Oakley v. Williams

Full title: JACOB D. OAKLEY, Plaintiff, v. DEAN WILLIAMS, in his official capacity…

Court: United States District Court, District of Colorado

Date published: Feb 2, 2021

Civil Action 1:20-cv-01336-CMA-NYW (D. Colo. Feb. 2, 2021)

Opinion

Civil Action 1:20-cv-01336-CMA-NYW

02-02-2021

JACOB D. OAKLEY, Plaintiff, v. DEAN WILLIAMS, in his official capacity; ESTEP, in his individual and official capacities; BRODY SHEFFER, [1] in his individual and official capacities; and SIMPSON, in his individual and official capacities, Defendants.

NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE

This matter comes before the court for recommendation on Defendants' Motion to Dismiss Plaintiff's Complaint Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (“Motion” or “Motion to Dismiss”) [#48, filed August 31, 2020]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order of Reference dated June 9, 2020 [#12], and the Memorandum dated September 1, 2020 [#49]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having carefully reviewed the Motion and associated briefing [#52, #52-1, #52-2, #55, #56, #58], the docket, and applicable law, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED.

BACKGROUND

Plaintiff Jacob Oakley (“Plaintiff” or “Mr. Oakley”), an inmate of the Colorado Department of Corrections (“CDOC”) proceeding pro se, ² initiated this action by filing his Prisoner Complaint on May 11, 2020. [#1]. In Claim One, asserted against Dean Williams in his official capacity as Executive Director of the CDOC (“Defendant Williams, ” “Director Williams, ” or “CDOC”), ³ Plaintiff alleges violation of his rights arising under the Eighth Amendment for “reasonable safety, reasonably safe living conditions, reasonable safe housing, and right to mental well-being (i.e., to be free from psychological torture).” [Id. at 4]. Claim Two is asserted against Defendant Christopher Estep (“Defendant Estep” or “Dr. Estep”), Defendant Brody Sheffer (“Defendant Sheffer” or “Dr. Sheffer”), and Scott Simpson (“Defendant Simpson, ” or “Dr. Simpson” and collectively with Drs. Estep and Sheffer, the “Clinical Defendants”), in their individual and official capacities for violation of Plaintiff's Eighth Amendment right to reasonable safety for refusing to place Mr. Oakley on suicide watch. [Id. at 16].⁴ Claim Three alleges violations of the federal Fair Debt Collections Practices Act (“FDCPA”) and Colorado's Fair Debt Collections Practices Act (“CFDCPA”) against Director Williams in his official capacity arising from alleged discrepancies in Mr. Oakley's inmate account. See [id. at 23].

2 Because Mr. Oakley proceeds pro se, this court affords his papers and filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and 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).

3 It is axiomatic that naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

4 In liberally construing Mr. Oakley's Complaint, this court considers Claim Two also to be brought against Drs. Sheffer and Simpson, although they are not specifically identified as Defendants by Plaintiff in his heading, given his discussion of these Defendants in the body of Claim Two. [#1 at 16].

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 Motion to Dismiss.

Plaintiff's Incarceration at CDOC Facilities Generally.

Mr. Oakley is currently incarcerated at the CDOC's Centennial Correctional Facility (“CCF”) in Centennial, Colorado. [#1]. Since the age of four, Mr. Oakley has been diagnosed with serious mental illnesses. [Id. at 5]. Prior to his entry into the adult criminal justice system, Mr. Oakley received medical diagnoses including attention-deficit disorder, irresistible impulse disorder, post-traumatic stress disorder, paranoid schizophrenia, bipolar disorder, anxiety, and manic depression. [Id.]. Upon his entry into the adult criminal justice system, however, Mr. Oakley was met with bias, hostility, and disbelief from correctional facility doctors regarding his mental illnesses. [Id. at 6]. Nevertheless, he has at least at times been diagnosed by CDOC doctors as “seriously mentally ill.” [Id. at 6-7].

While in CDOC custody and as a result of his mental illness, Mr. Oakley has been targeted and exploited by various gangs. [Id. at 8]. Due to his mental illness, Mr. Oakley sometimes talks to himself, paces in his cell, and believes that prison staff is trying to poison him. [Id.]. During his incarceration at the CDOC's Arkansas Valley Correctional Facility (“AVCF”), “hardened gang bangers” did not tolerate Mr. Oakley's mental illness-related behavior, and warned Mr. Oakley that his failure to “act normal” would result in him getting “bashed out” or “killed.” [Id.]. Because Mr. Oakley could not “act normal, ” his only option was to pay “rent” to the gangs. [Id.]. He initially refused to pay rent at AVCF but, following a vicious attack wherein he was “beaten to a bloody pulp, ” Mr. Oakley stopped taking his needed medication so he could afford to pay rent to the gang members at the facility. [Id.].

Around December 2017, while incarcerated at CDOC's Limon Correctional Facility (“LCF”), Mr. Oakley was placed in a cell with a “gang banger.” [Id.]. Within a week of his placement, his cellmate assaulted Mr. Oakley, threatened to kill him, and extorted him for money. At some point during his incarceration at LCF, Mr. Oakley was also assaulted by a member of a different gang. [Id.].

Mr. Oakley was also threatened and assaulted by gang members while incarcerated at CDOC's Sterling Correctional Facility (“SCF”). [Id. at 9]. Specifically, gang members recognized Mr. Oakley from years prior, when Mr. Oakley engaged in erratic behavior that “always got the unit locked down.” [Id.]. The gang members at SCF threatened to kill Mr. Oakley in retaliation for his past behavior, and assaulted Mr. Oakley when he attempted to protect himself from harm. [Id.]. Roughly two weeks later, Mr. Oakley was moved from SCF and ultimately transferred to the CDOC's Fremont Correctional Facility (“FCF”). [Id.].

Plaintiff's Incarceration at Fremont Correctional Facility.

At FCF, Mr. Oakley was targeted by affiliates of the gang members he encountered at SCF. [Id.]. Tension between Mr. Oakley and the gang members escalated to the point that Mr. Oakley no longer felt safe in the dining hall, educational facilities, yard, or his cell. [Id. at 10]. His paranoia worsened, too, and he developed a belief that prison officials were plotting to place him in a cell with someone hired to kill him. [Id.].

While at FCF, Mr. Oakley “became so fearful for [his] life that [he] stopped sleeping and forced [him]self awake for days and weeks over a two to three month span.” [Id. at 16]. This sleep deprivation negatively affected his mental, emotional, and psychological health, driving Mr. Oakley “to the point of insanity” and prompting him to engage in self-harm. [Id.]. Convinced that every cellmate was hired to kill him, Mr. Oakley felt that his only options were to either kill his cellmate before they could kill him, or hurt himself seriously enough to be removed from the situation. [Id. at 10]. Mr. Oakley repeatedly told prison officials, including mental health staff, that his paranoia would cause him to become violent and thereby create a risk to his cellmate or himself unless he was placed in his own cell. [Id.].

On or about November 20, 2019, while at FCF and as a result of his deteriorating mental health, Mr. Oakley stabbed himself in his left hand and forearm with a sharp pencil. [Id. at 16]. He was subsequently placed on “Mental Health Observation Status” and later placed on suicide watch several times. [Id.]. Mr. Oakley was informed by FCF mental health staff that, in order for an offender to remain on suicide watch for more than three days, they were required to obtain approval from Dr. Estep, the supervisor “over all CDOC Mental Health programming in the state of Colorado.” [Id. at 20]. This required approval must be obtained every time an inmate has been on suicide watch for three consecutive days and the requirement is ongoing: even if initially approved, mental health staff must obtain approval every three days thereafter. [Id. at 10 (alleging that Dr. Estep's approval was required at least three times in the span of three-week placement on suicide watch)].

At one point, Mr. Oakley was placed on suicide watch for over two weeks. [Id. at 16]. During that timeframe, Dr. Sheffer, a Mental Health Clinician at FCF and Mr. Oakley's assigned clinician, informed him that Dr. Estep had instructed Dr. Sheffer to remove Mr. Oakley from suicide watch. [Id. at 16]. Upon hearing this news, Mr. Oakley “freaked out over the thought of reliving the fear of being brutally murdered in [his] sleep, and going through the sleep deprivation all over again.” [Id.]. Mr. Oakley then told Dr. Sheffer that, if removed from suicide watch, he “would swallow toenail clippers, make a shank and stab [him]self.” [Id.].

Dr. Sheffer then called Dr. Estep, relaying Mr. Oakley's threats and the fact that Mr. Oakley had acted on similar threats to self-harm in the past. [Id.]. Despite this information, Dr. Estep ordered Mr. Oakley be taken off of suicide watch. [Id.]. Nevertheless, Dr. Sheffer permitted Mr. Oakley to remain on suicide watch for an additional day. [Id.]. The following day, Dr. Simpson, another Mental Health Clinician at FCF, performed a mental health review of Mr. Oakley before ordering Mr. Oakley's removal from suicide watch. [Id. at 3, 16]. Mr. Oakley again threatened to self-harm if released. [Id. at 16-17].

