Custard v. No Named
| Decision Date | 10 February 2016 |
| Docket Number | Civil Action No. 15-cv-00448-REB-CBS |
| Parties | BOB ALLEN CUSTARD, Plaintiff, v. ARMIJO, MR., ATAUVICH, MR., CAMACHO, MR., J. CEDENO, MR., FRANK CORDOVA, MR., FRANCIA, MS., FITZGERALD, MR., GACONI, MR., HENRY, MR., HEUETT, MR., HOLMAN, MR., HUDDLESTON, MR., KASDON, MS., LUNGREN, MS., MCMULLEN, MR., OSAGIE, MR., OWENS, MR., PADILLA, MR., RANGEL, MR., ROBINSON, MR., SANTINI, MR., UNKNOWN NAMED DEFENDANTS 1-14, AND THE UNITED STATES OF AMERICA, Defendants. |
| Court | U.S. District Court — District of Colorado |
REPORT AND RECOMMENDATION
This civil action comes before the court on the "Motion to Dismiss" (the "Motion") (Doc. 40) filed by the Defendants1 on August 10, 2015. Pursuant to the Order Referring Case dated May 19, 2015 (Doc. 16) and the memorandum dated August 11, 2015 (Doc. 41), this matter wasreferred to the Magistrate Judge. The court has reviewed the motion, the entire case file, and the applicable law and is sufficiently advised in the premises. For the following reasons, the court recommends that the Defendants' Motion be granted in part and denied in part.
In his Amended Complaint ("Complaint") (Doc. 8), filed on April 15, 2015, Plaintiff — a pro se prisoner in the custody of the Bureau of Prisons at the United States Penitentiary Administrative Maximum ("ADX") — sued 26 named Defendants and 14 unnamed Defendants. He originally asserted seven claims, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971), for violations of his Eighth Amendment rights and for unconstitutional retaliation. The extensive allegations underlying those claims, which will be described in further detail in the following analysis, also form the basis for his negligence claims against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. Plaintiff seeks reparations in the form of monetary damages and injunctive relief.
In an Order (Doc. 14), dated May 19, 2015, this court dismissed Defendants Erwin and Simpler, as well as Plaintiff's claims regarding a broken sink (Claim Five) and the Defendants' alleged refusal to provide Plaintiff with eating utensils (Claim Seven). In addition, the court dismissed Plaintiff's Biven claims for First Amendment retaliation. Thereafter, the Defendants filed their Motion on the basis that (1) this court lacks jurisdiction over two of the Defendants and (2) Plaintiff has failed to state a claim upon which relief can be granted. They seek to dismiss Plaintiff's FTCA claims as well as the majority of his Bivens claims. With two exceptions, Defendants also seek to dismiss Plaintiff's claims for injunctive relief. Plaintiff filed his Response (Doc. 52) on August 31, 2015, and Defendants filed their Reply (Doc. 53) on September 17, 2015. Plaintiff also filed what appears to be a surreply (Doc. 54) on September25, 2015. However, the filing of surreplies is not contemplated by the Federal Rules of Civil Procedure and, therefore, the court declines to consider this document.
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
A motion to dismiss for a lack of subject matter jurisdiction may take two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack a complaint's allegations or it may challenge the facts upon which subject matter jurisdiction depends. Id. at 1002-1003.
When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1003 (internal citations omitted); see also Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987). "The burden of establishing subject-matter jurisdiction is on the party assertingjurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))
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, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 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). In addition, this court may consider exhibits attached to the Complaint without converting the motion into one for summary judgment pursuant to Rule 56. See Hall v. Bellmon, 935 F.2d 1106, 1112 (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, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. Facts that are "merely consistent" with a defendant's liability are insufficient. Id. "[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed himor her; and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). "Nevertheless, the standard remains a liberal one, 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.'" Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18, 2013) (quoting Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).
The court is cognizant of the fact that Plaintiff is not an attorney; consequently, his pleadings and other papers have been construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Therefore, "if the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. However, this court cannot act as a pro se litigant's advocate. Id. It is the responsibility of the pro se plaintiff to provide a simple and concise statement of his claims and the specific conduct that gives rise to each asserted claim. See Willis v. MCI Telecomms., 3 F. Supp. 2d 673, 675 (E.D.N.C. 1998). This court may not "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting violations that have not been plead. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459U.S. 519, 526 (1983). Pro se plaintiffs must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The Defendants have also raised the qualified immunity defense as to the various claims asserted against them. Qualified immunity shields "government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). Qualified immunity is "immunity from suit rather than a mere defense to liability [and] it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Whether defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
In resolving a motion to dismiss based on qualified immunity, this court must consider "whether the...
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