Opinion
Civil Action No. 19-cv-01612-RM-KMT
04-27-2020
COLVIN THOMAS, Plaintiff, v. DEPUTY ROGERS #16004, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Before the court is "Defendant Rogers' Motion to Dismiss Plaintiff's Amended Prisoner Complaint (ECF No. 13) Pursuant to Fed. R. Civ. P. 8, 12(b)(6), and 42 U.S.C. § 1997e." (["Motion"], Doc. No. 26.) No response has been filed to the Motion, and the time to do so has lapsed.
STATEMENT OF THE CASE
Pro se Plaintiff Colvin Thomas, a pretrial detainee at the El Paso County Criminal Justice Center ["CJC"], brings this action under 42 U.S.C. § 1983, asserting violations of his First, Eighth, and Fourteenth Amendment rights by a CJC employee, Defendant Deputy Rogers #16004. (Prisoner Compl. ["Complaint"], Doc. No. 13 at 1-4.) Plaintiff alleges that, on February 20, 2019, while he was in CJC custody, Deputy Rogers unlawfully retaliated against him for attempting to file a grievance complaint, and then used "excessive force," by "forcefully shov[ing]" him into a cell, "pulling" his arm, and "punch[ing]" him "repeatedly" in the face. (Id. at 4.) Plaintiff further alleges that, after he "was already submitted on the ground," Deputy Rogers "jumped knee first into [his] back and waited to call any codes." (Id.)
Plaintiff also named El Paso County Criminal Justice Center as a defendant in the lawsuit. (See Doc. No. 1 Ex. 2 at 6-9.) However, upon removal, and after an initial screening under 28 U.S.C. § 1915A, Plaintiff's claims against El Paso County Criminal Justice Center were dismissed, as legally frivolous. (Doc. No. 19 at 5-7.)
On June 27, 2019, Plaintiff filed an Amended Prisoner Complaint in this action, asserting the following causes of action against Deputy Rogers, in his individual capacity only: (1) a First Amendment retaliation claim; (2) an Eighth Amendment excessive force claim; and (3) Fourteenth Amendment due process claims. (Id. at 3-4.) As relief, Plaintiff seeks damages for "future medical expenses for [his] back and shoulders;" for "mental and emotional distress for humiliation and embarrassment;" and for "the extra 62 days" of confinement that he reportedly incurred due to this incident. (Id. at 6.)
Deputy Rogers now moves to dismiss the claims asserted against him, pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that Plaintiff has failed to plausibly allege the elements of those claims. (Mot. 7-12.) Defendant also moves to dismiss the Amended Prisoner Complaint, in its entirety, on the basis that Plaintiff failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. (Id. at 5-6.) In the alternative, Deputy Rogers contends that he is entitled to qualified immunity from all claims asserted against him. (Id. at 13-14.) Finally, Defendant argues that Plaintiff is not entitled to compensatory damages, as a matter of law, because he "fails to plead facts supporting physical injury under the PLRA." (Id. at 14.)
STANDARDS OF REVIEW
A. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a court may not "supply additional factual allegations to round out a plaintiff's complaint"); 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"). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). B. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). "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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 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 Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers 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 a claim survives the motion to dismiss. Id. at 679.
At the same time, however, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S at 678. Moreover, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Tellabs, Inc, 551 U.S. at 322; Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 F. App'x 691, 693 (10th Cir. 2003).
Here, Defendant has attached an affidavit from CJC Inmate Classification Supervisor, Elizabeth O'Neal, to show that Plaintiff did not exhaust his administrative remedies prior to filing this lawsuit. (See Mot. 6, Ex. A.) However, the court sees no need to consider the exhibit submitted by Defendant, and thereby convert the motion to dismiss into a motion for summary judgment. See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) ("[C]ourts have broad discretion in determining whether or not to accept materials outside the pleadings.").
ANALYSIS
A. Retaliation
In the Amended Prisoner Complaint, Plaintiff alleges that Deputy Rogers violated his First and Fourteenth Amendment rights by "not allowing" him to "put in a grievance" concerning Deputy Rogers previously "threatening" him. (Compl. 4.) Plaintiff further alleges that, after he "asked to put in a grievance," Deputy Rogers "forcefully shoved" him into his cell, and later "enter[ed] [his] cell using excessive force by pulling [his] arm and repeatedly punch[ing] [him] in [the] face." (Id.)
