Opinion
Civil Action 1:23-cv-01194-SKC-SBP
03-26-2024
JEAN-JOSEPH LECHIFFRE, Plaintiff, v. CY GILLESPIE, JEFF KRAMER, f/n/u WHEELER, f/n/u DODGE, f/n/u RILEY, and MICHAEL J. ALLEN, Defendants.
RECOMMENDATION ON DEFENDANTS' PARTIAL MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND
Susan Prose, United States Magistrate Judge
This matter comes before the court on the motion to dismiss the complaint of pro se Plaintiff Jean-Joseph LeChiffre. ECF No. 25. Also before the court is Plaintiff's motion to amend the complaint. ECF No. 32. The undersigned Magistrate Judge considers these motions pursuant to 28 U.S.C. § 636(b) and the memoranda referring them. ECF Nos. 29, 33. For the following reasons, the court RECOMMENDS that the motion to dismiss be granted and the motion to amend be denied. The court also sua sponte RECOMMENDS that the entire case (including the claims against Ms. Riley) be dismissed under the Younger abstention doctrine and Heck v. Humphrey, 512 U.S. 477 (1994).
Defendant Riley does not join the motion to dismiss. For clarity, the court refers to all Defendants who join the motion to dismiss as “Movants.” When the court refers to “Defendants,” that term includes Ms. Riley.
I. Background
A. Facts
Plaintiff, who is currently incarcerated in the Colorado Territorial Correctional Facility, initiated this action on May 11, 2023, raising claims alleging unconstitutional conditions of confinement when he was a pretrial detainee in the El Paso County Criminal Justice Center (“CJC”). ECF No. 1 (“Complaint” or “Complt.”). He was given leave to proceed in forma pauperis. ECF No. 4.
Plaintiff alleges that the El Paso County Sheriff's Office has custody and control of the CJC. Five of the Defendants were officers at the CJC: Cy Gillespie and Jeff Kramer were Commanders (although Mr. Kramer is identified in the motion to dismiss as “Undersheriff”), Defendant Wheeler was a Lieutenant, Defendant Dodge was a Sergeant, and Defendant Riley was a Deputy. The sixth Defendant, Michael J. Allen, was the District Attorney who prosecuted Plaintiff in his underlying criminal case. Complt. at 3. Plaintiff sues all Defendants in both their individual and official capacities.
According to Plaintiff's allegations here, the underlying criminal charges against him included first-degree murder. Id. at 18 ¶ 120. This court takes judicial notice that Plaintiff's underlying criminal case was People v. LeChiffre, Case No. 2020CR004790 in the El Paso County District Court. A jury convicted Plaintiff on June 6, 2022. Plaintiff's direct appeal from his conviction is pending in the Colorado Court of Appeals, captioned as People v. LeChiffre, Case No. 2022CA1270. Plaintiff is represented in his appeal by the public defender's office.
The court may take judicial notice of filings in related cases, “both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). And the court also may take judicial notice of undisputed court documents and matters of public record as facts “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219 n.2 (10th Cir. 2011) (citation omitted) (noting that under Federal Rule of Evidence 201, judicial notice may be taken “whether requested or not,” and “at any stage of the proceeding”).
Plaintiff alleges that during the entire period in which he was a pretrial detainee in the CJC-from August 28, 2020, until June 3, 2022 (Complt. at 5)-Defendants carried out “policies and procedures” of torture and other cruel, inhumane, and degrading treatment, “designed to punish pretrial detainees, break down pretrial detainees, and to deprive those who have not accepted a plea, or who are contesting the charges, of a healthy body and mind, and in so doing, foster . . . incompetency to assist in the defense of their [criminal] cases.” Id. at 23-25. Plaintiff alleges such conduct with respect to housing, “Lock-Downs,” outdoor exercise restrictions, mental health care, medical care, sleep deprivation, commissary, and visitation. Id. He further alleges that he was deprived of practicing his faith. Id. at 22. He contends that, collectively, Defendants Gillespie, Kramer, Wheeler, Dodge, and Riley carried out these practices at the behest of, or with the authorization and condoning of, District Attorney Allen.
Plaintiff points to alleged comments made by Defendants and other staff at the CJC, incidents of other inmates beating or raping Plaintiff due to false rumors that deputies spread, and the failure of the staff to do anything about those incidents after Plaintiff reported them-all of which caused Plaintiff to suffer from suicidal ideation every day. The allegations concerning many of the comments are made upon “information and belief” and are based on discussions Plaintiff had with former inmates at the CJC. Plaintiff further asserts that Defendants, collectively, discouraged him from seeking mental health care. He alleges the District Attorney encouraged or condoned all of this conduct to pressure Plaintiff to plead guilty.
The only Defendants against whom Plaintiff pleads specific, non-collective allegations are Deputy Riley and Lieutenant Wheeler. Plaintiff alleges that Ms. Riley sexually assaulted him while conducting a COVID-19 temperature check and that he suffered retaliation from staff after he filed a Prison Rape Elimination Act report about the sexual assault. Id. at 18-20. As to Lieutenant Wheeler, Plaintiff alleges that this Defendant confiscated Plaintiff's “identity document,” which prevented him from receiving his diabetes medication; this in turn caused Plaintiff to become dizzy, fall and hit his head; and hitting his head resulted in a detached retina and hearing loss Id. at 21-22. Plaintiff asserts that because of the “policies and procedures” and rules and regulations created or enforced by Defendants, Plaintiff “lived in constant fear of increased torture, and/or other cruel, inhumane, degrading treatment” (id. at 22 ¶ 156) and was “fully incompetent to assist his counsel in his defense and incompetent to avail himself of the rights afforded to defendant by the U.S. Constitution, including the effective assistance of counsel.” Id. at 22-23 ¶ 158 (original emphasis omitted).
