Opinion
Civil Action No. 16-cv-01387-CBS
07-18-2017
SHEILA RENEE MANNING Plaintiff, v. T. QUICK, Officer, Denver Women's Correctional Facility, TORREZ, Officer, Denver Women's Correctional Facility, A. MORA, Officer, Denver Women's Correctional Facility, Defendants.
ORDER AND OPINION REGARDING DEFENDANTS' MOTION TO DISMISS
This matter comes before the court on a motion to dismiss (Doc. #43) filed on January 3, 2017, by Defendants Quick, Torrez, and Mora ("Defendants"). Plaintiff Sheila Renee Manning ("Plaintiff") filed a Response on February 20, 2017. Doc. #50. Defendants have not filed a Reply in support of their Motion. This case was assigned to the Magistrate Judge pursuant to the Order Drawing Case dated October 5, 2016. Doc. #21. Consent pursuant to 28 U.S.C. § 636(c) was obtained from all parties on July 10, 2017. Doc. #56. The court has carefully considered the motion and related briefing, the entire case file, and the applicable case law. For the following reasons, Defendants' Motion to Dismiss is granted.
The court accepted Plaintiff's voluntary dismissal of five former Defendants who had joined in the motion: Defendants Taylor-Lucas, Timmerman, Davis, Golding, and Johnson. See Doc. #49 (request for dismissal); Doc. #51 (minutes of February 22, 2017 Conference). Although Defendants' Motion was initially a partial motion to dismiss, this court will treat it as a motion to dismiss in the entirety since the Motion, if granted, would result in the dismissal of all remaining claims in the case.
PROCEDURAL HISTORY
Pro se Plaintiff Sheila Renee Manning seeks damages pursuant to 42 U.S.C. § 1983 ("§ 1983") and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-65, on the basis that Defendants (1) used excessive force against her and (2) refused to accommodate her disabilities. See Doc. #20 at 3-6. At the time of these alleged violations Plaintiff was an inmate in the custody of the Colorado Department of Corrections at the Denver Women's Correctional Facility ("DWCF"). Plaintiff filed her original Complaint in this action (Doc. #1) on June 9, 2016, naming Taylor-Lucas, Timmerman, Davis, Golding, Johnson, Quick, Torrez, and Mora as Defendants. Plaintiff simultaneously filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Doc. #2), which Judge Gallagher granted on June 10, 2016. Doc. #5. After being ordered by the court to cure deficiencies she then filed a series of Amended Complaints, culminating in her Fourth Amended Complaint (Doc. #20) which was filed on September 26, 2016 and accepted by the court on October 5, 2016 (Doc. #21).
Plaintiff attempted to retain private representation but was unable to do so. See Doc. #44; Doc. #46. She has never requested the appointment of counsel.
This claim is alleged against Defendants Quick and Torrez, but not Mora.
Plaintiff is no longer in the custody of the Colorado Department of Corrections, having been released on February 28, 2017. See Doc. #52 (notice of change of address filed on March 3, 2017).
Plaintiff alleges the following relevant facts in that Amended Complaint. Plaintiff has had five knee surgeries, and has one knee cap with three screws and no cartilage. Doc. #20 at 5. Plaintiff has also repeatedly alleged that she has "physical and mental disorders" and is "mentally retarded and developmentally delayed." Id. at 3, 10. Plaintiff further alleges that she was denied access to (1) an ADA cell, and (2) an ADA shower and shower chair. Id. at 5. She was also (3) refused an employment position as a porter, (4) not allowed to go to the gym, and (5) forced to use "four flights of stairs" rather than the elevator. Id. While Plaintiff does not specify which Defendants denied which accommodations, she alleges that Mora "refuse [sic] me accomadations [sic] . . . on September 19, 29, 2016," that "Torrez refuses to accomadate [sic] programs on September 12, 13, 19, 20, 2016," and that "Officers Torrez, Mora, Quick . . . refuse me accomadations [sic]." Id. As for her Eighth Amendment claim, Plaintiff alleges that on February 10, 2016, "Officers Quick and Torrez took me back to my cell and pulled my hands through the tray slot with wrist restraints on." Id. at 4. Plaintiff further alleges that Torrez repeated this action on March 11, 2016. Id.
