Opinion
Civil Action 21-cv-01205-WJM-NYW
03-10-2022
SETH ADAM THIRSK, Plaintiff, v. BILL ELDER and CY GILLESPIE, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang United States Magistrate Judge
This matter comes before the court on Defendants' Combined Motion to Dismiss Plaintiff's Complaint (Doc. 6) Pursuant to Fed.R.Civ.P. 12(b)(6) and Response to Proposed Amendments (the “Motion” or “Motion to Dismiss”) filed on August 12, 2021 by Defendants Bill Elder and Cy Gillespie. [Doc. 37]. The court considers the Motion pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated June 17, 2021 [Doc. 11], and the Memorandum dated February 11, 2022. [Doc. 73]. Upon review of the Motion, the associated briefing, and applicable case law, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.
Where the court refers to the filings made in Electronic Case Filing (“ECF”) system in this action, it uses the convention [Doc. ]. When the court refers to the ECF docket number for a different action, it uses the convention [ECF No. ]. In either case, the court identifies the page number as assigned by the ECF system.
BACKGROUND
On April 30, 2021, Plaintiff Seth Adam Thirsk (“Plaintiff” or “Mr. Thirsk”) initiated this civil action by filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. [Doc. 1]. The case was directly assigned to the Honorable Gordon P. Gallagher, [Doc. 2], who ordered Plaintiff to file a complaint within 30 days of May 4, 2021. [Doc. 3]. On June 4, 2021, Plaintiff filed his Prisoner Complaint (the “Complaint”). [Doc. 6]. Magistrate Judge Gallagher granted Plaintiff leave to proceed in forma pauperis, see [Doc. 7], and after concluding that Mr. Thirsk's claims did not appear appropriate for summary dismissal, he ordered that the case be drawn to a presiding judge. [Doc. 8]. The case was reassigned to the Honorable William J. Martínez and drawn to the undersigned. [Id.].
Mr. Thirsk was previously housed as a pretrial detainee at the El Paso County Criminal Justice Center (“CJC”). [Doc. 6 at 2]; see also [Doc. 56 (discussing mail returned as undeliverable to Plaintiff at the CJC); Doc. 49 at 1 (Plaintiff listing a residential address for himself)]. In the Complaint, Plaintiff sued Defendants Bill Elder, the El Paso County Sheriff (“Defendant Elder”), and Cy Gillespie, the warden of the CJC (“Defendant Gillespie”) (collectively, “Defendants”), in their individual and official capacities, and alleges generally that they “acted with deliberate indifference” by failing to adequately protect CJC detainees against the contraction of COVID-19 or by failing to adequately treat detainees who contracted COVID-19. See, e.g., [Doc. 6 at 7, ¶ D; id. at 8, ¶ E]. On July 23, 2021, Plaintiff filed a Complaint for Compensatory Damages, Punitive Damages, and Injunctive Relief (the “Amended Complaint”), raising claims against Defendants Elder and Gillespie in their individual and official capacities, [Doc. 27], and on August 2, 2021, Plaintiff filed a document titled “IV. Claims for Relief” (the “Supplement”). [Doc. 33]. The Amended Complaint contains 75 numbered paragraphs, see generally [Doc. 27], and the Supplement contains 16 requests for injunctive relief, in addition to requests for monetary damages. See generally [Doc. 33]. The court notes that the Amended Complaint and Supplement contain-almost exclusively-allegations which are identical to allegations raised in complaints filed in several other cases in this District. See Jones v. Elder et al., 21-cv-00925-PAB-NRN, [ECF No. 1]; Chiffre v. Elder et al., 21-cv-01196-RBJ-SKC, [ECF No. 1]; Rogers v. Elder et al., 21-cv-01278-RM-NYW, [ECF No. 1]; Papol v. Elder et al., 21-cv-01300-SKC, [ECF No. 1]; Griffith v. Elder et al., 21-cv-01756-NRN, [ECF No. 1].
The court draws the following facts from the Complaint [Doc. 6] and the Amended Complaint [Doc. 27] and presumes they are true for purposes of the Motion to Dismiss. The court discusses the propriety of the Amended Complaint and the appropriate operative pleading in this action infra, Section I.
Accompanying the Supplement was a letter from Mr. Thirsk, wherein he stated that when he “mailed in [his] CLAIMS and REQUESTS for [RELIEF], [he] failed to put [his] case #, and/or case name on it.” [Doc. 33-1 at 1].
Relevant here, Mr. Thirsk alleges that he tested positive for COVID-19 on October 29, 2020 while housed at the CJC. [Doc. 27 at ¶ 4]. Plaintiff alleges generally that Defendants have failed to provide N-95 masks to CJC detainees and inmates, [id. at ¶ 34], instead providing only “cheap, ill-fitting cloth masks, ” [id.], and have failed to require mask usage at the CJC, [id. at ¶ 40], which has resulted in unconstitutional conditions of confinement at the CJC. See, e.g., [Doc. 33 at ¶ 87]. Plaintiff also raises numerous allegations that Defendants have failed to comply with the Stipulated Preliminary Injunction entered in another case in this District: Weikert v. Elder, 20-cv-03646-RBJ (“Weikert”), [ECF No. 25]. See, e.g., [Doc. 27 at ¶¶ 34-35, 39, 48-50, 58, 60, 64-66].
