Burkhart v. Florez

• Decision Date: 30 January 2021
• Docket Number: Civil Action No. 20-cv-00732-RM-NYW
• Parties: DAVID LEE BURKHART, a/k/a LACY LEE BURKHART, Plaintiff, v. FLOREZ, in his official and individual capacities; MOORE, in her official and individual capacities; and YVETTE BROWN, in her official capacity, Defendants.
• Court: U.S. District Court — District of Colorado

DAVID LEE BURKHART, a/k/a LACY LEE BURKHART, Plaintiff, v. FLOREZ, in his official and individual capacities;

MOORE, in her official and individual capacities;

and YVETTE BROWN, in her official capacity, Defendants.

Civil Action No. 20-cv-00732-RM-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

January 30, 2021

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Nina Y. Wang

This matter comes before the court on Defendants Florez, Moore, and Yvette Brown's ("Defendant Brown" and collectively with Defendants Florez and Moore, "Defendants") Motion to Dismiss for Failure to State a Claim ("Motion to Dismiss") [#33, filed August 26, 2020]; and Defendant Brown's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies ("Motion for Summary Judgment") [#40, filed September 10, 2020]. The presiding judge, the Honorable Raymond P. Moore, referred the instant Motions to the undersigned pursuant to 28 U.S.C. § 636(b), the Order Referring Case filed July 29, 2020 [#22], and Memoranda dated August 27, 2020 [#35] and September 14, 2020 [#42], respectively. Having reviewed the Motions and associated briefing [#36; #39; #41; #43; #44; #48; #52], the applicable case law, and being otherwise advised of the premises, I respectfully RECOMMEND that the Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART and the Motion to Dismiss be GRANTED.

BACKGROUND

Believing Defendants violated her constitutional and statutory rights with respect to certain conditions of her confinement, Plaintiff initiated this action by filing her pro se Prisoner Complaint on March 16, 2020.¹ See generally [#1]. Two days later, in light of deficiencies in Plaintiff's Complaint set forth in his [#5] Order, the Honorable Gordon P. Gallagher directed Plaintiff to file an Amended Complaint. Plaintiff filed her Amended Complaint on April 13, 2020, and it remains the operative pleading in this case. See [#6]. The factual allegations in this Background section are drawn from the Amended Complaint.

For at least the better part of 2020,² Plaintiff David Lee Burkhart, a/k/a Lacy Lee Burkhart ("Plaintiff" or "Ms. Burkhart") was incarcerated at Fremont Correctional Facility ("FCF") in Canon City, Colorado, in the custody of the Colorado Department of Corrections ("CDOC"). [#6 at 2]. Ms. Burkhart contends that she was born a male but identifies as a female.³ [Id. at 2]. In 2017, she legally changed her name from David to Lacy. [Id.]. Plaintiff alleges that, in January 2020, she listed her husband and mother-in-law on her Offender Phone List form. [Id. at 6, 11]. Defendant Florez, Plaintiff's case manager, denied her listed contacts because Plaintiff's husband is on parole. [Id. at 6, 11-12]. Pursuant to CDOC Administrative Regulation (or "AR") 850-12,"inappropriate contacts" for prisoners may include "[p]ersons on active parole." [Id.]. Plaintiff contends that Defendant Florez intentionally prohibited her from contact with her husband and knew that Plaintiff would suffer from a mental breakdown as a result of this prohibition. [Id. at 11].

In addition, Plaintiff alleges that Defendant Florez's supervisor, Defendant Moore, initially authorized Plaintiff's husband to be included on her phone list. [Id. at 17]. Following a February 2020 meeting between Defendants Florez and Moore and Plaintiff, Defendant Moore then permitted Defendant Florez to deny Plaintiff contact with her husband. [Id.]. In so doing, asserts Plaintiff, Defendant Moore failed to properly inform Defendant Florez that denying Plaintiff communication with her husband could cause Plaintiff to suffer mental health issues and resulting physical harm. [Id. at 11-12]. Plaintiff further contends that she raised the issue of her contacts with Warden Siobhan Burtlow ("Warden Burtlow"). [Id. at 7]. In Claim I against Defendant Florez, Defendant Moore, and Warden Burtlow, Ms. Burkhart alleges that these actions violated her Eighth Amendment rights. [Id. at 9]. In Claim II against Defendant Florez, Defendant Moore, and Warden Burtlow, Plaintiff alleges that these actions violated her Fourteenth Amendment substantive due process rights. [Id. at 15]. In Claim III against Defendant Florez, Defendant Moore, and Warden Burtlow, Plaintiff alleges that these actions violated her First Amendment rights. [Id. at 19].