B. Motions
The Complaint raises three claims. The first is brought under the United Nations Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment. Complt. at 4 (citing “23 I.L.M. 1027 (1984) (2014)”). His second claim alleges violations of his Eighth Amendment right to be free from cruel and unusual punishment, applicable to him as a pretrial detainee through the Fourteenth Amendment. Id. His third claim asserts a conspiracy to deprive him of his Eighth Amendment rights and equal protection under the law pursuant to 42 U.S.C. § 1985(3). On July 18, 2023, Movants filed their motion to dismiss all claims against them. ECF No. 25. After granting Plaintiff an extension of time, Plaintiff responded to the motion to dismiss on October 16, 2023. ECF No. 35. Movants replied. ECF No. 37.
A month before Plaintiff responded to the motion to dismiss, he moved for leave to file a first amended complaint (the “Proposed FAC”). ECF No. 32 (motion to amend); ECF No. 32-2 (Proposed FAC). Plaintiff describes the proposed amendments as presenting facts from repressed memories which he claims to have recalled through therapy after filing the operative Complaint. ECF No. 32 at 3; Proposed FAC at 4. The changes that Plaintiff proposes to make include new allegations that Defendants conspired with Plaintiff's brother, Mark Anthony Sandoval, a former Colorado Springs Police Department officer, and Plaintiff's sister-in-law, Donja Sandoval, a dispatcher for the Sheriff's Office. Proposed FAC at 5. The Proposed FAC would add details concerning the alleged sexual assault by Ms. Riley; thirty-nine new unidentified “John Doe” defendants; and claims under the First and Sixth Amendments against all Defendants. Id. at 1, 3, and passim. Plaintiff also makes new allegations about his competency. In the pending Complaint, he asserts that his competency was restored on October 22, 2022, Complt. at 4 § 3, but in the Proposed FAC, he claims that his competency was only “partially restored” on that date, id. at 26-emphasizing his continued intention to challenge the validity of his state conviction and the integrity of the ongoing criminal proceedings at the state level.
Defendants oppose the motion to amend. ECF No. 34. Plaintiff filed a reply. ECF No. 42.
II. Legal Standards
A. Motions to Amend Pleadings
In this case, the court has not yet entered a scheduling order establishing a deadline for amending pleadings. Accordingly, the standard for evaluating Plaintiff's motion to amend is set forth in Federal Rule of Civil Procedure 15(a). Under that Rule, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Whether to allow an amendment rests in the court's discretion. Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1217 (10th Cir. 2022), cert. denied sub nom. San Juan Cnty. v. Chilcoat, 143 S.Ct. 1748 (2023). The court exercises that discretion in accord with the Supreme Court's long-standing guidance:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be “freely given.”Foman v. Davis, 371 U.S. 178, 182 (1962); see also, e.g., Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1101-02 (10th Cir. 2019) (same). Cf. Crocs, Inc. v. Joybees, Inc., No. 21-cv-02859-GPG-SBP, 2023 WL 8851822, at *5 (D. Colo. Oct. 6, 2023) (“Hence, grounds for denying a motion to amend after the scheduling order deadline include a lack of diligence (lack of good cause), undue delay, bad faith, dilatory motive, repeated failure to cure, and undue prejudice.”). “The party contesting the motion to amend has the burden of proving that the amendment should be refused on one of these bases.” Openwater Safety IV, LLC v. Great Lakes Ins. SE, 435 F.Supp.3d 1142, 1151 (D. Colo. 2020) (citation omitted).
With respect to the question of futility specifically, amendment is futile “if the complaint, as amended, would be subject to dismissal.” Jefferson Cnty. Sch. Dist. v. Moody's Invs. Servs., 175 F.3d 848, 859 (10th Cir. 1999). While “[d]enying a motion to amend based on futility is uncommon in this District and usually involves claims that are facially unsupported in the proposed amendment,” Crocs, 2023 WL 8851822, at *8, dismissal is appropriate if an amended pleading is devoid of factual support for the proposed amended claims. See Tatten v. Bank of Am. Corp., 912 F.Supp.2d 1032, 1044 (D. Colo. 2012) (finding a pro se plaintiff's proposed amendment to bring tort claims against Bank of America's chief executive officer futile because “[t]here is absolutely no factual support for the proposition that Defendant Moynihan ‘approved of, sanctioned, directed, actively participated in, or cooperated in' any of the alleged wrongdoing”)).
B. Federal Rule of Civil Procedure 12(b)(1)
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), rendering them “duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring).
Federal Rule of Civil Procedure 12(b)(1) authorizes the dismissal of a complaint for lack of subject matter jurisdiction. Here, Defendant Allen raises the jurisdictional defense of Eleventh Amendment immunity, but this court has an independent obligation to determine whether subject matter jurisdiction exists as to every claim raised in the case, even in the absence of a specific challenge from the parties. Image Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). The burden of establishing jurisdiction always rests with the party asserting jurisdiction-here, Plaintiff. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
C. Federal Rule of Civil Procedure 12(b)(6)
“To survive a [Rule 12(b)(6)] 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.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). “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). In making this determination, the “court accepts as true all well pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
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.” BellAtl. 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 Rule 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.” Iqbal, 556 U.S. at 678; 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 claims “across the line from conceivable to plausible”).
D. Pro Se Litigants
Pro se filings are afforded liberal construction under Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as Plaintiff's advocate, Hall, 935 F.2d at 1110, and applies the same procedural rules and substantive law to him as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); see also Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (“Pro se status ‘does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.'”) (citation omitted).
