Opinion
Civil Action 1:20-cv-02162-PAB-SKC
08-18-2021
JASON BROOKS, Plaintiff, v. TERESA REYNOLDS, et al., Defendants.
RECOMMENDATION RE: MOTION TO DISMISS [#40]
S. Kato Crews United States Magistrate Judge
Plaintiff Jason Brooks, a parolee in the custody of the Colorado Department of Corrections (CDOC), was previously housed at Sterling Correctional Facility (SCF).[#34.] Upon his arrival to SCF in April 2018, Defendant Teresa Reynolds (CDOC Legal Access Program Coordinator) and Defendant Donald Canfield (former SCF Law Librarian) allegedly began depriving Brooks of sufficient law library access in retaliation for the “voluminous amount of litigation” Brooks has filed. [Id. at ¶¶2-5.]
Brooks was paroled on August 16, 2021. [#72-1.]
The Court uses “[#]” to refer to specific docket entries in CM/ECF.
These facts are drawn from Plaintiff's Amended Complaint and are presumed true for the purpose of ruling on Defendants' Motion to Dismiss.
According to the Amended Complaint (hereinafter “Complaint”), Canfield kept a log of Brooks' conduct while in the library “because offender Brooks has often grieved staff and he leaves out all the specific details of the actual events.” [Id. at ¶7.] And Canfield allegedly refused to follow CDOC policy-prioritizing library access for inmates pursuing habeas corpus actions-which would have afforded Brooks double the amount of library time he ultimately received. [Id. at ¶6.] If he'd received additional time, Brooks contends he would have successfully pursued a habeas corpus petition and his criminal sentence would have been vacated.
In April 2020, the SCF law library closed with the goal of “reducing the risk of introducing the COVID-19 in the complex and inmate populations.” [Id. at ¶11.] According to Brooks, prohibiting physical access to the library raised the risk of transmission and it would have been safer to allow inmates in the library because they could socially distance in that space. [Id. at ¶¶12-13, 47-48.] He further contends the alternative procedures for library access were insufficient because, inter alia, he could only do research by requesting cases by precise citation; he could not access a word processor, online legal research, or his in-progress legal work; and he was forced to handwrite or type his filings, which hindered his ability to make arguments within the page limit. [Id. at ¶¶16-23.] Due to these limitations, Brooks received notices of deficiency from the Colorado Supreme Court and one appeal was ultimately dismissed. Brooks also alleges he was prevented from filing seven additional lawsuits that would have resulted in millions of dollars in damages. [Id. at ¶62.]
During the pendency of this case, SCF implemented a new library access policy allowing inmates with a high-security classification to visit the library more than those with low-security classification. [Id. at ¶¶32-35.] Because Brooks was a low- security inmate, he only had three hours in the library, compared to the twenty-eight afforded the high-security inmates. [Id.] He contends because of this limitation, he was unable to file his direct habeas petition (wherein he asserted actual innocence) to the Colorado Supreme Court and his habeas appeals were dismissed. [Id. at ¶¶41-42.] Brooks further contends SCF continued to implement the COVID-19 lockdown procedures not based on concerns of safety, but rather a desire for hazard pay. [Id. At ¶¶49-53.]
Brooks also contends the Colorado Supreme Court unlawfully suspended his right to habeas corpus. [Id. at ¶¶110-20.] The Colorado Supreme Court has filed a separate motion to dismiss [#67], and its arguments are not discussed in this recommendation.
Brooks filed this case seeking damages and injunctive relief for violations of his First, Eighth, and Fourteenth Amendment rights. [Id. at ¶¶80-129.] Defendants CDOC, Williams, Reynolds, Long, and Canfield (CDOC Defendants) seek dismissal of the claims against them in their entirety arguing Brooks has failed to state any claims and they are entitled to qualified immunity. [#40.] The Court has reviewed the Motion and related briefing, the Complaint, and the relevant law. No. hearing is necessary. For the following reasons the Court RECOMMENDS the Motion be GRANTED.
