Louis Peoples v. Long

Full title: LOUIS PEOPLES, JR., Plaintiff, v. JEFF LONG, DENNY OWENS, and CYRUS…

Court: United States District Court, District of Colorado

Date published: Dec 13, 2021

Civil Action 1:20-cv-02116-RBJ-NYW (D. Colo. Dec. 13, 2021)

Opinion

Civil Action 1:20-cv-02116-RBJ-NYW

12-13-2021

LOUIS PEOPLES, JR., Plaintiff, v. JEFF LONG, DENNY OWENS, and CYRUS CLARKSON, Defendants.

Nina Y. Wang United States Magistrate Judge.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Nina Y. Wang United States Magistrate Judge.

This matter is before the court for recommendation on the following:

(1) Defendants Jeff Long (“Warden Long”), Denny Owens (“Major Owens”), and Cyrus Clarkson's (“Captain Clarkson” and collectively, “Defendants”) Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) (“Second Motion to Dismiss” or the “Motion”) [Doc. 50, filed May 4, 2021]; and

(2) Plaintiff's Motion for Request to Amend a 42 U.S.C. § 1983 Civil Complaint (“Motion for Leave to Amend”) [Doc. 73, filed November 26, 2021].

The undersigned considers the Second Motion to Dismiss and Motion for Leave to Amend pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated July 22, 2020 [Doc. 6], and Memoranda dated May 5, 2021 [Doc. 51] and November 29, 2021 [Doc. 74]. This court concludes that oral argument will not materially assist in the resolution of these matters. Accordingly, having carefully reviewed the Second Motion to Dismiss and associated briefing [Doc. 58; Doc. 64], the Motion for Leave to Amend, the docket, and applicable law, this court respectfully RECOMMENDS that Defendants' Second Motion to Dismiss be GRANTED and Plaintiff's Motion for Leave to Amend be DENIED.

BACKGROUND

Plaintiff, an individual currently incarcerated at Sterling Correctional Facility (“SCF”) and in the custody of the Colorado Department of Corrections (“CDOC”), initiated this action pro se on July 20, 2020, by filing a Complaint asserting two claims pursuant to 42 U.S.C. § 1983 for alleged violations of his Eighth Amendment rights.¹ See generally [Doc. 1]. Specifically, Plaintiff contends that Defendants have failed to take adequate measures to protect Plaintiff and other “members in his same class” from contracting COVID-19. [Id. at ¶ 2]. In his first claim for relief (“Claim I”), Plaintiff alleges that Defendants require medically vulnerable inmates, including Plaintiff, to work in the SCF kitchen during the COVID-19 pandemic. [Id. at 5-8]. In his second claim for relief (“Claim II”), Plaintiff alleges that he has been placed at greater risk of contracting COVID-19 because fellow members of his “incentive program” have contracted COVID-19; his cellmate is 26 years old which “makes him more at risk for contracting the virus”; and the CDOC has failed to implement adequate preventative measures to protect against COVID-19. [Id. at 8- 9]. Plaintiff's Complaint seeks relief in the form of (1) a declaratory judgment; (2) an injunction²(a) preventing Defendants and CDOC staff more generally from placing Plaintiff and other vulnerable inmates “in a position described above, ” and (b) and requiring an “adequate classification system” for vulnerable inmates; and (c) an order of compassionate release to home incarceration and electronic monitoring. [Id. at 10].

1 Because Plaintiff appears pro se, the court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). Consistent with this principle, at times, the court will quote from Plaintiff's filings without the use of [sic] or the correction of spelling or syntax. However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (“[The court's] role is not to act as [pro se litigant's] advocate”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“The court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues.” (internal citation omitted)). Moreover, the court applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).

2 In Paragraph 15 on page 7 of Mr. Peoples, Jr.'s Complaint, he states “Pursuant to Federal Rule of Civil Procedure 65(a) Plaintiff moves this Honorable Court for a preliminary Injunction when plaintiff reasonable likelihood his life is in danger, and will can prevail on the merits put forth before this Court for an Eighth Amendment violation.” It does not appear that Mr. Peoples, Jr. seeks a temporary restraining order, and the Local Rules of Civil Practice of this District to require parties seeking temporary restraining orders to file a motion separately from the underlying complaint. See D.C.COLOLCivR 65.1(a). Mr. Peoples, Jr. filed a Motion for Emergency Injunction that was construed as a Motion for Preliminary Injunction. As discussed below, the presiding judge, the Honorable R. Brooke Jackson, denied Plaintiff's Motion for Preliminary Injunction and indicated that “[t]he Court has to decide whether it has jurisdiction before it can entertain further action in the case.” [Doc. 25].

I. Factual History

The following facts are drawn from Plaintiff's Complaint and are, unless otherwise noted, taken as true for purposes of the instant Second Motion to Dismiss. Plaintiff is 66 years old and currently in CDOC custody and housed at SCF. [Doc. 1 at 2]. Plaintiff suffers from a variety of medical conditions including chronic asthma, heart disease, diabetes, epilepsy, hypertension, and vision impairment. [Id. at 6 ¶¶ 9-10]. These preexisting conditions make Plaintiff particularly susceptible to adverse outcomes should he be infected by the novel coronavirus and fall ill with the disease it causes, COVID-19. [Id. at 6 ¶¶ 8-9].

On March 11, 2020, the Executive Director of the CDOC, Dean Williams (“Director Williams”), issued an Executive Order in response to the COVID-19 pandemic. [Id. at 7 ¶ 13]. Therein, Director Williams stated that “Our primary goal is to reduce risk and to protect the safety of our staff, inmates, and parolees. Our biggest goals to prevent the accidental introduction of COVID-19 into a prison, which would present additional risks to staff and inmates.” [Id.]. Shortly after Director Williams's Executive Order, a COVID-19 outbreak at SCF infected hundreds of inmates. [Id.]. Some inmates died from their infections. [Id.].

On April 14, 2020, SCF instituted a “complete lock-down, ” whereby Mr. Peoples, Jr. and his cellmate were isolated from all other inmates, including those within his living unit and the unit more generally. [Id. at 5 ¶ 4]. Mr. Peoples, Jr. was administered a COVID-19 test for the first time roughly one month later. [Id. at 5 ¶ 5]. He was tested for COVID-19 three more times on May 19, May 26, and June 1, 2020, respectively. [Id.].

Lockdown restrictions were lifted in Mr. Peoples, Jr.'s housing unit on June 19, 2020. [Id.]. Three days later, a second outbreak led to roughly 500 inmates contracting COVID-19 in the “East and West yards.” [Id. at 5 ¶ 6]. Because many of these inmates were working in food services prior to the outbreak, Defendant Major Owens, who oversees facility staffing and inmate feeding, subsequently ordered his staff to make inmates participating in the “incentive program” available to work in food services. [Id.].

Defendant Captain Clarkson then ordered Mr. Peoples, Jr. and other “elderly and medically vulnerable inmates, ” ranging in age between 60 and 84 years old, to work in food services for eight to ten hours per day. [Id. at 5-6 ¶ 7]. When working in food services, inmates are locked into the kitchen with approximately 15 staff members and 50 inmates. [Id. at 8 ¶ 18]. The kitchen is a “perfect breeding grounds to contract the virus” because the virus “is surging” and some of these individuals “have had” COVID-19 and/or fail to wear face masks at all times. [Id.].

Plaintiff claims that pursuant to Colorado Governor Jared Polis's (“Governor Polis”) April 26, 2020³ Executive Order, Plaintiff and vulnerable inmates like him (1) should stay in their housing units, and (2) cannot be compelled to perform in-person work for any business or government functions, critical or otherwise. [Id. at 6 ¶ 8]. The Executive Order defines vulnerable individuals to include those aged 65 years and older. [Id.]. In addition, vulnerable individuals include people with chronic lung disease or moderate to severe asthma; serious heart conditions; and/or compromised immune systems. [Id.].

3 Although the Complaint sometimes refers to an Executive Order by Governor Polis dated “April 26, 2002, ” this court understands this as a typographical error, and elsewhere in the Complaint Plaintiff cites to the Executive Order and references an effective date of April 26, 2020. See [Doc. 1 at 8 ¶ 1].

In light of his medical vulnerabilities, Plaintiff begged Captain Clarkson to remove his name from the food services roster, but his pleas went unanswered. [Id. at 6-7 ¶ 12]. Plaintiff's COVID-related concerns extend beyond his assignment to food services work. Four inmates within Plaintiff's incentive program have tested positive for COVID-19. [Id. at 9 ¶ 4]. These individuals “were placed right back” in Plaintiff's unit with Plaintiff and at least 15 other inmates. [Id.]. Plaintiff further believes he is at greater risk for contracting COVID-19 because his cellmate is 26 years old and thus “makes him more at risk for contracting the virus”; inmates cannot properly wash their face masks; SCF has failed to provide soap on a consistent basis; and SCF remains non-compliant with “many rules and requirements.” [Id. at 9 ¶ 5]. SCF was also allegedly late in responding to and/or implements procedures to help combat the virus by failing to pass out masks; rejecting from the infirmary inmates displaying symptoms of COVID-19; testing inmates only once for COVID-19; and subjecting the general inmate population to inmates that have previously tested positive for the virus. [Id.].

II. Procedural History

On July 20, 2020, Mr. Peoples, Jr. initiated this action, [Doc. 1], and filed a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (“Motion to Proceed IFP”), [Doc. 2]. Based on the foregoing allegations, Mr. Peoples, Jr. asserted two claims under § 1983 for Defendants' alleged violations of his Eighth Amendment rights. See generally [id.]. In his prayer for relief, Mr. Peoples, Jr. sought (1) a declaration that Defendants' conduct violates the Eighth Amendment; (2) “a preliminary or permanent injunction” preventing Defendants and other CDOC staff from placing Mr. Peoples, Jr. or other vulnerable inmates “in a position described above” (referencing his Complaint); and (3) an order of compassionate release to home incarceration. [Id. at 10]. The following day, the Honorable Gordon P. Gallagher ordered Plaintiff to submit a copy of his inmate account statement for the six months immediately preceding this action, as required for Plaintiff's Motion to Proceed IFP, and ordered the case be reassigned. [Doc. 5]. This matter was assigned to Judge Jackson and drawn to the undersigned Magistrate Judge. [Id.]. On August 10, 2020, and upon referral from Judge Jackson, [Doc. 12], the undersigned granted Plaintiff's Motion to Proceed IFP.

