Opinion
Civil Action 20-cv-01410-RMR-KLM
08-04-2022
SHAUN ALLEN CLARK, Plaintiff, v. JEFF SHRADER, et al., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Motion to Dismiss Amended Prisoner Complaint [ECF No. 122-1] [#129] (the “Motion”), filed by Defendants Jeff Shrader (“Shrader”) and Jefferson County Sheriff's Department (“JCSD”) (collectively, “Defendants”). Plaintiff, who proceeds as a pro se litigant, did not file a Response, despite being given multiple opportunities in which to do so since the filing of the Motion [#129] on November 24, 2021. See Minute Orders [#137, #140, #152]. The Motion [#129] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c). See [#130]. The Court has reviewed the Motion [#129], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#129] be GRANTED.
“[#129]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic filing system (CM/ECF). This convention is used throughout this Recommendation.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The Court notes that the other Defendants in this case who are not parties to the present Motion [#129] were only much more recently served, and any claims asserted against those Defendants are not at issue in the present Recommendation.
All well-pled facts from the Amended Complaint [#128] are accepted as true and viewed in the light most favorable to Plaintiff as the nonmovant. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
At all times relevant to the events underlying this lawsuit, Plaintiff was housed at the Jefferson County Jail (the “Jail”) as a pretrial detainee. Am. Compl. [#128] at 3. He states that, during the COVID-19 pandemic, Defendants JCSD and Shrader, the Jefferson County Sheriff, chose more than half of the Jail's population to release, or to whom personal recognizance bonds would be offered, to socially distance people in the Jail. Id. Plaintiff was not chosen for such release. Id.
On May 6, 2020, Plaintiff tested positive for COVID-19. Id. at 4. Plaintiff alleges that Defendants did not do enough to protect him from contracting the COVID-19 virus. Id. Plaintiff argues that Defendant Shrader failed to adequately supervise subordinates in their enforcement decisions regarding COVID-19 safety policies. Id. Defendants allegedly issued Plaintiff “unbreathable masks” that were “made from old green Jail uniforms which are hard, unbreathable denim.” Id. at 10. Plaintiff alleges that “the mask did not protect the Plaintiff from contracting the COVID-19 virus because they were open at the sides and did not seal to the face.” Id. Plaintiff argues that such conduct is “especially egregious, shocking, and unconscionable” because Jail staff members received N95 masks and were not permitted to wear “cloth or surgical masks that are not ‘legitimate.'” Id.
Plaintiff asserts ten claims against several officials, but the present Motion [#129] concerns only the claims against Defendants Shrader and JCSD, including various equal protection violations, deliberate indifference to Jail conditions, and failure to supervise. Plaintiff seeks $50 million dollars in compensatory and exemplary damages. Id. at 30. In the present Motion [#129], Defendants Shrader and JCSD seek dismissal of all aspects of Plaintiff's claims against them.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 17 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim for relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enforcement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct,” a factual allegation has been stated, “but it has not show[n] [ ] that the pleader is entitled to relief,” as required by Fed.R.Civ.P. 8(a). Iqbal, 55 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).