Weikert, discussed in more detail below, involved a challenge by CJC detainees to the CJC's COVID-related protocols. See Weikert, 20-cv-03646-RBJ, [ECF No. 1].
Plaintiff raises four conditions-of-confinement claims: two arising under the Eighth and Fourteenth Amendments of the United States Constitution, respectively, and two arising under Article II, Sections 20 and 25 of the Colorado Constitution, respectively. See [Doc. 6 at 9, ¶¶ 1-4; Doc. 33 at 1-9]. Plaintiff also seeks extensive injunctive relief concerning the COVID-19 protocols at the CJC, [Doc. 6 at 9-13, ¶¶ 1-4; Doc. 33 at 11-17, ¶¶ 1, 3-4, 9-11], as well as one million dollars in punitive damages; restitution or disgorgement of “all CARES Act Funds which were used for projects which can not be reasonably related to COVID-19 protections;” and compensatory damages. [Doc. 6 at 13, ¶¶ 5-7; Doc. 33 at 16, ¶¶ 5-7]. Defendants filed the Motion to Dismiss on August 12, 2021. [Doc. 37]. While Defendants argue that the original Complaint remains the operative pleading in this action, [id. at 1-2], and thus their arguments are directed to this pleading, see [id. at 4-12], they also assert that any amendment proposed in the Amended Complaint or Supplement would be futile. [Id. at 12-13]. Plaintiff responded to the Motion to Dismiss, see [Doc. 48], to which Defendants replied. [Doc. 73]. Because the matter is ripe for recommendation, I consider the Parties' arguments below.
LEGAL STANDARDS
Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006)).
Two related concepts, mootness and standing, are jurisdictional. Citizen Ctr. v. Gessler, 770 F.3d 900, 906 (10th Cir. 2014). “A plaintiff must demonstrate standing separately for each form of relief sought.'” Smith v. U.S. Immigr. and Customs Enf't, 429 F.Supp.3d 742, 755 (D. Colo. 2019). Meanwhile, “[m]ootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” RMA Ventures Cal. v. SunAmerica Life Ins. Co., 576 F.3d 1070, 1073 n.6 (10th Cir. 2009) (internal quotation marks omitted). Mootness is judged by the state of facts as they exist after the complaint is filed. WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1185 (10th Cir. 2012). “Mootness usually results when a plaintiff has standing at the beginning of a case, but, due to intervening events, loses one of the elements of standing during litigation.” Id. at 1182.
Under Rule 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)). Nevertheless, 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); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “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); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible”). 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).
III. Pro Se Pleadings
Because Mr. Thirsk proceeds in this matter pro se, the court affords his filings liberal construction. Haines, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall, 935 F.2d at 1110, and applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
ANALYSIS
I. The Operative Pleading
Due to the unique procedural circumstances presented in this case, the court must first address the appropriate operative pleading in this action. As set forth above, Mr. Thirsk filed his Complaint on June 4, 2021. [Doc. 6]. On June 24, 2021, Defendants waived service of the Complaint, which set their deadline to answer or otherwise respond to the Complaint for August 23, 2021. [Doc. 13; Doc. 15]. Mr. Thirsk subsequently filed the Amended Complaint on July 23, 2021 and filed the Supplement on August 2, 2021. [Doc. 27; Doc. 33]. On August 12, 2021, Defendants filed the instant Motion to Dismiss. [Doc. 37]. Therein, they argue that Plaintiff was not entitled to amend his Complaint as a matter of right pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, and for this reason, the Complaint remains the operative pleading in this action. See [id. at 2].
Rule 15 of the Federal Rules of Civil Procedure provides:
A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.Fed. R. Civ. P. 15(a)(1)(A)-(B). Here, Plaintiff filed the Amended Complaint more than 21 days after Defendants waived service of the Complaint, but before Defendants filed their Motion to Dismiss. “The case law interpreting the[] two sections of Rule 15(a)(1) is unsettled as to whether a plaintiff may amend a complaint as of right more than twenty-one days after service of the complaint under Rule 15(a)(1)(B) when the defendants [have not filed] a responsive pleading or Rule 12 motion.” Ramos v. Poore, No. 3:15-cv-518 (VAB), 2017 WL 1362017, at *2 (D. Conn. Apr. 11, 2017).
