Opinion
Civil Action 20-cv-02999-CMA-STV
06-23-2021
MARK HARRIS, Plaintiff, v. JARED POLIS, DEAN WILLIAMS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This matter comes before the Court on three motions: Plaintiff's Motion for Emergency Injunction [#6], Defendant Dean Williams' Motion to Dismiss [#46], and Defendant Jared Polis' Motion to Dismiss [#47] (the “Motions”). The Motions have been referred to this Court. [##12, 48] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that Plaintiff's Motion for Emergency Injunction [#6] be DENIED and the Motions to Dismiss [##46, 47] be GRANTED.
The facts are drawn from the allegations in Plaintiff's Amended Complaint [#5], which must be taken as true when considering the Motions. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
Plaintiff is an inmate at the Buena Vista Correctional Complex (“BVCC”) in Buena Vista, Colorado. [#5 at 3] During the summer of 2020, Defendants placed BVCC in lockdown in response to the COVID-19 pandemic. [Id. at 2, 4] During lockdown “[n]o one is allowed to leave their room except to use the rest room which is filthy because it is never cleaned.” [Id. at 4] The lockdown additionally eliminated recreation time, phone calls, and religious services, and the law library stopped answering requests. [Id.] Plaintiff alleges that the lockdown failed to protect him from COVID-19 and deprived him of his due process rights. [Id.] Plaintiff also alleges that Defendants failed to test facility staff for COVID-19 and failed to reduce the BVCC population, causing infections in the facility. [Id. at 2, 4] The above actions caused Plaintiff emotional distress and health concerns. [Id. at 2]
Plaintiff, proceeding pro se, filed the instant action on October 5, 2020 [#1] and filed his Amended Complaint on October 26, 2020 [#6]. The Complaint contains four claims for relief: (1) a First Amendment free exercise claim; (2) a Fifth Amendment Due Process claim; (3) a First Amendment access to the courts claim; and (4) an Eighth Amendment conditions of confinement claim. [Id. at 3] Plaintiff seeks damages and injunctive relief. [Id. at 1] Plaintiff filed his Motion for Emergency Injunction on October 26, 2020 [#6] and Defendant Williams has responded [#18]. Defendants Williams and Polis filed their motions to dismiss on February 18, 2021. [##46; 47] Plaintiff did not file any response despite this Court sua sponte granting him an extension to do so. [#49]
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
Plaintiff also identifies a First Amendment free speech claim and alleges that he has been denied the ability to communicate with family. [#5 at 3] This allegation is more properly analyzed as a conditions of confinement claim.
Plaintiff alleges that this is a Six Amendment claim, but it is more properly analyzed under the First Amendment.
Defendant Polis argues that the Complaint may additionally seek an order directing Defendant Polis to comply with the provisions of C.R.S. §§ 24-33.5-701, 17-22.5-101- 107, and 17-22.5-201. [#47 at 4, 10] The Court does not understand the Complaint to be asserting such claims, as references to those statues are not included in the “Violations” portion of the Complaint and instead are part of the supporting background information. [See #5 at 1, 3] Accordingly, the Court does not address these arguments.
The Court will first address Defendants' motions to dismiss [##46; 47] and will then address Plaintiff's Motion for Emergency Injunction [#6].
II. MOTIONS TO DISMISS
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a 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) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, 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 Atl. 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, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 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.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “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.” Id. (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).
B. Analysis
Defendant Polis argues that he is entitled to Eleventh Amendment immunity and both Defendants argue that Plaintiff has failed to state any claim for relief. [##46 at 10; 47 at 5, 7] The Court will address each argument in turn.
Defendant Williams additionally argues that Plaintiff has failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (the “PLRA”). [#46 at 4-7] The PLRA requires a prisoner to exhaust administrative remedies “prior to filing a lawsuit regarding prison conditions in federal court.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010). Failure to exhaust is an affirmative defense, not typically decided at the pleadings stage. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). A court may, however, dismiss a complaint in the “rare cases” in which “it is clear from the face of the complaint that the prisoner has not exhausted his administrative remedies.” Id. Defendant Williams argues that it is clear from the face of the Complaint that Plaintiff did not exhaust his remedies because Plaintiff marked on his original prisoner complaint form that he did not do so. [##46 at 6; 1 at 5] However, Plaintiff also asserted on that form that his claims were not eligible for the administrative grievance process. [#1 at 5] Courts are “obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials, ” and determine whether the unexhausted administrative remedies were in fact “available” to the prisoner. Aquilar-Avellaveda, 478 F.3d at 1225 (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (explaining that administrative remedies may be rendered unavailable by the action or inaction of prison officials)). Because the Court lacks additional information regarding exhaustion in this matter, it cannot definitively conclude on the pleadings that Plaintiff has failed to exhaust his administrative remedies. See Id. (“[O]nly in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse.”).
