Opinion
Civil Action No. 1:19-cv-02560-RM-SKC
05-04-2020
MARK S. JOHNSON, Plaintiff, v. HOUSING AUTHORITY OF THE CITY AND COUNTY OF DENVER, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DEFENDANT'S MOTION TO DISMISS [#17]
This Recommendation addresses Defendant Housing Authority of the City and County of Denver's ("Defendant") Motion to Dismiss ("Motion"). [#17.] The Motion was referred to the magistrate judge for a recommendation. [#18.] Plaintiff Mark Johnson ("Johnson") filed his Response [#20], which was followed by Defendant's Reply. [#21.] Johnson then filed a Surreply. [#22.] Although a Surreply is not contemplated by the Federal Rules of Civil Procedure and Johnson failed to seek permission to file it, the Court has considered the Surreply, in its discretion. Having carefully reviewed these materials and the applicable law the Court determines that no hearing is necessary. For the following reasons, the Court RECOMMENDS the Motion be GRANTED.
The Court uses "[#___]" to reference docket entries in CM/ECF.
While the Court has accepted this Surreply, the Parties should not expect that future surreplies will be accepted when a party fails to follow correct procedures. The Parties are reminded that they must file a motion requesting permission to file a surreply, and they may then only file a surreply if the motion is granted.
Defendant attached four exhibits to the Motion which the Court did not consider.
A. SUMMARY FOR THE PRO SE PARTY
This Court is recommending that Johnson's claim against Defendant be dismissed without prejudice to re-filing. Upon review of the pleadings in this case, the Court concludes the Amended Complaint [#5] contains insufficient factual allegations to plausibly allege a First Amendment retaliation claim. Primarily, it lacks factual allegations to make a conceivable causal link between Johnson's failure to receive a housing voucher and his prior lawsuit against Goodwill. Therefore, this Court is recommending that the Motion to Dismiss be granted. The parties have 14 days after service of this Recommendation to file specific written objections to the Recommendation with District Judge Moore for his review. Judge Moore will then either partially or fully adopt or reject this Recommendation and issue an order based on his own findings and conclusions. Should Judge Moore adopt this Recommendation, Johnson's claim against the Defendant will be dismissed.
B. FACTUAL BACKGROUND
The factual allegations are viewed in the light most favorable to Johnson. See Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010).
According to the Amended Complaint, Johnson was a plaintiff in a state court civil action against Goodwill Industries of Denver ("Goodwill"), case number 1:18-cv-01170. [#5 at p.6.] In that case he alleged claims of discrimination and civil rights violations, and reached a settlement in about March 2019. [Id.] Since that settlement, Johnson has "suffered physical harm, threats of physical harm, stalking, theft of property, and denial of services" because he sued and settled with Goodwill. [ See generally id.]
Johnson is homeless. [Id.] His homelessness "intensifies the possibility of severe harm or even death" from those he alleges have harmed, or threatened to harm him, because of his prior lawsuit against Goodwill. [Id.] In an effort to protect himself from these threats, Johnson wanted to obtain housing assistance from Defendant and the HUD program it administers. [#5 at p.7.] The Amended Complaint appears to allege that housing would ensure Johnson protection from the threats of harm he has faced over his previous lawsuit against Goodwill. [See generally #5.]
The Amended Complaint implies, without specifically alleging, that Johnson applied for a HUD housing voucher in a lottery Defendant held on September 19 and 20, 2019. [#5 at p.7.] Whether or not he applied, it alleges Johnson did not receive a housing voucher. [Id.] It also alleges that HUD supplies "protective services vouchers" outside of those provided through the lottery, and that Defendant has not provided Johnson with one of these either. [Id.]
See, infra, n.5.
Where the form Amended Complaint requires Johnson to list the specific federal statutes at issue in this case, Johnson typed: "U.S. Constitution and 42-USC-1983 (non-prisoner)[;] Indifference to my rights to be secure in my person by a race, color, or gender." [#5 at p.3.] His one and only claim for relief is for "PETITION THIS COURT FOR: FEDERAL RETALIATION FOR FILING A CIVIL RIGHTS CLIAM (sic) in the state of Colorado known a (sic) 18-cv-1170 GAL BY A RACE, COLOR, OR GENDER." [#5 at p.4 (emphasis in original).] Therefore, the Court construes the Amended Complaint as raising a § 1983 claim for unlawful retaliation, alleging that Defendant refused to provide Johnson with a housing or protective services voucher because he exercised his right of access to the courts by suing Goodwill.
C. STANDARD OF REVIEW
1. Rule 12(b)(6)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See 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, 1124-25 (10th Cir. 2010) (internal citations omitted). The Court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. Facts that are "merely consistent" with a defendant's liability are insufficient. Id. "[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
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). Nevertheless, the standard remains a liberal one, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely." Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
2. Pro Se Parties
The Court acknowledges that Johnson is not an attorney. Consequently, his pleadings and other papers are construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[I]f the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id.