Indeed, there appears to be a split of authority on this issue, with many District courts holding that a plaintiff may amend his or her complaint once as a matter of right at any time prior to the filing of a responsive pleading and an equal number of District courts concluding that the opportunity to amend as a matter of right under Rule 15(a)(1)(A) lapses 21 days after service of the pleading, even if a responsive pleading has yet to be filed. Compare, e.g., Doe #1 v. Syracuse Univ., 335 F.R.D. 356, 359 (N.D.N.Y. 2020) (“[W]hen a responsive pleading is required[, ] there is no ‘time gap' during which a party cannot amend as a matter of course when no responsive pleading or motion under 12(b), (e), or (f) has been filed.”) and Croucier v. Credit One Bank, N.A., No. 18-cv-20-MMA (JMA), 2018 WL 2836889, at *2 (S.D. Cal. June 11, 2018) (“Where a responsive pleading is required, the 21-day deadline to amend is not triggered until service of a responsive pleading or Rule 12 motion.”) with Schwab v. Ingels, No. 18-2488-DDC-GEB, 2020 WL 2037049, at *2 (D. Kan. Apr. 28, 2020) (a party may amend as a matter of course “in one of two ways: (A) first, within 21 days after serving the pleading, or (B) second, within 21 days of service of a responsive pleading. . . . Outside those periods, any amendment to the pleadings requires the opposing party's written consent or the court's leave.”) (emphasis added) and Hancock Whitney Corp. v. Bourgeois, No. CV 20-00028-BAJ-SDJ, 2020 WL 4231575, at *1 (M.D. La. July 23, 2020) (“Rule 15(a)(1)(A) sets a separate deadline from Rule 15(1)(a)(B); thus, if the Plaintiff does not amend the complaint within 21 days of when it was served, Plaintiff deprives itself of the opportunity to do so, unless it obtains leave of court or unless Defendant files a responsive pleading, which would then trigger another 21-day period for Plaintiff to amend the Complaint.”).
The Tenth Circuit has not addressed this issue. Meanwhile, courts in this District have interpreted Rule 15 both ways. See, e.g., Gentry v. Nat'l Multi List Serv. Inc., No. 14-cv-00858-PAB-KMT, 2015 WL 6751103, at *2 (D. Colo. Nov. 5, 2015) (relying on the Advisory Committee's statement that Rule 15(a)(1) was not intended “to create a gap that suspends and then revives the right to amend once as a matter of course”); Harris v. Romero, No. 20-cv-01396-RM-NYW, 2021 WL 1169985, at *7 (D. Colo. Mar. 29, 2021) (“Plaintiffs did not file their proposed Amended Complaint as a matter of right, because such an amended pleading must be filed within 21 days after serving the original pleading, or within 21 days after the service of a motion pursuant to Rule 12(b).”)
At bottom, the court need not decide the issue because regardless of the operative complaint, the result would be the same: for the reasons set forth in this Recommendation, Plaintiff's claims would be subject to dismissal. Accordingly, the court will assess the merits of the Motion to Dismiss in light of the factual allegations raised both in the Complaint and the Amended Complaint, as Defendants raise the same arguments with respect to all of Plaintiff's allegations. See [Doc. 37 at 12-13]; see also Ramos, No. 2017 WL 1362017, at *3 (declining to pass on the issue of whether leave to amend was required where, regardless, the plaintiff failed to state a claim); cf. Romero v. Bowman, No. 19-cv-01431-RM-NYW, 2021 WL 4947234, at *4 (D. Colo. June 11, 2021), report and recommendation adopted, [ECF No. 120] (considering a pending motion to dismiss within the context of a pending motion to amend “in the interest of judicial economy”).
Because the undersigned Magistrate Judge is not the presiding judge in this matter, and because a determination of this issue does not affect the Recommendation, this court declines to weigh in on the appropriate interpretation of Rule 15.
II. The Motion to Dismiss
Defendants raise several arguments in advocating for dismissal of Mr. Thirsk's claims. First, they argue that the court should decline jurisdiction over this case pursuant to the “first-to-file” rule. [Doc. 37 at 4-5]. Then, they maintain that Plaintiff's claims for injunctive relief must be dismissed because Plaintiff, as a pro se litigant, cannot seek relief on behalf of all CJC detainees. [Id. at 5-6]. In the alternative, they argue that Plaintiff has failed to state a claim under the Eighth or Fourteenth Amendments, [id. at 6-9], has failed to state a claim under the Colorado Constitution, [id. at 9], and has failed to state a municipal-liability claim. [Id. at 10-12]. Finally, Defendants contend that they are entitled to qualified immunity against Plaintiff's claims. [Id. at 9-10]. The court addresses these arguments in turn.
A. First-to-File Rule
The first-to-file rule dictates that “the first federal district court which obtains jurisdiction of parties and issues should have priority and the second court should decline consideration of the action until the proceedings before the first court are terminated.” Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692 (10th Cir. 1965). This rule “recognizes that federal courts, ‘as courts of coordinate jurisdiction and equal rank, '” must “‘be careful to avoid interfering with each other's affairs in order to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result.'” 1K1V TGJ Holdings, LLC v. True Gentlemen's Jerky, No. 21-cv-01831-WJM-NRN, 2021 WL 5167193, at *1 (D. Colo. Oct. 4, 2021) (quoting Buzas Baseball, Inc. v. Bd. of Regents of Univ. Sys. of Ga., 189 F.3d 477 (Table), 1999 WL 682883, at *3 (10th Cir. 1999)).