On October 5, 2020, ⁴ Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a cognizable claim (“First Motion to Dismiss”). [Doc. 20]. Plaintiff filed his Response to the First Motion to Dismiss on October 30, 2020. [Doc. 22]. That same day, Plaintiff filed a Motion for Emergency Injunction, seeking a preliminary injunction related to allegedly unsafe conditions at SCF and retaliation by SCF staff against Plaintiff. [Doc. 24]. Judge Jackson subsequently denied Plaintiff's Motion for Emergency Injunction, explaining that the court could not entertain further action in this case until it decided the jurisdictional issue raised by Defendants' First Motion to Dismiss, which was not yet ripe. [Doc. 25, filed November 3, 2020]. Defendants filed their Reply to the First Motion to Dismiss on November 16, 2020. [Doc. 26].

4 On September 18, 2020, Defendants sought a 14-day extension to their deadline to file a responsive pleading. [Doc. 16]. The undersigned granted the requested extension on September 21, 2020, thereby extending Defendants' deadline to file a responsive pleading to no later than October 5, 2020. [Id.].

On December 16, 2020, the undersigned issued a Recommendation that Defendants' First Motion to Dismiss be granted in part and denied in part. [Doc. 30]. Specifically, the undersigned recommended that (1) Plaintiff's claim under § 1983 for Eighth Amendment violations related to his assignment to work Food Services (Claim I) be dismissed without prejudice; (2) Plaintiff's claims asserted against the Defendants in their individual capacities for injunctive relief be dismissed with prejudice; (3) Any relief sought by Plaintiff related to the fact or duration of his physical imprisonment be dismissed with prejudice; and (4) Plaintiff's claim under § 1983 for deliberate indifference in violation of the Eighth Amendment related to Defendants' failure to implement adequate preventative measures to protect Plaintiff from COVID-19 (Claim Two) be permitted to proceed. [Id. at 25-26]. On December 30, 2020, Defendants filed a timely objection to the latter Recommendation. [Doc. 33]. No. objection to any other part of the Recommendation was filed.

Relevant here, on March 22, 2021, Judge Jackson adopted in full the undersigned's Recommendation on the First Motion to Dismiss, [Doc. 40], thus “leav[ing] only [P]laintiff's claim under § 1983 for deliberate indifference in violation of the Eighth Amendment based on the alleged actions of the defendants in their official capacity to implement measures reasonably designed to protect plaintiff from COVID-19, ” [id. at 4], seeking injunctive relief, see [Doc. 1 at 9-10] (“remaining Section 1983 claim” or “Claim Two”).⁵ On April 5, 2021, Defendants filed their Answer to Plaintiff's Complaint. [Doc. 41].

5 On February 8, 2021, Plaintiff filed a motion for a temporary restraining order, [Doc. 39], wherein he purported to seek relief against entities or individuals not named as defendants in the Complaint; challenged his placement in administrative segregation, an issue not the subject of his Complaint; and requested an order that all inmates be given an anti-body test “to determine whether we had Covid-19.” [Doc. 39 at 1-5]. In conjunction with adopting the Recommendation on the First Motion to Dismiss, Judge Jackson also denied Plaintiff's motion for a temporary restraining order [Doc. 39] on the basis that “Plaintiff may only speak for himself, and his own pleadings show that he has been given at least four COVID tests” and therefore “the motion provides no basis for the ‘temporary restraining order' he seeks.” [Doc. 40 at 4-5].

Approximately a month later, citing to a material change of circumstances since the filing of the action and the First Motion to Dismiss, Defendants filed the instant Second Motion to Dismiss seeking to dismiss Claim Two based on lack of subject matter jurisdiction, or in the alternative, for judgment on the pleadings. [Doc. 50].⁶ Plaintiff filed a Response [Doc. 58]; and Defendants filed their Reply [Doc. 64]. Then, on August 25, without leave of court, Plaintiff filed a document captioned “Plaintiff's Response to Deny the Defendants Motion to Dismiss Pursuant to Fed. R. Civ. 12(b)(1) and Fed. R. Civ. 12(c) and the Court Order Date August 5. 2021.” [Doc. 68].⁷

6 Defendants also filed a motion to stay discovery pending resolution of the Second Motion to Dismiss, to which Plaintiff did not respond, and this court granted. [Doc. 52; Doc. 55; Doc. 66]. Discovery is stayed pending resolution of the instant Second Motion to Dismiss. [Doc. 66]. As to Plaintiff's claim that he did not receive a copy of Defendants' motion to stay [Doc. 52] or the court's order directing Plaintiff's to respond to the motion to stay [Doc. 55], see [Doc. 68 at 3 ¶ 4], the court notes that the certificate of service in Defendants' motion to stay, [Doc. 52 at 8], and the court's docket, [Doc. 56], reflect that the foregoing documents were sent to the same address as the court's Order granting the motion to stay, see [Doc. 66]. Moreover, the court's docket does not reflect any mail-return notices regarding the documents the court has mailed to Plaintiff in this action.

7 In that document, Plaintiff states that the court “should allow Plaintiff's case to proceed, ” requests again that counsel be appointed to represent him, and also requests a status conference “so that Plaintiff can make a record because its very hard to not only see, but write also.” [Id. at 4].

On November 15, 2021, Plaintiff filed a “Motion for Request to Amend a 42 U.S.C. § 1983 Civil Complaint” [Doc. 69]. On November 17, the undersigned ordered that Plaintiff's motion be stricken as incomplete because at least one page from the motion appeared to be missing, and ordered Plaintiff to refile a complete copy of his motion. See [Doc. 71]. On November 26, Plaintiff filed the instant Motion for Leave to Amend [Doc. 73], which is currently pending before this court. Defendants have not responded to the Motion for Leave to Amend.⁸ Accordingly, the Complaint [Doc. 1] remains the operative complaint at this stage in the proceedings. The Second Motion to Dismiss and Motion for Leave to Amend are thus ripe for Recommendation.

8 Although Defendants have not yet responded to the Motion for Leave to Amend, the court is not required to wait for a response before it can rule on a motion. See D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”). Given the futility of Plaintiff's motion, as explained further below, this court does not find a response is necessary here.

LEGAL STANDARDS

I. 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, 134 S.Ct. 2334, 2341 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).

Whether a case is moot is a threshold inquiry the court must address before addressing the merits of the case “because the existence of a live case or controversy is a constitutional prerequisite to the jurisdiction of the federal courts.” Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir. 1991). “The mootness doctrine relates to both ‘[t]he constitutional case or controversy requirement of Article III …, as well as the prudential considerations underlying justiciability.'” Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (quotation omitted). “Accordingly, ‘[c]ourts recognize two kinds of mootness: constitutional mootness and prudential mootness.'” Id. (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir. 2010)). Here, Defendants assert that Plaintiff's remaining Section 1983 claim for injunctive relief should be dismissed as moot based on constitutional mootness. See [Doc. 50 at 6].

“‘Under the constitutional mootness doctrine, the suit must present a real and substantial controversy with respect to which relief may be fashioned.'” Sosa, 654 F.3d at 1023-24 (quoting Fletcher v. United States, 116 F.3d 1315, 1321 (10th Cir. 1997)). “Constitutional mootness is grounded in the requirement that ‘any case or dispute that is presented to a federal court be definite, concrete, and amenable to specific relief.'” Sosa, 654 F.3d at 1024 (quotation omitted). “Consequently, the constitutional mootness doctrine focuses upon whether ‘a definite controversy exists throughout the litigation and whether conclusive relief may still be conferred by the court despite the lapse of time and any change of circumstances that may have occurred since the commencement of the action.'” Id. (quotation omitted).

“[A] justiciable case or controversy must remain ‘extant at all stages of review, not merely at the time the complaint is filed.'” United States v. Juvenile Male, 564 U.S. 932, 131 S.Ct. 2860, 2864, 180 L.Ed.2d 811 (2011) (quotation omitted). Thus, mootness can be caused by events occurring after the complaint has been filed. S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 729 (10th Cir. 1997). According to the Tenth Circuit, “‘[t]he hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.'” Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1150 (10th Cir. 2007) (quoting N.M. Env't Dep't v. Foulston, 4 F.3d 887, 889 (10th Cir. 1993)). The burden of demonstrating mootness “is a heavy one.” Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012) (internal quotations and citations omitted).

“‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.'” Rezaq, 677 F.3d at 1008 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Thus, when, as here, an injunction is sought, the plaintiff must show a continued susceptibility to injury. Sosa, 654 F.3d at 1024. “‘Similarly, in the context of an action for declaratory relief, a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.'” Rezaq, 677 F.3d at 1008 (quotation omitted). “‘[W]hat makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.'” Silvery Minnow, 601 F.3d at 1109-1110 (quotation omitted).

Further, when a party goes beyond the allegations set forth in the complaint to challenge the facts upon which subject matter depends, the presumption of truthfulness typically afforded the complaint's allegations does not apply and the court has wide discretion to consider, inter alia, affidavits and other documents to resolve the disputed jurisdictional facts. United States v. Rodriquez Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)) (further citations omitted). See also Holt, 46 F.3d at 1002-03 (when a factual challenge is made, there is no presumption of truthfulness attached to the plaintiff's allegations).

