removed from the Food Services Roster one week prior to the filing of this lawsuit. [Id. at 7 n.1 (emphasis added)]. Mr. Peoples, Jr. neither disputes nor offers any evidence that contradicts the assertion that he ceased working in the kitchen prior to the filing of this action. [#22].
Relevant to this court's determination of subject matter jurisdiction here are two related but distinct jurisdictional doctrines: mootness and standing. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“Laidlaw”); RMA Ventures California v. SunAmerica Life Ins. Co., 576 F.3d 1070, 1073 n.6 (10th Cir. 2009) (“Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” (internal quotation marks omitted)). Mootness is judged by the state of facts as they exist after the complaint is filed. Id.
By contrast, “‘[a] plaintiff must demonstrate standing separately for each form of relief sought.'” Smith v. U.S. Immigration and Customs Enforcement, 429 F.Supp.3d 742, 755 (D. Colo. 2019) (quoting Laidlaw, 528 U.S. at 185). Standing to seek redress for already-inflicted harm differs from standing to seek prospective relief against anticipated future harm. See id. Past exposure to illegal conduct does not in itself show a present case or controversy to establish standing for injunctive relief if unaccompanied by any continuing, present adverse effects. Id. (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Moreover, “standing-for prospective relief or otherwise-is judged by the state of facts as they existed when the plaintiff files the complaint.”Id. (citing Laidlaw, 528 U.S. at 184-88) (emphasis added).
Simply put, standing and mootness issues are triggered separately and resolutions of the same require application of different principles and burdens. Id. (citing Davis v. FEC, 554 U.S. 724, 733-36 (2008)) (“If standing for prospective relief exists when the complaint is filed, ” the effect of “later events that appear to moot such relief . . . is analyzed under separate principles and burdens that apply specifically to mootness”). Given the timing of when Plaintiff stopped working in the kitchen, this court agrees that it lacks subject matter jurisdiction over Plaintiff's first claim- albeit under application of the standing, rather than mootness, doctrine. “The plaintiff bears the burden to establish standing at the time the suit is filed, and if the defendant's offending conduct has ceased by that time, ” a court should dismiss for lack of standing and, more specifically, lack of redressability. WildEarth Guardians, 690 F.3d at 1185 (emphasis added). Because Defendant Clarkson removed Plaintiff from the Food Services Roster one week prior to the filing of the instant action, Plaintiff cannot establish standing to assert a claim for prospective relief premised on his assignment to the Food Services Roster and, therefore, this court lacks subject matter jurisdiction over the same.
Thus, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED as to Plaintiff's first claim for relief, and that Plaintiff's first claim be DISMISSED for lack of subject matter jurisdiction on the theory that Plaintiff lacks standing.
II. Failure to State a Claim
A. Individual Capacity Claims Against Defendants
Defendants argue for dismissal of Plaintiff's claims for injunctive relief against Defendants in their individual capacities. [#20 at 8-9]. Although Plaintiff asserts in his Complaint that he is suing Defendants under § 1983 in their individual and official capacities, see [#1 at 2-3], he does not seek monetary damages as relief in this action, see [id. at 10]. Under the statute, a state government official may be sued in their individual capacity for monetary damages but not for injunctive relief. 42 U.S.C. § 1983; Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n.10 (1989). Thus, to the extent Mr. Peoples, Jr. seeks injunctive relief from Defendants in their individual capacities, he has failed to state a claim under § 1983. Accordingly, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED insofar as Plaintiff seeks injunctive relief for any claims asserted against Defendants in their individual capacities, and such claims for injunctive relief against Defendants in their individual capacities be DISMISSED with prejudice. See also Curley v. Perry, 246 F.3d 1278, 1282-85 (10th Cir. 2001) (holding that a court may sua sponte dismiss an inmate's complaint under § 1915(e)(2)(B)(ii) and Rule 12(b)(6) when it is patently obvious that she could not prevail on the facts alleged, and amendment would be futile).
I turn now to consider the sufficiency of Plaintiff's deliberate indifference claim premised on allegedly inadequate preventative measures to protect inmates from COVID-19.