But the Court cannot act as a pro se litigant's advocate. Id. It is the pro se plaintiff's responsibility to provide a simple and concise statement of their claims and the specific conduct that gives rise to them See Willis v. MCI Telecomms., 3 F. Supp. 2d 673, 675 (E.D.N.C. 1998). The Court may not "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting matters that were not pleaded. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). At the end of the day, pro se plaintiffs must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
D. ANALYSIS
Johnson alleges Defendant has not provided him housing vouchers in retaliation for his prior lawsuit against Goodwill. Defendant argues the Amended Complaint should be dismissed under Fed. R. Civ. P. 12(b)(6) because Johnson fails to state sufficient facts to establish a plausible retaliation claim.
In order to plausibly allege a § 1983 retaliation claim, a plaintiff must allege sufficient facts addressing the following elements: (1) the plaintiff was engaged in constitutionally protected activity; (2) the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct. Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007); see Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). The court may decide the chilling effect element as a matter of law. Wade v. Smith, No. 16-cv-1883-WJM-GPG, 2018 WL 4565566, at *5 (D. Colo. Sept. 21, 2018).
The Amended Complaint contains sufficient facts to plausibly allege the first element. It plainly alleges that Johnson accessed the state courts by suing Goodwill and reaching a settlement of that lawsuit. These are sufficient facts to demonstrate that Johnson engaged in constitutionally protected activity. See Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057 (9th Cir. 2014) ("[T]he right of access to the courts is a fundamental right protected by the Constitution.") (internal quotes omitted).
But the Amended Complaint fails to allege sufficient facts to plausibly establish the second and third elements of the claim—that Defendant's actions caused Johnson to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and that Defendant's adverse action was substantially motivated as a response to Johnson's exercise of constitutionally protected conduct.
The Amended Complaint does not allege Johnson applied for a voucher, whether through the lottery or through the protected-services option. Even when liberally construed, the Amended Complaint fails in this regard. [See generally #5.] It simply alleges Johnson hasn't been supplied with a voucher. [#5 ay p. 7.]
In his Response, Johnson suggests he did apply for a voucher at least through the September 2019 lottery. But it is improper for the Court to consider facts not alleged in the operative complaint. Stouffer v. Nat'l Geographic Partners, LLC, 400 F. Supp. 3d 1161, 1187 (D. Colo. 2019) ("[O]ne cannot defend against a motion to dismiss with facts not alleged in the complaint."); Bingaman v. Torrez, No. 12-CV-00400-WJM-CBS, 2012 WL 6762218, at *9 (D. Colo. Nov. 5, 2012) ("Allegations that do not appear in the pleadings cannot be raised for the first time in a response to a motion to dismiss.") (citations omitted), report and recommendation adopted, No. 12-CV-0400-WJM-CBS, 2013 WL 50428 (D. Colo. Jan. 3, 2013); Coleman v. Sentinel Transp., LLC, No. H-09-1510, 2009 WL 3834438, at *6 n.4 (S.D. Tex. Nov. 16, 2009) (noting that while plaintiff's response provided additional factual context for his claims, "[b]ecause those facts are not alleged in the complaint, they are not properly considered in deciding a Rule 12(b)(6) motion challenging the sufficiency of the pleadings"). --------
Further, in his Response to the Motion, Johnson seems to equate the threats of harm he's faced over his Goodwill lawsuit to a witness who qualifies for protection under the federal Witness Security Program (WSA), 18 U.S.C. § 3521; he views a housing voucher as necessary for his protection in the same way the WSA affords protection to witnesses facing risks of harm. [See generally #20.] But without even alleging he applied for these vouchers, the Amended Complaint fails to plausibly allege that Defendant's actions (or omissions) in failing to provide him a housing voucher would chill a person of ordinary firmness from filing lawsuits—the second element.
Nevertheless, even assuming the Amended Complaint contained sufficient facts to plausibly allege the second element of Johnson's claim, it still fails to allege how Defendant's failure to provide him a housing voucher was substantially motivated by his prior lawsuit against Goodwill. The Amended Complaint alleges no facts to establish Defendant even knew about Johnson's prior lawsuit against Goodwill, thus demonstrating the wholly conclusory nature of the allegations in the Amended Complaint. For example, the Amended Complaint does not identify any individual actors employed by Defendant who denied him vouchers, let alone who did so with the knowledge and motivation of his prior lawsuit against Goodwill. In this regard, the allegations in the Amended Complaint are wholly conclusory, speculative, and they lack specific factual allegations to push the claim "across the line from the conceivable to the plausible in order to survive a motion to dismiss." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal quotations and citation omitted). Absent supporting allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
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For the above reasons, the Court RECOMMENDS that the Motion be GRANTED. [#17.] Because it is not clear that amendment would be futile, the Court FURTHER RECOMMENDS that dismissal be without prejudice and that Johnson be given a deadline and leave to file an amended complaint. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) ("A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.").
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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). DATED: May 4, 2020
BY THE COURT
/s/_________
S. Kato Crews
U.S. Magistrate Judge