Plaintiff proceeds pro se; thus, the Court liberally construes his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the Court may not “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting matters that were not pleaded. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se plaintiffs must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
CDOC Defendants also argue this Court lacks jurisdiction over any claims for money damages against the Defendants in their official capacities. Brooks, however, is clear he only seeks money damages from the Defendants in their individual capacities. [#34 at ¶1.]
STANDARDS OF REVIEW
A. Failure to State a Claim
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See 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, 595 F.3d v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (internal citations omitted). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678 (internal quotation marks omitted).
The Twombly/Iqbal pleading standard requires courts take a two-prong approach to evaluating the sufficiency of a complaint. Id. at 678-79. The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The standard is a liberal one, however, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
B. Qualified Immunity
Qualified immunity shields “government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). Qualified immunity is “immunity from suit rather than a mere defense to liability [and] it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Whether defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
When the qualified immunity defense is raised, the plaintiff bears the burden of showing, with particularity, facts and law establishing the inference that the defendant violated a clearly established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994). If the plaintiff fails to satisfy either prong, the defendant is entitled to qualified immunity. Pearson, 555 U.S. at 236. The court has the discretion to consider these prongs in any order. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011).
As to the first prong, “[i]f no constitutional right would have been violated were the allegations established, ” the inquiry is at an end. Saucier v. Katz, 533 U.S. 194, 201 (2001). The second prong-whether the right was clearly established-must be considered “in light of the specific context of the case, not as a broad general proposition.” Id. An official's conduct “violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear' that every ‘reasonable official would have understood that what he is doing is violating that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id.
ANALYSIS
In his Complaint, Brooks contends the CDOC Defendants retaliated against him in violation of the First Amendment, impeded his access to the courts, and violated his due process and equal protection rights. He also argues the CDOC's COVID-19 policies violate the Eighth Amendment prohibition against cruel and unusual punishment.
A. Mootness
In his Complaint, Brooks seeks injunctive and declaratory relief in addition to money damages. Specifically, Brooks asks this Court to order CDOC Defendants to provide him with “reasonable access to research capability, his legal files, and a typewriter/word processor at all times.” [#34 at p.30.] He also seeks an order that CDOC should adhere to library scheduling policies and schedule Brooks accordingly and that they should always make the library physically accessible. [Id.] All of these requests, however, are specific to Brooks' confinement, and Brooks has now been released on parole. Therefore, these requests are moot. Kan. Jud. Review v. Stout, 562 F.3d 1240, 1245 (10th Cir.2009) (“In deciding whether a case is moot, the crucial question is whether granting a present determination of the issues offered will have some effect in the real world. When it becomes impossible for a court to grant effective relief, a live controversy ceases to exist, and the case becomes moot.”); see also Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (once prisoner was released from the prison system, neither declaratory nor injunctive relief would have any effect on defendants' behavior).
Supra note 1.
In his Eighth Amendment claim, Brooks seeks an injunction requiring all CDOC employees to be vaccinated as a work requirement. And he wants CDOC to create a tracking policy for unvaccinated employees so inmates may be warned when these employees enter the prisoner living units. This request for relief is also specific to Brooks' concerns regarding the potential spread of COVID-19 within SCF. Because he no longer resides there, and because he seeks only injunctive relief regarding this claim, the Court also recommends this claim be dismissed. Kan. Jud. Review, 562 F.3d at 1245 (“Article III delimits the jurisdiction of federal courts, allowing us to consider only actual cases or controversies.”).
B. First Amendment Retaliation
In his first claim, Brooks contends Defendants Reynolds, Canfield, and Long retaliated against him in violation of the First Amendment because he filed numerous grievances and lawsuits. [#34 at ¶¶2-11.] “It is well-settled that prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts.” Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018). “[T]he elements necessary for a retaliation claim where the governmental defendant is not the plaintiff's employer nor a party to a contract with the plaintiff” are: (1) the plaintiff was engaged in constitutionally protected activity; (2) the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct. See Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). “[W]hen the plaintiff alleges that the defendant's action was taken in retaliation for protected speech, our standard for evaluating that chilling effect on speech is objective, rather than subjective . . . a trivial or de minimis injury will not support a retaliatory prosecution claim.” Eaton v. Meneley, 379 F.3d 949, 954-55 (10th Cir. 2004) (internal quotation omitted).
There is no question Brooks' conduct of filing grievances and lawsuits is protected under the First Amendment. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (filing grievances is a constitutionally protected activity); Green v. Johnson, 977 F.2d 1383, 1389-91 (10th Cir. 1992) (inmate's allegation that guards destroyed his legal materials in retaliation for filing lawsuits and grievances stated a cognizable First Amendment claim). The Court concludes, however, Brooks' allegations are too vague and conclusory to establish the CDOC Defendants' alleged actions caused any injury.
Brooks alleges CDOC Defendants failed to schedule him for library sessions in contravention of prison policy, and if they had followed the policy, he would have received twice the amount of library hours. [#34 at ¶6.] But Brooks has not alleged any details regarding the circumstances of these denials, such as when he made requests, what the additional library access would have been or enabled him to do, how many hours he ultimately did receive and would have received, or even what tasks he was unable to accomplish due to limited time. As currently pleaded, Brooks' allegations simply amount to a complaint that he didn't receive the hours he wanted. Without more, the Court cannot plausibly infer these Defendants' actions (or inactions) caused any of the alleged injuries.
Further, Brooks' allegations of injury are conclusory and border on legal conclusions masquerading as fact. He states, if not for CDOC Defendants' conduct, his criminal sentence would have been vacated, and he would have been released from prison prior to the onset of the COVID-19 pandemic. [Id. at ¶11.] Such an allegation is “merely consistent” with this element of a retaliation claim. Brooks has not offered supporting factual allegations concerning how or why he would have been released prior to the COVID-19 pandemic, or concerning the particular habeas corpus petition that would have resulted in his release, such as the legal bases he argued or why the petition was ultimately denied and why it would have otherwise been granted. These sorts of details are necessary to push this claim over the line from possible to plausible. Without more, Brooks' contention he would have been released is pure speculation. Consequently, the Court recommends Brooks' claim for First Amendment retaliation be dismissed.
C. Access to Courts
According to Brooks, Defendants' limitations on his library access resulted in his numerous losses in the Colorado court system and the inability to file claims in this district. It is well-established that prisoners have a constitutional right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 828 (1977); Love v. Summit County, 776 F.2d 908, 912 (10th Cir. 1985). Plaintiffs must allege specific facts that demonstrate an actual injury in an ability to pursue a nonfrivolous legal claim or the defense of a criminal case. See Lewis v. Casey, 518 U.S. 343, 349-55 (1996); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (per curiam). An access-to-courts claim may involve either a prison's affirmative duty to assist prisoners in the preparation of initial legal papers or conduct that unduly hinders litigation at any stage of the proceedings. See Vreeland v. Schwartz, 613 F. App' x 679, 683 (10th Cir. 2015). Regardless of the type of claim being asserted, the underlying cause of action that allegedly was lost is an element of such a claim that must “be described well enough to apply the ‘nonfrivolous' test and to show that the ‘arguable' nature of the underlying claim is more than hope.” Christopher v. Harbury, 536 U.S. 403, 415-16 (2002).
Much like Brooks' retaliation claim, this claim lacks a sufficient level of specificity. In discussing his injuries under this claim, Brooks alleges his appeals to the Colorado Supreme Court were dismissed; he received notices of deficiency in those cases; and he was prevented from filing seven separate civil lawsuits. But for three Colorado Supreme Court cases (2019SA279, 202SA161, 202SA223), Brooks only provides the cases numbers and no supporting allegations or facts to demonstrate these matters would qualify as nonfrivolous. Although it is not entirely clear, in his fourth case (2020SA385)-filed directly with the Colorado Supreme Court-Brooks appears to have asserted factual and legal innocence. [#34 at ¶67.] But even assuming the allegations regarding 202SA385 create a plausible inference of a nonfrivolous claim, the Complaint does not plausibly establish Brooks' loss of this state court case is attributable to the CDOC Defendants' alleged conduct. Rather, according to the allegations, the Colorado Supreme Court declined to exercise jurisdiction over 202SA385 because Brooks still had other state remedies available to adjudicate his claims. [Id. at ¶¶41, 42, 67-70.]
Even more to the point, the Complaint alleges no facts concerning the underpinnings of these state cases, but instead merely cites to their case numbers and incorporates them by reference. This is insufficient to plausibly allege facts concerning those underlying causes of action in support of the access-to-courts claim. The Complaint itself must contain sufficient factual allegations to demonstrate it plausibly alleges the asserted claim without requiring the Court or the parties to conduct independent research into these other cases to determine their bases and possible frivolity. See Davis v. Bifani, No. 07-cv-00122-MEH-BNB, 2007 WL 1216518 (D. Colo. Apr. 24, 2007) (“[T]he Court does not believe it is proper to incorporate by reference wholesale allegations in a complaint in a completely separate action. . . . Such a practice violates the requirements of Fed.R.Civ.P. 8(a) requiring a short and plain statement of the claim.”).
With respect to his lost civil claims, Brooks broadly and vaguely alleges he was unable to pursue additional claims regarding his conditions of confinement,
including CDOC forcing Plaintiff to wait 9 days for “emergency surgery” to fix his broken jaw in November 2019, coupled with having a botched first surgery requiring correction and permanent disfigurement; community corrections boards violating Brooks [sic] due process rights; medical officials refusing to provide Plaintiff medical treatment; ongoing ADA violations rising to Eighth Amendment violations; additional retaliation claims stemming from Brooks [sic] prior lawsuits; violation of due process for the State refusing to implement $3.3 million in restitution, which [it] says it may, or may not, impose at some distant future time; and violations of due process for Defendant Williams failing to provide inmates with earned time for their exceptional conduct promoting the safety of fellow inmates, correctional staff, and their communities during this pandemic.[#34 at ¶61.] Apart from this list of theoretical cases, Brooks has not pleaded any supporting factual allegations regarding these claims to demonstrate they are based on anything more than his own confidence in their merit-i.e., Who are the defendants in these proposed claims and what did they do? What ADA violations and when? What were the circumstances of the delayed surgery? What is the nature of the restitution? What were the other instances of retaliation? Etc.
Without allegations of fact supporting these vaguely-alleged cases, the Complaint cannot be said to give fair notice to Defendants, nor can the Court apply the nonfrivolous test. Harbury, 536 U.S. at 416; see also McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001) (an actual injury was not sufficiently alleged because, among other reasons, the plaintiff “did not explain that his legal claim was nonfrivolous”). Because the Complaint fails to plausibly allege an injury, the Court recommends his second claim for relief be dismissed.
Brooks also contends CDOC Defendants' conduct resulted in his loss of settlement money from another of his cases, Brooks v. Tarsadia Hotels, et al., No. 18-cv-02290-GPC-KSC (S.D. Cal.). He originally filed this case in the District of Colorado asserting he was entitled to judgment based on the defendants' failure to inform him of his right to rescind a contract for real property. See Brooks v. Tarsadia Hotels, et al., 17-cv-03172-PAB-KMT (D. Colo.). But access-to-courts claims require a prisoner to demonstrate he “was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (emphasis added). A claim for a private contract dispute does not qualify.
D. Due Process
Prisoners retain rights under the Due Process Clause and cannot be “deprived of life, liberty, or property without due process of law;” but these rights are “subject to restrictions imposed by the nature of the regime to which they have been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The Supreme Court has provided two steps for analyzing procedural due process claims: (1) “whether there exists a liberty or property interest which has been interfered with by the State” and (2) “whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
Brooks alleges that during his 11 years in the custody of CDOC, he has been able to physically access the library at least ten hours per week. Citing Johnson v. Parke, 642 F.2d 377 (10th Cir. 1981), he argues the CDOC's legal access program (as described in the administrative regulations) has created a liberty interest in this access. [#34 at ¶96.] Johnson, however, was decided before the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472, 477-84 (1995), wherein the Court expressly rejected that proposition in the context of prison liberty interests. Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999). “Liberty interests can either arise from the Constitution or be created by state law.” Cordova v. City of Albuquerque, 816 F.3d 645, 656-57 (10th Cir. 2016). Tenth Circuit precedent is clear that there is “no right in the Constitution to unfettered use of a prison library.” Lewis v. Clark, 663 F. App'x. 697 (10th Cir. 2016) (citing Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996)). And Brooks has not cited Colorado law creating an interest in physical access to the library.
Further, Brooks' allegations regarding the library restrictions do not establish an atypical or significant hardship in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 483-84 (although prison regulations “may under certain circumstances create liberty interests” protected by due process, “these interests will be generally limited to freedom from restraint which...imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”) (emphasis added). According to the Complaint, despite not being able to physically go to the library, prisoners can still request legal materials and copies of their documents. [#34 at ¶¶14, 19.] And according to the administrative regulations, it is clear prison librarians and staff are able to review materials saved on the library computers and print those documents that comply with the Legal Access Program Policy. Colorado Department of Corrections AR 750-01 at p.18 (“The facility assistant will review the documents before printing to ensure they comply with program policy.”). While direct access to a computer for legal research and writing might have been preferable to Brooks, prisoners do not have the right to select the method by which library access will be provided. Penrod, 94 F.3d at 1403. The Court concludes the allegations fail to establish a cognizable liberty interest and recommends this claim be dismissed.
Here, and in other of his cases, Brooks cites LePlante v. Pepe, 307 F.Supp.2d 219 (D. Mass. 2004), for the proposition that requiring inmates to request legal materials by specific case citation is unconstitutional. First, this cited opinion is a discussion of the propriety of an attorney's fees award; there is no discussion of the law or any analysis the court used to resolve the case in favor of the prisoner-plaintiff and his access-to-courts claim. Also, even though the background facts are discussed tangentially, it appears the plaintiff in LaPlante had no right to access any legal materials, except cases by their exact citation. Neither the regulations nor the library request form Brooks attached to his Response support his contention that the only legal materials he and other prisoners could request were cases by their specific citation. Finally, this opinion issued from the District of Massachusetts which, while perhaps persuasive, is not binding.
E. Equal Protection
Brooks claims CDOC Defendants violated his equal protection rights because they prevented him from physically accessing the library while allowing other prisoner programs (such as the culinary and welding programs) to function normally. He also alleges inmates in the “cross-fit” program were permitted to have laptop computers while he was not, and he contends inmates on the high-security side of prison were allotted more library hours than those on the low-security side (where Brooks was housed). Brooks does not contend he was discriminated against based on his membership in a protected class. Rather, the Court liberally construes his arguments to implicate a class-of-one analysis.
The Equal Protection Clause requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. A class-of-one equal protection claim requires a plaintiff to allege he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff must establish that he is “similarly situated in every material respect” to the other individuals. Rocha v. Zavaras, 443 Fed.Appx. 316, 319 (10th Cir. Sept. 26, 2011) (quoting Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011)). Plaintiff must also show the difference in treatment was “irrational and abusive” and “wholly unrelated to any legitimate state activity.” Kansas Penn Gaming, 656 F.3d at 1216 (citation omitted); Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir. 1998) (“The allegation that a plaintiff was treated differently from those similarly situated is an essential element of an equal protection action.”).
