Opinion
Civil Action 21-cv-03151-WJM-KLM
10-04-2022
EDWARD ALLEN, also known as Edward A. Clutts, Plaintiff, v. EXECUTIVE DIRECTOR OF CDOC, WARDEN OF CTCF, and CRAIN, Sergeant Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on the Motion to Dismiss [#19] filed by the Colorado Attorney General on behalf of Defendants Dean Williams, the Executive Director of the Colorado Department of Corrections (the "CDOC"); Eddie Caley, the Warden of the Colorado Territorial Correctional Facility ("CTCF"); and Sergeant Amanda Crane (collectively, the "CDOC Defendants"). Plaintiff, who proceeds as a pro se litigant, filed a Response [#21] in opposition to the Motion [#19], the CDOC Defendants filed a Reply [#22], and Plaintiff filed what the Court deems to be a Surreply [#27]. The Motion [#19] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c). See [#20]. The Court has reviewed the Motion, the Response, the Reply, the Surreply, the entire case file and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#19] be GRANTED.
"[#19]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
Defendant Crain's name is correctly spelled "Crane." See [#9].
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Plaintiff requested and was granted leave to file the Surreply. See [#26, #27].
All well-pled facts from the Complaint [#1] are accepted as true and viewed in the light most favorable to Plaintiff as the nonmovant. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
Plaintiff Edward Allen is a pro se litigant and inmate of the CDOC and appears to have been housed at the CTCF at all times relevant to this lawsuit. Compl. [#1] at 2. Plaintiff is 60 years of age and avers he is vulnerable to COVID-19. Id. at 4. Plaintiff tested negative for the virus on November 23, 2020, and alleges that he had not tested positive for COVID-19 at any time prior. Id. On November 25, 2020, Defendant Crane moved Plaintiff from a single cell to a double-bunked cell in the same unit shared by an inmate who Plaintiff alleges had been exposed to COVID-19 by his former cellmate. Id. Plaintiff also states that this new cell was not cleaned or sterilized between his occupancy and the removal of the infected inmate earlier that day. Id. Plaintiff tested positive for COVID-19 on November 30, 2020, as did his cellmate. Compl. [#1] at 4; Response [#21] at 1. Plaintiff believes that he contracted COVID-19 from the exposure to either his new cellmate or to the cell itself. Response [#21] at 1. Plaintiff experienced various symptoms as a result of COVID-19 for which he received treatment over the next three to four weeks, and then Plaintiff avers all treatment stopped even though he still experiences symptoms. Compl. [#1] at 4-5. According to Plaintiff, within three weeks after his diagnosis of COVID-19, 80% of the population of CTCF was infected. Id. at 4.
Plaintiff avers that CTCF began quarantining inmates who tested positive for COVID-19 in an empty unit when they first detected COVID-19 in the facility sometime in 2020. Compl. [#1] at 4. Plaintiff alleges that Defendant Caley disregarded Center for Disease Control ("CDC") guidelines which required that inmates be quarantined for two weeks by intentionally infecting CTCF inmates with COVID-19 and then mixing inmates exposed to COVID-19 in with the "general population." Id. This was, according to Plaintiff, part of a conspiracy to defraud the government in order to obtain Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") funding. Id. at 5. In support of this contention, Plaintiff states that his own treatment for COVID-19 ("Mucinex and two cough drops per day . . . [and] Mupirocin ointment for the itchy skin") is inexpensive relative to the funding provided to CTCF by the CARES Act. Id. at 4; Response [#21 ] at 2 (minor spelling error corrected). Plaintiff also alleges that five prisoners died at CTCF due to COVID-19. Compl. [#1] at 5.
Plaintiff asserts an Eighth Amendment violation based on the above allegations and seeks: (1) an order that Defendants Williams and Caley treat Plaintiff for lingering COVID-19 related symptoms; (2) an order that Defendants Williams and Caley house Plaintiff "in a single cell for the duration of his incarceration;" (3) compensatory damages for pain and suffering from Defendant Caley in his individual capacity as Warden at CTCF for his policy of "mixing prisoners" resulting in Plaintiffs COVID-19 infection as part of a conspiracy to defraud the government and obtain CARES Act funding; (3) compensatory damages for pain and suffering from Defendant Crane in her individual capacity for mixing prisoners with COVID-19 in with the general population, resulting in Plaintiffs COVID-19 infection; and (4) punitive damages from Defendants Caley and Crane in their individual capacities for intentionally infecting Plaintiff with COVID-19. Compl. [#1] at 7-8.