The First Amendment prohibits prison officials from retaliating against inmates for exercising their constitutional rights. Fogle v. Pierson, 435 F.3d 1252, 1263-64 (10th Cir. 2006) (quoting Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)); see Poole v. Cty. of Otero, 271 F.3d 955, 960 (10th Cir. 2001), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006) ("Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights."). This protection applies equally to pretrial detainees, such as Plaintiff. See Allen v. Avance, 491 F. App'x 1, 5-6 (10th Cir. 2012).
The required elements of a First Amendment retaliation claim are: "(1) that the plaintiff was engaged in constitutionally protected activity; (2) that 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) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct." Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018) (quoting Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007)).
In this case, as to the first element, Plaintiff alleges that he attempted to file an administrative grievance, an action which the Tenth Circuit has unequivocally held to be constitutionally protected activity. See Requena, 893 F.3d at 1211 ("The filing of prison grievances is constitutionally protected activity."); Dawson v. Audet, 636 F. App'x 753, 755-56 (10th Cir. 2016) ("[O]fficials may not retaliate against prisoners for filing administrative grievances."); see also Allen, 491 F. App'x at 6 (finding a pretrial detainee satisfied the first element of his First Amendment retaliation claim, where he alleged that the defendant placed him in a "drunk tank" for several days in retaliation for his filing grievances protesting jail policies and conditions). Therefore, Plaintiff has satisfied the first element of his First Amendment retaliation claim.
The second element considers whether Deputy Rogers's alleged retaliatory conduct "would chill a person of ordinary firmness from continuing to engage in [constitutionally protected] activity." Requena, 893 F.3d at 1211. "This objective inquiry is 'not static across contexts,' but rather must be 'tailored to the different circumstances in which retaliation claims arise.'" Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999); see Eaton v. Meneley, 379 F.3d 949, 955 (10th Cir. 2004) (explaining that the standard for evaluating the chilling effect on speech is "objective, rather than subjective"). The injury alleged may be "no more tangible than a chilling effect." Rogers v. Garcia, No. 08-cv-02821-WYD-MJW, 2010 WL 3547432, at *4 (D. Colo. Sept. 3, 2010) (quoting Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001)).
Here, Plaintiff alleges that Deputy Rogers retaliated against him by "forcefully shov[ing]" him into his cell, and then subsequently "pulling [his] arm," "punch[ing] his face, and "jump[ing] knee first into [his] back." (Compl. 4.) These allegations of physical harm can be fairly read to show action that "would chill a person of ordinary firmness" from further engaging in constitutionally protected activity. See Allen, 491 F. App'x at 6 ("The prospect of punishment severe enough to satisfy the Eighth Amendment is sufficient to 'chill a person of ordinary firmness' from exercising his constitutional rights."); Van Deelen v. Johnson, 497 F.3d 1151, 1157 (10th Cir. 2007) (holding that "allegations of physical and verbal intimidation," including threats of physical harm, "would surely suffice . . . to chill a person of ordinary firmness").
The third element "requires the plaintiff to allege specific facts that, if credited, establish that 'but for' the defendant's improper retaliatory motive 'the incidents to which he refers, including the disciplinary action, would not have taken place.'" Allen, 491 F. App'x at 6 (quoting Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)); see Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) ("It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury.") (emphasis in original). "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." Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (quoting Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990)). "The specific factual allegations must 'nudge [the plaintiff's] claims across the line from conceivable to plausible.'" Guy v. Lampert, 748 F. App'x 178, 180 (10th Cir. 2018) (quoting Requena, 893 F.3d at 1205) (alterations in original). "To make a prisoner's claim of retaliation by a prison official plausible, it must be supported by (1) specific facts about the adverse action taken against the prisoner to make it plausible that the action was not motivated by legitimate grounds and (2) specific facts showing why the particular official would be motivated to improperly harm the prisoner." Guy, 748 F. App'x at 181. Relevant factors include: (1) whether the defendant was aware of the protected activity; (2) whether the plaintiff directed his administrative grievance to the defendant's actions; and (3) whether the alleged retaliatory act "was in close temporal proximity to the protected activity." Gee, 627 F.3d at 1189. However, "temporal proximity between [protected activity] and the alleged retaliatory conduct, without more, does not allow for an inference of retaliatory motive." Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th Cir. 2014).
