McMillan v. Wiley, Civil Action No. 09–cv–01709–WYD–KLM.

• Decision Date: 14 September 2011
• Docket Number: Civil Action No. 09–cv–01709–WYD–KLM.
• Citation: 813 F.Supp.2d 1238
• Parties: Shane McMILLAN, Plaintiff, v. WILEY, Fox, Jones, Javernick, Collins, Fenlon, Madison, Nalley, Watts, Lappin, and Davis, Defendants.
• Court: U.S. District Court — District of Colorado

813 F.Supp.2d 1238

Shane McMILLAN, Plaintiff,

v.WILEY, Fox, Jones, Javernick, Collins, Fenlon, Madison, Nalley, Watts, Lappin, and Davis, Defendants.

Civil Action No. 09–cv–01709–WYD–KLM.

United States District Court, D. Colorado.

Sept. 14, 2011.

Jason M. Lynch, Katherine Anna Roush, Glenn E. Roper, Reilly Pozner, L.L.P., Denver, CO, for Plaintiff.

Juan Gonzalo Villasenor, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER

WILEY Y. DANIEL, Chief Judge.I. INTRODUCTION

THIS MATTER is before the Court on both Defendants' Motion for Judgment on the Pleadings (ECF No. 65), filed February 23, 2011, and Plaintiff's Motion for Leave to File Amended Complaint (ECF No. 86), filed May 11, 2011. I note that a response, reply and surreply were filed in connection with the Motion for Judgment on the Pleadings. Plaintiff's Motion for Leave to File Amended Complaint was referred to Magistrate Judge Mix for a Recommendation by order of reference dated February 16, 2010. On May 27, 2011, Magistrate Judge Mix issued a Recommendation that the Motion for Leave to File Amended Complaint be denied. Plaintiff filed a timely objection to the Recommendation and Defendants filed a response. The motions are fully briefed and ripe for my review. Since the issues addressed in the two motions are related, I address them both in this Order.

II. BACKGROUND

This action involves the circumstances associated with Plaintiff's incarceration at the United States Penitentiary, Administrative Maximum Prison in Florence, Colorado (“ADX”). Until October 2010, Plaintiff was proceeding pro se until he secured the services of defense counsel through his placement on the Court's list of individuals in need of pro bono counsel. On October 28, 2010, pro bono counsel for the Plaintiff filed their entries of appearance in this matter.

On February 23, 2011, Defendants filed the pending Motion for Judgment on the Pleadings seeking to dismiss Plaintiff's claims in their entirety. Since the parties disagree as to the scope of Plaintiff's current Complaint (the Second Amended Complaint, filed February 8, 2010), contemporaneous to Plaintiff responding to the Motion for Judgment on the Pleadings, Plaintiff sought leave to amend his Second Amended Complaint to further clarify the claims at issue.¹

III. DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

In the Second Amended Complaint, Plaintiff brings three claims against the Defendants under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).² Plaintiff has sued the following individual Defendants: former ADX Warden Wiley; ADX Associate Warden Fox; ADX Associate Warden Jones; ADX Unit Manager Javernick; ADX Unit Manager Collins; Fenlon, Plaintiff's case manager; Madison, Plaintiff's counselor; Bureau of Prisons (“BOP”) North Central Regional Director Nalley, who works in Kansas City, Kansas; Watts, who is the BOP's national inmate appeals coordinator in Washington, D.C.; BOP Director Lappin, who works in the District of Columbia; and ADX Warden Davis. (Second Am. Compl. at 2–3.)

In Claim 1(a), Plaintiff alleges that his confinement at the ADX violates procedural due process. (Second Am. Compl. at 4.) In Claim 1(b), Plaintiff alleges that his confinement violates the Cruel and Unusual Clause of the Eighth Amendment. (Second Am. Compl. at 4.) In Claim 2, Plaintiff alleges that Defendants have conspired to violate his Fifth and Eighth Amendment rights by allegedly committing the Constitutional violations contained in Claim 1. (Second Am. Compl. at 13.) Plaintiff has sued the Defendants in both their official and individual capacities and is seeking monetary, declaratory, and injunctive relief. (Second Am. Compl. at 17–18.) ³

Defendants seek dismissal of all claims arguing the following: (1) the Court lacks subject matter jurisdiction over Plaintiff's claim for money damages against Defendants in their “official capacities” as sovereign immunity bars such claims; (2) the Court lacks personal jurisdiction over Defendants Lappin, Nalley and Watts as they do not have minimum contacts with Colorado; (3) even if the Court has jurisdiction, Plaintiff lacks a Bivens remedy for his procedural due process claim; (4) even if Plaintiff had such a remedy, he has failed to allege sufficient facts showing that his confinement at the ADX deprived him of a constitutionally protected liberty interest or an adequate process to challenge his confinement; (5) Plaintiff has failed to allege that the conditions of his confinement at the ADX violates the Eighth Amendment; (6) Plaintiff has failed to allege a viable claim for civil conspiracy against the Defendants; and (7) Defendants are entitled to qualified immunity as to all of Plaintiff's claims.