1. Eleventh Amendment Immunity
“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state.” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner Cnty. Rural Water Dist. No. 2. v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)). However, under the Ex parte Young doctrine, the Eleventh Amendment “does not bar a suit against state officials in their official capacities if it seeks prospective relief for the officials' ongoing violation of federal law.” Harris v. Owens, 264 F.3d 1282, 1290 (10th Cir. 2001). “Because the State's assertion of Eleventh Amendment immunity challenges the subject matter jurisdiction of the district court, the issue must be resolved before a court may address the merits of [the] underlying . . . claim.” Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1259 (10th Cir. 2002) (quoting Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir.1999), overruled on other grounds by Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)).
Defendant Polis argues that the Ex parte Young doctrine does not apply to him in the instant matter. Specifically, he argues that in making an officer of the state “a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” [#47 at 5 (quoting Ex parte Young, 209 U.S. 123, 157 (1908))]. Thus, because he does not manage the day-to-day operations of BVCC-rather, the duty to manage BVCC is “statutorily borne by [the Colorado Department of Corrections (“CDOC”)], which is overseen by Executive Director Williams”-Defendant Polis argues Ex parte Young does not apply. [#47 at 5-6 (citing Colo. Rev. Stat. §§ 24-1-128.5(1.5) and 17-1-103(1)(a))]
However, under the Colorado Constitution:
[W]hen [the defendant] is an administrative agency, or the executive branch of government, or even the state itself, the Governor, in his official capacity, is a proper defendant because he is the state's chief executive. For litigation purposes, the Governor is the embodiment of the state.Ainscough v. Owens, 90 P.3d 851, 858 (Colo. 2004) (citing Colo. Const. art. IV § 2 (“The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.”). Courts in this district have determined that because the Governor “has final authority to order the executive directors of all state agencies to commence or cease any action on behalf of the state, ” he is a proper party to this type of action. Sportsmen's Wildlife Def. Fund v. U.S. Dep't of Interior, 949 F.Supp. 1510, 1515 (D. Colo. 1996); see also Wildgrass Oil and Gas Committee v. Colorado, 447 F.Supp.3d 1051, 1061-62 (D. Colo. 2020) (declining to find Eleventh Amendment immunity for Governor). Indeed, the Colorado Supreme Court recently reaffirmed this longstanding precedent, holding that “[t]he CDOC is an executive agency directly within the Governor's control [and] the Governor remains one of the proper defendants for the claims asserted.” Raven v. Polis, 479 P.3d 918, 921-22 (Colo. 2021) (“[B]ecause he is the state's supreme executive, with ultimate authority over the executive agencies under his control, the Governor is an appropriate defendant in an action that seeks to enjoin or mandate enforcement of a statute, regulation, ordinance, or policy.” (quotations omitted)).
Accordingly, this Court RECOMMENDS Defendant Polis' Motion [#47] be DENIED as to Eleventh Amendment immunity for the official capacity claims for injunctive relief. However, to the degree that Plaintiff seeks damages against Defendants Williams and Polis in their official capacities, such claims are barred by the Eleventh Amendment and this Court RECOMMENDS such claims be DISMISSED. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995) (finding the court lacks subject matter jurisdiction to adjudicate actions for monetary relief brought against state officials in their official capacity).
2. Free Exercise Claim
Plaintiff alleges that the BVCC lockdown violated his First Amendment right to the free exercise of religion because it impacted his “right to gather and assemble” and “religious services do not exist.” [#5 at 3, 4] He also states that “pastorial visits” may have provided him relief from stress. [Id. at 4] “[A] prisoner alleging a violation of his First Amendment rights must include sufficient facts to indicate the plausibility that the actions of which he complains were not reasonably related to legitimate penological interests.” Ghailani v. Sessions, 859 F.3d 1295, 1304 (10th Cir. 2017) (quotations and emphasis omitted). He also must allege that the jail regulation or practice substantially burdened his sincerely-held religious beliefs. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). The Tenth Circuit recognizes three ways that a government can substantially burden religious exercise: (1) “prevent[ing] participation in conduct motivated by a sincerely held religious belief”; (2) “plac[ing] substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief”; or (3) “requir[ing] participation in an activity prohibited by a sincerely held religious belief.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010).