II. Federal Rule of Civil Procedure 12(c)

A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) may be filed only “[a]fter the pleadings are closed.” Fed.R.Civ.P. 12(c). A Rule 12(c) Motion is evaluated under the same standard applicable to a Rule 12(b)(6) motion to dismiss. See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009). But the court considers a broader factual record when evaluating a Rule 12(c) motion; the court is not limited to the well-pled allegations contained in the Complaint but instead considers “the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011); see also Hall v. D.C., 867 F.3d 138, 152 (D.C. Cir. 2017) (“A Rule 12(c) motion considers the defendants' answers together with the complaint....”); Hous. Auth. Risk Retention Grp., Inc. v. Chicago Hous. Auth., 378 F.3d 596, 600 (7th Cir. 2004) (“In a motion for judgment on the pleadings, the court considers the pleadings alone, which consist of the complaint, the answer, and any written instruments attached as exhibits.”). The Court accepts all of Plaintiff's well-pleaded allegations as true, views those allegations in the light most favorable to the non-moving party, and additionally affords the non-movant all reasonable inferences from those allegations. Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012).

A court should not grant a Rule 12(c) motion unless “the moving party clearly establishes that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of l aw.” C i b e r, Inc. v. ACE Am. Ins. Co., 261 F.Supp.3d 1119, 1125 (D. Colo. 2017) (quoting Park U n i v. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). A motion for a judgment on the pleadings “only has utility when all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court.” 5C Charles Alan Wright et al., Federal Practice & Procedure § 1367 (3d ed., Apr. 2019 update). Additionally, a party may raise arguments that could be made in a motion under Rule 12(b)(6) in a motion under Rule 12(c). Fed.R.Civ.P. 12(h)(2).

ANALYSIS

Defendants have moved to dismiss Plaintiff's remaining Section 1983 claim citing the lack of subject matter jurisdiction or, in the alternative, for judgment on the pleadings based upon res judicata. [Doc. 50]. Because it may not substantively consider whether judgment on the pleadings is appropriate without subject matter jurisdiction, see Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016), the court begins there.

I. Subject Matter Jurisdiction

Defendants argue that Plaintiff's remaining Section 1983 claim should be dismissed because Plaintiff's “conditions of confinement have substantially changed since the time he filed his Complaint and Defendants filed their initial motion to dismiss” in that “the CDOC has provided Peoples with both doses of the Moderna COVID-19 vaccine, ” which Defendants contend is “the best protection against COVID-19.” [Doc. 50 at 3]. Given the extrinsic evidence offered in this matter, I first consider the scope of the record as it relates to subject matter jurisdiction before turning to whether this court has such jurisdiction over Plaintiff's remaining Section 1983 claim.

Extrinsic Evidence Submitted by Defendants. In support of their challenge of this court's subject matter jurisdiction, Defendants submit as Exhibit C a document purported to be Plaintiff's “Health Services Encounters” (“Health Record”) [Doc. 50-3]. This document reflects Plaintiff's visits to the health clinic at the SCF between February 8, 2021 and April 22, 2021, as well as the purpose for each such visit, including that Plaintiff received his first dose of the Moderna COVID-19 vaccine on February 9, 2021 and the second dose on March 11, 2021. [Id.]. The court has wide discretion on Rule 12(b)(1) motions to dismiss to consider evidence outside the pleadings where the factual basis for subject matter jurisdiction is challenged. See, e.g., Holt, 46 F.3d at 1002. Defendants rely on Plaintiff's Health Record to argue that Plaintiff received his first and second doses of the vaccine against COVID-19, and “[a]s a result of Peoples' immunization against COVID-19, there is no further protection against the virus available to him”; and “[c]onsequently, there is no additional effectual injunctive relief available to Peoples” and “his one remaining Eighth Amendment claim is moot and must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1).” [Doc. 50 at 6-7]. Because Defendants submit Plaintiff's Health Record to challenge the factual basis upon which subject matter jurisdiction over Plaintiff's remaining claim rests, I consider this evidence in assessing subject matter jurisdiction.⁹

9 Additionally, Plaintiff does not dispute that he has indeed received both doses of the Moderna COVID-19 vaccination. See [Doc. 58].

Mootness. In seeking dismissal under Rule 12(b)(1), Defendants argue that Plaintiff's claim “arising from Defendants' allegedly inadequate anti-COVID-19 measures no longer poses a live case or controversy” is moot because Plaintiff has received the COVID-19 vaccination. [Id.]. Thus, “[a]s a result of Peoples' immunization against COVID-19, there is no further protection against the virus available to him, whether he is housed in a correctional facility or not” and “[c]onsequently, there is no additional effectual injunctive relief available to Peoples.” [Id.].

“Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (citation omitted). Moreover, “[t]his requirement exists at all stages of federal judicial proceedings, and it is therefore not enough that the dispute was alive when the suit was filed; the parties must continue to have a personal stake in the outcome.” Id. “In deciding whether a case is moot, the crucial question is whether granting a present determination of the issues offered will have some effect in the real world. When it becomes impossible for a court to grant effective relief, a live controversy ceases to exist, and the case becomes moot.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (citation and quotation marks omitted). Put another way, a case becomes moot “when a plaintiff no longer suffers ‘actual injury that can be redressed by a favorable judicial decision.'” Rhodes v. Judiscak, 676 F.3d 931, 933 (10th Cir. 2012) (quoting Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983)). Because mootness is an issue of subject matter jurisdiction, it can be raised at any stage of the proceedings. See Kennedy v. Lubar, 273 F.3d 1293, 1301-02 (10th Cir. 2001). “The party seeking to have the case dismissed bears the burden of demonstrating mootness[, ] and that burden is a heavy one.” Chen-Oster v. Goldman, Sachs & Co., 251 F.Supp.3d 579, 590 (S.D.N.Y. 2017) (alteration omitted) (quoting Robinson v. Blank, No. 11 Civ. 2480 (PAC) (DF), 2013 WL 2156040, at *13 (S.D.N.Y. May 20, 2013)); see also Rezaq, 677 F.3d at 1008 (stating the burden of demonstrating mootness “is a heavy one.” (internal quotations and citations omitted)). But a court will not dismiss a case as moot if: “(1) secondary or ‘collateral' injuries survive after resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is a properly certified class action suit.” Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002) (citations omitted).

Thus, before this court can address any of the exceptions to mootness, this court must first address whether Defendants have met their burden to establish that Plaintiff's remaining Section 1983 claim is indeed moot. This court finds that, at this stage in the proceedings, Defendants have not met their burden. See Rezaq, 677 F.3d at 1008 (10th Cir. 2012) (stating the burden of demonstrating mootness “is a heavy one” (internal quotations and citations omitted)).

Plaintiff's allegations in the Complaint include the following:

- Defendants have “failed to take adequate measures to protect the Plaintiff as well as other members in his same class from obtaining COVID-19.” [Doc. 50 at 5 ¶ 2].

- “There is no social distancing in prison or more specifically here at Sterling Correctional Facility.” [Id. at 9 ¶ 4].

- “The facility was severally late reacting or implementing procedures to help combat the virus such as passing out mask, several inmates were rejected by the infirmary who were displaying several symptoms of the COVID-19, including only testing inmates one time for COVID-19 virus and then subjecting everyone to inmates who have already tested positive. There is no way one can properly wash the mask that staff passed out with no gloves. The facility has not properly passed out soap on a consistent basis.” [Id. at 9 ¶ 5 (emphasis added)].

- “The Executive Director Dean William has created within its prison system authorizing housing for the COVID-19, which is no more then solitary confinement that creates an atmosphere of fear and mistrust that prevents inmate from reporting their symptoms.” [Id. at 9 ¶ 6].

- “An order should be issued to CDOC to implement an adequate classification system for vulnerable inmates during this pandemic and in the future.” [Id. at 10 ¶ 2 (emphasis added)].

In the Second Motion to Dismiss, Defendants argue that Plaintiff's remaining Section 1983 claim should be dismissed as moot because Plaintiff's “conditions of confinement have substantially changed since the time he filed his Complaint and Defendants filed their initial motion to dismiss” in that “the CDOC has provided Peoples with both doses of the Moderna COVID-19 vaccine, ” which Defendants contend is “the best protection against COVID-19.” [Doc. 50 at 3]. Defendants argue that “[c]onsequently, there is no additional effectual injunctive relief available to Peoples” thus rendering “his one remaining Eighth Amendment claim … moot.” Defendants do not, however, provide any legal authority to support their argument that a vaccination against COVID-19 renders moot a plaintiff's claim for injunctive relief seeking general protective measures against the virus, and Defendants' references to the CDC's website and attorney arguments, see [id. at 7 n. 1-2], are not dispositive of this issue.

Here, Mr. Peoples, Jr.'s requested injunctive relief does not include vaccination; rather he seeks to be single-celled.¹⁰ Thus, unlike in Brooks v. Reynolds, No. 20-cv-02162-PAB-SKC, 2021 WL 4272718, at *4 (D. Colo. Sept. 21, 2021)-where the court “found moot [a] plaintiff's requests for declaratory and injunctive relief concerning library access and scheduling, as well as his request that all CDOC employees be vaccinated and that CDOC create a tracking policy so that inmates may be aware when an unvaccinated employee has entered the inmate living quarters”-Mr. Peoples, Jr. remains confined, see generally [Doc. 1], and is still subject to the Defendants' alleged lack of COVID-19 precautions. Cf. Brooks, 2021 WL 4272718, at *4-5.

10 Plaintiff also seeks compassionate release to home incarceration on and electronic monitoring. [Doc. 1 at 10]. But this court does not have the authority to order compassionate release from state custody, which is a matter of state law. See Teague v. Colorado, No. 20-cv-01425-PAB, 2020 WL 3429153, at *5 (D. Colo. June 22, 2020).