Upon his removal from suicide watch, Mr. Oakley “refused housing in fear of [his] life, ” and was “taken to the Hole” as a result. [Id. at 17]. While “in the hole, ” Mr. Oakley again threatened to and did engage in self-harm. [Id.]. He cut himself on his forearm and chest to such a degree that “a good amount of blood drippage” was created. [Id.]. Prison staff notified FCF's mental health staff and Mr. Oakley was subsequently assessed by Dr. Sheffer. [Id.]. Dr. Sheffer was inclined to place Mr. Oakley on suicide watch but “by [Dr. Estep's] orders, . . . had to call him to get approval first.” [Id.]. Mr. Oakley was present for the phone call between Drs. Sheffer and Estep, wherein Dr. Sheffer informed Dr. Estep of Mr. Oakley's most recent act of self-harm and requested Dr. Estep's approval to place Mr. Oakley on suicide watch. [Id.]. Dr. Estep denied the request and Mr. Oakley was escorted back to the “segregation-hole where [he] would not be monitored and could continue to self-harm, ” and received no medical attention related to his self-inflicted injuries despite repeated requests for the same. [Id.].

Less than a week later, Mr. Oakley again engaged in self-harm by cutting himself. [Id.]. He was evaluated by Dr. Simpson, who declined to place Mr. Oakley on suicide watch. [Id.]. At Mr. Oakley's request, Dr. Simpson called Dr. Estep regarding his decision. [Id.]. Mr. Oakley was present for this phone call, wherein Dr. Estep “personally ordered that all mental health” staff decline to place Mr. Oakley on suicide watch “‘no matter how many times'” he harmed himself. [Id.]. Mr. Oakley told Dr. Simpson, who then told Dr. Estep, of Mr. Oakley's ability to obtain sharp instruments in “the hole” that would enable him to “cut [him]self to make [him]self bleed out, ” and FCF staff's inability to monitor Mr. Oakley and/or protect him for self-harm outside of suicide watch. [Id.]. Both Drs. Simpson and Estep agreed that Mr. Oakley's observations were “very true and likely to be accomplished, ” but nevertheless declined to place Mr. Oakley on suicide watch. [Id.]. Mr. Oakley harmed himself several times over the course of a matter of weeks but was denied suicide watch placement. [Id.].

Mr. Oakley alleges that the Clinical Defendants deprived him of his right to reasonable safety by acting with deliberate indifference, as demonstrated by their (a) refusal to place Mr. Oakley on suicide watch to ensure that he could be properly monitored by staff and unable to engage in further self-harm; (b) refusal to thwart Mr. Oakley's ability to gain access to sharp objects through other inmates by placing him in an isolated suicide watch cell; and (c) failure to “do anything about” Mr. Oakley's acts of self-harm after allowing him the opportunity to repeatedly engage in it. [Id. at 18].

Plaintiff's Inmate Banking Account.

Mr. Oakley also asserts a third claim for relief under federal and state statutes governing debt collection practices, premised on allegations concerning the balance of Mr. Oakley's inmate banking account and his “CDOC ordered debt.” Mr. Oakley's inmate account reflects a positive balance of “about 2.58 maximum each month.”⁵ [Id.]. Yet Mr. Oakley continues to be able to make payments on court-ordered restitution and purchases on canteen. [Id.]. He alleges that “without my contractual consent for consumer services in the form of payment loans, and loans to make nominal purchases on canteen, [the CDOC] [is] making loan-payments and purchase loans and adding towards the CDOC debt unfairly[.]” [Id.].

5 The court notes that this number could possibly read “258” rather than “2.58.” In any event, the actual maximum positive balance of Mr. Oakley's inmate account does not factor into this court's analysis.

Mr. Oakley has filed multiple grievances with the CDOC to dispute his “CDOC ordered” debt. [Id. at 23]. Specifically, Mr. Oakley believes that he has paid the debt already and is “grossly overcharged.” [Id. at 24]. Despite many attempts by Mr. Oakley to dispute the “CDOC ordered debt, ” the CDOC has never “validated” any of his debts. [Id. at 23]. His debt “seems to mysteriously increase each month” even though Mr. Oakley has “not made any consumer goods, purchases, nor contract for the increase of the debt, ” [id.], and the CDOC and its “ghost creditors” refuse to validate the debt and continue to collect from his inmate account [id. at 24].

II. Procedural History

This action was initiated on May 11, 2020, upon the filing of Plaintiff's pro se Prisoner Complaint (or “Complaint”). [#1]. On June 8, 2020, the Honorable Gordon P. Gallagher granted Plaintiff leave to proceed in forma pauperis and subsequently ordered the case reassigned. [#10; #11]. The case was assigned to the Honorable Christine M. Arguello and drawn to the undersigned Magistrate Judge. [#11].

Defendants filed the instant Motion to Dismiss on August 31, 2020. [#48]. On September 14, 2020, Plaintiff responded to the Motion to Dismiss by filing a “Motion to Dismiss Defendants Objection (ECF. No. 48) for Failure to State a Claim to Relief Under Rule 12(b)(1) and 12(b)(6), In Part” (“Response”). See [#52]. At a Status Conference held before the undersigned shortly thereafter, this court confirmed that page 20 of Plaintiff's Response was missing from the filing and ordered Plaintiff to file the missing page on or before September 30, 2020. See [#53]. Plaintiff subsequently supplemented his Response on September 28, 2020. [#55]. Defendants filed a Reply on October 20, 2020. [#56].

Approximately two weeks later, Plaintiff filed a “Motion to Strike the Defendants Second Motion to Dismiss” (“Motion to Strike”) [#58, filed November 2, 2020]. Judge Arguello referred Plaintiff's Motion to Strike to the undersigned [#59] and, upon review of the same, this court construes Plaintiff's Motion to Strike as a sur-reply to Defendant's Motion to Dismiss.⁶ The Motion to Dismiss is thus ripe for recommendation.

6 Although filed as a “Motion to Strike, ” this court construes Plaintiff's filing [#58] as a sur-reply to the Defendants' Reply to their Motion to Dismiss. In his brief, Plaintiff misinterprets Defendants' Reply as “an erroneous attempt” to “file a second motion to dismiss, ” and asks the court to deny the “second motion to dismiss” accordingly. See [id.

LEGAL STANDARDS

I. Rule 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)).

Relevant to this court's determination of subject matter jurisdiction here are two related but distinct jurisdictional doctrines: standing and mootness. “[S]tanding is judged by the state of facts as they existed when the plaintiff files the complaint.” Smith v. U.S. Immigration and Customs Enforcement, 429 F.Supp.3d 742, 755 (D. Colo. 2019) (citations omitted) (emphasis added). A plaintiff must establish Article III standing to bring each of his claims separately, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007), and assessed at the time of filing. The standing inquiry has two components: constitutional and prudential. To establish constitutional standing, a plaintiff must demonstrate “(1) an ‘injury in fact,' (2) sufficient ‘causal connection between the injury and the conduct complained of,' and (3) a ‘likel[ihood]' that the injury ‘will be redressed by a favorable decision.'” Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

A plaintiff must also satisfy the requirements of prudential standing. To establish prudential standing, a plaintiff must (1) assert his own rights, rather than those belonging to third parties; (2) demonstrate that his claim is not simply a “generalized grievance;” and (3) show that plaintiff's grievance falls within the zone of interests protected or regulated by statutes or constitutional guarantee invoked in the suit. See Bd. of Cty. Comm'rs v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) (citations omitted). The elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff's case.” Lujan, 504 U.S. at 561. Therefore, Article III standing cannot be assumed; the court must resolve issues of standing before it may reach the merits of an issue. See Colorado Outfitters Ass'n v. Hickenlooper (“Colorado Outfitters II”), 823 F.3d 537, 543 (10th Cir. 2016).

The United States Supreme Court has distinguished its mootness jurisprudence from its standing jurisprudence, while recognizing both are underpinned by Article III, § 2 of the Constitution. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“Laidlaw”). “Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” RMA Ventures California v. SunAmerica Life Ins. Co., 576 F.3d 1070, 1073 n.6 (10th Cir. 2009) (internal quotation marks omitted). Mootness is judged by the state of facts as they exist after the complaint is filed. Id.

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. Rule 12(b)(6)

Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible”).