Plaintiff claims to be a graduate of the Boston University School of Law and to have been “appointed by United States Attorney General Janet Reno to serve the United States Department of Justice as an ‘Assistant District Counsel' for the United States DHS,” Complt. at 5-the latter allegation a wholly fanciful one, as Ms. Reno served as Attorney General under President Clinton long before the Department of Homeland Security was created in November 2002. Creation of the Department of Homeland Security | Homeland Security (dhs.gov). Plaintiff does not allege that he is licensed as a lawyer, or if so, in what jurisdiction. He is not a member of this court's bar, and the website of the Colorado Attorney Regulation Counsel does not identify him (by either his current or former name: Patrick Joseph Sandoval, see Complt. at 2) as ever having been licensed in Colorado. See Attorney Regulation Counsel (coloradosupremecourt.com), last visited March 24, 2024. Irrespective of the suggestion that Plaintiff may be an attorney, the court construes his pleadings liberally and holds them to the less-stringent standard afforded to pro se litigants. See, e.g., Hattrup v. Deng, 433 F.Supp.3d 1246, 1251 (D. Kan. 2020), aff'd sub nom. Hattrup v. United States, 845 Fed.Appx. 733 (10th Cir. 2021) (citing, inter alia, Conrad v. Educ. Res. Inst, No. 06-cv-00001-WDM-BNB, 2006 WL 3694856, at *2 n.1 (D. Colo. Dec. 13, 2006)).
III. Analysis
A. Lack of Subject Matter Jurisdiction: Younger and the Eleventh Amendment
The court begins, as it must, by determining whether it has subject matter jurisdiction. See Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 542, 544 n.5, 555 (10th Cir. 2016) (remanding case to district court to dismiss for lack of jurisdiction where district court proceeded to assess the merits of a case based on “some generous assumptions” about jurisdiction, and emphasizing that a ruling based on incorrect assumptions about jurisdiction “is no ruling at all”). See also Rivers v. Colorado, No. 22-cv-2922-WJM-STV, 2023 WL 5310145, at *4 (D. Colo. Aug. 17, 2023), appeal pending (overruling objection to magistrate judge's sua sponte recommendation to dismiss for lack of subject matter jurisdiction).
While Movants did not argue Younger abstention and Ms. Riley did not join in the motion to dismiss, the court is nevertheless obliged to independently verify its jurisdiction. Moreover, it is well-established that “[a] district court may dismiss a case sua sponte under Federal Rule Civil Procedure 12(b) when it is patently obvious that the plaintiff could not prevail on the facts alleged.” Andrews v. Heaton, 483 F.3d 1070, 1074 n.2 (10th Cir. 2007). Here, it is clear that Younger bars Plaintiff's claims against Movants and Ms. Riley as well.
“Absent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings under Younger v. Harris .” Hodson v. Reams, 823 Fed.Appx. 659, 660 n.2 (10th Cir. 2020) (citing Younger, 401 U.S. 37, 91 (1971)). Younger abstention is a jurisdictional issue. See D.L. v. UnifiedSch. Dist. No. 497, 392 F.3d 12223, 1228 (10th Cir. 2004) (“Younger abstention is jurisdictional”). “Younger abstention applies when ‘(1) there is an ongoing criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests.'” Id. (quoting Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Com., 240 F.3d 871, 875 (10th Cir. 2001)). “Once these conditions are met, Younger abstention is non-discretionary” and “a district court is required to abstain.” Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1215 (10th Cir. 2003). Here, the Younger requirements are readily satisfied.
Although the Tenth Circuit recently has observed that it is unclear whether Younger abstention implicates a federal court's subject matter jurisdiction, see Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 523 n.32 (10th Cir. 2023), until the Supreme Court or the Tenth Circuit en banc decides otherwise, this court remains bound to follow the Tenth Circuit's prior holding that Younger is a jurisdictional issue. See Peters v. United States, No. 23-cv-03014-NYW-SKC, 2024 WL 83333, at *4 (D. Colo. Jan. 8, 2024) (“this Court is unaware of any Supreme Court or en banc decision of the Tenth Circuit that expressly overrules D.L., and thus, this court is bound by it”), appeal pending.
First, there unquestionably were ongoing state court proceedings when Plaintiff filed this lawsuit, and those proceedings continue to this day. As noted above, Plaintiff's direct appeal from his conviction is pending. Next, the state court provides an adequate forum for him to raise his claims. See Goings v. Sumner Cnty. Dist. Attorney's Office, 571 Fed.Appx. 634, 638 (10th Cir. 2014) (“The focus for this prong of Younger is whether the claims could have been raised in the pending state proceedings.”) (quoting J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1292 (10th Cir. 1999) (cleaned up, emphasis in original). Plaintiff is represented by counsel in the direct appeal of his state conviction, and this court discerns no reason-nor does Plaintiff articulate one-why he could not raise in the state forum the claim that Defendants deliberately caused him to be incompetent to assist in his defense against the criminal charges. The third condition is easily met as well. The State of Colorado “has a vital interest in prosecuting individuals believed to have committed crimes against other persons”-including Plaintiff's crime of murder. See Goings, 571 Fed.Appx. at 638; see also Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir. 2006) (recognizing the “strong interest” of states in enforcing their criminal laws and other statutes).
Plaintiff's allegations also do not allow this court to conclude that his claims fall within the extremely limited exceptions to Younger, which provide a “‘very narrow gate for federal intervention.'” Phelps v. Hamilton, 59 F.3d 1048, 1064 (10th Cir. 1995) (quoting Arkebauer v. Kiley, 985 F.2d 1351, 1358 (7th Cir. 1993)). Federal courts may “enjoin a pending state criminal prosecution provided that the prosecution was (1) commenced in bad faith or to harass; (2) based on a flagrantly and patently unconstitutional statute; or (3) related to any other such extraordinary circumstance creating a threat of irreparable injury both great and immediate.” Peters, 2024 WL 83333, at *4 (citing Phelps, 59 F.3d at 1064); see also Perez v. Ledesma, 401 U.S. 82, 85 (1970) (in a companion case to Younger, recognizing that a federal plaintiff may overcome the presumption of abstention “in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown”). Plaintiff alleges no facts that would support any of these exceptions and thus has failed to meet his “heavy burden of proof in order to overcome the bar of Younger abstention.” Phelps, 59 F.3d at 1066.
