Opinion
Civil Action 19-cv-03608-CMA-NYW
12-10-2021
JOEY RIVERA, Plaintiff, v. JEFF LONG, WILLIAM SCOTT, MICHELLE WINGERT, and MICHAEL YOUNGER, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang United States Magistrate Judge
This matter comes before this court on the Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (the “Motion” or “Motion to Dismiss”) filed by Defendants Jeff Long, William Scott, Michelle Wingert, and Michael Younger (collectively, “Defendants”) on July 6, 2021. [Doc. 109]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order of Reference dated February 28, 2020 [Doc. 9], and the Memorandum dated July 8, 2021. [Doc. 110]. Upon review of the Motion, the associated briefing, and applicable case law, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.
This court uses the convention [Doc. ___] to refer to docket entries in the District of Colorado's Electronic Case Filing (“ECF”) system. For purposes of clarity, the court cites to the Parties' briefs using the page numbers generated by the ECF system, rather than the page numbers assigned by the Parties.
FACTUAL BACKGROUND
The court draws the following facts from the Third Amended Complaint [Doc. 96] and presumes they are true for purposes of the instant Motion. Mr. Rivera is an inmate currently incarcerated within the Colorado Department of Corrections (“CDOC”) at the Colorado State Penitentiary (“CSP”) in Cañon City, Colorado. See [Doc. 96 at 2]. Until December 3, 2020, Mr. Rivera was housed at Sterling Correctional Facility (“SCF”) in Sterling, Colorado. See [id. at ¶¶ 4, 20]. While at SCF, an incident occurred in which an unnamed prisoner “was found with some contraband and a note.” [Id. at ¶ 4]. This incident occurred on an unspecified date around the end of July 2018 or beginning of August 2018 in an SCF unit other than Mr. Rivera's. [Id. at ¶¶ 1, 4]. Mr. Rivera refused to participate in SCF's investigation of the incident, see, e.g., [id. at ¶¶ 11-12], and was subsequently placed on a “red tag” sanction by Lieutenant Intelligence Officer Michael Younger (“Defendant Younger”) and “area supervisors and managers.” [Id. at ¶¶ 1, 4, 23].
Mr. Rivera, who was housed in a maximum-security unit and whose privileges were “already at the minimal level, ” [id. at ¶ 10], alleges that his placement on the red tag sanction resulted in the loss of his privileges, including: “showers every 3 days, no recs, no library priv[i]leges and no school or programming.” [Id. at ¶ 8]. In addition, Mr. Rivera states that, when prisoners refuse to be interviewed, they are placed on “non-compliant status, ” and when deemed non-compliant, prisoners are denied “any earned or good time for those months.” [Id. at ¶ 9]. Mr. Rivera alleges that he did not receive his expected 10 days of good-time credit for August and September 2018. [Id.]. Mr. Rivera alleges that he was given an ultimatum and was told that if he chose not to participate in the prison investigation, he would be left on the red tag sanction indefinitely. [Id. at ¶ 22].
Due to “repeatedly being placed on red tag by [Defendant] Younger, ” Mr. Rivera went on a 21-day hunger strike. [Id. at ¶ 1]. He states that, during his placement on the red tag sanction and during his hunger strike, he was asked every day if he was ready to talk or interview with Defendant Younger. [Id. at ¶ 11]. Mr. Rivera declined every day, “citing death risks and incrimination risks.” [Id.]. More specifically, Mr. Rivera alleges that, if he were to participate in the investigation, he would look like a snitch, which would carry “life or death” risks of inmate retribution. [Id. at ¶¶ 18, 24]. SCF staff told Mr. Rivera that his privileges would not be returned until he spoke with or interviewed with Defendant Younger. [Id. at ¶ 12]. In addition, Mr. Rivera alleges that “a couple times” during his hunger strike, Defendant William Scott (“Defendant Scott”) would walk through the facility with Defendant Michelle Wingert (“Defendant Wingert”), telling Mr. Rivera that as soon as he talked to intel, the sanctions against him would be lifted. [Id. at ¶ 13]. Mr. Rivera pointed out that there was no way he could have had any involvement in the alleged incident that led to the investigation, yet he was “forced to and subjected to a life threatening ultimatum, coercive in manner, that intentionally ignore[d] the risks in an environment proven to be extremely dangerous.” [Id. at ¶ 13-2].
The Third Amended Complaint contains two Paragraphs numbered 13. See [Doc. 96 at 12]. The court cites to the second such Paragraph as Paragraph “13-2.”
On the twenty-first day of Mr. Rivera's hunger strike, Defendants Wingert and Scott conducted another walk through. [Id. at ¶ 14]. When Mr. Rivera asked Defendant Scott when he would get his privileges back, Defendant Scott replied, “none of you will come off lockdown[] []until you go talk to intel.” [Id.]. Plaintiff again reiterated his fears of incrimination and “life risks at the hands of the population” and informed Defendants that he would not participate in an interview. [Id.]. Defendant Scott replied that if Mr. Rivera did not “come out and talk by tomorrow, ” Defendant Scott would “send[] in the sword team.” [Id.]. According to Mr. Rivera, the “sword team” consists of highly trained correctional officers who wear football padding and riot gear to restrain inmates. [Id.].
Mr. Rivera does not include any other information about the sword team or their alleged restraining of inmates. See generally [Doc. 96].
At this point, Mr. Rivera had lost over 20 pounds due to his hunger strike, was in a “weakened state, ” and felt his life was in danger if “[two] or more [correctional officers] pepper sprayed [him] and restrained [him] in the state [he] was in.” [Id. at ¶ 15]. The next morning, SCF staff came in and asked Mr. Rivera and others if they were ready to conduct intel interviews. Mr. Rivera replied “no.” [Id. at ¶ 16]. SCF staff informed Mr. Rivera that the shift commander had authorized them to send in the sword team, that the facility had been placed on lockdown, and that the sword team was getting “suited up for restrain[t]s.” [Id.]. A couple of hours later, SCF staff returned and said that intel had agreed to let the inmates out with witnesses, two at a time. [Id. at ¶ 18]. Mr. Rivera suggests that allowing two inmates to speak to the investigators at one time was to protect the inmates from being labeled snitches, as the accompanying witness could verify that no snitching occurred. [Id. at ¶ 19]. Mr. Rivera asserts that this “demonstrates just how real the fear is of inmate retribution.” [Id.].
Plaintiff asserts that he filed grievances related to his placement on the red tag sanction. [Id. at ¶ 7]. He indicates that, through his grievances, he “assert[ed] life threatening risks and incrimination possibilities pointing out having to be forced to interview places [his] life in danger in a very dangerous environment.” [Id.]. At the time of Mr. Rivera's placement on the red tag sanction, Defendant Scott “was in command of seg” and Defendant Wingert was an “area manager/major of security” for the “seg area.” [Id. at 6; id. at ¶ 5]. According to Mr. Rivera, Defendant Scott “initiated placement of red tag supervisory [sic].” [Id. at 3]. Plaintiff alleges that all Defendants failed to act in restoring Mr. Rivera's privileges, despite numerous grievances filed by Plaintiff. [Id. at ¶ 5]. Both of Plaintiff's grievances were denied, one by Defendant Wingert and one by Defendant Jeff Long (“Defendant Long”), the Warden of SCF. [Id. at ¶ 7].
Mr. Rivera alleges that the Defendants violated his First, Eighth, and Fourteenth Amendment rights. See generally [id.]. More specifically, Mr. Rivera asserts a claim alleging a violation of his Eighth Amendment right to be free from cruel or unusual punishment and/or deliberate indifference related to the conditions of his confinement at SCF (Claim I), [id. at 7-17]; a claim asserting retaliation in violation of his First Amendment rights (Claim II), [id. at 17-18]; and a claim alleging a violation of his Fourteenth Amendment due process rights related to the imposition of the red tag sanction (Claim III), [id. at 18-21].
The court uses the claim numbers assigned by Mr. Rivera. See [Doc. 96 at 7, 17-18].
PROCEDURAL BACKGROUND
Proceeding pro se, Mr. Rivera initiated this action on December 19, 2019 by filing a Prisoner Complaint against Defendants John Doe, Jeff Long, William Scott, and Michelle Wingert for violations of his Fifth and Eighth Amendment rights. See generally [Doc. 1]. On December 20, 2019, the Honorable Gordon P. Gallagher granted Mr. Rivera leave to proceed in forma pauperis. [Doc. 5]. During the initial screening of the case pursuant to 28 U.S.C. § 1915, Magistrate Judge Gallagher ordered Mr. Rivera to file an Amended Complaint to address deficiencies in his pleading identified by the court. See [Doc. 6]. Mr. Rivera filed an Amended Prisoner Complaint (the “First Amended Complaint”) on February 14, 2020, asserting three claims pursuant to 42 U.S.C. § 1983 against Defendants Jeff Long, Michelle Wingert, William Scott, and “John Doe/Lt. of Intel Youngert [sic]” for alleged violations of his First, Fifth, and Eighth Amendment Rights. See generally [Doc. 7]. On February 27, 2020, Magistrate Judge Gallagher determined that the case was not appropriate for summary dismissal and ordered the case reassigned. [Doc. 8]. The case was reassigned to the Honorable Christine M. Arguello, the presiding judge in this matter, and drawn to the undersigned Magistrate Judge. [Id.].
See [Doc. 7 at 10]. The fourth Defendant was identified by the CDOC Office of Legal Services as Michael Younger in its Waiver of Service. [Doc. 13]. Accordingly, on June 17, 2020, the court ordered the Clerk of the Court to amend the caption to identify Michael Younger as the fourth Defendant in this action. [Doc. 34].
