Opinion
Civil Action No. 18-cv-03233-DDD-MEH
04-16-2020
JOHNNY LOPEZ, Plaintiff, v. SARA GONZALES, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant's Motion to Dismiss (ECF 47). Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C.COLO.LCivR 72.1(c), the Motion has been referred to this Court for a report and recommendation. ECF 57.
Plaintiff, proceeding pro se, initiated this action on December 17, 2018 by filing a motion for emergency preliminary injunction and prospective relief. ECF 1. Plaintiff filed the operative Amended Complaint on August 19, 2019, alleging Eighth Amendment claims against Defendants Colorado Department of Corrections and Sara Gonzales. ECF 26. During initial review, the Honorable Lewis T. Babcock accepted and adopted a recommendation that the claim for damages against the Colorado Department of Corrections be dismissed. ECF 33. On January 17, 2020, Gonzales, now the sole Defendant in the case, filed the present Motion to Dismiss arguing that she is entitled to qualified immunity because Plaintiff does not plausibly state a claim for violation of the Eighth Amendment. For the reasons that follow, the Court respectfully recommends that the District Court grant Defendant's Motion.
STATEMENT OF FACTS
The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in his Amended Complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff is presently incarcerated at Larimer County Community Corrections Center ("LCCCC"). At all times relevant to his claim, Plaintiff was incarcerated at the Arkansas Valley Correctional Facility ("AVCF"). While at AVCF, Plaintiff submitted over seventy grievances. He alleges that officials spoke with one another about Plaintiff's filing of grievances, and he suffered reprisals and injury because of the grievances. For example, unit sergeants not named as defendants in this action "retaliated" against Plaintiff by "denying [him] toilet paper when needed, making threats, comments to inmates in the pod in front of everyone about [him] filing grievances and losing his single cell privilege." Am. Compl. 6 ¶ 13, ECF 26.
Defendant worked in Unit 4 at AVCF. During approximately the week of April 22, 2018, Defendant "pointed out" Plaintiff to two inmates as Plaintiff entered the unit and stated, "that's him." Both inmates turned to look and stated, "we heard everything." Plaintiff asked Defendant if there was something he should be aware of and why she had pointed him out to other inmates, but Defendant refused to speak about it. On or about May 7, 2018, the two inmates spread "controverted communication" around the facility. Also on that same date, Defendant pointed out Plaintiff to an inmate in an adjacent cell. That inmate stated, "okay, got it." On or about May 14, 2018, Defendant gestured inmates directly to Plaintiff's cell, and on May 21, 2018, she pointed out Plaintiff to inmates on the second tier of the unit and said, "that one right there." On May 29, 2018, in the "chow hall" Defendant stated, "did you see who they are going to shoot?" and everyone looked. An inmate said, "okay, that one." On June 29, 2018, Plaintiff was moved from Unit 4 to Unit 5, and certain inmates from Unit 4 informed inmates in Unit 5 about Plaintiff, "instructing them to take some action for them." After Defendant started pointing out Plaintiff to other inmates, violent inmates, many of whom were serving life sentences for murder, placed a "hit" on Plaintiff. Other political inmates also got involved, "which resulted in inmates sending information out by phone and mail to others." Id. at 8 ¶ 20. Plaintiff alleges that because of Defendant's communications to inmates, issues escalated, Plaintiff's identity was damaged, and a hit was placed on him. Plaintiff has offered no explanation as to why Defendant "pointed him out."
LEGAL STANDARDS
I. Fed. R. Civ. P. 12(b)(6)
"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.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Supreme Court requires a two-prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations that are legal conclusions, bare assertions, or merely conclusory. Id. at 678-80. Second, the Court must consider the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action," so that "courts 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has made an allegation, "but it has not shown that the pleader is entitled to relief." Id. (quotation and citation omitted).
II. Treatment of a Pro Se Plaintiff's Complaint
A federal court must construe a pro se plaintiff's "pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not 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, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean "if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id. Accordingly, the Court must "not supply additional facts, nor . . . construct a legal theory for plaintiff that assumes facts that have not been pleaded." Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
ANALYSIS
Plaintiff's remaining claim in the case, asserted against Defendant in her individual capacity pursuant to 42 U.S.C. § 1983, alleges a violation of his Eighth Amendment right by engaging in unlawful communication with other inmates on several occasions in April and May 2018 with the intent to cause Plaintiff future harm. Am. Compl. 10-11, ECF 26. Defendant agues that Plaintiff fails state a plausible Eighth Amendment claim and that she is entitled to quailed immunity.
