Opinion
Civil Action 19-cv-02679-DDD-NYW
06-14-2021
DEAN D. HACKBORN, Plaintiff, v. JEREMIAH HANSEN, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang, United States Magistrate Judge.
This matter comes before the court for recommendation on Defendant Captain Jeremiah Hansen's (“Defendant” or “Captain Hansen”) Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Rule 12(b)(6) (“Motion to Dismiss” or “Motion”) [#35], filed October 27, 2020. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated August 7, 2020 [#28], and the Order Referring Motion dated November 4, 2020 [#36].
This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having carefully reviewed the Motion and associated briefing [#38; #42], the docket, and applicable law, this court respectfully RECOMMENDS that Defendant's Motion to Dismiss be GRANTED. 1
BACKGROUND
I. Procedural History
Plaintiff Dean D. Hackborn (“Mr. Hackborn” or “Plaintiff”), who is mobility impaired and confined to a wheelchair, initiated this action by filing his pro se Letter on September 18, 2019. See [#1]. Following several orders to cure noted deficiencies, e.g., [#3, #8, #15, #17], Mr. Hackborn filed his operative Third Amended Complaint, therein alleging various constitutional claims and violations of the Americans with Disabilities Act (“ADA”) against various defendants. See generally [#20]. The Honorable Gordon P. Gallagher granted Plaintiff leave to proceed in forma pauperis [#7], and recommended that only Mr. Hackborn's ADA claims against Captain Hansen proceed. [#24 at 5-6]. Mr. Hackborn claims that Captain Hansen was deliberately indifferent to Plaintiff's safety by making Plaintiff wait outside for the canteen and then “writing up” Plaintiff for “an ADA issue” that resulted in Plaintiff's transfer to another correctional facility. 2
Because Mr. Hackborn proceeds pro se, this court affords his papers and filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Consistent with this principle, at times, the court will quote from Mr. Hackborn's filings without the use of [sic] or the correction of spelling or syntax. But the court cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), 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); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).
Mr. Hackborn initiated suit with a letter to the court. [#1]. He has subsequently filed three “Amended Complaints, ” the last of which is the operative pleading that was the subject of Magistrate Judge Gallagher's Recommendation. [#5, #10, #16, #24]. This court refers to the operative pleading as the “Third Amended Complaint.”
In his July 14, 2020 Recommendation to Dismiss in Part and Draw Case, Magistrate Judge Gallagher construed Mr. Hackborn's allegations against Captain Hansen as claims for discrimination and retaliation in violation of Title II of the ADA. See [#24]. With respect to Captain Hansen, Magistrate Judge Gallagher construed the allegations as claims that Captain Hansen: (1) was deliberately indifferent to Plaintiff's safety by changing policy about how long Plaintiff had to wait outside to access the canteen; and (2) “wrote up” Plaintiff due to an ADA issue, resulting in Plaintiff's subsequent transfers, where he was threatened by other inmates. [Id. at 2-3 (citing [#20 at 5, 7])].
The Honorable Lewis T. Babcock adopted the Recommendation and drew Mr. Hackborn's ADA claims to the Honorable Daniel D. Domenico, who has since referred this matter to the undersigned. See [#26, #28].
On October 27, 2020, Defendant moved to dismiss the Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. [#35]. Following an extension of time to do so [#37], Plaintiff responded [#38] and Defendant replied [#42]. The Motion to Dismiss is thus ripe for recommendation.
This court notes that Judge Gallagher's Recommendation construing the Third Amended Complaint focuses on Mr. Hackborn's allegations with respect to a policy change affecting how long he had to wait outside to access the canteen, see [#24 at 2, 5-6 (citing [#20 at 5, 7])], and does not expressly address Mr. Hackborn's allegations concerning lack of access to the gym, weight pile, library, or chow hall, see, e.g., [#20 at 6]. Nevertheless, for the sake of completeness, I address all of the foregoing allegations.
The following facts are drawn from Plaintiff's Third Amended Complaint and are, unless otherwise noted, taken as true for purposes of the instant Motion to Dismiss.
To be sure, the Third Amended Complaint is “not a model of clarity, ” [#24 at 2], but this court nevertheless affords the pleading a liberal construction.
Mr. Hackborn is currently in the custody of the Colorado Department of Corrections (“CDOC”). [#20]. In late April or May 2020, he was incarcerated at the CDOC's Limon Correctional Facility (“LCF”). [Id. at 7]. Prior to his arrival at LCF, Plaintiff was briefly incarcerated at Fremont Correctional Facility (“FCF”) upon his late-April 2020 transfer from the Buena Vista Correctional Facility (“BVCF”), where he was incarcerated for at least three years. [Id. at 5, 7].
Construed liberally, the Third Amended Complaint asserts that Captain Hansen, a CDOC employee, changed a policy impacting the length of time Mr. Hackborn had to wait outside to 3 access the canteen at BVCF. [#20 at 5, 7]. See also [#24 at 5-6]. Plaintiff was also kept from the gym, “weight pile, ” and library at BVCF. [#20 at 6]. Specifically, in the three years that Plaintiff was incarcerated at BVCF, he was never able to use the gym because it was “always full” [id.]; prisoners often had to wait one-and-a-half to two hours to use the weight pile and “hope you could get in” [id.]; and the library was “sometime[s] [too] full” [id.]. Plaintiff also alleges that prisoners would “have to wait” at the chow hall because “75-125 in front all time” [id.].