Defendants filed a Motion to Dismiss (the “First Motion to Dismiss”) on May 26, 2020, seeking to dismiss Mr. Rivera's First Amended Complaint in its entirety. [Doc. 20]. Plaintiff subsequently filed a Motion to Amend on June 26, 2020, [Doc. 37], and filed a proposed Second Amended Prisoner Complaint (the “Second Amended Complaint”) on July 16, 2020. [Doc. 41]. On July 22, 2020, this court recommended that Mr. Rivera's Motion to Amend be granted and Defendants' First Motion to Dismiss be denied without prejudice as moot. [Doc. 42]. Judge Arguello adopted the Recommendation on August 12, 2020. [Doc. 46]. Plaintiff's then-operative Second Amended Complaint asserted violations of Mr. Rivera's First, Fifth, Eighth, and Fourteenth Amendment rights. See [Doc. 41].
Then, on August 26, 2020, Defendants filed a Second Motion to Dismiss, seeking dismissal of Plaintiff's Second Amended Complaint on the grounds that Mr. Rivera had failed to state a claim under Rule 12(b)(6) and, in addition, Defendants were entitled to qualified immunity. [Doc. 50]. Upon referral from the presiding judge, see [Doc. 52], this court recommended that the Second Motion to Dismiss be granted on January 31, 2021. [Doc. 75 at 1]. Judge Arguello adopted the undersigned's Recommendation on the Second Motion to Dismiss on April 8, 2021, dismissed the Second Amended Complaint without prejudice, and granted Plaintiff leave to file an amended complaint within 30 days. [Doc. 87 at 2-3].
After this court's Recommendation but before Judge Arguello's Order adopting the Recommendation, Mr. Rivera moved to again amend his Second Amended Complaint. [Doc. 81]. Judge Arguello denied the then-pending motion to amend as moot upon granting Plaintiff leave to amend his Second Amended Complaint within 30 days. See [Doc. 88].
On May 10, 2021, Plaintiff filed an Amended Prisoner Complaint (the “Third Amended Complaint”), the operative complaint in this action, raising claims under 42 U.S.C. § 1983 for violations of his rights under the First, Eighth, and Fourteenth Amendments. See generally [Doc. 96]. Mr. Rivera sues Defendants Younger, Long, and Scott in their individual capacities and seeks only monetary damages against those Defendants, but sues Defendant Wingert in her official capacity and seeks only injunctive relief against her. [Id. at 7].
On July 6, 2021, Defendants filed the instant Motion to Dismiss. [Doc. 109]. In their Motion, Defendants argue that Mr. Rivera fails to state plausible First, Eighth, and Fourteenth Amendment claims, as required by Rule 12(b)(6). [Id. at 5-12]. In addition, they assert that Defendants Younger, Long, and Scott-the Defendants sued in their individual capacities-are entitled to qualified immunity against Plaintiff's claims. [Id. at 16]. Then, they contend that Plaintiff's claims against Defendant Long should be dismissed under Rule 12(b)(6) for failure to allege Defendant Long's personal participation. [Id. at 15]. Finally, Defendants argue that Plaintiff lacks standing to bring his claim for injunctive relief against Defendant Wingert. [Id. at 17].
The Motion to Dismiss was referred to the undersigned. [Doc. 110]. Mr. Rivera responded to the Motion to Dismiss on July 21, 2021, see [Doc. 114], to which Defendants have replied. [Doc. 119]. The Motion is thus ripe for recommendation, and I consider the Parties' arguments below.
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, 573 U.S. 149, 157 (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.” Wilderness Soc. v. Kane Cty., 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. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (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, 573 U.S. at 157-58 (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 the 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 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 Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016).
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, 556 U.S. 662, 678 (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).
III. Pro Se Pleadings
In applying the above principles, this court is mindful that Mr. Rivera proceeds pro se and the court thus affords his papers and filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall, 935 F.2d at 1110, and 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).
ANALYSIS
Defendants argue that Mr. Rivera has failed to state a plausible claim for relief under the First, Eighth, or Fourteenth Amendments. See generally [Doc. 109]. Moreover, they argue that Mr. Rivera lacks standing to bring any claims for injunctive relief, and thus Mr. Rivera's claim for injunctive relief should be dismissed for lack of subject matter jurisdiction. [Id. at 17]. Finally, Defendants argue that the individual-capacity claims against Defendants Younger, Long, and Scott should be dismissed on qualified immunity grounds. [Id. at 16].
I. Subject Matter Jurisdiction
Because subject matter jurisdiction is a threshold issue, the court first addresses Defendants' argument that Mr. Rivera lacks standing to seek injunctive relief against Defendant Wingert. See United States v. Springer, 875 F.3d 968, 973 (10th Cir. 2017) (“Jurisdiction is a threshold question that a federal court must address before reaching the merits.” (quotation omitted)); see also Citizen Ctr. v. Gessler, 770 F.3d 900, 906 (10th Cir. 2014) (“Mootness and standing are jurisdictional”). In his Third Amended Complaint, Mr. Rivera seeks an “immediate [and] permanent injunction to red tag due to its ongoing and historic use in light of exposures of constitutional harm through life threatening risks [without] process.” [Doc. 96 at 5]. Because Mr. Rivera only seeks injunctive relief against Defendant Wingert in her official capacity, the court construes his claim as a request for injunctive relief barring the Colorado Department of Corrections (“CDOC”) from current and future use of the red tag sanction at SCF.
See Hafer v. Melo, 502 U.S. 21, 25 (1991) (observing that official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent).
Defendants seek to dismiss Plaintiff's claim for injunctive relief for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). [Doc. 96 at 17-18]. Specifically, Defendants argue that, because Mr. Rivera admits that his red tag sanction was lifted after 21 days upon speaking with intelligence staff, and because he does not allege that he is currently under a red tag sanction, his claim for injunctive relief regarding the red tag policy fails to present a live case or controversy and he therefore lacks standing to bring this claim. [Id.]. In the alternative, they argue that even if Plaintiff does have standing to bring this claim, the claim has been rendered moot by Plaintiff's transfer to CSP. [Id. at 18 n.4] In his Response, Mr. Rivera argues that he has standing to seek injunctive relief because the placement on the red tag sanction may be used against him in the same way in the future. [Doc. 114 at ¶ 15]. Moreover, he argues his claim is not moot because it is capable of repetition yet evading review. [Id. at ¶ 14].
Relevant to this court's determination of subject matter jurisdiction are two related but distinct jurisdictional doctrines: standing and mootness. See Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (“Laidlaw”). “A plaintiff must demonstrate standing separately for each form of relief sought.'” Smith v. U.S. Immigr. and Customs Enf't, 429 F.Supp.3d 742, 755 (D. Colo. 2019) (quotation omitted). 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 adverse effects. Id. (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). “[S]tanding-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). However, a plaintiff may establish standing to seek prospective relief if the plaintiff alleges that he is “suffering a continuing injury or [is] under a real and immediate threat of being injured in the future.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004) (citing City of Los Angeles v. Lyons, 461 I.S. 95, 101-02, 107 n.8 (1983)).
By contrast, “[m]ootness 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).” RMA Ventures Cal. v. SunAmerica Life Ins. Co., 576 F.3d 1070, 1073 n.6 (10th Cir. 2009) (internal quotation marks omitted). Mootness is judged by the state of facts as they exist after the complaint is filed. WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1185 (10th Cir. 2012). “Mootness usually results when a plaintiff has standing at the beginning of a case, but, due to intervening events, loses one of the elements of standing during litigation.” Id. at 1182. While the plaintiff bears the burden of establishing standing, the defendant bears the burden of showing mootness. Id. at 1183.
A. Standing
Here, Defendants argue that, because Mr. Rivera admits that his red tag sanction was lifted after 21 days upon speaking with intelligence staff and does not allege that he is currently under red tag sanction, his claim for injunctive relief regarding the red tag policy fails to present a live case or controversy he therefore lacks standing to assert a claim. [Doc. 109 at 17-18]. Plaintiff responds that he “can prove . . . that S.C.F. admin will continue to use this method/ultimatum” related to the red-tag sanction “to gain information.” [Doc. 114 at ¶ 10]; see also [id. at ¶ 14 (arguing that “this process will be re-used”)]. In support, Mr. Rivera cites Jensen v. Lick, 589 F.Supp. 35 (D.N.D. 1984), which held that a plaintiff had standing to challenge the constitutionality of a potentially inaccurate prison urine-screening program even where the plaintiff had never received an inaccurate test result, because due to the program's random selection process, the plaintiff had a future threatened injury because he “could be selected at any time to take the test.” Id. at 37; [Doc. 114 at ¶ 15]. The court liberally construes Mr. Rivera's argument as asserting that he has standing to assert his equitable claim because there is a real threat that he will be harmed by the red tag sanction in the future. Tandy, 380 F.3d at 1283.
To establish standing based on the threat of future harm, the threat of future injury must be real and immediate. Id. But “[t]he concept of ‘imminence' is concededly ‘elastic,' and is put in place to ensure that the alleged injury is not too speculative for Article III purposes.” Cunningham v. Birch, No. 16-cv-02353-NYW, 2017 WL 1243020, at *4 (D. Colo. Feb. 17, 2017) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013)). Thus, the future harm must be alleged to be certainly impending-as opposed to merely possible-to establish Article III standing. Id.
