Opinion
CIV-19-184-SLP
10-09-2019
DARYL DEAN WHITEBIRD, Plaintiff, v. TODD GIBSON, et. al. Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state pre-trial detainee appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. Defendant Harris has filed a Motion to Dismiss. Doc. No. 26. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the undersigned recommends the Motion to Dismiss be granted in part and denied in part.
I. Background Information
Plaintiff is currently incarcerated at Cleveland County Detention Center ("CCDC"). Doc. No. 1 ("Comp."). Following a previous judicial screening of Plaintiff's Complaint, see Doc. Nos. 9, 12, Plaintiff's remaining cause of action is a First Amendment retaliation claim against Lieutenant Harris and Jailer Masterson. In support of said claim, Plaintiff asserts that as a result of his attempts to utilize the CCDC grievance system as well as his complaints about it not working properly, Lt. Harris and Defendant Masterson retaliated against Plaintiff by moving him to lockdown. Id. at 5, 6.
Defendant Harris has filed a Motion to Dismiss. Doc. No. 26. Therein, he asserts several unsupported factual statements regarding CCDC policies. For example, Defendant Harris states that it is CCDC policy to house pre-trial detainees charged with violent crimes and/or held under a high bond in lockdown, rather than in an open pod. Id. at 2. He asserts Plaintiff should have been assigned to a lockdown pod upon arrival due to the fact that he was being held under a kidnapping charge and under a high bond. Id. at 1-2. He further states that upon reviewing Plaintiff's grievances, he realized Plaintiff's violent charge and ordered him reassigned to a lockdown pod. Id.
The problem with Defendant Harris' assertions are two-fold. First, he does not cite to any documentation or similar submission to support these assertions. Second, a motion to dismiss is not the place to argue factual matters not alleged in the complaint. See Jackson v. Integra Inc., 952 F .2d 1260, 1261 (10th Cir. 1991) (holding that in ruling on a motion to dismiss under Rule 12(b)(6) "the district court must examine only the plaintiff's complaint" and "cannot review matters outside of the complaint"). The fact that Defendant Harris' factual arguments are wholly unsupported by any evidence and are mere arguments of counsel would render them totally unavailing even were the Motion to Dismiss converted to a motion for summary judgment under Fed. R. Civ. P. 56, which the undersigned declines to do.
The undersigned recognizes Defendant Harris included certain policies within the Martinez report, including policies indicating pre-trial detainees and inmates are classified and assigned to housing units based on a number of factors, including but not limited to current charges and whether they are considered violent. Doc. Nos. 25-2, 25-3. There is also a document seemingly indicating that a separate inmate was "moved due to charges and high bond." Doc. No. 25-5. However, the Court cannot rely on these documents in ruling on Defendant's Motion to Dismiss. First, the documents do not explicitly support Defendant Harris' assertions. Second, Defendant Harris did not cite to these documents in support of his factual assertions.
II. Failure to State a Claim Upon Which Relief can be Granted
A motion to dismiss may be granted when the plaintiff has "failed to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In applying this standard the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011); Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive a motion to dismiss, a complaint must present factual allegations that "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This review contemplates the assertion of "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Thus, "when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief," the cause of action should be dismissed. Id. at 558.
A pro se plaintiff's complaint must be broadly construed under this standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction to be given the pro se litigant's allegations "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). See Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (courts "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf").
III. First Amendment
Plaintiff alleges Lt. Harris moved him to lockdown, which has less favorable conditions, in retaliation for his attempts to utilize CCDC's grievance process. Comp. at 5, 6. It is well-settled that prison officials may not retaliate against or harass an inmate because of filing administrative grievances. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991).
Government retaliation against a plaintiff for exercising his or her First Amendment rights may be shown by proving the following elements: (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.Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
In support of this claim, Plaintiff explains that he attempted to use the grievance process through the Legacy kiosk on January 17, 2019, but did not receive a response. Comp. at 4. He filed a paper grievance on January 27, 2019, and two days later, Captain Glasco informed him he had to use the Legacy kiosk system. Id. at 4-5. On that same date, Lt. Harris returned Plaintiff's paper grievance to him and told him that only grievances submitted through the Legacy kiosk were answered. Id. at 5. Plaintiff subsequently illustrated for Lt. Harris that the Legacy kiosk was not working properly. Id. at 5.