B. Claims for Deliberate Indifference Against Defendants in Official Capacities
Plaintiff also brings Claim II pursuant to § 1983 for alleged violations of his Eighth Amendment rights against Defendants in their official capacities - essentially a claim against the state agency, Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)) - arising from the purported inadequate preventative measures implemented to protect inmates from COVID-19. First, this court sets forth the legal standard applicable to Plaintiff's deliberate indifference claim. Then, I consider whether the extrinsic evidence and new allegations proffered in the Parties' briefing may be factored into this court's assessment. Only upon defining the scope of this court's review do I then turn to whether Plaintiff has stated a claim for deliberate indifference.
Given this court's conclusion that it lacks subject matter jurisdiction over Claim I, and because Defendants challenge only Claim II under Federal Rule of Civil Procedure 12(b)(6), see [#20], this court limits its analysis here to the sufficiency of Claim II as pled. See Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016) (“A federal court can't ‘assume' a plaintiff has demonstrated Article III standing in order to proceed to the merits of the underlying claim, regardless of the claim's significance.”).
1. Legal Standard
“A prison official's ‘deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). See also Helling v. McKinney, 509 U.S. 24, 33 (1993) (“The [Eighth] Amendment . . . requires that inmates be furnished with the basic human needs, one of which is reasonable safety.” (internal quotation marks omitted)). Rather than reflect “a court's idea of how to best operate a detention facility, ” analysis of an Eighth Amendment claim must reflect “the evolving standards of decency that mark the progress of a maturing society.” DeSpain v Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001) (internal citation and quotation omitted).
The Eighth Amendment “protect[s] against unjustifiable conditions of confinement, ” including “deliberate indifference to an excessive risk to a prisoner's health.” Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019) (internal quotation marks omitted). Prison officials violate the Eighth Amendment “only if the deprivation to which the prisoner has been subjected is ‘objectively sufficiently serious' and only if the prison official has a ‘sufficiently culpable state of mind.'” Grissom v. Roberts, 902 F.3d 1162, 1174 (10th Cir. 2018) (quoting Farmer, 511 U.S. at 834). “‘In prison-conditions cases, that state of mind is one of deliberate indifference to inmate health or safety.'” Id. (quoting Farmer, 511 U.S. at 834).
To prevail on an Eighth Amendment claim, a plaintiff must satisfy the “deliberate indifference test” by showing that (1) objectively, the harm she complains of is sufficiently “serious” to merit constitutional protection, and (2) the defendant was subjectively aware of a substantial risk to the plaintiff's health or safety and acted in purposeful disregard of that risk. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). “A prison official who actually knew of a substantial risk to inmate health or safety may be found free from liability if they respond[] reasonably to the risk.” Farmer, 511 U.S. at 844.
2. Evidence Outside of the Pleadings
Both Parties cite to and rely on evidence beyond the allegations set forth in the Complaint in arguing their respective positions. See [#20; #22]. I consider whether these proffered additions to the record are properly considered on a Rule 12 (b)(6) motion to dismiss in turn.
Extrinsic evidence submitted by Defendants.
In arguing for dismissal of Plaintiff's second claim, Defendants cite to materials outside of the pleadings including “official government documents” and Executive Orders concerning the COVID-19 pandemic. [#20 at 11 n.2; id. at 1113]. Defendants rely on these documents as extrinsic evidence of the reasonableness of CDOC's response to the risk posed by COVID-19 to the general inmate population. See, e.g., [id. at 11 (citing https://drive.google.com/file/d/1wVaeGO5Aj_2gEAL4zTXPJLk8-FWDYYwg/view); id. at 12 (citing https://drive.google.com/file/d/1I9dyGYreaeakjXq0ME0fDTcTEvQCtMr4/view)]. Defendants describe the “official government documents” to which they cite as “an official collection of Frequently Asked Questions (FAQs) available on the CDOC website[.]” [Id. at 11]. As to the Executive Orders, Defendants contend that the Complaint repeatedly references Executive Orders from the Governor of Colorado, albeit “not cite[d] to . . . accurately[.]” [Id. at 11 n.2].