While it is not clear from the Third Amended Complaint the precise meaning of this allegation, this court concludes based on context that Mr. Hackborn alleges that the line for the chow hall was 75- to 125-inmates long.
Mr. Hackborn alleges that Defendant retaliated against him for an unspecified ADA issue discussed between Plaintiff and Captain Hansen on September 6, 2019 between 10:35 and 10:54 a.m., during which Captain Hansen stated to Plaintiff that “he did not care about us being put in danger.” See [#20 at 4, 5, 7]. Sometime shortly thereafter, Plaintiff was asked to move to “A pod, ” which he refused to do for gang-related safety concerns. [Id. at 7]. Upon Plaintiff's A-pod refusal, he was transferred from a “minimum side” to “high side” unit for approximately 4.5 hours, at which point he was sent back to minimum side. [Id.]. When a shift commander told Plaintiff that he would be moving back to minimum side, he also promised Plaintiff that, if he “did what [he] was told there would be no write up.” [Id.]. Plaintiff returned to minimum side and “did what [he] was to do.” [Id.].
On April 21, 2020, Mr. Hackborn was transferred to FCF, where his wheelchair could not fit through facility doors. [#20 at 7]. At some time thereafter, Plaintiff was transferred to LCF, where he was “threatened by inmates . . . [who] want to hurt [him].” [Id.]. 4
LEGAL STANDARDS
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, 134 S.Ct. 2334, 2341 (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.” The Wilderness Soc. v. Kane Cty., Utah, 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) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
II. Rule 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, 129 S.Ct. 1937, 1949 (2009). See also Robbins v. Oklahoma, 5 519 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). Should the court receive and consider materials outside the complaint, the court may convert a Rule 12(b)(6) motion to a motion for summary judgment if the parties have notice of the changed status and the nonmovant responded by supplying its own extrinsic evidence. See Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004). However, a district court may consider legal arguments contained in a brief in opposition to dismissal or documents referred to in the complaint that are central to a plaintiff's claim, without converting the Rule 12(b)(6) motion into a summary judgment motion, if the Parties' do not dispute their authenticity. See Cty. of Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). In addition, the court may consider documents subject to judicial notice, including court documents and matters of public record. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
ANALYSIS
Defendant moves to dismiss the Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. While Defendant neither invokes Eleventh Amendment sovereign immunity nor argues that the same precludes Mr. Hackborn's remaining claims, this court raises the issue sua sponte. Given that sovereign immunity, if applicable, would deprive this court of federal subject matter jurisdiction over this action, I will begin by analyzing Eleventh Amendment sovereign immunity and this court's subject matter jurisdiction. 6
I. Subject Matter Jurisdiction
Eleventh Amendment sovereign immunity implicates this court's subject matter jurisdiction. See, e.g., Havens v. Colo. Dep't of Corrs., 897 F.3d 1250, 1259 (10th Cir. 2018) (discussing the relationship between Eleventh Amendment immunity and jurisdictional issues); Wood v. Milyard, 414 Fed.Appx. 103, 105 (10th Cir. 2011) (“State sovereign immunity is more than immunity from liability-it actually deprives federal courts of subject-matter jurisdiction.”) (citing Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)); United States v. Orenduff, 548 F.3d 931, 941 (10th Cir. 2008) (noting that the “Eleventh Amendment immunity doctrine . . . contain[s] traits more akin to subject-matter jurisdiction”). Defendant states in his Motion to Dismiss that he “expressly does not waive any . . . sovereign immunity defense, ” despite not raising any argument concerning the same in the instant Motion, because he is “unable to determine at this time whether an Eleventh immunity [sic] defense might be applicable in this case, and he still [sic] analyzing whether the Eleventh Amendment bars Mr. Hackborn's claim for damages here.” [#35 at 2-3 n.1]. Notwithstanding Defendant's failure to assert Eleventh Amendment immunity, this “court may raise the issue of Eleventh-Amendment immunity sua sponte” though, “unlike subject-matter jurisdiction, it is not obligated to do so.” Orenduff, 548 F.3d at 942 (citations omitted); Stewart v. Mountainland Tech. Coll., No. 20-CV-00086-JNP, 2021 WL 794488, at *5 (D. Utah Mar. 2, 2021) (observing that the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has ruled that while courts need not raise Eleventh Amendment immunity sua sponte, once effectively asserted, such immunity constitutes a bar to the exercise of federal subject matter jurisdiction”). 7
In any event, 28 U.S.C. § 1915A(b)(2) provides that a court may dismiss a claim brought by a prisoner proceeding in forma pauperis at any time if it determines the claim is frivolous, fails to state a claim, or seeks monetary damages against a defendant who is immune from such relief. See Brenda Anderson Charity v. Cty. of El Paso, No. 16-cv-00921-NYW, 2017 WL 1435852, at *7 n.7 (D. Colo. Apr. 21, 2017) (dismissing the plaintiff's official capacity claims for monetary damages against defendants pursuant to 28 U.S.C. § 1915A(b)(2)).
Eleventh Amendment Immunity .
