Lovett v. Ruda
| Decision Date | 17 August 2018 |
| Docket Number | Civil Action No. 17-cv-02010-PAB-KLM |
| Parties | BRENT EDWARD LOVETT, Plaintiff, v. TAMMY RUDA, individually and officially as Food Service Supervisor, SAINT, individually and officially as Corrections Officer, BOILING, individually and officially as Corrections Officer, HARRISON, individually and officially as Corrections Officer, THOMAS, individually and officially as Corrections Officer, VERSAW, individually and officially as Corrections Officer, MCCLENNON, individually and officially as Corrections Officer, and PENA, individually and officially as Corrections Officer, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants' Motion to Dismiss [#32]1 (the "Motion"). Plaintiff filed a Response [#40] in opposition to the Motion, and Defendants2 filed a Reply [#41]. The Motion has been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). See [#33]. Having reviewedthe entire case file and being sufficiently advised, the Court respectfully RECOMMENDS that the Motion [#32] be GRANTED in part and DENIED in part.
At all times relevant to this lawsuit, Plaintiff has been a prisoner in the custody of the United State Bureau of Prisons ("BOP") at the Florence Prison Camp ("FPC") in Florence, Colorado. Second Am. Compl. [#13] at 2. Defendants in this matter consist of the Food Service Supervisor Tammy Ruda ("Ruda") and Correctional Officers Saint, Boling,3 Harrison, Thomas, Versaw, McClendon,4 and Pena. Id. at 2-3.
Plaintiff suffers from celiac disease,5 and, in connection with the following events, he asserts three constitutional claims primarily relating to the provision of his food by the BOP's staff: (1) "Eighth Amendment, Deliberate Indifference, Cruel and Unusual Punishment, Deprivation of Food and Fiber," (2) "Equal Protection Claim" under the Fourteenth Amendment, (which he combines with a claim under the American with Disabilities Act ("ADA")), and (3) "Retaliation" under the First Amendment. Id. at 17-20. All three claims appear to be asserted against all Defendants. See id. In short,6 Plaintiffcomplains about the food he receives in prison, alleging that, since his incarceration, there have been many times when he has not been fed or has only been provided food containing gluten or other contaminants. See id. at 4-16. He also alleges that, when he has complained about the food through the use of the grievance system or otherwise, Defendants have "stepped up the harrassment [sic] and denial of food . . . ." See generally id. at 20.
As a result of these circumstances, Plaintiff seeks damages against the individual Defendants7 and injunctive relief requiring BOP staff in their official capacities "to provide the Gluten-Free diet as directed by the BOP Medical Department, and to cease their harassment of [Plaintiff], and order that the BOP can not relocate [Plaintiff] in an effort to avoid this action . . . ." Id. at 27. In the present Motion [#32], Defendants seek dismissal of Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because "federal courts are courts of limited jurisdiction," the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(1).Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court "may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on "evidence outside the pleadings" to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ. P. 12(b)(6) (). "The court's function on a Rule 12(b)(6) motion is not toweigh 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." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain enough allegations of fact 'to state a claim to relief that is plausible on its face.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) . "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a factual allegation has been stated, "but it has not show[n][ ]that the pleader is entitled to relief," as required by Fed. R. Civ. P. 8(a). Iqbal, 552 U.S. at 679 ().
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Defendants argue that "Plaintiff does not provide a basis for the Court's jurisdiction over any official-capacity claims." Motion [#32] at 23. "When an action is one against named individual defendants, but the acts complained of consist of actions taken by defendants in their official capacity as agents of the United States, the action is in fact one against the United States." Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989). Accordingly, the United States has effectively been named as a defendant in this case. See Davis v. Holder, No. 12-cv-02122-REB-KMT, 2014 WL 1713429, at *6 (D. Colo. Apr. 23, 2014) (citing Atkinson, 867 F.2d 589, 590 (10th Cir. 1989)).
As noted above, Plaintiff asserts claims seeking only non-monetary relief against Defendants in their official capacities. Plaintiff asserts, in part, that the Court has jurisdiction pursuant to 28 U.S.C. § 1331. Second Am. Compl. [#13] at 4. Legal authorityfrom the Tenth Circuit Court of Appeals makes clear that 28 U.S.C. § 1331 provides jurisdiction over claims for equitable relief arising under federal law, and such claims are not barred by the doctrine of sovereign immunity. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005). The Administrative Procedures Act ("APA"), 5 U.S.C. § 702, waives sovereign immunity in most suits for claims "other than money damages." Id. at 1238-39 ().
Although Plaintiff does not mention the...
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