While Defendants are correct that the Third Amended Complaint contains no allegations that Mr. Rivera, at the time he filed this lawsuit, was then under a red tag sanction, see [Doc. 109 at 18]; see also generally [Doc. 96], Mr. Rivera does aver that he was under the threat of future injury due to SCF's continued use of the red tag policy. From the allegations in the Third Amended Complaint, this court infers that as of December 19, 2019, Mr. Rivera was still incarcerated at SCF. [Doc. 96 ¶ 20 (alleging he left SCF on December 3, 2020)]. Mr. Rivera alleges that “whenever there[ is] an incident that needs further investigation, ” SCF staff “are required to interview all offenders to gain information, ” [id. at ¶ 3]; that offenders who refuse to participate are placed on the red tag sanction, [id.]; and that SCF inmates, including Mr. Rivera, fear participating in such investigations due to fear of inmate retribution. [Id. at ¶¶ 14, 19]. In addition, Mr. Rivera asserts that he was placed on the red tag sanction despite the impossibility of his involvement in the incident being investigated, [id. at ¶¶ 4, 13]; that the red tag sanction is repetitively misused, [id. at ¶ 6]; and that the sanction is “is historically used for any perceived or actual threat by the S.C.F. administrators, ” [id. at ¶ 2] and is “used regularly for any perceived or actual threat on prisoners in completely other parts of prison who have not even the slightest chance of being involved” in any incident leading to an investigation. [Id. at ¶ 20].
Where the original complaint has been superseded by an amended complaint, the court examines the allegations in the amended complaint to determine whether the plaintiff has standing. S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). But standing is “assessed at the time of the original complaint, even if the complaint is later amended.” Id. (quotation omitted). Thus, the standing inquiry focuses on whether Mr. Rivera had standing when the original complaint was filed on December 19, 2019. [Doc. 1].
The court must construe Plaintiff's filings liberally, which means “that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. Applying this liberal standard, the court finds that Plaintiff's allegations sufficiently allege a “certainly impending” threatened injury. Cunningham, 2017 WL 1243020, at *5. Indeed, Mr. Rivera alleges that SCF requires that “all offenders” be interviewed during any prison investigation, despite their lack of involvement in the events giving rise to the investigation, that he feared participating in those investigations such that it caused him to refuse to participate, and that the red tag policy is regularly and repeatedly used when inmates refuse to cooperate with an investigation. While past exposure to wrongful conduct does not, in and of itself, show a present case or controversy, Smith, 429 F.Supp.3d at 755, “[p]ast wrongs are evidence bearing on whether there is a real and immediate threat of a repeated injury, ” Tandy, 380 F.3d at 1283, and construing Plaintiff's allegations liberally, as the court must, the court finds that Mr. Rivera has sufficiently alleged a threat of future injury that was present at the time he initiated this action so as to demonstrate standing. Cf. Cochran v. City of Wichita, No. 18-1132-JWB, 2018 WL 4637237, at *4 (D. Kan. Sept. 26, 2018), aff'd, 771 Fed.Appx. 466 (10th Cir. 2019) (unpublished) (pro se unhoused individual challenging application of an ordinance who alleged application of ordinance to other individuals and alleged defendants' intent to continue enforcing the ordinance in the future had sufficiently demonstrated standing to seek prospective injunctive relief).
Importantly, this finding is not based on Mr. Rivera's subsequent allegation that, when he left SCF on December 3, 2020, the red-tag sanction was in effect for other inmates. See [Doc. 96 at ¶ 20]. Indeed, standing cannot be based on events subsequent to the filing of this action. S. Utah Wilderness, 707 F.3d at 1152.
B. Mootness
In the alternative, Defendants argue that even if Mr. Rivera does have standing to seek injunctive relief regarding the red tag policy, his transfer from SCF to CSP renders this claim moot. [Doc. 109 at 18 n.4]. In his Response, Mr. Rivera argues that this issue is not moot because it is capable of repetition yet evading review. [Doc. 114 at ¶¶ 14-15].
Transfer from SCF to CSP . Mr. Rivera concedes that he was transferred from SCF to CSP on December 3, 2020. [Doc. 96 at ¶ 20]. “When a prisoner files suit against prison officials who work in the institution in which he is incarcerated, seeking . . . injunctive relief on the basis of alleged wrongful conduct by those officials, and then that prisoner is subsequently transferred to another prison . . ., courts are presented with a question of possible mootness.” Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). Where the prisoner's claims relate solely to the conditions of confinement at the facility at which he was previously housed, the court is unable to provide the prisoner with effective relief, id., unless the prisoner “brings a lawsuit challenging policies that apply in a generally uniform fashion throughout a prison system.” Id. at 1028. In that instance, courts focus on whether the inmate has sued defendants “who [are] actually situated to effectuate any prospective relief that the courts might see fit to grant”-i.e., the director of the prison system or the prison system itself. Id. But where a plaintiff has sued only prison officials at the transferor facility, the plaintiff's claims for injunctive relief are moot even if they seek to challenge system-wide prison policies. Id. at 1028-29.
Here, Mr. Rivera seeks injunctive relief only against Defendant Wingert in her official capacity. See [Doc. 96 at 6-7]. As mentioned above, “[a]n action against a person in his official capacity is, in reality, an action against the government entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998). Thus, Mr. Rivera's sole claim against Defendant Wingert, who Mr. Rivera alleges works for SCF, see [Doc. 96 at ¶ 5], is, in actuality, a claim against the CDOC. Cf. Trujillo v. Bd. of Cty. Comm'rs for Weld Cty., No. 20-cv-02862-CMA-NYW, 2021 WL 4556189, at *13 (D. Colo. July 23, 2021), report and recommendation adopted as modified sub nom. Trujillo v. Wrenn, 2021 WL 4260798 (D. Colo. Sept. 20, 2021) (finding that a suit against Erie Police Department police officers in their official capacities “is essentially a suit against the Town of Erie.”). Mr. Rivera does not allege facts that allow a factfinder to conclude that SCF's utilization of red flag sanctions is a system-wide policy. See generally [Doc. 96]. Instead, his allegations are limited to the imposition of these sanctions at SCF. See, e.g., [id. at 7 (“The [fourth] defendant Michelle Wingert I am suing under official capacity seeking an immediate and permanent injunction.”); id. at ¶ 2 (“This sanction is historically used for any perceived or actual threat by the S.C.F. administrators.”); id. at ¶ 20 (“This complaint is very important to the conditions of confinement at S.C.F. For it is used regularly for any perceived or actual threat on prisoners in completely other parts of prison who have not even the slightest chance of being involved.”); id. (“When I left S.C.F. on Dec 3 of 2020 red-tag was being used in general population under same exact circumstances.”)].
Accordingly, based on the Third Amended Complaint, Mr. Rivera “has not sued defendants who are actually situated to effect any prospective relief that this court might afford him.” Jordan, 654 F.3d at 1030. Nor does he allege that at his current facility, the Colorado State Penitentiary, he is subject to the same red flag sanction system. For this reason, the court cannot enter any prospective injunctive relief that would satisfy constitutional requirements. See Id. at 1023-24 (explaining that constitutional standing requires that there be a live case or controversy related to relief that may be fashioned); id. at 1030 (explaining that, where the plaintiff had been transferred to a new facility and sought facility-specific injunctive relief against officials at his prior facility, “[a]ny prospective relief that [the court] might order against the named defendants would be too abstract and lacking in real-world impact to satisfy the requirements of the Constitution.”). Indeed, the Third Amended Complaint suggests only that Defendant Wingert is located at or working for SCF, not CSP, see [Doc. 96 at 6], and Defendant Wingert presumably is no longer responsible for or capable of instituting sanctions against Mr. Rivera at CSP. For this reason, enjoining her “would accomplish nothing.” Jordan, 654 F.3d at 1030. For these reasons, the court finds that Mr. Rivera's claim for injunctive relief is moot.
Capable of Repetition, Yet Evading Review . The above findings do not end this court's inquiry. Mr. Rivera argues that an exception to the mootness doctrine applies here because his claim for equitable relief is capable of repetition, yet evading review. See [Doc. 114 at ¶¶ 10, 14-15]. Defendants do not respond to this argument. See generally [Doc. 119]. Nevertheless, particularly because it has an independent obligation to assure itself of jurisdiction, see 1mage Software, Inc., 459 F.3d at 1048, the court considers whether Mr. Rivera's claims fall within this mootness exception. See Jordan, 654 F.3d at 1034 (analyzing whether the exception applied after determining that inmate's equitable claims were moot due to inmate's transfer to another facility).
A court may retain jurisdiction “even if one or more of the elements of standing is lost” if the “‘defendant's allegedly unlawful activity is capable of repetition, yet evading review.'” WildEarth Guardians, 690 F.3d at 1182-83 (quoting Laidlaw, 528 U.S. at 190). This doctrine is narrow in application and applies only when the challenged action was too short in its duration to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subjected to the same action again. Jordan, 654 F.3d at 1035 (quotation omitted). The party seeking to establish the application of this doctrine bears the burden of showing that both elements of this two-prong test are met. Id.
Assuming, without deciding, that the imposition of the red tag sanction for 21 days is sufficiently short in its duration prior to its expiration so as to satisfy the first prong of this test, the court finds that Mr. Rivera has not met his burden of demonstrating that he will be subjected to the same red tag action again. Indeed, the Third Amended Complaint contains no allegations or suggestions that Mr. Rivera will be, or could be, subjected to the SCF staff's imposition of the red tag sanction while housed at CSP; he does not allege that he has been or could be subject to this sanction at CSP, nor does he allege Defendant Wingert would have the authority to impose such cross-facility sanctions. See generally [Doc. 96]. Moreover, while the Third Amended Complaint contains no suggestion that Mr. Rivera will be transferred back to SCF, see [id.], any remote possibility that such transfer back could occur is insufficient to establish the second prong of the capable-of-repetition-yet-evading-review exception. See Jordan, 654 F.3d at 1032 (stating it is “disinclined to opine on important constitutional issues based upon the speculative suggestion that a plaintiff might be returned to a setting where he would be subject to allegedly unconstitutional practices.”).