Generally, consideration of materials attached to a defendant's motion to dismiss requires the court to convert the motion to one for summary judgment. See Fed.R.Civ.P. 12(b); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). However, an exception exists for facts subject to judicial notice, including a court's own files and records and matters of public record, which may be considered on a Rule 12(b)(6) motion to dismiss without converting the motion into one for summary judgment. Hogan, 453 F.3d at 1264 n.24.
Defendants assert that this judicial notice exception applies to the FAQs. [#20 at 11 n.2]. Although Defendants assert that the FAQs document is derived from a publicly available government website, Defendants' citation to the FAQs directs the viewer to a PDF saved to a Google Drive. [Id. (citing https://drive.google.com/file/d/1wVaeGO5Aj_2gEAL4zTXPJLk8-FWDYYwg/view)]. The document itself is titled “FINAL 7-31-2020 FAQs on CDOC and COVID-19 Prevention and Response” and lacks any indicia from which the court can conclude it was generated by the CDOC or is, in fact, an official government document. See [id.]. Thus, this court concludes that the FAQs document is not properly considered under the judicial notice exception.
Elsewhere in the Motion to Dismiss, Defendants cite to the CDOC website. [#20 at 12 n.4 (citing https://www.colorado.gov/pacific/cdoc/covid-19-faq-and-updates)]. The website does include a link to a “Frequently Asked Questions” document, which indicates the list was last updated on November 3, 2020. See id., “COVID-19 Frequently Asked Questions and Updates” (last visited Dec. 10, 2020). This is not the same document relied on by Defendants. Compare Id. with [#20 at 11 n.2].
Moreover, Defendants offer the FAQs as support for their position that the CDOC “has taken reasonable steps to manage the danger posed by the pandemic, as shown by the department wide policies the CDOC has put into place to manage it.” [Id. at 13]. But even if this court did conclude that the FAQs document is properly subject to judicial notice (which it does not), documents considered under this exception may only be considered to show their contents and not the truth of the matters asserted therein. See Hogan, 453 F.3d at 1264 n.24; Oxford Asset Mgmt, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (finding no error in district court taking judicial notice of public documents on motion to dismiss where documents were considered for their contents and not the truth of matters asserted therein). In other words, the court cannot determine whether the FAQs document establishes the reasonableness of the CDOC's response to the risks posed by COVID-19 because doing so would require this court to accept as true that the CDOC complies with all of the provisions of the FAQs. Accordingly, the court declines to consider the FAQs in deciding the instant Motion.
Defendants also rely on two Executive Orders issued by Colorado Governor Jared Polis. [#20 at 11-13 (citing Executive Order D 2020 016 (Mar. 25, 2020) and Executive Order D 2020 192 (Sept. 15, 2020))]. Unlike the FAQs discussed above, the court concludes that it may take judicial notice of these Executive Orders. See Democracy Forward Found. v. White House Office of Am. Innovation, 356 F.Supp.3d 61, 69, n.6 (D.D.C. 2019) (citing Dennis v. United States, 339 U.S. 162, 169 (1950)) (explaining that the Court could “[o]f course” take notice of an executive order relevant to the case); Goico v. United States, No. 20-1025-JWB, 2020 WL 5761438, at *4 (D. Kan. Sept. 28, 2020) (“This court may take judicial notice of executive orders.”). In sum, Executive Order D 2020 016, issued on March 25, 2020, temporarily suspended certain regulatory statutes concerning the criminal justice system in light of the COVID-19 pandemic for a period of thirty days. See Executive Order D 2020 016 (Mar. 25, 2020). Governor Polis issued Executive Order D 2020 192 on September 15, 2020, thereby renewing for thirty days sections of Executive Order D 2020 016 that (a) temporarily suspend the CDOC's duty to receive and take custody of prisoners, and (b) allow for a mixed classification prison for offenders to enable the CDOC to better meet operational needs in response to the pandemic. See Executive Order D 2020 192 (Sept. 15, 2020).