Courts may decline to exercise jurisdiction over an action where the complaint raises the same issues against the same parties as a pending case that was filed first. Id. The court considers three factors in determining whether it should decline jurisdiction under the first-to-file rule: (1) the chronology of events, (2) the similarity of the parties involved in the cases, and (3) the similarity of the issues or claims at stake. Wakaya Perfection, LLC v. Youngevity Int'l, Inc., 910 F.3d 1118, 1124 (10th Cir. 2018). “District courts have ‘an ample degree of discretion' when considering and applying the first to file rule.” Jones v. Elder, No. 21-cv-00925-PAB-NRN, 2021 WL 6280202, at *3 (D. Colo. Dec. 13, 2021), report and recommendation adopted, 2022 WL 43898 (D. Colo. Jan. 5, 2022) (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-84 (1952)). Defendants argue that the court should decline to exercise jurisdiction over this matter pursuant to the first-to-file rule because issues related to the CJC's COVID-related protocols were already addressed in Weikert. [Doc. 37 at 4]. In Weikert, the plaintiffs challenged the CJC's COVID-related protocols by suing Defendant Elder in a putative class action. Weikert, 20-cv-03646-RBJ [ECF No. 1]. The plaintiffs, through counsel, and Defendant Elder agreed to the entry of a Stipulated Preliminary Injunction, see [ECF No. 23], which was entered by the Honorable R. Brooke Jackson on January 4, 2021. [ECF No. 25]. The Stipulated Preliminary Injunction ordered Defendant Elder to, inter alia, require staff to wear masks and to discipline staff violations of the mask mandate; issue two cloth masks to all inmates and require inmates to wear masks; and implement testing and social-distancing protocols within the CJC. [Id. at 2]. After the Stipulated Preliminary Injunction was entered, the case was closed on October 5, 2021 pursuant to the parties' joint stipulation for dismissal. [ECF No. 46; ECF. No. 47].
In response to Defendants' argument, Mr. Thirsk asserts that when he filed this case, Weikert and other similar actions “had not been resolved and no stipulation of any kind had been [entered].” [Doc. 48 at 2]. The court takes judicial notice of the Weikert docket and notes that the Stipulated Preliminary Injunction was entered on January 4, 2021, see Weikert, 20-cv-03646-RBJ, [ECF No. 25], i.e., before Mr. Thirsk initiated the instant action on April 30, 2021. See [Doc. 1].
“This court may take judicial notice of documents in the public record, including the court's own docket.” Squires ex rel. Squires v. Goodwin, 829 F.Supp.2d 1041, 1053 (D. Colo. 2011).
Defendants have raised this first-to-file argument based on Weikert in three other cases in this District. See Jones, 2021 WL 6280202, at *4; Rogers v. Elder, No. 21-cv-01278-NRN, 2022 WL 348470, at *4 (D. Colo. Jan. 5, 2022), report and recommendation adopted, 2022 WL 344894 (D. Colo. Feb. 4, 2022); Griffith, No. 21-cv-01756-NRN, [ECF No. 14 at 4-5]. In each of these cases, the court concluded that the first-to-file rule was “inapposite and not grounds for dismissal” of the then-pending case, noting that the first-to-file rule applies only to “parallel, pending lawsuits” and that Weikert had been terminated and was no longer pending. Jones, 2021 WL 6280202, at *4; Rogers, 2022 WL 348470, at *4; Griffith, [ECF No. 29 at 8]. The court agrees with these decisions. The first-to-file rule applies “when related cases are pending before two federal courts.” Cherokee Nation v. Nash, 724 F.Supp.2d 1159, 1165 (N.D. Okla. 2010) (emphasis added); see also Wakaya, 910 F.3d at 1124 (“When two federal suits are pending, the district court cannot resort to a ‘rigid mechanical solution.' As a starting point, courts should apply the first-to-file rule.”) (emphasis added); cf. Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th Cir. 2016) (“[W]hen actions involving nearly identical parties and issues have been filed in two different district courts, the court in which the first suit was filed should generally proceed to judgment.”) (emphasis added). Because Weikert is not a pending lawsuit, it cannot operate to invoke applicability of the first-to-file rule here. Accordingly, I do not find that the first-to-file rule presents appropriate grounds for dismissal of Plaintiff's claims.
B. Injunctive Relief
Next, Defendants argue that Plaintiff's claims for injunctive relief must be dismissed because Plaintiff attempts to seek such relief not only for himself, but on behalf of all CJC detainees. [Doc. 37 at 5]. They contend that a pro se litigant cannot maintain a class action lawsuit under Rule 23 of the Federal Rules of Civil Procedure, and further assert that in bringing this action on behalf of others, Mr. Thirsk is “guilty of contempt” of court under section 13-93-108 of the Colorado Revised Statutes, which prohibits a person without a law license to appear on behalf of another person in any proceeding. [Id. at 6]; see also Colo. Rev. Stat. § 13-93-108. In response, Mr. Thirsk maintains that he had “no intention to bring this matter before the Court as a Class Action, ” but rather his “intent is to show that [Defendants] [were] and are endangering inmates through [their] mishandling of the COVID-19 pandemic.” [Doc. 48 at 1-2].
Although Mr. Thirsk states that it was not his intention to bring claims on behalf of others, the court agrees with Defendants that his pleadings suggest otherwise; indeed, Mr. Thirsk's requests for injunctive relief almost exclusively request relief for “[a]ll current inmates and pre-trial detainees” at the CJC. See, e.g., [Doc. 33 at 11-14, ¶¶ 1(a)-(j)]. Such requests are not properly before the court. It is well-settled that “[a] litigant may bring his own claims to federal court without counsel, but not the claims of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000). “This is so because the competence of a layman is ‘clearly too limited to allow him to risk the rights of others.'” Id. (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)). To that end, a pro se litigant may not bring claims on behalf of a purported class because such a litigant cannot fairly and adequately protect the interests of the class. See Amaro v. Att'y Gen. for N.M., 781 Fed.Appx. 693, 695 (10th Cir. 2019) (“Because Mr. Amaro is proceeding pro se, he cannot adequately represent the interests of the putative class. Rule 23 thus forecloses him from bringing an action on the class's behalf.”); Lowery v. Edmondson, 528 Fed.Appx. 789, 793 (10th Cir. 2013) (pro se inmate could not litigate on behalf of others). As such, Mr. Thirsk cannot proceed in federal court on behalf of others, and to the extent he intends to do so, his claims should be dismissed.