Any factual allegations relating to Defendants Taylor-Lucas, Timmerman, Davis, Golding, and Johnson have been omitted since they are no longer parties to the case.
This was presumably done in the process of removing Plaintiff's restraints.
Defendants Quick, Torrez, and Mora filed their Motion to Dismiss on January 3, 2017. Doc. #43. Quick and Torrez argue that they are entitled to qualified immunity with regards to Plaintiff's excessive force claims since any force they used against Plaintiff did not rise to the level of being "excessive." See Doc. #43 at 9-11. Moreover, all three Defendants argue that Plaintiff has not sufficiently made out an ADA claim against them since she has not specifically alleged that they denied her access to accommodations because of her disability. See id. at 7-8. Because Plaintiff has not filed an official Response to the Motion to Dismiss, the court construes her letter filed on February 17, 2017, (Doc. #50), as her Response. This one page Response does little more than reiterate that she wants to continue pressing her claims against Defendants Quick, Torrez, and Mora, and does not present any supporting case law. See Doc. #50.
Even if there were no response, the court would still have to examine the merits of Plaintiff's Amended Complaint before ruling on the motion to dismiss. See, e.g., Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) ("[E]ven if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.").
STANDARD OF REVIEW
Under 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)). However, 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).
"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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." "The burden is on the plaintiff to frame 'a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556). 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).
Because Ms. Manning is appearing pro se, the court "review[s] [her] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that she has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court's role is not to act as the pro se litigant's advocate); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). Furthermore, the court may, at any time and of its own accord, dismiss any action that is frivolous or which fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); Fed. R. Civ. P. 12(b)(6); Hall v. Bellmon, 935 F.2d 1106, 1108-10 (10th Cir. 1991).
ANALYSIS
Plaintiff alleges that Defendants Quick, Torrez, and Mora violated the ADA by refusing to accommodate her disabilities. See Doc. #20 at 5. Plaintiff also alleges that Quick and Torrez (but not Mora) violated her Eighth Amendment Right by using excessive force against her. Id. at 4. Because Quick and Torrez did not use excessive force against Plaintiff as a matter of law, they are entitled to qualified immunity with regards to these claims. Moreover, Plaintiff has failed to sufficiently allege that Defendants discriminated against Plaintiff on the basis of her disability. Consequently, the court will grant Defendants' Motion to Dismiss.
As an initial matter, the court notes that Judge Gallagher has made a determination as to whether Plaintiff's claims were brought against Defendants in their individual or official capacities. See Doc. #21 (Order, Oct. 5, 2016). Because Plaintiff is pro se, Judge Gallagher allowed her § 1983 claims to proceed against Defendants in their individual capacities and her ADA claims to proceed against Defendants in their official capacities. Id. at 3.
Insofar as Plaintiff seeks money damages against Defendants in their official capacities, her § 1983 claims are barred by sovereign immunity. See, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the state."); Kentucky v. Graham, 473 U.S. 159, 169-70 (1985) ("[A]bsent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a state in federal court. This bar remains in effect when state officials are sued for damages in their official capacity.") (internal citations omitted). Conversely, insofar as she seeks money damages against them in their individual capacities, her ADA claims are barred. See, e.g., Nasious v. Colorado Office of Governor Ritter, No. 09-CV-01051-REB-KMT, 2011 WL 2601015 at *3 (D. Colo. June 29, 2011) ("The proper defendant in a claim under Title II of the ADA is the public entity itself or an official acting in his or her official capacity on behalf of the public entity. Title II does not provide for suit against an official of a public entity in their individual capacity.") (internal citation omitted). See also Hull v. State of New Mexico Taxation and Revenue Department's Motor Vehicles Div., 179 F. App'x 445, 447 (10th Cir. 2006) ("[Plaintiff's] complaint does not specifically indicate whether she was suing [defendant] in her official or individual capacity. Because she is proceeding pro se, we give her the benefit of that doubt."); Golden v. District Attorney, No. CIV-09-1267-D, 2010 WL 2649862 at *1 n.2 (W.D. Okla. May 17, 2010) ("[B]ecause [Plaintiff] is pro se, this court should broadly construe the complaint to include claims in both capacities.").