In the instant Motion [#19], Defendants seek dismissal of Plaintiff's claim pursuant to Federal Rules of Civil Procedure 12(b)((1) and 12(b)(6). As to Rule 12(b)(6), the Motion [#19] asserts that Plaintiff has not alleged the requisite personal participation of the CDOC Defendants, nor has he alleged enough facts to support a claim that the CDOC Defendants were deliberately indifferent in violation of the Eighth Amendment. Id. at 3. As to Rule 12(b)(1), the CDOC Defendants assert that this Court lacks lack subject matter jurisdiction over the claims against Defendants in their official capacity for damages because these claims are barred by the Eleventh Amendment. Id. Further, the CDOC Defendants aver that Plaintiff is not entitled to injunctive relief under the Prison Litigation Reform Act ("PLRA") because his requests are not narrowly tailored. Id. Plaintiff is also not entitled to punitive damages, according to the Motion [#19], because he has not met the bare minimum requirements to allege deliberate indifference, let alone alleged enough facts to show the CDOC Defendants acted with malice. Id. at 3-4. Finally, because Plaintiff has failed to allege constitutional violations against the CDOC Defendants, Defendants argue that the doctrine of qualified immunity applies to insulate them from liability. Id. at 4.
I. Standard of Review
A. Federal Rule of Civil Procedure 12(b)(1)
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); see Fed. R. Civ. P. 12(b)(1). Statutes conferring subject matter jurisdiction on federal courts are to be strictly construed. F & S Constr. 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: a facial attack or a 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 Natl 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 generally does not convert a motion to dismiss pursuant to Rulel 2(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.
B. Federal Rule of Civil Procedure 12(b)(6)
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) (stating that a complaint may be dismissed for "failure to state a claim upon which relief can be granted"). "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." 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) ("The complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." (quoting Twombly, 550 U.S. at 570)). "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). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions] devoid of further factual enhancement." 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 (second brackets added; citation and internal quotation marks omitted).
III. Analysis
A. Official Capacity Claims
1. Claims Against Defendants for Damages
The CDOC Defendants first seek to dismiss the claims against them in their official capacities to the extent they seek monetary damages as relief. Motion [#19] at 5. While Plaintiff does not appear to actually seek monetary damages against Defendants in their official capacities, to the extent that the complaint can be construed as such, these claims are barred by the Eleventh Amendment. A suit against a state official in his or her official capacity is treated as a suit against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Absent a waiver, the Eleventh Amendment bars a suit for damages against a state in federal court. Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir. 1993). Accordingly, the Motion [#19] is granted as to this issue. The Eleventh Amendment does not, however, bar claims for prospective injunctive relief sought against a defendant acting in his or her official capacity. Smith v. Plati, 56 F.Supp.2d 1195, 1203 (D. Colo. 1999); see also Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011). Accordingly, the Court turns to that issue.
2. Claims Against Defendants for Injunctive Relief
a. Injunctive Relief Regarding Treatment of COVID-19 Symptoms
First, Plaintiff seeks injunctive relief in the form of an order that Defendants Williams and Caley treat him for lingering COVID-19 symptoms including "itching, chronic cough with phlegm, sores, and a growth on his skin." Compl. [#1] at 7. Plaintiff states that he was abruptly denied treatment for these conditions in September of 2021 when the "Provider" prescribed him medication which did not work on the sores or the itch. Id. at 5. The CDOC Defendants contend that this claim is moot because Plaintiff has since received treatment for these symptoms. Reply [#22] at 5.
Mootness is an issue of subject matter jurisdiction, which can be raised at any stage of the proceedings. Kennedy v. Lubar, 273 F.3d 1293, 1301-02 (10th Cir. 2001). "Article Ill's requirement that federal courts adjudicate only cases and controversies necessitates that courts decline to exercise jurisdiction where the award of any requested relief would be moot- i.e., where the controversy is no longer live and ongoing." Front Range Equine Rescue v. Vilsack, 782 F.3d 565, 568 (10th Cir. 2015) (internal quotation marks omitted). In other words, "[a] case is moot . . . where the relief sought can no longer be given or is no longer needed." Id. (internal quotation marks omitted).
In this case, Plaintiff concedes that after having filed this action "he started getting treatment again." Response [#21 ] at 2. Further, Plaintiff admits that since he began the new treatment "the sores have cleared up and the itching has stopped" and that "the issue of treatment is moot." Id. The Court finds from the foregoing that the relief is no longer needed, and this request for injunctive relief is moot.