Throughout the allegations in support of Plaintiff's claim against Colorado Department of Corrections, Plaintiff describes negative treatment by prison officials in response to his filing of grievances, see, e.g., Am. Compl. 5 ¶ 8, 6 ¶ 14, and 7 ¶ 16, and explicitly characterizes such treatment as retaliation, see, e.g., id. at 6 ¶ 13. Even if the Court were to construe Plaintiff's Amended Complaint liberally as alleging a First Amendment retaliation claim against Defendant Gonzales as well, Plaintiff's allegations would fail to plausibly state such a claim.
To assert a First Amendment retaliation claim, a plaintiff must allege: (1) he 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 action was substantially motived by the plaintiff's exercise of a constitutionally protected activity. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000); Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007). "[I]t is imperative that [a] plaintiff's pleading be factual and not conclusory. Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922. F.2d 560, 562 n.1 (10th Cir. 1990).
In this case, Plaintiff fails to allege Defendant's actions were substantially motivated by Plaintiff's exercise of his constitutionally protected activity or that they caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity. Worrell, 219 F.3d at 1212. Plaintiff does not allege that Defendant pointed him out to other inmates because he filed grievances about prison staff, as he clearly does about several other prison officials not named as defendants in this case. After noting that Defendant, without more, pointed him out to other inmates, Plaintiff describes sending a letter to the Executive Director of AVCF "in regard to conditions within the facility which included information about staff." Am. Compl. 8 ¶ 22. The fact that Plaintiff continued to raise concerns and levy complaints about prison staff after Plaintiff pointed him out demonstrates that her actions did not chill Plaintiff's speech.
I. Qualified Immunity
Qualified immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly a violation at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity is an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is erroneously permitted to go to trial. Id. at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) ("The privilege is an immunity from suit rather than a mere defense to liability."). The "driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials will be resolved prior to discovery." Pearson, 555 U.S. at 231-23 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). Accordingly, qualified immunity questions must be resolved at the earliest possible stage in litigation." Id. at 232.
When a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). Traditionally, there has been a two-step process for resolving qualified immunity questions: "First, a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right . . . . Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct." Pearson, 555 U.S. at 232 (internal citations and quotations removed)). The Supreme Court affords courts the discretion to decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009).
II. Whether Plaintiff States a Plausible Eighth Amendment Violation
Under the Eighth Amendment, prison officials have a duty to "provide humane conditions of confinement," including "tak[ing] reasonable measures to guarantee the safety of [] inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation omitted). This duty includes "a duty . . . to protect prisoners from violence at the hands of other prisoners." Id. at 833 (internal quotation omitted, alteration in original). "[I]n order to establish a cognizable Eighth Amendment claim for failure to protect, a plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm, the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component." Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). "[D]eliberate indifference entails something more than mere negligence," Farmer, 511 U.S. at 835, and is equal to "recklessness," in which "a person disregards a risk of harm of which he is aware." Id. at 836-37; see also Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (a prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.").
Generally, Plaintiff alleges that Defendant "started pointing [him] out to other inmates where a hit was placed on him by violent inmates, many who are doing life for murder." Am. Compl. 8 ¶ 20. Plaintiff goes on to name the six inmates, "all who were responsible for placing the hit," and allege that "[m]any other political inmates got involved which resulted in inmates sending information out by phone and mail to others." Id. Plaintiff then alleges that at least four times in April and May 2018, Defendant "pointed [him] out" to unidentified inmates at AVCF. During two of these instances, in addition to pointing or gesturing toward Plaintiff, Defendant allegedly stated, "that's him" and "[t]hat one right there." Id. at 10 ¶ 2, 11 ¶ 7. After one such instance, "controverted communication spread around the facility by inmates [Defendant] pointed [Plaintiff] out to." Id. at 11¶ 4. During the final specific incident described by Plaintiff, Defendant "got inmate's attention in the chow hall and stated[,] 'did you see who they are going to shoot?' Everybody looked. Another inmate said, 'okay, that one.' Id. at 11 ¶ 8. Plaintiff does not explicitly allege that Defendant pointed to or otherwise indicated him when she made that statement in the "chow hall." Plaintiff contends that because of Defendant's "unlawful communication to inmates, [i]ssues escalated and [his] identity was damaged, a hit was placed on him by several inmates who communicated information to outside the facility which amounts to cruel and unusual punishment." Id. at 11 ¶ 10.