But again, this court may consider the Executive Orders only for notice of their contents. It cannot accept the documents for the truth of the matters asserted therein, and therefore cannot agree with Defendants' assertion that these Executive Orders demonstrate the reasonableness of the CDOC's pandemic response. [#20 at 13 (“[T]he CDOC's policies reflect a comprehensive response by the CDOC to the pandemic, as demonstrated by the foregoing official Executive Orders[.]”)]. Nor do either of the Executive Orders cited by Defendants address the particular concerns raised by Plaintiff, i.e., that the actually implemented procedures within SCF fail to adequately protect Plaintiff from his heightened vulnerability to COVID-19. This court declines Defendants' invitations to pass on the merits of any forthcoming defense by evaluating the substance of any evidence outside the four corners of the Complaint in determining the sufficiency of the pleading.
New Claim and Allegations in Plaintiff's Response.
In his Response to the Motion to Dismiss, Plaintiff includes a new claim and several allegations not included in his Complaint. For example, Plaintiff includes for the first time a First Amendment retaliation claim. Compare [#1] with [#22 at 4 ¶ 8]. He asserts new allegations in his Response that, in October 2020, he was moved from his “incentive unit” to a new unit that he believes last underwent COVID-19 testing in May 2020, and that this change was borne from Defendants' retaliatory motives. [#22 at 5-6]. But absent a recognized exception to the rule, “a federal court may only consider facts alleged within the complaint” when ruling on a Rule 12(b)(6) motion. See Cty. of Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). And neither Plaintiff's newly asserted First Amendment claim nor the allegations to support it appear in the Complaint, and he cannot amend his pleading through his Response to the instant Motion to Dismiss. See [#1]; Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)). Accordingly, this court does not pass on the new claim and allegations set forth in Plaintiff's Response in considering whether Plaintiff's remaining claim survives dismissal.
Having thus determined the scope of its review, this court turns now to “assess whether [Mr. Peoples, Jr.'s] complaint alone is legally sufficient to state a claim for which relief may be granted.” See Hogan, 453 F.3d at 1252.
3. Application
Defendants do not challenge the sufficiency of Plaintiff's Complaint as to the first, objective element of a deliberate indifference claim. Instead, Defendants focus solely on the second factor of the deliberate indifference test to argue that the Complaint “does not contain facts that would satisfy the subjective component of an Eighth Amendment claim.” [#20 at 10]. According to Defendants, “absent from the Complaint is any allegation suggesting that Defendants acted recklessly or with the purpose of causing [Mr. Peoples, Jr.] unnecessary pain.” [Id.]. This court respectfully disagrees.
In discussing the subjective factor of a deliberate indifference claim, the United States Supreme Court has explained that “deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference” standard as equal to “recklessness, ” in which “a person disregards a risk of harm of which he is aware.” Id. at 836-37.
To succeed on a claim for deliberate indifference, a plaintiff must prove the defendant was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and that he “drew th[at] inference.” Id. at 837. Given the difficulty in proving an official's state of mind, the subjective component may be proven through circumstantial evidence, and courts “may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious.” Hope v. Pelzer, 536 U.S. 730, 738 (2002). See also Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020) (holding that, because the seriousness of the risk of COVID-19 was obvious, a court could reasonably conclude that the defendant was aware of the virus and its attendant risks); Carranza v. Reams, __ F.Supp.3d __, 2020 WL 2320174, at *7 (D. Colo. 2020) (“COVID-19 is a potentially deadly disease that has led to unprecedented measures around the world to stop its spread.”)
The Complaint alleges that CDOC Executive Director Williams issued an “Executive Order” on March 11, 2020, which identified reducing the risk of COVID-19 to “the safety of our staff, inmates, and parolees” as the CDOC's “primary goal.” [#1 at 7 ¶ 13]. And Plaintiff alleges that, “shortly after the executive order was posted, the corona-virus spread among inmates” at SCF, resulting in hundreds of confirmed infections and approximately four deaths. [Id.]. These allegations set forth facts sufficient to support the inference that Defendants had knowledge of the disease and its attendant risks.