In this case, Plaintiff alleges no specific facts from which to discern that his attempt to file a grievance was the "but for" cause of Deputy Rogers' alleged misconduct. In the Amended Prisoner Complaint, Plaintiff alleges that he sought to "put in a grievance for [Deputy Rogers] threatening" him, but claims that Deputy Rogers did not "allow[]" him to do so. (Compl. 4.) Plaintiff further alleges that, after he "asked to put in a grievance," Deputy Rogers "forcefully shoved" him into his cell. (Id.) However, Plaintiff alleges no facts regarding the substance of his intended grievance, the nature of the alleged "threat" made by Deputy Rogers, or the temporal proximity between his attempt to file a grievance and Deputy Roger's alleged retaliatory actions. Nor has Plaintiff alleged any facts to suggest that Deputy Rogers "forcefully shoved" him, specifically because he attempted to file a grievance. See Nielander v. Bd. of Cty. Comm'rs, 582 F.3d 1155, 1165 (10th Cir. 2009) ("A plaintiff's subjective beliefs about why the government took action, without facts to back up those beliefs, are not sufficient" to establish retaliatory motive.); Friedman v. Kennard, 248 F. App'x 918, 922 (10th Cir. 2007) (affirming the dismissal of an inmate's First Amendment retaliation claim, where the inmate failed to allege more than temporal proximity between protected activity and retaliation).
Indeed, in the Amended Prisoner Complaint, Plaintiff appears to concede that, at the time of the incident, he was "being unruly." (See Compl. 4-5.) Specifically, in one section of his complaint, Plaintiff alleges that Deputy Rogers "waited to call any codes" until after he "was already submited [sic] on the ground." (Id. at 4.) Plaintiff alleges, in a different section of his complaint, that the El Paso County Criminal Justice Center failed to "enforc[e] that their employees call in the proper codes when or if [an] inmate is being unruly." (Id. at 5.) These allegations, when read taken together, suggest that Deputy Rogers used physical force against Plaintiff in an effort to maintain and restore discipline, as opposed to retaliation for Plaintiff's attempt to file a grievance. See Smith v. Nelson, 618 F. App'x 436, 439 (10th Cir. 2015) (affirming the dismissal of a prisoner's retaliation claim, where the prisoner "presented nothing to suggest that [the prison officials] disciplined him as retaliation for his filing of a grievance—rather than due to their very real perception of his words as a threat"); Milligan v. Archuleta, No. 11-cv-00250-PAB-KLM, 2013 WL 5878032, at *5 (D. Colo. Nov. 1, 2013) (finding that a plaintiff did not "adequately connect the loss of his job to the filing of his grievance" for purposes of stating a retaliation claim, because the allegations suggested that the plaintiff "could have been fired from his work for any number of reasons"); see also Bell v. Wolfish, 441 U.S. 520, 547 (1979) (explaining that prison officials "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security").
Further, to the extent Plaintiff seeks to bring a claim under the Due Process Clause of the Fourteenth Amendment based on these allegations, he has failed to do so. To state a claim for a due process violation, a prisoner must show: (1) he was deprived of a protected interest in life, liberty, or property; and (2) he was not afforded the appropriate level of process. Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012). It is well-settled that a jail's grievance procedure does not give rise to a liberty interest that is subject to constitutional due process protection. See Boyd v. Werholz, 443 F. App'x 331, 332 (10th Cir. 2011) ("[T]here is no independent constitutional right to state administrative grievance procedures. Nor does the state's voluntary provision of an administrative grievance process create a liberty interest in that process.") (internal citations omitted); Johnson v. Richins, 438 F. App'x 647, 649 (10th Cir. 2011) ("Mr. Johnson's claim that Ms. Casper mishandled his prison grievances does not implicate any due-process rights."); Freeman v. Knight, No. 04CV00148MSKPAC, 2005 WL 1896245, at *6 (D. Colo. Aug. 8, 2005) ("[A]ccess to a grievance procedure is not a right protected by the Due Process Clause of the Fourteenth Amendment.").
