Opinion
Civil Action 22-cv-02237-RMR-JPO
02-28-2024
GARY SALAZAR, Plaintiff, v. SHERIFF D. NAVARETTE, CAPT. J. TRANCOSO, SRG. TILLMAN, NURSE CYNTHIA, and NURSE LINDSY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JAMES P. O'HARA UNITED STATED MAGISTRATE JUDGE.
This matter is before the Court on Defendants Sheriff Derek J. Navarette, Captain Juan Trancoso, and Sergeant Charles Tillman's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) & 12(b)(6) (the “Motion”). [#26] The Motion has been referred to this Court. [#34] The Court has carefully considered the Motion 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 Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED in part and DENIED in part.
The facts are drawn from the allegations in Plaintiff's Amended Complaint (the “Complaint”) [#11], which the Court accepts as true at this early stage of the proceedings. 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)); see also infra Section II.B.
At the time of the events giving rise to the present suit, Plaintiff Gary Salazar was a pretrial detainee at the Las Animas County Detention Center. [##11 at 2, 7]As detailed below, the Complaint asserts claims arising out of the following events: (1) the denial of medical treatment [#11 at 7-10] and (2) the punishment for a minor rule infraction [id. at 11-14].
For consistency, the Court refers to the actual page number of the .pdf document uploaded to the Electronic Court Filing system, rather than to the numbering printed on each page.
1. Denial of Medical Treatment
In June or July of 2021, upon Plaintiff's arrival at the jail, Defendant Charles Tillman(“Tillman”) placed Plaintiff in solitary confinement without being seen by medical staff for the medical intake procedure. [#11 at 7] Plaintiff informed Tillman that he was injured and was being treated for a torn shoulder; he asked to see medical staff to acquire medication for his injury. [Id.] Tillman denied Plaintiff's request. [Id.] Thereafter, “every time [Tillman] came into solitary,” Plaintiff complained of his pain and said he “needed to see medical.” [Id.] After five days in excruciating pain, a nurse notified her boss and gave Plaintiff ibuprofen. [Id. at 8]
Incompletely designated in the Complaint and case caption as “Tillman Sargeant.” [#11 at 6]
A member of the medical staff later advised Plaintiff that Defendant Juan Trancoso(“Trancoso”) told the staff not to conduct an initial medical intake of Plaintiff because he was at the jail on a writ from the Colorado Department of Corrections. [Id. at 7]
Incompletely designated in the Complaint and case caption as “J. Trancoso Captain” [#11 at 6]
Plaintiff was eventually seen for medical intake on August 3 or 4, 2022. [Id. at 8] At this point, Plaintiff's medical care primarily involved Nurse Cynthia and Nurse Lindsy.[See Id. at 8-10]
The Court identifies only those facts which are relevant to the defendants bringing the Motion. Although Nurse Cynthia and Nurse Lindsy are named as defendants in the caption of this case, as of the time of this Recommendation, they have not yet entered an appearance in this suit.
2. Punishment for Rule Infraction
According to the Complaint, Defendant Sheriff Derek Navarette (“Navarette”)implements an inmate handbook which lists the minor and major rule infractions. [#11 at 11] The inmate handbook also describes the types of punishments permitted for these rule infractions. [Id. at 13] The handbook, however, does not define how rules can be broken, nor does it provide a process to challenge rule violations. [Id. at 11]
Incompletely designated in the Complaint and case caption as “D. Navarette Sheriff” [#11 at 2]
In September 2022, Plaintiff was accused of a minor rule infraction and was placed in solitary confinement for five days without any quasi-judicial review. [Id.] In solitary confinement, Plaintiff received a different food menu than the general inmate population[Id. at 13]; Plaintiff was not given any writing materials; and he was told by Navarette and Trancoso that he could not send mail out during that time period [Id. at 14]. Plaintiff submitted an unidentified number of kite requests, which have never been answered. [Id. at 14]
A punishment listed in the inmate handbook is that the food menu for those in solitary confinement is not the same as the menu for those in general population. [#11 at 13]
Plaintiff initiated the instant action on August 29, 2022. [#1] Plaintiff filed the operative Amended Complaint (the “Complaint”) on November 9, 2022. [#11] The Complaint asserts federal claims under 42 U.S.C. § 1983 (“Section 1983”) for (1) the denial of medical treatment [#11 at 7-10] (2) a violation of due process rights [id. at 1112] (3) infliction of cruel and unusual punishment [id. at 13], and (4) a violation of First Amendment rights [id. at 14]. With respect to the due process claim, Plaintiff also asserts a violation under the Colorado Constitution pursuant to C.R.S. § 13-21-131. [#11 at 11] Plaintiff brings each of these claims against all defendants in both their individual and official capacities. [#11 at 2-6] The Complaint seeks compensatory and punitive damages. [#11 at 16]
On March 29, 2023, Defendants Navarette, Trancoso and Tillman filed the instant Motion, seeking dismissal of the claims against them. [#26] Plaintiff has responded to the Motion [#37] and Defendants have filed a reply [#39].