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). Should the court receive and consider materials outside the complaint, the court may convert a Rule 12(b)(6) motion to a motion for summary judgment if the parties have notice of the changed status and the nonmovant responded by supplying its own extrinsic evidence. See Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004). However, a district court may consider legal arguments contained in a brief in opposition to dismissal or documents referred to in the complaint that are central to a plaintiff's claim, without converting the Rule 12(b)(6) motion into a summary judgment motion, if the Parties' do not dispute their authenticity. See Cty. of Santa Fe, N.M. v. Public Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). In addition, the court may consider documents subject to judicial notice, including court documents and matters of public record. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).

ANALYSIS

Defendants seek dismissal of the Complaint in its entirety. [#48]. Specifically, Defendants argue that this court lacks subject matter jurisdiction over Claim One under the mootness doctrine; Claim Two fails to state a claim for relief against the Clinical Defendants, who are entitled to qualified immunity; and Claim Three is barred by the doctrine of res judicata and fails to state a claim under either the FDCPA or its Colorado state law equivalent. [Id.]. I consider the Parties' arguments in turn.

I. Claim One

The court first considers whether it has subject matter jurisdiction to consider the merits of Claim One, which CDOC challenges as moot. Mootness implicates subject matter jurisdiction, and a court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 908 (10th Cir. 1974) (emphasis added).

In his first claim for relief, Mr. Oakley alleges that he has been housed with and targeted by gang members, and that he is a victim of violence at the hands of these gang members and “political convicts” because he shows signs of mental illness. [#1 at 8-11]. Mr. Oakley claims that CDOC has thereby violated his Eighth Amendment rights because it failed to protect him from gang member violence in various CDOC facilities. [Id. at 19]. Plaintiff seeks injunctive relief in the form of a court order mandating the creation of a separate housing unit for vulnerable inmates like Plaintiff to protect them from gang members and “political convicts” in the general inmate population. [Id. at 10-11]. CDOC argues that this court lacks subject matter jurisdiction over Claim One because it does not present an actual and justiciable controversy and is thus barred by the mootness doctrine. [#48 at 3-6]. Because CDOC relies upon a document outside of the four corners of the Complaint that Mr. Oakley does not refer to or incorporate into his operative pleading [id. at 5 (citing [#48-1 (CDOC Administrative Regulation (or “AR”) 650-02 at 1)])], this court construes its argument as a factual challenge to subject matter jurisdiction.

Here, CDOC avers that Plaintiff's requested relief from the court already exists in the form of protective custody and thus, Mr. Oakley cannot demonstrate that his alleged injury is amenable to specific relief. [Id. at 4 (citing Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011))]. According to the CDOC, protective custody is a housing placement available to CDOC inmates who face a substantial risk of serious harm in the general inmate population. [Id. at 4-5; #48-1 (AR 650-02) at 1]. To ensure the safety of inmates placed in protective custody, CDOC policy provides that “[a] secured physical barrier will exist between protective custody offenders and non-protective custody offenders at all times.” [#48 at 5; #48-1 at 4]. An inmate concerned for their safety and interested in protective custody placement may submit an Offender Protective Custody Request Form to the CDOC's Internal Classification Committee. [#48-1 at 2]. An inmate requesting protective custody must state reasons necessitating such placement and identify individuals that the inmate considers to be a threat to his safety. [Id.].

The Internal Classification Committee reviews all Offender Protective Custody Request Forms, and any other relevant information, to develop a recommendation for the requesting inmate's placement. [Id.]. In some cases, the Internal Classification Committee recommends further review by the Protective Custody Review Committee. [Id. at 3]. The Protective Custody Review Committee reviews such requests and conducts an interview with the requesting inmate before issuing a protective custody decision. [Id.]. Once an inmate is placed in protective custody, the Internal Classification Committee conducts Protective Custody Reviews at regular intervals and issues recommendations as to the inmate's continuing need for protective custody placement. [Id. at 4]. In all other respects, living conditions in CDOC protective custody housing approximate those available to the general inmate population, including library access, educational services, religious guidance, and recreation access. [#48 at 5; #48-1 at 3].

CDOC argues that the foregoing protective custody policy at CDOC is an existing remedy to the injunctive relief Mr. Oakley seeks, and asserts that Mr. Oakley fails to allege any facts to suggest that the CDOC's protective custody is an inadequate remedy or that Mr. Oakley has ever availed himself of the Offender Protective Custody Request Form to request placement in protective custody. [#48 at 6]. Mr. Oakley counters that he is not seeking separate housing for himself only, but is instead challenging the CDOC's housing policy more generally “to change policy to protect all prisoners identifiable in a vulnerable-class from being assaulted, stabbed, raped, or murdered by the unscrupulous violent gangs and political convict code prisoners.” [#52 at 3-5]. He also asserts that he does not meet the requirements for protective custody; qualifications for protective custody placement are too demanding; and the CDOC's protective custody facilities are small and inadequate relative to the number of inmates requiring protection. [Id.].

CDOC reiterates on Reply that protective custody is available to “any inmate who faces a substantial risk of serious harm in the general population, not just to Mr. Oakley, ” [#56 at 3 (citing [#48 at 4-5])], and argues that Plaintiff's attempt to include new factual allegations in his Response regarding the efficacy of CDOC's existing protective custody policy is an impermissible attempt to amend his Complaint, [id. at 3-4].

Mr. Oakley seeks a court order mandating creation of separate housing at the CDOC for inmates like Plaintiff who allegedly face substantial risks of violence at the hands of inmates within the general prison population. [#1 at 8-10]. Because it is not relying on actions that have arisen after Plaintiff's filing of the Complaint, this court finds that standing, rather than mootness, is the applicable doctrine.⁷

7 It appears that AR 650-02 was effective as of October 1, 2019 [#48-1 at 1], prior to Mr. Oakley's Complaint filed on May 11, 2020 [#1].

I first find that Mr. Oakley's alleged injuries are not redressable-not because the existing Administrative Regulation necessarily resolves the issues Plaintiff raises-but because, even if Mr. Oakley was successful in obtaining an injunction requiring CDOC to implement a different policy or creating a separate housing unit, there is no guarantee that Mr. Oakley would qualify for such protection or that this court would order it in the first instance. See Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir. 1994). Indeed, this conclusion is underscored by Mr. Oakley's contention that he does not qualify for protective custody under AR 650-02 and cannot be placed in protective custody due to outside factors such as bed space. [#52 at 4].

Second, to the extent that he is suggesting that AR 650-02 is not appropriately applied to him, thus precluding him from benefitting from it, or that the existing AR 650-02 should have different criteria, Mr. Oakley does not include any allegations in his Complaint that would permit this court to draw such conclusions.

Finally, to the extent Plaintiff offers additional facts in his Response to challenge the adequacy of CDOC's existing protective custody policy, this court declines to consider these additional allegations in deciding Claim One. While the court has wide discretion to consider extrinsic evidence to resolve disputed jurisdictional facts under Rule 12(b)(1), see Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995), a plaintiff cannot amend his complaint through a response in opposition to a motion to dismiss, see Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995). And though pro se, Mr. Oakley is bound by the same procedural and substantive law as represented parties, see Dodson, 878 F.Supp.2d at 1236. As Defendants point out, the Complaint “makes no mention of protective custody or any alleged inadequacies with it.” [#56 at 4]. Nor is it clear whether Mr. Oakley could assert such facts if, as CDOC contends, he has never obtained the Offender Protective Custody Request Form to request placement in protective custody or formally made such a request-propositions that he does not deny in his Response. [#52 at 3]. Thus, this court is precluded from considering this alternative theory.

Accordingly, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED as to Claim One, and that Claim One be DISMISSED without prejudice for lack of subject matter jurisdiction.

II. Claim Two

Plaintiff asserts individual and official capacity claims against the Clinical Defendants for their alleged deliberate indifference to his reasonable safety in violation of his Eighth Amendment rights when they failed to place him on suicide watch after he threatened self-harm. [#1]. The Clinical Defendants include Dr. Estep, who Plaintiff alleges is the “supervisor over all mental health programs . . . for the state of Colorado, ” and Drs. Sheffer and Simpson, who are Mental Health Clinicians at FCF. [Id. at 3]. He seeks damages from the Clinical Defendants in their individual capacities and an injunction requiring the Clinical Defendants to place inmates on suicide watch in suicide-watch cells. [Id. at 18].

In seeking dismissal of Claim Two in its entirety, the Clinical Defendants challenge the sufficiency of both the individual and official capacity claims under Rule 12(b)(6), and further argue that Plaintiff cannot overcome the Clinical Defendants' assertion of qualified immunity from liability in their individual capacities. [#48 at 6-11].

A. Individual Capacity

Defendants argue under Rule 12(b)(6) for dismissal of Claim Two as asserted against the Clinical Defendants in their individual capacities. [Id. at 6-9]. Specifically, Defendants contend that Plaintiff's allegations, taken as true, fail to demonstrate deliberate indifference to his mental needs sufficient to establish a constitutional violation.

1. Failure to State a Deliberate Indifference Claim

“A prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted). To prove deliberate indifference under Claim Two, Plaintiff must satisfy both an objective and subjective component. Requena v. Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018). That is, he must show that the Clinical Defendants were “subjectively aware” of an objectively serious risk and “recklessly disregarded that risk.” Wilson v. Falk, 877 F.3d 1204, 1209 (10th Cir. 2017) (brackets and internal quotation marks omitted).

To satisfy the objective component, the plaintiff must show that the deprivation is “‘sufficiently serious' to be cognizable under the Cruel and Unusual Punishment Clause.” Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 834). “To satisfy the subjective component, the plaintiff must show that the defendant knew that the plaintiff faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Lockett v. Fallin, 841 F.3d 1098, 1112 (10th Cir. 2016) (internal quotation marks omitted).

a. Scope of Claim Two.

At the outset, this court finds it necessary to clarify the nature of Claim Two. The Clinical Defendants characterize the claim as either “a disagreement over mental health treatment or, at worst, negligence in providing appropriate mental health treatment.” [#48 at 8]. To that end, the Clinical Defendants argue that, during the relevant time period, Mr. Oakley was evaluated by one of the Clinical Defendants each time he threatened to or did engage in self-harm, who then consulted each other regarding Mr. Oakley's treatment and the need (or lack thereof) for suicide watch placement. [Id. at 8]. According to the Clinical Defendants, their “decisions not to place Mr. Oakley on suicide watch after evaluating his mental health do not render their clinical opinions, based on the exercise of their medical judgment, a constitutional violation.” [Id.]. Mr. Oakley counters that the court “cannot assume” that the Clinical Defendants' opinions were professional in nature, and must allow Plaintiff “a fair opportunity to prove” that the opinions rendered were instead personal. [#52-1 at 2-3].

This court acknowledges the Clinical Defendants' reading of the Complaint, in which Plaintiff avers “I am suing Dr. Estep, Dr. Schaffer [sic], and Dr. Simpson for their deliberate indifference to my safety by denying me suicide watch in violation of suicide watch protocols of self-harming prisoners, ” [#1 at 17], and Mr. Oakley addresses this theory in his Response, see, e.g., [#52 at 6-7; #52-1 at 3]. But he also argues, in his Response, that the Clinical Defendants' actions “are clearly characterized as a constitutional violation” because they failed “to keep their mental health patients safe from self-harm.” [#52-2 at 1]. See also [#52-1 at 6 (“[H]e consciously disregarded a known risk that if he did not place me back on suicide watch, my self-mutilation would continue, and he took that risk.”); id. (“[H]e took no reasonable measures to keep me safe; instead, he chose to put me back in my cell.”)]. Indeed, Mr. Oakley contends that he repeatedly (a) made his motivations for self-harm clear, [#1 at 10 (“I had told all mental health [staff] . . . that I need a cell by myself because my paranoia would cause me to become violent but the consciously disregarded the warnings and put others' lives at risk by forcing me to live with them. They even knew it would result in self-harm but they disregarded that too!”); 16 (threatening specific acts of self-harm for fear of sleep deprivation in non-suicide watch cell)]; (b) threatened to engage in self-harm if removed from suicide watch, [id. at 16 (Drs. Sheffer and Estep), 17 (Drs. Simpson, Sheffer, and Estep)], even detailing how he would accomplish such threats [id. at 17]; and (c) acted on his threats of self-harm [id. at 16-17]. The Complaint similarly recounts Mr. Oakley's repeated threats and actions of self-harm, e.g. [#1 at 16 (“I stabbed myself in my left hand and forearm with a sharp pencil when I was in Unit 3A at (F.C.F)”; 17 (“I had threatened self-harm and had cut myself on my forearm and chest with a good amount of blood drippage and told staff about it”) and (“Not even a week later, I had cut myself and was pulled out to be seen by mental health this time by Dr. Simpson…”)] and the Clinical Defendants' failure to take any action to address the self-harm, even absent placing him on suicide watch.

Construing Plaintiff's factual allegations liberally, as I must at this juncture, Claim Two is not limited to a medical provider who was presented with physical symptoms and made a judgment call as to the severity of those symptoms. Cf. Cox v. Glanz, 800 F.3d 1231, 1253 (10th Cir. 2015) (“[Plaintiff's] observable symptoms were susceptible to a number of interpretations; suicide may well have been one possibility, but the facts known to those with whom he interacted did not establish that it was a substantial one.”). Instead, Claim Two also encompasses allegations of an inmate's repeated acts of self-harm and threats to continue, including details of the inmate's plans to obtain materials to inflict self-harm in the future if not placed on suicide watch, and the Clinical Defendants' failure to prevent the risk of continued self-harm (even if it did not culminate into suicide) which they were undoubtedly aware. See Carey v. Buitrago, No. 19-cv-02073-RM-STV, 2020 WL 3620324, at *6 (D. Colo. Mar. 18, 2020) (“Failure to protect an inmate from self-harm may constitute deliberate indifference in violation of the Eighth Amendment, but prison officials are not required to unerringly detect the tendency for self-harm in prisoners.”) (internal quotation and citation omitted)), report and recommendation adopted, 2020 WL 1921756 (D. Colo. Apr. 21, 2020). With these contours of Claim Two in mind, I turn now to consider whether Plaintiff has adequately pled that the Clinical Defendants were subjectively deliberately indifferent to his objectively serious, substantial risk of self-harm.

b. Objective Component.

There appears to be no dispute that Plaintiff's allegations satisfy the objective component. See, e.g., [#48 at 6-9 (arguing that “Mr. Oakley fails to show that the Clinical Defendants subjectively knew of and disregarded an excessive risk to his safety” and omitting any discussion concerning the objective component). For purposes of the instant Motion, this court finds that Plaintiff has satisfied this element of his claim. See also Cox, 800 F.3d at 1240 n.3 (accepting district court's tacit conclusion that suicide is an objectively serious harm).

c. Subjective Component.

“To satisfy the subjective component, the plaintiff must show that the defendant knew that the plaintiff faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Lockett, 841 F.3d at 1112 (internal quotation marks omitted). Generally, to have a culpable state of mind, “a prison official must (1) ‘be aware of facts from which the inference could be drawn that a substantial risk of harm exists,' (2) actually ‘draw the inference,' and (3) ‘fail to take reasonable steps to alleviate that risk.'” Fisher v. Glanz, No. 14-CV-678-TCK-PJC, 2016 WL 1175239, at *5 (Mar. 24, 2016) (quoting Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)). More specifically, in the prison-suicide context, the particularized state of mind is “actual knowledge by a prison official of an individual inmate's substantial risk of suicide.” Cox, 800 F.3d at 1249. “A mere opportunity for suicide, without more, is not enough to impose . . . liability.” Carey, 2020 WL 3620324, at *7 (internal brackets, quotation marks, and citation omitted).

To the extent that Plaintiff's Complaint was simply limited to disagreeing with the professional determination that Mr. Oakley was not appropriately placed on suicide watch, this court would agree that Plaintiff has failed to plead a cognizable constitutional violation. See Self v. Crum, 439 F.3d 1227, 1231-32 (10th Cir. 2006). In the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”), “the subjective component is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his considered medical judgment.” Id. at 1232. “Matters that traditionally fall within the scope of medical judgment are such decisions as whether to consult a specialist or undertake additional medical testing.” Id. (citation omitted). “A claim is therefore actionable only where the need for additional treatment or referral to a medical specialist is obvious.” Id. (listing examples demonstrating obviousness). Mere negligence, even if constituting medical malpractice, is not enough. Id. at 1231-33. Nor do prison officials “act with deliberate indifference when they provide medical treatment even if it is subpar or different from what the inmate wants.” Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018).

But in considering Claim Two as encompassing Plaintiff's allegations that the Clinical Defendants understood but failed to address his self-harm (even short of suicide), this court finds that the Complaint sufficiently alleges the three elements of the subjective component of a deliberate indifference claim against the Clinical Defendants because it alleges that the Clinical Defendants (1) were aware of the facts from which the inference could be drawn that a substantial risk of self-harm to Plaintiff existed; (2) actually drew the inference; and (3) failed to take reasonable steps to alleviate the risk. See Fisher, 2016 WL 1175239, at *5 (quoting Tafoya, 516 F.3d at 916).

Facts Supporting Inference of Substantial Risk of Self-Harm.