Moreover, the Complaint contains facts that, if true, could lead to the inference that despite this knowledge, Defendants acted with reckless disregard for Plaintiff's safety. For example, Plaintiff alleges that multiple inmates who tested positive for COVID-19 were nevertheless “placed right back in the same []pod within the same cells, ” and among Plaintiff and other inmates - implicitly in disregard to any written policies or procedures. [Id. at 9]. Plaintiff further alleges that inmates experiencing symptoms of the virus are turned away from the infirmary; there “is no social distancing” at SCF; soap has been provided on an inconsistent basis; and inmates are not provided with adequate means of sanitizing their face masks. [Id.]. These facts state a claim from which a fact finder may infer that the CDOC and Defendants (CDOC employees sued in their official capacities) have been deliberately indifferent to the needs of Plaintiff, and other medically vulnerable inmates, during this pandemic. See Smith v. DeWine, __ F.Supp.3d __, 2020 WL 4436362, at *13-14 (S.D. Ohio Aug. 3, 2020) (denying motions to dismiss prisoners' Eighth Amendment deliberate indifference claim where complaint alleged that state prisons were overpopulated and susceptible to COVID-19 outbreaks and lacked adequate medical equipment).
In sum, this court concludes that the Complaint contains enough factual allegations for Claim II to survive Rule 12(b)(6) dismissal. Accordingly, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be DENIED as to Claim II.
In so doing, this court does not pass on the likelihood of Plaintiff's claim succeeding on the merits.
III. Release from Custody
Finally, Defendants argue that Mr. Peoples, Jr.'s request for “compassionate release” from CDOC custody in light of the dangers posed by COVID-19 should be denied. [#20 at 14-15]. Specifically, Defendants argue that the federal statutes permitting release of an inmate in the custody of federal prisons are inapplicable to Plaintiff because he is in CDOC custody; Colorado has no equivalent statute applicable to the release of inmates in state custody; and the Prison Litigation Reform Act, 42 U.S.C. § 1997e, et seq., precludes the injunctive relief Plaintiff seeks. [Id.]. Defendants also contend that, to the extent Mr. Peoples, Jr. seeks relief from this court related to Governor Polis's failure to “use the clemency process to commute the sentences of vulnerable inmates, ” this federal court lacks authority over the “clemency process.” [Id. at 14].
The court finds it unnecessary to consider Defendants arguments here because “release from custody is not an available remedy in a § 1983 action.” Brown v. Sedgwick Cty. Sheriff's Office, 513 Fed.Appx. 706, 707 (10th Cir. 2013). See also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”); Graham v. Waters, 805 Fed.Appx. 572 (10th Cir. 2020) (stating that an inmate's “request for an injunction ordering his immediate release from custody is not a cognizable request for relief in this § 1983 claim”); Faircloth v. CDOC, No. 20-cv-03202-RM-STV, 2020 WL 7055448, at *3 (D. Colo. Dec. 2, 2020) (denying motion for preliminary injunction and noting that plaintiff's request for immediate relief was not available to him under his § 1983 claim premised on alleged Eighth Amendment violations).
Accordingly, insofar as Defendants seek dismissal of Plaintiff's request for compassionate release, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED with respect to any relief sought by Plaintiff related to the fact or duration of his physical imprisonment, and that Plaintiff's request be DISMISSED with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (explaining that dismissal without leave to amend and with prejudice is appropriate where no amendment could cure the defect).
IV. Requests for Leave to Amend and Appointment of Counsel
In his Response, Plaintiff also asks the court to “allow him to amend his Complaint with the appointment of counsel[.]” [#22 at 12]. At the outset, this court notes that Local Rule 7.1(d) prohibits the inclusion of a motion within a response. See D.C.COLOLCivR 7.1(d). Nevertheless, I consider Plaintiff's requests for leave to amend and the appointment of counsel in turn.
Leave to Amend.