Fundamentally, each of Plaintiffs claims in this action rests on the contention that Defendants' purportedly unlawful conduct rendered him incompetent to assist in his criminal defense, which directly implicates issues within the purview of the state court proceeding. Younger thus requires this court's abstention over Plaintiffs claims. This includes his claims against Deputy Riley and Lieutenant Wheeler. Plaintiff contends that the alleged sexual assault by Riley, and Wheeler's confiscation of Plaintiffs “identity document,” were part of their subjecting him to degrading and inhumane conduct and “policies and procedures” deliberately designed to make Plaintiff incompetent to assist in his criminal defense. Complt. at 22-23 ¶ 158. Thus do all of Plaintiffs claims raise a challenge to his ongoing state criminal prosecution.
Therefore, the court RECOMMENDS finding that the Younger abstention doctrine precludes this court from addressing any of Plaintiff's claim for relief and, accordingly, that the motion to dismiss be granted and the Complaint be dismissed in its entirety against all Defendants-including Ms. Riley-for lack of jurisdiction, without prejudice. See Goings, 571 Fed.Appx. at 639-40 (stating that dismissal based on Younger abstention should be without prejudice).
Likewise would Younger compel this court to abstain from deciding any of the claims in the Proposed FAC. Plaintiff does not seek to add any new allegations that would alter the conclusion that the essential purpose of each and every one of his claims, against every Defendant, is to mount a federal challenge to his ongoing state criminal proceedings in a manner that would deprive the State of Colorado of its “strong interest” in enforcing its own criminal laws. See Aid for Women, 441 F.3d at 1119. Indeed, Plaintiff's intention to directly challenge his ongoing state criminal proceeding-by means of federal claims against a state prosecutor and law enforcement personnel-is even more explicitly revealed in his proposal to add a Sixth Amendment claim. Proposed FAC at 26 ¶ 254 (asserting that, in connection with his “‘pre-trial readiness hearing' and trial,” Plaintiff was deprived of the right to “the right to a public trial, and the right to effective assistance of counsel”).
Because subject matter jurisdiction over the claims in the Proposed FAC would be lacking pursuant to Younger, this court RECOMMENDS that the motion to amend be denied as futile. See, e.g., Hutchinson v. Pfeil, 211 F.3d 515, 522-23 (10th Cir. 2000) (affirming denial of motion to amend as futile where proposed claims were subject to dismissal for lack of jurisdiction); Harsay v. Luckert, No. 22-3182, 2023 WL 5012095, at *3 (10th Cir. Aug. 7, 2023) (finding that district court did not err in concluding that amendment would be futile where the Rooker-Feldman doctrine would have required dismissal of the proposed amended complaint for lack of subject matter jurisdiction).
In light of this conclusion, the court does not reach Defendants' argument that Plaintiff seeks to amend in bad faith.
2. Eleventh Amendment Immunity for District Attorney Allen
The Eleventh Amendment operates as another jurisdictional bar: specifically, to the claims against District Attorney Allen in his official capacity.
The Eleventh Amendment bars a suit for damages in federal court against a state, its agencies, and its officers acting in their official capacities. Kentucky v. Graham, 473 U.S. 159, 166 (1985). That immunity extends to district attorney's offices, which are extensions of the state. Rozek v. Topolnicki, 865 F.2d 1154, 1158 (10th Cir. 1989) (holding that Eleventh Amendment immunity extends to the Office of the District Attorney in Colorado). And it is well-established that Defendant Allen himself “is entitled to Eleventh Amendment immunity from suits against him in his official capacity.” Colorado Springs Fellowship Church v. City of Colorado Springs, No. 21-cv-1368-WJM-MEH, 2022 WL 344895, at *5 (D. Colo. Feb. 4, 2022) (holding that official-capacity claims against Michael J. Allen, the same District Attorney sued here, were barred by the Eleventh Amendment) (citing Romero v. Boulder Cnty. DA's Office, 87 Fed.Appx. 696, 698 (10th Cir. 2004); Carbajal v. McCann, 808 Fed.Appx. 620, 638 (10th Cir. 2020) (“The claims against [Denver] District Attorney McCann in her official capacity are . . . barred by the Eleventh Amendment.”)).
For this reason, too, the court RECOMMENDS that Plaintiff's official-capacity claims against Allen be dismissed without prejudice for lack of jurisdiction. See Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017) (“Because Eleventh Amendment immunity is jurisdictional, th[e] dismissal should [be] without prejudice.”).
B. Another Threshold Bar: Heck v. Humphrey
Because Plaintiff's state court conviction still stands, Heckv. Humphrey, 512 U.S. 477 (1994), requires dismissal of his claims against all Defendants, including Ms. Riley.
Movants did not raise the Heck bar, but the court takes up that threshold issue sua sponte. See Marshall v. Lombardi, 558 Fed.Appx. 838, 839-40 (10th Cir. 2014) (affirming dismissal of district court's sua sponte dismissal of complaint without prejudice under Heck); Baldauf v. Hyatt, 120 Fed.Appx. 288, 289 (10th Cir. 2005) (recognizing Heck as a “threshold issue”). See also Andrews, 483 F.3d at 1074 n.2.
Heck “prohibits a plaintiff from attacking the validity of a criminal conviction under 42 U.S.C. § 1983 unless that conviction has been ‘reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.'” Butler v. Butierres, 58 Fed.Appx. 458, 459 (10th Cir. 2003) (quoting Heck, 512 U.S. at 486-87) see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (civil rights action “is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the plaintiff's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration”).
In evaluating whether a claim is barred by Heck, the court must consider “whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 486-87. “The starting point for the application of Heck then is the existence of an underlying conviction or sentence that is tied to the conduct alleged in the § 1983 action. In other words, a § 1983 action implicates Heck only as it relates to the conviction that it would be directly invalidating.” Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007).
Here, Plaintiff asserts that all of Defendants' allegedly unconstitutional conduct was intended to-and purportedly did-render him incompetent to assist with his criminal defense, and so a victory on any of the claims in this matter necessarily would imply the invalidity of his state conviction-a conviction that still stands and that is subject to a pending appeal in the Colorado Court of Appeals. This court accordingly RECOMMENDS that the motion to dismiss be granted and the claims against all Defendants be dismissed without prejudice under Heck,and that the motion to amend be denied as futile for the same reason.