III. Analysis
A. Defendant JCSD
In a prior Recommendation [#74], the Court recommended that all claims against Defendant JCSD be dismissed with prejudice. The Court stated:
“Under Colorado law municipalities and counties, not their various subsidiary departments, exist as ‘bodies corporate and politic' empowered to ‘sue and be sued.'” Stump v. Gates, 777 F.Supp. 808, 816 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993) (citing Colo. Rev. Stat. §§ 31-15-101(1)(a) and 30-11-101(1)(a)). “[T]he Jefferson County Sheriffs Department . . . [is] not [a] separate entit[y] from Jefferson County, and, therefore [is] not [a] ‘person[ ]' under 42 U.S.C. § 1983.” Stone v. Jefferson Cnty. Detention Facility, No. 20-cv-00835-LTB-GPG, 2020 WL 5405794, at
*2 (D. Colo. July 9, 2020) (citing Stump, 777 F.Supp. at 814-16); see also Lindsey v. Thomson, 275 Fed.Appx. 744, 777 (10th Cir. 2007) (noting that sheriff's departments are not usually legally suable entities).Recommendation [#74] at 8 (citing Sarnella v. Kuhns, No. 18-cv-00779-PAB-NYW, 2019 WL 1112388, at *2, 4 (D. Colo. Mar. 8, 2019) (dismissing all claims against Defendant JCSD with prejudice as a nonsuable entity)). The District Judge subsequently adopted the Recommendation [#74] and dismissed all claims asserted against Defendant JCSD with prejudice, see Order [#101], meaning that Plaintiff may not reassert his claims against this Defendant. See Charles v. Hackford, 2018 WL 4006938, at *1 (10th Cir. Apr. 5, 2018) (stating that a “dismissal with prejudice means the plaintiff cannot return to federal court with the same claims”).
Accordingly, the Court recommends that the Motion [#129] be granted to the extent that all claims which Plaintiff attempts to reassert against Defendant JCSD be dismissed with prejudice in accordance with the Court's prior ruling. Order [#101].
B. Defendant Shrader
1. Individual Capacity
Defendant Shrader contends that he is entitled to qualified immunity regarding all of Plaintiff's claims against him to the extent that they are asserted in his individual capacity. Motion [#129] at 4. Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982). A government official is entitled to qualified immunity from liability for civil damages when his allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Id. at 818. A government official is entitled to qualified immunity in “[a]ll but the most exceptional cases.” Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997).
The threshold inquiry is whether the facts taken in the light most favorable to the plaintiff sufficiently allege a constitutional violation. Saucier v. Katz, 553 U.S. 194, 201 (2001). “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Id. However, “if a violation could be made out on a favorable view of the parties' submissions,” a court must “ask whether the right was clearly established.” Id.; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken and qualified immunity is appropriate).
a. Discrimination/Equal Protection Claims
Plaintiff appears to assert that Defendant Shrader violated Plaintiff's equal protection rights in Claims 1 and 8. In Claim 1, Plaintiff alleges that “the defendants listed in this case chose half of the jails [sic] population to release in order to be able to social distance the jail” and argues that he was “discriminated against[,] violating his 14th amendment right of equal protection under the law.” Am. Compl. [#128] at 3. In Claim 8, Plaintiff alleges that because Jail staff members were issued N95 masks while he received only a denim cloth mask, he was unlawfully deprived of equal protection “due to his being an inmate and deemed less valuable as a person because of his status thereof.” Id. at 11.
Plaintiff asserts the first “Claim One” on page 3 of the Amended Complaint [#128]. The second “Claim (1)” appears on the following page with Claims (2) through (9) following. See Am. Compl. [#128]. This discussion refers only to the first “Claim 1.”
The Equal Protection Clause of the Fourteenth Amendment states: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This is “essentially a direction that all persons similarly situated be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). As a threshold matter, Plaintiff must demonstrate that he was treated differently from others who were similarly situated to him. Gehl Grp. v. Koby, 63 F.3d 1528, 1538 (10th Cir. 1995); see Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (holding that prisoner asserting equal protection violation must show he was treated differently from other prisoners who are similar to him “in every relevant aspect”). Even “slight differences in [detainees'] histories” render them not “similarly situated” for purposes of an equal protection analysis. Templeman, 16 F.3d at 371.
Commonly, the Equal Protection Clause applies to class-based discrimination, i.e., treating a person differently because he is a member of a protected class. Here, however, Plaintiff has not alleged that he is a member of a protected class, and therefore he appears to be alleging that he has been singled out as part of a “class of one.” See Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008). The Supreme Court has “recognized successful equal protection claims brought by a ‘class of one,' where the plaintiff alleges that [ ]he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
To plausibly allege an equal protection claim for a class of one, Plaintiff must show: (1) that he was “intentionally treated differently from others similarly situated” in all material aspects; and (2) “that there is no rational basis for the difference in treatment[,]” i.e., that the government action is abusive and not related to any legitimate objective. Olech, 528 U.S. at 564; Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1210 (10th Cir. 2006); see also Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011).