II. STANDARD OF REVIEW
Defendants move in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56 and attach the Declaration of Defendant Navarette to their Motion, along with several exhibits. [see generally ## 26; 26-1] As an initial matter, the court must determine whether to review the Motion under a Rule 12(b) or Rule 56 standard. Rule 12(d) instructs:
If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.Fed. R. Civ. P. 12(d). “[W]here the district court intends to convert the motion, the court should give the parties notice of the changed status of the motion and thereby provide the parties to the proceeding the opportunity to present to the court all material made pertinent to such motion by Rule 56.” Nichols v. United States, 796 F.2d 361, 364 (10th Cir. 1986) (internal quotation marks and citation omitted). Plaintiff was not given notice that the Court might convert Defendants' Motion, and the Court declines to do so now. Accordingly, the Court does not consider the exhibits attached to Defendants' Motion or Defendants' argument that they are entitled to summary judgment in their favor based on Plaintiff's alleged failure to exhaust his administrative remedies. [See #26 at 6-7]
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). 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 proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When reviewing a facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
B. Federal Rule of Civil Procedure 12(b)(6)
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.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (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).
C. Pro Se Litigants
“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
The Motion alleges that: (1) Plaintiff's failure to exhaust his administrative remedies bars all of the claims [#26 at 6-7]; and in the alternative, (2) the claims against Defendants in their individual capacities are barred by qualified immunity [id. at 7-12], and (3) the claims against Defendants in their official capacities fail to state a claim [id. at 12-14]. The Court addresses each argument in turn.
A. Exhaustion of Administrative Remedies
Defendants assert that the claims must be dismissed because Plaintiff failed to exhaust his administrative remedies. [#26 at 6-7] The Court disagrees.
Plaintiff's claims challenge prison conditions and are therefore governed by the Prison Litigation Reform Act (the “PLRA”). 42 U.S.C. § 1997e(a). The PLRA provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.Id. “The Supreme Court has interpreted section 1997e(a) to require, prior to filing a lawsuit, that the inmate exhaust all available administrative remedies whether the inmate is seeking injunctive relief, monetary damages, or both.” Caldwell v. Nelson, No. 12-CV-02990-RBJ-BNB, 2013 WL 5586065, at *3 (D. Colo. Oct. 10, 2013) (citing Booth v. Churner, 532 U.S. 731 (2001).)
To the extent Plaintiff raises a claim pursuant to C.R.S. § 13-21-131, there exists a requirement to exhaust his administrative remedies before bringing that claim as well. See C.R.S. § 13-17.5-102.3(1) (“No inmate shall bring a civil action based upon prison conditions under any statute or constitutional provision until all available administrative remedies have been exhausted[.]”).
However, Plaintiff is not required to affirmatively plead exhaustion of his administrative remedies in his Complaint to avoid dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Jones v. Bock, 549 U.S. 199, 216 (2007) (“inmates are not required to specially plead or demonstrate exhaustion in their complaints.”) And “only in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse.” Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007). Here, Plaintiff alleges that he submitted grievances that went unanswered. [#11 at 8, 14] Accordingly, the Court finds Plaintiff has adequately alleged exhaustion.