The Tenth Circuit has indicated that the Heck bar is not a jurisdictional doctrine, see, e.g., Johnson v. Spencer, 950 F.3d 680, 697 (10th Cir. 2020), but that “even if a Heck-based dismissal is entered by a district court pursuant to Fed.R.Civ.P. 12(b)(6) it must be a without-prejudice dismissal.” Graff, 65 F.4th at 520 n.28 (citation omitted).
C. Failure to State a Claim
These threshold defects require dismissal of all claims against all Defendants. Nevertheless, for the sake of thoroughness in this recommendation, the court considers Movants' remaining arguments that dismissal is required under Rule 12(b)(6). All Movants have invoked qualified immunity, and District Attorney Allen separately asserts entitlement to absolute prosecutorial immunity on the claims brought against him in his individual capacity. For the reasons that follow, the court agrees that Movants are entitled to immunity.
1. Qualified Immunity for Movants
a. Legal Principles
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation marks omitted). “The record must clearly demonstrate the plaintiff has satisfied [this] heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.'” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (quotingMedina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). The court has “discretion to decide the order in which to engage the two prongs of the qualified immunity standard.” Andersen v. DelCore, 79 F.4th 1153, 1163 (10th Cir. 2023) (cleaned up). If the court determines that the plaintiff has not met his burden as to either part of the inquiry, the court “must grant qualified immunity to the defendant.” Id.
An official's conduct violates clearly established law when, at the time of the challenged conduct, “the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” al-Kidd, 563 U.S. at 741 (cleaned up) (emphasis added). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotingMalley v. Briggs, 475 U.S. 335, 341 (1986)). For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision “on point,” or the “weight of authority from other courts must have found the law to be as the plaintiff maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (quotation omitted).
b. Has Plaintiff Alleged a Constitutional Violation?
As noted above, Plaintiff claims violations of his Eighth Amendment right to be free from cruel and unusual punishment, and he further alleges a “conspiracy” to deprive him of his Eighth Amendment rights and equal protection under the law pursuant to 42 U.S.C. § 1985(3). Movants invoke qualified immunity, arguing that Plaintiff has failed to plausibly allege their personal participation in any constitutional injury. ECF No. 25 at 4-10.
“To recover damages from each of multiple Defendants under § 1983, Plaintiff had to show that such Defendant personally participated in the alleged constitutional violation.” Shrum v. Cooke, 60 F.4th 1304, 1312 (10th Cir. 2023) (cleaned up). “Personal participation is an essential element of a Bivens claim.” Hill v. Matevousian, No. 20-cv-03658-CNS-MDB, 2023 WL 2018901, at *5 (D. Colo. Feb. 15, 2023), report and recommendation adopted, 2023 WL 2446218 (D. Colo. Mar. 10, 2023) (citing Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013), and Menteer v. Applebee, 196 Fed.Appx. 624, 627 (10th Cir. 2006) (affirming dismissal of Bivens claims against federal officials in their individual capacities for failure to allege personal participation)). The same is true of § 1983 claims. See e.g., Pahls, 718 F.3d at 1227 (recognizing that “although the requirement of personal participation, including the question of supervisory liability, is a component of liability under § 1983 and Bivens, ” it is also incorporated “into our qualified-immunity analysis, where we ask whether a clearly established constitutional right has been violated”).
Collective allegations against Movants. Plaintiff employs a scattershot method of pleading, grouping Movants together in an attempt to allege their personal involvement in a constitutional violation. He raises no less than twenty-one collective allegations against the group, asserting that he suffered constitutional deprivations because of “policies and procedures” or “rules and regulation created and/or enforced by Defendants, Gillespie, Kramer, Wheeler, Dodge, and Riley and condoned by Defendant Allen” (Complt. ¶¶ 118, 119, 155, 158, 161, 162170), or that “Defendants Gillespie, Kramer, Wheeler, Riley, Allen . . . conspired between and amongst each other” (id. ¶¶ 186-193). See also id. ¶¶ 52-66 (allegations labeled “Defendants (including Doe Defendants) - Collectively”) (emphasis added).
Even liberally construed, these allegations are insufficient to establish personal participation in a constitutional violation. Indeed, the allegations are essentially meaningless, undifferentiated among Movants as they are and without supporting facts plausibly showing what actions each Movant took with regard to the unidentified and undefined policies, procedures, rules, and regulations, or the manner in which each Movant personally acted to advance any “conspiracy.” Put simply, Plaintiff's pleading fails to “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.” Robbins, 519 F.3d at 1249-50 (emphasis in original); cf. Iqbal, 556 U.S. at 678 (to survive a motion to dismiss, a pleading must contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).
The Complaint is equally without facts plausibly suggesting that the alleged conspiracy was motivated by racial- or class-based animus, as required to state a viable claim under § 1985(3). See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (recognizing that § 1985(3) only applies to conspiracies motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus”) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
Neither do Plaintiff's allegations suffice to plausibly allege a claim against any Defendant based on their supervisory roles, assuming that is his intention. “[T]here is no concept of strict supervisor liability under [§] 1983,” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996), nor does § 1983 create a cause of action against government officials or municipalities based on a respondeat superior theory. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978); see also Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior”) (collecting cases). Still, “in situations where an ‘affirmative link' exists between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise, the supervisor may be personally liable.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (quoting Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993)) (cleaned up).
Construing Plaintiff's allegations as attempting to show supervisory liability, he fails to link any Movant with actions plausibly showing a constitutional violation. He has not pleaded facts plausibly indicating how any Movant promulgated, created, implemented, or utilized a policy that caused a deprivation of his rights. See Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). Neither has he pleaded any facts allowing this court reasonably to infer the existence of the “‘requisite causal connection'”-i.e., that any Movant “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights”-or that any Movant “acted knowingly or with ‘deliberate indifference' that a constitutional violation would occur.” Id. (cleaned up).