For these reasons, the court finds that Mr. Rivera's claim for injunctive relief against Defendant Wingert is moot. See Big Eagle v. Whetsel, No. CIV-14-342-R, 2014 WL 7335315, at *2 (W.D. Okla. Dec. 19, 2014) (where plaintiff was transferred to new facility, the plaintiff had failed to demonstrate a reasonable expectation that he would again be subject to the unconstitutional actions of the officials at his prior facility). As such, the court finds that Mr. Rivera has not met his burden of demonstrating that his claim is capable of repetition, yet evading review, so as to demonstrate that the mootness doctrine should not apply here. I respectfully RECOMMEND that the Motion to Dismiss be GRANTED as to Plaintiff's request for injunctive relief against Defendant Wingert and that this claim be DISMISSED without prejudice for lack of subject matter jurisdiction on the basis that this claim for injunctive relief is moot.
II. Failure to State a Claim Under Rule 12(b)(6)
Having recommended that Mr. Rivera's sole claim against Defendant Wingert be dismissed, the court turns to the substance of Mr. Rivera's claims against Defendants Long, Scott, and Younger, who are all sued in their individual capacities for monetary damages. [Doc. 96 at 7]. Defendants argue that Mr. Rivera has failed to state a claim against each of these Defendants under Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Doc. 109 at 5-15]. In response, Plaintiff contends that he has stated plausible claims under the First, Eighth, and Fourteenth Amendments against these Defendants. [Doc. 114].
The court addresses Plaintiff's claims in the order in which he asserts them.
Mr. Rivera bases his Eighth Amendment claim on “cruel [and] unusual punishment / deliberate indifference.” [Doc. 96 at 7]. The Eighth Amendment's proscription on cruel and unusual punishment extends to the conditions under which an inmate is confined. See Contreras v. Dona Ana Cty. Bd. of Cty. Comm'rs, 965 F.3d 1114, 1116 (10th Cir. 2020) (Tymkovich, J., concurring). As such, the Eighth Amendment requires prison officials to “provide humane conditions of confinement.” Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018). “Conditions-of-confinement claims have two prongs: (1) an objective prong, under which the alleged injury must be sufficiently serious, and (2) a subjective prong, under which the prison official who imposed the condition must have done so with deliberate indifference.” Redmond v. Crowther, 882 F.3d 927, 936 n.3 (10th Cir. 2018).
To satisfy the objective prong, Mr. Rivera must plead facts showing that the conditions of his confinement were objectively “sufficiently serious.” Id. And to satisfy the subjective component, Mr. Rivera must allege facts showing that Defendants knew of, and yet disregarded, an excessive risk to Mr. Rivera's health or safety. See Walker v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir. 2020) (“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” (internal quotation marks omitted)).
Defendants argue that Mr. Rivera's allegations fail to satisfy either prong of the deliberate indifference test. [Doc. 109 at 6]. Specifically, they assert that the red tag sanction and subsequent restriction of recreation, education, bathing, and library privileges; the conditions which ran the risk of Mr. Rivera looking like a prison informant; and Mr. Rivera's 21-day hunger strike do not “plausibly show he suffered a serious deprivation of basic human needs.” [Id. at 6-7]. Moreover, Defendants assert that the Third Amended Complaint contains no allegations demonstrating that any Defendant acted with a sufficiently culpable state of mind, so as to satisfy the subjective prong of Mr. Rivera's Eighth Amendment claim. [Id. at 9].
Mr. Rivera counters that the singling out of prisoners, then escorting them to an isolated area for questioning, is “a very obvious risk to inmate future health.” [Doc. 114 at ¶ 2]. Moreover, Mr. Rivera asserts that a constitutional violation occurs when prison officials are aware of a danger to an inmate's health and safety, such as when an inmate is labeled a “snitch, ” but where the prison officials fail to protect that inmate. [Id. at ¶ 3 (citing David v. Hill, 401 F.Supp.2d 749 (S.D. Tex. 2005))]. Finally, he appears to argue that the purposeful exposure to “death risks by prison officials forcing [inmates] to cooperate with active prison investigations before receiving their privileges, or in order to receive them” could constitute cruel and unusual punishment. [Id. at ¶ 19]. In Reply, Defendants reiterate their position that Mr. Rivera fails to satisfy either prong of the deliberate indifference test. [Doc. 119 at 2-6]. This court respectfully agrees with Defendants.
This court previously concluded that David v. Hill is not analogous to the instant matter. See [Doc. 75 at 24-25]. As previously explained by the court, in David, the court discussed cases from a handful of circuits where prison officials either labeled an inmate a “snitch” or spread rumors to other inmates to that effect. See 401 F.Supp.2d at 756-57 (collecting cases). Here, even in the Third Amended Complaint, Mr. Rivera does not allege that any of the Defendants labeled him a snitch (or an informant), spread rumors to that effect, or even that other inmates believed Mr. Rivera was an informant. See [Doc. 96]; cf. Thomas v. Dist. of Columbia, 887 F.Supp. 1, 4 (D.D.C. 1995) (finding inmate's allegations that he was physically confronted and threatened by inmates who had been told by a prison official that he was a “snitch” sufficiently harmful to state an Eighth Amendment excessive force claim).
Red Tag Sanction . Mr. Rivera alleges that the red tag sanction resulted in him losing his recreation, library, education, and programming privileges. [Doc. 96 at ¶ 8]. In addition, he asserts that the imposition of the sanctions limited his showers to once every three days. [Id.]. However, courts have found that allegations of similar deprivations are not sufficiently objectively serious so as to state an Eighth Amendment claim. See, e.g., Walker v. Scherbath, No. 15-cv-00823-MJW, 2015 5697366, at *2, *5 (D. Colo. Sept. 29, 2015) (holding that inmate did not state Eighth Amendment claim where privileges were restricted over eight months, inmate was confined to his cell for up to 22 hours per day and up to 85 hours on long weekends without showers, inmate was not allowed sufficient clothing or blankets to stay warm, and inmate was not allowed access to adequate hygiene supplies), aff'd, 676 Fed.Appx. 815 (10th Cir. 2017) (unpublished); Trujillo v. Williams, 465 F.3d 1210, 1225 n.17 (10th Cir. 2006) (“[L]imited access to education, employment, religious programming, housing assignment, recreation time and equipment, the telephone, and the commissary . . . do not demonstrate a deprivation of the minimal measure of life's necessities”) (quotation omitted); Smith v. Romer, 107 F.3d 21 (Table), 1997 WL 57093, at *2 (10th Cir. 1997) (unpublished) (holding that inmate's complaints concerning, inter alia, lack of access to education, recreation, and vocational programs “do not relate to life's necessities” and fail to satisfy the objective prong of the test); Rosales v. Ortiz, No. 06-cv-02438-EWN-CBS, 2008 WL 877173, at *11 (D. Colo. Mar. 27, 2008), aff'd, 325 Fed.Appx. 695 (10th Cir. 2009) (unpublished) (placement on lockdown in poorly ventilated cell, wherein the plaintiff was limited to outdoor exercise for 45 minutes once every two weeks and had to take cold showers on some days did not constitute a deprivation “of the minimal measure of life's necessities”). Following this precedent, the court agrees that Mr. Rivera fails to state an Eighth Amendment claim due to his loss of privileges, as the loss of such privileges do not deprive Mr. Rivera of the minimal measure of life's necessities.
In his Response, Mr. Rivera points the court to Lewis v. Washington, 197 F.R.D. 611 (N.D. Ill. 2000), which he asserts stands for the proposition that “exclusion from vocational rehab and education and denial of access to a gym may constitute [Eighth Amendment punishment] as part of totality of circumstances.” [Doc. 114 at ¶ 16]. In Lewis, the plaintiffs alleged that they were denied access to religious services, educational opportunities, drug and alcohol rehabilitation programs, the gym, hot food, the law library, and the large exercise yard, and were “relegated to a 50 square foot yard without toilets or drinking water.” 197 F.R.D. at 612. The court found that “[w]hile in general there is no constitutional right to vocational or rehabilitative programs, the totality of the deprivations to which [the] inmates are allegedly subjected could indeed rise to the level of a constitutional violation, if the allegations are taken, as they must be for [a motion to dismiss], in the worst possible light.” Id. at 615. But Lewis is not binding on the court, and binding precedent from the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) establishes that such allegations do not give rise to an Eighth Amendment claim. See Trujillo, 465 F.3d at 1225 n.17.
Mr. Rivera also alleges that, due to his placement on the red tag sanction, he did not receive 10 days of good-time credit for August and September 2018, which- according to Plaintiff-lengthens his sentence. [Doc. 96 at ¶ 9]. Under Colorado law, good-time credits “do not shorten an inmate's sentence; they only hasten the date upon which an inmate is considered eligible for discretionary parole.” Revello v. Schissler, No. 09-cv-01348-MSK-MEH, 2010 WL 3239283, at *4 (D. Colo. Aug. 13, 2010). It then follows that the purported denial of good time credits cannot lengthen a prisoner's already-imposed sentence. Moreover, the “grant or denial of good time credit is wholly discretionary, ” Hall v. Zavaras, 916 P.2d 634, 636 (Colo.App. 1996), and “Colorado law does not furnish a right to earn good-time credits and expressly permits the denial of such a right.” Handy v. Douglas, No. 14-CV-01930-WYD-MEH, 2016 WL 1238152, at *3 (D. Colo. Mar. 30, 2016). Thus, even taken as true, the purported denial of ten days of good-time credit, is insufficient to constitute inhumane conditions of confinement. Requena, 893 F.3d at 1214. Accordingly, the court finds that Mr. Rivera fails to plead sufficient facts to meet the objective prong of an Eighth Amendment deliberate indifference claim.