B. Individual Capacity Claims
Defendants argue that to the extent Plaintiff has sued them in their individual capacities, the claims are barred by qualified immunity. [#26 at 7-12] The Court begins by setting forth the legal standard for the application of the qualified immunity doctrine and then applies this doctrine to Plaintiff's claims.
1. 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 of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted). Once the defense of qualified immunity has been raised, “the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.'” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). “If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
“To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent” such that it is “settled law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018). The Supreme Court has "not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity." Id. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Tenth Circuit has explained the “clearly established” prong of the qualified immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established.... Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted).
2. Claim I: Denial of Medical Treatment
The Eighth Amendment to the United States Constitution protects a prisoner's right to “humane conditions of confinement guided by ‘contemporary standards of decency.'” Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials are required to “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). Prison officials violate this standard when they are deliberately indifferent to an inmate's serious medical needs. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Furthermore, “[u]nder the Fourteenth Amendment's Due Process Clause, pretrial detainees are entitled to the same degree of protection against denial of medical care as that afforded convicted inmates under the Eighth Amendment.” Barrie v. Grand Cty., 119 F.3d 862, 868 (10th Cir. 1997).
To state a cognizable claim, “‘[d]eliberate indifference' involves both an objective and a subjective component. The objective component requires the deprivation of the medical need to be ‘sufficiently serious.'” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “[A] medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quotation omitted). The subjective component of a deliberate indifference claim “is met if a prison official ‘knows of and disregards an excessive risk to inmate health or safety.'” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837). Mere negligence, however, is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839). In other words, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 837) (alteration in original); see also id. at 753 (stating that the subjective component inquiry is: “were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?”).
In the prison medical context, the Tenth Circuit recognizes two types of conduct that will constitute deliberate indifference to a medical need. First, “a medical professional may fail to treat a serious medical condition properly.” Sealock, 218 F.3d at 1211. Second, a prison official may “prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment.” Id.
i. Objective Component
“At the pleading stage, the objective showing requires a prisoner to allege facts that establish a serious medical condition.” Broach v. Morris, No. 17-CV-02791-MSK-NYW, 2020 WL 2306637, at *4 (D. Colo. May 8, 2020). “The issue of whether Plaintiff had a sufficiently serious medical condition...is separate from the inquiry into the adequacy of the treatment provided for that condition.” Mathison v. Wilson, No. 14-CV-03345-RM-STV, 2017 WL 4221396, at *6 (D. Colo. Feb. 28, 2017), report and recommendation adopted, No. 14-CV-03345-RM-KLM, 2017 WL 4227570 (D. Colo. May 10, 2017), aff'd, 719 Fed.Appx. 806 (10th Cir. 2017). For purposes of the Motion, Defendants do not dispute that Plaintiff's injury constitutes a serious medical condition. [#26 at 9 (“Plaintiff has arguably plausibly alleged the objective component of his claim.”)] Accordingly, for purposes of the Motion, the Court concludes that Plaintiff's alleged injury constitutes a sufficiently serious medical need.
ii. Subjective Component
Defendants argue that Plaintiff has not plausibly alleged that any of the Defendants “knew he faced a substantial risk of harm and disregarded that risk.” [#26 at 9] The Court addresses the claim as it relates to each Defendant.
As for Defendant Navarette, Plaintiff does not allege that he was involved in any way in the alleged denial of medical treatment. [See generally #11] Therefore, the Court finds that Plaintiff has not plausibly alleged that Navarette was deliberately indifferent to Plaintiff's serious medical needs, and Navarette is entitled to qualified immunity. See Montoya v. Vigil, 898 F.3d 1056, 1064 (10th Cir. 2018) (“It is true that if the plaintiff failed to state a claim under Rule 12(b)(6), the government would also be entitled to qualified immunity”); Hesse v. Town of Jackson, Wyo., 541 F.3d 1240, 1244 (10th Cir. 2008)(“If the court concludes no constitutional right has been violated, no further inquiry is necessary and the defendant is entitled to qualified immunity.”)