Regarding the first element, “[t]he allegations necessary to establish this level of similarity will vary depending on the nature of the case, and ‘[t]he more variables involved in the government action at issue, the more specifics the plaintiff will need to allege to allow for meaningful comparison between the plaintiff's (negative) experience and the (positive) experience of others.'” Rucker v. Gilmore, No. 13-cv-03028-JAR, 2015 WL 506210, at *9 (D. Kan. Feb. 6, 2015) (quoting Haik v. Salt Lake City Corp., 567 Fed.Appx. 621, 632 (10th Cir. 2014)). “Because ‘it is exceedingly difficult to demonstrate that any difference in treatment is not attributable to a quirk of the plaintiff or even to the fallibility of administrators whose inconsistency is as random as it is inevitable . . . courts have imposed exacting burdens on plaintiffs to demonstrate similarity in class-of-one cases.'” Shifrin v. Toll, 483 Fed.Appx. 446, 449 (10th Cir. 2012) (quoting Jicarilla Apache Nation, 440 F.3d at 1213).
In Claim 1, Plaintiff does not articulate any specific unconstitutional actions taken by Defendant Shrader. Instead, Plaintiff makes a blanket assertion that “the defendants listed in this case” discriminated against Plaintiff, violating his equal protection rights. Am. Compl. [#128] at 3. More vaguely, Plaintiff argues that “choosing one inmate's charges over another to decide whom to release is discrimination. Making assumptions that [Plaintiff] would commit other crimes based on past charges is as hurtful as discriminating against him because of him being a male with domestic violence charges.” Id. Plaintiff further argues that “[c]hoosing one person's charges over another as long as they are not capital offenses is textbook discrimination” and that he was discriminated against “when the person or group of people chose to give [personal recognizance] bonds, or immediately release half of the jail's population.” Id. Plaintiff does not specifically identify Defendant Shrader as a person involved in such decision-making. Further, as Defendant Shrader correctly states, Plaintiff's “objections to remaining in custody while others were released cannot be levied against the Sheriff because the court, not the Sheriff, is responsible for determining bond amounts and conditions.” Motion [#129] at 12; see Colo. R. Crim. P. 5(a)(2)(V); Colo. R. Crim. P. 46. Plaintiff does not adequately allege that these procedures for determining release were not in effect during the COVID-19 pandemic.
It is also wholly unclear whether Plaintiff is attempting to argue that persons who have committed worse crimes than he did have been released, while he has not been released, or whether Plaintiff is attempting to argue that all persons without capital offenses should have been chosen for release. Still, Plaintiff pleads no facts to support how other pretrial detainees were similarly situated to him in any material aspect (e.g., charges, case status, bond conditions). Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006) (“In order to succeed on his [ ] equal protection claim, [Plaintiff] would have to show that he was ‘similarly situated' to [ ] general population inmates ....”). The mere fact that other pretrial detainees were released from the Jail does not adequately allege that they were similarly situated to Plaintiff, and the mere fact that they were released early, while Plaintiff was not, does not show that they were treated more favorably than he was in violation of the Equal Protection Clause. Therefore, Plaintiff fails to adequately allege an equal protection violation in (the first) Claim 1, and Defendant Shrader is entitled to qualified immunity. See Harlow, 457 U.S. at 818.
