Opinion
Civil Action 18-cv-00588-RM-KMT
01-22-2021
LARRY ALLEN THOMPSON, Plaintiff, v. JASON LENGRICH, WARDEN, BUENA VISTA CORR. FAC., JENNIFER HANSEN, BVCF SECURITY SVC. CAPTAIN, and WILLIAM CATTELL, BVCF EAST UNIT SUPERVISOR, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M Tafoya United States Magistrate Judge.
Before the court are three motions: (1) Defendants' “Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6);” (2) Plaintiff's “Motion for Declaratory Judgment Pursuant to 28 U.S.C. § 2201(a) and Fed.R.Civ.P. 57;” and (3) Plaintiff's “Motion for ‘Class of One' Class Action Certification Pursuant to Fed.R.Civ.P. 23(a)(2), 23(c)(1)(B), 23(c)(4), and 23(g)(1).” ([“Motion to Dismiss”], Doc. No. 54; [“Motion for Declaratory Judgment”], Doc. No. 64; [“Motion for Class Certification”], Doc. No. 65.) Plaintiff has responded in opposition to the Motion to Dismiss, and Defendants have replied. ([“Response”], Doc. No. 63; [“Reply”], Doc. No. 67.) Defendants have responded in opposition to both of Plaintiff's motions, but Plaintiff has not replied. (Doc. Nos. 68-69.)
STATEMENT OF THE CASE
Pro se Plaintiff Larry Allen Thompson, an inmate in the custody of the Colorado Department of Corrections [“CDOC”], brings this action under 42 U.S.C. § 1983, alleging that he was subjected to unconstitutional conditions of confinement while incarcerated at the CDOC's Buena Vista Correctional Facility [“BVCF”]. ([“Complaint”], Doc. No. 10 at 2-26.) Thompson alleges, specifically, that BVCF is overcrowded and understaffed, and that these conditions, along with the prison's shower conditions and policies, violated his rights under the Fourth, Eighth, and Fourteenth Amendments. (Id. at 4-26.)
I. Shower Conditions
Thompson reportedly suffers from Post-Traumatic Stress Syndrome/Disorder [“PTSS/D”], stemming from childhood sexual abuse, which inhibits him from taking communal showers with other male inmates. (Id. at 8.) CDOC Administrative Regulation [“AR”] #100-40, which was passed to implement the Prison Rape Elimination Act, 34 U.S.C. §§ 30301-30309, and its accompanying regulations, see 28 C.F.R. Pt. 115, obligates prisons to provide inmates who self-identify as transgender or intersex with the opportunity to shower separately from other inmates. Neither AR #100-40, nor the federal regulations, authorize private showers for other inmates with special needs, such as Thompson.
According to the Amended Complaint, on around September 17, 2017, Plaintiff learned that he was to be transferred from the BVCF's East Unit Dorm Pre/Incentive Housing Unit, which has individual shower stalls, to the lower East Unit, which has only communal showers. (Id. at 4.) At that time, Plaintiff reportedly alerted the East Unit Supervisor, Defendant William Cattell, as to his PTSS/D diagnosis and corresponding “personal safety concern with regards to the communal showering facilities in the lower East Unit.” (Id.) Plaintiff complains that, even though Defendant Cattell told him that he would “discuss the questionable move” with the BVCF sergeant who initiated the transfer, Defendant Cattell ultimately “was personally present and supported the sergeant's malicious action and decision to re-classify [him] without any due process procedures, proceedings, and/or protections[.]” (Id. at 4-5.) Thompson alleges that Defendant Cattell later denied his grievance relating to communal showers, “basically stating” that he “could have a private shower, ” only if he “identified himself as [a] transgender or intersexual inmate.” (Id. at 5.)
On September 19, 2017, Plaintiff was transferred to the lower East Unit. (Id.) Later that same day, “after discussing the situation and his options with his wife, ” Plaintiff reportedly declared a “Mental Health Emergency.” (Id.) According to the Amended Complaint, Plaintiff's wife then contacted BVCF regarding her husband's “mental health and well[-]being.” (Id.) Thompson alleges that, shortly thereafter, the BVCF's Custody/Control Manager, Defendant Jennifer Hansen, “personally came to the East Living Unit to confront [him] about what is, and/or is not considered by the administration to be a mental health emergency or issue.” (Id. at 6.) Defendant Hansen is said to have “informed [Thompson] in no uncertain terms that [his] ‘safety concerns' were ‘irrelevant,' and the fact that [he] ‘. . . doesn't want to shower with other men [was] not [her] problem!” (Id.) It is alleged that Defendant Hansen then “threat[ened]” Plaintiff, by stating that he “could either comply” with the transfer to the lower East Unit, or “be taken to Restrictive Housing (segregation).” (Id.)
According to the Amended Complaint, following these events, Plaintiff refused to shower communally, and the BVCF staff apparently did not force him to do so. (Id. at 6-7.) As a result, Plaintiff did not bathe, at all, for approximately twenty-five days. (Id. at 7.) Plaintiff complains that, during that time, he was “forced to needlessly suffer and endure” significant “psychological torture, ” as well as “to live in a heightened state of fear of physical retaliation and possible assault from his cellmate for not showering.” (Id. at 8.) In the interim, by letter dated September 29, 2017, the BVCF Warden, Defendant Jason Lengerich, informed Plaintiff's wife that her husband “w[ould] not be granted private showers, ” because he “did not self-report as being transgender, gender non-conforming, or intersex.” (Id. at 7.) Two weeks later, however, the CDOC's Director of Prison Operations reportedly directed Defendant Lengerich “to allow Plaintiff to resume showering privately.” (Id.) Plaintiff is said to have “complied, ” on October 14, 2017. (Id.)