Plaintiff also alleges Defendant Brown, the Legal Assistant at FCF where Plaintiff is incarcerated, violated her rights. [Id. at 8]. Specifically, Plaintiff alleges that on March 5, 2020, Defendant Brown informed her that pursuant to AR 850-07, the CDOC would not recognize Plaintiff's new legal name—Lacy Lee Burkhart—and would instead refer to her as David. [Id.]. On the following day, Plaintiff filed a grievance regarding Defendant Brown's refusal to allowMs. Burkhart to use her legal name and the resulting denial of law library access. [Id.]. Defendant Brown later clarified to Plaintiff that the relevant CDOC regulation required use of Plaintiff's commitment name on CDOC documents but permitted use of Plaintiff's new legal name as an alias after her commitment name. [Id.]. Plaintiff also alleges that Defendant Brown has refused to recognize Plaintiff by her preferred pronouns, instead referring to Plaintiff using male pronouns such as "he" and "his" in violation of CDOC AR 700-14(IV)(B), which states:

Intentional misuse of gender pronouns and titles with transgender or intersex offenders is prohibited. Transgender and intersex offenders will be referred to by their preferred pronoun or as offender and their last name or by last name only. Unprofessional and derogatory references toward offenders is not allowed under any circumstances.

[Id. at 8-9]. These various claims against Defendant Brown. Brown appear in a single, amalgamated Claim IV⁴ entitled "Retaliation." [Id. at 22-23]. Plaintiff brought each of these causes of action against Defendants and Warden Burtlow in their individual and official capacities, seeking monetary and injunctive relief.⁵ See generally [#6].

On May 1, 2020, Judge Gallagher issued a Recommendation with respect to Ms. Burkhart's Amended Complaint. See [#9]. The Honorable Lewis T. Babcock accepted and adopted Judge Gallagher's Recommendation in its entirety, ordering that "(1) the First and Fourteenth Amendment claims asserted against Defendants Florez and Moore based on the Defendants' actions in barring Plaintiff from communicating with her husband and her husband's mother, (2)the unconstitutional retaliation claim asserted against Defendant Brown, and (3) the state constitutional and statutory claims asserted against Defendant Brown, be drawn to a presiding judge and, if applicable, to a magistrate judge, pursuant to D.C.COLO.LCivR. 40.1(a)." [#10 at 2]. In his Order to Dismiss in Part and Drawing the Case, Judge Babcock specifically found that "any federal constitutional claims premised on Defendant Brown's refusal to recognize Plaintiff's legal name change in Colorado Department of Corrections' documents as other than an alias" was not viable pursuant to Rule 8 of the Federal Rules of Civil Procedure. [Id.]. Thus, the following claims remain: Claims II and III, in which Plaintiff alleges that Defendants Florez and Moore violated her right to familial association under the Fourteenth and First Amendments based on their interference with Plaintiff's ability to communicate with her husband, in both their individual and official capacities; and Claim IV brought against Defendant Brown in her individual and official capacities, arising from the alleged requirement of using her commitment name, "David," on any Legal Access Request Forms and Defendant Brown's misuse of appropriate pronouns to refer to Plaintiff. Ms. Burkhart's remaining demand for relief is as follows: (1) as to the remaining Claims II, III, and IV, $450,000 per day against each of the remaining Defendants Florez, Moore, and Brown in their individual capacities; (2) as to Claims II and III directed at Defendants Florez and Moore, injunctive relief as to restoration of her phone list to have full contact with her husband and mother-in-law, regardless of what status they may have in the Colorado criminal justice system, an order requiring the CDOC Administrative Regulations to be revised to allow contact between spouses regardless of parole status, and permission to receive mail from her husband at FCF; and (3) as to Claim IV asserted against Defendant Brown, injunctive relief in the form of an order compelling her to "comply with all State Statutes and allow the Plaintiff to list her name asLacy to all Documents" and that any other offender be permitted to use their legally changed named on any and all forms within the CDOC. [Id. at 6].

On August 26, 2020, the Defendants filed their Motion to Dismiss, arguing that they are entitled to qualified immunity on Plaintiff's constitutional claims, i.e., Claims II, III, and IV-B. [#33]. Further, because Defendants argue for dismissal of each of Plaintiff's constitutional claims under Federal Rule of Civil Procedure 12(b)(6), Defendants ask the court to exercise its discretion under 28 U.S.C. § 1367(c) to decline to exercise supplemental jurisdiction over Ms. Burkhart's state law claims reflected in Claim IV-A. [Id. at 3]. Two weeks later, Defendant Brown filed the instant Motion for Summary Judgment, arguing that Plaintiff failed to exhaust her administrative remedies as to the entirety of Claim IV. [#40]. The Motion to Dismiss [#36, #39, #48]⁶ and Motion for Summary Judgment [#44, #52] are fully briefed and ripe for Recommendation. In the interim, Ms. Burkhart was released to parole on November 23, 2020. [#54].

ANALYSIS

I. Subject Matter Jurisdiction

Defendants do not argue for dismissal for lack of subject matter jurisdiction in either Motion, as Ms. Burkhart was not released to parole until after the completion of briefing. See generally [#33, #40]. But federal courts are courts of limited jurisdiction and under Article III...