The Eleventh Amendment to the United States Constitution provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State, ” U.S. Const. amend. XI, and its concept of sovereign immunity bars suits against states absent an express, unambiguous waiver or abrogation by Congress, see, e.g., Wood, 414 Fed.Appx. at 105; Edelman, 415 U.S. at 662-63. Sovereign immunity extends to state agencies if they are “arms of the state, ” Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir. 1993) (en banc) (internal quotation marks and citation omitted), and the Tenth Circuit has expressly held that the CDOC is such an agency, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). Sovereign immunity also extends to CDOC officials sued in their official capacities for monetary damages. Edelman, 415 U.S. at 664-67; Bueno v. Chekush, 355 F.Supp.3d 987, 997 (D. Colo. 2018).
Here, Plaintiff's remaining claims are asserted against Captain Hansen in his “official capacity only” as a CDOC official and seek retrospective relief in the form of monetary damages. See [#20 at 9 (emphasis in original)]. Absent express waiver or congressional abrogation, sovereign immunity thus bars Plaintiff's claims. See Wood, 414 Fed.Appx. at 105 (“Colorado's sovereign immunity deprives us of subject-matter jurisdiction over the claims against the CDOC and the official-capacity claims for retrospective relief against the individual Defendants.”). Accordingly, I turn next to consider whether Congress has expressly and unambiguously abrogated sovereign immunity for Plaintiff's claims. 8
Has Congress validly abrogated sovereign immunity for ADA claims?
Despite Congress's intent to abrogate the States' Eleventh Amendment immunity under the ADA, see Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64, 373-74 (2001) (concluding 42 U.S.C. § 12202 expressed Congress's intent to abrogate Eleventh Amendment immunity, but holding that it was not a valid exercise of Congress's enforcement powers under § 5 of the Fourteenth Amendment for purposes of a Title I claim for monetary damages against a state), the ADA does not include an unequivocal abrogation of the States' Eleventh Amendment immunity, see Levy v. Kan. Dep't of Soc. & Rehab. Servs., 789 F.3d 1164, 1171 (10th Cir. 2015) (concluding that the Rehabilitation Act's Eleventh Amendment immunity waiver provision does not apply to the ADA). But, in United States v. Georgia (“Georgia”), 546 U.S. 151 (2006), the Supreme Court of the United States considered “whether a disabled inmate in a state prison may sue the State for money damages under Title II of the [ADA].” Id. at 153. There, a paraplegic state inmate challenged the conditions of his confinement under both the Eighth Amendment of the United States Constitution and Title II of the ADA, alleging the defendants excluded him from utilizing the jail's hygienic, medical, mobility, and other services because of his disability, which also violated his Eighth Amendment rights. See Id. at 155-57. The Court found these allegations plausible to establish a discrimination claim under Title II and “were evidently based, at least in large part, on conduct that independently violated the provisions of § 1 of the Fourteenth Amendment.” Id. at 157. The Court therefore held, “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” Id. at 159 (emphasis in original).
In determining whether a plaintiff may pursue monetary damages against a state for violations of Title II, the Supreme Court articulated three factors to guide the inquiry: 9
1. which aspects of the State's alleged conduct violated Title II;
2. to what extent such misconduct also violated the Fourteenth Amendment; and
3. if the misconduct did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.Guttman v. Khalsa, 669 F.3d 1101, 1113 (10th Cir. 2012) (quoting Georgia, 546 U.S. at 159). In other words, absent any alternative basis to support the validity of Congress's purported abrogation of sovereign immunity, Mr. Hackborn must allege an actual violation of the Fourteenth Amendment to overcome the Eleventh Amendment's bar against suit under the ADA.
Plaintiff fails to allege an actual Fourteenth Amendment violation.
Assuming for purposes of the court's sovereign immunity analysis that Plaintiff has adequately pled an ADA violation, this court respectfully concludes that Plaintiff fails to allege conduct that actually violates the Fourteenth Amendment.
Mr. Hackborn alleges that, as a result of a change of policy implemented by Defendant, Plaintiff had to wait in a line outside-sometimes in cold weather-to access the canteen. [#20 at 5]. Mr. Hackborn may also be alleging that Captain Hansen implemented policies that caused him to be intermingled with the general population during mealtime, thus putting him in danger. [Id.]. He further alleges that Defendant retaliated against him for an unspecified ADA issue discussed between Plaintiff and Captain Hansen on September 6, 2019 between 10:35 and 10:54 a.m. See [#20 at 4, 7]. The alleged retaliation includes asking Plaintiff to move to “A pod, ” which he refused to do for gang-related safety concerns (but not disability issues) [id. at 7]; upon Plaintiff's refusal, transferring him from a “minimum side” to “high side” unit for approximately 4.5 hours before transferring him back to minimum side [id.]; later transferring Plaintiff to FCF in April 2020 [id.]; 10 and then transferring Plaintiff to LCF, where he has been “threatened by inmates . . . [who] want to hurt [him]” [id.].
As discussed in greater detail in Section II.B, Plaintiff fails to allege that Captain Hansen was involved in any of the transfers or decisions related to the same. See infra pages 22-25.
Such allegations do not satisfy the “exacting” standard under the Fourteenth Amendment, under which the “[c]hallenged actions must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience-shocking.” See Lindsey v. Hyler, 918 F.3d 1109, 1115-16 (10th Cir. 2019) (citations, quotations, and alterations omitted); see also Carbajal v. Falk, No. 19-cv-01387-PAB-NYW, 2020 WL 9078333, at *7-8 (D. Colo. Oct. 27, 2020) (placing pro se prisoner plaintiff in danger by transferring him to a specific prison unit where rival gang members were housed, ignoring prisoner's requests for a transfer due to perceived danger, and confiscating prisoner's belongings, failed to constitute an actual Fourteenth Amendment violation as necessary to validly abrogate state sovereign immunity for purposes of a Title II ADA claim), report and recommendation adopted in relevant part sub. nom., Leal v. Falk, 2021 WL 1186662, at *3 (D. Colo. Mar. 29, 2021). Indeed, even “[i]ntentionally or recklessly causing injury through the abuse or misuse of governmental power is not enough.” Onyx Props. LLC v. Bd. of Cty. Comm'rs of Elbert Cty., 838 F.3d 1039, 1049 (10th Cir. 2016).