In the present Motion, Defendant argues that Plaintiff fails to state a plausible Eighth Amendment claim because his allegations do not satisfy either the objective or subjective component of an Eighth Amendment claim. As to the objective component, Defendant argues that "simply pointing out Plaintiff to other inmates, without more, fails to demonstrate an objectively substantial risk of serious harm." Mot. to Dismiss 6, ECF 47. She continues that, as for the subjective component, Plaintiff fails to allege any facts showing Defendant was subjectively aware that simply pointing Plaintiff out, without more, posed any danger to him. Plaintiff responds that the objective component in this case is "being subjected to harm by a hit being placed on him by the Defendant and the inmates she communicated to." Resp. 3, ECF 59. He argues the subjective component was Defendant's "personal intent, knowing the result would be by what she told them and who she told (violent and political inmates)." Id. Defendant replies that the Court should disregard any new factual allegations Plaintiff raises in his Response, the allegations in Plaintiff's Amended Complaint fail to establish a cognizable Eighth Amendment claim, and Plaintiff fails to show that Defendant violated any clearly established right.
A. Plaintiff's Additional Factual Allegations
Plaintiff included a limited number of new factual allegations in his Response which were not included in the operative Amended Complaint. Specifically, Plaintiff alleges that "a hit [was] placed on him by the Defendant," Resp. 3, "the information was dangerous information communicated [by Defendant] to the inmates," id. at 7, "[o]ther inmates [] inform[ed Plaintiff] that [Defendant] disclosed information about him," id., and Defendant "is personally responsible by providing that information . . . knowing that the information is harmful," id. at 8. These allegations differ from those in the Amended Complaint, in which Plaintiff alleges that six violent inmates were responsible for placing the hit on him, Am. Compl. 8 ¶ 20, and does not allege that Defendant communicated any information about him to other inmates.
"While it might be appropriate for a court to consider additional facts or legal theories asserted in a response brief to a motion to dismiss if they were consistent with the facts and theories advanced in the complaint, a court may not consider allegations or theories that are inconsistent with those pleaded in the complaint." Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (citation omitted). On a motion to dismiss, the court's function "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." Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006) (emphasis added); see also Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th Cir. 2008) ("The court . . . is 'limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint.'" (quoting Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995))). Because Plaintiff's additional facts—that Defendant put a hit on him and that Defendant disclosed "dangerous" or "harmful" information about Plaintiff—are inconsistent with the facts pleaded in his Amended Complaint, the Court may not properly consider them in analyzing Defendant's Motion.
The allegations in the Amended Complaint also fail to provide a basis from which the Court could reasonably infer such additional facts. Plaintiff explicitly states that six inmates were responsible for the hit placed on him. He does not allege that Defendant spoke to or pointed him out to any of those individuals, so the Court cannot reconcile Plaintiff's new allegation with the allegation in his Amended Complaint. Plaintiff also fails to allege Defendant communicated any information about him to any other inmate. He claims she stated, "that's him" and "[t]hat one right there." Id. at 10 ¶ 2, 11 ¶ 7. He does allege that sometime after Defendant pointed him out to other inmates, "controverted communication spread around the facility by inmates [Defendant] pointed [Plaintiff] out to." Id. at 11¶ 4. Plaintiff does not, however, allege that the information spread about Plaintiff initiated from Defendant, or otherwise link Defendant to the spreading of this information. Even if the Court were to infer that the inmates spread "controverted communication" that originated from Defendant, Plaintiff does not provide any basis for the Court to infer what this information is, or that it is harmful or dangerous. The Court must "not supply additional facts, nor . . . construct a legal theory for plaintiff that assumes facts that have not been pleaded." Peterson, 149 F.3d at 1143. Despite Plaintiff's contention in his Response that he was told by other inmates that Defendant disclosed information about him and that Defendant spread dangerous and harmful information, Plaintiff failed to include or reasonably imply such allegations in his Amended Complaint.
B. The Objective Component of an Eighth Amended Claim
The Tenth Circuit has made clear that "allegations of a prison officer's deliberate disclosure of dangerous information about an inmate's status are sufficient to state a claim under the Eighth Amendment provided the alleged danger is facially concrete and plausible enough to satisfy basic pleading standards." Brown v. Narvais, 265 F. App'x 734, 736 (10th Cir. 2008) (citations omitted).