For those reasons, Plaintiff has failed to plausibly allege any claim under the First or Fourteenth Amendments, arising from his attempt to file a grievance. Accordingly, Deputy Rogers's motion to dismiss those claims should be granted. B. Excessive Force
Plaintiff next claims that Deputy Rogers violated his Eighth and Fourteenth Amendment rights by "using excessive force." (Compl. 4.) Plaintiff alleges, specifically, that Deputy Rogers entered his cell, then "pull[ed]" his arm, and "repeatedly punched" him in the face, even though he "was not resisting." (Id.) Plaintiff further alleges that, after he "was already submited [sic] on the ground, Deputy Rogers "jumped knee first into [his] back and waited to call any codes." (Id.)
"The Eighth Amendment guarantees prisoners the right to be free from "cruel and unusual punishments" while in custody. Ullery v. Bradley, 949 F.3d 1282, 1289-90 (10th Cir. 2020) (quoting U.S. CONST. amend. VIII). A prison official's "unnecessary and wanton infliction of pain" violates the Eighth Amendment's prohibition on cruel and unusual punishment. Id. at 1290 (quoting Hope v. Pelzer, 536 U.S. 730, 737 (2002)). To establish an Eighth Amendment claim based on a prison official's use of excessive force, a plaintiff must show: (1) that the amount of force applied was, objectively, harmful enough to establish a constitutional violation; and (2) that, subjectively, the defendant applied the force "maliciously and sadistically," rather than "in a good faith effort to maintain or restore discipline." Id. (quoting Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003)).
However, as a pretrial detainee, Plaintiff's protections against excessive force emanate from the Due Process Clause of the Fourteenth Amendment, not the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) ("[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment."); Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019) (assessing a pretrial detainee's claim of mistreatment under the Fourteenth Amendment).
To state a claim for excessive force under the Fourteenth Amendment, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473, 192 L.Ed.2d 416 (2015); accord Colbruno, 928 F.3d at 1163. "[O]bjective reasonableness turns on the facts and circumstances of each particular case," and appropriate considerations include: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Kingsley, 135 S. Ct. at 2473 (internal quotation omitted). Special consideration must also be given to the "legitimate interests that stem from the government's need to manage the facility in which the individual is detained, appropriately deferring to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security." Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)) (alterations and quotations omitted).
Here, Plaintiff has failed to provide sufficient factual allegations to assess the objective reasonableness of Deputy Rogers's conduct. First, although Plaintiff describes circumstances that suggest no active resistance on his part, he also appears to concede that he was "being unruly" at the time of the incident. (Compl. 4-5.). Further, Plaintiff provides no factual basis to evaluate the specific amount of force used to "[pull]" his arm, "punch[]" his face, and "jump[] knee first" onto his back. See Routt v. Howard, 764 F. App'x 762, 766 (10th Cir. 2019) (finding that a pretrial detainee failed to state a Fourteenth Amendment excessive force claim against a detention officer, where the detention officer allegedly "grabbed" his arm and "pushed him awkwardly to his cell," because "[i]t is not objectively unreasonable for a jail officer to hold a detainee's arm and push him, even awkwardly, through a jail hallway"); Marshall v. Milyard, 415 F. App'x 850, 852-53 (10th Cir. 2011) (finding allegations that a prison guard "grabbed" the inmate's arm and "dug his fingernails into it," even though "resulting in an injury," did not show objectively unreasonable force, because the force allegedly used "was both de minimus and not of a nature that is repugnant to mankind"); see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights."). Nor has Plaintiff alleged any resulting physical injury from the use of force, much less the severity of the injury. See Marshall, 415 F. App'x at 853 (relying, in part, on a prisoner's minimal injuries to conclude that the use of force was "de minimus"); see also Rhoten v. Werholtz, 243 F. App'x 364, 367 (10th Cir. 2007) ("[A]lthough not dispositive, the medical evidence shows Brunson's use of force did not result in injury, further supporting our conclusion it was not excessive.").
