Opinion
Civil Action 20-cv-03205-WJM-STV
09-29-2021
ALLEN T. MINTER, JR., Plaintiff, v. LENGERICH, SHIELDS, HANSEN, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendants' Motion to Dismiss [#50] and Supplemental Motion to Dismiss [#65] (the “Motions”), which have been referred to this Court. [#51, 66] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Motions be GRANTED.
The facts are drawn from the allegations in Plaintiff's Second Amended Complaint [#43], which must be taken as true when considering the Motions. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
Plaintiff was an inmate at the Buena Vista Correctional Complex (“BVCC”) in Buena Vista, Colorado at the time he initiated this action. [#1 at 2] Between July 7, 2020, and September 22, 2020, and again between October 15, 2020, and November 28, 2020, Defendants placed BVCC in 24-hour lockdown. [#43 at 4] The lockdown eliminated recreation time, phone calls, programs, court access, religious services, and access to mental health care. [Id.] The above actions caused Plaintiff “serious physical and mental health issues that could become long-term.” [Id.]
Plaintiff, proceeding pro se, filed the instant action on October 26, 2020 [#1] and filed his Second Amended Complaint (the “Complaint”) on February 10, 2021 [#43]. The Complaint does not specify particular claims for relief, but appears to be asserting the following claims: (1) a Fifth Amendment Due Process claim; (2) a First Amendment access to the courts claim; and (3) an Eighth Amendment conditions of confinement claim. [Id. at 4] Plaintiff seeks damages and injunctive relief. [Id. at 6]
Defendants filed a Motion to Dismiss on April 26, 2021. [#50] Plaintiff did not file any response. On June 28, 2021, this Court ordered the parties to file notices detailing “whether Plaintiff is still incarcerated at BVCC.” [#61] Defendants filed a Notice, indicating that Plaintiff is no longer at BVCC and “was transferred to Community Corrections at Commerce Transitional Center.” [#64 at ¶ 4] Defendants then filed their Supplemental Motion to Dismiss on July 8, 2021. [#65] Plaintiff did not file a response.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
When considering a Rule 12(b)(1) motion the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). If the facts upon which subject matter jurisdiction depends are challenged, a court may not presume the truthfulness of the complaint's “factual allegations . . . [and it] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
Defendants argue that Plaintiff's claims for injunctive relief are moot and that Plaintiff has failed to plead any constitutional violation. [See generally ##50, 65] The Court will address each argument in turn.
1. Injunctive Relief
The Complaint seeks an injunction “to forbid [Defendants] from transfer[r]ing inmates from one facility to another to mitigate the effects of the [COVID-19] virus.” [#43 at 6] Defendants argue that Plaintiff's request for injunctive relief is moot because: (1) Plaintiff does not allege ongoing constitutional violations and (2) Plaintiff is no longer incarcerated at the facility he seeks injunctive relief from. [##50 at 8-9; 65]
“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). “This 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. “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 (1983)). In other words, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974); accord Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir.2011).
The Court agrees with Defendants that Plaintiff's claim for injunctive relief is moot. The Complaint only contains factual allegations related to the conditions of lockdown, not to any impact on Plaintiff from Defendants transferring inmates between facilities. [See generally #43] Moreover, the Complaint alleges that the lockdown conditions themselves, which created the alleged violations of Plaintiff's constitutional rights, lasted only from July to September 2020, and again from October to November 2020. [#43 at 4] The Complaint does not allege that the lockdown conditions are ongoing or that they are related to prisoner transfers-nor does it allege facts to suggest that Plaintiff is likely to be subjected to the conditions complained of in the Complaint in the future. Thus, the Court cannot identify an “actual injury that can be redressed” through injunctive relief. Rhodes, 676 F.3d at 933; see also Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991) (finding plaintiff cannot maintain an action for injunctive relief “unless he . . . can demonstrate a good chance of being likewise injured in the future”)
Moreover, even if the lockdown conditions were to occur again at BVCC, Plaintiff is no longer at that facility. [See #64] And, “[w]here the prisoner's claims for declaratory or injunctive relief relate solely to the conditions of confinement at the penal institution at which the prisoner is no longer incarcerated, courts have concluded that they are unable to provide the prisoner with effective relief.” Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011); see also White v. State, 82 F.3d 364, 366 (10th Cir. 1996) (holding that plaintiff's claims for injunctive relief were mooted by his release from incarceration); Simpson v. Lewis, No. 20-CV-01556-WJM-GPG, 2021 WL 467340, at *2 (Jan. 19. 2021) (recommending dismissal of claims for injunctive relief on prison COVID conditions because plaintiff was no longer at that facility), report and recommendation adopted 2021 WL 463632 (Feb. 9, 2021).
Accordingly, this Court RECOMMENDS Defendants' Motions [#50, 65] be GRANTED to the extent they seek dismissal of Plaintiff's request for injunctive relief and that Plaintiff's claims for injunctive relief be DISMISSED.
2. Access to the Courts Claim
The right of access to the courts does not guarantee access to a law library or to legal assistance, but rather establishes the right to “the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Thus, the right of access to the courts “guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356. To state a right of access claim, a plaintiff “must demonstrate actual injury from interference with his access to the courts-that is, that the [plaintiff] was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or conditions of confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (citing Lewis, 518 U.S. at 351-55). “Conclusory allegations of injury in this respect will not suffice.” Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir. 2006)) (citing Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999)).