In Claim 8, Plaintiff appears to assert that Defendant Shrader participated in issuing Plaintiff an unsuitable mask. See Am. Compl. [#128] at 10. Again, Plaintiff does not articulate any specific unconstitutional actions taken by Defendant Shrader. In a general sense, Plaintiff alleges that several officials issued Plaintiff his mask and all the involved officials' actions offend the Equal Protection Clause. See id. at 10-11. Nevertheless, in Claim 8, Plaintiff alleges that he was treated differently from Jail staff- not other inmates. However, “staff members are not ‘similarly situated' to inmates.” Coulston v. Glunt, 665 Fed.Appx. 128, 131 (3d Cir. 2016). The Court finds that Plaintiff has not shown how he has been treated differently from other inmates who were similarly situated to him in all material aspects. Therefore, Plaintiff fails to adequately allege an equal protection violation in Claim 8, and Defendant Shrader is entitled to qualified immunity. See Harlow, 457 U.S. at 818.
Accordingly, the Court recommends that Plaintiff's (first) Claim 1 and Claim 8 be dismissed with prejudice to the extent that they are asserted against Defendant Shrader in his individual capacity as equal protection claims under the Fourteenth Amendment. See Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (stating that prejudice should attach to a dismissal when plaintiff has not made allegations “which upon further investigation and development, could raise substantial issues”); Jacobo Rosas v. United States Attorney, No. CV 21-0789 KG/GBW, 2022 WL 613309, at *4 (D.N.M. Mar. 2, 2020) (finding that allowing the plaintiff an opportunity to amend the complaint would be futile because the plaintiff already been given “several opportunities to attempt to state a viable claim for relief”); see also Recommendation [#74]; Order [#101] (dismissing Plaintiff's equal protection claims against Defendant Shrader in the initial Complaint [#1]).
b. Deliberate Indifference Claims: Eighth Amendment
Plaintiff appears to argue that Defendant Shrader violated his rights under the Eighth and Fourteenth Amendments in Claims 2, 3, 4, 5, 6, and 9. However, Eighth Amendment protections apply only to convicted prisoners. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); see also Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). The Due Process Clause of the Fourteenth Amendment protects individuals detained prior to conviction. Massachusetts General Hosp., 463 U.S. at 244. Plaintiff was a pretrial detainee during the events underlying this lawsuit. Am. Compl. [#128] at 3. Thus, the Court concludes that Plaintiff's Claims 2, 3, 4, 5, 6, and 9 under the Eighth Amendment fail to state a claim and that Defendant Shrader is entitled to qualified immunity. See Harlow, 457 U.S. at 818.
Accordingly, the Court recommends that Plaintiff's Claims 2, 3, 4, 5, 6, and 9 be dismissed with prejudice to the extent that they are asserted against Defendant Shrader in his individual capacity as deliberate indifference claims under the Eighth Amendment. See Reynoldson, 907 F.2d at 127.
c. Deliberate Indifference Claims: Fourteenth Amendment
“Although the Due Process Clause governs a pretrial detainee's claim of unconstitutional conditions of confinement . . . the Eighth Amendment standard provides the benchmark for such claims.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). The deliberate indifference analysis for the Eighth and Fourteenth Amendments is identical. Id.
In Claims 2, 3, 4, 5, 6, and 9, Plaintiff alleges that Defendant Shrader exercised deliberate indifference by failing to protect him from contracting the COVID-19 virus. In Claims 2, 3, 4, and 9, Plaintiff appears to argue that Defendant Shrader failed to protect him because he gave subordinates “unfettered discretion and autonomy to devise, institute, promulgate, execute and enforce, or not enforce policies without adequate oversight, questioning, analyzing, or determining the efficacies and proper execution and enforcement thereof.” Am. Compl. [#128] at 4-6, 12. In Claim 5, Plaintiff argues that “the exemption from quarantining newly arriving inmates less than the 14 day limit, or not at all, in order to obtain free inmate labor clearly shows that [Defendant Shrader] additionally acted in a grossly negligent, culpable and shocking manner” leading to Plaintiff's COVID-19 infection. Id. at 8. In Claim 6, Plaintiff does not specifically name Defendant Shrader, but appears to argue that Defendants exercised deliberate indifference when they “did nothing to execute their social distancing policy” within the Jail. Id. at 9.