Looking Like an Informant . Mr. Rivera primarily bases his Eighth Amendment arguments on Defendants' alleged failure to protect him from looking like a prison informant. See, e.g., [Doc. 96 at ¶ 21; Doc. 114 at ¶¶ 2-3]. While the Tenth Circuit has held that the Eighth Amendment reaches “conduct that is sure or very likely to cause serious injury at the hands of other inmates, ” Benefield v. McDowall, 241 F.3d 1267, 1272 (10th Cir. 2001), “being subjected to threats of abuse or the vague possibility of assault from other inmates is not sufficiently serious to give rise to an Eighth Amendment violation.” Quintana v. Doe, No. 09-cv-00946-CMA-KLM, 2010 WL 2650052, at *4 (D. Colo. June 30, 2012).
Here, Mr. Rivera alleges that his placement on the red tag sanction and subsequent ultimatum “is obdurate and life threatening;” that “[t]hese substantial dangers from the prison population are purposely ignored despite S.C.F. being aware of risks a prisoner who appears as an informant[, ] or is one[, ] faces, ” [Doc. 96 at ¶ 6]; and that being forced to interview with SCF officials places his life in danger. [Id. at ¶ 7]. The Third Amended Complaint contains numerous Paragraphs asserting the same general allegations that being perceived as an informant in prison creates a dangerous living situation. See, e.g., [id. at ¶¶ 13-15]. But “[l]egal conclusions couched as factual allegations are insufficient evidence to defeat a motion to dismiss.” Wildearth Guardians v. Pub. Serv. Co. of Colo., No. 09-cv-01862-ZLW-MEH, 2010 WL 1568574, at *1 (D. Colo. Apr. 15, 2010). General allegations that Mr. Rivera's living conditions were dangerous or life-threatening, absent any factual allegations in support, fail to meet the requirements of alleging an objectively serious harm; for example, Mr. Rivera does not allege that other inmates believed he was an informant, threatened him not to meet with intelligence staff, or accused him of being an informant after he agreed to be interviewed. See generally [Doc. 96 at ¶¶ 13-15]. And importantly, he does not assert that the alleged conduct by the individual Defendants, i.e., subjecting him to red flag sanctions, made him appear to be an informant.
Indeed, Mr. Rivera consistently states that if he were to interview with SCF staff, he would look like an informant, but also consistently alleges that he refused to participate in the investigation on that basis. E.g., [id. at ¶¶ 6, 11]. The mere assertions that there was a potential for Mr. Rivera would be perceived as an informant does not establish that Mr. Rivera was actually perceived as an informant. The court respectfully concludes that the Third Amended Complaint contains insufficient factual support to conclude that there was an objectively serious risk of harm based on a purported perception that Mr. Rivera was a prison informant. Thus, Plaintiff fails to allege that he faced an objectively serious risk premised on his speculative fears of appearing like an informant to fellow inmates.
Hunger Strike . In addition, Plaintiff bases his Eighth Amendment claim on his hunger strike and subsequent health effects. [Doc. 96 at ¶ 15]. “‘Prison administrators have a right and a duty to step in and force an inmate to take nourishment if a hunger strike has progressed to the point where continuation risks serious injury or death.'” Anderson v. Colo. Dep't of Corr., No. 16-cv-02113-CMA-MJW, 2017 WL 6033681, at *8 (D. Colo. Aug. 27, 2017) (quoting Owens v. Hinsley, 635 F.3d 950, 955 (7th Cir. 2011)). However, “if weight loss and temporary discomfort are the only consequences of refusing to eat, then the inmate's choice to go on a hunger strike raises no Eighth Amendment concern.” Id.
Here, Mr. Rivera alleges that he engaged in a 21-day hunger strike in protest of the prison's red tag policy, which caused Mr. Rivera to lose 20 pounds and to be in a “weakened state.” [Doc. 96 at ¶ 15]. In addition, he suggests that, due to his weakened state, he “felt like [his] life was in danger and [he] thought [he] could probably die if [two] or more [corrections officers] pepper sprayed [him] and restrained [him] in the state [he] was in.” [Id.]. But Mr. Rivera offers no additional facts to show that that his hunger strike posed a risk of serious injury. In other words, the only consequences Mr. Rivera plausibly alleges-hunger, weight loss, and being in a “weakened state”-do not give rise to an objectively serious risk of harm. See Anderson, 2017 WL 6033681, at *8. Moreover, insofar as Mr. Rivera alleges that he thought he might die if restrained by the SCF “sword team, ” Mr. Rivera's subjective belief that he could suffer serious consequences if restrained by the sword team, absent allegations that he actually was restrained by the sword team and thereby suffered those injuries, does not suffice to state an Eighth Amendment claim.
Moreover, the Third Amended Complaint contains no facts which might suggest that Defendants knew of and/or consciously disregarded the (objectively insufficiently serious) risks to Mr. Rivera posed by his 21-day hunger strike. See generally [Doc. 96]. At best, Mr. Rivera alleges that during his hunger strike, medical staff drew his blood and weighed him. [Id. at ¶ 15]. But these allegations do not establish any subjective disregard of a serious risk of harm to Mr. Rivera. Mr. Rivera therefore fails to state an Eighth Amendment claim on this basis.
The Sword Team . Finally, Mr. Rivera alleges that Defendant Scott told Plaintiff that if Plaintiff failed to cooperate in the investigation, Defendant Scott would send in the sword team. [Id. at ¶ 14]. Mr. Rivera asserts that, because he was weakened due to his hunger strike, he thought he might die if restrained by the sword team. [Id. at ¶ 15]. Mr. Rivera asserts that he was in fear of his life “at the hands of S.C.F. staff, ” [id. at ¶ 17], and in “fear of instant and unexpected death due to being in a weakened hunger strike state.” [Id. at ¶ 26].
The Tenth Circuit has instructed that “[m]ere verbal threats or harassment do not rise to the level of a constitutional violation unless they create ‘terror of instant and unexpected death.'” Alvarez v. Gonzales, 155 Fed.Appx. 393, 396 (10th Cir. 2005) (unpublished) (quoting Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)) (finding that a prison officer's threat that he would “burn [the plaintiff]” insufficient to state an Eighth Amendment claim because it did not “suggest a show of deadly force”). The court notes that, while Plaintiff subjectively thought that, if he were to be restrained and pepper sprayed, he could possibly die, [Doc. 96 at ¶ 15], the actual threats alleged in the Third Amended Complaint do not “suggest a show of deadly force, ” Alvarez, 155 Fed.Appx. at 396. But even assuming, without deciding, that Mr. Rivera has sufficiently alleged the objective prong of an Eighth Amendment claim based on his allegation that he had a subjective fear of death related to the sword-team threat, [Doc. 96 at ¶ 26], there are no allegations in the Third Amended Complaint that any Defendant was subjectively aware of Mr. Rivera's fear nor intentionally disregarded that fear. See generally [id.]; cf. Bridges v. Fed. Bureau of Prisons, No. 18-cv-00494-GPG, 2018 WL 9458261, at *5 (D. Colo. May 4, 2018) (finding that the plaintiff failed to state an Eighth Amendment claim where he subjectively believed that the defendant attempted to poison his food and subjectively believed he suffered a heart attack due to a defendant placing an ice cube in his soup, but had failed to show that the defendant knew that Plaintiff was at a serious risk of suffering a heart attack and disregarded that risk). Accordingly, the court finds that the Third Amended Complaint does not allege facts giving rise to an Eighth Amendment claim based on the threat of the deployment of the sword team.
For the reasons set forth above, the court finds that Mr. Rivera has failed to state an Eighth Amendment claim under Rule 12(b)(6). As a result, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED as to Claim I and that Plaintiff's Eighth Amendment claim be DISMISSED for failure to state a claim.
Defendants argue that this claim should be dismissed with prejudice because leave to amend would be futile. [Doc. 109 at 18]. This court previously recommended that Mr. Rivera's Eighth Amendment claim be dismissed without prejudice. [Doc. 75 at 28]. The presiding judge adopted that Recommendation, dismissed the claim without prejudice, and permitted Plaintiff leave to file an amended complaint. [Doc. 87 at 2-3]. Given these circumstances, the court reserves the determination as to whether dismissal of Plaintiff's Eighth Amendment claim should be dismissed with or without prejudice.
B. First Amendment Claim
The First Amendment provides, in pertinent part, that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. “Prison officials may not retaliate against an inmate because of the inmate's exercise of First Amendment rights.” Hale v. Fed. Bureau of Prisons, 759 Fed.Appx. 741, 751 (10th Cir. 2019) (unpublished). To plead a cognizable First Amendment retaliation claim, a plaintiff must allege that (1) he engaged in constitutionally protected activity; (2) he suffered an injury that would chill an ordinary person from engaging in that protected activity; and (3) his protected activity substantially motivated the defendant's retaliation. Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Defendants argue that Plaintiff's First Amendment claim fails to adequately plead elements one and three. [Doc. 96 at 10-11]. In his Third Amended Complaint, Mr. Rivera alleges that, after the imposition of sanctions, he “immediately began [the] grievance process citing dangerous and substantial life or death risks due to looking like a snitch and then [choosing] to not participate in [the] investigation.” [Doc. 96 at ¶ 24]. He asserts “retaliation under the [First] Amendment for the protected activities being the right to be free from deliberate indifference[, ] as well as the right to use the grievance system [without] retaliation as demonstrated through harassments by [Defendant] Scott that rise to the fear of instant and unexpected death due to being in a weakened hunger strike state.” [Id. at ¶ 26]. He states that “[a]fter choosing to not participate in [the] investigation [he] was told until [he] chose to talk [he] would remain on sanctions indefinitely.” [Id. at ¶ 25]. Mr. Rivera clarifies in his Response that he “refused to succumb to deliberate indifference [and] participate in investigation-and was therefore left on punishment.” [Doc. 114 at ¶ 17]. The court construes Mr. Rivera's Third Amended Complaint as asserting that, in addition to his filing of prison grievances, his refusal to participate in the investigation also constitutes a protected activity. The court addresses these two bases of Plaintiff's claim in turn.