Insofar as Mr. Thirsk seeks injunctive relief on his own behalf, see, e.g., [Doc. 33 at 15, ¶ 3 (seeking a preliminary injunction permitting Plaintiff “to have at least one hour per week with a ‘jail house lawyer' of Plaintiff's [choice]”)], the court finds that these claims are also subject to dismissal. In both the Complaint and the Amended Complaint, Mr. Thirsk seeks injunctive relief related only to his confinement at the CJC. See [Doc. 6 at 9-14; Doc. 33 at 11-17]. But the case docket reflects that around September 2021, Mr. Thirsk was released from the CJC. See, e.g., [Doc. 47; Doc. 49; Doc. 68]. When a detainee files a lawsuit challenging the conditions of his confinement and then is subsequently released from detention, the court is “presented with a question of possible mootness.” Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). Indeed, “[b]ecause a prisoner's . . . release signals the end of the alleged deprivation of his constitutional rights, an entry of equitable relief in his favor would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him.” Id. (quotations and alternation marks omitted); see also Nasious v. Colorado, 495 Fed.Appx. 899, 903 (10th Cir. 2012) (“[I]t is well-settled that a prisoner's transfer out of a prison moots his requests for . . . injunctive relief against staff at that prison.”); Taggart v. Oklahoma, 74 Fed.Appx. 880, 882 (10th Cir. 2003) (same).
While Defendants do not raise this argument, see [Doc. 37], mootness is a threshold jurisdictional issue which the court may raise sua sponte. Colo. Off Highway Vehicle Coal. v. U.S. Forest Serv., 357 F.3d 1130, 1133 (10th Cir. 2004). To the extent that Mr. Thirsk's claims for injunctive relief are based on his personal confinement at CJC, such claims were mooted by Mr. Thirsk's release from custody. Nasious, 495 Fed.Appx. at 903. And because the court finds that Mr. Thirsk's claims for injunctive relief-whether asserted in the Complaint or Amended Complaint-are either improperly asserting the rights of others or are moot, the court respectfully RECOMMENDS that they be DISMISSED without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action for lack of jurisdiction, . . . the dismissal must be without prejudice.”).
The court notes that, based on the docket, it appears that the Motion to Dismiss was filed before Mr. Thirsk was released from CJC custody. See [Doc. 37; Doc. 48 at 4 (Mr. Thirsk responding to the Motion to Dismiss from the CJC)].
In a letter to the court dated February 7, 2022, Mr. Thirsk states that “[t]hough it is unlikely that [he] will return to [C]C], it is [possible].” [Doc. 68 at 1]. However, the court is “disinclined to opine on important constitutional issues based upon the speculative suggestion that a plaintiff might be returned to a setting where he would be subject to allegedly unconstitutional practices.” Jordan, 654 F.3d at 1032.
C. Failure to State a Claim
Insofar as Mr. Thirsk requests monetary relief, Defendants argue that Mr. Thirsk has failed to state a plausible violation of the Eighth or Fourteenth Amendments. [Doc. 37 at 6, 8]. In response, Plaintiff states that he “left all factual support out of [his] Complaint so that it may be shown at the Discovery Phase and/or trial.” [Doc. 48 at 2]. Nevertheless, Mr. Thirsk asserts that “[t]here is more [than] enough information in [his] Complaint, Amended Complaint, and [Supplement] to [warrant] an upholding of [his] Complaint and we should proceed forward.” [Id.].
1. The Eighth Amendment
The court first addresses Defendants' argument that Mr. Thirsk's Eighth Amendment claim should be dismissed because as a former pretrial detainee, Plaintiff's claims arise under the Fourteenth Amendment. See [Doc. 37 at 8-9]. Mr. Thirsk does not respond to this argument. See generally [Doc. 48]. Defendants are correct that the Eighth Amendment protects the rights of convicted prisoners, while the Fourteenth Amendment protects the rights of pretrial detainees. Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020). Thus, because Mr. Thirsk was, at all relevant times, a pretrial detainee housed in the CJC, see [Doc. 27 at ¶ 13], Mr. Thirsk's claims do not arise under the Eighth Amendment.
However, the Tenth Circuit has sometimes excused “a plaintiff's reliance on the incorrect amendment as an inconsequential mistake when the error appears to be the product of inadvertence and where the distinction would be immaterial to the analysis.” Doe v. Univ. of Denver, 952 F.3d 1182, 1187 n.2 (10th Cir. 2020) (citing cases). Moreover, the United States Supreme Court has advised that the federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S. 10, 11 (2014); see also 5 Wright & Miller, Federal Practice and Procedure § 1219 (4th ed.) (“[I]t is clear that the federal rules-and the decisions construing them-evince a belief that when a party has a valid claim, he should recover on it regardless of [any] failure to perceive the true basis of the claim at the pleading stage, provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining a defense upon the merits.”). For these reasons, and because Mr. Thirsk proceeds pro se, the court would ordinarily be inclined to construe Mr. Thirsk's Eighth Amendment claim as arising under the Fourteenth Amendment.