“Liability under [Section] 1983 requires personal participation in the unlawful acts.” Beedle v. Wilson, 422 F.3d 1059, 1072 (10th Cir. 2005) (citing Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996)); See Kee v. Raemisch, 793 Fed.Appx. 726, 732 (10th Cir. 2019) (upholding district court's dismissal of pro se plaintiff's complaint for failure “to allege sufficient facts to show personal participation by many of the named defendants”).
As for Defendant Trancoso, Plaintiff alleges that Trancoso denied him an initial medical screening because he was at the jail on a writ from the Department of Corrections [#11 at 7], but Plaintiff does not allege any facts that show Trancoso was aware of Plaintiff's medical condition. Therefore, Trancoso could not have “consciously disregard[ed] a substantial risk of serious harm.” Self, 439 F.3d at 1231. The Court thus finds that Plaintiff has not plausibly alleged that Trancoso was deliberately indifferent to his serious medical needs, and Trancoso is entitled to qualified immunity. See Montoya, 898 F.3d at 1064; Hesse, 541 F.3d at 1244.
As for Defendant Tillman, the Court notes, as an initial matter, that because Tillman is not a medical professional, the deliberate indifference claim against him must be predicated on a theory of gatekeeper liability. Oakley v. Phillips, No. 15-CV-01004-CMA, 2015 WL 5728734, at *8 (D. Colo. Sept. 30, 2015) (“The typical gatekeeper case involves non-medical personnel, such as prison guards, who fail to request medical assistance on behalf of a prisoner”); see also Estelle, 429 U.S. at 104-05 (noting that deliberate indifference can manifest when “prison guards . . . intentionally deny[ ] or delay[ ] access to medical care.”)
Plaintiff alleges that he informed Defendant Tillman that he was injured and was undergoing treatment for a torn shoulder. [#11 at 7] Plaintiff asked to see medical staff to acquire medication for his injury, but Tillman denied Plaintiff's request. [Id.] Plaintiff also alleges that he repeatedly complained to Tillman about his pain and requested treatment by medical staff over the next five days, but Tillman did nothing in the face of Plaintiff's medical needs. [Id.] The Court finds these allegations are sufficient to state a claim under a gatekeeper theory. See Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1139 (10th Cir. 2023) (“To summarize, doing nothing in the face of serious medical needs is obviously sufficient to state a claim”); Farmer, 511 U.S. at 842, 842-43, n.8 (A plaintiff “need not show that a prison official . . . failed to act believing that harm actually would befall an inmate;” it is enough that an official “merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.”)
That Plaintiff was given ibuprofen five days later by a nurse, acting on her own volition [#11 at 8], does not, by itself, warrant dismissal, because “[d]elaying medical treatment can violate the Eighth Amendment if the delay itself ‘reflect[s] deliberate indifference which results in substantial harm.'” Anderson v. Colorado, Dep't of Corr., 848 F.Supp.2d 1291, 1299 (D. Colo. 2012) (quoting Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)). The substantial harm requirement “may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.2001) (emphasis added). And, the Court finds that Plaintiff sufficiently alleges that the delay in treatment caused him substantial harm, where Plaintiff experienced “excruciating pain” while awaiting medication. [#11 at 8]; see Williams v. Certain Individual Emps. of Texas Dep't of Crim. Just.-Institutional Div. at Jester III Unit, Richmond, Texas, 480 Fed.Appx. 251, 257 (5th Cir. 2010) (“severe pain caused by the refusal to immediately treat pain can support a claim of deliberate indifference grounded in delayed treatment”).
Turning to the qualified immunity doctrine, the relevant inquiry “in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Quintana v. Santa Fe Cnty. Bd. of Commissioners, 973 F.3d 1022, 1033 (10th Cir. 2020) Thus, there need not be “a case directly on point for a right to be clearly established.” McCowan v. Morales, 945 F.3d 1276, 1285 (10th Cir. 2019) (quoting Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018)); see also Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1257 n.9 (10th Cir. 1998) (“A plaintiff, however, need not cite a factually identical case to demonstrate the law was clearly established. Some level of generality is appropriate.” (internal citation omitted)).