Even taking Mr. Hackborn's factual allegations as true and reading them liberally, such allegations fail to suggest that Captain Hansen's operation of the canteen line or Mr. Hackborn's various transfers constitute an “atypical and significant hardship in relation to the ordinary incidents of prison life, ” Al-Turki v. Tomsic, 926 F.3d 610, 616 (10th Cir. 2019) (ellipsis and internal quotation marks omitted); cf. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (finding atypical and significant hardship where the inmate was subjected to indefinite solitary 11 confinement, 24-hour lighting, minimal exercise, and disqualification from parole eligibility). Nor do Plaintiff's allegations rise to the level of those pleaded in Georgia, which included that the inmate was confined in his cell up to 24 hours per day, during which he could not turn his wheelchair around; he could not use the toilet or shower without assistance that was routinely denied; he was forced to sit in his own urine and feces because jail personnel refused to assist in cleaning up waste; and he was denied medical treatment and other jail services. Georgia, 546 U.S. at 155, 157.
Finally, absent from the Third Amended Complaint are any allegations that Mr. Hackborn was treated differently than similarly-situated inmates that may otherwise support a Fourteenth Amendment equal protection violation. See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216-19 (10th Cir. 2011) (explaining that general allegations that others were similarly situated yet treated differently is insufficient to plead a plausible equal protection claim). Indeed, Mr. Hackborn's allegations suggest that he was not treated differently because of his disability. Due to a policy change, the length of time Mr. Hackborn had to wait outside to access the canteen at BVCF increased-it follows that an increased wait time was the result of a longer line for the canteen. Absent any additional allegations to suggest a situation unique to disabled inmates or Mr. Hackborn, it appears that his experience was one shared by the general inmate population at BVCF. Mr. Hackborn further fails to allege that any policy resulting in the long lines and wait times from which he was not exempted was not rationally related to a legitimate interest, and “‘the States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such an individual are rational.'” Guttman v. Khalsa, 669 F.3d 1101, 1116 (10th Cir. 2012) (quoting Garrett, 531 U.S. at 367). 12
Ultimately, even taken as true and unrebutted for the purposes of the instant Motion to Dismiss, Plaintiff's allegations do not establish an actual violation of the Fourteenth Amendment and it does not appear that Congress otherwise validly abrogated state sovereign immunity for such conduct. Cf. Georgia, 546 U.S. at 155, 157 (noting that Congress validly abrogated state sovereign immunity based on allegations of deliberate refusals to accommodate “disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs” because such conduct, in the aggregate, likely violated Title II as well as § 1 of the Fourteenth Amendment). Thus, the Eleventh Amendment bars Plaintiff's claim for monetary damages under the ADA against Defendant in his official capacity because Plaintiff fails to plead ADA violations that also violate the Fourteenth Amendment. See Id. at 157. Given that sovereign immunity bars all of Plaintiff's remaining claims, this court lacks subject matter jurisdiction over the same. Accordingly, I respectfully RECOMMEND that Plaintiff's Third Amended Complaint be DISMISSED without prejudice for lack of subject matter jurisdiction.
Dismissal on sovereign immunity grounds must be without prejudice. Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1 v. City of Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir. 2011). See also Webb v. Utah, 706 Fed.Appx. 470, 474 (10th Cir. 2017) (noting that dismissal for lack of subject matter jurisdiction should be without prejudice) (citing Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)).
Notwithstanding my conclusion that Plaintiff's claims are barred by sovereign immunity, I turn next to consider the merits of Defendant's Motion to Dismiss. 13
Ordinarily, a court cannot proceed to the merits of a claim if it concludes that the court lacks subject matter jurisdiction over the same. See, e.g., Colorado Outfitters Ass'n v. Hickenlooper (“Colorado Outfitters II”), 823 F.3d 537, 543 (10th Cir. 2016) (“A federal court can't ‘assume' [subject matter jurisdiction] in order to proceed to the merits of the underlying claim, regardless of the claim's significance.”); Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005) (holding that once a federal court determines that it is without subject matter jurisdiction, it must not proceed to consider any other issue). But because this court proceeds by Recommendation, and for the sake of completeness, I next consider Plaintiff's ADA claims under Rule 12(b)(6) standards.
II. Failure to State a Claim
Plaintiff's remaining claims are asserted under the ADA for discrimination and retaliation, respectively. Defendant seeks to dismiss both claims pursuant to Federal Rule of Civil Procedure 12(b)(6). I consider the merits of each claim, in turn.
A. Discrimination under Title II of the ADA
First, this court sets forth the legal standard applicable to Plaintiff's discrimination claim. Then, I consider whether the new allegations proffered by Plaintiff, or the allegations from non-operative pleadings and extrinsic evidence relied on by Defendant, may be factored into this court's assessment. Only upon defining the scope of this court's review do I then turn to whether Plaintiff's discrimination claim survives dismissal.