A. Excessive Force Claims and Qualified Immunity
Under the framework laid out by the Supreme Court, government officials are "shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Consequently, a defendant is entitled to qualified immunity if either (1) the plaintiff's alleged facts do not demonstrate that the defendant violated a constitutional right or (2) it was not clearly established that the defendant's conduct was unconstitutional at the time when it occurred. Pearson v. Callahan, 555 U.S. 223 (2009). Because the facts that Plaintiff alleges cannot establish that Defendants Quick and Torrez used excessive force against Plaintiff, even when construed in the light most favorable to Plaintiff, the court finds that these Defendants are entitled to qualified immunity with regards to the Eighth Amendment claims against them.
Plaintiff alleges that Defendants Quick and Torrez used excessive force against her in violation of the Eighth Amendment when they "pulled [her] hands through the tray slot with wrist restraints on." While it is true that "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. . . . whether or not significant injury is evident . . . . [t]he Eighth Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). Moreover, the Supreme Court has affirmed that "the [Hudson] Court aimed to shift the 'core judicial inquiry' from the extent of the injury to the nature of the force—specifically whether it was nontrivial and 'was applied . . . maliciously and sadistically to cause harm.'" Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (quoting Hudson, 503 U.S. at 7) (emphasis added). Consequently, "an inmate who complains of a 'push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim," since it is likely that only de minimis force was used. Wilkins, 559 U.S. at 38 (quoting Hudson, 503 U.S. at 9); see also Marshall v. Milyard, 415 F. App'x 850, 853 (10th Cir. 2011) ("[E]ven if a use of force is deemed unnecessary after the fact, if it was both de minimus [sic] and 'not of a sort repugnant to the conscience of mankind,' it will not sustain an excessive force claim.") (quoting Hudson, 503 U.S. at 10).
Here Plaintiff has not sufficiently alleged that Quick and Torrez pulled her hands through the slot "maliciously and sadistically" in order to cause her harm. In addition, although "injury and force [] are only imperfectly correlated, and it is the latter that ultimately counts," Plaintiff has not alleged that she received a discernible injury—a fact that weighs heavily against her excessive force claim. Wilkins, 559 U.S. at 38. Most importantly, this court simply cannot find as a matter of law that the mere act of roughly pulling Plaintiff's hands through the tray slot of her cell constitutes any more than a de minimis use of force that is "not repugnant to the conscience of mankind." Thus, Defendants Quick and Torrez are entitled to qualified immunity since Plaintiff has not sufficiently alleged an Eighth Amendment violation and her excessive force claims against them are dismissed.
B. ADA Discrimination Claims
As an initial matter, the court notes that Plaintiff's Amended Complaint does not clearly allege which Defendants were responsible for specific ADA violations. See Doc. #20 at 5. This is dispositive of Plaintiff's ADA claims because—as the court has explained previously—her Amended Complaint must explain (1) what each individual Defendant did to her; (2) when the Defendant did it; (3) how the Defendant's action harmed her; and (4) what specific legal right the defendant violated. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007); Doc. #6 at 3; Doc. #10 at 3-4; Doc. #14 at 4; Doc. #19 at 3; see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) ("[I]t is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her"); Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief"). Plaintiff never connects the ADA violations she alleges with specific Defendants, however. Instead Plaintiff relies on the vague allegations that Defendants "refuse[d] [her] accomadations [sic]," on certain dates without specifying which accommodations were refused on those dates. Doc. #20 at 5. Such broad allegations are not sufficient to state a claim for relief under the ADA.
The one exception is Plaintiff's claim that she was denied employment as a porter. Since this claim was alleged against Golding, who has already been dismissed from the case, however, the court does not address it.