Plaintiff alleges that he stabbed himself with a sharpened pencil repeatedly on or about November 20, 2019 and was subsequently placed on suicide watch for over two weeks. [#1 at 16]. Dr. Sheffer purportedly informed Plaintiff of his impending removal; Mr. Oakley “freaked out” at the thought of returning to a non-suicide watch cell and told Dr. Sheffer that he “would swallow toenail clippers and make a shank and stab” himself if removed; Dr. Sheffer relayed Plaintiff's specific threats and history of acting on threatened acts of self-harm to Dr. Estep, who nevertheless ordered Plaintiff be removed from suicide watch; and Dr. Simpson performed an evaluation of Plaintiff the following day, during which Plaintiff again threatened self-harm if released. [Id. at 16-17]. Still, Dr. Simpson ordered Plaintiff's release from suicide watch. [Id. at 17]. Once removed from suicide watch and placed in “the hole, ” Mr. Oakley made good on his promises to continue to self-harm by cutting himself on the forearm and chest to a considerably bloody degree; Dr. Sheffer again assessed Plaintiff and explained to Dr. Estep the details of Plaintiff's most recent act of self-harm; and Plaintiff was returned to “the hole” without any medical attention related to his self-inflicted injuries and repeated requests for the same. [Id. at 16-17].

Again, less than a week later, Mr. Oakley cut himself. [Id. at 17]. During a subsequent mental health evaluation conducted by Dr. Simpson, Mr. Oakley told Dr. Simpson, who then told Dr. Estep, of Mr. Oakley's ability to engage in self-harm absent suicide watch-including his ability to obtain sharp instruments in “the hole” that would enable him to continue to self-harm and FCF staff's inability to monitor him and/or protect him from self-harm outside of suicide watch; and Mr. Oakley harmed himself several times over the course of a matter of weeks. [Id.].

From these incidents and Mr. Oakley's explicit threats, the Clinical Defendants likely knew of an ongoing substantial risk that Plaintiff would continue to engage in self-harm. Cf. Johnson v. Bd. of Cty. Comm'rs, No. 2:17-CV-0209-SWS, 2019 WL 3535814, at *10 (D. Wyo. Aug. 1, 2019) (no constitutional violation where inmate took his own life in a non-suicide watch cell after he actively hid his suicidal behavior, was evaluated by mental health staff, and cleared from suicide watch on three occasions); Hensley v. Bucks Cty. Corr. Facility, No. 15-6098, 2016 WL 4247637, at *11 (E.D. Penn. Aug. 11, 2016) (an inmate's single statement, “‘I'm suicidal put me on suicide watch, '” to a prison official as the inmate was being moved from one cell to another was not an “obviously serious suicide threat”). Thus, Mr. Oakley sufficiently pleads that the Clinical Defendants were aware of the facts from which the inference could be drawn that a substantial risk of self-harm to Plaintiff existed due to the Clinical Defendants' repeated participation in Mr. Oakley's care.

Inference of Plaintiff's Substantial Risk of Self-Harm Actually Drawn .

The Complaint also includes allegations of Plaintiff's history and pattern of engaging in self-harm upon release from suicide watch, and statements to the Clinical Defendants of his intent to engage in self-harm if placed with a cellmate, that are sufficient at the pleading stage to allege that the Clinical Defendants drew the inference that Plaintiff posed a risk of serious harm to himself. Indeed, Plaintiff detailed the methods by which he could obtain instruments to harm himself if not placed on suicide watch. See, e.g., [#1 at 16-17]. And despite knowing that Plaintiff planned to harm himself again if placed in a non-mental health cell, Drs. Simpson and Estep allegedly acknowledged that Mr. Oakley's observations about the ease with which he could continue to harm himself were “very true and likely to be accomplished, ” before categorically denying him future suicide watch placement. See [id. at 17].

Failure to Take Reasonable Steps to Alleviate Plaintiff's Risk of Self-Harm .

Plaintiff contends that while the Clinical Defendants may have evaluated Plaintiff after each threat to or act of self-harm, [id. at 16-17], Drs. Sheffer and Simpson repeatedly denied him placement on suicide watch, and Dr. Estep “personally ordered that all mental health” staff decline to place Mr. Oakley on suicide watch “no matter how many times” he harmed himself, [id. at 17]. According to Plaintiff, the Clinical Defendants “did nothing” to prevent him from future harm. [Id. at 18]. Again, focusing upon the Clinical Defendants' alleged responses to self-harm-beyond the determination of his qualifications for suicide watch-these allegations are sufficient, at this juncture, to show that the Clinical Defendants failed to take (a) reasonable steps to alleviate the risk that Plaintiff would harm himself upon release from suicide watch, and (b) any steps to address his self-harm outside of the context of suicide watch, such as offering different or more psychiatric interventions.⁸ Plaintiff has adequately pleaded an Eighth Amendment claim for deliberate indifference. See Partridge v. Pelle, No. 17-cv-02941-CMA-STV, 2019 WL 1045840, at *10 (D. Colo. Mar. 5, 2019).

8 This court recognizes that because “§ 1983 imposes liability for a defendant's own actions[, ] . . . personal participation in the specific constitutional violation complained of is essential.” See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2001). With respect to the individual Clinical Defendants in this case, the allegations do allege different levels of participation by the individual Clinical Defendants. See generally [#1]. But Defendants merely argue that the allegations are insufficient to suggest personal participation generally, see, e.g., [#48 at 8 (“Their decisions not to place Mr. Oakley on suicide watch . . . do not render their clinical opinions . . . a constitutional violation.”) (emphases added)], and provide no argument regarding the sufficiency of the Complaint as applied to any one of the Clinical Defendants, specifically. See generally [id.]. Moreover, despite the arguments in Plaintiff's Response concerning whether liability is supported by the Clinical Defendants' individual acts, see, e.g., [#52-2 at 1], Defendants do not address this issue on Reply, see [#56 at 4-5]. And this court may not infer or create arguments on behalf of a party, particularly one who is represented by able counsel. See United States v. Davis, 622 Fed.Appx. 758, 759 (10th Cir. 2015) (“[I]t is not this court's duty, after all, to make arguments for a litigant that he has not made for himself.”); Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001) (observing that the court has no obligation to make arguments or perform research on behalf of litigants). Thus, this court declines to find that the allegations with respect to personal participation are insufficient.

2. Qualified Immunity

The doctrine of qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation and citation omitted). To defeat a defense of qualified immunity, a plaintiff must show: “(1) that the defendant's conduct violated a constitutional or statutory right, and (2) that the law governing the conduct was clearly established at the time of the alleged violation.” Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). For purposes of a motion to dismiss based on qualified immunity, the plaintiff's allegations need not “include all the factual allegations necessary to sustain a conclusion that the defendant violated clearly established law.” Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008) (internal quotation and citation omitted).

Having concluded that Mr. Oakley states a plausible Eighth Amendment violation for deliberate indifference, this court turns to whether Mr. Oakley can also show that the law was clearly established at the time of the constitutional violation to overcome the Clinical Defendants' invocation of qualified immunity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).

a. Clearly Established Law

“A plaintiff may satisfy this standard by identifying an on-point Supreme Court or published Tenth Circuit decision; alternatively, the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015) (internal quotation and citation omitted). “In applying this test, courts must not define the relevant constitutional right ‘at a high level of generality.'” Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018) (quoting White v. Pauly, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017)). “Instead, as the Supreme Court ‘explained decades ago, the clearly established law must be ‘particularized' to the facts of the case.'” Id. (quoting Pauly, 137 S.Ct. at 552).

To the extent Plaintiff claims that the Clinical Defendants failed to follow protocol for suicidal inmates, such an allegation does not support an Eighth Amendment violation. See Carey, 2020 WL 3620324, at *9 (collecting cases); Taylor v. Barkes, 575 U.S. 822 (2015) (“No decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols. No decision of this Court even discusses suicide screening or prevention protocols.”). Nor does Plaintiff point to any authority, from the United States Supreme Court, the Tenth Circuit, or otherwise, to support a conclusion that clearly-established law would “put a reasonable official in [the Clinical Defendants'] position on notice that [their] conduct”-or more precisely, lack of action-in this case violated the Constitution. See Perry, 892 F.3d at 1127; Cox, 800 F.3d at 1247. Moreover, this court has been unable to independently “‘identify a case where an official acting under similar circumstances as [the Clinical Defendants] was held to have violated' the Constitution.” See Perry, 892 F.3d at 1123 (quoting Pauly, 137 S.Ct. at 552) (internal brackets and alteration omitted). Compare Coad v. Waters, No. 11-cv-01564-PAB-CBS, 2012 WL 3744637, at *2 (D. Colo. Aug. 28, 2012) (“The Court rejects that, in the absence of a decision specifically demarcating how long an inmate may be observed banging his head against a concrete wall before being restrained, reasonable officials could reach different conclusions or that plaintiff alleges a lapse in judgment.”) with Plotner v. Hodge, No. 17-cv-02584-PAB-STV, 2018 WL 2075849, at *5 (D. Colo. Apr. 9, 2018) (distinguishing the “readily apparent constitutional violation” premised on defendant's “failure to intervene” in Coad from the case before it because “[a] reasonable official could believe that observing an inmate through a medical hold lasting for several days would be an appropriate response to an inmate swallowing a harmful object”), report and recommendation adopted, 2018 WL 2065578 (D. Colo. May 3, 2018). Mr. Oakley thus cannot overcome the Clinical Defendants' assertion of qualified immunity, and this court respectfully RECOMMENDS that Claim Two as asserted against Defendants Estep, Sheffer, and Simpson in their individual capacities be DISMISSED with prejudice.