By way of background, in the Second Amended Complaint, Plaintiff alleges that he was designated to the ADX in 2007 and that he is being held in “solitary confinement.” (Second Am. Compl. at 4.) He contends that he is confined to a cell measuring 8'x12' behind double doors. (Second Am. Compl. at 6.) Plaintiff further alleges that he leaves his cell up to five times per week for two hours of recreation in a single man cage, that he consumes his meals alone in his cell and that he has “no human contact unless he is shackled and chained to be escorted by guards from his cell.” (Second Am. Compl. at 6.) He also alleges that these conditions of confinement do not meet the “criteria for general population.” (Second Am. Compl. at 6.) Plaintiff goes on to claim that he does not have the opportunity to go to a gym, library, cafeteria, religious services, “or any other activity with other inmates.” (Second Am. Compl. at 12.)

Plaintiff claims that Defendant Wiley, with the approval of BOP Director Lappin and Regional Director Nalley, “transformed” certain ADX general population units into “control units,” but continued to refer to them as “general population.” (Second Am. Compl. at 7.) Plaintiff further alleges that Defendants Fox and Jones have ignored his “pleas for fair treatment” and that both have stated in government documents that Plaintiff is housed in the general population despite “the overwhelming evidence that proves otherwise.” (Second Am. Compl. at 9.) Moreover, Plaintiff contends that Defendants Fenlon, Collins and Madison have allegedly “signed off” on administrative remedies stating that Plaintiff is not housed in solitary confinement. (Second Am. Compl. at 9–10.) Plaintiff alleges that Defendant Javernick also signed administrative remedies, stating that Plaintiff is not due any process. (Second Am. Compl. at 10.) Plaintiff goes on to claim that Warden Davis has “adopted the same views as [former Warden] Wiley.” (Second Am. Compl. at 10.)

Plaintiff alleges that Defendants are aware of his conditions of confinement but they have shown “a total and complete lack of concern for [his] rights.” (Second Am. Compl. at 11). Plaintiff contends that while Defendants “know that Plaintiff is housed in solitary confinement they have repeatedly signed off on falsified gov't documents stating that” certain ADX units are “general population” units. (Second Am. Compl. at 13). He alleges that Defendants “continue to conspire to keep” him in solitary confinement, and that Defendants have “engaged in conspiratorial acts to violate [his] constitutional rights.” (Second Am. Compl. at 13).

A. Standard of Review

Defendants' Motion for Judgment on the Pleadings seeks to dismiss Plaintiff's claims in the Second Amended Complaint pursuant to Fed.R.Civ.P. 12(c). Rule 12(c) states that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The Rule 12(c) motion may be employed by the defendant as a vehicle for raising several of the defenses enumerated in Rule 12(b) after the close of the pleadings.... In this context, Rule 12(c) is merely serving as an auxiliary or supplementary procedural device to determine the sufficiency of the case before proceeding any further and investing additional resources in it.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2002).

The Tenth Circuit has instructed that courts analyze Rule 12(c) motions under the same standards applicable to motions under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Park University Enterprises, Inc. v. American Casualty Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir.2006). Under Rule 12(b)(6), the court must “accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Jordan–Arapahoe, LLP v. Board of County Com'rs of County of Arapahoe, 633 F.3d 1022, 1025 (10th Cir.2011). “To survive a 12(b)(6) motion to dismiss, a plaintiff must allege that ‘enough factual matter, taken as true, [makes] his claim for relief ... plausible on its face.’ ” Id. (quotation and internal quotation marks omitted). “A claim has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009)). Plaintiff “must include enough facts to ‘nudge[ ] [his] claims across the line from conceivable to plausible.’ ” Dennis v. Watco Cos., Inc., 631 F.3d 1303, 1305 (10th Cir.2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

“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) (citations and quotation marks omitted). “Under Rule 8, a plaintiff must provide a ‘short and plain statement of the claim showing that the pleader is entitled...