Under these alleged facts, the Court finds Defendant Tillman would not be entitled to qualified immunity, because at the time Tillman denied and delayed Plaintiff treatment, the law was clearly established “that the actions of prison officials who prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment, constitute deliberate indifference.” Paugh v. Uintah Cnty., 47 F.4th 1139, 1167-68 (10th Cir. 2022) (citing Al-Turki v. Robinson, 762 F.3d 1188, 1195 (10th Cir. 2014); Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005); Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000)); Quintana v. Santa Fe Cnty. Bd. of Commissioners, 973 F.3d 1022, 1033 (10th Cir. 2020) (“prior to January 2016, it was clearly established that when a detainee has obvious and serious medical needs, ignoring those needs necessarily violates the detainee's constitutional rights.”)
A plaintiff bears the burden of citing to clearly established law. See Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010). This duty typically involves plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013). However, the Tenth Circuit has reversed a trial court's dismissal of a pro se plaintiff's excessive force claim- where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established-by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019). The Court has therefore conducted additional inquiry as appropriate to determine whether the relevant laws of Plaintiff's claims were clearly established as of the dates of these events.
Other circuits have held the same. Williams v. City of Yazoo, Mississippi, 41 F.4th 416, 426 (5th Cir. 2022) (“Officers and jailers have long had notice that they cannot ignore a detainee's serious medical needs. It is clearly established that an official who refuses to treat or ignores the complaints of a detainee violates their rights”); Orlowski v. Milwaukee Cnty., 872 F.3d 417, 422 (7th Cir. 2017) (finding when a prison official is “presented obvious symptoms of a serious medical condition. . . any reasonable officer would know he had a duty to seek medical attention”); Schaub v. VonWald, 638 F.3d 905, 918, n.6 (8th Cir. 2011) (“This court holds that when personally confronted with the serious medical needs of a prisoner, prison officials cannot be deliberately indifferent to those needs by inaction”); Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 545 (6th Cir. 2008) (“where the circumstances are clearly sufficient to indicate the need of medical attention for injury or illness, the denial of such aid constitutes the deprivation of constitutional due process”).
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Claim I, for denial of medical treatment, against Defendants Navarette and Trancoso in their individual capacities, but DENIED to the extent that it seeks dismiss Plaintiff's Claim I against Defendant Tillman.
3. Claim II: Due Process
Plaintiff alleges that his due process rights were violated because he was not given an opportunity to defend himself against his placement in solitary confinement after committing a minor rule infraction. [#11 at 11-12] Defendants argue the claim should be dismissed because there is no constitutional right to a prison grievance process. [#26 at 10] The Court agrees. The Tenth Circuit has made it clear that “there is no . . . constitutional right to state administrative grievance procedures.” Von Hallcy v. Clements, 519 Fed.Appx. 521, 523 (10th Cir. 2013) (citing Boyd v. Werholtz, 443 Fed.Appx. 331, 332 (10th Cir. 2011)); see also Butler v. Brown, 58 Fed.Appx. 712 (9th Cir.2003) (“[A] prisoner has no constitutional right to prison grievance procedures.”); Young v. Gundy, 30 Fed.Appx. 568, 569-70 (6th Cir.2002) (“[T]here is no inherent constitutional right to an effective prison grievance procedure.”)
Because Plaintiff does not assert any other explanation for how his right to due process has been violated, Plaintiff has not stated a claim on which relief may be granted. Chand v. Corizon Med., No. CIV 18-0726 JB\JHR, 2019 WL 1239310, at *5 (D.N.M. Mar. 18, 2019) (dismissing due process claim because “prison grievance procedures do not give rise to a protected liberty interest requiring the Fourteenth Amendment's procedural protections”); Wrenn v. Pine, No. CIV-13-924-R, 2014 WL 4700003, at *5 (W.D. Okla. Sept. 19, 2014) (dismissing the plaintiff's due process claim premised on mishandling of Plaintiff's grievances). Accordingly, Defendants are entitled to qualified immunity, see Montoya, 898 F.3d at 1064; Hesse, 541 F.3d at 1244, and the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Claim II, due process violation, against Defendants Navarette, Trancoso and Tillman in their individual capacities.