Whether to permit amendment is within the court's discretion. See Llacua v. W. Range Ass'n, 930 F.3d 1161, 1189 (10th Cir. 2019). A court may deny leave to amend in the absence of a formal motion requesting leave to amend, because a “bare request to amend in response to a motion to dismiss” does not alert the court or opposing party of the request to amend or the basis for it. Johnson v. Spencer, 950 F.3d 680, 721 (10th Cir. 2020) (internal quotation marks omitted); see also D.C.COLO.LCivR 7.1(d) (prohibiting the inclusion of a motion within a response). Here, while Plaintiff seeks leave to amend and asserts for the first time in the body of his Response a First Amendment claim and new allegations, it is unclear the scope of amendments he proposes and this court has recommended that Mr. Peoples, Jr.'s requests for injunctive relief against individual Defendants and release from custody be dismissed with prejudice. Therefore, this court concludes that any request by Plaintiff to amend his Complaint should be made by formal motion, in compliance with D.C.COLO.LCivR 15.1, after the presiding judge's ruling on the Recommendation.
Appointment of Counsel.
Mr. Peoples, Jr. also seeks the appointment of counsel. The determination of whether to seek pro bono counsel in a civil case is left to the sound discretion of the trial court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). But the court cannot appoint counsel; instead, the court can only ask an attorney to take the case. Moaz v. Denver Int'l Airport, 747 Fed.Appx. 708, 711 (10th Cir. 2018) (citing Rachel v. Troutt, 820 F.3d 390, 396-97 (10th Cir. 2016)). In deciding whether to request counsel for a civil litigant, the district court should evaluate “the merits of a [litigant's] claims, the nature and complexity of the factual issues, and the [litigant's] ability to investigate the facts and present his claims.” Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted); accord D.C.COLO.LAttyR 15(f)(1)(B)(i)-(iv) (providing factors that the court should consider in determining whether to appoint pro bono counsel). “The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel.” Hill, 393 F.3d at 1115 (citation omitted).
This court concludes that any such request should be deferred until after Judge Jackson has an opportunity to rule on the Recommendation for a number of reasons. First, Plaintiff makes this request in response to the Motion to Dismiss, which is improper pursuant to Local Rule 7.1(d) as discussed above. D.C.COLO.LCivR 7.1(d); Dodson, 878 F.Supp.2d at 1236 (observing that pro se litigants are held to the same procedural rules as represented parties). Second, it is still unclear as to what scope of this action will go forward, as Judge Jackson has not had an opportunity to consider the Recommendation and any forthcoming objections. Third, Mr. Peoples, Jr. does not specifically articulate his basis for seeking counsel, or address the elements set out in D.C.COLO.AttyR 15(f)(1)(B). Thus, this court finds that any request by Plaintiff for the appointment of pro bono counsel should be made by formal motion after Judge Jackson has an opportunity to pass on the Recommendation.
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) Defendants' Motion to Dismiss [#20] be GRANTED IN PART and DENIED IN PART;
(2) Plaintiff Louis Peoples, Jr.'s claim under § 1983 for Eighth Amendment violations related to his assignment to work Food Services (Claim I) be DISMISSED without prejudice;
(3) Plaintiff's claims asserted against the Defendants in their individual capacities for injunctive relief be DISMISSED with prejudice;
(4) Any relief sought by Plaintiff related to the fact or duration of his physical imprisonment be DISMISSED with prejudice;
(5) Plaintiff's claim under § 1983 for deliberate indifference in violation of the Eighth Amendment related to Defendants' failure to implement adequate preventative measures to protect Plaintiff from COVID-19 (Claim II) be permitted to PROCEED; and
(6) To the extent that any claims remain after the presiding judge, the Honorable R. Brooke Jackson, rules on this Recommendation, counsel for Defendants be directed to contact the chambers of Magistrate Judge Nina Y. Wang to discuss the setting of a Status Conference to address discovery and scheduling deadlines.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
Additionally, IT IS ORDERED that:
(1) A copy of this Recommendation, marked as legal mail, be sent to the following:
Louis Peoples Jr.
#43943
Sterling Correctional Facility (SCF)
P.O. Box 6000
Sterling, CO 80751