Therefore, to the extent Plaintiff seeks injunctive relief against Defendants Williams and Caley in their official capacities regarding medical treatment for lingering COVID-19 symptoms, the Court recommends that this portion of the claim be dismissed without prejudice on grounds of mootness. See, e.g., Lewis v. Burger King, 398 Fed.Appx. 323, 325 n.3 (10th Cir. 2010) (stating that dismissal due to mootness must be without prejudice); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006) (recognizing established rule that "where the district court dismisses for lack of jurisdiction . . ., the dismissal must be without prejudice" because a court without jurisdiction lacks power "to make any determination of the merits of the underlying claim").
B. Injunctive Relief Regarding Single Cell Restriction
Plaintiff also seeks injunctive relief from Defendants William and Caley in their official capacities in the form of an order to house Plaintiff in "a single cell for the duration of his incarceration" so that he may avoid contracting COVID-19 again. Compl. [#1] at 7. Defendants contend that Plaintiff is not entitled to injunctive relief as he has failed to show that a single cell restriction is necessary to protect Plaintiff from COVID-19, or that such a restriction is the least restrictive means of doing so. Motion [#19] at 12-13. The
PLRA provides, in pertinent part:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.8 U.S.C. § 3626(a)(1)(A).
Plaintiff argues that "forcing him to double bunk poses a substantial risk of serious harm" because "COVID-19 is spread faster, and more efficiently. . ." Surreply [#27] at 1. Although Plaintiff provides a string of cases which he believes supports this argument, id. at 1-2, Plaintiff fails to allege any facts from which the Court can plausibly find a constitutional violation under the Eighth Amendment. The Supreme Court has held that double bunking is not unconstitutional absent a showing of other "intolerable" conditions. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Conditions including "deprivations of essential food, medical care, or sanitation" might amount a requisite violation. Id. at 348. Plaintiff has not made any allegations from which the Court can find double bunking has led to any of the requisite deprivation of food, medical care or sanitation.
Moreover, courts have rejected Eighth Amendment claims based on facilities' responses to the COVID-19 pandemic where inmates alleged that because they shared a cell with a fellow inmate, they were unable to socially distance. See, e.g., Schubert v. Strange, No. 2:21-cv-01070, 2021 WL 5827770, at *1 (W.D. Wash. Oct. 15, 2021), report and recommendation adopted, No. 2:21-CV-1070 RJB-JRC, 2021 WL 5824568 (W.D. Wash. Dec. 8, 2021) (denying a prisoner's request for preliminary injunction to be returned to a single bunk because the request was not narrowly drawn and was unlikely to survive on the merits of an Eighth Amendment claim); Rogers v. Cochran, No. 5:20-CV-185-M-BQ, 2021 WL 1877385, at *14 (N.D. Tex. Apr. 19, 2021),repo/f and recommendation adopted, No. 5:20-CV-185-M-BQ, 2021 WL 1872584 (N.D. Tex. May 10, 2021) (allegations of double-celling and overcrowding during the COVID-19 pandemic did not amount to a constitutional violation).
See also Frohlich v. United States, No. 20-cv-2692, 2021 WL 2531188, at *3 (D. Minn. June 21, 2021) (rejecting Eighth Amendment claim based on failure to socially distance in prison); Smith v. Jeffreys, No. 20-1421-MMM, 2021 WL 918057, at *2 (CD. III. Mar. 10, 2021) (rejecting an Eighth Amendment claim based on exposure to other inmates exhibiting COVID-19 symptoms); Williams v. Nevada, No. 3:20-cv-00223, 2020 WL 1876220, at *4 (D. Nev. Apr. 15, 2020) (rejecting Eighth Amendment claim based on inmate's inability to socially distance when inmate had not shown that "Defendant knew of these conditions, had the authority, ability, and resources to change these conditions without endangering other prisoners at similar risk, but nevertheless unreasonably chose not to change these conditions").
Further, even assuming heightened risk of exposure to COVID-19 constitutes the violation of a Federal right as required by the PLRA, Plaintiff has failed to show that the relief he seeks is narrowly tailored to alleviate that harm. Plaintiff does not explain, for example, how being housed in a single cell is necessary or even capable of alleviating the potential harm from COVID-19 exposure when, as Plaintiff himself states, the prisoners at CTCF are "mixed" in "general population." See generally Compl. [#1]. In addition, the Tenth Circuit has generally afforded prisons and the like significant discretion in the administration of their facilities. See Quick v. Mann, 170 Fed.Appx. 588, 590 (10th Cir. 2006) ("[Corrections officials retain broad discretion over the administration of prisons, including housing in general and cell assignments in particular."); see also Robards v. Stephan, 977 F.2d 596 (10th Cir. 1992) (prison officials retain broad discretion over the assignment and housing of inmates).