On January 31, 2019, Plaintiff submitted a paper grievance to the Jail Administrator complaining about the lack of a law library or access to legal materials though the Legacy kiosk. Id. Lt. Harris hand delivered the grievance response and therein, Lt. Harris stated that Plaintiff had access to the Oklahoma State Courts Network for legal research through Legacy. Id. After Lt. Harris returned the grievance to Plaintiff, Defendant Masterson told Plaintiff that Lt. Harris wanted Plaintiff moved to lockdown. Id. Defendant Masterson facilitated the move. Id. at 5, 6.
After setting aside Defendant Harris' unsupported factual arguments, supra., he has essentially presented two bases for dismissal of Plaintiff's First Amendment retaliation claim. Defendant Harris argues that Plaintiff has not presented sufficient factual allegations to satisfy the second element of his claim because being transferred to lockdown would not chill a person of ordinary firmness from continuing to engage in the subject activity. Doc. No. 26 at 4-5. In support of this assertion, Defendant cites to cases that did not involve a transfer to an area with less favorable conditions but instead, involved a refusal to give a prisoner a grievance form and prison officials tampering with a complaint and causing a prisoner to incur monetary expenses. Id. at 5 (citing Fogle v. Infante, 595 F. App'x 807, 810 (10th Cir. 2014) and Rueb v. Brown, 504 F. App'x 720 (10th Cir. 2012)). Being denied a grievance form and incurring monetary expenses are hardly comparable to being transferred from an open pod to a lockdown pod.
Additionally, courts have ruled that being transferred to similar areas within a prison satisfies the second element of a First Amendment retaliation claim. As a district court in Colorado explained, in denying a request for dismissal of a First Amendment retaliation claim:
At the outset, I note that common sense leads to the conclusion that being taken out of the general population and placed in twenty-three-hour-per-day confinement in retaliation for complaining to the press would deter a reasonable inmate from exercising that First Amendment right in the future. In Smith [v. Maschner, 899 F.2d 940 (10th Cir. 1990)], which addressed a prisoner's retaliation claim for exercising his right to access the courts, the Tenth Circuit implicitly found that the inmate's placement in segregation for several months as well as his loss of good time credits was a sufficient adverse action to survive summary judgment. [Id.] at 945-[]48. Two cases cited favorably in Smith also address retaliation claims in the prison context and lend support to this court's conclusion. See Harris v. Fleming, 839 F.2d 1232 (7th Cir. 1988) (suggesting a pattern of firings from job assignments and cell transfers are sufficient adverse actions to survive summary judgment on a retaliation claim for accessing the courts); see also McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) ([] citations omitted) ("A prisoner does not have a right to a hearing before being transferred; indeed he can be transferred for no reason at all . . . . However, he may nevertheless establish a claim under [section] 1983 if the decision to transfer him was made by reason of his exercise of constitutionally protected First Amendment Freedoms . . . ."). Finally, the Sixth Circuit has made manifest that "'[i]n the prison context, an action comparable to transfer to administrative segregation would certainly be adverse,'" so as to prevent a prisoner of "ordinary firmness" from continuing to engage in activities protected by the First Amendment. Smith v. Yarrow, 78 [F. App'x] 529, 540 (6th Cir.2003) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 396 [6th Cir. 1999]). Based on the foregoing, I find retaliatory removal from the general population and placement in segregation for nearly five months, in twenty-three-hour-per-day lockdown, is an adverse action sufficient to deter a person of ordinary firmness from complaining to the press. See Worrell [v. Henry], 219 F.3d [1197,] 1212 [(10th Cir. 2000)].Montoya v. Bd. of Cty. Comm'rs, 506 F. Supp. 2d 434, 448 (D. Colo. 2007).