In Ahlman v. Barnes, a case analogous to the instant action, the United States District Court for the Central District of California disagreed with the defendants' primary argument in their motion to dismiss that the case was moot. EDCV 20-835 JGB (SHKx), 2021 WL 4735018, at *1- 3 (C.D. Cal. Sept. 17, 2021). The defendants argued that the plaintiffs “‘face[d] no ongoing deprivation of any constitutionally protected interest relating to COVID-19 and conditions of confinement at the Jail,' and accordingly, ‘they lack[ed] standing to seek prospective relief from this Court.'” Id. at *3. In making this argument, the defendants relied on a state court's ruling in a parallel habeas action where the state court “issued a writ of habeas corpus and a writ of mandate ordering the Jail reduce its density in congregate living areas, and in June 2021, the court concluded [the defendant] had substantially complied with the writs by releasing class members and taking other steps to reduce population density in the Jail.” Id. The Central District of California disagreed with the defendants as to mootness, however, and found the two cases distinguishable because the “primary concern [in the state court action] was release from jail” whereas the plaintiffs' case concerned “the conditions of confinement for those who [were] not released.” Id. Relevant here, the court stated, “[l]ogically, the … Jail could reduce its population significantly but also still contain unconstitutional conditions of confinement. Defendants provide no other specifics. It appears the real mootness argument-implied but unstated-is that the Covid-19 pandemic is somehow over.” Id. The court found that this was “not a serious argument.” Id. At *4. Citing to statistics regarding the “Delta variant of the virus” that was spreading at the time of the opinion, the court commented that “[i]n a lawsuit predicated on the threat of Covid-19 infection, the presence of actual Covid-19 infection in the Jail [] strongly moots any claim this case is moot.” Id. The court continued:

Defendants' vague assurances that the “conditions that predicated this litigation are no longer in existence” do not make this case moot or strip the Court of subject matter jurisdiction. There are still outbreaks of a highly contagious and potentially fatal viral disease at the Orange County Jail. Whether those outbreaks constitute unconstitutional conditions of confinement is the merits question at the heart of this case. It is also not lost on the Court that, as between the parties, only Defendants have steady access to facts, statistics, and data descriptive of the Covid-19 risks present in the Orange County Jail-and Defendants have not provided such information to the Court or to Plaintiffs.

Id. (emphasis added).

In his Response, Plaintiff expressed his concern that “a new and more contagious variant will develop.” [Doc. 58 at 16]. Even taking judicial notice of the Centers for Disease Control's information regarding the Moderna vaccine and vaccine efficacy, absent authority or evidence (such as a declaration from a public health expert), this court declines to draw its own conclusion that the COVID-19 vaccine negates the necessity of all other precautions within a prison. Based on the record before it, this court concludes that Defendants have failed to carry the “heavy burden” of establishing mootness. See Rezaq, 677 F.3d at 1008. Thus, the court will next turn to Defendants' alternative argument that Claim Two is barred by res judicata. [Doc. 50 at 7].¹¹

11 Plaintiff also contends that “Defendants filing for a dismissal pursuant to Fed.R.Civ.P. 12(b)(1) is as an Amended pleading under Fed.R.Civ.P. 12(c) and is frivolous and flagrant” because “[s]uch procedures used by the Defendants are an attempt to put forth new pleadings relating back to the date of the original filing and the prior ruling for a Fed.R.Civ.P. 12(b)(1)(6) motion that was denied in part and granted part with orders to proceeded into discovery and the Defendants should not be allowed a second bite of the apple.” [Doc. 58 at 4-5]. Further, Plaintiff contends that he was prejudiced by the court's granting Defendants' request to stay discovery because the stay provided “Defendants the opportunity for renewing its facts and theory for dismissal under 12(b)(1) and (b)(6) now 12(c) of the Federal Civil Rules.” [Id. at 5]. To the extent Plaintiff is arguing that Defendants should not have been permitted to file the instant Second Motion to Dismiss because the court granted in part and denied in part the First Motion to Dismiss, Plaintiff's argument is without merit. Federal Rule of Civil Procedure 12 does not bar a defendant from seeking dismissal of a plaintiff's claim under 12(b)(1) more than once. In fact, federal courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party, ” and thus a court may sua sponte raise the question of whether there is subject matter jurisdiction “at any stage in the litigation.” 1mage Software, Inc. v. Reynolds and Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). Additionally, Rule 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Accordingly, Defendants' Second Motion to Dismiss is properly considered here.

II. Judgment on the Pleadings

Defendants argue that, in the alternative, Plaintiff's remaining Section 1983 claim is barred by res judicata because of a “class settlement between the CDOC and a class of inmate-plaintiffs represented by the ACLU of Colorado in Winston et al. v. Polis et al., Denver District Court Case No. 20CV31823.” [Doc. 50 at 3]. Defendants state that the Denver District Court “approved a class settlement which released the CDOC, and by extension, all officials, employees, and sub-entities of the CDOC, from all claims for non-monetary relief ‘that pertain to the measures taken by CDOC, or lack thereof, in response to the COVID-19 Pandemic.'” [Id. (citing “Exh. B, Release and Settlement Agreement at ¶ 7”)]. Defendants contend that Mr. Peoples, Jr. is part of the settlement class bound by that settlement agreement, and therefore his remaining Section 1983 claim is barred. [Id. at 3-4].

Before turning to the merits of Defendants' second argument, the court begins by considering additional documents submitted by the Parties: (1) Plaintiff's document captioned “Plaintiff's Response to Deny the Defendants Motion to Dismiss Pursuant to Fed. R. Civ. 12(b)(1) and Fed. R. Civ. 12(c) and the Court Order Date August 5. 2021” (“Supplemental Response”), [Doc. 68]; and (2) the extrinsic evidence submitted by Defendants in support of their second argument.

A. Plaintiff's Supplemental Response

In the Supplemental Response, Plaintiff states that he is responding to “the August 5, 2021 court order granting a stay on discovery and ask this court to not dismiss this case on the following grant at this time.” [Doc. 68 at 2]. Plaintiff then challenges certain assertions made by Defendants in their Reply brief and asks the court “not to dismiss this case based on reasons given by Defendants counsel.” [Id. at 2 ¶¶ 1-2]. Plaintiff argues that Defendants and their counsel “are being dishonest” and “misleading the court” because “there remains a serious ongoing rate of hospitalization of inmates due to the spread of this so called []Delta Variant throughout CDOC, ” which Plaintiff claims he learned about because his nephew-who is housed at another CDOC facility-has been hospitalized “for the past 60-days fighting for his life due to this new variant.” [Id. at 2 ¶ 3]. Plaintiff fears “in the long run” that inmates at SCF will contract the Delta variant, which “would lead to the same conditions” as Plaintiff's nephew. [Id. at 3 ¶ 3]. Plaintiff argues that, despite his being vaccinated against COVID-19, Defendants continue to violate Plaintiff's Eighth Amendment rights “[b]ecause some of the inmates here at the Sterling Facility refused to be immunized and [are] still being housed in the same unit or same cells with inmates who ha[ve] been immunized.” [Id. at 3 ¶ 4]. Additionally, Plaintiff “apologize[s] for not responding to the court order for the stay of discovery proceedings by … the June 7, 2021 deadline” because “he was never served with the Defendants motion for a stay nor was he served by CDOC through the inmate legal mail system due to any order to respond.” [Id.]. Finally, Plaintiff states that the court “should allow Plaintiff's case to proceed, ” requests again that counsel be appointed to represent him, and also requests a status conference “so that Plaintiff can make a record because its very hard to not only see, but write also.” [Doc. 68 at 4]. The court declines to consider Plaintiff's Supplemental Response in its ruling on the instant Second Motion to Dismiss.

While Plaintiff (1) captions the Supplemental Response as “Plaintiff's Response to Deny the Defendants Motion to Dismiss … and the Court Order Date August 5. 2021, ” and (2) begins the document by stating he “brings this motion in response to the August 5, 2021 court order, ” [id. at 1-2 (emphasis added)], whether this document is classified as a response or motion makes no difference here. It is clear from the contents of the Supplemental Response that Plaintiff is (a) attempting file a sur-reply to Defendant's Reply in support of the Second Motion to Dismiss; and (b) requesting appointment of counsel and a status conference regarding the Second Motion to Dismiss. See generally [id.].

As to Plaintiff's attempt to file a surreply, neither the Federal Rules of Civil Procedure nor this District's Local Rules of Civil Practice allow for surreplies as a matter of right. In the Te n t h Circuit, “[a] district court must permit a surreply where it relies on new materials-i.e., new evidence or new legal argument-raised in a reply brief.” United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, No. 06-cv-00037-PA B -CBS, 2010 WL 420046, at *10 (D. Colo. Feb. 1, 2010) (citing Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006)). “However, where the materials are not new or a court disregards any materials that are, that court need not permit a surreply.” Id. (citing Green v. New Mexico, 420 F.3d 1189, 1196-97 (10th Cir. 2005)).

Here, Plaintiff argues that “it can be considered newly discovered evidence that despite the immunization given to Plaintiff, and other inmates[, ] [t]he new Delta variant continue[s] to spend [sic] throughout CDOC not only infecting inmates without the immunization, as well as those inmates that has taken the vaccine.” [Doc. 68 at 2 ¶ 2]. However, Defendants' Reply brief does not mention the “Delta variant” at all. See generally [Doc. 64]. And even if the court were to accept Plaintiff's assertions as true, Plaintiff cannot effectively amend his Complaint by alleging new facts in the Supplemental Response. Cf. In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (“The plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss.”). Further, Plaintiff's supporting references in the Supplemental Response underscore the fact that Plaintiff is challenging the arguments in the Second Motion to Dismiss, despite the fact Plaintiff has already responded to the Second Motion to Dismiss, see [Doc. 58]. See, e.g., [Doc. 68 at 4 (“In the Attorney General's motion to dismiss …”)]. This court therefore declines to consider Plaintiff's Supplemental Response.¹²

12 As to Plaintiff's second request in the Supplemental Response for appointment of counsel, the court is not persuaded by Plaintiff's basis for this request-“because it would … be unfair to dismiss this complaint when the Plaintiff has suffered ongoing mental and physical pain and further mental will continue one [sic] the new Delta variant hit throughout this Facility.” [Doc. 68 at 4]. Plaintiff may not seek affirmative relief in a response to a motion. D.C.COLO.LCivR 7.1(d). This court further notes that in denying a prior request for appointment of counsel, Judge Jackson stated “[t]his does not appear to be a case that, at this time, warrants an attempt to locate a volunteer lawyer under the Civil Pro Bono Program.” [Doc. 57, filed May 11, 2021]. It is not apparent that the circumstances have changed.