However, Mr. Thirsk already has asserted a Fourteenth Amendment claim, which appears to be essentially identical to his asserted Eighth Amendment claim. See [Doc. 6 at 9; Doc. 33 at 3]. And “[i]n determining whether [a] pretrial detainee's rights were violated, [Tenth Circuit courts] apply an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.” Perry v. Durborow, 892 F.3d 1116, 1121 (10th Cir. 2018) (quotation omitted and alteration marks changed). Accordingly, if the court were to simply construe Claim Two as asserting a Fourteenth Amendment claim, this claim would be duplicative of Claim One and may be subject to dismissal. See Brooks v. Colo. Dep't of Corr., No. 18-cv-02578-PAB-SKC, 2019 WL 4120753, at *6 (D. Colo. Aug. 6, 2019), report and recommendation adopted, 2019 WL 4085371 (D. Colo. Aug. 29, 2019) (“Here, there are no differentiating facts between Brooks' Eighth Amendment claim and his Fourteenth Amendment claim. . . . Thus, the Fourteenth Amendment claim is duplicative of the Eighth Amendment claim and should be dismissed on that ground.”). For this reason, the court construes Claim One and Two together as one claim arising under the Fourteenth Amendment. See Rogers, 2022 WL 348470, at *5 n.3 (discussing duplicative Eighth and Fourteenth Amendment claims together); Davis v. Clifford, No. 13-cv-01642-WJM-KLM, 2014 WL 901608, at *2 (D. Colo. Mar. 7, 2014) (concluding that identical, duplicative claims “should be merged”).
2. The Fourteenth Amendment
The Fourteenth Amendment Due Process Clause states that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “Pre-trial detainees have a Fourteenth Amendment due process right to humane conditions of confinement that is co-extensive with the Eighth Amendment right of convicted prisoners.” Waring v. Storey, No. 12-cv-01338-BNB, 2012 WL 3245951, at *2 (D. Colo. Aug. 7, 2012). To state a due process claim based on unconstitutional conditions of confinement, a plaintiff must allege facts plausibly establishing both an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A plaintiff satisfies the objective component by alleging facts demonstrating that the “conditions [of confinement] were more than uncomfortable, and instead rose to the level of ‘conditions posing a substantial risk of serious harm' to inmate health or safety.” DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir. 2001). And with respect to the subjective prong, a claimant makes a sufficient showing by alleging that the defendant “[knew] of and disregard[ed] an excessive risk to inmate health or safety.” Id. at 975.
Defendants assert that Mr. Thirsk has failed to allege facts sufficient to state a conditions-of-confinement claim under the Fourteenth Amendment. [Doc. 37 at 6-8]. Specifically, they argue that Mr. Thirsk alleges no facts “to plausibly state how CJC's COVID-19 protocols caused any of the constitutional violations alleged by Plaintiff”. [Id. at 8]. Additionally, they maintain that Mr. Thirsk fails to plausibly allege how the conditions of which he complains were sufficiently serious so as to meet the objective component of a Fourteenth Amendment claim. [Id.]. While these arguments appear to be directed at the Complaint, Defendants further assert that the allegations in the Amended Complaint are likewise insufficient to state a claim and thus any amendment proposed by Plaintiff would be futile. [Id. at 12-13]. As set forth above, Mr. Thirsk responds by stating that he left “all factual support” out of his pleadings, but that supporting facts may be revealed during discovery. [Doc. 48 at 2].
As a preliminary matter, the court's determination of a motion to dismiss is based on the allegations contained in the complaint; a plaintiff may not “[leave] out” factual support from his or her complaint on the assumption that such factual support might be demonstrated during discovery. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted and emphasis added); cf. MAGicAll, Inc. v. Advanced Energy Indus., Inc., No. 17-CV-02582-RBJ, 2018 WL 3619720, at *9 (D. Colo. July 30, 2018) (a plaintiff may not initiate litigation “because he thinks that the defendant might have done something wrong and hopes to find something in discovery that will show it”). Accordingly, the court's analysis is based on the face of Plaintiff's pleadings, not on an indeterminate possibility that Mr. Thirsk may, during the course of this litigation or during trial, be able to show factual support for his claims.
Turning to Defendants' arguments, the court respectfully agrees with Defendants that Mr. Thirsk fails to allege facts sufficient to state a plausible Fourteenth Amendment claim. First, the original Complaint, which primarily contains sentences setting forth general theories of relief but no actual facts supporting any such theory, does not on its face state a claim for relief. For example, most of the allegations in the Complaint are attributable either to “[t]he Jail” or to no person or entity at all. See, e.g., [Doc. 6 at 6-7, ¶ E]. Plaintiff's failure to attribute his allegations to either of the named Defendants renders these allegations deficient. See Robbins, 519 F.3d at 1250 (explaining that it is “particularly important” that a 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”); cf. Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013) (collective allegations which fail to differentiate between defendants are insufficient to state a claim). At best, Plaintiff asserts that Defendants Elder and Gillespie specifically “acted with deliberate indifference by failing to provide [adequate] masks to CJC inmates and pre-trial detainees in a timely manner.” [Doc. 6 at 7, ¶ D]. But this lone, conclusory allegation without any supporting factual averments is insufficient to meet the minimum pleading standards, i.e., to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Legal conclusions couched as factual allegations are insufficient . . . to defeat a motion to dismiss.” Wildearth Guardians v. Pub. Serv. Co. of Colo., No. 09-cv-01862-ZLW-MEH, 2010 WL 1568574, at *1 (D. Colo. Apr. 15, 2010).