Courts have examined various categories of information that, purposefully disclosed, could support an Eighth Amendment claim. In Brown, for example, the court held that the allegations that the defendant deliberately disclosed the plaintiff's status as a child molester, knowing such label would subject the plaintiff to serious bodily harm, was sufficient to state a claim under the Eighth Amendment. Id; see also Robledo-Valdez v. Dick, No. 16-CV-00192-MSK-KLM, 2017 WL 1190560, at *5 (D. Colo. Mar. 31, 2017) (denying a motion to dismiss an Eighth Amendment claim in which the prisoner-plaintiff alleged the defendant purposefully disclosed his parole sheet and status as a sex offender to another prisoner). It is also well-established that labeling a prisoner a "snitch" and communicating that information to other inmates, despite an officer's awareness of the obvious danger associated with such a reputation, can support an inmate's Eighth Amendment claim. Benefield, 241 F.3d at 1271; see also Northington v. Marin, 102 F.3d 1564, 1567 (10th Cir. 1996); see also Johnson-Bey v. Ray, 38 F. App'x 507, 510 (10th Cir. 2002) (plaintiff's allegations that correctional officer intentionally told another inmate that plaintiff had tried to set him up for a disciplinary violation in order to place plaintiff in danger stated an Eighth Amendment violation). "[D]isseminating humiliating but penologically irrelevant details of a prisoner's medical history," such as HIV-positive status may also provide the basis for an Eighth Amendment claim. Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 810 (10th Cir. 1999).
In this case, Plaintiff makes no allegation that Defendant disclosed information about him to other inmates, let alone dangerous information that would create an objectively substantial risk of serious harm. Plaintiff's allegations are that Defendant pointed him out to other inmates and stated, "that's him." Although he mentions that "controverted communication spread around the facility," he does not allege such information came from Defendant. Brown, 265 F. App'x 734, 736 (10th Cir. 2008) ("We do not hold that prison personnel may be liable for failing to prevent harmful disclosures about a prisoner from other sources." (emphasis in original)). Even inferring that the "controverted" information originated from Defendant, Plaintiff gives no indication what that information was or that it was dangerous information about his status. Unlike instances in which officers purposely disclose an inmate's parole sheet, fabricate and disseminate rumors that an inmate is a "snitch," disclose an inmate's role as a witness in a trial, or apply any other "incendiary badge of prison infamy," id. at 735, Plaintiff's allegations do not plausibly describe a deliberate disclosure of dangerous information sufficient to state an Eighth Amendment claim.
Defendant argues that "[a]t most, [her] actions may constitute harassment," but such threats do not rise to the level of constitutional violation. Mot. 7. The Court agrees. Plaintiff alleges that Defendant repeatedly pointed him out to other inmates but makes no allegation that Defendant incited inmates to harm him. Even construing her conduct in repeatedly pointing out Plaintiff to other inmates as "harassment" would not be sufficient to state a plausible Eighth Amendment claim. See McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001) ("However, acts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment."); Alvarez v. Gonzales, 155 F. App'x 393, 396 (10th Cir. 2005) ("Mere verbal threats or harassment do not rise to the level of a constitutional violation unless they create 'terror of instant and unexpected death.'"); Quintana v. Doe, No. 09-cv-00946-CMA-KLM, 2010 WL 2650052, at *4 (D. Colo. June 30, 2010) ("[B]eing subjected to threats of abuse or the vague possibility of assault from other inmates is not sufficiently serious to give rise to an Eighth Amendment violation.").
Even taking all reasonable inferences in Plaintiff's favor, the Court finds the Plaintiff's allegations that Defendant repeatedly pointed him out to other inmates, without more, fails to plausibly demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm. Plaintiff himself seems to acknowledge he is under no risk of imminent harm in his response, stating: "Offenders at [LCCCC] talk about [Plaintiff] having a hit on him and his identity. Just because an action has not been taken yet . . . it does not mean that [Plaintiff] is free from risk if the right person comes around." Resp. 9 (emphasis added). Therefore, Plaintiff fails to plausibly allege the objective component of an Eighth Amendment claim, and the Court need not address whether Plaintiff's allegations plausibly allege the subjective component. For the foregoing reasons, the allegations in the Amended Complaint fail to state a claim that Defendant's actions violated Plaintiff's Eighth Amendment rights and, accordingly, Plaintiff fails to carry his burden under the first prong of qualified immunity.