B. Extrinsic Evidence Submitted by Defendants

In support of their request for judgment on the pleadings, Defendants submit documents related to the purported “class settlement between the CDOC and a class of inmate-plaintiffs” in the state court action of Winston v. Polis, 20cv31823, which Defendants contend bar Plaintiff from recovering injunctive relief in this action. See [Doc. 50 at 3-4]; see also [Doc. 50-1; Doc. 50-2; Doc. 50-4; Doc. 50-5 (collectively, “State Court Settlement Documents”)]. Defendants ask the court to take judicial notice of the State Court Settlement Documents without converting their Motion to one for summary judgment. [Id. at 8 n.3].

Federal Rule of Evidence 201 permits a court to take “judicial notice” of a particular fact where that fact is not subject to reasonable dispute because “it is generally known within the trial court's territorial jurisdiction; or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. Judicial notice may be taken at any stage of a civil action, including at the motion to dismiss stage. Fed.R.Evid. 201(d); see also Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219 n.2 (10th Cir. 2011) (noting that under Rule 201, judicial notice may be taken “whether requested or not, ” and “at any stage of the proceeding”). “Ordinarily, consideration of material attached to a defendant's … motion to dismiss requires the court to convert the motion into one for summary judgment and afford the parties notice and an opportunity to present relevant evidence.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (citing David v. City & Cty. of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)). “However, facts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.” Id. (citation omitted).¹³ Indeed, “federal courts, in appropriate circumstances, may take notice of proceedings in other courts, 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); see also Trusdale v. Bell, 85 Fed. App'x. 691, 693 (10th Cir. 2003) (judicial notice of district court records concerning plaintiff's criminal conviction); Cont'l Coal, Inc. v. Cunningham, 511 F.Supp.2d 1065, 1070-71 (D. Kan. 2007) (stating “pleadings, court orders, motions and certified transcripts of hearings” from a related state court case were “documents … subject to judicial notice”).

13 And, as mentioned above, a Rule 12(c) Motion is evaluated under the same standard applicable to a Rule 12(b)(6) motion to dismiss. See Corder, 566 F.3d at 1223-24.

In the context of a motion for judgment on the pleadings, “when a court takes judicial notice of another court's opinion, it may do so ‘not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.'” Est. of Lockett, 841 F.3d at 1111 (quoting Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir. 2001)); see also Stack v. McCotter, 79 Fed. App'x. 383, 391 (10th Cir. 2003) (judicial notice of state district court docket sheet); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (judicial notice of transcript, pleadings, memoranda, expert reports from another case); Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (“[O]n a motion to dismiss, we may take judicial notice of another court's opinion- not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.”).

Here, the State Court Settlement Documents include the following: (1) Exhibit A - “Order Approving Class Action Settlement and Entry of Final Judgment” (“Order Approving Settlement”) [Doc. 50-1]; (2) Exhibit B - “Release and Settlement Agreement” [Doc. 50-2]; (3) Exhibit E - “Order and Consent Decree” (“Consent Decree”) [Doc. 50-4]; and (4) Exhibit F - a two-page screen printout of the state court's docket in the case [Doc. 50-5]. The court will address these documents below as necessary.¹⁴

14 Given that Exhibit F [Doc. 50-5] is a screen printout of the state court's docket in the case, this court finds that that document is self-explanatory.

Ex. A - Order Approving Settlement and Ex. E - Consent Decree. As explained in the Order Approving Settlement [Doc. 50-1] and Consent Decree [Doc. 50-4], on February 10, 2021, Denver District Court Judge Alex C. Myers entered those orders “in connection with the Joint Motion for Final Approval of Class Action Settlement” that was filed by the Winston plaintiffs “and Defendant Dean Williams, in his official capacity as Executive Director of the Colorado Department of Corrections …” [Doc. 50-1 at 1; Doc. 54-1 at 1]. Those documents describe the circumstances which gave rise to, and ultimately resolved via the Settlement Agreement, the Winston case as follows.

On May 28, 2020, the plaintiffs filed suit against defendants Governor Polis, and Dean Williams, in his official capacity as Executive Director of the CDOC. [Doc. 50-1 at 1]. The Winston plaintiffs alleged that “CDOC acted with deliberate indifference to the lives and health of persons in its custody by failing to take necessary measures to prevent the spread of COVID-19.” [Id.]. The plaintiffs “brought one claim for declaratory relief under Article II, Section 20 of the Colorado Constitution, seeking relief on behalf of themselves and similarly situated persons incarcerated in CDOC facilities.” [Id.] Before executing the Settlement Agreement, the Order states that “Plaintiffs and CDOC representatives engaged in extensive informal discovery, during which CDOC produced nearly 6, 000 pages of discovery related to its COVID policies and procedures and identification of medically vulnerable inmates, ” and Plaintiffs' counsel and their expert attended three site visits at CDOC facilities to inspect the COVID measures used by CDOC and interview members of the putative class.” [Id. at 1-2]. “On November 23, 2020, after several months of negotiations, Plaintiffs and Defendant Williams moved for preliminary certification of a settlement class and appointment of class counsel, which was granted by the court on November 25, 2020.” [Id. at 2]. Additionally, the “Plaintiff[s] and Defendant also moved for preliminary approval of a class-wide settlement pursuant to Rule 23(e) of the Colorado Rules of Civil Procedure, ” after which the settlement, embodied in a Release and Settlement Agreement and a proposed Consent Decree (collectively, “CDOC Class Settlement”), was preliminarily approved by the court on December 1, 2020. [Id.]. The Order Approving Settlement explains that, pursuant to the court's preliminary approval,

the putative class was provided notice beginning on or about December 3, 2020, through a ‘NOTICE OF CLASS ACTION SETTLEMENT: COVID CONDITIONS.' This Notice was disseminated in English and Spanish to the wardens of all the correctional facilities or centers managed or supervised by CDOC. Copies of the Notice were posted in each facilities' day halls and on CDOC's titler system. The Notice remained posted through January 5, 2021 (the deadline to submit objections) and invited putative class members to comment on or object to the CDOC Class Settlement in writing. Inmates were also provided a 1-800 number to contact class counsel to provide their comments or objections.

[Id. at 2]. The court also conducted a class fairness hearing on February 8, 2021. [Id.] The court approved the CDOC Class Settlement after “having considered the Joint Motion for Final Approval of Class Action Settlement, the written objections and comments of more than 250 putative class members, argument from interested parties at the fairness hearing, the requirements of C.R.C.P. 23, and all other matters of record.” [Id.]; see also [Doc. 50-4 (Consent Decree)].

Relatedly, the court found that certification of the class for settlement purposes was warranted because the plaintiffs had satisfied all the requirements under Colorado Rules of Civil Procedure 23(a) and 23(b)(2)-numerosity of class members, commonality of questions of fact, typicality of claims and defenses, and fair and adequate representation of interests by the named plaintiffs and class counsel. [Doc. 50-1 at 3-4].

Moreover, the court found that “the CDOC Class Settlement provides significant benefits to the Settlement Class, benefits to inmates who are not class members, and provides new resources to CDOC” as follows:

The CDOC Class Settlement contains detailed, concrete steps that are consistent with the Center for Disease Control's best practices. CDOC and Settlement Class Counsel will retain an independent expert to advise CDOC on COVID-19 treatment, prevention, and policy. CDOC will also provide inmates access to cleaning supplies, masks, and resources related to testing, quarantining, and access to recreation during a COVID-19 outbreak. The CDOC Class Settlement will advance protections for medically vulnerable inmates and aid CDOC in implementing policies to protect said population from COVID-19. In addition, to support consistent communication across all CDOC facilities, the CDOC Class Settlement includes notice to all inmates and staff regarding the Consent Decree and the protocols and procedures of CDOC. It also requires that inmates be given guidance on how to protect themselves from COVID-19 to reduce COVID-19 transmission.

[Id. at 7].

Additionally, in the Consent Decree, Judge Myers explained that “[i]n connection with the Release and Settlement Agreement … this Consent Decree was agreed to by the Plaintiffs, on behalf of themselves and the Settlement Class, and by CDOC.” [Doc. 50-4 at 2, ¶ 5]. The Consent Decree “will remain in full force and effect until the earliest of the following occur: the parties mutually agree and stipulate to the termination of the Order; (2) the Court terminates it after a showing of good cause by a preponderance of the evidence at an evidentiary hearing by either party; or (2) WHO or CDC declare that Colorado, the United States or globally is in the post-pandemic phase for COVID-19.” [Id. at 2, ¶ 10]. Further, “[i]f the Colorado Governor rescinds the March 11, 2020 Executive Order D 2020 003 Declaring a Disaster Emergency Due to the Presence of Coronavirus Disease 2019 and subsequent orders extending the same or the order expires on its terms, there shall be a presumption that this Order will terminate absent a showing of good cause for its continuation by either party.” [Id.].

Exhibit B - Release and Settlement Agreement. The Release and Settlement Agreement (“Winston Agreement” or “Settlement Agreement”) applies to “[a]ll current and future persons incarcerated by CDOC who might be at moderate to high risk of serious illness or death from COVID-19 because they:

1. are age sixty (60) or older; or

2. have one or more of the underlying medical conditions recognized by the CDC or WHO as causing a person to be at moderate to high risk of death or serious illness from COVID-19…

[Doc. 50-2 at 1-2, ¶ 5].¹⁵ As of the date of the court's Order, those underlying medical conditions included asthma, diabetes, cardiovascular disease, and hypertension, among others. [Id.]. The Agreement provides for a release and waiver of claims:

RELEASE: The Named Plaintiffs, the Settlement Class Members, including their successors, agents, and assigns, and each of them hereby release, waive, acquit, and forever discharge CDOC and its current or former employees, and are hereby forever barred and precluded from prosecuting causes of action, suits, claims or controversies seeking any and all forms of non-monetary relief arising out of acts or omissions prior to the Effective Date, whether presently known or unknown, that have been or could have been asserted in this Matter, including those that pertain to the measures taken by CDOC, or lack thereof, in response to the COVID-19 Pandemic.