Because inmates “must rely on prison authorities to treat [their] medical needs,” the Supreme Court has held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). The test for deliberate indifference is both objective and subjective, in that a detainee must establish that: (1) he was deprived of a medical need that is, objectively, “sufficiently serious,” and (2) that the defendant subjectively knew of and disregarded “an excessive risk to [the detainee's] health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).
Under the subjective prong, Plaintiff must show that the defendant (1) knew of a substantial risk of serious harm posed to the plaintiff and (2) disregarded that risk “by failing to take reasonable steps to abate the risk.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The plaintiff must show more than negligence, meaning the plaintiff cannot rely solely on an allegation that the defendant should have perceived a substantial risk. Farmer, 511 U.S. at 838; Estelle, 429 U.S. at 105-06. The plaintiff must instead show that the defendant was aware of a specific and substantial risk of harm, and deliberately failed to act with a sufficiently culpable state of mind. See Farmer, 511 U.S. at 834-35; Wright v. Collison, 651 Fed.Appx. 745, 748 (10th Cir. 2016). “If the official was unaware of the risk, ‘no matter how obvious the risk or how gross his negligence in failing to perceive it,' his failure to alleviate it ‘is not an infliction of punishment and therefore not a constitutional violation.'” Szymanski v. Benton, 289 Fed.Appx. 315, 318 (10th Cir. 2008) (quoting Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)). Further, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
The Court examines whether Defendant Shrader was aware of Plaintiff's condition and whether his actions constituted “deliberate indifference” to Plaintiff's medical need. Farmer, 511 U.S. at 828. In Claims 2, 3, 4, 5, 6, and 9, Plaintiff has not sufficiently alleged facts to show any specific unconstitutional actions by Defendant Shrader. Plaintiff conclusorily alleges that Defendant Shrader exercised deliberate indifference in allowing other prison officials to take, or not take, certain actions to protect Plaintiff from contracting COVID-19. See generally Am. Compl. [#128]. Plaintiff does not explain what Defendant Shrader purportedly did to allow other prison officials to disregard orders. Plaintiff only generally alleges that the policies and customs in place amount to deliberate indifference. See generally id.
Plaintiff does not sufficiently allege facts to demonstrate how Defendant Shrader was aware of Plaintiff's condition. Plaintiff alleges that he is forty-one years old “with poor sleep habits, [post-traumatic stress disorder], [and] a list of family medical conditions such as asthma, mental health problems, heart conditions, cancer, and strokes.” Am. Compl. [#128] at 4. Plaintiff does not allege that Defendant Shrader knew Plaintiff's medical history. Further, Plaintiff references “vulnerable inmates” throughout his Amended Complaint [#128]. Plaintiff does not, however, specifically allege that his conditions make him a “vulnerable inmate” for contracting COVID-19. Although Plaintiff alleges that members of his family may qualify as medically vulnerable, Plaintiff does not allege that he suffers from such conditions. Moreover, Plaintiff does not explain how Defendant Shrader would have been aware of his conditions. Plaintiff's Amended Complaint [#128] does not show that Defendant Shrader had any notice of a risk of danger posed to Plaintiff when he contracted COVID-19.
Further, there are no allegations that Defendant Shrader disregarded COVID-19 risks. “The key inquiry is whether [Defendant Shrader] ‘responded reasonably to th[is] risk.'” Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020). Plaintiff does not make clear the extent of Defendant Shrader's involvement in implementing COVID-19 protocols; however, Plaintiff describes numerous steps that the Jail took to respond to the outbreak. Half of the Jail's population was released to increase social distancing, Am. Compl. [#128] at 3; Plaintiff and other inmates received COVID-19 testing, id. at 4; the Commander of Detention Services issued precautionary guidelines to feed inmates on Styrofoam trays, id. at 5-6; the Jail mandated employee screening for COVID-19, id. at 6; the Jail quarantined new inmates in certain classification modules, id. at 8; the Jail allowed only asymptomatic and nonexposed inmate workers to be moved out of certain modules before the end of a 14-day quarantine, id.; the Jail issued masks and mandated their use in the dayroom, recreation yard, program room, bathrooms, when leaving the unit, and in a later memorandum also when in the sleeping areas while awake, id.; the Jail washed exposed inmates' bedding, id. at 11; and exposed inmates were placed in quarantine, id. There is no indication that Defendant Shrader had any specific knowledge that certain subordinates or other Jail officials were not adhering to the Jail's protocols. Even still, “[t]he lack of enforcement of the existing . . . polic[ies] at best shows mere negligence and is insufficient to demonstrate deliberate indifference.” Brown v. Head, 190 Fed.Appx. 808, 810 (11th Cir. 2006).