Even if the court were to find that Plaintiff's sweeping statements are specific enough to satisfy Rule 8, Plaintiff still has not alleged an ADA claim against Defendants. 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. Moreover, "[s]tate prisons fall squarely within the statutory definition of 'public entity,' which includes 'any department, agency, special purpose district, or other instrumentality of a State or States or local government.'" Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (quoting 42 U.S.C. § 12131(1)(B)). To establish a claim under Title II of the ADA Plaintiff "must allege that (1) [s]he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of [the prison's] services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of [her] disability." Robertson v. Las Animas County Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007).
Assuming without deciding that Plaintiff has sufficiently alleged that she is a qualified individual with a disability (prong one), her ADA claims against Defendants fail as a matter of law because she has not sufficiently alleged that she was excluded from participation in or denied the benefits of the prison's services, programs, or activities, (prong two), or that Defendants' exclusions or denials were because of her disabilities (prong three). See, e.g., 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 Center of Brooklyn, 280 F.3d 98, 111 (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").
This flaw taints Plaintiff's first, second, and fifth ADA claims.
This flaw taints all of Plaintiff's ADA claims.
1. Access to an ADA Cell
Plaintiff's claims that she was "refused an ADA cell even though [she is] a high fall risk," are insufficient as a matter of law because she does not allege that this refusal was on account of her disabilities. Doc. #20 at 5; see, e.g., Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997) ("The duty to provide 'reasonable accommodations' under the ADA and the Rehabilitation Act arises only when a policy discriminates on the basis of disability."). Moreover, these claims fail the second prong of the Title II test because a prison cell is neither an activity, nor a program, nor a service. See, e.g., Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) ("No discrimination is alleged; [plaintiff] was not treated worse because he was disabled. His complaint is that he was not given special accommodation. . . . But incarceration, which requires the provision of a place to sleep, is not a 'program' or 'activity.' Sleeping in one's cell is not a 'program' or 'activity.'"); Johnson v. Swibas, No. 14-CV-02258-BNB, 2014 WL 5510930 at *3 (D. Colo. Oct. 31, 2014) ("[Plaintiff's] allegation that he was denied a single cell accommodation . . . challenges a medical determination, which does not implicate the ADA."). Consequently, Plaintiff's allegations, even when construed in her favor, cannot show as a matter of law that Defendants' denial of access to an ADA cell violated the ADA.
The court would reach the same conclusion if it were to liberally construe Plaintiff's Amended Complaint as alleging a violation of 28 C.F.R. § 35.152(b)(3). Although this regulation states that:
The court would also reach the same conclusion if it were to liberally construe Plaintiff's claim as one for relief pursuant to 29 C.F.R. § 1630.9—which states that "it is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant"—because § 1630.9 only applies to ADA claims brought under Title I, not Title II. See, e.g., Weinreich, 114 F.3d at 978 n. 1 ("[T]he ADA language requiring 'reasonable accommodations' appears in Title I of the ADA and applies only to employers.").
Public entities shall implement reasonable policies, including physical modifications to additional cells in accordance with the 2010 Standards, so as to ensure that each inmate with a disability is housed in a cell with the accessible elements necessary to afford the inmate access to safe, appropriate housing,28 C.F.R. § 35.152(b)(3), the key phrase is "reasonable policies." Plaintiff does not provide any details about her attempts to obtain an ADA cell and does not allege why she was denied one. Moreover, Plaintiff has never alleged that the prison's policies for assigning ADA cells were unreasonable. Thus, Plaintiff's allegations, without more, cannot sustain an ADA discrimination claim.
Nor can 28 C.F.R. § 35.152(b)(2)'s requirement that "inmates or detainees with disabilities [be] housed in the most integrated setting appropriate to the [their] needs," sustain Plaintiff's claim. Plaintiff has not alleged that she was placed in an inappropriate security classification. 28 C.F.R. § 35.152(b)(2)(i). Plaintiff has likewise not alleged that she was placed in a designated medical area when not receiving medical treatment. 28 C.F.R. § 35.152(b)(2)(ii). Moreover, Plaintiff has not alleged that she was denied access to programs because she was placed in a specific facility. 28 C.F.R. § 35.152(b)(2)(iii). Finally, Plaintiff has not alleged that she was unable to visit with family members because of her housing location. 28 C.F.R. § 35.152(b)(2)(iv). Consequently, Plaintiff has not alleged a violation of 28 C.F.R. § 35.152(b)(2), and her ADA cell claims must be dismissed.