III. Leave to Amend
Dismissal of a case under Fed. R. Civ. P. 12(b)(6) is "a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir. 1989) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)). As such, in this jurisdiction, a court typically does not dismiss a claim under Fed. R. Civ. P. 12(b)(6) until the plaintiff has been provided notice and an opportunity to amend the complaint to cure the defective allegations. See Bellmon, 935 F.2d at 1109-10. Notably, the Court may only dismiss "sua sponte when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing [them] to amend [their] complaint would be futile." Id. (quoting McKinney v. Okla., 925 F.2d 363, 365 (10th Cir. 1991)).
Plaintiff initiated this matter by filing a motion titled "Plaintiff Motion for Emergency Preliminary Injunction and Prospective Relief" (ECF 1). Plaintiff was directed to cure the deficiencies with his motion and submit a complaint. ECF 3. On March 7, 2019, Plaintiff filed the initial complaint in this case, alleging fifteen claims against twenty-four named Defendants. ECF 11. During the initial review of Plaintiff's case, Magistrate Judge Gordon P. Gallagher issued a twenty-one page order informing Plaintiff his pleading was deficient and explaining why. ECF 18. The Order contained guidance for Plaintiff on Section 1983 claims generally, as well as several Eighth Amendment claims Plaintiff had alleged in his original complaint. See, e.g., id. at 3, 8-11. This Order also addressed deficiencies in Plaintiff's pleading of an Eighth Amendment claim against Defendant Gonzales for "point[ing] him out to 2 black inmates." Id. at 14. The court determined that "Plaintiff may state an arguable Eighth Amendment claim" but "because [he] is no longer incarcerated at the facility where this occurred, and there is likely no longer an ongoing or future threat of harm, Plaintiff must clarify the relief being sought." Id. (emphasis added).
Plaintiff filed the operative Amended Complaint on August 19, 2019, alleging claims against the Colorado Department of Corrections and Defendant Gonzales. Several times since filing, Plaintiff has expressed an intent to further amend his pleading. For example, less than a month later, on September 13, 2019, Plaintiff filed his objection to the recommendation of Judge Gallagher that his claims against the Colorado Department of Corrections be dismissed. ECF 31. In that document, Plaintiff moved "to amend as a matter of course." See id. at 4. Plaintiff filed his Response to the present Motion, titled "Plaintiff's Response to Defendant's Motion to Dismiss; Plaintiff's Motion for Appointment to Pro Bono Representation; and Plaintiff's Notice to file an Amended Complaint as a Matter of Course," on March 12, 2020. ECF 59. In the document's conclusion, Plaintiff states, "[b]ecause [Plaintiff] is not a professional of the Law and had proceeded pro se, he asks t[he] Court to allow him to submit an Amended Prisoner Complaint as a [m]atter of [c]ourse pursuant to Fed. R. Civ. P. 15(a)(1)(B) to include a more definite statement in his Prisoner Complaint to state a valid claim upon which relief can be granted." Id. at 9. The document is not signed, in contravention of Fed. R. Civ. P. 11, and pursuant to D.C.COLO.LCivR 7.1(d), "[a] motion shall not be included in a response or reply" brief. Additionally, Plaintiff does not provide a copy of a proposed amended or supplemental pleading, as required by D.C.COLO.LCivR 15.1(b). The same day as filing his Response, Plaintiff also filed a "Notice to File an Amended Complaint as a Matter of Course." ECF 60. In that document, Plaintiff requested no relief of the Court and attached no proposed amended pleading.
At the direction of and with instruction from the Court, Plaintiff has already amended his pleading in this case. Despite repeatedly expressing an intention to amend his pleading throughout a six-month period, Plaintiff never properly moved for leave to do so and never provided the Court with a proposed amended pleading. Further, the additional facts Plaintiff supplied in his Response—e.g. that Defendant communicated "dangerous" information about Plaintiff to other inmates, Resp. at 7—are too conclusory for the Court to infer that granting Plaintiff leave to amend his pleading would not be futile. Accordingly, the Court recommends that the District Court deny Plaintiff leave to amend his Amended Complaint in this action.
CONCLUSION
Plaintiff fails to allege that he is incarcerated under conditions posing a substantial risk of serious harm and, thus, he fails to state a plausible violation of his Eighth Amendment rights. Therefore, Defendant is entitled to qualified immunity. Accordingly, the Court respectfully recommends that the District Court grant Defendant's Motion to Dismiss [filed January 17, 2020; ECF 47].
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
Dated at Denver, Colorado, this 16th day of April, 2020.
BY THE COURT:
/s/
Michael E. Hegarty
United States Magistrate Judge