The Court does not separately analyze our state constitutional due process guarantee because neither side argues that it should be interpreted any more broadly than its federal counterpart. [See generally ##26; 37]
4. Claim III: Eighth Amendment
Plaintiff alleges that his Eighth Amendment rights were violated because the food he received in solitary confinement was different than the food given to the general inmate population. [#11 at 13] Defendants argue the claim should be dismissed. The Court agrees.
As an initial matter, pretrial detainees, such as Plaintiff, are protected under the Due Process Clause rather than the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). While the Court recognizes in some circumstances, the classification of a plaintiff as a pretrial detainee or an inmate “can have an impact on how a court analyzes the plaintiff's constitutional claims,” Gmyr-Maez v. Albuquerque Police Officer Collin Schneider, 169 F.Supp.3d 1172, 1182 (D.N.M. 2016), here, in determining whether Plaintiff's rights were violated, the analysis is identical to that applied in Eighth Amendment cases brought pursuant to section 1983, see Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (citing McClendon v. City of Albuquerque, 79 F.3d 1014, 1022 (10th Cir. 1996)).
The Court nonetheless recommends dismissal, regardless of the Amendment pleaded, because Defendants are entitled to qualified immunity. Courts have “discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. In Pearson, the Supreme Court acknowledged that, in certain cases, “a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.” Id. at 239. Because the Court finds this principle applicable in evaluating Plaintiff's Eighth Amendment claim, the Court does not address the first prong of the qualified immunity analysis-i.e., whether Plaintiff has sufficiently alleged a constitutional violation.
Here, Plaintiff alleges that he received different food than that of the general inmate population. [#11 at 13 (“For those 5 days I was not given the regular food that the rest of the jail was getting. . . I was forced to eat another menu.”)] Plaintiff cites to no case by the Supreme Court or the Tenth Circuit that would clearly establish that it was a violation of the Eighth Amendment for Defendants to provide Plaintiff with different food than the general inmate population. [See generally #37] Nor has the Court identified any case that holds the Eighth Amendment requires prison officials to indulge inmates' dietary preferences.
Accordingly, The Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Claim III, Eighth Amendment violation, against Defendants Navarette, Trancoso and Tillman in their individual capacities.
5. Claim IV: First Amendment
Plaintiff alleges that his First Amendment rights were violated because for five days in solitary confinement, Plaintiff was unable to send out mail. [#11 at 14-15] Defendants argue the claim should be dismissed because Plaintiff has not plausibly alleged a violation of a clearly established right. [#26 at 11-12] The Court addresses the claim as it relates to each Defendant.
“Correspondence between a prisoner and an outsider implicates the guarantee of freedom of speech under the First Amendment and a qualified liberty interest under the Fourteenth Amendment.” Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996); Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (“The Supreme Court has recognized that ‘[a]ccess is essential ... to families and friends of prisoners who seek to sustain relationships with them.'”) These constitutional rights may, however, be subject to limitation when those limitations relate to legitimate penological interests unrelated to the suppression of expression. Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“[m]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees”); Treff, 74 F.3d at 195. To adequately state a First Amendment claim, Plaintiff must plead sufficient facts “from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.” Gee, 627 F.3d at 1187-88 (“[t]his is not to say that [Plaintiff] must identify every potential legitimate interest and plead against it; we do not intend that pro se prisoners must plead, exhaustively, in the negative in order to state a claim.”)
As for Defendant Tillman, Plaintiff does not allege that he was involved in any way in the First Amendment violation. [See #11 at 14] Therefore, the Court finds that Plaintiff has not plausibly alleged that Tillman violated Plaintiff's First Amendment rights, and Tillman is entitled to qualified immunity.