Plaintiff alleges that he did not shower for a total of nineteen days. (Compl. 8.) However, he states that he was transferred to the lower East Unit, on September 19, 2017, and that he resumed showering on October 14, 2017, which is a total of twenty-five days. (Id. at 5, 7.)
II. Overcrowding and Understaffing
In this lawsuit, Plaintiff also alleges that BVCF is unconstitutionally overcrowded and understaffed. (Id. at 16-21.) Thompson complains that his BVCF cell-which has only 21.5 square feet of unencumbered space, and which was intended for single occupancy-must be “shared by two fully grown men for an average of 18 to 24 hours per day; and at times, 24 hours per day for weeks on end.” (Id. at 18.) He alleges that the cell has “no reasonable amount of space for exercise; sanitation conditions are constantly compromised; and, infectious diseases such as the flu virus are easily spread.” (Id.) Plaintiff likewise complains that, due to “sever[e] staffing shortages at BVCF, ” he “is allowed outside of his cell on average from 4 to 4.5 hours per day.” (Id. at 19-20.) Thompson reports that he has been subject to several multi-day lockdowns at BVCF, including an eleven-day lockdown in March 2018, which was due to a “sudden outbreak” of influenza, during which he was allowed outside of his cell for a total of forty minutes, solely to shower, and where “no cleaning, and/or sanitation supplies were issued with which inmates could clean and sanitize their cells.” (Id. at 17.) Plaintiff further alleges that, on April 12, 2018, he witnessed “a major, multiple combatant gang fight” involving more than thirty BVCF inmates, which, due to understaffing, “last[ed] without any substantial intervention for 5 to 10 minutes leaving several inmates beaten and bloodied.” (Id. at 20.)
III. Procedural History
Based on these allegations, on March 12, 2018, Plaintiff commenced this lawsuit. (Doc. No. 1.) On April 27, 2018, Plaintiff filed an Amended Complaint, asserting various claims under the Fourth, Eighth, and Fourteenth Amendments against Defendants Cattell, Hansen, and Lengerich, in their individual and official capacities. (Compl. 2-26.) In his Amended Complaint, Plaintiff seeks injunctive relief, as well as compensatory and punitive damages. (Id. at 28.)
After an initial screening under 28 U.S.C. § 1915A, all of Plaintiff's claims were dismissed, as legally frivolous. (Doc. No. 13.) On December 23, 2019, the Tenth Circuit, on appeal, reversed and remanded the dismissal of the following causes of action: (1) the Eighth Amendment claims, which were premised on BVCF's shower conditions and policy, against Defendants, in their individual capacities; (2) the Eighth Amendment claims, which were premised on overcrowding and understaffing at BVCF, against Defendant Lengerich, in his individual and official capacity; (3) the Fourteenth Amendment bodily privacy claims against Defendants, in their individual capacities; and (4) the Fourteenth Amendment equal protection claims against Defendants, in their individual capacities. Thompson v. Lengerich, 798 Fed.Appx. 204, 214 (10th Cir. 2019).
Defendants now move to dismiss the remaining claims against them, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Mot. to Dismiss 1.) Specifically, Defendants argue that Plaintiff's claims for injunctive relief are moot, because he is no longer confined at BVCF. (Id. at 7.) In addition, Defendants seek dismissal of the Eighth Amendment claims, under Rule 12(b)(6), arguing that Plaintiff has failed to meet the requisite pleading standard, and alternatively, that they are entitled to qualified immunity as to those claims. (Id. at 8-15.) In addition, Defendants argue that Plaintiff lacks standing to bring the Fourteenth Amendment bodily privacy claims, because the Amended Complaint alleges no injury in fact. (Id. at 15-16.) Finally, Defendants contend that they are entitled to qualified immunity as to the Fourteenth Amendment equal protection claims. (Id. at 17-20.)
STANDARDS OF REVIEW
I. 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 Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the 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 Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a 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 an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for a 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. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. 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). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Id. at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). If a party challenges the facts upon which subject matter jurisdiction depends, a court may not presume the truthfulness of the complaint's “factual allegations . . . [and it] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
III. Failure to State a Claim
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. Tex. 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 a 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).
In evaluating a Rule 12(b)(6) motion to dismiss, the court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Tellabs, Inc, 551 U.S. at 322; Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003).
IV. Qualified Immunity
“Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). “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.'” Ullery v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Qualified immunity balances two important interests-[1] the need to hold public officials accountable when they exercise power irresponsibly and [2] the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. (quoting Pearson, 555 U.S. at 231). Once a defendant has asserted a qualified immunity defense, the burden shifts to the plaintiff to establish that: (1) the defendant violated a constitutional right; and (2) the right was “clearly established” at the time of the defendant's alleged misconduct. Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (quoting Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016)). “Under this two-part test, ‘immunity protects all but the plainly incompetent or those who knowingly violate the law.” Ullery, 949 F.3d at 1289 (quoting Kisela v. Hughs, ___ U.S. ___, 138 S.Ct. 1148, 1152 (2018)).
ANALYSIS
I. Defendants' Motion to Dismiss
A. Injunctive Relief
In his Amended Complaint, Plaintiff requests the following injunctive relief: (1) “the immediate revision of the [CDOC's] Administrative Regulation AR #100-40 giving the Non- Transsexual Classification of prisoners the same protections and opportunities as those afforded to the Transgender and Intersexual inmates under the [P]rison Rape Elimination Act's National Standards § 115.42(e) & (f)[;]” (2) “the immediate modification of the [BVCF's] (lower) East Living Unit showers . . . to include individual showering stalls, and/or alternateively [sic], to install modesty/privacy partitions[;]” (3) a mandate “that the CDOC, within one (1) year of the Court's Order reduce the inmate population of BVCF by 50%;” and (4) an order “restoring BVCF to being a ‘Single Cell Occupancy' facility, only.” (Compl. 29 ¶¶ 1-4.) Since filing this lawsuit, however, Plaintiff has been transferred to another CDOC facility. (Mot. to Dismiss 1 & n.1.)
Article III's requirement that federal courts adjudicate only cases and controversies requires a court to decline to exercise jurisdiction, if the award of any requested relief would be moot. McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999) (citation omitted). A claim is “deemed moot unless a proper judicial resolution settles some dispute which affects the behavior of the defendant toward the plaintiff.” Id. (internal quotation marks and citation omitted). Here, Plaintiff's claims against Defendants pertain to alleged violations of his constitutional rights at BVCF, where Plaintiff is no longer incarcerated. An award of injunctive relief to remedy alleged constitutional violations at BVCF would, therefore, have no effect on Plaintiff. Further, a party cannot maintain an action for injunctive relief, unless a substantial likelihood of being injured in the future is demonstrated. Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991). Plaintiff is no longer housed at BVCF, and he is no longer under Defendants' custody and control. Because Plaintiff is no longer subject to the conditions of which he complains, his requests for injunctive relief specific to BVCF are moot. See Jordan v. Sosa, 654 F.3d 1012, 1028 (10th Cir. 2011) (“Where the prisoner's claims for declaratory and injunctive relief relate solely to the conditions of confinement at the penal institution at which the prisoner is no longer incarcerated, courts have concluded that they are unable to provide the prisoner with effective relief.”); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (finding an inmate's claim for injunctive relief to be moot, because he transferred out of the prison facility). Further, to the extent Plaintiff requests a modification of a CDOC administrative regulation, “a transferred prisoner's challenge to system-wide prison policies is moot where he seeks equitable relief and only sues prison officials at the transferor institution-that is, the institution where he was formerly incarcerated.” Jordan, 654 F.3d at 1028-29 (emphasis in original). Here, Plaintiff has only sued BVCF officials. As such, his request to modify AR #100-40 is also moot. Accordingly, it is recommended that Plaintiff's remaining requests for injunctive relief be dismissed under Federal Rule of Civil Procedure 12(b)(1).
In his Response, Plaintiff argues that his claims for injunctive relief satisfy the “capable-of-repetition” exception to mootness. (Resp. 4-5.) An exception to the mootness doctrine exists when the wrongdoing alleged is “capable of repetition, yet evading review.” Marks v. Colo. Dep't of Corr., 976 F.3d 1087, 1093 (10th Cir. 2020) (quoting Ind v. Colo. Dep't of Corr., 801 F.3d 1209, 1215 (10th Cir. 2015)). However, “[t]his exception is ‘narrow' and ‘only to be used in exceptional situations.'” Id. (quoting Jordan v. Sosa, 654 F.3d 1012, 1034-35 (10th Cir. 2011)). “This exception only applies where two narrow conditions are present: ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Hale v. Ashcroft, 683 F.Supp.2d 1189, 1198 (D. Colo. 2009) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Both conditions must be met for the exception to apply. Jordan, 654 F.3d at 1035. “The plaintiff invoking the exception bears the burden of proof.” Marks, 976 F.3d at 1093. Here, Plaintiff argues that “it is conceivable that for any given reason, or for none at all, he could be transferred back to BVCF where he'd once again be faced with” the conditions about which he complains. (Resp. 4.) This argument falls far short of establishing a “reasonable expectation” or “demonstrated probability” that the same controversy will recur. See Murphy v. Hunt, 455 U.S. 478, 482 (1982); Chesser v. Dir. Fed. Bur. of Prisons, No. 15-cv-01939-NYW, 2018 WL 3729511, at *14 (D. Colo. Aug. 6, 2018) (“It appears mere speculation then that Mr. Chesser will return to ADX General Population, which is insufficient for purposes of the capable of repetition yet evading review exception to mootness.”).
B. Official Capacity Claim
With regard to Plaintiff's remaining official capacity claim against Defendant Lengerich, the Eleventh Amendment shields state officials, acting in their official capacities, from claims for monetary relief. Hill v. Kemp, 478 F.3d 1236, 1255-56 (10th Cir. 2007); see Thompson v. Lengerich, 798 Fed.Appx. 204, 210 (10th Cir. 2019) (“With regard to defendants in their official capacities, Thompson may seek only injunctive relief.”). Therefore, because Plaintiff's requests for injunctive relief are moot, the remaining official capacity claim against Defendant Lengerich should be dismissed for lack of subject matter jurisdiction.
C. Individual Capacity Claims
1. Fourteenth Amendment Bodily Privacy Claims
Plaintiff alleges that requiring him to use communal showers violates his constitutional rights to bodily privacy and security, which implicates the Fourteenth Amendment. (Compl. 8 12); see Thompson v. Lengerich, 798 Fed.Appx. 204, 208-09, 212 (10th Cir. 2019). In their Motion, Defendants argue that Plaintiff lacks Article III standing to bring this claim, because he does not allege that he ever actually took a communal shower. (Mot. to Dismiss 11-12.) Defendants contend, for that reason, that Plaintiff did not suffer an injury in fact. (Id.)
The Tenth Circuit has recognized that inmates retain a limited right to bodily privacy under the Fourteenth Amendment. Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (“Although the inmates' right to privacy must yield to the penal institution's need to maintain security, it does not vanish altogether.”); accord Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) (“Shielding one's unclothed figure from the view of strangers, particularly strangers of the opposite sex is impelled by elementary self-respect and personal dignity.”). An inmate's interest in bodily privacy may be restricted “only to the extent necessary to further the correction system's legitimate goals and policies.” Cumbey, 684 F.2d at 714.
Article III standing has three required elements: (1) “injury in fact;” (2) “a causal relationship between the injury and the defendants' challenged acts;” and (3) “a likelihood that a favorable decision will redress the injury.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1181 (10th Cir. 2010) (citation omitted). “The three requirements of Article III standing-injury-in-fact, causation, and redressability-ensure that the parties to any litigation have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.'” Petrella v. Brownback, 697 F.3d 1285, 1293 (10th Cir. 2012) (quoting Massachusetts v. E.P.A., 549 U.S. 497, 516 (2007)). “[A]t the pleading stage, the plaintiff must clearly allege facts demonstrating each element [of standing].” Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547 (2016)). “It is the plaintiff's burden to demonstrate that these requirements are met.” Petrella, 697 F.3d at 1293 (citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). Further, “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Elec. Comm'n, 554 U.S. 724, 734 (2008) (internal quotations marks and citation omitted).
To establish injury in fact, Plaintiff must show that he suffered “‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Spokeo, 136 S.Ct. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “The ‘injury in fact' requirement differs ‘depending on whether the plaintiff seeks prospective or retrospective relief.'” Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (quoting Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004)). If, as here, only retrospective relief is sought, a plaintiff must show that he has suffered a past injury that is “concrete and particularized.” Tandy, 380 F.3d at 1284. “A concrete injury must be de facto; that is, it must actually exist.” Spokeo, 136 S.Ct. at 1548. “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks and citation omitted). “Allegations of possible future injury do not establish an injury in fact.” Doe ex rel. Doe v. Hunter, 796 Fed.Appx. 532, 536 (10th Cir. 2019) (citations omitted); Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (“Abstract injury is not enough.”).
As stated supra, Plaintiff's requests for injunctive relief should be denied as moot.
Here, Plaintiff alleges that his bodily privacy rights were violated “by virtue of the fact that he was forced to needlessly suffer and endure 19 days of psychological torture, wherein . . . [he] could [] not fully bathe and properly care for his hygienic needs, thereby compromising his personal and environmental sanitary conditions and needs.” (Compl. 8.) Plaintiff further alleges that, due to his “chronicled mental health condition (PTSS/D), ” he was “forced by the unnecessary circumstance to live in a heightened state of fear of physical retaliation and possible assault from his cellmate for not showering.” (Id.) In essence, Plaintiff frames his injuries-the deterioration of his mental and physical condition-as arising from his forced exposure to communal showers. The court finds these allegations sufficient to show that Plaintiff has suffered a “concrete and particularized” injury in fact, which is fairly traceable back to his transfer to the BVCF's lower East Unit, and that the injury would likely be redressed by a decision in Plaintiff's favor. Accordingly, Plaintiff has adequate constitutional standing to pursue Fourteenth Amendment bodily privacy claims against Defendants. See Guy v. Espinoza, No. 1:19-cv-00498-AWI-EPG (PC), 2020 WL 309525, at *4 (E.D. Cal. Jan. 21, 2020) (finding that a transgender inmate possessed constitutional standing to bring Fourteenth Amendment claims, where the complaint alleged that the inmate “has been personally threatened and intimidated by the male born inmates, ” and that she “suffered sexual violence and abuse prior to incarceration and has suffered aspects of PTSD since the male born inmates have been housed at CCWF”); c.f. Lemmons v. Clymer, 609 Fed.Appx. 949, 954 n.3 (10th Cir. 2015) (finding an inmate's allegations that “convicted criminals were permitted to roam free” in the prison, to be insufficient to establish injury in fact to assert a § 1983 claim); Olive v. Harrington, No. 1:15-cv-01276-BAM (PC), 2016 WL 4899177, at *2-3 (E.D. Cal. Sept. 14, 2016) (finding that a transgendered inmate, who challenged a prison policy that “compel[led] transgenders to shower in view of male prisoners, ” lacked standing to assert §1983 claims, where the plaintiff failed to allege “any injury as a result of the challenged practices”).
Defendants challenge the Fourteenth Amendment bodily privacy claim, only on standing grounds. It is worth noting, however, that although Plaintiff's allegations may be sufficient to establish Article III standing, that does not mean that the harm alleged is also sufficient to state a claim for relief.
2. Eighth Amendment Claims
i. Overcrowding/Understaffing
Thompson alleges a violation of his Eighth Amendment rights by Defendant Lengerich, predicated upon the overcrowded and understaffed conditions at BVCF. (Compl. 16-18.) Defendant Lengerich moves to dismiss this claim, contending that Plaintiff has failed to adequately allege his personal participation in any constitutional injury. (Mot. to Dismiss 8-10.)
Personal participation is an essential element of a civil rights claim. Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011). To establish personal participation, a plaintiff must show how the defendant caused the deprivation of a federal right. Kentucky v. Graham, 473 U.S. 159, 166 (1985). In other words, an affirmative link must exist between the alleged constitutional violation and the defendant's participation, control, direction, or failure to supervise. Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151-52 (10th Cir. 2006). Supervisory status, alone, is insufficient to support such a claim. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996); see Brown, 662 F.3d at 1163 (“Section 1983 does not authorize liability under a theory of respondeat superior.”).
In the Amended Complaint, Plaintiff alleges that “there is little doubt” that Defendant Lengerich, as BVCF Warden, “was made aware of the situation and circumstances of Plaintiff's living situation and the potential problems therein.” (Compl. 6-7.) The only other specific allegations relating to Defendant Lengerich are that he sent a letter to Plaintiff's wife, stating that Plaintiff “w[ould] not be granted private showers, ” and that he was later “contacted, and instructed to allow Plaintiff to resume showering privately by [CDOC's] Director of Prison Operations.” (Id. at 7.)
These allegations fail to show the requisite amount of personal involvement by Defendant Lengerich to state a conditions-of-confinement claim relating to overcrowding and/or understaffing. Indeed, Plaintiff has not alleged that Defendant Lengerich had any direct contact with him, that Defendant Lengerich was present during any alleged violation of his constitutional rights, or that Defendant Lengerich was even aware of his concerns pertaining to overcrowding and/or understaffing at BVCF. See Davis v. Ark. Valley Corr. Facility, 99 Fed.Appx. 838, 843 (10th Cir. 2004) (holding that a prison warden was not implicated under § 1983, merely because the plaintiff copied the warden on correspondence that outlined his complaints about medical care); Doyle v. Cella, No. 07-cv-01126-WDM-KMT, 2008 WL 4490111, at *2 (D. Colo. Sept. 30, 2008) (finding no personal participation, where the complaint alleged only that the prison warden was “made aware” of constitutional rights violations). Nor has Plaintiff alleged any facts that suggest an affirmative link between Defendant Lengerich's supervision and the conduct of any subordinate. See Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (“[A] plaintiff must show an ‘affirmative link' between the supervisor and the violation, namely the active participation or acquiescence of the supervisor in the constitutional violation by the subordinates.”). For instance, Plaintiff does not allege that Defendant Lengerich personally directed his subordinates to increase the number of inmates housed within individual BVCF units, or to reduce staffing at BVCF, or that he willfully turned a blind eye to such conduct. See Escobar v. Reid, 668 F.Supp.2d 1260, 1273 (D. Colo. 2009) (dismissing an Eighth Amendment conditions-of-confinement claim, where the plaintiff failed to allege the defendant's personal participation in the purportedly unconstitutional conduct, aside from his “tangential supervisory role”); see also Conley v. McKune, 529 Fed.Appx. 914, 921 (10th Cir. 2013) (“[The plaintiff's] formulaic recitation that these defendants knew of his condition and were deliberately indifferent to it fails to demonstrate an affirmative link to the alleged constitutional violation.”). Plaintiff has likewise failed to allege that Defendant Lengerich acted with “deliberate indifference” to the conduct of his subordinates. See Serna, 455 F.3d at 1151 (“Because mere negligence is not enough to hold a supervisor liable under § 1983, a plaintiff must establish that the supervisor acted knowingly or with deliberate indifference that a constitutional violation would occur.”) (alterations omitted). Finally, there are no allegations from which to infer that Defendant Lengerich created, promulgated, or implemented any policy, which led to unconstitutional overcrowding or understaffing. See Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015) (observing that supervisory liability can be imposed “upon a defendant-supervisor who creates, promulgates, or implements a policy which subjects” a plaintiff to constitutional rights deprivations) (alterations omitted); see also Smith v. Whetsel, No. CIV-16-1487-HE, 2017 WL 9483525, at *5 (W.D. Okla. Feb. 27, 2017) (“Plaintiff's only allegation against the Board of County Commissioners is alleged knowledge of overcrowding at OCDC. This allegation is insufficient to suggest the existence of a policy or custom leading to the alleged injury to Plaintiff.”).
In this case, Plaintiff's conclusory allegations show only a possible indirect involvement by Defendant Lengerich in the purported overcrowding and understaffing at BVCF, and fail to allege the necessary personal participation required for individual liability under § 1983. For that reason, it is recommended that the Eighth Amendment claim against Defendant Lengerich, specifically pertaining to overcrowding and understaffing at BVCF, be dismissed.
ii. Shower Conditions
Thompson also alleges that Defendants Cattell, Hansen, and Lengerich violated his Eighth Amendment rights, by requiring him to use communal showers at BVCF. (Compl. 1315.) Defendants seek dismissal of this claim, arguing that Plaintiff has failed to satisfy the requisite pleading standard, and alternatively, that they are each entitled to qualified immunity. (Mot. to Dismiss 13-15.)
The Eighth Amendment, which prohibits the infliction of “cruel and unusual punishments, ” imposes a duty upon prison officials to provide “humane conditions of confinement.” U.S. CONST. amend. VIII; Farmer v. Brennan, 511 U.S. 825, 833 (1994). Prison officials “must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.'” Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)); Thompson v. Lengerich, 798 Fed.Appx. 204, 209 (10th Cir. 2019) (“Although prison officials have broad administrative and discretionary authority to manage and control prisons, they must provide humane conditions of confinement guided by contemporary standards of decency.”); see also Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) (holding that prison officials must provide “reasonably adequate ventilation, sanitation, bedding, hygiene materials, and utilities”).
An Eighth Amendment claim involves “a two-pronged inquiry, comprised of an objective component and a subjective component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citing Farmer, 511 U.S. at 834). To satisfy the objective component, a plaintiff must show “extreme deprivations” caused by the conditions of his confinement. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992); accord Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (explaining that the alleged deprivation must be “sufficiently serious”). In other words, the conditions of confinement “must result in the denial of ‘the minimal civilized measure of life's necessities.'” Walker v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir. 2020) (quoting Farmer, 511 U.S. at 834). Mere “discomfort” is not enough. Hudson, 503 U.S. at 9 (citations omitted); Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998) (“The Eighth Amendment does not mandate comfortable prisons, and conditions imposed may be restrictive or even harsh.”) (internal quotation marks omitted). To satisfy the subjective component, a plaintiff must demonstrate that the prison official acted with “deliberate indifference” to inmate health or safety. Farmer, 511 U.S. at 834. “[D]eliberate indifference is a stringent standard of fault.” Bd. of Cty.Comm'rs v. Brown, 520 U.S. 397, 410 (1997). “A showing of simple or even heightened negligence will not suffice.” Id. at 407. Rather, the defendant must “know[] of and disregard[] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. 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 he must also draw the inference.” Id.
Here, Plaintiff alleges that Defendants, though aware of his PTSS/D diagnosis and resulting inability to shower with other male inmates, intentionally transferred him to a BVCF unit with communal showers only. (Compl. 4-7.) Thompson complains that, due to Defendants' “collective actions and decisions, ” he was then “deprived the ability to properly bathe/shower” for approximately twenty-five days. (Id. at 13.)
These allegations, even taken as true, do not show “extreme deprivations” of “the minimal measure of life's necessities, ” as is required to state a conditions-of-confinement claim under the Eighth Amendment. Hudson, 503 U.S. at 8-9. Indeed, Plaintiff does not allege that he was deprived of any ability to clean himself, only that he refused to do so, unless specifically given a private shower. See Foreman v. Bur. of Prisons, 2007 WL 108457, at *1, 4 (3rd Cir. Jan. 16, 2007) (finding no Eighth Amendment violation, where a paraplegic inmate received a shower chair from the prison, as requested, but “claimed it was inadequate because it did not have lateral supports or a center opening”); Banks v. Argo, No. 11 Civ. 4222(LAP), 2012 WL 4471585, at *4 (S.D.N.Y. Sept. 25, 2012) (finding no Eighth Amendment violation relating to showers, where the inmate did not allege that “he had no other means of cleaning himself”); see also Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (“Inmates cannot expect the amenities, conveniences and services of a good hotel.”). In this case, it is apparent from the Amended Complaint that Plaintiff had the means to take a shower, as well as access to a sink.
Importantly, even assuming that Defendants actions did totally deprive Plaintiff of any ability to bathe for twenty-five days, as alleged, such a limited deprivation, alone, does not necessarily violate the Eighth Amendment. See Richard v. Aldridge, No. 2:19-cv-2006 DB P, 2020 WL 469348, at *2 (E.D. Cal. Jan. 29, 2020) (“There is no constitutional right to a certain number of showers per week and an occasional or temporary deprivation of a shower does not rise to the level of a constitutional violation.”); Barndt v. Wenerowicz, No. 15-2729, 2016 WL 6612441, at *4 (E.D. Pa. Nov. 8, 2016) (“Denial of showers for a temporary period of time is not a constitutional violation.”). In evaluating whether the denial of a shower amounts to “cruel and unusual punishment, ” the court must consider “the frequency and duration of the condition, as well as the measures employed to alleviate the condition.” Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001). In this case, Plaintiff alleges only a single shower deprivation, which lasted twenty-five days. Federal courts have routinely dismissed Eighth Amendment claims, predicated solely upon similar allegations of temporarily inadequate shower access. See Scott v. Carpenter, 24 Fed.Appx. 645, 648 (8th Cir. 2001) (finding no Eighth Amendment violation, where a disabled inmate received only fifteen showers over six months and once went twentyeight days without a shower, where the evidence showed that the inmate's cell had “soap, water, wash cloths, and towels, ” and where prison officials “offered [the inmate] showers or warm water for sponge baths at his request and never interfered with his requests”); Jones v. Houston, No. 4:06CV3314, 2007 WL 3275125, at *8 (D. Neb. 2007) (holding that thirteen days without shower access did not violate the Eighth Amendment); Wright v. DeBruyn, No. 93-CV-448 (RP), 1996 WL 441879, at *1-3 (N.D. Ind. June 4, 1996) (finding no Eighth Amendment violation, where showers were prohibited during the first three to four weeks of a ten-month lockdown).
Further, although Thompson claims that he “was forced by the unnecessary circumstance to live in a heightened state of fear of physical retaliation and possible assault from his cellmate for not showering, ” he fails to plausibly allege any specific degenerative physical or mental effects resulting from his lack of shower access. See Dittmeyer v. Whetsel, 91 Fed.Appx. 111, 119 (10th Cir. 2004) (affirming the dismissal of Eighth Amendment conditions of confinement claim, where “nothing in the record establishes the initial unsanitary condition of [the inmate's] cell resulted in any actual injury, ” or that “the unsanitary conditions existed for a substantial time before he received the cleaning products he requested”); Foreman v. Bur. of Prisons, 2007 WL 108457, at *4 (3rd Cir. Jan. 16, 2007) (finding no Eighth Amendment violation for failing to provide a paraplegic inmate with a specific type of shower chair, where the inmate “suffered only minor scratches from the fall”); c.f. Bradley v. Puckett, 157 F.3d 1022, 1025-26 (5th Cir. 1998) (reversing the dismissal of an inmate's Eighth Amendment claim, where the inmate alleged “that he was unable to bathe for several months, ” “that he was therefore forced to clean himself using toilet water, ” and “that the unhygienic conditions resulted in a fungal infection which required medical attention”); Conaway v. Capasso, No. RDB-17-3534, 2018 WL 3092166, at *6 (D. Md. June 22, 2018) (finding no violation of the Eighth Amendment resulting from “the denial of showers extended over a period of 17 days, ” where the inmate alleged “no actual injury as a result of the denial of showers over this period”); Story v. Okla. Cnty., No. CIV-17-1156-M, 2017 WL 7310060, at *4 (W.D. Okla. Dec. 29, 2017) (recommending the dismissal of an Eighth Amendment claim, given that the inmate's “vague contention of pain and suffering fail[ed] to plausibly link any physical effects to the lack of hot water”); c.f. Womble v. Chrisman, 770 Fed.Appx. 918, 925 (10th Cir. 2019) (finding the objective component of an Eighth Amendment claim to be met, where the inmate alleged that “the inadequate [shower] facilities required him to hold bowel movements, exposed him to feces on two occasions, caused him to soil himself, and resulted in damage to his digestive system”); Rivera v. Mathena, 795 Fed.Appx. 169, 175 (4th Cir. 2019) (finding the objective component to be met, where the inmate produced evidence that he suffered “emotional and mental deterioration, depression, low energy, difficulty sleeping, headaches, and loss of appetite, ” as well as “the reappearance of a fungal infection, ” due to “long periods without showers”); Schmidt v. Odell, 64 F.Supp.2d 1014, 1031 (D. Kan. 1999) (finding a viable conditions of confinement claim, where the plaintiff, a double amputee, was denied a shower chair for six to seven months, during which time he was forced to crawl on the shower floor, resulting in a skin rash and cellulitis infection).
In this case, Plaintiff has not met the Rule 8(a) pleading standard to allege that his temporary deprivation of a private shower (as opposed to any shower or water source to cleanse himself) amounted to “cruel and unusual punishment.” For that reason, it is recommended that the Eighth Amendment claims relating to BVCF's communal showers be dismissed.
3. Fourteenth Amendment Equal Protection Claim
Plaintiff alleges a violation of his rights under the Equal Protection Clause of the Fourteenth Amendment with regard to the BVCF's shower policy. (Compl. 22-25.) Defendants invoke qualified immunity with respect to this claim, arguing that Plaintiff has failed to show any violation of his constitutional rights, or that those rights were “clearly established” at the time of the alleged violation. (Mot. to Dismiss 17-20.)
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). But the Equal Protection Clause “doesn't guarantee equal rights for all, or suggest that the law may never draw distinctions between persons in meaningfully dissimilar situations.” SECSYS, LLC v. Vigil, 666 F.3d 678, 684 (10th Cir. 2012) (citing Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 271-73 (1979)). Rather, “[i]t seeks to ensure that any classifications the law makes are made ‘without respect to persons,' that like cases are treated alike, [and] that those who ‘appear similarly situated' are not treated differently without, at the very least, a rational reason for the difference.” Id. at 684-85 (quoting Engquist v. Ore. Dep't of Agric., 553 U.S. 591, 602 (2008)).
To assert a viable equal protection claim, Plaintiff must first allege facts showing that he is similarly situated to other inmates who were treated differently. Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006); Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998). “Individuals are similarly situated only if they are alike in all relevant respects.” Grissom v. Robertsi 902 F.3d 1162, 1173 (10th Cir. 2018) (quoting Requena v. Roberts, 893 F.3d 1195, 1210 (10th Cir. 2018)). Even “slight differences in [inmates'] histories” render them not “similarly situated” for purposes of an equal protection analysis. Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994); see Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1213 (10th Cir. 2006) (“[C]ourts have imposed exacting burdens on plaintiffs to demonstrate similarity in class-of-one-cases[.]”).
Here, Plaintiff alleges that Defendants' adherence to AR #100-40, which guarantees private showers to transgender and intersex inmates, violated his equal protection rights, because the guarantee of private showers does not extend to other inmates, like himself, who suffer from PTSS/D. (Compl. 22-25.) In making that claim, Thompson insists that he is “similarly situated” to “the transgender and intersexual classification of inmates housed in the East Unit of BVCF, ” because, like those inmates, he has “personal safety concerns” with respect to communal showers. (Id. at 23-24.) Plaintiff also alleges that “every person incarcerated” by the CDOC is “similarly situated, ” “by virtue of the fact that upon being sentenced to the CDOC they become ‘property/wards' of the State.” (Id. at 22.) He reports that “[t]ransgender, gender nonconforming, and intersexual inmates . . . are in fact housed and interact on a daily basis with the general population inmates of BVCF's East Unit, with access to the same facilities, programs, and housing areas as the Plaintiff.” (Id. at 23.)
These allegations fail to show that Thompson is similarly situated to transgendered and intersex inmates in all material respects, or plausibly foreclose the existence of all relevant differences between himself and those inmates. Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (“Templeman's claim that there are no relevant differences between him and other inmates that reasonably might account for their different treatment is not plausible or arguable.”). For instance, in the Amended Complaint, Plaintiff does not address the extent to which transgender and intersex inmates face greater personal safety risks from communal showers, or whether anatomical differences between himself and those inmates might account for the disparate treatment regarding private shower access. See Porter v. Crow, No. 18-CV-0472-JED-FHM, 2020 WL 620284, at *8 (N.D. Okla. Feb. 10, 2020) (finding that a transgendered female inmate failed to adequately allege that she was “similarly situated” to inmates housed at female facilities, and noting that “none of Plaintiff's allegations plausibly suggests that other inmates like Plaintiff-namely, inmates who were identified as male at birth, who identify as female, who have female breasts, and who are incarcerated at an all-male facility in an open dorm-are provided female undergarments, are not housed in all-male open dorms, or are allowed to change their shirts at their assigned bunks without disciplinary action”); Rezaq v. Nalley, No. 07-CV-02483-LTB-KLM, 2008 WL 5172363, at *15 (D. Colo. Dec. 10, 2008) (“While Plaintiff alleges in his complaint that [he] is similarly situated to inmates in the Control Unit, he fails to plausibly articulate how it could be ‘that there are other inmates who are similar in every relevant respect' or address the likelihood that a facility might ‘classify inmates differently because of slight differences in their histories.'”).
Plaintiff alleges, in his Response, that the only “physically discernable difference” between himself and transgendered inmates is “the color of the tee-shirts [sic] they wear.” (Resp. 19.) This allegation is not found within the Amended Complaint. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (“[I]n determining whether to grant a motion to dismiss, the district court . . . [is] limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint.”). And, even assuming it were, the allegation supports a finding that transgender inmates are visibly distinct from other inmates, such as Plaintiff.
Absent allegations that Plaintiff has been treated differently from inmates who are similarly situated in all material respects, he fails to state a plausible equal protection claim against Defendants. Accordingly, Defendants are entitled to qualified immunity with respect to this claim. See Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001) (“If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.”); Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) (“[A] defendant is entitled to qualified immunity if the plaintiff fails to show a violation of a constitutional right at all.”).