In the Amended Prisoner Complaint, Plaintiff requests certain compensatory damages "for future medical expenses for my back and shoulders." (Compl. 6.) However, Plaintiff does not allege any nexus between the incident and those requested damages.
On this record, then, Plaintiff's excessive force allegations fail to state any claim upon which relief may be granted. Accordingly, Deputy Rogers's request for dismissal of those claims should also be granted. C. Qualified Immunity
Deputy Rogers also invokes qualified immunity to each of Plaintiff's claims. (Mot. 13-14.) "Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). Once a defendant has asserted a qualified immunity defense, the burden shifts to the plaintiff to establish that: (1) the defendant violated a constitutional right; and (2) the right was "clearly established" at the time of the defendant's alleged misconduct. Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (quoting Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016)). In this case, Plaintiff has failed to plausibly allege any violation of his constitutional rights by Deputy Rogers. Accordingly, Deputy Rogers is entitled to qualified immunity with respect to all claims asserted against him. See Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001) ("If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity."); Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) ("[A] defendant is entitled to qualified immunity if the plaintiff fails to show a violation of a constitutional right at all."). D. Exhaustion of Administrative Remedies
As a final matter, Deputy Rogers argues that the Amended Prisoner Complaint should be dismissed, in its entirety, because Plaintiff did not fully exhaust his administrative remedies. (Mot. 5-6.) The Prison Litigation Reform Act ["PLRA"] requires an inmate to exhaust available administrative remedies before filing a lawsuit. 42 U.S.C. § 1997e(a). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 210-12 (2007). The exhaustion requirement "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002); see Peoples v. Gilman, 109 F. App'x 381, 383 (10th Cir. 2004) (noting that the exhaustion requirement applies to pretrial detainees).
A plaintiff's failure to exhaust administrative remedies is an affirmative defense under the PLRA. Jones, 549 U.S. at 216. Accordingly, a plaintiff need not "specially plead or demonstrate exhaustion in [his] complaint." Id. at 217. Rather, "the burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant." Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). Further, the detention facility is tasked with the responsibility of establishing grievance procedures. Jones, 549 U.S. at 218 ("[I]t is the prison's requirement, and not the PLRA, that define the boundaries of proper exhaustion."). "Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to 'properly exhaust.'" Id.
Although the Amended Prisoner Complaint alleges the full exhaustion of available administrative remedies, Defendant contends that Plaintiff did not, in fact, satisfy the requirements of the PLRA. (Mot. 5-6; see Compl. 5.) Irrespective of that contention, however, "the PLRA exhaustion requirement is not jurisdictional." May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019) (quoting Woodford v. Ngo, 548 U.S. 81, 101 (2006)). If, as here, the plaintiff's claims fail to meet the Rule 8(a) pleading standard, "the court may dismiss the underlying claim[s] without first requiring the exhaustion of administrative remedies." 42 U.S.C. § 1997e(c)(2); accord Woodford, 548 U.S. at 101 ("[A] district court [may] dismiss plainly meritless claims without first addressing what may be a much more complex question, namely, whether the prisoner did in fact properly exhaust available administrative remedies."); see also Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139 (10th Cir. 2005) ("Under certain circumstances, a district court may, notwithstanding failure to exhaust, proceed to the merits of the claim and dismiss with prejudice if it concludes a party would be unsuccessful even absent the exhaustion issue."). Therefore, because Plaintiff's claims against Deputy Rogers should be dismissed, pursuant to Rule 12(b)(6), for failure to state a claim, there is no need to consider Defendant's arguments regarding exhaustion.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that "Defendant Rogers' Motion to Dismiss Plaintiff's Amended Prisoner Complaint (ECF No. 13) Pursuant to Fed. R. Civ. P. 8, 12(b)(6), and 42 U.S.C. § 1997e" (Doc. No. 26) be GRANTED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings 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); 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. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (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); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 27th day of April, 2020.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge