Thirsk v. Elder

• Decision Date: 10 March 2022
• Docket Number: Civil Action 21-cv-01205-WJM-NYW
• Parties: SETH ADAM THIRSK, Plaintiff, v. BILL ELDER and CY GILLESPIE, Defendants.
• Court: U.S. District Court — District of Colorado

SETH ADAM THIRSK, Plaintiff,
v.
BILL ELDER and CY GILLESPIE, Defendants.

Civil Action No. 21-cv-01205-WJM-NYW

United States District Court, D. Colorado

March 10, 2022

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Nina Y. Wang United States Magistrate Judge

This matter comes before the court on Defendants' Combined Motion to Dismiss Plaintiff's Complaint (Doc. 6) Pursuant to Fed.R.Civ.P. 12(b)(6) and Response to Proposed Amendments (the “Motion” or “Motion to Dismiss”) filed on August 12, 2021 by Defendants Bill Elder and Cy Gillespie. [Doc. 37].^[1] The court considers the Motion pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated June 17, 2021 [Doc. 11], and the Memorandum dated February 11, 2022. [Doc. 73]. Upon review of the Motion, the associated briefing, and applicable case law, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.

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BACKGROUND

On April 30, 2021, Plaintiff Seth Adam Thirsk (“Plaintiff” or “Mr. Thirsk”) initiated this civil action by filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. [Doc. 1]. The case was directly assigned to the Honorable Gordon P. Gallagher, [Doc. 2], who ordered Plaintiff to file a complaint within 30 days of May 4, 2021. [Doc. 3]. On June 4, 2021, Plaintiff filed his Prisoner Complaint (the “Complaint”). [Doc. 6]. Magistrate Judge Gallagher granted Plaintiff leave to proceed in forma pauperis, see [Doc. 7], and after concluding that Mr. Thirsk's claims did not appear appropriate for summary dismissal, he ordered that the case be drawn to a presiding judge. [Doc. 8]. The case was reassigned to the Honorable William J. Martínez and drawn to the undersigned. [Id.].

Mr. Thirsk was previously housed as a pretrial detainee at the El Paso County Criminal Justice Center (“CJC”). [Doc. 6 at 2]; see also [Doc. 56 (discussing mail returned as undeliverable to Plaintiff at the CJC); Doc. 49 at 1 (Plaintiff listing a residential address for himself)].^[2] In the Complaint, Plaintiff sued Defendants Bill Elder, the El Paso County Sheriff (“Defendant Elder”), and Cy Gillespie, the warden of the CJC (“Defendant Gillespie”) (collectively, “Defendants”), in their individual and official capacities, and alleges generally that they “acted with deliberate indifference” by failing to adequately protect CJC detainees against the contraction of COVID-19 or by failing to adequately treat detainees who contracted COVID-19. See, e.g., [Doc. 6 at 7, ¶ D; id. at 8, ¶ E]. On

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July 23, 2021, Plaintiff filed a Complaint for Compensatory Damages, Punitive Damages, and Injunctive Relief (the “Amended Complaint”), raising claims against Defendants Elder and Gillespie in their individual and official capacities, [Doc. 27], and on August 2, 2021, Plaintiff filed a document titled “IV. Claims for Relief” (the “Supplement”). [Doc. 33].^[3] The Amended Complaint contains 75 numbered paragraphs, see generally [Doc. 27], and the Supplement contains 16 requests for injunctive relief, in addition to requests for monetary damages. See generally [Doc. 33]. The court notes that the Amended Complaint and Supplement contain-almost exclusively-allegations which are identical to allegations raised in complaints filed in several other cases in this District. See Jones v. Elder et al., 21-cv-00925-PAB-NRN, [ECF No. 1]; Chiffre v. Elder et al., 21-cv-01196-RBJ-SKC, [ECF No. 1]; Rogers v. Elder et al., 21-cv-01278-RM-NYW, [ECF No. 1]; Papol v. Elder et al., 21-cv-01300-SKC, [ECF No. 1]; Griffith v. Elder et al., 21-cv-01756-NRN, [ECF No. 1].