Here, Plaintiff pleads only as a general matter that access to religious services has been impacted by the lockdown. [#5 at 3-4] However, he does not identify his religious beliefs, nor does he identify how the alleged changes impacted such beliefs. The Complaint therefore does not plausibly allege a burden on Plaintiff's sincerely held religious beliefs. Moreover, even assuming that Plaintiff had plausibly pled such a burden, the lockdown conditions were reasonably related to the legitimate penological interest of protecting the health and safety of inmates during a global pandemic and Plaintiff has not pled facts to suggest that such actions were otherwise irrational or done with the intention of burdening his religious beliefs. See Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009); Kay, 500 F.3d at 1218 n. 2. Accordingly, Plaintiff has failed to state a First Amendment free exercise claim and this Court RECOMMENDS this claim be DISMISSED.
3. Access to the Courts Claim
The right of access to the courts does not guarantee access to a law library or to legal assistance, but rather establishes the right to “the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Thus, the right of access to the courts “guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356. To state a right of access claim, a plaintiff “must demonstrate actual injury from interference with his access to the courts-that is, that the [plaintiff] was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or conditions of confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (citing Lewis, 518 U.S. at 351-55). “Conclusory allegations of injury in this respect will not suffice.” Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir. 2006)) (citing Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999)).
Here, Plaintiff's only allegation is that the law library is not answering requests. [#5 at 4] He fails to identify any injury resulting from this occurrence. Accordingly, this Court RECOMMENDS this claim be DISMISSED.
4. Due Process Claims
The Complaint asserts that Defendants violated Plaintiff's due process rights by imposing a lockdown, which prevented Plaintiff from engaging in recreation and communicating with family. [#5 at 3] Courts have long recognized that “prisoners do not shed all constitutional rights at the prison gate, but lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995) (internal quotations, citations, and alterations omitted). Thus, in order to establish that his due process rights have been violated, Plaintiff must show that he has been subjected to an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. The Tenth Circuit considers a number of factors in determining whether prison conditions impose an atypical and significant hardship, including conditions of the confinement, relation to penological purpose, length of placement, and whether conditions increased the duration of confinement. See Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007).
The Complaint admits that the lockdown conditions were a result of the COVID-19 pandemic. [#5 at 2, 4] Such an action clearly implicates the legitimate penological interest of inmate safety and health amid a global pandemic. Moreover, the Complaint does not plausibly allege that the restrictions imposed by the lockdown, such as limited access to persons, spaces, or amenities, were not reasonably related to a legitimate government interest; nor does it allege that the lockdown was indeterminate or increased the overall duration of Plaintiff's confinement. Estate of DiMarco, 473 F.3d at 1342. Moreover, Courts regularly reject claims that “lockdown” conditions and limited access to amenities violate the Due Process Clause. See, e.g., Simmermaker v. Trump, No. 20-cv-01671-KMT, 2021 WL 915985, at *4 (D. Colo. Mar. 10, 2021) (allegations of prohibition on iPads, video visits, televisions, and instruments do not implicate due process); Matthews v. Wiley, 744 F.Supp.2d 1159, 1172 (D. Colo. 2010) (general allegations of restricted liberty, amenities, recreation, visitation, and privileges do not implicate due process violation); Lekas v. Briley, 405 F.3d 602, 610-13 (7th Cir. 2005) (conditions including inability to participate in prison programs, loss of telephone usage, inability to receive family visits, inability to attend church or meet with clergy, and drastic reduction in the number and nature of personal items did not impose an atypical and significant hardship); Higgason v. Farley, 83 F.3d 807, 809-10 (7th Cir. 1995) (an inmate's confinement in disciplinary segregation with frequent lockdowns, restricted access to the law library, denial of educational opportunities, and loss of social and rehabilitative activities did not impose an atypical or significant hardship).
The Complaint therefore fails to allege a due process violation and this Court RECOMMENDS this claim be DISMISSED.
5. Deliberate Indifference Claims
Finally, the Complaint alleges that: (1) BVCC is overcrowded, (2) social distancing measures are not in place, and (3) inmates are exposed to COVID-19 from untested staff members. [#5 at 3] The Eighth Amendment “protect[s] against unjustifiable conditions of confinement, such as the unnecessary and wanton infliction of pain . . . or deliberate indifference to an excessive risk to a prisoner's health.” Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019) (quotations omitted). Prison officials violate the Eighth Amendment “only if the deprivation to which the prisoner has been subjected is ‘objectively sufficiently serious' and only if the prison official has a ‘sufficiently culpable state of mind.'” Grissom v. Roberts, 902 F.3d 1162, 1174 (10th Cir. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
“‘In prison-conditions cases [the culpable] state of mind is one of deliberate indifference to inmate health or safety.'” Grissom, 902 F.3d at 1174 (quoting Farmer, 511 U.S. at 834). A “prison official[] who actually knew of a substantial risk to inmate health or safety may be found free from liability if they respond[ ] reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. In the context of the COVID-19 pandemic, courts have considered the COVID precautions put in place by facilities when assessing both prongs of the Eighth Amendment analysis. See Peoples v. Long, No. 20-cv-02116-RBJ-NYW, 2020 WL 9076288, at *10-11 (Dec. 16, 2020); Chunn v. Edge, 465 F.Supp.3d 168, 200-04 (E.D.N.Y. 2020).