Even viewing the operative complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to allege specific facts showing that Defendant Shrader was subjectively aware of a significant risk to Plaintiff's health such that his actions or inactions amounted to deliberate indifference in violation of the Fourteenth Amendment.
Accordingly, the Court recommends that Plaintiff's Claims 2, 3, 4, 5, 6, and 9 be dismissed with prejudice to the extent that they are asserted against Defendant Shrader in his individual capacity as deliberate indifference claims under the Fourteenth Amendment. See Reynoldson, 907 F.2d at 127; Jacobo-Rosas, 2022 WL 613309, at *4; see also Recommendation [#74]; Order [#101].
d. Failure to Supervise Claims
Under the same set of facts as the deliberate indifference claims, and with overlapping argument, Plaintiff appears to separately assert in Claims 2, 3, 4, 5, 6, and 9 that Defendant Shrader failed to adequately supervise his subordinates to protect Plaintiff from COVID-19. Defendant Shrader asserts that Plaintiff does not meet the elements of supervisory liability. Motion [#129] at 6.
Supervisor liability cannot be premised on allegations of negligence. Sevier v. City of Lawrence, 60 F.3d 695, 699 n.7 (10th Cir. 1995) (“Mere negligent actions . . . [are] not actionable under § 1983.”). A plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution. Iqbal, 556 U.S. at 676. Supervisory status by itself is insufficient to support liability. Id. at 677. In order to maintain a claim of supervisory liability, “the plaintiff must plausibly plead and eventually prove not only that the official's subordinates violated the Constitution, but that the official by virtue of his own conduct and state of mind did so as well.” Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (citing Iqbal, 556 U.S. at 677)). In order to bring a claim for supervisory liability, a plaintiff must “identify the specific policies over which the particular defendants possessed responsibility and that led to the alleged constitutional violation.” Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013). In other words, Plaintiff “must show an affirmative link between the supervisor and the constitutional violation.” Crocker v. Glanz, 752 Fed.Appx. 564, 567-68 (10th Cir. 2018) (“An affirmative link requires (1) personal involvement, (2) sufficient causal connection, and (3) culpable state of mind.”).
The Court finds that Plaintiff has not alleged any facts that affirmatively link Defendant Shrader to any alleged constitutional violation. See Crocker, 752 Fed.Appx. at 567-68. Plaintiff has not explained to any extent Defendant Shrader's supervisory role over the various other Defendants who did not file the current Motion [#129]. Plaintiff has not alleged facts that show how Defendant Shrader was personally involved in creating the administrative regulations. Plaintiff conclusorily alleges that Defendant Shrader did not enforce the safeguards but does not offer any facts to support such allegations. Plaintiff speculates as to how he might have contracted COVID-19 but does not sufficiently show how Defendant Shrader's supervisory conduct caused Plaintiff's infection. As discussed above, Plaintiff has not alleged facts suggesting that any Fourteenth Amendment violation has occurred. Thus, the Court cannot find that Defendant Shrader is liable in a supervisory capacity and Defendant Shrader is therefore entitled to qualified immunity. See Harlow, 457 U.S. at 818.
Accordingly, the Court recommends that Plaintiff's Claims 2, 3, 4, 5, 6, and 9 be dismissed with prejudice to the extent that they are asserted against Defendant Shrader in his supervisory capacity. See Reynoldson, 907 F.2d at 127.
2. Official Capacity
Plaintiff appears to assert his claims against Defendant Shrader in both his individual and official capacities. See Am. Compl. [#128] at 1 (listing Defendants and then stating: “Above named- Professional and Private capacity”). Defendant Shrader argues that Plaintiff has failed to sufficiently allege official capacity claims against him. Motion [#129] at 14.
“An 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); Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 692 (1978). “A local governing body may be sued under § 1983 only where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'” Carranza v. Reams, No. 20-cv-00977-PAB, 2020 WL 2320174, at *6 (D. Colo. May 11, 2020) (quoting Monell, 436 U.S. at 690). After establishing a policy or custom, Plaintiff must demonstrate “a direct causal link between the policy or custom and the injury alleged.” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019). Here, it appears that Defendant Shrader is an employee of Jefferson County. Plaintiff must allege three elements to assert an entity liability claim against Jefferson County: “(1) official policy or custom, (2) causation, and (3) state of mind.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013).
“The causation element is applied with especial rigor when the municipal policy or practice is itself not unconstitutional, for example, when the municipal liability claim is based upon inadequate training, supervision, and deficiencies in hiring.” Waller, 932 F.3d at 1284 (quoting Schneider, 717 F.3d at 770) (internal quotation marks omitted). For claims of inadequate supervisory practices, Plaintiff “must demonstrate that the municipal action was taken with ‘deliberate indifference' as to its known or obvious consequences.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 407 (1997). “The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).
Here, in what appears to greatly overlap his failure-to-supervise claim against Defendant Shrader in his individual capacity, Plaintiff appears to allege a failure to supervise theory of liability against Defendant Shrader in his official capacity as well. Plaintiff conclusorily alleges that Defendant Shrader “allowed [his] subordinates unfettered discretion and autonomy to devise, institute, promulgate, execute and enforce, or not enforce policies without adequate oversight, questioning, analyzing, or determining the efficacies and proper execution and enforcement thereof.” Am. Compl. [#128] at 4-5. These allegations fail to plausibly allege a “direct causal link” between the purported violation of Plaintiff's constitutional rights and the failure to supervise subordinates in their policy enforcement decisions. Waller, 932 F.3d at 1284 (citing Schneider, 717 F.3d at 770). Plaintiff does not allege sufficient facts to show how Defendant Shrader's supervision was inadequate or how his purportedly inadequate supervision caused Plaintiff's injury. Further, Plaintiff makes no allegation that Defendant Shrader is the municipal policymaker and caused Plaintiff's injuries based on his failure to enforce such policies. Plaintiff has failed to explain how Defendant Shrader acted with deliberate indifference in his purported failure to act, beyond conclusory assertions that he allegedly allowed his subordinates to act with discretion on COVID-19 policies. Thus, the Court finds that Plaintiff has failed to adequately allege the elements of municipal liability. See Schneider, 717 F.3d at 769.
Accordingly, the Court recommends that Plaintiff's claims be dismissed with prejudice to the extent that they are asserted against Defendant Shrader in his official capacity. See Reynoldson, 907 F.2d at 127.
As the Court has recommended dismissal all of Plaintiff's claims asserted against Defendants Shrader and JCSD, the Court does not address Defendants' argument that the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), bars the relief that Plaintiff requested.
IV. Conclusion
For the reasons stated above, IT IS HEREBY RECOMMENDED that the Motion [#129] be GRANTED. Accordingly, IT IS FURTHER RECOMMENDED that all claims against Defendant JCSD be DISMISSED with prejudice.
IT IS FURTHER RECOMMENDED that all claims against Defendant Shrader in his individual capacity be DISMISSED with prejudice.
IT IS FURTHER RECOMMENDED that all claims against Defendant Shrader in his official capacity be DISMISSED with prejudice.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this 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. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).