Relevant here, Mr. Thirsk alleges that he tested positive for COVID-19 on October 29, 2020 while housed at the CJC. [Doc. 27 at ¶ 4]. Plaintiff alleges generally that Defendants have failed to provide N-95 masks to CJC detainees and inmates, [id. at ¶ 34], instead providing only “cheap, ill-fitting cloth masks, ” [id.], and have failed to require mask usage at the CJC, [id. at ¶ 40], which has resulted in unconstitutional conditions of confinement at the CJC. See, e.g., [Doc. 33 at ¶ 87]. Plaintiff also raises numerous allegations that Defendants have failed to comply with the Stipulated Preliminary

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Injunction entered in another case in this District: Weikert v. Elder, 20-cv-03646-RBJ (“Weikert”), [ECF No. 25]. See, e.g., [Doc. 27 at ¶¶ 34-35, 39, 48-50, 58, 60, 64-66].^[4]

Plaintiff raises four conditions-of-confinement claims: two arising under the Eighth and Fourteenth Amendments of the United States Constitution, respectively, and two arising under Article II, Sections 20 and 25 of the Colorado Constitution, respectively. See [Doc. 6 at 9, ¶¶ 1-4; Doc. 33 at 1-9]. Plaintiff also seeks extensive injunctive relief concerning the COVID-19 protocols at the CJC, [Doc. 6 at 9-13, ¶¶ 1-4; Doc. 33 at 11-17, ¶¶ 1, 3-4, 9-11], as well as one million dollars in punitive damages; restitution or disgorgement of “all CARES Act Funds which were used for projects which can not be reasonably related to COVID-19 protections;” and compensatory damages. [Doc. 6 at 13, ¶¶ 5-7; Doc. 33 at 16, ¶¶ 5-7]. Defendants filed the Motion to Dismiss on August 12, 2021. [Doc. 37]. While Defendants argue that the original Complaint remains the operative pleading in this action, [id. at 1-2], and thus their arguments are directed to this pleading, see [id. at 4-12], they also assert that any amendment proposed in the Amended Complaint or Supplement would be futile. [Id. at 12-13]. Plaintiff responded to the Motion to Dismiss, see [Doc. 48], to which Defendants replied. [Doc. 73]. Because the matter is ripe for recommendation, I consider the Parties' arguments below.

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LEGAL STANDARDS

I. Fed.R.Civ.P. 12(b)(1)

Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006)).

Two related concepts, mootness and standing, are jurisdictional. Citizen Ctr. v. Gessler, 770 F.3d 900, 906 (10th Cir. 2014). “A plaintiff must demonstrate standing separately for each form of relief sought.'” Smith v. U.S. Immigr. and Customs Enf't, 429 F.Supp.3d 742, 755 (D. Colo. 2019). Meanwhile, “[m]ootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” RMA Ventures Cal. v. SunAmerica Life Ins. Co., 576 F.3d 1070, 1073 n.6 (10th Cir. 2009) (internal quotation marks omitted). Mootness is judged by the state of facts as they exist after the complaint is filed. WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1185 (10th Cir. 2012). “Mootness usually results when a plaintiff

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has standing at the beginning of a case, but, due to intervening events, loses one of the elements of standing during litigation.” Id. at 1182.

II. Fed.R.Civ.P. 12(b)(6)

Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” 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 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible”). 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).

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III. Pro Se Pleadings

Because Mr. Thirsk proceeds in this matter pro se, the court affords his filings liberal construction. Haines, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall, 935 F.2d at 1110, and applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).

ANALYSIS

I. The Operative Pleading

Due to the unique procedural circumstances presented in this case, the court must first address the appropriate operative pleading in this action. As set forth above, Mr. Thirsk filed his Complaint on June 4, 2021. [Doc. 6]. On June 24, 2021, Defendants waived service of the Complaint, which set their deadline to answer or otherwise respond to the Complaint for August...