Here, Plaintiff provides no facts regarding his allegations of overcrowding and lack of social distancing. And, in any event, courts in this district have recently rejected similar deliberate indifference claims, finding that lack of social distancing in particular parts of a facility does not demonstrate that defendants have disregarded the risk of COVID-19. See Nellson v. Barnhart, 454 F.Supp.3d 1087, 1095 (D. Colo. 2020) (“A lack of social distancing in the law library and communal restrooms . . . does not demonstrate that defendants have disregarded the risk of COVID-19”); Simmermaker, 2021 WL 915985, at *4 (dismissing plaintiff's deliberate indifference claim alleging that “inmates cannot maintain social distance while using computer terminals or telephones, or when interacting with their cellmates”).
Plaintiff further fails to allege facts suggesting that Defendants acted with deliberate indifference by not testing certain employees for COVID-19. Simmermaker, 2021 WL 915985, at *4 (granting motion to dismiss Eighth Amendment claim and finding that plaintiff failed to make allegations regarding the knowledge of defendants and failed to allege facts showing that defendants disregarded COVID-19 risks). Indeed, Plaintiff affirmatively alleges that Defendants acted to protect him from COVID-19 by implementing a facility lockdown. [#5 at 4] Without additional allegations of harm or state of mind, the Complaint fails to state a claim for deliberate indifference. See Grinis v. Spaulding, 459 F.Supp.3d 289, 292 (D. Mass. 2020) (“These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates.”); Chunn, 465 F.Supp.3d at 200-02, (holding petitioners could not meet the objective component “given the measures that prison officials have instituted to address COVID-19”).
Accordingly, this Court RECOMMENDS this claim be DISMISSED.
6. Personal Involvement
Although this Court has already recommended dismissing all of Plaintiff's claims for failure to state any constitutional violation, it additionally addresses Plaintiff's failure to meet the requirements of a section 1983 claim. In order to maintain an individual capacity claim under section 1983, a Plaintiff must establish either personal or supervisory liability of the Defendants. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Personal liability must be based on personal involvement in a constitutional violation. Id. Supervisory liability requires: “(1) personal involvement[, ] (2) causation, and (3) [culpable] state of mind.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (citing Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)). To establish causation, a plaintiff must show that a supervisor defendant “set in motion a series of events that [he] knew or reasonably should have known would cause others to deprive [the plaintiff] of [his] constitutional rights.” Jensen v. Clyde, 989 F.3d 848, 858 (10th Cir. 2021) (quotation omitted).
Here, the Complaint wholly fails to allege facts establishing personal involvement by either Defendant. Moreover, Plaintiff was previously warned by Magistrate Judge Gallagher that such factual allegations were necessary to state a claim under section 1983. [#4 at 4-5] Accordingly, for this additional reason, this Court RECOMMENDS that all claims against Defendants Williams and Polis be DISMISSED.
III. MOTION FOR PRELIMINARY INJUNCTION
Plaintiff has additionally filed a Motion for a preliminary injunction. [#6] To obtain a preliminary injunction, Plaintiff must establish: “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest.” Diné Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quotation omitted). A preliminary injunction is an extraordinary remedy, and a party's right to relief must be clear and unequivocal. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).
Because this Court has determined, above, that Plaintiff has failed to plausibly allege any claim, it likewise finds here that Plaintiff has failed to show a “substantial likelihood of prevailing on the merits.” Diné Citizens, 839 F.3d at 1281. Moreover, the only relief Plaintiff seeks through this motion is release; and “release from custody is not an available remedy in a § 1983 action.” Brown v. Sedgwick Cnty. Sheriff's Office, 513 Fed.Appx. 706, 707 (10th Cir. 2013). See also Graham v. Waters, 805 Fed.Appx. 572, 578 (10th Cir. 2020) (An inmate's “request for an injunction ordering his immediate release from custody is not a cognizable request for relief in this § 1983 claim.”).
Accordingly, the Court respectfully RECOMMENDS that Plaintiff's Motion for Emergency Injunction [#6] be DENIED.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that:
(1) Defendant Williams' Motion to Dismiss [#46] be GRANTED and the claims against him be DISMISSED without prejudice. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the 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” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
(2) Defendant Polis' Motion to Dismiss [#47] be GRANTED and the claims against him be DISMISSED without prejudice. See Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127 (10th Cir. 1990).
(3) Plaintiff's Motion for Emergency Injunction be DENIED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).