For these reasons, to the extent Plaintiff seeks injunctive relief against Defendants Williams and Caley in their official capacities regarding a single cell restriction, the Court recommends that this portion of the claim be dismissed without prejudice. See Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th Cir. 1990) (explaining that if "it is all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief[,]" particularly when the litigant is pro se, the Court dismiss without prejudice so that the plaintiff can seek leave to amend).
C. Individual Capacity Claims Against Defendants Caley and Crane
Finally, Plaintiff sues Defendants Caley and Crane in their individual capacities under the Eighth Amendment for intentionally exposing Plaintiff to the virus, and for pain and suffering caused by the disease. Compl. [#1 ] at 7-8. The CDOC Defendants argue that they are entitled to qualified immunity regarding Plaintiffs claims. Motion [#19] at 6-7.
Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982). A government official is entitled to qualified immunity from liability for civil damages when their allegedly unlawful conduct did not violate any of the plaintiffs statutory or constitutional rights that (1) were "clearly established" at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Id. at 818. A government official is entitled to qualified immunity in "[a]ll but the most exceptional cases." Harris v. Bd. of Educ. of Atlanta, 105 F.3d591, 595(11th Cir. 1997).
The threshold inquiry is whether the facts taken in the light most favorable to the plaintiff sufficiently allege a constitutional violation. Saucier v. Katz, 553 U.S. 194, 201 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. However, "if a violation could be made out on a favorable view of the parties' submissions," a court must "ask whether the right was clearly established." Id.; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken and qualified immunity is appropriate). The Court thus proceeds to determine whether Plaintiff has plausibly alleged the violation of a constitutional right under the Eighth Amendment.
Plaintiff alleges that Defendants Caley and Crane violated the Eighth Amendment prohibition against cruel and unusual punishment by intentionally infecting him with COVID-19. Compl. [#1] at 4. Because inmates "must rely on prison authorities to treat [their] medical needs," the Supreme Court has held that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). The test for deliberate indifference is both objective and subjective, in that a detainee must establish that: (1) he was deprived of a medical need that is, objectively, "sufficiently serious," and (2) that the defendant subjectively knew of and disregarded "an excessive risk to [the detainee's] health or safety." Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).
Under the subjective prong, Plaintiff must show that the defendant (1) knew of a substantial risk of serious harm posed to the plaintiff and (2) disregarded that risk "by failing to take reasonable steps to abate the risk." Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The plaintiff must show more than negligence, meaning the plaintiff cannot rely solely on an allegation that the defendant should have perceived a substantial risk. Farmer, 511 U.S. at 838; Estelle, 429 U.S. at 105-06. The plaintiff must instead show that the defendant was aware of a specific and substantial risk of harm, and deliberately failed to act with a sufficiently culpable state of mind. See Farmer, 511 U.S. at 834-35; Wright v. Collison, 651 Fed.Appx. 745, 748 (10th Cir. 2016). "If the official was unaware of the risk, 'no matter how obvious the risk or how gross his negligence in failing to perceive it,' his failure to alleviate it 'is not an infliction of punishment and therefore not a constitutional violation.'" Szymanski v. Benton, 289 Fed.Appx. 315, 318 (10th Cir. 2008) (quoting Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)). Further, "prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844.
a. Defendant Crane
Plaintiff seeks compensatory and punitive damages from Defendant Crane for pain and suffering and for intentionally exposing Plaintiff to COVID-19. Compl. [#1] at 7-8. Assuming for purposes of the Motion [#19] that Plaintiff's contraction of COVID-19 meets the objective component, Plaintiff has failed to show that the subjective prong is met as to Defendant Crane.