Defendant Harris also argues Plaintiff has not presented any evidence of retaliatory motive except baseless, conclusory allegations. Doc. No. 26 at 4, Doc. No. 31 at 2-3. This Court previously ruled that the close temporal proximity between Plaintiff's submitted grievances and his transfer to lockdown was sufficient at the pleading stage to survive dismissal. Doc. No. 9 at 7-8; Doc. No. 12. "The Tenth Circuit has repeatedly recognized that close temporal proximity between protected conduct and the ensuing disciplinary (or otherwise detrimental) action may show that the disciplinary action was substantially motivated by the exercise of a protected right." Mackey v. Watson, No. 17-cv-01341-CMA-STV, 2017 WL 6016351, at *7 (D. Colo. Dec. 5, 2017) (citing Lewis v. Clark, 577 F. App'x 786, 800 (10th Cir. 2014); Gee, 627 F.3d at 1189).
Nevertheless, in his Reply, Defendant cites to Leek v. Miller, 698 F. App'x 922 (10th Cir. 2017) to argue that temporal proximity alone is insufficient to support the element of retaliatory motive. Doc. No. 31 at 2. However, Leek is distinguishable from the present case. In Leek, the plaintiff alleged that his transfers to different cells within the same prison was in retaliation for filing a lawsuit and a grievance. Leek, 698 F. Appx. at 925. The court dismissed the claim based on the plaintiff's failure to satisfy the second element of his claim because the transfers did not involve a change in security status or loss of privileges and such transfers were unlikely to have a chilling effect on other inmates Id. at 926. Additionally, as evidence of retaliatory motive, the plaintiff specifically relied upon a defendant's statement following his transfer that now the plaintiff and his paperwork can bother someone else. Id. at 925. The court found this was not sufficient evidence of retaliation because the comment was an off-hand remark made after the decision to transfer the plaintiff had already occurred and the defendant was not the decision-maker. Id. at 926. The plaintiff was then left with only temporal proximity as evidence of retaliation. Id. Under those circumstances, the court found the plaintiff had not presented a sufficient basis to support a First Amendment retaliation claim. Id.
Here, the undersigned finds Plaintiff has satisfied the second element of his claim and the close temporal proximity between Plaintiff exercising his First Amendment right by filing grievances and his transfer to lockdown plausibly alleges the 'but for' causation required by the third element of a retaliation claim. As this case progresses, Defendant Harris may present policies and factual allegations that defeat Plaintiff's claim. However, at this stage of the proceedings, the undersigned finds Plaintiff has alleged sufficient factual allegations to support his First Amendment retaliation claim and therefore, Defendant's request for this claim to be dismissed should be denied.
IV. Official Capacity Claim
Plaintiff names Defendant Harris in both his official and individual capacities, seeking monetary damages and "to dissuade these practices in the future." Comp. at 2, 6. Official capacity claims are considered claims for municipal liability and are thus essentially a suit against the county, i.e., Cleveland County. See, e.g., Kentucky v. Graham, 473 U.S. 159, 166 (1985) (noting that an official capacity "suit is, in all respects other than name, to be treated as a suit against the entity"); Myers v. Okla. Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998).
Construing Plaintiff's Complaint broadly, the undersigned interprets his latter request as seeking injunctive relief.
"In order to state a § 1983 municipal liability claim, a party must allege sufficient facts to demonstrate that it is plausible (1) that the municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation." McDonald v. Arapahoe Cty, No. 17-cv-01701, 2018 WL 571876, *5 (D. Colo. Jan. 26, 2018) (citing Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004)). A municipal policy or custom can take the form of "(1) a formal regulation or policy statement; (2) an informal custom amoun[ting] to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from 'deliberate indifference' to the injuries that may be caused." McDonald, 2018 WL 571876, at *5 (quoting Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)).
Plaintiff has not set forth any allegations in his Complaint that implicate a basis for municipal liability. Accordingly, the Court should grant the request for dismissal of Plaintiff's First Amendment claim against Defendant Harris in his official capacity.
Defendant Harris also argues Plaintiff is not entitled to recover punitive damages against him in his official capacity. Doc. No. 26 at 9-10. However, in light of the recommendation that Plaintiff's official capacity claim be dismissed, it is unnecessary to address this argument. --------
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant Harris' Motion to Dismiss (Doc. No. 26) be GRANTED in part and DENIED in part. Specifically, Defendant Harris' request for dismissal of Plaintiff's First Amendment claim against him in his individual capacity should be denied. Defendant Harris' request for dismissal of Plaintiff's First Amendment claim against him in his official capacity should be granted.
The parties are advised of their right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by October 29th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 9th day of October, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE