Opinion
Civil Action 1:21-cv-01684-PAB-SKC
08-25-2022
DELMART E.J.M. VREELAND, II, Plaintiff, v. JARED POLIS, et al., Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTIONS TO DISMISS [DKTS. 48, 49]
S. Kato Crews United States Magistrate Judge
Plaintiff Delmart Vreeland initiated this case on June 18, 2021, asserting claims against 16 defendants based on events and encounters spanning a 13-year period dating back to the beginning of his incarceration in the Colorado Department of Corrections (CDOC) in 2008, and culminating in his transfer to the Wyoming Department of Corrections in May 2021. Because Plaintiff proceeds pro se, the Court liberally construes his pleadings, but it does not act as his advocate. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The odyssey of allegations in the Amended Complaint is a prolix and winding road that periodically doubles back and then diverges. In brief, however, Plaintiff alleges the myriad defendants retaliated against him for exercising his right to file grievances and multiple separate lawsuits, many filed in this district court. Plaintiff contends Defendants refused to provide him with medical care, denied him employment of his choosing, and ultimately transferred him to Wyoming to hinder his ability to prosecute his cases.
Plaintiff has since been returned to CDOC custody.
In addition, Plaintiff's pleading includes a litany of allegations regarding his treatment at the Wyoming Medium Correctional Institution and Wyoming State Penitentiary. He argues the CDOC Defendants are responsible for his treatment in the Wyoming facilities because Wyoming was Colorado's agent. Based on these allegations, Plaintiff asserts claims for violations of the First, Fifth, Eighth, and Fourteenth Amendments, and the Americans with Disabilities Act.
Defendants have moved for dismissal of Plaintiff's claims in their entirety based on failure to state a claim, absolute immunity, and qualified immunity. [Dkts. 48, 49.] Plaintiff did not respond. The Court has considered the Amended Complaint, the Defendants' Motions, and the applicable law. No hearing is necessary. For the following reasons, the Court RECOMMENDS the Motion to Dismiss be GRANTED.
Attorney William A. Rogers is defense counsel of record in this case and has represented various combinations of CDOC defendants in other of Plaintiff's cases. Attorney Rogers has been named as a Defendant in this lawsuit and has filed a separate motion to dismiss on his own behalf. Because the arguments and analysis regarding the CDOC Defendant apply equally to all claims against Rogers, the Court need not consider Attorney Rogers' separate motion.
“A district court may not grant a motion to dismiss for failure to state a claim “merely because [a party] failed to file a response.” Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003). Instead, the Court examines the allegations in Plaintiff's Complaint to determine whether he has stated a claim upon which relief can be granted. Id.
STANDARD OF REVIEW
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 112425 (10th Cir. 2010) (internal citations omitted). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.” Id. at 678 (internal quotation marks omitted).
The Twombly/Iqbal pleading standard first requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. It next requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. In this analysis, courts “disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The standard is a liberal one, however, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
ANALYSIS
A. Issue Preclusion
In his Amended Complaint, Plaintiff contends his transfer to the Wyoming Department of Corrections was unconstitutionally retaliatory and in violation of Colorado law. But this issue has already been decided by the El Paso County District Court in Colorado.
Under the doctrine of issue preclusion, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). “[I]ssue preclusion bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim.” Park Lake Res. Ltd. Liab. v. U.S. Dep't of Agr., 378 F.3d 1132, 1136 (10th Cir. 2004) (citation omitted). It is designed to prevent parties from wasting time and resources and to discourage losing parties from shopping around for a different court. See B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 140 (2015).
In general, issue preclusion applies when: (1) the issue previously decided is identical with the one presented in the action in question; (2) the prior action has been finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party to, or in privity with, a party to the prior adjudication; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Park Lake, 378 F.3d at 1136.
In Vreeland v. Colorado Dept. of Corr's., 2021CV30670 (El Paso County District Court July 26, 2021), Plaintiff demanded he be moved from Wyoming back to the Colorado State Penitentiary. In denying Plaintiff's request for injunctive relief and dismissing the case, the state court noted Plaintiff failed to rebut any of the CDOC's “extensive documentary evidence and sworn declarations.” Vreeland, 2021CV30670 (December 17, 2021). It found Plaintiffs multiple transfers “were the result of [Plaintiff's] repeated complaints about security issues.” Id. at p.2 (adopting in full CDOC's statement of facts). The state court concluded Plaintiff was “the architect of his own circumstances,” and his transfer to Wyoming did not infringe on his rights under federal or state law. Id. at p.3.
This Court may consider facts subject to judicial notice, state court pleadings, and matters of public record. Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008) (affirming the district court's conclusion it could “take judicial notice of all the materials in the state court's file.”).
The issues decided in state court are identical to issues Plaintiff raises in this federal action, to wit: whether Plaintiff's transfer to Wyoming violated his constitutional rights and state law. There is no dispute Plaintiff was a party to the state court action. And the state court's dismissal was a final determination because Plaintiff failed to timely appeal the relevant order. Vreeland, 2021CV30670 (Register of Actions). In addition, a review of the docket sheet shows Plaintiff filed a Response and a Supplemental Response to the CDOC's Motion to Dismiss, and he actively litigated the case. Consequently, the Court recommends finding Plaintiff is issue precluded from arguing in this federal court that his transfer to Wyoming was based on anything other than security concerns, or that it violated his federal or state rights or laws. Plaintiff's claim one (due process) and claim five (Colo. Rev. Stat. § 13-45114) should be dismissed in their entirety on this basis. To the extent claim two challenges the legality of the transfer (retaliation), it should also be dismissed.
Claim two also contains arguments regarding Defendants' alleged deliberate indifference to Plaintiff's serious medical need, which is addressed in Section C.
B. Personal Participation
Personal participation is an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To maintain a § 1983 claim, the plaintiff must allege facts showing the defendant was “personally involved in the decisions leading to [the plaintiff's] mistreatment.” Escobar v. Reid, 668 F.Supp.2d 1260, 1290 (D. Colo. 2009). A plaintiff must establish an affirmative link between the alleged constitutional violation and each defendant's participation, control, or direction. Serna v. Colo. Dept. of Corr., 455 F.3d 1146, 1152-53 (10th Cir. 2006). “Over time, the ‘affirmative link' language has evolved to require three elements: (1) personal involvement, (2) sufficient causal connection, and (3) culpable state of mind.” Laurienti v. Bicha, No. 14-cv-02592-NYW, 2016 WL 496047, at *12 (D. Colo. Feb. 9, 2016). “It is particularly important that plaintiffs make clear exactly who is alleged to have done what to whom, as distinguished from collective allegations.” Oakley v. Williams, No. 21-cv-01763-CMA-NYW, 2022 WL 266766, at *14 (D. Colo. Jan. 28, 2022) (quoting Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)), report and rec. adopted, No. 21-cv-01763-CMA-NYW, 2022 WL 540656 (D. Colo. Feb. 23, 2022).
Plaintiff's Amended Complaint is replete with collective allegations that amount to little more than an “undifferentiated contention that [D]efendants infringed his rights.” Jemaneh v. Univ. of Wyoming, 82 F.Supp.3d 1281, 1296 (D. Colo.), aff'd, 622 Fed.Appx. 765 (10th Cir. 2015) (citing Pahls, 718 F.3d at 1225) (internal quotation marks omitted). For example, in his third claim, he details how various of his legal actions have allegedly been impacted by his transfer to Wyoming. But instead of specifically describing which of the Defendants caused these various delays and difficulties, and how they did so, Plaintiff simply pleads “Defendants Polis, Weiser, Woodward, Allen, Williams, Trani, Olson, Dauffenbach and Turner” violated his right to access the courts. [Dkt. 8 at pp.38-41.] Similarly, Plaintiff alleges Wyoming officials informed him that “Woodward, Dauffenbach, and Turner requested that Plaintiff not be allowed to communicate with his counsel.” [Id. at p.41.] In addition to being impermissibly vague on facts (i.e., to whom did these defendants make their request(s), when did they make their request(s), what came of their request(s), etc.), Plaintiff again relies on collective allegations against these three Defendants, which is insufficient to establish personal participation in any alleged constitutional violations. The third claim should be dismissed as a result.
Plaintiff's fourth, seventh, eighth, and ninth claims also rely on collective allegations against various groupings of the Defendants-as well as unnamed Colorado and Wyoming actors-and make no attempt to distinguish between these Defendants and their alleged actions. [Dkt. 8 at pp.42-47, 49-59.] Because these allegations do not provide fair notice to the Defendants regarding the specific claims being asserted against them, the Court recommends they be dismissed. Jemaneh, 82 F.Supp.3d at 1296.
C. Deliberate Indifference
In his second claim, Plaintiff also alleges he never received medical care while at the Colorado State Penitentiary and he was forced to “suffer in needless pain.” [Dkt. 8 at pp.36-37.] Plaintiff further alleges Defendant Boyd told Wyoming officials he did not require medical care and altered Plaintiff's medical documents to conceal the “true nature of Plaintiff's medical needs.” [Id.]
The Eighth Amendment's prohibition on cruel and unusual punishment prohibits “unnecessary and wanton infliction of pain,” including “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Like other claims under the Eighth Amendment, a claim for deliberate indifference involves both an objective and a subjective component. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). Under the objective component, the prisoner must “produce objective evidence that the deprivation at issue was in fact ‘sufficiently serious.'” Id. (quoting Farmer, 511 U.S. at 834). The subjective component requires a state of mind “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) (internal quotations and citation omitted).
The Court finds the Amended Complaint fails to plausibly allege the objective component. Plaintiff's allegations to support this claim are limited to his vague assertions of “medical needs” that require treatment, and unspecific allegations of “needless pain.” Plaintiff has neither specified his medical condition(s) nor alleged facts regarding his medical condition(s) at issue. Without the facts, he has not plausibly alleged a serious medical need or that any alleged deprivation rose to the requisite level of severity. Plaintiff's deliberate indifference claim should be dismissed for these reasons.
D. Due Process
Plaintiff's sixth claim seeks relief for alleged violations of his due process rights. He alleges that prior to his transfer to Wyoming, he had between $600-$800 in his prison account and $100 in his telephone account. According to the pleading, Defendants Dauffenbach and Turner allowed CDOC officials to seize and keep Plaintiff's money without process. In addition, Plaintiff alleges Defendant Turner provided Wyoming with false information including that Plaintiff had an escape history and security issues. [Dkt. 8 at pp.49-53.] Plaintiff argues he was entitled to dispute Turner's statements in a hearing.
Incarcerated persons retain rights under the Due Process Clause and cannot be “deprived of life, liberty, or property without due process of law,” but these rights are “subject to restrictions imposed by the nature of the regime to which they have been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The Supreme Court has provided two steps for analyzing procedural due process claims: (1) “whether there exists a liberty or property interest which has been interfered with by the State[,]” and (2) “whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
Concerning the money in Plaintiff's prison account, Plaintiff seems to assert a claim of supervisory liability against Defendants Dauffenbach and Turner. But “[s]upervisors are only liable under § 1983 for their own culpable involvement in the violation of a person's constitutional rights.” Serna v. Colo. Dept. of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006). To establish supervisory liability, a plaintiff must establish “a deliberate, intentional act by the supervisor to violate constitutional rights.” Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir. 1996). This means a plaintiff must show the subordinate violated the constitution and must also show an “affirmative link between the supervisor and the violation.” Serna, 455 F.3d at 1151. This requires “more than a supervisor's mere knowledge of his subordinate's conduct.” Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014) (citing Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th Cir. 2013)). And negligence is insufficient; a plaintiff must demonstrate the “supervisor acted knowingly or with deliberate indifference that a constitutional violation would occur.” Serna, 455 F.3d 1146 at 1151.
Here, Plaintiff alleges only that Dauffenbach and Turner were responsible for having Plaintiff's property sent with him to Wyoming, and they “allowed Plaintiff's money to be seized by CDOC actors and never returned to Plaintiff.” [Dkt. 8 at p.51.] But these allegations alone are insufficient to plausibly allege a deliberate or conscious choice by these Defendants to violate Plaintiff's constitutional rights. Plaintiff fails to allege facts demonstrating these Defendants' respective personal participation in any acts leading to a violation of his constitutional rights, or facts plausibly alleging some affirmative link between these Defendants and the purported violation of Plaintiff's rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (personal participation is an essential allegation in a civil rights action). At best, the allegations allege passive behavior regarding Plaintiff's money. Consequently, this claim must fail.
For similar reasons, the Court concludes Plaintiff's claim against Defendant Turner-regarding the “false information” he provided to Wyoming-should be dismissed. According to the allegations, Turner told Wyoming officials Plaintiff was an escape threat, a security concern, and had been labeled a “snitch.” [Dkt. 8 at pp.5052.] Plaintiff asserts, without more, these allegedly false statements resulted in Plaintiff's transfer, classification, job assignments, and facility and housing assignments. But these latter allegations are conclusory. Plaintiff does not support these allegations with facts to plausibly establish a causal link between Turner's statements and the ultimate decisions regarding Plaintiff's placement-i.e., who Turner told or the authority of such individuals to make transfer, housing, or classification decisions. Without facts, Plaintiff has not plausibly alleged Turner's personal participation in any due process violations. Laurienti, 2016 WL 496047, at *12 (plaintiffs must establish an affirmative link, which includes personal involvement, sufficient causal connection, and a culpable state of mind).
The Court recommends the sixth claim be dismissed in its entirety.
E. First Amendment Retaliation
In his final claim, Plaintiff contends Defendants Dauffenbach and Turner retaliated against him in violation of the First Amendment. [Dkt. 8 at pp.59-60.] “It is well-settled that prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts.” Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018). “[T]he elements necessary for a retaliation claim where the governmental defendant is not the plaintiff's employer nor a party to a contract with the plaintiff” are: (1) the plaintiff was engaged in constitutionally protected activity; (2) the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct. See Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000).
Plaintiff alleges that, after he was sent to Wyoming, Defendants Dauffenbach and Turner nevertheless threatened to have Plaintiff locked down or transferred to a different prison if he did not stop filing grievances and lawsuits. [Dkt. 8 at p.60.] As to the first element, there is no question Plaintiff's conduct of filing grievances and lawsuits is protected under the First Amendment. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (filing grievances is a constitutionally protected activity); Green v. Johnson, 977 F.2d 1383, 1389-91 (10th Cir. 1992) (inmate's allegation that guards destroyed his legal materials in retaliation for filing lawsuits and grievances stated a cognizable First Amendment claim).
However, the second element (suffering an adverse action) is missing because “verbal harassment, threats, or taunts do not rise to the level of retaliation.” Walker v. Spence, No. 07-cv-01848-PAB-CBS, 2009 WL 3074612, at * (D. Colo. Sept. 18, 2009) (citing Teague v. Hood, No. 06-cv-01800-LTB-CBS, 2008 WL 2228905, at *10 (D. Colo. May 27, 2008)); see also McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (“acts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment”); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (“Verbal harassment or abuse of the sort alleged in this case [sheriff threatened to hang prisoner] is not sufficient to state a constitutional deprivation under 42 U.S .C. § 1983.”); Adkins v. Rodriguez, 59 F.3d 1034, 1037-38 (10th Cir. 1995) (harsh, even threatening language does not amount to a constitutional violation); Abeyta By and Through Martinez v. Chama Valley Independent School Dist. No. 19, 77 F.3d 1253, 1256 (10th Cir. 1996) (“even extreme verbal abuse is insufficient to establish a constitutional violation”); Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (verbal threats and harassment “are necessarily excluded from the cruel and unusual punishment inquiry”)). Furthermore, Plaintiff specifically states he “will not stop pursuing his civil rights claims just because he has been subjected to retaliation....” [Dkt. 8 at p.60.] Without any adverse action, Plaintiff's claims should be dismissed.
Moreover, it appears any threat would be illusory because there is no allegation Dauffenbach and Turner would have any authority over Plaintiff's placement while he was in Wyoming's custody. Plaintiff's allegations regarding Wyoming being an agent of Colorado are entirely conclusory.
* * *
For the foregoing reasons, the Court RECOMMENDS the Motion to Dismiss be GRANTED and the claims be dismissed in their entirety. The Court FURTHER RECOMMENDS finding Attorney Rogers' Motion to be MOOT based on the actions recommended here.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).