Although Plaintiff asserts that he engaged in the constitutionally protected activity of “being the right to be free from deliberate indifference, ” [Doc. 96 at ¶ 26], this averment identifies a constitutional right rather than some activity or conduct that is protected by the First Amendment. Cf. Taylor v. Fischer, 841 F.Supp.2d 734, 737 (W.D.N.Y. 2012) (plaintiff failed to allege that he engaged in protected activity where he failed to allege he engaged in any activity at all). Because Mr. Rivera consistently references Defendants' alleged deliberate indifference in relation to ignoring Plaintiff's safety concerns resulting from the red tag sanction, see [Doc. 96 at 7-17]; see also [Doc. 114 at ¶ 17], the court construes the Third Amended Complaint as asserting that his refusal to participate in the investigation constitutes a protected activity.
1. Filing Prison Grievances
Protected Activity . With respect to Mr. Rivera's participation in the prison-grievance process, it is well-established that the “filing of prison grievances is constitutionally protected activity.” Requena, 893 F.3d at 1211. Thus, insofar as Mr. Rivera bases his First Amendment claim on alleged retaliation for filing grievances, he has sufficiently alleged that he engaged in protected activity.
Causal Connection . “To satisfy the third prong of the First Amendment retaliation test, an inmate must allege specific facts showing that ‘but for the retaliatory motive, the incidents to which he refers . . . would not have taken place.'” Banks v. Katzenmeyer, 645 Fed.Appx. 770, 772 (10th Cir. 2016) (unpublished) (quoting Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)). To establish this causal connection, it is insufficient to simply state that certain acts were motivated by a retaliatory animus. “Recitation of the acts done to plaintiffs . . . does not satisfy the requirement of showing how those acts are connected to plaintiffs' protected activity.” Leal v. Falk, No. 19-cv-01387-PAB-NYW, 2021 WL 1186662, at *5 (D. Colo. Mar. 29, 2021). Instead, “[a]n inmate claiming retaliation must ‘allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.'” Peterson, 149 F.3d at 1144 (quoting Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990) (emphasis omitted)).
Insofar as Mr. Rivera asserts a retaliation claim related to alleged retaliation for his participation in the prison-grievance process, Plaintiff alleges retaliation only by Defendant Scott. See, e.g., [Doc. 96 at ¶ 26]. With respect to Defendant Scott, Mr. Rivera asserts that, due to his filing of grievances, he was subject to “[harassments] by [Defendant] Scott that rise to the fear of instant and unexpected death due to being in a weakened hunger strike state.” [Id.]. However, the Third Amended Complaint contains no facts which tie Defendant Scott's threat to deploy the sword team to Mr. Rivera's grievances. See generally [id.]. Instead, Mr. Rivera alleges that Defendant Scott's alleged threat was due to Mr. Rivera's refusal to participate in the investigation. See [id. at ¶ 14 (alleging that Defendant Scott informed Mr. Rivera that if he did not talk by the next day, Defendant Scott would send in the sword team)]. Absent any factual allegations establishing a causal connection between the protected activity and the adverse action, Mr. Rivera cannot state a First Amendment retaliation claim. See Hare v. Baur, No. 2:19-cv-01091-RB-GJF, 2020 WL 7863534, at *8 (D.N.M. Dec. 30, 2020) (“Because Plaintiff does not even attempt to establish a causal connection between the protected activity and the complained-of conduct . . ., his claim fails.”). Furthermore, Plaintiff does not allege that Defendants Younger and Long took any action against him due to the filing of his grievances, see, e.g., [Doc. 96 at ¶¶ 22-26], and thus cannot state a retaliation claim against them. See Luck v. Smith, No. 17-cv-00183-WJM-NYW, 2017 WL 3970512, at *4 n.4 (D. Colo. Sept. 8, 2017), report and recommendation adopted, ECF No. 56 (Oct. 16, 2017) (recommending dismissal of claim against defendants where there were no factual allegations regarding those defendants); see also Robbins, 519 F.3d at 1250 (explaining that a complaint must make clear who did what to whom).
While Mr. Rivera does not expressly assert that Defendant Long's denial of his prison grievances constitute retaliation, to the extent his allegations can be construed to allege retaliation in this manner, see [Doc. 96 at ¶¶ 7, 28], these allegations are sufficient to allege a First Amendment retaliation claim against Defendant Long. See Fogle v. Infante, No. 14-cv-01021-BNB, 2014 WL 11878136, at *2 (D. Colo. May 14, 2014) (“[T]he denial of a grievance form is not the sort of injury that would chill a person of ordinary firmness from continuing to engage in the constitutionally protected activity.”).
Moreover, Mr. Rivera alleges no facts demonstrating that Defendant Scott or Defendant Younger knew of Mr. Rivera's grievances. See, e.g., [Doc. 69 at ¶ 7 (alleging that one of his grievances was denied by Defendant Wingert and the other was denied by Defendant Long)]. “Causation is lacking where Plaintiff has not shown that the party who took adverse action against him knew of his protected activity.” Muragara v. Accountemps, No. 15-cv-00932-RBJ-NYW, 2015 WL 13730879, at *4 (D. Colo. Sept. 16, 2015), report and recommendation adopted, 2015 WL 8133000 (D. Colo. Dec. 8, 2015). Because Mr. Rivera has not alleged facts demonstrating a causal connection between his prison grievances and Defendant Scott's alleged retaliatory actions, he fails to state a First Amendment claim on this basis. I therefore respectfully RECOMMEND that the Motion to Dismiss be GRANTED and that Plaintiff's First Amendment claim be DISMISSED under Rule 12(b)(6) to the extent he alleges that he was retaliated against for filing prison grievances.
See supra n.13.
2. Refusal to Participate in the Investigation
Next, Mr. Rivera claims that his refusal to participate in the investigation was a protected activity and that Defendant Younger “and area supervisors and managers” retaliated against him for participating in that activity. See [Doc. 96 at ¶ 25]. Defendants argue that his refusal to speak to intelligence staff was not constitutionally protected activity because “Mr. Rivera [] admits that he willingly spoke to intelligence staff after they allowed them to meet in groups of two to protect him from looking like a snitch.” [Doc. 109 at 11]. Mr. Rivera responds that he “refused to succumb to deliberate indifference [and] participate in investigation-and was therefore left on punishment.” [Doc. 114 at ¶ 17].
Notably, Mr. Rivera does not raise a Fifth Amendment claim in his Third Amended Complaint, see [Doc. 96], nor does allege that his refusal to participate in the investigation constitutes an invocation of his Fifth Amendment rights or was for the purpose of avoiding self-incrimination. See [id. at ¶¶ 6-7, 13, 21 (Mr. Rivera suggesting that he refused to participate in the investigation to avoid looking like an informant to other inmates)]. Indeed, Mr. Rivera repeatedly disclaims any acknowledgment regarding the subject of the investigation. See [id. at ¶ 13]. Thus, the court does not analyze whether Plaintiff's refusal to participate in the investigation is protected activity based on the Fifth Amendment. See cf. Neilsen v. McElderry, 823 Fed.Appx. 575, 582 (10th Cir. 2020) (stating in dicta that where a plaintiff “refused to sign [a parole agreement] for Fifth Amendment reasons, . . . he was engaged in constitutionally protected activity”). Nevertheless, Mr. Rivera asserts that his refusal to participate in the investigation constitutes a protected activity.
This court previously recommended dismissal of Plaintiff's then-asserted Fifth Amendment claim, which was premised on Mr. Rivera's refusal to participate in the investigation, on the basis that he had failed to allege that his participation in the investigation carried a real and appreciable risk of self-incrimination. See [Doc. 75 at 17-18]. And because Mr. Rivera's First Amendment retaliation claim was, at that time, based on his alleged invocation of his Fifth Amendment privilege, see [id. at 21 n.7 (quoting Doc. 41 at 11 ¶ 17)], the court found that Mr. Rivera had failed to state a retaliation claim based on that purported protected activity. [Id. at 21-22].
Protected Activity . The United States Supreme Court has determined that, generally, “the First Amendment guarantees ‘freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say, ” Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781, 797 (1988), and another court in this District has recognized a “First Amendment right not to speak.” Powell v. Wilner, No. 06-cv-00545-WYD-MEH, 2009 WL 840756, at *1 (D. Colo. Mar. 30, 2009). However, some “courts have expressed skepticism that prisoners have a right against compelled speech, particularly in the context of a legitimate investigation.” Williams v. Brown, No. 17-cv-11-BBC, 2017 WL 782958, at *2 (W.D. Wis. Feb. 28, 2017) (citing cases). See, e.g., Ayala v. Harden, No. 1:12-cv-00281-AWI, 2012 WL 4981269, at *2 (E.D. Cal. Oct. 17, 2012) (“Refusal to become an informant is not a protected First Amendment activity.”); Wilcher v. Raemisch, No. 12-cv-803-JDP, 2014 WL 3509395, at *5 (W.D. Wis. July 15, 2014) (opining in dicta that the “weight of authority probably supports defendants' view that the refusal to answer legitimate investigatory questions in a prison is not protected speech, ” but finding that the court need not reach the issue). Indeed, while inmates maintain certain constitutional rights, their “rights may be restricted in ways that would raise grave First Amendment concerns outside the prison context.” Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010) (quotation omitted). Nevertheless, the Supreme Court has instructed that a prisoner “retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).