Plaintiffs complaint fails to allege specific facts indicating that Defendant Crane knew that the cell she was moving Plaintiff into had not been properly sterilized or cleaned. Plaintiff also fails to allege any facts from which the Court could plausibly conclude that Defendant Crane subjectively knew that exposing Plaintiff to the cell or to his new cellmate would put Plaintiff at risk for contracting COVID-19, or that Defendant Crane deliberately disregarded that fact. Plaintiffs averments regarding Defendant Crane (that she disregarded CDC guidelines concerning quarantining exposed prisoners and intentionally infected Plaintiff by forcing him to move into a shared cell) are conclusory allegations which, at most, point towards conduct more akin to negligence than to the reckless, deliberate indifference standard. Compl. [#1] at 4-5; see also, Farmer, 511 U.S. at 836-37 ("The deliberate indifference test lies somewhere between the poles of negligence at one end and purpose or knowledge at the other," and has been "routinely equated with recklessness.").
In Response [#21] at 2, Plaintiff asserts that Defendant Crane was responsible for housing prisoners safely in Unit 7 under the direction of Defendant Caley, and that she had knowledge that the previous cellmate had tested positive for COVID-19 because she had moved him out of the cell earlier that day. However, the Court cannot consider new allegations made for the first time in a response to the motion to dismiss. Abdulina v. Eberl's Temporary Servs., 79 F.Supp.3d 1201,1206 (D. Colo. 2015) (A plaintiff cannot "amend her complaint by adding factual allegations in response" to a motion to dismiss) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10thCir. 1995). Moreover, these assertions still don't show that Defendant Crane knew the cell had not been sterilized, that moving Plaintiff into the cell would expose him to the disease, or that she deliberately ignored those facts.
In sum, Plaintiff has failed to allege any facts which show that Defendant Crane subjectively knew that the conditions of the cell posed a risk to Plaintiff and deliberately disregarded that risk, or even that Plaintiff contracted COVID-19 as a result of being moved by Defendant Crane in the first place.
Because Plaintiff has failed allege facts which plausibly support the contention that Defendant Crane violated Plaintiff's constitutional rights, Defendant Crane is entitled to qualified immunity from liability for civil damages. Accordingly, the Court recommends that Plaintiff's claims for compensatory and punitive damages against Defendant Crane be dismissed without prejudice. See Reynoldson, 907 F.2d at 125.
b. Defendant Caley
Plaintiff seeks compensatory and punitive damages from Defendant Caley for pain and suffering and for intentionally exposing Plaintiff to COVID-19 as part of a scheme to defraud the government of CARES Act funding. Compl. [#1] at 7. In support of this contention, Plaintiff notes that both he and at least 80% of the CTCF population have contracted COVID-19, that the cost of his personal COVID-19 treatment appears to be far less than the funds CTCF received from the federal government from the CARES Act (although Plaintiff does not provide any specific numerical facts about this discrepancy), and that at some point the Warden stopped following CDC guidelines. Response [#21] at 3; Compl. [#1] at 4-5. Once again assuming the objective prong is met, Plaintiff fails to meet the subjective prong of the deliberate indifference test as to Defendant Caley.
Despite the allegation that around 80% of the inmates at the CTCF contracted COVID-19, Plaintiff fails to allege any facts which plausibly support his contention that Defendant Caley conspired to infect the inmates at the CTCF with COVID-19 or that moving Plaintiff out of a single cell was a part of that conspiracy. The Tenth Circuit has held regarding the subjective prong that "the key inquiry is whether the defendants responded reasonably to... the risk posed by COVID-19." Medina v Williams, DC. No. 1:20-CV-01607-DDD-MEH, 2022 WL 2714517, at *4 (10th Cir. July 13, 2022) (internal brackets omitted) (quoting Wilson v Williams, 961 F.3d 829, 840-41 (6th Cir. 2020)). "A response may be reasonable even if the harm imposed by COVID-19 on inmates... ultimately is not averted." Id. (internal quotations omitted).
By Plaintiffs own admission, Defendant Caley appears to have taken a variety of measures to combat the spread of the virus, such as quarantining all infected persons to a separate, empty unit; removing inmates who tested positive for the virus from double bunked cells; spraying cells with bleach; quarantining transfers for two weeks before allowing them into the general population; and providing for the frequent testing of inmates and staff. See generally Compl. [#1]; Response [#21]. Although Plaintiff and much of the CTCF may have contracted COVID-19, as Plaintiff alleges, many Colorado prisons (not to mention the entire country) struggled with the logistical impossibility of containing the spread COVID-19. See Response [#21] at 3. Evidence that a virus which caused an unprecedented global pandemic also happened to spread throughout a prison does not support the allegation that the warden of that prison intentionally infected inmates. Although Plaintiff may disagree with how the CTFC handled COVID-19, as the Defendants argue, a "difference of opinion does not deliberate indifference make." Motion [#19] at 10 (quoting Brooks v. Reynolds, No. 1:20-cv-02162-PAB-SKC, 2021 WL 4556019, at *8 (D. Colo. Aug. 18, 2021)).