2. Access to the ADA Shower and Shower Chair
Plaintiff's claims that she was "refused [her] accommodation for the ADA shower and shower chair," suffer from many of the same deficiencies. Doc. #20 at 5. ADA showers and shower chairs are special accommodations above and beyond what normal prisoners receive, and consequently are not "programs, services, or activities" protected by the ADA. See, e.g., Evans v. Rozum, No. 07-230J, 2008 WL 5068963 at *10 (W.D. Pa. Nov. 24, 2008) ("[S]howering, defecating, etc. is no more a program or activity than is sleeping. Denial of [plaintiff's] bowel program supplies, his AFO brace, his catheter strap, etc. . . does not constitute a violation of Title II of the ADA as a matter of law."). Even if they were, Plaintiff fails to allege that she was denied access to the ADA shower and shower chairs because of her disability. Consequently these claims must be dismissed since Plaintiff's allegations are insufficient as a matter of law.
3. Employment as a Porter
While this is the one ADA claim that Plaintiff actually connects to a specific Defendant, Plaintiff voluntarily dismissed the specific Defendant that Plaintiff alleges denied her a position as a porter—Defendant Golding. See Doc. #20 at 5; Doc. #49; Doc. #51. Since Golding has already been dismissed from the case, the court will not evaluate the merits of this claim. See supra notes 1, 8.
4. Access to the Gym
While Plaintiff does claim that she was "refused the activities and programs that the other level 2s get such as being allowed to go to the gym during the days we go to the gym," she once again fails to connect the refusal to her disability. See Doc. #20 at 5. 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 and must be dismissed.
5. Denial of an Elevator Pass
Plaintiff likewise fails to allege a discriminatory motive for the denial of an elevator pass. See Doc. #20 at 5. Thus this ADA claim fails as a matter of law for the same reason that her other ADA claims fail; Plaintiff has simply not alleged any facts that would satisfy the requisite third prong of the Title II test. A different result might be warranted if Plaintiff had alleged that she was unable to attend programs or activities because of her placement on the fourth floor. See, e.g., Hernandez v. County of Monterey, 110 F. Supp. 3d 929, 954 (N.D. Cal. Apr. 14, 2015) (holding that "Plaintiffs [] presented a strong, prima facie case that the County Defendants [] violated the ADA" where they "provide[d] significant evidence that Defendants . . . offer[] exercise, religious services, Choices and Pride classes and Narcotics and Alcoholic Anonymous meetings solely in a location inaccessible to inmates who cannot climb stairs, excluding such inmates from those programs."). But Plaintiff has never alleged that she was unable to attend programs. Instead she merely alleges that she was forced to climb stairs rather than take the elevator. See Doc. #20 at 5. This allegation, without an allegation of a discriminatory motive, and without a showing that she was denied access to prison programs, does not state an ADA claim as a matter of law. See, e.g., Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 443 (S.D.N.Y. June 25, 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.")
CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss (Doc. #43) is GRANTED and all remaining claims in the case are DISMISSED WITH PREJUDICE.
While the dismissal of an action "pursuant to Rule 12(b)(6) is a resolution on the merits and is ordinarily prejudicial," where a plaintiff is proceeding pro se, dismissal with prejudice is only appropriate "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 2172, 1275 (10th Cir. 2001); see also Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) ("A dismissal with prejudice is appropriate where a complaint fails to state a claim under 12(b)(6) and granting leave to amend would be futile."). Dismissal with prejudice is appropriate here in light of the fact that (1) Plaintiff has already been given a number of chances to amend her complaint and has failed to allege sufficient facts to support her claims and (2) the inadequacy of Plaintiff's Response heavily suggests that she will not be able to add anything new if given another chance. Consequently, granting leave to amend here would indeed be futile.
DATED at Denver, Colorado, this 18th day of July, 2017.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge