Opinion
Civil Action No. 18-cv-01056-PAB-NRN
07-10-2019
NICHOLAS JASON HALL, Plaintiff, v. M.COX, SGT. LEACH, MATT ELBE, Defendants.
RECOMMENDATION ON MOTION TO PARTIALLY DISMISS THE SECOND AMENDED COMPLAINT (#50)
Presently before the Court is Defendants Sgt. Leach and Matt Elbe's Motion to Partially Dismiss the Second Amended Complaint (Dkt. #50), in which Sgt. Leach and Matt Elbe ask the Court to dismiss Plaintiff Nicholas Jason Hall's claims brought against them in their official capacities pursuant to Fed. R. Civ. P. 12(b)(6). Chief Judge Philip A. Brimmer referred the motion to me for recommendation on May 14, 2019. (Dkt. #52.) Having carefully considered the briefing, the record, the discussion at the June 27, 2019 Motions Hearing (see Dkt. #59), and the applicable law, the Court recommends that the motion be granted for the reasons discussed below.
Background
This case is brought by Mr. Hall, who is proceeding pro se, relating to his treatment by staff at the Weld County Jail in Greeley, Colorado. Mr. Hall submitted his pro se Complaint alleging a violation of his civil rights pursuant to 42 U.S.C. § 1983. (Dkt. #1.) Upon review of his Prisoner Complaint by Magistrate Judge Gordon P. Gallagher, Mr. Hall was ordered to file a second amended complaint if he wanted to pursue his claims in this action. (Dkt. #27.) Mr. Hall submitted his Second Amended Complaint on March 1, 2019, (Dkt. #32) in which Mr. Hall states that his right to practice his "sincerely held religious beliefs was violated by Matt Elbe in the month of May 2017." Mr. Hall alleges:
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
I was denied a Qu'ran and was not allowed to observe Ramadan. Since my incarceration at the Weld County Jail I have been denied the opportunity to atten[d] Ju'mah and have been denied access to an Imam. The right to practice my sincerely held religious beliefs is protected by the 1st amendment and the free exercise clause. I was also denied access to halal meals. Matt Elbe is in charge of the issuance of religious material, diets, and clergy.(Dkt. #32 at 6). With respect to Sergeant Leach, Mr. Hall alleges that his
right to be free from cruel and unusual punishment was violated when Sgt. Leach self admittedly struck me about the head, face, neck, and arms over 25 times. This excessive force was unprovoked and not necessary. This occurred in September 2017. My right to be free of cruel and unusual punishment by means of excessive force is protected by the 8th amendment.(Dkt. #32 at 7).
Defendants submitted their Motion to Dismiss on May 14, 2019. (Dkt. #50.) Defendants state that Mr. Hall's Second Amended Complaint is ambiguous as to whether the claims are asserted against them solely in their individual capacity or in both their individual and official capacities, but assume the claims are asserted against them in their official capacities and seek dismissal of the official capacity claims. While Mr. Hall did not file a response specifically in opposition to the Motion to Dismiss, he filed a Motion for Summary Judgment on May 18, 2019 (Dkt. #54) in which he asked the court to deny the Motion to Dismiss.
Defendants responded to Mr. Hall's Motion for Summary Judgment on June 7, 2019. (Dkt. #28). The Court stated during the June 27, 2019 Motions Hearing that the Motion for Summary Judgment would be denied. The Court will address the Motion for Summary Judgment in a separate recommendation. --------
"[A] district court may not grant a motion to dismiss for failure to state a claim merely because [a party] failed to file a response." Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (internal quotation marks and citation omitted). "This is consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Id. at 1177-78. (internal quotation marks and citations omitted). "Consequently, even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted." Id.
Sergeant Leach and Lieutenant Elbe are officers employed by the Weld County Sherriff's Office and seek dismissal of the claims made against each of them in their official capacity. Official capacity claims are, in effect, claims against the individual's governmental employer - in this case, Weld County. Specifically, Lt. Elbe seeks dismissal of the claim asserted against him for an alleged violation of Mr. Hall's right to free exercise of religion under the First Amendment of the United States Constitution, and Sgt. Leach seeks dismissal of the claim against him for alleged use of excessive force in violation of the Fourteenth Amendment of the United States Constitution. Defendants argue dismissal is warranted because Mr. Hall failed to allege in his Second Amended Complaint that any policy or custom of Weld County resulted in his alleged injuries.
Legal Standard
Federal Rule of Civil Procedure 12(b)(6) permits the Court to dismiss for "failure to state a claim upon which relief can be granted." 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, 173 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 Atlantic 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)). "Thus, 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 550 U.S. at 556).
Analysis
A claim against an individual in his official capacity is equivalent to a claim against the governmental entity that employs that individual. Kentucky v. Graham, 473 U.S. 159, 166 (1985). "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Instead, local governing bodies can be sued directly 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." Id. at 690 (footnote omitted). "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.