To the extent a few allegations in the Complaint seek to attribute specific words or actions to a particular Movant, those allegations do not plausibly establish a violation of Plaintiff's constitutional rights:
Gillespie, Kramer, and Dodge. Commander Gillespie is alleged to have said that the District Attorney “counts on us to keep these guys from going to trial,” Complt. ¶ 49, but that comment shows no action taken by Gillespie that is linked to any of Plaintiff's claims. Plaintiff also alleges that Gillespie “intentionally deprived” him of religious items, id. ¶ 99, but that conclusory statement is unsupported by any facts indicating how Gillespie, personally, did this. Similarly conclusory are Plaintiff's allegations concerning Undersheriff Kramer and Sergeant Dodge, to whom Plaintiff attributes some negative comments that Plaintiff finds offensive. Id. ¶¶ 51-52, 57-62. But Plaintiff has not alleged any connection between these stray comments (assuming, of course, that the officials actually said these things) and any deprivation of Plaintiff's constitutional rights.
Wheeler. Plaintiff asserts that Lieutenant Wheeler confiscated Plaintiff's “identity document,” allegedly resulting in Plaintiff being unable to obtain his diabetes medication and ultimately leading to his falling and hitting his head. Complt. ¶¶ 151-152. It is unclear from Plaintiff's pleading what this “identity document” was or why Lieutenant Wheeler took it from him. Regardless, Plaintiff's sparse allegations on this point do not allow this court reasonably to infer that Wheeler acted with deliberate indifference to a serious medical need.
The test for deliberate indifference has an objective and a subjective component. “The objective component of the deliberate indifference test “requires showing the alleged injury is ‘sufficiently serious.'” Est. of Burgaz ex rel. v. Bd. of Cnty. Comm'rs, 30 F.4th 1181, 1186 (10th Cir. 2022) (quoting Redmond v. Crowther, 882 F.3d 927, 939 (10th Cir. 2018)). Here, although Plaintiff does not allege facts concerning the type of diabetes he has or what medication he needs (or the frequency of the dosage) to control that condition, the court assumes without deciding that Plaintiff has satisfied the objective requirement.
The subjective prong requires that an official “knows of and disregards an excessive risk to an inmate's health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added). “[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.” Id. (emphasis added). The subjective element recognizes the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” and so “to violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind.” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)) (cleaned up). Plaintiffs allegations do not satisfy the subjective prong.
Plaintiff does not allege that Wheeler confiscated the document improperly, or that his taking the document manifested a culpable state of mind amounting to deliberate indifference. Plaintiff pleads no facts showing that, when Wheeler took the identity document, he was aware that Plaintiff consequently would be unable to obtain his diabetes medication and that not having this medication would pose a substantial risk of serious harm to Plaintiff. Based on Plaintiff's sparse allegations, the court cannot infer that Wheeler had facts before him that would have allowed him draw the inference that Plaintiff faced a substantial risk of serious harm and that he did in fact draw such an inference. Put another way, there are no well-pleaded facts plausibly suggesting that Wheeler possessed any subjective awareness that his actions would pose an excessive risk to Plaintiff's health. In short, Plaintiff has not alleged that Lieutenant Wheeler possessed a sufficiently culpable state of mind to satisfy the subjective component of deliberate indifference.
Allen. Finally, Plaintiff has not plausibly alleged that District Attorney Allen violated Plaintiff's constitutional rights. Plaintiff's allegations purport to convey how Allen articulated the mission of his office to his staff. Complt. ¶¶ 66-68 (allegedly quoting Allen “speaking to his staff after his appointment”). And Plaintiff alleges facts about what his own attorney's perceptions were concerning how Allen, and “the District Attorney's office” generally, would handle the prosecution of Plaintiff's case. Id. ¶¶ 120-121. None of this plausibly evinces a violation of Plaintiff's constitutional or statutory rights, no matter how liberally his allegations are construed.
* * *
In sum, Plaintiff has alleged no facts plausibly indicating that any Movant personally participated in a violation of his constitutional rights or a conspiracy to interfere with his civil rights under 42 U.S.C. § 1985(3).
c. Has Plaintiff Shown a Violation of Clearly Established Law?
In light of the court's conclusion that Plaintiff has failed to overcome the presumption of qualified immunity as to the first prong, “that failing is fatal,” and the court need not reach the clearly-established prong. Estate of Taylor v. Salt Lake City, 16 F.4th 744, 758 (10th Cir. 2021). Moreover, the court having found no violation of a constitutional or statutory right in the first instance, it necessarily follows that Plaintiff has failed to show a violation of a clearly established right. This point is emphasized in the cases Plaintiff references in his response brief, see id. at 12-13, which state general legal principles but are not sufficiently “‘particularized' to the facts of the case” to function as clearly-established law in the circumstances here. See White v. Pauly, 580 U.S. 73, 79 (2017). Put another way, Plaintiff points to no Supreme Court or Tenth Circuit precedent that established a constitutional or statutory right in a “sufficiently clear” manner such that “every reasonable official' in Movants' respective positions would have known that their alleged conduct violated Plaintiff's rights. al-Kidd, 563 U.S. at 741 (emphasis added).
d. Movants Are Entitled to Qualified Immunity
The court therefore respectfully RECOMMENDS that all Movants-Gillespie, Kramer, Wheeler, Dodge, and Allen-be granted qualified immunity and the claims against them be dismissed with prejudice. See, e.g., Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010 (instructing district court to dismiss based on qualified immunity “with prejudice”); Lybrook v. Members of the Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir. 2000) (affirming district court order granting motion to dismiss with prejudice on qualified immunity grounds); Vreelandv. Olson, No. 20-cv-02330-PAB-SKC, 2021 WL 4237269, at *5 n.7 (D. Colo. Sept. 16, 2021) (“The Court will dismiss the claim against Olson and Reed [brought by a pro se plaintiff] with prejudice because they are entitled to qualified immunity), appeal dismissed, 2021 WL 8129553 (10th Cir. Nov. 23, 2021); McCrary v. Jones, No. CIV-13-573-M, 2015 WL 873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant was entitled to qualified immunity).