The Amended Complaint contains substantially more factual allegations. See generally [Doc. 27]. Construing this filing liberally, Plaintiff challenges seven alleged conditions of confinement at the CJC: (1) a failure to provide N-95 masks or surgical masks to CJC detainees and to enforce mask-wearing, [id. at 27]; (2) a failure to separate COVID-19-positive inmates from other inmates, [id. at 29]; (3) a failure to quarantine new inmates, [id. at 31]; (4) a failure to protect medically vulnerable inmates and staff, [id. at 32]; (5) a lack of adequate medical treatment for CJC detainees displaying COVID-19 symptoms, [id. at 34]; (6) a lack of nutritious food or dietary supplements provided by CJC staff to CJC detainees or inmates, [id. at 37]; and (7) a lack of adequate protections against COVID-19. [Id. at 41]. The court addresses the latter six alleged conditions (collectively, the “Generalized Conditions”) together before turning to Plaintiff's allegations related to a lack of adequate protections against COVID-19 in the CJC.
a. The Generalized Conditions
As set forth above, the Amended Complaint contains a large number of assertions related to the alleged conditions of confinement at the CJC. See generally [id.]. But many of these new allegations concern COVID-19 and its attendant risks generally, with nothing specifically involving Plaintiff or Defendants personally. See, e.g., [id. at ¶¶ 18-25]. Some of the allegations concern individuals who are not parties to this action, see, e.g., [id. at ¶¶ 25, 45-46], and many allegations concern alleged conduct of unidentified non-parties, rather than Defendants. See, e.g., [id. at ¶ 51 (“Deputies confiscate the surgical masks, and falsely claim that the surgical masks contain metal in the nose piece.”)]. Moreover, some allegations do not involve the conditions of Plaintiff's (or any other inmate's) confinement, see, e.g., [id. at ¶¶ 43-44], and the paragraphs that do raise allegations concerning the general conditions of confinement at CJC fail to include any facts specific to Plaintiff. See, e.g., [id. at ¶¶ 51-75]. As explained below, these deficiencies preclude Plaintiff from stating a viable Fourteenth Amendment claim based on six of the challenged conditions of confinement: the failure to separate COVID-19-positive inmates, the failure to quarantine new inmates; the failure to protect medically vulnerable inmates; the failure to provide nutritious food or vitamins; the failure to provide adequate medical treatment; and the failure to provide adequate outdoor time.
First , Plaintiff's allegations related to the Generalized Conditions are not tied to any particular Defendant. Rather, they allege action or inaction on the part of “the jail, ” “CJC, ” or unnamed “Deputies.” See [id. at ¶¶ 52-55 (failure to separate); id. at ¶¶ 56-59 (failure to quarantine); id. at ¶¶ 60-61 (failure to protect); id. at ¶¶ 62-66 (failure to treat); id. at ¶¶ 67-71 (lack of nutrition); id. at ¶¶ 72-75 (lack of outdoor time)]. The failure to tie any of these allegations specifically to Defendants renders these allegations insufficient to state a claim against either Defendant Elder or Defendant Gillespie. See Robbins, 519 F.3d at 1250; Pahls, 718 F.3d at 1228. “[G]eneralized allegations and sweeping criticisms do not give Defendants notice of the claims against them, ” which is required to state a claim for relief. Beauprez v. Prinsbank, No. 10-cv-01350-PAB-KMT, 2010 WL 4781179, at *3 (D. Colo. Nov. 1, 2010), report and recommendation adopted, 2010 WL 4775555 (D. Colo. Nov. 17, 2010).
Insofar as Mr. Thirsk attempts to assert a Fourteenth Amendment claim against Defendants based on a theory of supervisory liability against Defendants in their individual capacities, see [Doc. 27 at ¶¶ 16-17 (alleging that Defendant Elder “has ultimate supervisory responsibility for [C]C] employees” and that Defendant Gillespie “is responsible for all policies and practices at the CJC”)], “a supervisory relationship alone is insufficient for liability under § 1983.” Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir. 2009); see also Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (“[I]t is not enough for a plaintiff merely to show a defendant was in charge of other state actors who actually committed the violation. . . . [T]he plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.” (quotation omitted). Thus, “[i]ndividual liability under § 1983 must be based on personal involvement in the alleged constitutional violation, ” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997), which requires a plaintiff to establish an “affirmative link” between the supervisor and the alleged violation. Dodds, 614 F.3d at 1199. “When an official is sued on the basis of his supervisory status and policy-making authority, a plaintiff may establish the affirmative link by demonstrating that the defendant: ‘(1) promulgated, created, implemented or possessed responsibility for the continued operation of a policy, (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.'” Est. of Yoemans by & through Ishmael v. Campbell, 501 F.Supp.3d 1034, 1053 (D. Colo. 2020) (quoting Dodds, 614 F.3d at 1199).