As for Defendants Navarette and Trancoso, Plaintiff provides the following relevant allegations: Plaintiff was placed in solitary confinement for five days for committing a minor rule infraction; he was told by Navarette and Trancoso that he could not send mail out during the five days in solitary confinement; and his rights to send mail “were only taken from [him] because of [his] placement in solitary confinement.” [#11 at 14] Although prison officials may regulate mail in furtherance of a substantial government interest, see Thornburgh v. Abbott, 490 U.S. 401, 415 (1989); Turner v. Safley, 482 U.S. 78, 93 (1987), there is no legitimate penological reason to restrict mail simply to punish a detainee for being in solitary confinement. Cf. Murray v. Edwards Cnty. Sheriff's Dep't, 453 F.Supp.2d 1280, 1294 (D. Kan. 2006), aff'd, 248 Fed.Appx. 993 (10th Cir. 2007) (“The regulation of detainee correspondence is appropriate if it advances and is reasonably related to a legitimate governmental interest, such as security, order, or rehabilitation.”) Taking these factual assertions in the Complaint as true, the Court finds these allegations permit a plausible inference that the mail ban was not in furtherance of a penological interest.
The Court also notes that the Motion does not dispute the sufficiency of Plaintiff's allegations nor does it raise a legitimate penological interest supporting the mail ban. [See generally ##36; 39]
Turning to the qualified immunity inquiry, under these alleged facts, the Court finds Defendants Navarette and Trancoso would not be entitled to qualified immunity, because at the time Defendants denied Plaintiff the ability to send mail, the law was clearly established that a prisoner's right to incoming and outgoing mail is protected by the First Amendment. Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (citing Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996) (“[a] refusal to process any mail from a prisoner impermissibly interferes with the addressee's First . . . Amendment right”)); Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004) (“Inmates have a First Amendment right to receive information while in prison to the extent the right is not inconsistent with prisoner status or the legitimate penological objectives of the prison”);
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Claim IV, for a violation of Plaintiff's First Amendment Rights, against Defendant Tillman, but DENIED to the extent that it seeks dismiss of Plaintiff's claim IV against Defendants Navarette and Trancoso in their individual capacities.
C. Official Capacity Claims
Plaintiff names all defendants in their official capacities. [#11 at 2-6] Official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). A municipality may not be held liable under Section 1983 solely because its employees inflicted injury on the plaintiff. Id. at 694. “It is only when the ‘execution of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under § 1983.” Springfield v. Kibbe, 480 U.S. 257, 267 (1987) (O'Connor, J., dissenting) (quoting Monell, 436 U.S. at 694). Therefore, “to establish municipal liability, a plaintiff must show 1) the existence of a municipal policy or custom, and 2) that there is a direct causal link between the policy or custom and the injury alleged.” Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993)
The Tenth Circuit has described several types of actions that may constitute a municipal policy or custom.
A municipal policy or custom may take the form of (1) “a formal regulation or policy statement”; (2) an informal custom “amoun[ting] to ‘a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law' ”; (3) “the decisions of employees with final policymaking authority”; (4) “the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval”; or (5) the “failure to adequately train or supervise employees, so long as that failure results from ‘deliberate indifference' to the injuries that may be caused.”Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir.2010) (citations omitted).
Here, the Complaint does not provide sufficient factual assertions which, if true, would state a plausible claim for municipal liability under Monell. It is unclear whether Plaintiff alleges that there is a formally promulgated policy or a final decision by a policymaker, when stating: “[t]he sheriff implemented a LACJ inmate handbook where minor and major rule infractions are listed.” [#11 at 11] To the extent Plaintiff does allege this, it is in the context of Plaintiff's due process claim, which the Court recommends dismissing. See supra Section III.B.3. This precludes the imposition of liability on the municipality for adopting or implementing a handbook which allegedly violates Plaintiff's right to due process. [#11 at 11-12]; Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993) (“A municipality may not be held liable where there was no underlying constitutional violation by any of its officers.”) The Complaint is otherwise devoid of any factual assertions that Plaintiff's constitutional rights were violated as a direct result of any policy, custom, widespread practice or insufficient training.
Accordingly, the Complaint does not state a claim for official capacity liability, and the official capacity claim against all Defendants should be dismissed for failure to state a claim.
IV. CONCLUSION
For the reasons articulated above, this Court respectfully RECOMMENDS that the Motion be DENIED to the extent that it seeks to dismiss Claim I against Defendant Tillman in his individual capacity and Claim IV against Defendants Navarette and Trancoso in their individual capacities, but the Motion should otherwise be GRANTED.
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).