2. Prosecutorial Immunity for Allen
District Attorney Allen argues that the claim against him should be dismissed for the additional reason that he is entitled to absolute prosecutorial immunity. ECF No. 25 at 10-11.
Plaintiff argues to the contrary, stating that he is not challenging “any prosecutorial act,” but rather Allen's purported “direction” of how Plaintiff “was held” at the CJC. Response at 11. The court agrees with Allen.
Prosecutors are entitled to absolute immunity from civil damages suits, including § 1983 suits, for the acts of preparing to initiate, initiating and presenting a criminal case. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Plaintiff's allegations about Allen's supposed management of his conditions at the CJC are wholly conclusory. His pleading includes no well-pleaded, non-conclusory facts plausibly indicating that Allen-a District Attorney responsible for managing a large office and a voluminous caseload-personally provided specific direction concerning the manner in which Plaintiff was held in the CJC. Nor do Plaintiff's allegations reasonably permit this court to infer that Allen somehow overrode and co-opted the Sheriff's authority to operate the CJC. See Colo. Rev. Stat. 30-10-511 (“[T]he sheriff shall have charge and custody of the jails of the county[.]”).
Notably, Plaintiff's only substantive allegations concerning Allen place his actions squarely within the parameters of conduct “intimately associated with the judicial phase of the criminal process” for which a prosecutor receives the protection of absolute immunity: (1) Plaintiff was informed by his attorney that the “District Attorney's office” (not Allen specifically) might reduce Plaintiff's charges in exchange for cooperative conduct from Plaintiff, and (2) Allen would not agree to lesser charges if Plaintiff's case went to trial. Complt. ¶¶ 120121. As the Tenth Circuit has emphasized, “prosecutors [are] protected by absolute prosecutorial immunity for their actions in negotiating” plea agreements. Ferrer v. Dailey, 104 F.3d 367, No. 96-3155, 1996 WL 731618 (10th Cir. Dec. 20, 1996) (Table) (citing Buckley, 509 U.S. at 273) (“We have not retreated . . . from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.”); see also, e.g., Frazier v. Crump, No. 16-6687, 2017 WL 5664900, at *2 (6th Cir. Oct. 17, 2017) (“Absolute immunity attaches to a prosecutor's conduct associated with a plea bargain.”); Pennington v. Penner, 207 F.Supp.2d 1225, 1236 (D. Kan. 2002) (“A prosecutor's absolute immunity extends to conduct surrounding plea negotiations”). In sum, the actions Plaintiff attributes to Allen are encompassed within the prosecutorial function and thus are shielded by absolute immunity.
Absolute prosecutorial immunity, then, provides an independent basis for dismissing Plaintiff's claim against District Attorney Allen. The court therefore accordingly RECOMMENDS that the claim against Allen be dismissed with prejudice for this additional reason. See Thome v. Cook, No. 11-cv-03320-REB-MEH, 2013 WL 1154481, at *9 (D. Colo. Mar. 19, 2013) (dismissing claims with prejudice on the basis of prosecutorial immunity), recon. den'd, 2014 WL 1613101 (D. Colo. Apr. 22, 2014).
3. Official-Capacity/Municipal Liability Claims
Plaintiff also sues Movants in their official capacities. A § 1983 claim asserted against a municipality or an individual county defendant in his or her official capacity is properly construed as being asserted against the municipality. See Monell, 436 U.S. at 690 n.55 (recognizing that official-capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent”). A governmental entity is liable under § 1983 only when the entity itself is a “moving force” behind a deprivation of constitutional rights. Kentucky, 473 U.S. at 166 (citation omitted). An official-capacity suit requires proof that the entity's “policy or custom” caused the violation of federal law. Id. (citation omitted). Thus, under Monell, a governmental entity may not be sued under § 1983 for its employee's constitutional violations unless a plaintiff shows a governmental policy or custom was the moving force behind the violation. See 436 U.S. at 694; see also Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004).
This court's determination that Plaintiff has failed to allege that Movants committed any constitutional violation means that Plaintiff has failed to adequately allege any plausible officialcapacity claim under Monell for failure to train or supervise. “It is well established . . . that a municipality cannot be held liable under section 1983 for the acts of an employee if [the] employee committed no constitutional violation.” Myers v. Oklahoma Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998). However, the court recognizes that, “[i]n the Tenth Circuit, while unusual, municipal liability may exist without individual liability: for example, for a systemic failure of medical policies and procedures.” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1144 (10th Cir. 2023). It is a “‘limited exception' to the requirement of individual unconstitutional action ‘where the sum of multiple officers' actions taken pursuant to municipal policy results in a constitutional violation,” Buchanan v. Turn Key Health Clinics, LLC, No. 22-7029, 2023 WL 6997404, at *7 (10th Cir. 2023) (cleaned up, quoting Crowson v. Washington Cnty., 983 F.3d 1166, 1189-91 (10th Cir. 2020); Lucas, 58 F.4th at 1144-45). For such claims, a plaintiff must still allege the other elements of Monell liability: that “the municipality was deliberately indifferent to constitutional violations that were the obvious consequence of its policy,” and that “the policy directly caused his constitutional injury.” Finch v. Rapp, 38 F.4th 1234, 1244 (10th Cir. 2022).