B. Official Capacity

In Claim Two, Plaintiff seeks an injunction requiring the Clinical Defendants to place inmates on suicide watch in a suicide-watch cell and issue a policy prohibiting the use of non-mental health cells as suicide-watch cells. In Response to the Motion to Dismiss, Mr. Oakley indicates his willingness to voluntarily dismiss Claim Two against Drs. Sheffer and Simpson in their official capacity because these two Defendants are no longer employed by the CDOC.⁹ See [#52-2 at 1]. Under Rule 41(a)(1)(A)(i), Mr. Oakley may voluntarily dismiss Claim Two against Defendants Sheffer and Simpson without a court order because they have not served either an answer or motion for summary judgment. Fed.R.Civ.P. 41(a)(1)(A)(i). Thus, this court RECOMMENDS that Mr. Oakley's statement in his Response be CONSTRUED as a self-effectuating voluntary dismissal with regard to Claim Two as asserted against Drs. Sheffer and Simpson in their official capacities. Thus, on this ground, this court respectfully RECOMMENDS dismissal with prejudice of Claim Two against Drs. Sheffer and Simpson in their official capacities.

9 Although Mr. Oakley refers to the official capacity claims against Drs. Sheffer and Simpson as “moot, ” as indicated above, pursuant to the Federal Rules of Civil Procedure, the successor of an officer sued in his or her official capacity may be automatically substituted for purposes of official capacity claims. See Fed. R. Civ. P. 25(d).

This court turns next to Defendants' argument that Claim Two fails to state a claim against the Clinical Defendants in their official capacities because Plaintiff fails to allege facts to support the inference that his requested relief can (a) be provided by the Clinical Defendants, or (b) redress his alleged injuries. [#48 at 9-10].¹⁰ A defendant sued in his official capacity for prospective injunctive relief must have the authority to provide the relief requested. See Goines v. Pugh, 152 Fed.Appx. 750, 753 (10th Cir. 2005). In his Response, Mr. Oakley argues that Director Williams and Dr. Estep have the authority to change CDOC mental health treatment policy. However, Director Williams's authority is irrelevant here because Mr. Oakley does not assert Claim Two against Director Williams in his official capacity as Executive Director of the CDOC. Instead, Claim Two is asserted against only the Clinical Defendants and, despite the arguments set forth in the Motion to Dismiss, Plaintiff fails to identify any allegations in the Complaint sufficient to support any inference that the Clinical Defendants have the requisite authority to effect the policy changes he seeks. Relevant here, the Complaint merely alleges that Dr. Estep is “the supervisor over all CDOC Mental Health programming in the state of Colorado, ” [#1 at 3], and a CDOC policy that requires mental health staff to obtain approval from Dr. Estep every three days in order for an inmate to continue to be placed on suicide watch, [id. at 20]. At best, these allegations suggest that Dr. Estep is tasked with supervisory authority over the CDOC's mental health programs and has the power to decide whether an inmate is placed on suicide watch. But they do not support an inference that Dr. Estep (much less Drs. Sheffer and Simpson) has administrative authority to amend or promulgate CDOC administrative regulations regarding inmate housing or otherwise.

10 Notwithstanding the foregoing recommendation to dismiss Drs. Sheffer and Simpson in light of Plaintiff's self-effectuating voluntary dismissal of the same, because it proceeds by Recommendation, this court also considers whether Plaintiff fails to state a claim against Drs. Sheffer and Simpson in their official capacities.

In sum, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED as to Claim Two in its entirety and Plaintiff's second claim for relief be DISMISSED with prejudice for failure to state a claim.

III. Claim Three

Defendants argue for dismissal of Claim Three under two theories: claim preclusion¹¹ and failure to state a claim. I consider each theory in turn.

11 Defendants use the term “res judicata” in their Motion to Dismiss, as do the Parties in briefing the instant Motion. See, e.g., [#48, #52-2; #56]. Both federal and state courts have referred to this doctrine as “res judicata” or “claim preclusion.” See, e.g., Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (“The doctrine of res judicata, or claim preclusion, will prevent a party from litigating a legal claim that was or could have been the subject of a previously issued final judgment.”); Gale v. Denver, -- P.3d --, 2020 WL 989623, at *3 (Colo. Mar. 2, 2020) (“Although the certified question is framed in terms of ‘res judicata,' to avoid the confusion that term engenders, Colorado courts have adopted the term ‘claim preclusion[.]'”) (citing Foster v. Plock, 394 P.3d 1119, 1123 (Colo. 2017))). Given the Colorado Supreme Court's preference for the term “claim preclusion” over “res judicata, ” and to avoid confusion, this court will use the term “claim preclusion” in instances where the applicable filings may have referred to “res judicata.”

A. Claim Preclusion

Defendants assert that Mr. Oakley's debt-collection claim is barred by the doctrine of claim preclusion because he has already received a final judgment on the merits of his claim. [#48 at 12-15]. Specifically, Defendants cite federal and state civil actions filed by Mr. Oakley wherein Mr. Oakley unsuccessfully challenged the CDOC's collection of his debts. [Id. at 13-14 (citing Oakley v. Zavaras (“Oakley I”), No. 09-cv-01991-WYD-KMT, 2012 WL 263460 (D. Colo. Jan. 10, 2012), report and recommendation adopted, 2012 WL 263381 (D. Colo. Jan. 30, 2012); Oakley v. Raemisch (“Oakley II”), No. 14-cv-03000-CMA-MJW, 2017 WL 3425107 (D. Colo. Aug. 8, 2017); Oakley v. Raemisch (“Oakley III”), 15CV24 (Colo. Dist. Ct., Pueblo Cty., filed Apr. 30, 2015))].

Two of the cases on which Defendants rely were brought by Plaintiff in federal court. In Oakley I, summary judgment was granted in the defendant's favor on Mr. Oakley's due process claims against him in his official capacity as Executive Director of the CDOC concerning restitution ordered and money removed from Mr. Oakley's inmate banking account. See 2012 WL 263460. In Oakley II, Plaintiff brought claims against the Executive Director of the CDOC in his official capacity, challenging the CDOC's collection of his court-ordered debts and debts owed to the CDOC. See 2017 WL 3425107, at *4- 6. In relevant part, Plaintiff alleged that he was denied his property without due process because he was unable to challenge the amount or percentage of the CDOC's collections from his inmate account. Id. Judge Arguello granted the defendant's motion for summary judgment on Mr. Oakley's equal protection claim premised on the “CDOC's unfair handling of his inmate bank account.” See id.

The third case on which Defendants rely was brought by Plaintiff in state court. In Oakley III, Plaintiff asserted a single claim against the Executive Director of the CDOC in his official capacity, challenging the CDOC's (a) collection of restitution ordered via disciplinary proceedings, and (b) inclusion of “facility charges” owed by Mr. Oakley for damage to CDOC facilities in its calculation of restitution payments. Plaintiff's claim was dismissed with prejudice. See [Attach. 2, Oakley III, Order Re Motion to Dismiss (Colo. Dist. Ct., Pueblo Cty., Sept. 9, 2015)].

Defendants argue that Mr. Oakley “requests identical or nearly identical injunctive relief in each case-an order preventing CDOC from collecting debts from most or all of his inmate account funds, ” and assert that Mr. Oakley cannot circumvent claim preclusion by bringing this action under a different legal theory (the FDCPA or its state law equivalent). [#48 at 13-14]. As the law applicable to a claim preclusion defense turns on whether the prior claim was brought in state or federal court, I consider the preclusive effect of Plaintiff's prior suits in federal court (Oakley I and II) before turning to his prior state court action (Oakley III).

1. Federal Cases: Oakley I and II

“The doctrine of res judicata, or claim preclusion, will prevent a party from litigating a legal claim that was or could have been the subject of a previously issued final judgment.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (internal quotation marks omitted). The defense has three elements: “(1) a final judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits.” Id. (brackets and internal quotation marks omitted). Where these requirements are met, the claim is precluded “unless the party seeking to avoid preclusion did not have a ‘full and fair opportunity' to litigate the claim in the prior suit.'” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (quoting Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir. 1999)).

Final Judgment.

There can be no doubt that Plaintiff's causes of action in Oakley I and II were terminated by entry of final judgment.¹² In Oakley I, summary judgment was granted in the defendant's favor on Mr. Oakley's due process claims concerning restitution ordered and money removed from his inmate banking account, see 2012 WL 263460; and, in Oakley II, Judge Arguello granted the defendant's motion for summary judgment on Mr. Oakley's equal protection claim premised on the “CDOC's unfair handling of his inmate bank account, ” see 2017 WL 3425107, at *4-6.