In order to state a claim for municipal liability under § 1983 for the actions of a municipal employee, a party must allege sufficient facts to demonstrate that it is plausible that: (1) a municipal employee committed a constitutional violation; and (2) a municipal policy or custom was the moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004).
A municipal policy or custom may be (1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotations omitted) (citing Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)). See also Connick v. Thompson, 563 U.S. 51, 61 (2011) ("Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.").
I. Matt Elbe
Defendants argue that Mr. Hall's claim against Mr. Elbe fails to allege a custom or policy existed that resulted in an alleged violation of his right to practice his sincerely held religious beliefs. Mr. Hall specifically alleges:
I was denied a Qu'ran and was not allowed to observe Ramadan. Since my incarceration at the Weld County Jail I have been denied the opportunity to atten[d] Ju'mah and have been denied access to an Imam. The right to practice my sincerely held religious beliefs is protected by the 1st amendment and the free exercise clause. I was also denied access to halal meals. Matt Elbe is in charge of the issuance of religious material, diets, and clergy.(Dkt. #32 at 6.)
The Court finds that Mr. Hall's Second Amended Complaint does not contain any specific facts to state a plausible claim that any custom or policy is responsible for the alleged deprivation of his constitutional rights. While "official policy or custom may be inferred from a complaint's allegations," Starstead v. City of Superior, 533 F. Supp. 1365, 1369 (W.D. Wis. 1982) (citing Powe v. City of Chicago, 664 F.2d 639 (7th Cir. 1981)), courts have done so where a "systematic pattern" suggests a "policy in some form was the motivating force." Id. at 1369-70. Mr. Hall alleges numerous violations of his constitutional right to practice his sincerely held religious beliefs, but the alleged incidents are specific to Mr. Hall and do not indicate a systemic pattern that would suggest there was an underlying policy as the motivating force. See Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008) ("It is necessarily more difficult for a plaintiff to demonstrate an official policy or custom based only on his own experience because what is needed is evidence that there is a true municipal policy at issue, not a random event.") (quotation and citation omitted).
For example, in the Starstead case, the court found that an inference could be drawn that "a municipal policy in some form was the motivating force" behind the plaintiffs' injuries when the plaintiffs alleged a systemic pattern, and "buttressed" their allegation with "claims of five separate incidents involving seven persons." 533 F. Supp at 1369. See also Torres v. Aramark Food, No. 14-CV-7498 (KMK), 2015 WL 9077472, at *11 (S.D.N.Y. Dec. 16, 2015) (finding allegations that a practice was so widespread that it impacted "many, if not all" of the inmates who were exercising the same religious beliefs "plausibly support the inference that a sufficient policy or custom exists").
Mr. Hall's Second Amended Complaint does not contain sufficient allegations that would plausibly support an inference that a policy or custom exists that would deny him his right to practice his sincerely held religious beliefs. Accordingly, the Court must recommend that Mr. Hall's claim against Lt. Elbe in his official capacity be dismissed without prejudice.
The Court notes that during the Motions Hearing on June 27, 2019, Mr. Hall was able to articulate facts not included in his Second Amended Complaint that, if alleged, may have been sufficient to defeat a motion to dismiss. But the Court can only consider allegations made in the operative complaint in evaluating a motion to dismiss. Kearney v. Dimanna, 195 F. App'x 717, 721 n.2 (10th Cir. 2006) (noting that it is "well-established" that a district court is "limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint" in deciding a motion to dismiss). Given that this case is going to proceed with discovery, if facts are elucidated to support an allegation that there was a policy or custom on the part of Weld County, this Court would look favorably on a motion to amend the Second Amended Complaint.
II. Sergeant Leach
Defendants argue that Mr. Hall also fails to allege a policy or custom that resulted in Sgt. Leach's alleged use of excessive force. Mr. Hall alleges Sgt. Leach violated his right to be free from cruel and unusual punishment when
Sgt. Leach self admittedly struck me about the head, face, neck, and arms over 25 times. This excessive force was unprovoked and not necessary. This occurred in September 2017. My right to be free of cruel and unusual punishment by means of excessive force is protected by the 8th amendment.(Dkt. #32 at 7.)
Mr. Hall does not allege any policy or custom at the Weld County Jail gave rise to Sgt. Leach's alleged use of excessive force. Accordingly, the Court must recommend that Mr. Hall's claim against Sgt. Leach in his official capacity be dismissed without prejudice.
Conclusion
For the foregoing reasons, it is RECOMMENDED that Defendants Sgt. Leach's and Matt Elbe's Motion to Partially Dismiss the Second Amended Complaint (Dkt. #50) be GRANTED. To be clear, this decision only recommends dismissal without prejudice Plaintiff's official capacity claims. Claims brought against the Defendants in their individual capacities are proceeding.
IT IS 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). Date: July 10, 2019 /s/_________
N. Reid Neureiter
United State Magistrate Judge