II. Plaintiff's Motions
A. Motion for Declaratory Judgment
Plaintiff seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201(a), that AR 100-40 and related federal regulations concerning transgender inmate shower access, violate the Eighth and Fourteenth Amendments. (Doc. No. 64.) In making that request, Plaintiff recounts his allegations regarding the communal showers at BVCF. (Id. at 1-4.) However, a declaratory judgment is a form of prospective relief. Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019). Where prospective relief is sought, a plaintiff “must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). In this case, the Tenth Circuit has previously held that, because Thompson has been allowed private shower access since October 2017, he “has failed to establish sufficient injury in fact to seek prospective relief with regard to his shower allegations.” Thompson v. Lengerich, 798 Fed.Appx. 204, 210 (10th Cir. 2019); see Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007) (“While past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury, they do not confer standing to pursue prospective relief without some credible threat of future injury.”) (internal citation and quotation marks omitted). Importantly, Plaintiff does not allege that he currently lacks private shower access, or that the challenged regulations presently impact his ability to shower. (See generally Doc. No. 64.) Therefore, “[a]s it now stands, [Thompson] is not suffering an actual or continuing injury under the relevant policy.” Burnett v. Okla. Dep't of Corr., 737 Fed.Appx. 368, 374 (10th Cir. 2018); Jordan v. Sosa, 654 F.3d 1012, 1030 (10th Cir. 2011) (holding than an inmate lacked standing to bring a declaratory judgment action against individual prison officials at specific penal institutions, given that the inmate was no longer incarcerated at those institutions). For that reason, Plaintiff lacks Article III standing to challenge the constitutionality of AR #100-40 and 28 C.F.R. §§ 115.42(e)-(f). Accordingly, Plaintiff's motion for a declaratory judgment should be denied as moot.
In his motion, Plaintiff argues that the challenged regulations concerning shower access are “systemically enforced, ” such that “no matter which CDOC prison he is housed in, . . . the administrators of those facilities relying on the provisions of [28 C.F.R. §§ 115.42(e)-(f) and AR #100-40] can deny him the Right to securely bathe privately[.]” (Doc. No. 64 at 5.) It is well-settled, however, that a claim for prospective relief cannot be predicated upon “speculative future harm.” Lippoldt v. Cole, 468 F.3d 1204, 1218 (10th Cir. 2006) (“A claimed injury that is contingent upon speculation or conjecture is beyond the bounds of a federal court's jurisdiction.”). Further, Plaintiff asserts his claims only against individual prison officials at BVCF. To the extent Plaintiff seeks to obtain system-wide relief, he “has not sued defendants who are actually situated to effectuate any prospective relief that this court might afford him.” Jordan v. Sosa, 654 F.3d 1012, 1030 (10th Cir. 2011) (“While a declaratory judgment . . . could be directed toward the named officials, it would not affect the behavior of those officials toward Mr. Jordan because he is no longer housed in a penal institution over which they exert authority.”) (emphasis in original).
B. Motion for Class Certification
In his second motion, Plaintiff asks to be certified as a “class of one, ” for purposes of his Fourteenth Amendment equal protection claim. (Doc. No. 65.) However, Plaintiff appears to have conflated two distinct legal theories: (1) the “class-of-one doctrine” applicable to equal protection analysis; and (2) a Rule 23 class, wherein a named plaintiff seeks to represent the universe of similarly situated individuals against a common defendant. The word “class” has a very different meaning within those two contexts.
In addition, Plaintiff requests the appointment of counsel to represent the putative class, pursuant to Federal Rule of Civil Procedure 23(g)(1). (Doc. No. 65.)
“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)) (internal quotation marks omitted). To maintain a class action lawsuit, it is axiomatic that “there must be a ‘class.'” Shelton v. Bledsoe, 775 F.3d 554, 559 (3rd Cir. 2015) (quoting 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 1760 (3d ed. 2005)); accord Friedman v. Dollar Thrifty Auto. Grp., Inc., 304 F.R.D. 601, 606 (D. Colo. 2015); see also Neiberger v. Hawkins, 208 F.R.D. 301, 313 (D. Colo. 2002) (observing that a plaintiff who seeks to obtain class certification must demonstrate that “the class is so numerous that joinder of all members would be impracticable”).
Here, Thompson does not identify any similarly situated individuals that he seeks to represent in this lawsuit. Nor does the Amended Complaint charge, or allege, that this is a class action case. As such, Plaintiff cannot maintain a class action claim. For that reason, Plaintiff's request for “class of one” class action certification should also be denied.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that Defendants' “Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6)” (Doc. No. 54) be GRANTED, in part, and DENIED, in part. Specifically, Plaintiff's claims against Defendant Lengerich, in his official capacity, should be DENIED as moot. Plaintiff's requests for injunctive relief should also be DENIED as moot. Plaintiff's Eighth Amendment claims against Defendant Lengerich, in his individual capacity, which were premised upon overcrowding and understaffing, should be DISMISSED for failure to sufficiently allege personal participation. Plaintiff's remaining Eighth Amendment claims should be DISMISSED for failure to state a claim. Additionally, Plaintiff's Fourteenth Amendment equal protection claims should be DISMISSED for failure to state a claim.
Plaintiff's remaining Fourteenth Amendment bodily privacy claims against Defendants Cattell, Hansen, and Lengerich should PROCEED. The court further RECOMMENDS that Plaintiff's “Motion for Declaratory Judgment Pursuant to 28 U.S.C. § 2201(a) and Fed.R.Civ.P. 57” (Doc. No. 64) be DENIED as moot. The court further
RECOMMENDS that Plaintiff's “Motion for ‘Class of One' Class Action Certification Pursuant to Fed.R.Civ.P. 23(a)(2), 23(c)(1)(B), 23(c)(4), and 23(g)(1)” (Doc. No. 65) be DENIED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings 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); 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. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (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); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).