Opinion
Civil Action 20-cv-01207-CMA-KMT
08-27-2021
EDDIE L. SIMON JR., Plaintiff, v. WARDEN BURTLOW, ATTORNEY GENERAL FOR OF THE STATE OF COLORADO, and DIRECTOR OF PRISONS DEAN WILLIAMS Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE
This case comes before the court on Defendants Burtlow and Williams' “Corrected Motion to Dismiss Purusant [sic] to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)” (Doc. No. 62 [Burtlow Mot.]). Plaintiff filed his response on August 24, 2020 (Doc. No. 35 [Resp.]), and Defendants Burtlow and Williams filed their reply on September 8, 2020 (Doc. No. 36 [Reply]).
On February 10, 2021, this court denied without prejudice Defendant Burtlow and Williams' previous motion to dismiss (Doc. No. 33) on the grounds that the motion addressed the original complaint, which is not the operative pleading in this case. (Doc. No. 58.) The court ordered Defendants to file a responsive pleading to the Amended Complaint (Doc. No. 5 [Am. Compl.]), which is the operative pleading, by February 24, 2021. (Doc. No. 58.) With this court's permission (Doc. No. 61), Defendants Burlow and Williams filed their Corrected Motion to Dismiss on February 11, 2021, removing all erroneous references to the original complaint. (Doc. No. 62.) The court held that, based on a review of Plaintiff's previously-filed response and Defendants' previously-filed reply, which did not need amendment, no further briefing would be accepted. (Doc. No. 61.)
Also before the court is Defendant Weiser's “Motion to Dismiss Purusant [sic] to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)” (Doc. No. 53 [Weiser Mot.]), filed November 13, 2020. Plaintiff did not file a response to this motion.
STATEMENT OF THE CASE
Plaintiff, who proceeds pro se, is incarcerated in the Colorado Department of Corrections (“CDOC”) at the Fremont Correctional Facility (“FCF”). (Compl. at 2, filed May 18, 2020.) Plaintiff alleges Defendants violated his rights under the Eighth, Ninth, and Fourteenth Amendments. (Id. at 6-7.) Specifically, Plaintiff contends he is in imminent danger from COVID-19 because Defendants have been unable to implement effective anti-COVID-19 measures at FCF, and he anticipates the virus will eventually break out there. (See generally, Compl.) Plaintiff states that the only adequate remedy of this situation is for the Court to order Defendants to immediately release him from FCF and place him in an intensive parole supervision program. (Compl. at 5.) Plaintiff sues Defendants in their official and individual capacities, seeking only injunctive relief. (Id. at 13.)
Defendants move to dismiss the claims against them in their entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). (Burlow Mot.; Weiser Mot.)
STANDARDS OF REVIEW
A. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.' ” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.' ” Id. (citation omitted).
ANALYSIS
A. Individual Capacity Claims
Defendants argue that Plaintiff's claims for injunctive relief against Defendants in their individual capacities should be dismissed. (Burtlow Mot. at 4-5; Weiser Mot. at 5.) Although Plaintiff asserts in his Complaint that he is suing Defendants under 42 U.S.C. § 1983 in their individual and official capacities, he does not seek monetary damages as relief in this action. To the extent sued in their individual capacities, Plaintiff cannot obtain injunctive relief against the defendants because government officials acting in their individual capacities are immune from suit for injunctive relief under Section 1983. See Hafer v. Melo, 502 U.S. 21, 22, 30 (1991); Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (“Section 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.”) Thus, to the extent Plaintiff seeks injunctive relief from Defendants in their individual capacities, he has failed to state a claim under § 1983, and the claims should be dismissed.
B. Request for Immediate Release
The only relief Plaintiff seeks through in this case is his release from custody. (Compl. at 13.) However, “release from custody is not an available remedy in a § 1983 action.” Brown v. Sedgwick Cnty. Sheriff's Office, 513 Fed.Appx. 706, 707 (10th Cir. 2013). See also Graham v. Waters, 805 Fed.Appx. 572, 578 (10th Cir. 2020) (An inmate's “request for an injunction ordering his immediate release from custody is not a cognizable request for relief in this § 1983 claim.”). Rather, challenges to the fact or duration of Plaintiff's sentence fall within the purview of the federal habeas statute. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole remedy is a writ of habeas corpus”). Accordingly, Plaintiff's request for an injunction ordering his immediate release from custody should be denied, and thus, his claims for injunctive release should be dismissed.
C. State Law Claims
It appears Plaintiff seeks to assert claims for negligence and intentional infliction of emotional distress. (See Compl at 5.) These claims arise under Colorado law. Pursuant to 28 U.S.C. § 1367(a), a federal court may exercise supplemental jurisdiction over claims related to those over which it has original jurisdiction. 28 U.S.C. § 1367(a). However, Section 1367(c)(3) “expressly permits a district court to decline to exercise supplemental jurisdiction over any remaining state-law claims.” 28 U.S.C. § 1367(c)(3); accord Strain v. Regalado, 977 F.3d 984, 997 (10th Cir. 2020) (“The doctrine of supplemental jurisdiction is a doctrine of discretion, not of plaintiff's right.”) (internal quotation marks omitted). The Tenth Circuit has “repeatedly recognized that this is the preferred practice.” Gaston v. Ploeger, 297 Fed.Appx. 738, 746 (10th Cir. 2008) (citations omitted); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”). Accordingly, in this case, because Plaintiff's federal claims should be dismissed, in their entirety, the court should decline to exercise supplemental jurisdiction over his remaining state law claims. See Strain, 977 F.3d at 997 (holding that a district court, upon dismissing a pretrial detainee's federal claims, did not abuse its discretion by declining to exercise supplemental jurisdiction over remaining state law claims); see Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990) (“Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.”).
The court need not address the defendants' remaining arguments.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that Defendant Weiser's “Motion to Dismiss Purusant [sic] to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)” (Doc. No. 53) and Defendants Burtlow and Williams' “Corrected Motion to Dismiss Purusant [sic] to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)” (Doc. No. 62) be GRANTED. Plaintiff's claims asserted under 42 U.S.C. § 1983 should be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6), and the court should decline to exercise supplemental jurisdiction over any state law claims Plaintiff asserts. The court further
RECOMMENDS that all other motions be denied as moot.
ADVISEMENT TO THE PARTIES
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).