Thompson v. Lengerich
| Decision Date | 28 February 2022 |
| Docket Number | Civil Action 18-cv-00588-RM-SKC |
| Parties | LARRY ALLEN THOMPSON, Plaintiff, v. JASON LENGRICH, WARDEN, BUENA VISTA CORR. FAC., JENNIFER HANSEN, BVCF SECURITY SVC. CAPTAIN, WILLIAM CATTELL, BVCF EAST UNIT SUPERVISOR, and THE COLORADO DEPARTMENT OF CORRECTIONS CDOC, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendants' “Motion to Dismiss the Second Amended Complaint [ECF No. 82] Under Fed.R.Civ.P 12(b)(1) and 12(b)(6).” ([“Motion”], Doc No. 94.) Plaintiff has responded in opposition to the Motion, and Defendants have replied. ([“Response”], Doc. No. 97; [“Reply”], Doc. No. 103.) For the following reasons, it is RECOMMENDED that the Motion be GRANTED, and that this case be DISMISSED.
Pro se Plaintiff Larry Allen Thompson [“Mr. Thompson ” or “Plaintiff”], an incarcerated person in the custody of the Colorado Department of Corrections [“CDOC”], brings this action under 42 U.S.C. § 1983, alleging that he was subjected to unconstitutional conditions of confinement while incarcerated at the CDOC's Buena Vista Correctional Facility [“BVCF”]. ([“Second Amended Complaint”], Doc. No. 82.) Mr. Thompson alleges, specifically, that BVCF is chronically overcrowded and understaffed, and that these conditions, along with the prison's shower conditions and policies, violated his rights under the Eighth and Fourteenth Amendments. (Id. at 5-21.)
I. Shower Conditions
Mr. Thompson reportedly suffers from Post-Traumatic Stress Syndrome/Disorder [“PTSS/D”] stemming from childhood sexual abuse, which inhibits him from taking communal showers with other male inmates. (Id. at 7.) Plaintiff also apparently has a “physical defect” in his genital areas, which “exacerbates” his “physical and psychological need for privacy” and “security” while showering. (Id. at 9.) CDOC Administrative Regulation [“AR”] #100-40, which was passed to implement the Prison Rape Elimination Act, 34 U.S.C. §§ 30301-30309, and its accompanying regulations, see 28 C.F.R. Pt. 115, obligates prisons to provide inmates who self-identify as transgender or intersex with the opportunity to shower separately from other inmates. Neither AR #100-40, nor the federal regulations, authorize private showers for other inmates with special needs, such as Mr. Thompson.
According to the Second Amended Complaint, on September 19, 2017, BVCF prison officials “arbitrarily” transferred Mr. Thompson from the BVCF's Upper East Unit, which has private shower stalls, to the prison's Lower East Unit, which has only communal showering facilities. (Id. at 5.) Plaintiff alleges that the East Unit Supervisor, Defendant William Cattell, “personally supported” his transfer to the Lower East Unit, notwithstanding the fact that Defendant Cattell was “aware” of Plaintiff's PTSS/D diagnosis and corresponding “personal safety concerns” with respect to communal prison showers. (Id.) Mr. Thompson alleges that, in the days preceding his transfer to the Lower East Unit, Defendant Cattell denied his grievance relating to communal showers, making clear that Mr. Thompson could shower privately at the prison, only by “self-identifying” as either “a transgender[] or an intersex(ual) prisoner.” (Id.)
According to the Second Amended Complaint, within hours of his transfer to the Lower East Unit, Mr. Thompson declared a “Mental Health Emergency.” (Id. at 6.) Later that same day, Mr. Thompson's wife reportedly “contacted” BVCF regarding her husband's “mental health and well[-]being, ” and that “communication” was ultimately “forwarded” to the prison's Custody/Control Manager, Defendant Jennifer Hansen. (Id.) Plaintiff alleges that Defendant Hansen then “personally came to the East living unit to confront [him] about what is[] and/or is not considered by the administration to be a mental health emergency or issue.” (Id.) Defendant Hansen apparently told Plaintiff, “in no uncertain terms, ” that his “safety concerns” were “irrelevant, ” making clear that his antipathy towards communal showering was not her “problem.” (Id.) Mr. Thompson alleges that Defendant Hansen then “threat[ened]” him, by stating that he “could either comply” with the transfer to the Lower East Unit, or else “be taken to Restrictive housing (segregation).” (Id.)