Here, Plaintiff merely asserts that Defendants “refus[ed]” access to the courts, but provides no facts and asserts no injury. [#43 at 4] Accordingly, this Court RECOMMENDS this claim be DISMISSED.
3. Due Process Claims
The Complaint asserts that Defendants violated Plaintiff's due process rights by imposing a lockdown, which prevented Plaintiff from engaging in recreation, phone calls, programs, and mental health services. [#43 at 4] Courts have long recognized that “prisoners do not shed all constitutional rights at the prison gate, but lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995) (internal quotations, citations, and alterations omitted). Thus, in order to establish that his due process rights have been violated, Plaintiff must show that he has been subjected to an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. The Tenth Circuit considers a number of factors in determining whether prison conditions impose an atypical and significant hardship, including conditions of the confinement, relation to penological purpose, length of placement, and whether conditions increased the duration of confinement. See Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007).
The Complaint does not plausibly allege that the restrictions imposed by the lockdown, such as limited access to persons, spaces, or amenities, were not reasonably related to a legitimate government interest; nor does it allege that the lockdown was indeterminate or increased the overall duration of Plaintiff's confinement. Estate of DiMarco, 473 F.3d at 1342. Moreover, Courts regularly reject claims that “lockdown” conditions and limited access to amenities violate the Due Process Clause. See, e.g., Simmermaker v. Trump, No. 20-cv-01671-KMT, 2021 WL 915985, at *4 (D. Colo. Mar. 10, 2021) (allegations of prohibition on iPads, video visits, televisions, and instruments do not implicate due process); Matthews v. Wiley, 744 F.Supp.2d 1159, 1172 (D. Colo. 2010) (general allegations of restricted liberty, amenities, recreation, visitation, and privileges do not implicate due process violation); Lekas v. Briley, 405 F.3d 602, 610-13 (7th Cir. 2005) (conditions including inability to participate in prison programs, loss of telephone usage, inability to receive family visits, inability to attend church or meet with clergy, and drastic reduction in the number and nature of personal items did not impose an atypical and significant hardship); Higgason v. Farley, 83 F.3d 807, 809-10 (7th Cir. 1995) (an inmate's confinement in disciplinary segregation with frequent lockdowns, restricted access to the law library, denial of educational opportunities, and loss of social and rehabilitative activities did not impose an atypical or significant hardship).
The Complaint therefore fails to allege a due process violation and this Court RECOMMENDS this claim be DISMISSED.
4. Deliberate Indifference
Finally, the Complaint appears to allege an Eighth Amendment conditions of confinement claim, by stating that the lockdown constituted “cruel and unusual punishment.” [#43 at 4] The Eighth Amendment “protect[s] against unjustifiable conditions of confinement, such as the unnecessary and wanton infliction of pain . . . or deliberate indifference to an excessive risk to a prisoner's health.” Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019) (quotations omitted). Prison officials violate the Eighth Amendment “only if the deprivation to which the prisoner has been subjected is ‘objectively sufficiently serious' and only if the prison official has a ‘sufficiently culpable state of mind.'” Grissom v. Roberts, 902 F.3d 1162, 1174 (10th Cir. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “‘In prison-conditions cases [the culpable] state of mind is one of deliberate indifference to inmate health or safety.'” Grissom, 902 F.3d at 1174 (quoting Farmer, 511 U.S. at 834). A “prison official[] who actually knew of a substantial risk to inmate health or safety may be found free from liability if they respond[ ] reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
Here, Plaintiff provides no facts, beyond conclusory allegations, to suggest that the lockdown conditions constituted an objectively serious risk to his health or safety. Plaintiff further fails to allege facts suggesting that Defendants acted with deliberate indifference. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (“Conclusory allegations are not enough to withstand a motion to dismiss.”). Accordingly, this Court RECOMMENDS this claim be DISMISSED.
5. Personal Involvement
Although this Court has already recommended dismissing all of Plaintiff's claims for failure to state any constitutional violation, it additionally addresses Plaintiff's failure to meet the requirements of a section 1983 claim. In order to maintain an individual capacity claim under section 1983, a Plaintiff must establish either personal or supervisory liability of the Defendants. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Personal liability must be based on personal involvement in a constitutional violation. Id. Supervisory liability requires: “(1) personal involvement[, ] (2) causation, and (3) [culpable] state of mind.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (citing Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)). To establish causation, a plaintiff must show that a supervisor defendant “set in motion a series of events that [he] knew or reasonably should have known would cause others to deprive [the plaintiff] of [his] constitutional rights.” Jensen v. Clyde, 989 F.3d 848, 858 (10th Cir. 2021) (quotation omitted).
Here, the Complaint wholly fails to allege facts establishing personal involvement by any Defendant. Accordingly, for this additional reason, this Court RECOMMENDS that all claims be DISMISSED.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants' Motions to Dismiss [##50, 65] be GRANTED and all claims against them be DISMISSED without prejudice. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
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, 57980 (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).
The Court further DIRECTS the Clerk of the Court to mail a copy of this Recommendation to Plaintiff's address of record and to Community Corrections at Commerce Transitional Center - Corecivic (CTC).