Plaintiff, for example, appears to have been tested twice in a seven-day period. Compl. [#1]at4.
Similarly, the purported discrepancy between the CARES Act funding and Plaintiffs own COVID-19 treatment does not sufficiently indicate that the warden of a prison intentionally infected inmates to obtain that funding. While Plaintiff references the fact that that his own treatment for COVID-19 is inexpensive relative to the funding provided to CTCF by the CARES Act, Plaintiffs conclusory allegations about a purported discrepancy do not give rise to a plausible inference that the Warden conspired to improperly obtain CARES Act funding, intentionally infected inmates with COVID-19 to obtain such funding, or even that the funding was handled improperly. In short, the Complaint [#1], the Response [#21], and the Surreply [#27] do not provide any facts which reasonably support Plaintiffs assertion that Defendant Caley conspired regarding obtaining CARES act funding, or that he intentionally infected inmates to do so.
To the extent Plaintiff argues that Defendants could resolve this purported CARES Act funding discrepancy by providing data on both the funding received by CTCF and CDOC as well as how much of it was spent in relation to the COVID-19 pandemic, or that the Court could order these records pursuant to 5 U.S.C. § 55 (Response [#21] at 2), the Court rejects these arguments. Defendant has no obligation in connection with a motion to dismiss to produce records Plaintiff may wish to obtain to support his claims. Moreover, Plaintiff has not brought a FOIA claim for request of these records.
As to Plaintiffs allegation that Defendants Caley and Crane disregarded CDC guidelines recommending that prisoners exposed to COVID-19 be quarantined for two weeks, the contention that this was done with malicious intent is unsupported. Compl. [#1 ] at 5; Response [#21 ] at 3. Again, Plaintiffs complaint itself contradicts this allegation and is full of examples of steps that CTFC undertook to combat the spread of the virus including quarantining new transfers to the facility. See generally Compl. [#1]. Plaintiffs allegations more closely resemble a disagreement as to the housing and administrative decisions of the CTCF in regard to its COVID-19 response, a circumstance that does not rise to the level of a constitutional violation. Even if a mere disagreement could support the allegation of deliberate indifference, again, courts afford prison officials with a significant amount of discretion in such administrative decisions. See Quick v. Mann, 170 Fed.Appx. 588, 590; Robards v. Stephan, 977 F.2d 596. Failure to comply with CDC guidelines regarding the quarantining of inmates for two weeks, at most, amounts to negligence, which is not sufficient to support an Eighth Amendment constitutional violation. See Farmer, 511 U.S. at 836-37.
In the Response [#21] at 3, Plaintiff alleges that Defendants Crane and Caley "followed CDC guidelines at first, but then stopped." The Complaint, however, alleges only that the CTFC stopped quarantining new transfers and other exposed prisoners. See Compl. [#1]. The Court may not consider allegations raised for the first time in the Response, as this would permit a plaintiff to improperly amend the complaint through the briefing. Abdulina v. Eberl's Temporary Servs., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)).
In sum, Plaintiffs complaint fails to plausibly allege that Defendant Caley acted anything but reasonably in responding to the threat of COVID-19, even if the measures taken were not completely effective or to Plaintiffs satisfaction. Thus, the Plaintiff has failed to sufficiently allege that Defendant Caley meets the subjective component of the deliberate indifference test.
Because Plaintiff has failed to allege facts which plausibly support the contention that Defendant Caley violated Plaintiffs constitutional rights, Defendant Caley is entitled to qualified immunity from liability for civil damages. Accordingly, the Court recommends that Plaintiff's claims against Defendant Caley in his individual capacity be dismissed with prejudice. Unlike the other claims, the Court believes that it would not be possible for Plaintiff to correct the defect or state a claim for relief as to the alleged conspiracy and intentional conduct by Defendant Caley. Reynoldson, 907 F.2d at 125.
IV. Conclusion
For the reasons stated above, IT IS HEREBY RECOMMENDED that the Motion [#19] be GRANTED and that Plaintiff's Eighth Amendment claims be DISMISSED. Specifically, it is recommended that the Eighth Amendment claim against Defendant Caley in his individual capacity be DISMISSED WITH PREJUDICE, and that all other claims be DISMISSED WITHOUT PREJUDICE
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Am, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dept of Corn, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).