12 There are sufficient materials in the records of the United States District Court for the District of Colorado and the Colorado state court to resolve the issue of whether the first two elements of Defendants' claim preclusion defense are satisfied without converting the Motion to Dismiss to a motion for summary judgment. See Fed R. Evid. 201; Johnson v. Spencer, 950 F.3d 680, 705 (10th Cir. 2020) (noting that it is “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” without converting a motion to dismiss to a motion for summary judgment).

Identity of Parties.

For purposes of the claims relevant to Mr. Oakley's inmate account, the identity of the parties in Oakley I and II and the instant action are identical. Claim Two is asserted against Director Williams in his official capacity as Executive Director of the CDOC, as were the claims asserted in Oakley I and II against Director Williams's predecessors. Pursuant to Rule 25(d), officials sued in their official capacities are automatically substituted by their successors. Fed.R.Civ.P. 25(d).

Identity of Cause of Action.

At the outset, this court finds Mr. Oakley's arguments that Claim Three is not barred because he has “never filed a claim under the FDCPA” and, in order for a claim to be barred by a previous legal challenge under the doctrine, “[t]here has to be an exact likeness” between the current and previous challenges, [#52-2 at 3], unavailing. “It is immaterial that the legal basis for the relief sought in the two complaints is different; it is the occurrence from which the claims arose that is central to the ‘cause of action' analysis.” Nwosun v. General Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997).

“Suits involve the same claim (or ‘cause of action') when they ‘arise from the same transaction, '” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S.Ct. 1589, 1598 (2020) (quoting United States v. Tohono O'odham Nation, 563 U.S. 307, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011)), “or involve a ‘common nucleus of operative facts, '” id. (quoting Restatement (Second) of Judgments § 24, comment b, p. 199 (1982) (Restatement (Second))). The Tenth Circuit applies the “transactional” approach from § 24 of the Restatement (Second) of Judgment to determine what constitutes a “cause of action” for purposes of claim preclusion. See Wilkes v. Wyo. Dep't of Employment Div. of Labor Stds., 314 F.3d 501, 504 (10th Cir. 2002). A “cause of action” includes all claims or legal theories of recovery that arise from the same transaction, event, or occurrence. Id. “What factual grouping constitutes a ‘transaction,' and what groupings constitute a ‘series,' are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, and whether they form a convenient trial unit.” Id. (internal alteration and citation omitted).

In Oakley II, Mr. Oakley brought constitutional challenges against the CDOC's collection of his court-ordered debts and debts owed to the CDOC, alleging in part that he was denied his property without due process because he was unable to challenge the amount or percentage of the CDOC's collections from his inmate account. See generally 2017 WL 3425107. In the instant action, Mr. Oakley claims that the CDOC violated the FDCPA “by not validating the debt they claim I owe them.” [#1 at 23]. Among other relief, he seeks an injunction enjoining the CDOC's collection of debts from his inmate account until the debts are “validated.” [Id. at 24-25]. The Complaint alleges that Mr. Oakley's “debt seems to mysteriously increase each month, ” and “without [his] contractual consent for consumer services in the form of payment loans and loans to make nominal purchases on canteen, [the CDOC is] making loan payments and purchase loans and adding toward [his] CDOC debt unfairly.” [Id. at 23]. Indeed, Mr. Oakley appears to “dispute the validity of the debt in its entirety.” [Id. at 24].

Although Oakley I, Oakley II, and Claim Three in the instant action all arise from the CDOC's collection of debts from Mr. Oakley's inmate account, this alone is insufficient-at the pleadings stage-to establish that the claims arise from the same cause of action for purposes of claim preclusion. Certainly, Mr. Oakley's prior litigation history reveals numerous constitutional challenges to the CDOC's handling of financial matters, wherein (and without exception) he sought injunctive relief from the collection of money received in his inmate account. But this broad description of his prior claims is an insufficient basis for this court to conclude that any of the prior claims constitute the “same cause of action” as Claim Three.

Indeed, the court in Oakley II considered and rejected a similar argument for preclusion. See 2016 WL 786734, at *4. There, the defendant relied on Oakley I to argue that the case was “barred by claim preclusion . . . because Plaintiff has sued over funds in his inmate account in the past.” Id. (“[N]othing in the Complaint specifically establishes which restitution order Plaintiff seeks to challenge, and Defendant did not submit any judicially noticeable documentation that would establish this fact. . . . Defendant will have to establish this affirmative defense at summary judgment.”) (citing Oakley I, No. 09-cv-01991-WYD-KMT, 2011 WL 198405 (D. Colo. Jan. 20, 2011)), report and recommendation adopted, 2016 WL 759170 (D. Colo. Feb. 26, 2016).

Here, too, there is an insufficient basis from which the court could conclude that the facts underlying the claims in Oakley I and II and Claim Three are closely related. For example, Mr. Oakley clarifies in his Response that he is “not disputing court ordered restitution” in the instant action. [#52-2 at 7]. Read in the light most favorable to Plaintiff, the Complaint supports Mr. Oakley's position. See, e.g., [#1 at 23-24 (alleging that the CDOC has been making “payment-loans and loans to make nominal purchases on canteen” to Plaintiff without his consent, as evidenced by his ability to “pay[] [his] court cases and mak[e] purchases on canteen” despite insufficient funds in his account)]. He further explains that his issue “is not the collection of court ordered restitution, but only on CDOC ordered debt that does not fall under [Colo. Rev. Stat. § 16-18.5-106].” [Id.]. And Defendants have not submitted any judicially noticeable evidence to undercut Plaintiff's position.

At this juncture, this court does not have sufficient information from which it could conclude that the allegedly “invalid” debts here are the same as the debts challenged in prior actions. Cf. Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018) (“[I]t is proper to dismiss a claim on the pleadings based on an affirmative defense . . . when the complaint itself admits all the elements of the affirmative defense by alleging the factual basis for those elements.”). See also Hernandez v. Asset Acceptance, LLC, 970 F.Supp.2d 1194, 1203-04 (D. Colo. 2013) (FDCPA claim precluded where it sought to challenge a separate instance of the very same course of conduct-the defendant's failure to report a debt as disputed to a credit reporting agency-previously challenged where the facts that accumulated after the first action were not enough on their own to sustain an action). Accordingly, this court declines to recommend dismissal on the basis of claim preclusion arising from either Oakley I or Oakley II.

2. State Court Case: Oakley III

“A federal court must give to 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.” Driskell v. Thompson, 971 F.Supp.2d 1050, 1067 (D. Colo. 2013) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 45 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984)) (internal brackets omitted). The Supreme Court holds that the doctrine “precludes the parties or their privies from relitigating issues that were or could have been raised in [the prior] action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (citation omitted); see also MACTEC, 427 F.3d at 831 (“The doctrine of res judicata, or claim preclusion, will prevent a party from re-litigating a legal claim that was or could have been the subject of a previously issued final judgment.”). “The Supreme Court of Colorado has adopted this rule, holding that res judicata ‘bars litigation not only of all issues actually decided, but of all issues that might have been decided.'” Klein v. Zavaras, 80 F.3d 432, 434 (10th Cir. 1996) (quoting Pomeroy v. Waitkus, 183 Colo. 344 (1973)).

Under Colorado law, claim preclusion applies when four elements are met: “(1) the judgment in the prior proceeding was final; (2) the prior and current proceedings involved identical subject matter; (3) the prior and current proceedings involved identical claims for relief; and (4) the parties to the proceedings were identical or in privity with one another.” Gale v. Denver, -- P.3d --, 2020 WL 989623, at *3 (Colo. Mar. 2, 2020). “Defendants have the burden of setting forth facts sufficient to satisfy the elements of res judicata.” Driskell, 871 F.Supp.2d at 1068 (citations omitted).

Finality of Prior Action.

There can be no doubt that Oakley III concluded by final judgment. The court issued an order granting the defendant's motion to dismiss and dismissing Mr. Oakley's claim with prejudice. See [Attach. 2].¹³

13 As noted above, there are sufficient materials in the record to resolve the issue of whether the first element of Defendants' claim preclusion defense premised on Oakley III is satisfied without converting the Motion to Dismiss to a motion for summary judgment. See supra note 12.

Identity of Subject Matter.

Whereas Plaintiff challenged the CDOC's (a) collection of restitution ordered via disciplinary proceedings, and (b) inclusion of “facility charges” owed by Mr. Oakley for damage to CDOC facilities in its calculation of restitution payments in Oakley III, here Mr. Oakley is challenging the CDOC's alleged practice of extending loans to Plaintiff without his consent and the validity of the debts created by those loans. Compare [Attach. 1, Oakley III Complaint] with [#1 at 23-24]. Moreover, Defendants point to no allegations in the Complaint suggesting that Plaintiff is “disputing the validity” of either disciplinary restitution or debts owed for damage to CDOC facilities. This alone bars the application of claim preclusion at this juncture.