Settlement Class Members further waive any claims for incidental non-individualized class wide damages, as defined by C.R.C.P. 23(b)(2); See, e.g., Clark v. State Farm Mut. Auto. Ins. Co., 245 F.R .D. 478, 487 (D. Colo. 2007), aff'd, 590 F.3d 1134 (10th Cir. 2009)

The Parties expressly acknowledge that nothing herein releases or otherwise affects in any way:

• any individual claim for damages;

• the ability of any person to apply for sentence reduction, compassionate release, individual habeas, parole, clemency or earned time credits, or for referral or acceptance to community corrections;

• any rights, remedies, obligations or claims under any order or settlement entered into by CDOC prior to the filing of the Case;

• any claims related to accommodations required by prisoners with disabilities that are not of the type needed to protect them from COVID-19, pursuant to the ADA or CADA; and;

• an individual's right to seek an injunction or declaratory relief related to medical care unrelated to COVID-19.

[Id. at 2-3, ¶ 7].

15 Where the court refers to the filings made in Electronic Court Filing (“ECF”) system in this action, it uses the convention [Doc. ] and the associated page numbers generated by the ECF. For consistency and ease of reference, where such a document also contains separately numbered paragraphs, see, e.g., [Doc. 50-2], the court then refers to the internal paragraph number associated with that document-for example [Doc. 50-2 at 1, ¶ 1].

Having reviewed the State Court Settlement Documents and applicable case law, this court finds it appropriate to take judicial notice of the State Court Settlement Documents here without converting Defendants' Motion to one for summary judgment. Defendants proffer the State Court Settlement Documents in support of their argument that “Mr. Peoples' claims for injunctive relief arising from CDOC's response to the COVID-19 pandemic are barred by res judicata.” [Doc. 50 at 7]. Moreover, Plaintiff does not dispute the authenticity of the documents, and instead argues that the State Court Settlement does not preclude his claims in this action. See, e.g., [Doc. 58 at 8-16]. Because Defendants submit the State Court Settlement Documents to challenge Plaintiff's ability to assert his remaining Section 1983 claim altogether, I consider this evidence in assessing whether Plaintiff is barred by the Winston Settlement from doing so. See Johnson v. Spencer, 950 F.3d 680, 705 (10th Cir. 2020) (“It, thus, is unremarkable that courts frequently take judicial notice of prior judicial acts found in records and files when evaluating the merits of a purported claim preclusion defense.” (citing St. Louis Baptist Te m p l e , 605 F.2d at 1172 (“The doctrine of judicial notice has been utilized, [s]ua sponte, when the defending party's motion for summary judgment is predicated on affirmative defenses such as [r]es judicata or collateral estoppel, as in the case at bar.”))); see also 21B Fed. Prac. & Proc. Evid. § 5106.4 (2d ed.) (“Courts can properly notice prior judicial acts for the purpose of acting upon them. The best-known example is the use of judicial records in ruling on a claim that the present case is barred or controlled by res judicata.” (footnotes omitted)).

C. Application - Claim Preclusion (Res Judicata)

As mentioned above, Defendants contend that Plaintiff's remaining Section 1983 claim for injunctive relief is barred by the Winston Settlement. See [Doc. 50 at 7-11]. Defendants argue that all the elements of claim preclusion are satisfied in this case-that is, there was a final judgment on the merits in the Winston action, the parties here are in privity with the parties in Winston, and “the cause of action in Winston was substantively identical to the one at issue here.” [Id. at 8-11].

Relevant here, under the U.S. Constitution's Full Faith and Credit Clause, as implemented in 28 U.S.C. § 1738, a federal court must give a state-court judgment “the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Wa r r e n City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (holding that a § 1983 claim not raised in state court was precluded from being raised in subsequent federal case). The preclusive effect of the Winston Settlement is thus determined by Colorado l aw. See Id. Generally, as Defendants acknowledge, a second judicial proceeding is precluded by a prior case when there is “(1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity or privity between parties to the actions.” Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo. 2005). The party against whom claim preclusion is sought must have had a full and fair opportunity to litigate the issue in the first proceeding. Byrd v. People, 58 P.3d 50, 54 (Colo. 2002). Further, “Defendants have the burden of setting forth facts sufficient to satisfy the elements of res judicata.” Edmond v. Clements, No. 11-cv-00248-RBJ-KLM, 2012 WL 2523077, at *11 (D. Colo. Jan. 19, 2012) (citations omitted).

Though not addressed by Defendants, the inquiry with respect to the preclusive effect of class actions under Colorado law is broader than traditional claim preclusion. See Jahn ex rel. Jahn v. ORCR, Inc., 92 P.3d 984, 988 (Colo. 2004) (citing Phillips Petroleum v. Shutts, 472 U.S. 797, 811-12, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985)) (additional citations omitted). In addition to the traditional three requirements of claim preclusion, due process must be satisfied before a class action can bind class members to a class judgment.” Id. (citing In re Gen. Am. Life Ins. Co. Sales Practices Litig., 357 F.3d 800, 804 (8th Cir. 2004)). “Courts have generally held that in class actions for injunctive relief, due process is satisfied when class members are adequately represented.” Id. (citations omitted).

Here, given that this court has taken judicial notice of the Winston Settlement Documents, I find that all four elements of claim preclusion are satisfied here. Plaintiff alleges he was 66 years old and suffers from various medical conditions, including asthma, heart disease, diabetes, and hypertension, [Doc. 1 at 6, ¶¶ 9-10; Doc. 58 at 10], which makes him a member of the Winston Settlement Class. See [Doc. 50-2 at 1-2, ¶ 5]. His remaining Section 1983 claim falls squarely within the release clause by seeking injunctive and declaratory relief “for deliberate indifference in violation of the Eighth Amendment based on the alleged actions of the defendants in their official capacity to implement measures reasonably designed to protect plaintiff from COVID-19, ” [Doc. 40 at 4], which clearly “pertain to the measures taken by CDOC, or lack thereof, in response to the COVID-19 Pandemic” under the Settlement Agreement, see [Doc. 50-2 at 2, ¶ 7]. And, as Judge Myers recognized in the Order Approving Settlement, the release is legally enforceable as the Denver District Court “reserves continuing and exclusive jurisdiction over the CDOC Class Settlement to administer, supervise, construe and enforce its terms for the mutual benefit of the parties thereto, ” and “[t]he Court's ongoing jurisdiction extends to CDOC, through Defendant Williams, and all members of the Settlement Class.” [Doc. 50-1 at 12].

Mr. Peoples, Jr. nevertheless disagrees that his case is barred by the Winston Settlement. In his Response, Plaintiff levies a collateral attack on the Winston Settlement, arguing that the class action did not adequately represent his interests. See generally [Doc. 58 at 8-16]. For the sake of completeness, and given the dispositive nature of Defendants' Second Motion to Dismiss, the court will address Plaintiff's arguments in accordance with the elements of claim preclusion under Colorado law-that is, whether there was (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity or privity between parties to the actions. See Argus, 109 P.3d at 608.

1. Element 1 - Finality of Judgment

Plaintiff does not challenge the first element, and this court finds no basis to do so. On February 10, 2021, Judge Myers entered the order dismissing the Winston action, with each of the parties to bear their own attorney's fees. Pursuant to Colorado Rule of Civil Procedure 41(b),

[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this section (b) and any dismissal not provided for in this Rule, other than a dismissal for failure to prosecute, for lack of jurisdiction, for failure to file a complaint under Rule 3, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

Colo. R. Civ. P. 41(b). The state court's order contains no language indicating that the action was not adjudicated on the merits. See [Doc. 50-1 at 12 (“The Court hereby finds that all claims against Defendant Williams have been resolved and there is no just reason for delay in entering final judgment as to Defendant Williams.”)]. Thus, I find that the state court order represents a final judgment on the merits.

2. Element 2 - Identity of Subject Matter

“[I]dentity of subject matter can be evaluated by determining whether the same evidence would be used to prove the claims, even if the actions are different.” Foster v. Plock, 394 P.3d 1119, 1127 (Colo. 2017). If the same evidence would sustain the judgment in both the first and second case, then identity of subject matter is satisfied. Id. Defendants argue that Plaintiff “seeks injunctive relief as a result of Defendants' alleged failure to implement adequate protective measures against COVID-19” and “[t]hose claims arose from the same transaction as the ones at issue in Winston and fall firmly within the scope of the release in the settlement agreement that resolved that action.” [Doc. 50 at 11]. This court finds that there is no dispute as to the identity of subject matter. Indeed, Mr. Peoples, Jr.'s remaining Section 1983 claim and the Winston plaintiffs' claims turn on the same evidence-the measures taken by the CDOC to prevent the spread of COVID-19, including “discovery related to its COVID policies and procedures and identification of medically vulnerable inmates, ” see [Doc. 50-1 at 1]. Plaintiff's Response to the Second Motion to Dismiss supports this conclusion:

The Constitution requires prison officials to provide reasonable safety for prisoners. They must protect them from unreasonably hazardous living and working conditions, and must refrain from threats, intimidation, or physical punishment. Officials failure to follow their own rules, regulations, and the Governor executive order, or policies concerning protection of prisoners support a deliberate indifference claim. Therefore, the Colorado Dept. of Correction lacks a prison policy addressing a particular problem in Plaintiffs complaint and the Winston settlement fails to address inmates who are medical restricted and forced to work in dangers conditions. This is evidence of deliberate indifference where prison officials had actual knowledge and failed to protect not only the Plaintiff, but also other class of inmates in similar situation who have been identified as an at risk prisoners. …

Plaintiff asserts that Defendants' failure to take any actions to exclude him from immediate danger violated his Eighth Amendment rights and subject upon him to cruel and unusual punishment. This has not been addressed and corrected and continues to plague the CDOC.