This court could locate no case from the Supreme Court or the Tenth Circuit concerning whether an inmate's refusal to speak to prison investigators, outside of the context of the Fifth Amendment, constitutes protected activity under the First Amendment. The Second Circuit appears to be the only Circuit which has recognized such a right, holding that “the First Amendment protects a prisoner's right not to serve as an informant.” Burns v. Martuscello, 890 F.3d 77, 84, 94 (2d Cir. 2018) (acknowledging that “neither the Supreme Court nor any other circuit court ha[d] yet to decide whether a prisoner holds a right not to serve as an informant.”). However, the constitutional right recognized in Burns is narrow in scope; the Second Circuit limited its holding to “the distinct circumstances of an inmate punished only in retaliation for refusing to provide information as it may come to the inmate's attention on an ongoing basis.” Id. at 93 (emphasis added). The Second Circuit expressly declined to pass on whether an inmate has a First Amendment right “to refuse to give truthful information about a past event, or in an emergency.” Id. But this court found no analogous authority in the Tenth Circuit.
Some District courts have assumed, without deciding, that an inmate has a constitutional right to refuse to participate in a prison investigation. See David, 401 F.Supp.2d at 757; Jackson v. Johnson, 15 F.Supp.2d 341, 364 (S.D.N.Y. 1998); Soto v. New Jersey, No. CV17-13450-FLW-DEA, 2020 WL 2537857, at *5 (D.N.J. May 19, 2020). But this court found no binding authority to suggest that an inmate's refusal to answer questions about a past event is constitutionally protected. But cf. Mucy v. Nagy, No. CV 20-1950, 2021 WL 3370792, at *4 (W.D. Pa. Aug. 3, 2021) (finding that non-prisoner plaintiff had a First Amendment right to refuse to participate in a police investigation based on an individual's First Amendment right to not speak). Federal courts have a “strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.” Cty. Ct. of Ulster Cty., N.Y.v. Allen, 442 U.S. 140, 154 (1979). For this reason, the court declines to pass upon the issue of whether an inmate has a First Amendment right to not participate in an investigation, because Defendants are entitled to qualified immunity regardless. Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J., concurring) (opining that, where a defendant is entitled to qualified immunity, answering a “difficult constitutional question” may be unnecessary); United States v. Krueger, 809 F.3d 1109, 1115 (10th Cir. 2015) (“[C]onsistent with the fundamental rule of judicial restraint, we decline to reach a constitutional question that is not necessary to our resolution of this [case].”).
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 which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation and citation omitted). To defeat a defense of qualified immunity, a plaintiff must show: “(1) that the defendant's conduct violated a constitutional or statutory right, and (2) that the law governing the conduct was clearly established at the time of the alleged violation.” Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). For purposes of a motion to dismiss based on qualified immunity, the plaintiff's allegations need not “include all the factual allegations necessary to sustain a conclusion that the defendant violated clearly established law.” Robbins, 519 F.3d at 1249 (internal quotation and citation omitted).
A right is clearly established if there is a Supreme Court or Tenth Circuit decision on point or if the weight of authority in other courts provides that the right is clearly established. Washington v. Unified Gov't of Wyandotte Cty., 847 F.3d 1192, 1197 (10th Cir. 2017) (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks omitted)); DeSpain v. Uphoff, 264 F.3d 965, 979 (10th Cir. 2001). The purpose of the clearly established prong is to establish that a government official had sufficient notice such that he or she knows, or should know, what conduct would violate a constitutional right. See Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1265 (10th Cir. 2012). This is a particularized, fact-specific analysis, as it presents an inquiry into whether a reasonable prison official would have known, under the then-prevailing conditions, that his or her conduct violated the plaintiff's rights, and thus a court must take care not to define the right in too general of terms. Leiser v. Moore, 903 F.3d 1137, 1140 (10th Cir. 2018).
I find that Defendants are entitled to qualified immunity on Plaintiff's First Amendment claim because it is not clearly established that Plaintiff has a protected constitutional right to refuse to participate in a prison investigation. See Pearson, 555 U.S. at 236 (holding that a court, within its sound discretion, can consider either prong of the qualified immunity analysis first, and qualified immunity may be appropriate on a failure of either prong). As set forth above, while the Second Circuit in Burns recognized a right to refuse to be an ongoing informant, it expressly declined to consider whether inmates have a constitutional right to refuse to give truthful information about a past event. See Burns, 890 F.3d at 93. Mr. Rivera has pointed the court to no authority, and the court's independent research has uncovered no authority, recognizing an inmate's constitutional right to refuse to participate in a prison investigation about past events.
Moreover, even assuming that Burns is sufficiently analogous to be applicable here, one Circuit court case does not constitute a sufficient “weight of authority” identifying such a right. See Routt v. Howry, 835 Fed.Appx. 379, 385 (10th Cir. 2020) (unpublished) (one case from another Circuit “is insufficient to constitute the weight of authority from other circuits that is necessary to finding” clearly established law); see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1278 (10th Cir. 2009) (a “handful of decisions from courts in other circuits” which are not “broadly accepted” did not constitute “weight of authority”). “[O]rdinarily a court would expect to see cases from at least three other circuits before concluding that a right is clearly established.” Prison Legal News, Inc. v. Simmons, 401 F.Supp.2d 1181, 1192 (D. Kan. 2005). Even in the three years since Burns, no other Circuit court has recognized a First Amendment right to refuse to act as a prison informant. Cf. Mora-Contreras v. Peters, 851 Fed.Appx. 73, 74 (9th Cir. 2021) (unpublished) (finding that the right not to be compelled to inform was “still [] not established in [the Ninth Circuit]”).
Because any right to refuse to participate in a prison investigation was not clearly established at the time of the alleged retaliation, no reasonable prison official would have been on notice that their conduct violated Plaintiff's constitutional rights. For this reason, I find that Defendants are entitled to qualified immunity on Plaintiff's First Amendment claim to the extent it is based on alleged retaliation resulting from Plaintiff's refusal to participate in the investigation. Accordingly, I RECOMMEND that the Motion to Dismiss be GRANTED and that Claim II be DISMISSED.
See supra n.13.
C. Fourteenth Amendment Claim
The Fourteenth Amendment Due Process Clause states that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Typically, a procedural due process claim depends on two questions: “(1) Did the plaintiff possess a protected property or liberty interest to which due process protections apply? And if so, (2) was the plaintiff afforded an appropriate level of process?” Martin Marietta Materials, Inc. v. Kan. Dep't of Transp., 810 F.3d 1161, 1172 (10th Cir. 2016). “To establish a due-process violation, a prison inmate challenging the conditions of his confinement must show that the defendants deprived him of a constitutionally protected liberty interest.” Grissom v. Roberts, 902 F.3d 1162, 1169 (10th Cir. 2018).
Mr. Rivera asserts that his placement on the red tag sanction violated his due process rights because it resulted in this loss of certain privileges and “impinged upon [the] duration of [his] sentence.” [Doc. 96 at ¶ 27]. “[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Rather, a protected liberty interest arises only if the conditions of confinement constitute an “atypical and significant hardship in relation to the ordinary incidents of prison life.” Al-Turki v. Tomsic, 926 F.3d 610, 616 (10th Cir. 2019) (ellipsis and internal quotation marks omitted). Defendants argue that Mr. Rivera fails to plausibly allege an atypical and significant hardship suffered as a result of the red tag policy. [Doc. 109 at 12-15]. Mr. Rivera does not respond to this argument. See [Doc. 114].
Protected Liberty Interest . Relevant factors to be considered in determining whether conditions of confinement impose atypical and significant hardship in relation to the ordinary incidents of prison life include (1) whether the conditions relate to and further a legitimate penological interest; (2) whether the conditions are extreme; (3) whether the conditions increase the duration of confinement; and (4) whether the conditions are indeterminate. See DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007). I consider each factor in turn.
First, in their Motion to Dismiss, Defendants argue that the subject conditions were related to the legitimate penological interest of institutional security. [Doc. 109 at 13]; see also Doe v. Heil, 781 F.Supp.2d 1134, 1140 (D. Colo. 2011) (“Legitimate penological interests include . . . security.”); cf. Khan v. Barela, 808 Fed.Appx. 602, 612 (10th Cir. 2020) (unpublished) (prison has legitimate penological interest in discovering contraband). Mr. Rivera does not respond to this argument, see [Doc. 114], and the Third Amended Complaint does not contain any factual allegations which would permit the court to conclude that the red tag sanction was not related to prison security. Indeed, Mr. Rivera alleges in the Third Amended Complaint that he was sanctioned for refusing to interview with intelligence staff about an incident within the facility involving “contraband and a note.” See [Doc. 96 at ¶ 4]. The court finds that, absent any factual allegations demonstrating otherwise, Plaintiff has failed to carry his burden to show that that the red tag sanction is not related to a legitimate penological interest. Cf. Davis v. Fed. Bureau of Prisons, No. 15-cv-00884-WJM-MJW, 2016 WL 11384334, at *5 (D. Colo. Feb. 4, 2016), report and recommendation adopted, 2016 WL 1156755 (D. Colo. Mar. 24, 2016) (“[W]here Plaintiff has not provided any factual allegations suggesting that the restrictions are not rationally related to a legitimate penological interest, he has not met his burden.”).