Identify of Claim for Relief.

Even assuming that both Oakley III and Claim Three involved identical subject matter, Defendants have not established that the prior and current proceedings involved identical claims for relief. See In Matter of Water Rights, 361 P.3d 392, 398 (Colo. 2015). In Oakley III, Plaintiff appears to have challenged debts he incurred “between 2005 and up to 2012 or 2013.” [Attach. 1 at 1]. Here, the Complaint in this action does not specify the timeframe applicable to the conduct alleged in Claim Three. See [#1 at 23-24]. Absent any temporal context, this court cannot conclude at this juncture that the claims are bound by the same “‘injury for which relief is demanded.'” Id. (quoting Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 199 (Colo. 1999)). Defendants thus fail to satisfy the third element of their claim preclusion defense.

Identity or Privity of Parties.

This court finds the final element required for claim preclusion to apply under Colorado law satisfied. Claim Three is asserted against Director Williams in his official capacity as Executive Director of the CDOC, as was the claim asserted in Oakley III against Director Williams's predecessor. Pursuant to Rule 25(d), officials sued in their official capacities are automatically substituted by their successors. Fed.R.Civ.P. 25(d).

In sum, absent additional factual information that is not reflected in the Complaint or within documents of which this court may appropriately take judicial notice, this court cannot conclude that claim preclusion bars Claim Three.

B. Failure to State a Claim

In the alternative, Defendants argue that Mr. Oakley fails to state a cognizable claim under the FDCPA or CFDCPA because neither statute applies to the CDOC's collection of criminal restitution.¹⁴ [#48 at 15-18]. Specifically, Defendants contend that the statutes are inapplicable because (a) the CDOC is neither a “debt collector” nor “collection agency”; and (b) criminal restitution is not a “debt, ” as those terms are defined in either the FDCPA or CFDCPA. This court respectfully agrees with Defendants as to the first of the two foregoing arguments.

14 Because Congress did not intend for the FDCPA to preempt state regulation of debt collection practices, states may provide greater protection to consumers than those available under the FDCPA, such as under the CFDCPA. See 15 U.S.C. § 1692n (“For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter”). However, individuals may not recover damages under the CFDCPA if they recover damages for violations of “like provision[s]” under the FDCPA. See Peterson-Hooks v. First Integral Recovery, LLC, No. 12-cv-01019-PAB-BNB, 2013 WL 2295449, at *5 (D. Colo. May 24, 2013).

The CDOC is neither a debt collector nor collection agency .

Congress enacted the FDCPA to combat “abusive, deceptive, and unfair debt collection practices” used by many debt collectors. 15 U.S.C. § 1692(a). The FDCPA defines “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another, ” id. § 1692a(6). Accordingly, the FDCPA prohibits debt collectors from engaging in conduct “the natural consequence of which is to harass, oppress, or abuse any person in connection with collection of a debt, ” id. § 1692d, and limits how and when a debt collector may contact a consumer regarding a debt, id. § 1692c. Similarly, the CFDCPA defines a “debt collector” as a person employed by a collection agency. Colo. Rev. Stat. § 5-16-103(9). The statute defines “collection agency” as any person who, inter alia, “engages in a business the principal purpose of which is the collection of debts, ” id. § 5-16-103(3)(a)(I), or who “[r]egularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another, ” id. § 5-16-103(3)(a)(II).

Under the definition of “debt collector, ” the FDCPA explicitly excludes “any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.” 15 U.S.C. § 1692a(6)(C). Here, to the extent the CDOC's actions in collecting funds from Plaintiff's inmate account can be considered debt collection, these actions are “in performance of [Defendant Williams's] official duties.” Id. See also Tatten v. Denver, No. 16-cv-01603-RBJ-NYW, 2017 WL 5172244, at *17 (D. Colo. Feb. 3, 2017) (finding plaintiff failed to state claim under FDCPA because the defendant city and county was not a “debt collector” under the statute), report and recommendation adopted, 2017 WL 1435854 (D. Colo. Mar. 29, 2017), aff'd, 730 Fed.Appx. 620 (10th Cir. Apr. 11, 2018); Hayes v. Shelby Cty. Tr., 971 F.Supp.2d 717, 730 (W.D. Tenn. 2013) (dismissing plaintiff's FDCPA claim against county officials, utilities, and creditors because they were not “debt collectors” under the statute); Geiger v. Fed. Bureau of Prisons, 487 F.Supp.2d 1155, 1159 (C.D. Cal. 2007) (finding FDCPA inapplicable to the Bureau of Prisons (“BOP”) in part “because BOP is not a ‘debt collector'” (citing 15 U.S.C. §§ 1692a(5), (6)(C)); United States v. Morgan, No. 1:02-CR-109, 2006 WL 2168173, at *6 n.7 (N.D. Ind. July 31, 2006) (“The Bureau of Prisons is not a ‘debt collector' as defined in [the FDCPA].”); Eidson v. Harper, No. 3:04-CV-1179-P, 2004 WL 2976675, at *4 (N.D. Tex. Dec. 14, 2004) (holding inmate's CCPA challenge against BOP lacked merit because § 1692a(6)(C) “excludes United States employees from the definition of ‘debt collectors'”), report and recommendation adopted, 2005 WL 106570 (N.D. Tex Jan. 18, 2005). Even if § 1692a(6)(C) did not apply to Defendant Williams (and by extension, the CDOC), Plaintiff fails to allege that the CDOC's principal purpose is the collection of debts. See Tatten, 2017 WL 5172244, at *17; Hayes, 971 F.Supp.2d at 730 (“[Plaintiff] fails to allege any facts demonstrating that the principal purpose of any of the defendants is collecting debts. Accordingly, the complaint fails to state a claim under the FDCPA[.]” (internal citation omitted)).

The same reasoning applies to the CFDCPA and, for the reasons set forth above, Plaintiff cannot state a claim under the CFDCPA. See Colo. Rev. Stat. §§ 5-16-103(3)(b)(III), -103(9) (expressly excluding from its requirements “[a]ny officer or employee of the United States or any state to the extent that collecting or attempting to collect any debt is in the performance of the officer's or employee's official duties, ” except “any person employed by the department of personnel, or any division of that department, when collecting debts due to the state on behalf of another state agency”).

Accordingly, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be GRANTED as to Claim Three, and Plaintiff's third claim for relief be DISMISSED with prejudice for failure to state a claim. As a result, this court does not reach Defendants' arguments that Claim Three fails to allege a cognizable “debt” under either statute. [#48 at 17-18].

CONCLUSION

In sum, this court finds that it lacks subject matter jurisdiction over Claim One; Claim Two adequately pleads a constitutional violation against the Clinical Defendants in their individual capacities but nevertheless fails to overcome their assertion of qualified immunity; Claim Two fails to state a claim against the Clinical Defendants in their official capacities because the injunctive relief sought can neither be provided by the Clinical Defendants nor redress Plaintiff's alleged injuries; and Claim Three is not barred by claim preclusion but nevertheless fails to state a claim under either the FDCPA or CFDCPA.

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

(1) Defendants' Motion to Dismiss [#48] be GRANTED;¹⁵

15 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).

(2) Claim One of Plaintiff's Complaint [#1] be DISMISSED without prejudice;¹⁶

16 Strozier v. Potter, 71 Fed.Appx. 802, 804 (10th Cir. 2003) (a district court's dismissal for lack of subject matter jurisdiction should be without prejudice).

(3) Claim Two be DISMISSED with prejudice;¹⁷ and

17 The Tenth Circuit has noted that dismissals under Rule 12(b)(6) generally are with prejudice. Lomax v. Ortiz-Marquez, 754 Fed.Appx. 756, 759 n.2 (10th Cir. 2018), aff'd, 140 S.Ct. 1721, 207 L.Ed.2d 132 (2020). But it has also recognized that ordinarily, a pro se claim under Rule 12(b)(6) should be dismissed without prejudice. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Here, dismissal with prejudice appears to be appropriate given that any attempts to amend cannot change the analysis with respect to whether the Eighth Amendment claim asserted was clearly established, or the conclusion that CDOC is not a “debt collector” or “collection agency” under either the FDCPA or the CFDCPA. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”)

(4) Claim Three be DISMISSED with prejudice.¹⁸

18 See supra note 17.

IT IS FURTHER ORDERED that a copy of this Recommendation, marked as legal mail, be sent to the following:

Jacob D. Oakley #123294 Centennial Correctional Facility (CCF) P.O. Box 600 Canon City, CO 81215