Following these events, Plaintiff reportedly refused to shower communally, and the BVCF staff apparently did not force him to do so. (Id. at 6-11.) As a result, Mr. Thompson did not bathe, at all, for approximately twenty-five days. (Id. at 7.) Mr. Thompson complains that, during that time, he was “forced to needlessly suffer and endure” significant “psychological torture, ” causing him “to live in a heightened state of fear of physical retaliation and possible assault from his cellmate for not showering.” (Id.) In the interim, by letter dated September 29, 2017, the BVCF Warden, Defendant Jason Lengerich, informed Plaintiff's wife that her husband “w[ould] not be granted private showers, ” because he “did not self-report as being transgender, gender non-conforming, or intersex.” (Id. at 6-7.) Two weeks later, however, the CDOC's Director of Prison Operations reportedly directed Defendant Lengerich “to allow Plaintiff to resume showering privately.” (Id. at 7.) Defendant Lengerich apparently “complied” with that order, on October 14, 2017. (Id.)
II. Overcrowding and Understaffing In this lawsuit, Plaintiff also alleges that BVCF is unconstitutionally overcrowded and understaffed. (Id. at 16-21.) Mr. Thompson complains that his BVCF cell, which has only 21.5 square feet of unencumbered space, and which was intended for single occupancy-must be “shared by two fully grown men for an aver[age] ¶ 18 to 24 hours per day; and at times, 24 hours per day for weeks on end.” (Id. at 18.) The BVCF cells are said to have “sealed windows [and] inadequate ventilation, ” creating conditions which are “unsafe” for Mr. Thompson, given that his immune system is “permanently compromised.” (Id.) Mr. Thompson reports that he has been forced to endure several multi-day lockdowns at BVCF, including an eleven-day lockdown in the spring of 2018, during which he was allowed outside of his cell for a total of forty minutes, solely to shower, and where “no disinfectants or other basic [] cleaning supplies” were provided to inmates. (Id.)
Mr. Thompson also complains that there are “chronic staffing shortfalls” at BVCF, which are “directly attributable” to Defendant Lengerich's “forced policies of long, and often consecutive work-shifts.” (Id. at 16, 18.) Plaintiff alleges that BVCF's understaffing issues “feed[] into the danger of the overcrowded conditions, ” resulting in a “great[er] risk and likelihood” of physical harm to inmates and prison guards alike. (Id. at 16.) Mr. Thompson claims that he has “personally witnessed” an increased number of “violent” incidents at BVCF, including “gang beatings, ” “sexual assaults, ” and “gang/race related murders, ” many of which remain “undetected” and “unreported.” (Id. at 16-17.) Mr. Thompson recounts one instance in which he “personally alerted the depleted South Unit staff to a bloody altercation between two [intoxicated] inmates, ” thereby “putting himself at risk” of “permanent disfigurement, or even death.” (Id. at 17.) Plaintiff further reports that, in April 2018, he witnessed “a major gang fight/riot” involving upwards of fifty BVCF inmates, and which, due to understaffing, “last[ed] without any meaningful intervention for nearly 10 minutes leaving several inmates beaten [and] bloodied.” (Id. at 19.) Plaintiff informs the Court of another incident that occurred in 2019, where “understaffing stress was so high” that several prison guards were “momentarily held hostage” by “an officer manning the main gate entrance, ” who apparently “brandished” an AR-15 assault rifle in a “seriously threatening manner.” (Id.)
III. Procedural History
Based on these allegations, on March 12, 2018, Mr. Thompson commenced this federal civil rights action, initially against Defendants Cattell, Hansen, and Lengerich, seeking a vindication of his rights under the Fourth, Eighth, and Fourteenth Amendments. (Doc. No. 1.) On March 25, 2021 Plaintiff filed a Second Amended Complaint, adding the CDOC as a defendant, and asserting four claims for relief: (1) “Violation of Plaintiff's 14th Amendment right to ‘Bodily Privacy;'” (2) “Violation of Plaintiff's Fourteenth Amendment right to Equal Protection of the law in relation to ‘Similarly Situated' persons;” (3) “Violation of Plaintiff's Eighth Amendment right to ‘humane conditions of confinement' without the wanton infliction of cruel and unusual punishment due to the Overcrowded and Understaffed conditions at BVCF;” and (4) “Violation(s) of Plaintiff's 8th and 14th Amendment rights by the Colorado Department of Corrections (CDOC), Defendant #4.” (Second Am. Compl. 4-21.) The claims are asserted against Defendants Cattell, Hansen, and Lengerich, in their individual capacities, and against the CDOC, in its official capacity. (Id. at 3-4.) Plaintiff demands monetary damages from Defendants Cattell, Hansen, and Lengerich, and he seeks prospective injunctive relief from the CDOC. (Id. at 3-4, 23-24.) Defendants now move to dismiss the Second Amended Complaint, in its entirety, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Mot. 1.) In the Motion, Defendants contend that Plaintiff lacks standing to bring a Fourteenth Amendment bodily privacy claim, because he has alleged no injury in fact. (Id. at 8-9.) Defendants further argue that the claims against the CDOC must be dismissed, because they are time-barred by the two-year statute of limitations that...
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