[Doc. 58 at 10-11]. Thus, the court finds that identity of subject matter exists here.

3. Element 3 - Identity of Claims for Relief

The identity of claims prong requires the court to determine “whether the claim at issue in the second proceeding is the same claim that was (or could have been) brought in the first proceeding.” Foster, 394 P.3d at 1127. With respect to this element, Colorado has adopted the approach of the Restatement (Second) of Judgments, which holds that a judgment “extinguishes the plaintiff's claim, including all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Argus, 109 P.3d at 609 (citing Restatement (Second) of Judgments § 24 (1982)) (alterations omitted). Claims arise out the same transaction “when they seek redress for essentially the same basic wrong, and rest on the same or a substantially similar factual basis.” Foster, 394 P.3d at 1127 (citation omitted). It is the underlying injury, not the proffered legal theory, that determines whether the identity of claims element is met. Id.

As mentioned above, Defendants argue that Plaintiff “seeks injunctive relief as a result of Defendants' alleged failure to implement adequate protective measures against COVID-19” and “[t]hose claims arose from the same transaction as the ones at issue in Winston and fall firmly within the scope of the release in the settlement agreement that resolved that action.” [Doc. 50 at 11]. Mr. Peoples, Jr. contends that while “the cases may appear to be similar in nature, the nucleuses are not the same” between his case and Winston. [Id. at 8]. Specifically, Plaintiff argues that “in the Winston case, the nucleus was about CDOC failing to provide adequate safety preventions to vulnerable inmates with in [sic] a particular class, ” [id.], “[w]here[as] in Plaintiff's case, the nucleus differs” because Plaintiff is “a medically restricted individual being subjected and directed through virtues and vice to work in the kitchen, the black water cesspool, where the virus germinated and spread in the quagmire, ” [id. at 9]. Plaintiff states that “[h]e was forced to work through threats and coercion regardless of his medical assessments or restrictions” and, despite Defendants' knowledge of Plaintiff's restrictions, “no official took action to rescue Plaintiff from the kitchen work that was dangerous to his health and that in fact resulted in damage to him.” [Id. at 10]. Accordingly, Plaintiff argues, the CDOC “lacks a prison policy addressing a particular problem in Plaintiff's complaint and the Winston settlement fails to address inmates who are medical [sic] restricted and forced to work in dangers [sic] conditions.” [Id.].

Plaintiff also challenges the timing of the Winston Settlement in support of his position that his case is different, arguing that “Defendants are attempting to integrate the settlement of a State class action lawsuit into Plaintiffs civil complaint as through [sic] they are one in the same, but they are not.” [Id. at 8]. Specifically, Plaintiff filed the operative Complaint on June 20, 2020, [Doc. 1], while the Denver District Court preliminarily approved the Class Settlement on December 1, 2020, see [Doc. 50-1 at 2]. Accordingly, Plaintiff argues, “Defendants cannot put forth a class lawsuit that was considered six months after the Plaintiff's filing on June 20, 2020” because “Plaintiff was not considered as part of the Winston class action lawsuit at the time he filed his civil complaint.” [Id. at 8-9]. The court finds Plaintiff's arguments unavailing for several reasons.

First, while Plaintiff claims that his case “does not arise from all the same nucleus of operative fact or … same factual predicate involving the same cause of action” as the Winston action, see [Doc. 58 at 15], as noted above, it is the underlying injury, not the proffered legal theory, that determines whether the identity of claims element is met. See Foster, 394 P.3d at 1127 (citation omitted).

Second, Plaintiff fails to identify any actual differences between the underlying injuries he is claiming and those asserted in the Winston action. Plaintiff nevertheless attempts to distinguish the cases, arguing that “the nucleus [in Winston] was about CDOC failing to provide adequate safety preventions to vulnerable inmates with in [sic] a particular class, ” [Doc. 58 at 8], while “the nucleus differs” here because Plaintiff is “a medically restricted individual being subjected and directed through virtues and vice to work in the kitchen, the black water cesspool, where the virus germinated and spread in the quagmire, ” [id. at 9]. In other words, Plaintiff argues the factual allegations in his case differ from the those at issue in Winston by pointing to his allegations concerning being required to work in the prison facility's kitchen. [Id. at 9-10].¹⁶ However, the “vulnerable inmates” in a “particular class” Plaintiff references are indeed the members of the Winston Settlement Class-of which, as discussed above, Plaintiff is a member. See [Doc. 50-2 at 1 ¶ 5 (defining the “Settlement Class” as “all current and future persons incarcerated by CDOC who might be at moderate to high risk of serious illness or death from COVID-19 because they: 1. are age sixty (60) or older; or 2. have one or more … underlying medical conditions …”)]. In any event, as Defendants aptly point out in their R epl y, this court already dismissed Mr. Peoples, Jr.'s first claim for relief concerning being forced to work in the facility kitchen during the COVID-19 pandemic. See [Doc. 64 at 5]; see also [Doc. 40, Order on Motion to Dismiss]. Accordingly, I respectfully agree with Defendants that “[t]his claim is no longer at issue, and Mr. Peoples cannot rely on it to distinguish his surviving claim from the claims in Winston.” [Doc. 64 at 5].

16 Plaintiff likewise asserts that Winston did not address his claims of being exposed to an “imminent danger” of becoming infected. See [Doc. 58 at 7, 12-13 (emphasis in original)]. In clarifying the “imminent danger” to which Plaintiff refers, he proceeds to discuss the CDOC's actions “in March of 2020, ” stating that “it was the responsibility of the Executive Director to ensure that … his employees adhere to their own AR-850-15 and it was Wa r d e n Jeff Longs' responsibility … to ensure that his employees adhere to the AR.” [Id. at 13]. Plaintiff's argument continues: “Jeff long failed to fulfill said obligations when he was put on ‘Notice' that his employees … were violating not only the Plaintiff's constitutional rights to imminent danger, but also other inmates in the Plaintiff's position.” [Id. (emphasis in original)]. And “[a]s a result of the defendants' deliberate indifference, the Plaintiff suffered immense physical pain and injury by being forced to work in [the] kitchen.” [Id. at 14]; see also [id. at 15 (“The Plaintiffs contentions are significantly different even if there is some minor factual overlap. Res judicata does not apply to the allegations asserted above that the Plaintiff was placed into the position of being injured, threatened and forced to do a job that he was not psychology, physically or medically qualified to perform due to his medical restrictions.”)].

Third, the fact that the Winston Settlement was approved after Plaintiff filed his lawsuit makes no difference to the court's analysis, and Plaintiff provides no support for his argument that the Winston Settlement does not apply to him simply because it was entered after Plaintiff initiated this action. Indeed, with respect to time constraints, all that is required to bar a second judicial proceeding is “finality of the first judgment, ” regardless which party filed its claim before the judgment was entered. See Argus, 109 P.3d at 608. Likewise, “claim preclusion also bars a litigant from splitting claims into separate actions because once judgment is entered in an action it ‘extinguishes the plaintiff's claim … includ[ing] all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.'” Argus, 109 P.3d at 609 (citing Restatement (Second) of Judgments § 24 (1982)). Accordingly, the court finds that there is an identity of claims here.¹⁷

17 In Pack, the plaintiff sued the defendants for damages in their individual capacities alleging that they failed to protect the plaintiff from exposure to asbestos, in violation of his Eighth Amendment rights. 348 F.Supp.2d at 66. In their motion for summary judgment, the defendants argued that the prior adjudication of the plaintiff's negligence claims in the New York State Court of Claims barred the plaintiff from bringing his action in federal court. Id. at 68. The Southern District of New York disagreed with the defendants on the basis that “a later claim arising from the same nucleus of facts as a previously adjudicated claim is not barred if the initial forum lacked the power to grant the full measure of relief sought in the later litigation.” Id. at 69 (citations omitted). The court noted that the plaintiff had previously asserted claims “against New York State in the Court of Claims that arose from his alleged exposure to asbestos” but the Court of Claims did not have jurisdiction over claims brought against state officials in their individual capacities.” Id. (citations omitted). Thus, the court found that the Court of Claims did not have the power to grant the “full measure of relief” sought by the plaintiff in his federal case, where he sought to recover against state officials in their individual capacities. Id. Here, Plaintiff does not argue that the Denver District Court lacked the power to grant the full measure of relief that Plaintiff seeks in this litigation-namely, “injunctive relief arising from CDOC's response to the COVID-19 pandemic are barred by res judicata, ” see [Doc. 50 at 7]. Indeed, the Winston Settlement reflects that the Denver District Court both had and exercised such power in resolving the Winston action. In Matosantos, a restaurant supplier sued a restaurant franchisor for breach of contract, alleging the franchisor had orally assumed liability for payment under a contract between the supplier and a franchisee when the franchisor's subsidiary took over the franchise. 245 F.3d at 1205-06. The United States District Court for the District of Puerto Rico dismissed that case for lack of personal jurisdiction, finding that the franchisor did not assume or promise to assume the franchisee's obligations. Id. at 1206. The supplier then brought a second action against the franchisor in the United States District Court for the District of Kansas, asserting identical claims for payment based on the same alleged oral representations. Id. The Kansas district court determined that the issue presented in the supplier's complaint “was identical to the issue decided by the Puerto Rico district court” and rejected the supplier's arguments trying to prove otherwise. Id. at 1206-07. In affirming summary judgment in favor of the restaurant, the Tenth Circuit found that all of the elements of collateral estoppel (or issue preclusion) were met. Here, Plaintiff does not explain how Matosantos supports his argument, particularly given the Tenth Circuit's determination barring the supplier from reasserting identical issues in a second action. Plaintiff also cites Pack v. Artuz, 348 F.Supp.2d 63 (S.D.N.Y. 2004) and Matosantos Commercial Corp. v. Applebee's International, Inc., 245 F.3d 1203 (10th Cir. 2001) in support of his argument that an “earlier suit cannot bar a later suit if the factual and legal issues are not the same, even if both suits arise from the same occurrence.” [Doc. 58 at 11]. However, even if those cases applied to Plaintiff's case-which they do not-Plaintiff fails to explain how “the factual and legal issues are not the same” between his case and Winston, as explained herein.