Second, in context, Mr. Rivera's allegations of a 21-day restriction of various privileges do not suggest extreme conditions: similar, and indeed harsher, allegations have been held insufficient to plead an atypical and significant hardship for purposes of a due process claim. See, e.g., Sandin v. Conner, 515 U.S. 472, 488 (1995) (no cognizable due process claim where inmate was subject to 30 days in punitive segregation); Meek v. Jordan, 534 Fed.Appx. 762, 765 (10th Cir. 2013) (unpublished) (inmate failed to state due process claim in the absence of “any facts that would plausibly indicate that 60 days in disciplinary segregation is atypical in relation to the ordinary incidents of prison life”); Scott v. Crowley Cty. Corr. Facility, 76 Fed.Appx. 878, 881 (10th Cir. 2003) (unpublished) (affirming dismissal of complaint as frivolous where inmate's allegations of 65 days in segregation failed to constitute “atypical and significant hardship in relation to the ordinary incidents of prison life”).
While Mr. Rivera asserts that he has a significant liberty interest in not being deprived of these privileges due to his already-restricted maximum-security environment, see [Doc. 96 at ¶ 27], the case upon which Mr. Rivera relies, Bass v. Perron, 170 F.3d 1312 (11th Cir. 1999), is distinguishable from the instant matter. In Bass, the Eleventh Circuit noted that the Supreme Court has recognized two circumstances in which a prisoner can be deprived of his liberty such that due process is required: first, when a change in the prisoner's conditions of confinement are so severe that “it essentially exceeds the sentence imposed by the court, ” and second, when the state has “consistently given a certain benefit to prisoners” and the deprivation of that benefit imposes atypical and significant hardship in relation to the ordinary incidents of prison life. 170 F.3d at 1318. In response to the plaintiffs' challenge to the deprivation of their outdoor yard time, the court first found that prisoners in a Florida facility had a state-created liberty interest in yard time because the Florida Administrative Code gave prisoners in solitary confinement two hours of yard time per week. Id. Then, the court determined that such deprivation “imposes enough of a hardship to qualify as a constitutionally protected liberty interest, ” because “although the plaintiffs were deprived of only two hours of yard time per week, the marginal value of those two hours to a person in [solitary confinement] [was] substantial, ” and was therefore “atypical and significant even in solitary confinement.” Id.
Here, Mr. Rivera does not allege that he has a state-created liberty interest in recreation, library access, or education or other programming. See generally [Doc. 96]; see also Lewis v. Clark, 663 Fed.Appx. 697, 700 (10th Cir. 2016) (unpublished) (affirming dismissal of due process claim where the plaintiff could not identify state law giving him a liberty interest in unfettered use of prison law library). And while he alleges that he is “already in max security [] where privileges are already at the minimal level, ” [Doc. 96 at ¶ 10], Mr. Rivera does not allege or explain the privileges he was entitled to prior to the imposition of the red tag sanction, so as to ascertain whether the deprivation of his privileges was “atypical and significant even in [maximum-security housing].” See Bass, 170 F.3d at 1318. While the court does not question the importance of recreation, education, and library access to incarcerated individuals, the court cannot conclude that the deprivation of these privileges for 21 days is “different in such degree and duration as compared with the ordinary incidents of prison life to constitute protected liberty interests under the Due Process Clause.” Marshall v. Morton, 421 Fed.Appx. 832, 838 (10th Cir. 2011) (unpublished).
Third, while Mr. Rivera alleges that the denial of good-time credit for August and September 2018 “creates an impingement on the duration of [his] sentence, further lengthening an otherwise shorter sentence, ” [Doc. 96 at ¶ 9], as this court has already determined, Mr. Rivera does not plausibly allege that the denial of good-time credit increased the duration of his confinement. See Handy, 2016 WL 1238152, at *3 (“While inmates must be afforded due process before their good time credits can be revoked, . . . Colorado law does not furnish a right to earn good-time credits and expressly permits the denial of such a right.” (internal quotations, citations, and alterations omitted)); see also Revello, 2010 WL 3239283, at *4 (good time credits do not shorten an inmate's sentence, but only expedite the date on which the inmate is eligible for discretionary parole).
Finally, Defendants argue that Mr. Rivera has failed to plausibly allege that his placement on the red tag sanction was indeterminate because although Mr. Rivera claims that the sanction “‘would be indeterminate,' he admits, in the same sentence, that [the sanction] was imposed ‘until [he] cooperat[ed] with [the] active prison investigation.'” [Doc. 109 at 14-15 (quoting [Doc. 96 at ¶ 27])]. Indeed, while Mr. Rivera alleges that if he chose not to participate in the investigation, he “would be left on red tag indefinitely, ” [Doc. 96 at ¶ 22], he also consistently alleges that his placement on the red tag sanction was contingent upon whether he participated in an interview with intelligence staff. See [id. at ¶¶ 6, 12-14].
As this court previously concluded, assuming arguendo that Mr. Rivera was faced with the choice of either appearing as in informant to fellow inmates or continuing his red tag sanction, Plaintiff's decision to avoid a perceived danger should not be held against him. See Mackey v. Watson, No. 17-cv-01341-CMA-STV, 2017 WL 6016351, at *10 (D. Colo. Dec. 5, 2017). But even construing Plaintiff's factual allegations in the light most favorable to him, this court concludes that Plaintiff fails to allege sufficient facts to allow a factfinder to conclude that his 21-day red tag sanction amounts to an “atypical and significant hardship” as necessary to state a due process claim under the Fourteenth Amendment. See Deberry v. Davis, No. 10-cv-00725-CMA-BNB, 2011 WL 1258509, at *3 (D. Colo. Mar. 31, 2011) (adopting and affirming recommendation to grant motion to dismiss prisoner's due process claim and finding plaintiff did not have a constitutionally protected liberty interest where he failed to establish three of the four DiMarco factors). Accordingly, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED as to Claim III and that Plaintiff's Fourteenth Amendment due process claim be DISMISSED for failure to state a claim.
See supra n.13.
D. Qualified Immunity
In the alternative, Defendants argue that they are entitled to qualified immunity against Mr. Rivera's claims against them in their individual capacities. [Doc. 109 at 16]. This court has already determined that Defendants are entitled to qualified immunity against Plaintiff's First Amendment claim, Claim II. See supra Section II.B.2. But having also concluded that Plaintiff fails to state a cognizable constitutional claim on Claims I and III, the court finds that Defendants are similarly entitled to qualified immunity as to those claims. See Pearson, 555 U.S. at 236. A contrary conclusion as to Plaintiff's constitutional claims notwithstanding, Defendants are entitled to qualified immunity from monetary damages unless Mr. Rivera can also show that the law was clearly established at the time of the constitutional violations. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
Plaintiff points to no authority, from the Supreme Court, the Tenth Circuit, or otherwise, to support a conclusion that clearly established law would put a reasonable official in Defendants' positions on notice that their conduct in this case-which amounted to (a) seeking to interview an inmate for information about an incident within the facility involving “contraband and a note” (and ultimately permitting that inmate to participate on his terms); (b) placing an inmate on indefinite restrictions as a sanction for that inmate's refusal to speak to intelligence staff about an incident; (c) subjecting an inmate to a red tag policy for 21 days, wherein recreation, education, and other program privileges were withheld, showers were restricted to one every three days, the inmate feared looking like an informant, and the inmate lost twenty pounds protesting the sanction policy; and (d) placing an inmate on restrictive sanction for refusing to speak with intelligence staff without any hearing or process-violated either the Eighth or Fourteenth Amendments of the Constitution as reflected in Claims I and III. And the absence of authority here “is fatal to Plaintiff['s] claim[s] for monetary damages.” Reinhardt v. Kopcow, 66 F.Supp.3d 1348, 1250 (D. Colo. 2014) (citing Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009) (qualified immunity places the burden on the plaintiff to show that the constitutional right was clearly established at the time of the alleged violation)). Thus, qualified immunity is an additional basis for dismissal of Plaintiff's Claims I and III.
The court notes that Mr. Rivera cites a plethora of legal authority in both his Third Amended Complaint and Response that he argues demonstrates clearly established law. See generally [Doc. 96]; [Doc. 114]. However, many of the cases on which Mr. Rivera relies predate applicable precedent, lack binding precedential effect, and/or do not ultimately support the propositions for which he cites to them. See, e.g., supra n.11; supra Section II.C. For example, Mr. Rivera cites Benefield for the proposition that it is clearly established that labeling a prisoner a “snitch” constitutes deliberate indifference to the safety of that inmate. See [Doc. 114 at ¶ 5 (citing Benefield, 241 F.2d at 1271)]. But the Benefield case stands for the proposition that a prison official labeling an inmate a snitch constitutes deliberate indifference, and as set forth above, supra n.11, there are no allegations in the Third Amended Complaint that any Defendant labeled Mr. Rivera a snitch. See [Doc. 96]. This case does not establish that any Defendant's alleged conduct violated clearly established law.
Given the foregoing analysis, this court does not address Defendants' arguments regarding the personal participation of Defendant Long. See [Doc. 109 at 15].
In sum, the court finds that Mr. Rivera fails to state a claim under Rule 12(b)(6) as to Claims I and III, and that Defendants are otherwise entitled to qualified immunity on Claims I, II, and III. For the foregoing reasons, the court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED.
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) Defendants' Motion to Dismiss [Doc. 109] be GRANTED; and
(2) Plaintiff's Third Amended Complaint [Doc. 96] be DISMISSED.
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 E. 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).
It is further ORDERED that:
(1) A copy of this Order and Recommendation, marked as legal mail, shall be sent to the following:
Joey Rivera, #111286
Colorado State Penitentiary
P.O. Box 777
Cañon City, CO 81215