Here, Plaintiff alleges the Sheriff had a policy of encouraging officers to intentionally violate pretrial detainees' constitutional rights in CJC (and otherwise treat them poorly) so that they would plead guilty, confess, or be rendered incompetent to defend their charges, in violation of Plaintiff's Eighth or Fourteenth Amendment rights. Complt. ¶¶ 43-48; Proposed FAC (adding First and Sixth Amendment claims). It is unclear that these allegations amount to a claim that the Tenth Circuit would recognize as “systemic,” as the Tenth Circuit does not appear to have recognized any similar claim as surviving Rule 12. See, e.g., Lucas, 58 F.4th at 1144 (costcutting and profit-maximization policy was a “systemic” Monell claim but failed on other elements); Crowson, 983 F.3d at 1186, 1188-89 (a “systemic failure” claim “may be shown by proving there are such gross deficiencies in staffing, facilities, equipment, or procedures that the inmate is effectively denied access to adequate medical care,” citing Garcia v. Salt Lake Cnty., 768 F.2d 303, 308 (10th Cir. 1985)); Finch, 38 F.4th at 1244-45 (10th Cir. 2022) (discussing on summary judgment a claim alleging a policy of inadequate investigation into allegations of excessive force, inadequate discipline for the same, and a policy of “shooting unthreatening civilians,” and concluding that even if the plaintiff's evidence sufficed to show such policies existed, the claim failed on causation).
But assuming in Plaintiff's favor that he plausibly alleges a policy of the Sheriff's office that does not hinge on the actions of individual Defendants, he does not allege facts that plausibly support causation. Plaintiff alleges that practically every facet of his pretrial detention was part of the alleged “policy” designed to make him (and other pretrial detainees) plead guilty, confess, or become incompetent to defend their charges. Complt. ¶¶ 91-151. But he does not allege facts that support this conclusory statement: for example, there are no well-pleaded facts identifying anyone who actually pleaded guilty, confessed or became incompetent because of their conditions of confinement in CJC-other than Plaintiff's own alleged incompetence.Plaintiff also does not allege any facts to suggest that pretrial detainees of CJC have higher guilty plea, confession or conviction rates than those of other county detention centers. Plaintiff thus fails to “nudge[] his claim across the line from conceivable to plausible.” Iqbal, 556 U.S. at 683 (cleaned up, citing Twombly, 550 U.S. at 570). The Tenth Circuit has also found similar allegations of an overarching nature, without specific connection to the plaintiff's injuries, insufficient to state a claim. See, e.g., Lucas, 58 F.4th at 1145 (affirming dismissal of a “systemic” Monell claim because allegations of a cost-cutting policy and profit motive were conclusory and did not support causation of the plaintiff's delay in diagnosis of cervical cancer).
In addition, to the extent Plaintiff bases this claim on the “comments” of the Sheriff and CJC staff (Complt. ¶¶ 49-90), Plaintiff acknowledges that he does not have personal knowledge. Those allegations are instead based on alleged conversations he had with other former inmates of CJC. Id. at 11 n.2. Many of the alleged comments also do not reflect a policy to violate detainees' constitutional rights, and even taking as true that the Defendants and other CJC staff made those comments, verbal threats and harassment “usually are not actionable under § 1983.” Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018).
The Proposed FAC adds an allegation referring to only one other detainee (besides Plaintiff) who allegedly became incompetent due to the conditions in CJC, but Plaintiff pleads no facts to support Plaintiff's conclusory statement of the other's incompetency . Proposed FAC ¶ 120 n.5.
Accordingly, it is respectfully RECOMMENDED that the official capacity claims against all Movants be dismissed with prejudice. The Court recommends dismissal with prejudice because further amendment would be futile in light of Plaintiff's failure to rectify the pleading deficiencies identified here in the Proposed FAC.
4. Convention Against Torture Claim
Plaintiff seeks to raise a claim under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishments (“Convention Against Torture”). Complt. at 4. But he “is not entitled to relief under the Convention Against Torture because the provisions of that treaty are not self-executing and do not create a private right of action.” Richardson v. Blevins, No. 21-cv-02285, 2021 WL 4291014, at *1 (D. Colo. Sept. 21, 2021) (Brimmer, C.J.) (dismissing claim under Convention Against Torture for lack of jurisdiction) (citing Renkel v. United States, 456 F.3d 640 (6th Cir. 2006)). See also Rigler v. Lampert, 248 F.Supp.3d 1224, 1233 (D. Wyo. 2017) (same) (citations omitted).
Neither would Plaintiff be able to pursue a claim under the statutes implementing the Convention Against Torture (18 U.S.C. §§ 2340, 2340A, and 2340B), which are criminal statutes that apply only extraterritorially and that do not create a private right of action. See 18 U.S.C. § 2340B; see also Rubin v. Hilling, No. 12-cv-01842-CMA-MEH, 2013 WL 1365778, at *6 n.3 (D. Colo. Mar. 7, 2013).
Accordingly, the court RECOMMENDS that Plaintiff's claim under the Convention Against Torture be dismissed without prejudice for lack of jurisdiction.
D. Motion to Amend
As stated above, the court recommends that the motion to amend be denied as futile because the jurisdictional defects that mark the current Complaint remain and would similarly require dismissal of the Proposed FAC. Likewise does the Proposed FAC fail to repair the pleading defects that have compelled this court to recommend dismissal on grounds of immunity and failure to state a plausible claim for relief. Therefore, the court reiterates its RECOMMENDATION that the motion to amend be denied.
IV. Conclusion
For these reasons, the court respectfully RECOMMENDS that the motion to dismiss (ECF No. 25) be granted and that all claims against all Defendants, including Defendant Riley, be dismissed in accordance with the foregoing analysis. This court further RECOMMENDS that, if Judge Crews dismisses this case at least in part for failure to state a claim, that the dismissal be designated as a “strike” against Plaintiff under 28 U.S.C. § 1915(g). See, e.g., Jones v. Smith, 109 Fed.Appx. 304, 310 (10th Cir. 2004) (affirming designation of dismissal as one strike under § 1915(g) where dismissal was, in part, for failure to state a claim).
It appears that this case would be Plaintiff's second “strike” under § 1915(g). See 23-cv-00730-LTB-KLM, LeChiffre v. Exley, et al. Plaintiff's dismissal from 21-cv-02743-LTB-GPG, Getter v. Elder, was without prejudice upon denial of permissive joinder. Id., ECF No. 6.
The court further RECOMMENDS that the motion to amend (ECF No. 32) be denied.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).