4. Element 4 - Identity or Privity Between the Parties

As to the fourth element, the record before the court reflects that there was privity between the parties here and in Winston. When addressing the privity requirement, Colorado courts look to whether there is a “commonality of interest” between the parties in the two actions. City and Cty. of Denver v. Consolidated Ditches Co., 807 P. 2 d 23, 33 (Colo. 1991). “Privity between a party and a non-party requires both a ‘substantial identity of interests' and a ‘working or functional relationship … in which the interests of the non-party are presented and protected by the party in the litigation.'” S.O.V. v. People in Interest of M.C., 914 P.2d 355, 360 (Colo. 1996) (quoting Pub. S e rv. Co. v. Osmose Wo o d Preserving, Inc., 813 P.2d 785, 787 (Colo.App. 1991)) (ellipses in original). “In analyzing privity for purposes of res judicata, a court should look to the underlying relationship of the parties.” Turkey Creek Ltd. Liab. Co. v. Anglo Am. Consol. Corp., 43 P.3d 701, 703 (Colo.App. 2001) (citation omitted). “In the class context, this relationship exists when the putative class members' interests are adequately represented.” Goldsworthy v. Am. Fam. Mut. Ins. Co., 209 P.3d 1108, 1116 (Colo.App. 2008). “[T]he question of adequate representation for purposes of res judicata is whether the class representative, through qualified counsel, vigorously pursued and protected the interests of the class.” Pelt v. Utah, 539 F.3d 1271, 1288 (10th Cir. 2008).

Defendants argue that privity existed because Mr. Peoples, Jr. “was also a party to the Winston case as a member of the settlement class - he is an inmate in CDOC custody who, at 67 years of age, is over the age of sixty.” [Doc. 50 at 9]. Further, “Peoples was provided notice of the class settlement in Winston before it was finalized” and he “was not afforded the opportunity to opt out of the class settlement, ” thus making Mr. Peoples, Jr. a party to the Winston Settlement Agreement. [Id.]; see also [Doc. 50-1 at 1, 11]. Defendants also argue that privity existed between themselves and CDOC Executive Director Dean Williams, who was a defendant in Winston, on the basis that Executive Director Williams “is the head of the CDOC and is [Defendants'] superior.” [Doc. 50 at 9]. Additionally, Defendants contend that, “[a]ccording to Winston, all of the CDOC's employees and assigns are released from being liable for injunctive relief.” [Id.]; see also [Doc. 50-2 at 2, ¶ 7].

Mr. Peoples, Jr. argues that his interests were not adequately represented in this Winston Settlement. He contends that the Winston class representatives “represent[] only part of the interest of the Plaintiff's injunctive relief” because “[e]ach Plaintiff in the [Winston] complaint filed his lawsuit claiming that CDOC acted with deliberate indifference to the levies [sic] and health of persons in its custody by failing to take necessary measure to prevent the spread of COVID-19.” [Doc. 58 at 11]; see also [id. at 14 (stating the Winston case “arose from other inmates, implementing that CDOC failed to protect them from the COVID-19 virus amounted to deliberate indifference of their constitutional rights”)]. Additionally, given that the Winston case “did not involve this Plaintiff … until December 3, 2020, ” Plaintiff argues that the “protective measures set forth in the Winston consent decree did not result in settling this Plaintiff's constitutional issue.” [Id. at 15]. Plaintiff's arguments are unpersuasive.

First, Plaintiff acknowledges that he indeed became “part of the Winston class action” after he filed his Complaint in this action. See [id.]. And as discussed above, Plaintiff's challenges based on the fact he filed his Complaint before the Winston court entered the Settlement Agreement makes no difference here. Accordingly, as Plaintiff is a member of the Winston Settlement Class, this court finds there was a commonality of interest between Plaintiff and the Winston plaintiffs. Moreover, due to his status as a class member, Plaintiff had a functional relationship with the Winston plaintiffs such that his interests were raised and argued in the state court proceedings. See [Doc. 50-2 at 5]. Additionally, despite Plaintiff's assertions that he was not contacted by class counsel “to determine any type of negotiations between CDOC as a class member, ” [Doc. 58 at 15], Judge Myers found that the class counsel would “fairly and adequately represent the interests of the Settlement Class.” [Doc. 50-2 at 5]. Accordingly, there was commonality of interest between Mr. Peoples, Jr. and the Winston plaintiffs. In light of the adequacy of representation in the Winston proceedings and the fact that Plaintiff was a member of the Settlement Class in those proceedings, this court is satisfied that privity existed between Mr. Peoples, Jr. and the Winston plaintiffs. See Breaux v. Am. Fam. Mut. Ins. Co., No. 04-N-191, 2005 WL 8159284, at *6 (D. Colo. Mar. 23, 2005) (“In light of the adequacy of representation in the state court proceedings and the fact that Plaintiff was a member of the putative class in the state court proceedings, Plaintiff was in privity with the plaintiffs in the state court action”).

Second, there is privity between Defendants here and Executive Director Williams in Winston. Defendants state that Executive Director Williams “is the head of the CDOC and is their superior, ” [Doc. 50 at 9], and Plaintiff does not dispute this assertion. Rather, in the Complaint, Plaintiff acknowledges that each of Defendants was employed at the SCF, see [Doc. 1 at 2-3], and there is no dispute that SCF is a part of the CDOC. Indeed, all claims against Executive Director Williams in Winston were dismissed pursuant to the Order Approving Settlement [Doc. 50-2], and the release in the Settlement Agreement applies to “CDOC and its current or former employees.” [Doc. 50-2 at 2, ¶ 7]. Further, Plaintiff references Executive Director Williams by name in his Complaint and Response. See [Doc. 1 at 9 ¶ 6 (“The Executive Director Dean William[s] has created within its prison system authorizing housing for the COVID-19, which is no more then [sic] solitary confinement that creates an atmosphere of fear and mistrust that prevents inmate from reporting their symptoms.”); [Doc. 58 at 13 (“Defendants knew that a substantial risk to the Plaintiffs' health and safety would occur upon the Plaintiff who had been determined to be a vulnerable medical inmate due to the Executive Director Dean Williams' order prior threatening the Plaintiff by forcing him to report to the facility kitchen for an eight-hour work shift.”). Given Executive Director Williams' status as the head of the CDOC and the Winston Settlement's applicability to “CDOC and its current or former employees, ” [Doc. 50-2 at 2 ¶ 7], the court finds that privity exists between Defendants here and Executive Director Williams in the Winston action.

Accordingly, the court finds that Defendants have established that no material issue of fact remains to be resolved such that they are entitled to judgment as a matter of l aw. For the foregoing reasons, I respectfully RECOMMEND that Plaintiff's remaining Section 1983 claim be DISMISSED with prejudice.

III. Motion for Leave to Amend

After the Parties completed their briefing with respect to the Second Motion to Dismiss, Plaintiff filed his Motion for Leave to Amend, requesting that the court “allow him to bring an Amended Civil complaint naming the Governor, the CDOC, the CDOC Executive Director, and multiple current and former CDOC employees as Defendants.” [Doc. 73 at 2].

Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). The court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 900 (10th Cir. 2004); see also E.SPIRE Commc'ns, Inc. v. New Mexico Pub. Regulation Comm'n, 392 F.3d 1204, 1211 (10th Cir. 2004); Ketcham v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992). Whether to allow amendment is within the trial court's discretion. Burks v. Okla. Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996).

In support of his Motion for Leave to Amend, Plaintiff states “[t]he amended complaint will allege that Defendants' policies and practices are subjecting him and other inmates to an unreasonable risk of imminent danger ” and have “failed to protect” those individuals regarding certain requirements of inmates and CDOC employees to get vaccinated. [Id. (emphasis in original); id. at 5 (“Defendants have failed to meet their burden in protecting the plaintiff and other inmates who has been vaccinated.”)]. Plaintiff asserts that CDOC's “failure to follow their own rules, regulations, and the Governor executive order, or policies concerning protection of prisoners support a deliberate indifference claim.” [Id. at 3 ¶ 3].

This court finds that Plaintiff's proposed amendments would be futile as he seeks to amend the operative Complaint to readdress the same claims already at issue in this action. Indeed, Plaintiff acknowledges that he has already “addressed this same issue before that Defendants' has failed to take any actions to exclude him from immediate danger violated his Eighth Amendment rights and subject upon him to cruel and unusual punishment.” [Id. at 2 ¶ 1]. And as reflected herein, Plaintiff's remaining Section 1983 claim is barred by the Winston Settlement. Accordingly, this court finds that Plaintiff's attempts to amend his operative Complaint are futile, and respectfully RECOMMENDS that the Motion to Amend be DENIED.

CONCLUSION

For the reasons set forth herein, this court respectfully RECOMMENDS that:

(1) Defendants' Second Motion to Dismiss [Doc. 50] be GRANTED;

(2) Plaintiff's remaining Section 1983 claim for deliberate indifference in violation of the Eighth Amendment related to Defendants' failure to implement adequate preventative measures to protect Plaintiff from COVID-19 (Claim Two) be DISMISSED with prejudice; and

(3) Plaintiff's Motion for Leave to Amend [Doc. 73] be DENIED.¹⁸

18 Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int 'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).

Additionally, IT IS ORDERED that:

(1) A copy of this Recommendation, marked as legal mail, be sent to the following:

Louis Peoples, Jr. #43943 Sterling Correctional Facility (SCF) P.O Box 6000 Sterling, CO 80751