1. Legal Standard
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim, Plaintiff must allege (1) that he is a qualified individual with a disability; (2) that he was “either excluded from participation in or denied the benefits of some entity's services, programs, or activities, or was otherwise discriminated against by the public entity, ” and (3) “that such exclusion, denial of benefits, or discrimination was by reason” of his disability. J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295 (10th Cir. 2016). Prisons are “public entities” covered by Title II of the ADA, see Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007); Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), and the Tenth Circuit has held that “meaningful access and the question of whether accommodations are reasonable must be assessed through the prism of the prison 14 setting, ” Havens, 897 F.3d at 1269 (citing Turner v. Safley, 482 U.S. 79, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d. 64 (1987)). See also 28 C.F.R. § 35.152(a), (b)(1).
While courts have recognized disparate treatment, disparate impact, and failure to make a reasonable accommodation as the three ways by which a plaintiff may establish a discrimination claim, see J.V., 813 F.3d at 1295, a plaintiff seeking monetary damages under Title II must show intentional discrimination, see Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228-29 (10th Cir. 2009); accord Hans v. Bd. of Shawnee Cty. Comm'rs, 775 Fed.Appx. 953, 956 (10th Cir. 2019); J.V., 813 F.3d at 1298 n.6 (recognizing the applicability of the definition of intentional discrimination set forth in Barber to a plaintiff's ADA claims). The Tenth Circuit has recognized that “‘intentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.'” J.V., 813 F.3d at 1298 (quoting Barber, 562 F.3d at 1228-29) (further citations omitted). “Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that . . . likelihood.” Id. (quoting Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)). The failure to act must be “more than negligent” and involve “an element of deliberateness.” Barber, 562 F.3d at 1228.
2. Allegations and Evidence Outside the Third Amended Complaint
In arguing for dismissal of Plaintiff's discrimination claim, Defendant relies almost exclusively on allegations set forth in Plaintiff's original, non-operative Complaint, [#35 at 5-7 (citing [#5 at 7-8])], but omitted from the operative pleading. Compare [#5] with [#20]. The allegations are derived from a copy of a memorandum dated September 19, 2019 and attached to Plaintiff's First Amended Complaint. See [#5 at 7-8]. The memorandum is not attached to or referenced in the Third Amended Complaint. See generally [#20]. Indeed, Defendant's arguments 15 are devoid of any reference to the operative Third Amended Complaint-the very pleading the instant Motion seeks to dismiss. See [#35 at 5-7].
In his Response, Mr. Hackborn also includes several allegations that do not appear in his Third Amended Complaint. Compare [#20] with [#38]. For example, Plaintiff alleges-for the first time in his Response-that (a) the “double fence” and controlled movements at BVCF were “under the control of Jeremiah Hansen, ” [#38 at ¶ 2]; (b) Captain Hansen informed him in the gym that Captain Hansen was responsible for changes to yard time and suspension of an “ADA pull” on September 5, 2019 [id. at ¶ 3]; and (c) Captain Hansen's policy changes meant that all 300 inmates went to the chow hall, yard, and gym at once, both placing Plaintiff in danger in the chow line because people were in front and behind him, and preventing Plaintiff from using the gym and weight pile because they were always full [id. at ¶ 3].
Mr. Hackborn also reiterates his allegation that Defendant told him on September 6, 2019, between 10:40 and 10:55 a.m., that Plaintiff “had no rights, ” and references-for the first time- a document provided to him by Captain Hansen that “stat[es] the same, ” and asserts that the court also has this document. [#38 at ¶ 1]. In Reply, Defendant identifies this document as the “Offender Communication” attached to Plaintiff's Second Amended Complaint, and copies the Offender Communication in the body of his Reply brief. [#42 at 2 (citing [#10 at 14])]. Defendant asserts that the document is “explicitly part of Mr. Hackborn's complaint” pursuant to Federal Rule of Civil Procedure 10(c) [id. at 3 & n.1], which provides that “‘a copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes, ” [id. at 3 n.1 (quoting Fed.R.Civ.P. 10(c))].
First, I find the Parties' reliance on allegations in a superseded pleading misplaced. See May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019) (“The amended complaint, as the operative 16 complaint, supersedes the original complaint's allegations . . . .”) (emphasis omitted); Bejar v. McDonald, 601 Fed.Appx. 628, 231 (10th Cir. 2015) (“We may not rescue [the plaintiff] from [his operative pleading's] purported deficiencies by resorting to different allegations in a prior, superseded complaint.”); Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (“[A]n amended complaint super[s]edes an original complaint and renders the original complaint without legal effect.”) (internal quotation marks omitted). And absent a recognized exception to the rule, “a federal court may only consider facts alleged within the complaint” when ruling on a Rule 12(b)(6) motion. See Pub. Serv. Co. of N.M., 311 F.3d at 1035.
None of the recognized exceptions to the rule apply here. On Rule 12(b)(6) motions to dismiss, a court “may consider in addition to the complaint, documents incorporated by reference into the complaint . . . and documents plaintiff[] relied upon in bringing suit.” Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir. 2013). Because this Motion involves a Rule 12(b)(6) dismissal, the court is permitted to draw the facts from the Third Amended Complaint; “from exhibits submitted with it or incorporated by reference; and from ‘documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.'” Davis v. BAE Sys. Tech. Sols. & Servs., Inc., 764 Fed.Appx. 741, 742 n.1 (10th Cir. 2019) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
But here, none of the facts discussed in the instant Motion are alleged in the Third Amended Complaint, and there is nothing to suggest that the memorandum cited in Defendant's Motion to Dismiss [#35 at 7 (quoting [#5 at 7-8])], or the Offender Communication copied into Defendant's Reply [#42 at 2], were submitted as exhibits to, incorporated by reference by, or referred to in Plaintiff's operative pleading. Compare [#35] and [#42] with [#20]. And absent any argument from the Parties, this court does not find that the documents are central to Mr. Hackborn's 17 allegations in his operative Third Amended Complaint. Cf. Davis, 764 Fed.Appx. at 742 n.1 (considering extrinsic evidence after finding that the “parties do not dispute the authenticity of those documents, and they are central to [the plaintiff]'s claims because . . . [he] drew many of the allegations in the Amended Complaint from them, sometimes verbatim and often without identifying the source”). I therefore do not consider the facts or documents presented by Defendant in the instant Motion and his Reply which are not encompassed by the Third Amended Complaint.
Similarly, neither Plaintiff's newly asserted allegations set forth in his Response, nor the information contained in the Offender Communication referenced therein, appear in the Third Amended Complaint, and Mr. Hackborn cannot amend his pleading through his Response to the instant Motion to Dismiss. See [#20]; Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)). Accordingly, this court does not pass on the new allegations set forth in Plaintiff's Response, or the contents of the Offender Communication cited therein, in considering whether Plaintiff's discrimination claim survives dismissal.
Even if the Third Amended Complaint could be construed to include allegations about the documents such that the court could find that the same were incorporated by reference into the pleading, this court would still find that Mr. Hackborn has failed to state a claim.
Having thus determined the scope of its review, this court turns now to “assess whether [Mr. Hackborn's] complaint alone is legally sufficient to state a claim for which relief may be granted.” See Hogan, 453 F.3d at 1252.
3. Application
Defendant moves to dismiss Mr. Hackborn's Title II claims because he fails to allege the third prong of his claims-i.e., that Captain Hansen intentionally denied Mr. Hackborn access to prison services, programs, or activities because of his disability. See [#35 at 5-8]. In other words, 18
Defendant argues that Plaintiff fails to allege facts sufficient to show that he intentionally discriminated against Mr. Hackborn. [Id.]. In so doing, Defendant relies on allegations set forth in and a memorandum attached to Plaintiff's First Amended Complaint to show “the antithesis of an intent to exclude Mr. Hackborn from participating in a program by reason of his disability.” [Id. at 7]. As previously explained, the First Amended Complaint is not the operative Complaint in this action and thus, this court finds Defendant's arguments premised on the superseded pleading misplaced. Nevertheless, this court finds that the Third Amended Complaint fails to allege facts from which a reasonable inference of Captain Hansen's discriminatory motive could be drawn. See 28 U.S.C. § 1915A(b)(2) (a court may dismiss a claim brought by a prisoner proceeding in forma pauperis at any time if it determines the claim is frivolous or fails to state a claim).
To start, I assume without deciding that Mr. Hackborn is a qualified individual with a disability and that the BVCF canteen, weight pile, library, chow hall, and gym constitute services, programs, or activities for purposes of Title II. See Yeskey, 524 U.S. at 210, 118 S.Ct. 1952 (noting that the phrase “services, programs, or activities” in 42 U.S.C. § 12132 includes recreational, medical, educational, and vocational prison programs). Even still, Plaintiff's discrimination claim against Defendant fails to state a cognizable claim because he has not sufficiently alleged that he was excluded from participation in or denied the benefits of the prison's services, programs, or activities (prong two), or that Defendant's exclusions or denials were because of his disabilities (prong three). See, e.g., Manning v. Quick, No. 16-cv-01387-CBS, 2017 WL 3034624, at *5 (D. Colo. July 18, 2017) (granting prison official's motion to dismiss prisoner's ADA claims); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (“The final prong of the test requires the plaintiff to present some affirmative evidence that disability was a determining factor in the [defendant's] decision.”); Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 111 19 (2d Cir. 2001) (“[A] private suit for money damages under Title II of the ADA may only be maintained . . . if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability.”).
Canteen Access.
First, Mr. Hackborn has never alleged that he was unable to access the canteen. Instead, he merely alleges that he was forced to wait in line for longer periods of time, outside and in cold weather, before he was able to access the same. [#20 at 5, 7]. Moreover, Plaintiff does not allege that he was forced to wait in these long lines because of his disability. The closest Plaintiff gets to alleging intentional discrimination is that, due to policy changes implemented by Captain Hansen, Plaintiff had to wait outside in cold temperatures for longer periods of time to access the canteen. [Id. at 5]. But he does not elaborate on this statement and, without more, his allegations do not support an inference of intentional discrimination. For example, Plaintiff does not allege that he was required to wait outside in cold temperatures while other inmates were not. Nor does he allege that his disability rendered his outside wait times in any way unique.
Plaintiff also alleges that he was unable to use the gym, weight pile, or library at BVCF because these facilities were either “always full” or required long wait times. [#20 at 6]. But he does not elaborate on these statements either. For example, Plaintiff does not allege that only disabled individuals were unable to use the facilities because of capacity limits or wait times. Nor does he allege any facts from which this court could infer that Plaintiff's disability renders him unable to use a full gym or endure a long wait time without modifications specific to him.
Insofar as Mr. Hackborn's claims come closer to alleging an intentional failure to accommodate, his claims still fall short. Plaintiff must allege facts showing that Captain Hansen's failure to accommodate was intentional. See Hans, 775 Fed.Appx. at 956. It is not clear from Plaintiff's Third Amended Complaint whether he had meaningful access to the canteen and simply wanted accommodations in the form of line-skipping or some equivalent, nor does it appear that 20 he requested such accommodations at BVCF or that his need for a line-skipping accommodation was obvious. See J.V., 813 F.3d at 1299 (noting that the plaintiffs failed to request an accommodation or show that the need for an accommodation was obvious).
The same is true with respect to Mr. Hackborn's access to the weight pile, library, and chow hall. See [#20 at 6].
These allegations, without an allegation of a discriminatory motive, and without a showing that he was denied access to the canteen, do not state an ADA claim as a matter of law. See, e.g., Manning, 2017 WL 3034624, at *5; Carrasquillo v. City of New York, 324 F.Supp.2d 428, 443 (S.D.N.Y. 2004) (“Plaintiff's claim fails because it does not allege that Plaintiff was prevented from participating in or benefiting from prison programs and services because of his disability. When an ADA claim does not state that a plaintiff was excluded from a prison service or program because of his disability, it must be dismissed.”). Absent from the operative pleading is any information as to whether this waiting requirement was applicable to only disabled inmates, only Mr. Hackborn, or to the prison population more generally. See generally [#20]. Thus, Mr. Hackborn has not alleged facts from which this court may infer that he was required to wait in a long line for the canteen by reason of his disability. Rather, based on the allegations in the Third Amended Complaint, Plaintiff's challenges appear to be shared by all BVCF inmates.
Weight Pile, Library, and Chow Hall Access.
Insofar as Mr. Hackborn's discrimination claim may be read to include allegations that he was denied access to the weight pile, library, and/or chow hall, his claim still fails for the same reasons set forth above. See supra notes 12-13. Plaintiff alleges that he often had to wait for long periods of time and/or in long lines to access these services. [#20 at 6]. He alleges neither that he was prevented altogether from accessing them, 21 nor that he was effectively denied their benefit. [Id.]. Plaintiff's allegations are therefore insufficient to state a claim under the ADA.
Gym Access.
Finally, I note that I would reach the same conclusion with respect to the allegations that Mr. Hackborn was unable to use the gym because it was always at maximum capacity. “While Plaintiff does allege that he was “ke[pt]” from the BVCF gym because it was “always full, ” he once again fails to connect his inability to access the gym to his disability. [#20 at 6]. A different result might be warranted if Plaintiff had alleged that he was unable to access the gym before it reached capacity because of his wheelchair or mobility. See, e.g., Manning, 2017 WL 3034624, at *5 (noting a different conclusion might be reached if the plaintiff had alleged that she was denied access to certain prison programs because of her location on a different floor of the prison); Hernandez v. Cty. of Monterey, 110 F.Supp.3d 929, 954 (N.D. Cal. 2015) (holding that the plaintiffs “presented a strong, prima facie case that the [defendants] violated the ADA” where defendants offered prison services and programs “solely in a location inaccessible to inmates who cannot climb stairs, excluding such inmates from those programs”). But again, Plaintiff alleges only that he was unable to access the gym because it was always full. [#20 at 7]. “This bald assertion, standing alone, is not sufficient to satisfy the third prong of a Title II ADA claim since it does not allege a discriminatory animus. Consequently, Plaintiff's gym-access claim also fails as a matter of law[.]” Manning, 2017 WL 3034624, at *6.
Accordingly, Plaintiff fails to plead a plausible ADA discrimination claim. Therefore, if Judge Domenico reaches the merits of the instant Motion, I respectfully RECOMMEND that Defendant's Motion to Dismiss be GRANTED as to Plaintiff's ADA discrimination claims. 22
B. Retaliation under the ADA
Defendant argues for dismissal of Plaintiff's retaliation claim for failure to plead a retaliatory motive. [#35 at 8-10]. But in so doing, Defendant recites the legal standard applicable to a First Amendment retaliation claim. See [id. at 8 (citing Nielander v. Bd. of Cty. Comm'rs, 582 F.3d 1155, 1165 (10th Cir. 2009); Bertolo v. Shain, No. 17-cv-0773-RM-KLM, 2020 WL 2365245, at *13 (D. Colo. Feb. 27, 2020) (applying Nielander to inmate's First Amendment retaliation claim))]. This is not the standard applicable to retaliation claims brought under the ADA. Compare Id. (First Amendment retaliation claim) with Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010) (ADA retaliation claim).
The ADA's anti-retaliation provision, which applies to but is not specifically contained in Title II, provides:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.42 U.S.C. § 12203. To state a prima facie case for retaliation under the ADA, Mr. Hackborn must show (1) that he engaged in protected activity; (2) that he suffered a materially adverse action by Captain Hansen; and (3) a causal connection between his protected activity and the adverse action taken by Captain Hansen. See Reinhardt, 595 F.3d at 1131 (noting that because the anti-retaliation provisions in the Rehabilitation Act and ADA are functionally the same, courts analyze claims under either statute using the same framework). With respect to the third element, a “[c]ausal connection may be established by producing evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Id. (internal quotation omitted). 23
Application .
Defendant argues that Plaintiff “has not alleged specific facts showing that Captain Hansen was even involved in this ultimate transfer to the Limon Correctional Facility, let alone that he ordered that transfer with retaliatory motive.” [#35 at 9]. According to Defendant, “nothing in Mr. Hackborn's allegations shows a sufficient nexus between Captain Hansen and the decision to transfer [Plaintiff].” [Id. at 9-10] (emphasis omitted). Insofar as Defendant argues that Plaintiff fails to allege a causal connection between the alleged protected activity and retaliatory conduct, this court respectfully agrees.
Even assuming that Plaintiff has plausibly alleged facts showing the first two elements of his ADA retaliation claim, he fails to plausibly allege causation. The only allegations with respect to Captain Hansen concern the early-September 2019 conversation and write-up. Specifically, Plaintiff alleges that Defendant retaliated against him for an unspecified ADA issue discussed between Plaintiff and Defendant on September 6, 2019 between 10:35 and 10:54 a.m., during which Defendant stated to Plaintiff that “he did not care about us being put in danger.” See [#20 at 4, 5, 7]. But Mr. Hackborn's allegations concerning his subsequent series of transfers fail to support an inference of Defendant's involvement in the decisions to transfer Plaintiff. Instead, Mr. Hackborn merely alleges that sometime after his write up from and conversation with Captain Hansen in early September 2019, he was asked (by an unidentified person) to move to “A pod, ” which he refused to do for gang-related safety concerns. [#20 at 7]. Upon his A-pod refusal, Plaintiff was transferred from a minimum to high side unit for approximately 4.5 hours, at which point he was sent back to minimum side. [Id.]. When a shift commander told Plaintiff he would be moving back to minimum side, he also promised that, if Plaintiff “did what [he] was told there 24 would be no write up.” [Id.]. Plaintiff returned to minimum side and “did what [he] was to do.” [Id.]. Then, on April 21, 2020, Mr. Hackborn was transferred to FCF. [#20 at 7]. Finally, Mr. Hackborn was later transferred to LCF, where he was “threatened by inmates . . . [who] want to hurt [him].” [Id.].
It is not clear from the Third Amended Complaint to whom “us” is meant to refer. This ambiguity leaves unanswered whether “us” encompasses inmates with disabilities, all BVCF inmates, or some other group of individuals.
Notably, none of the transfers alleged by Plaintiff include any indication that Captain Hansen was directing the same. See Hennagir v. Utah Dep't of Corr., 587 F.3d 1255, 1267 (10th Cir. 2009) (“To establish causation in an ADA retaliation action, however, a plaintiff must also demonstrate that the individual who engaged in a materially adverse action knew about the protected activity.”). The closest Plaintiff comes to connecting Defendant to the transfers is his allegation at the conclusion of his Statement of Claims that Captain Hansen “keep[s] putting 56 year old wheel[chair] bound inmate in danger.” [#20 at 7]. And even if Plaintiff had alleged that any of his transfers were initiated at Defendant's direction, it is unclear whether the transfers were in close proximity to his protected activity. Indeed, the only temporal context provided with respect to events after the September 2019 conversation is Plaintiff's allegation that-more than six months later-he was transferred from BVCF in April 2020. See Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1191 (10th Cir. 2016) (noting that a plaintiff may establish causation for an ADA retaliation claim where the alleged misconduct closely follows the alleged protected activity); accord Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007) (holding that a four-month time gap was too large to establish a causal connection). Without more, Plaintiff fails to allege that his protected activity was the but-for cause of Defendant's alleged retaliation. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1209 (10th Cir. 2018) (explaining that causation for purposes of an ADA retaliation claim “must be based on more than mere speculation, conjecture, or surmise” (internal quotation marks omitted)). See also Carbajal, 2020 WL 9078333 at *14-15 25 (recommending dismissal of prisoner's retaliation claim for failure to plausibly allege causation), adopted in relevant part sub nom., Leal v. Falk, 2021 WL 1186662, at *4 (D. Colo. Mar. 29, 2021). Accordingly, Plaintiff fails to plead a plausible ADA retaliation claim. Therefore, if Judge Domenico reaches the merits of the instant Motion, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED as to Mr. Hackborn's ADA retaliation claim.
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that: (1) Defendant Jeremiah Hansen's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Rule 12(b)(6) [#35] be GRANTED; and 26 (2) Plaintiff Dean D. Hackborn's Amended Complaint be DISMISSED without prejudice.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and 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. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
“Dismissal [with prejudice] of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (quotation and citation omitted). Defendant does not specify whether he seeks dismissal of Plaintiffs claims with or without prejudice, and the court declines to craft such arguments, particularly given that Defendant has been represented by able counsel since the inception of this action. See United States v. Davis, 622 Fed. App'x 758, 759 (10th Cir. 2015) (“[I]t is not this court's duty, after all, to make arguments for a litigant that he has not made for himself”). Therefore, even if Judge Domenico reaches the merits of the instant Motion, I respectfully recommend that the dismissal of Mr. Hackborn's claims be without prejudice.
Additionally, IT IS ORDERED that:
(1) A copy of this Recommendation, marked as legal mail, be sent to the following:
Dean Hackborn #130945 Arrowhead Correctional Center P.O. Box 300 Canon City, CO 81215-0300
Case Manager for Dean Hackborn #130945 Arrowhead Correctional Center P.O. Box 300 Canon City, CO 81215-0300 27