Here, however, Brooks has not established he was treated differently from other inmates who were like him in all other material respects. Regarding the inmates in other work programs who were allowed to move around the prison, this allegation in and of itself demonstrates they are not similarly situated to Brooks- they had jobs to go to and perform. Nor are there any allegations these prisoners wanted, or were permitted, to physically visit the library on their way to and from work. Likewise, Brooks has not described the inmates in the cross-fit program (or the program itself) with any specificity to determine whether they were similarly situated. And there are no allegations regarding the inmates on the high-security side of the prison. To be sure, their designation as high-security inmates seemingly demonstrates they were not similarly situated in all respect to Brooks, who was classified as a low-security inmate. Because Brooks offers only a formulaic argument that these inmates were “exactly” the same [#57 at p.12], the Court concludes he has failed to allege a viable equal protection claim. Kansas Penn Gaming, 656 F.3d at 1220 (It is insufficient to simply allege that the comparators are in a “comparable” or “similar situation” - “the claim must be supported by specific facts plausibly suggesting [the comparators] are similar in all material respects.”).
The Court recommends dismissal.
F. Eighth Amendment
Finally, even if the Court determines Brooks' Eighth Amendment claim is not barred by mootness, the Court concludes Brooks has failed to state a claim. Brooks contends the CDOC Defendants violated the Eighth Amendment prohibition against cruel and unusual punishment in their handling of COVID-19. He argues that in closing physical access to the law library, the CDOC Defendants increased the risks of COVID-19 because inmates could more easily socially distance in the library. Brooks believes the process of having library assistants walk through the prison to deliver library materials increases everyone's chances of exposure. And he contends that-although some staff have received the COVID-19 vaccines-CDOC's failure to make vaccination mandatory is deliberate indifference to health and safety.
“The Eighth Amendment's prohibition of cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (citation omitted). And it prohibits “unnecessary and wanton infliction of pain, ” including “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Prison officials violate the Eighth Amendment “only if the deprivation to which the prisoner has been subjected is ‘objectively sufficiently serious' and only if the prison official has a ‘sufficiently culpable state of mind.'” Grissom v. Roberts, 902 F.3d 1162, 1174 (10th Cir. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
“In prison-conditions cases that state of mind is one of deliberate indifference to inmate health or safety.” Id. “[P]rison 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. In the context of the COVID-19 pandemic, courts across the country have considered the COVID precautions put in place by facilities when assessing both prongs of the Eighth Amendment analysis. See Peoples v. Long, No. 20-cv-02116-RBJ- NYW, 2020 WL 9076288, at *10-11 (D. Colo. Dec. 16, 2020); Chunn v. Edge, 465 F.Supp.3d 168, 200-04 (E.D.N.Y. 2020).
Accepting that COVID-19 satisfies the objective component, and that Defendants knew of the virus' attendant risks, the Court nevertheless concludes Brooks has failed to establish Defendants disregarded the risks. Brooks admits the CDOC offered, and he (along with other prisoners and staff) received, a COVID-19 vaccine. [#57 at p.14.] The Complaint also acknowledges the library restrictions and lockdown procedures were implemented as a response to the pandemic to reduce the spread of the virus. [#34 at ¶12.] Brooks' theory the closure had the opposite effect is conclusory and unsupported and, even if true, does not automatically warrant finding deliberate indifference. Farmer, 511 U.S. at 844. The allegations in this claim clearly establish Brooks' disagreement with CDOC's chosen COVID-19 procedures, but difference of opinion does not deliberate indifference make. See Grinis v. Spaulding, 459 F.Supp.3d 289, 292 (D. Mass. 2020) (“These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates.”); see also Perkins v. Kan. Dept. of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (a prisoner's disagreement with medical personnel over the course of his treatment does not make out a cause of action under the Eighth Amendment).
The Court recommends this claim be dismissed.
For the foregoing reasons, the Court RECOMMENDS the CDOC Defendants' Motion to Dismiss be GRANTED.
In addition, in his Response, Brooks confirms he intended to remove Nataliya Nickels as a defendant. [#57 at n.1.] Therefore, the Court RECOMMENDS (even if a portion or all of this case proceeds) she be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge and waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).