Collective allegations such as those alleged in this case, see [Doc. 27 at ¶¶ 52-71], absent any actual allegations specific to Defendants, are insufficient to establish Defendants' personal participation in any constitutional violation based on their alleged policy-making authority. Jemaneh v. Univ. of Wyo., 82 F.Supp.3d 1281, 1299 (D. Colo.), aff'd, 622 Fed.Appx. 765 (10th Cir. 2015). Indeed, the Amended Complaint contains no allegations of any particular policy implemented by Defendants or that any of the challenged conditions of confinement were implemented by Defendants' employees as a result of those policies. See generally [Doc. 27]. Accordingly, Mr. Thirsk has not established the viability of supervisory liability with respect to either Defendant.
Second , Plaintiff does not allege any facts suggesting that he actually experienced these conditions of confinement, but instead raises bare assertions about alleged conditions at the CJC generally. For example, Mr. Thirsk does not allege that he was exposed to COVID-19 due to a failure to separate or quarantine, see [Doc. 27 at ¶¶ 52-61]; does not allege that he was not provided adequate or timely medical treatment, [id. at ¶¶ 62-66]; and does not allege that he himself is “effectively malnourished, and immunocompromised” due to the CJC's provided meals. [Id. at ¶ 69]. At most, Mr. Thirsk alleges that a lack of outdoor time has “adversely [affected his] mental health.” [Id. at ¶ 75]. But Plaintiff's allegations are “simply general observations or complaints on behalf of other prisoners, ” Swoboda v. Dubach, 992 F.2d 286, 289 (10th Cir. 1993), and absent “specific facts connecting the allegedly unconstitutional conditions with his own experiences at [C]C], ” Plaintiff's claims “are little more than conclusory allegations, which are insufficient to state a claim for relief.” Id. at 289-90. Because Plaintiff cannot assert claims on behalf of others, Fymbo, 213 F.3d at 1321, these allegations are insufficient to support Plaintiff's claim for relief.
Even if Mr. Thirsk's singular accusation that his mental health suffered due to a lack of sufficient outdoor time was sufficient to allege that he experienced the challenged conditions, Tenth Circuit has instructed that “limited access . . . recreation time and equipment . . . do[es] not demonstrate a deprivation of the minimal measure of life's necessities” so as to state a cognizable conditions-of-confinement claim. Trujillo v. Williams, 465 F.3d 1210, 1225 n.17 (10th Cir. 2006); see also Smith v. Romer, 107 F.3d 21 (Table), 1997 WL 57093, at *2 (10th Cir. 1997) (holding that inmate's complaints concerning, inter alia, lack of access to recreation “do not relate to life's necessities” and fail to satisfy the objective prong of a conditions-of-confinement claim).
To state a claim based on alleged unconstitutional conditions of confinement, Plaintiff “must do more than claim a foul. He must state with sufficient particularity what the foul involved, who was involved, and when and where it took place. It is not sufficient to use legal jargon and bald conclusions.” Moore v. Trapp, 1991 WL 65074, at *2 (10th Cir. Apr. 24, 1991) (unpublished). Here, the court concludes that Mr. Thirsk has not done so with respect to any of the Generalized Allegations, and for this reason, these allegations cannot support a Fourteenth Amendment claim.
b. Lack of Adequate COVID-19 Protections
Finally, the court addresses the primary basis of Mr. Thirsk's Fourteenth Amendment claim: Defendants' alleged failure to provide adequate protective measures against COVID-19. Unlike his other allegations, Plaintiff does, on limited occasions, assert factual averments that are directly tied to the named Defendants in this matter; specifically, Mr. Thirsk alleges that (1) Defendants “fail[ed] to provide N-95 masks, surgical masks, or even [a]dequate cloth masks to CJC Inmates and Pre-trial Detainees in a timely manner, ” [Doc. 27 at ¶ 33]; (2) Defendants instead provided “cheap, ill-fitting cloth masks, ” [id. at ¶ 34]; and (3) Defendants did not adequately enforce mask usage at CJC. [Id. at ¶ 40]. Plaintiff asserts that “[l]ike everyone living through the COVID-19 pandemic since February 2020, Defendant Elder and Defendant Gillespie have been keenly aware of the grave danger COVID-19 poses, particularly in the [C]C].” [Id. at ¶ 29]. Although these allegations are more robust than his others, the court nevertheless respectfully concludes that they are insufficient to state a Fourteenth Amendment conditions-of-confinement claim.
Plaintiff also alleges more generally that “[t]he jail” (1) failed to adequately quarantine new arrivals, [Doc. 27 at ¶ 56]; (2) frequently moved inmates from one cell to another, [id. at ¶ 58]; (3) failed to separate medically vulnerable inmates from others, [id. at ¶ 61]; and (4) failed to timely and adequately treat inmates with COVID-19 symptoms, [id. at ¶ 62]. However, as with his other allegations, Mr. Thirsk does not allege that he was subject to any of these conditions of confinement. See generally [id.]. Because Mr. Thirsk can only assert his own right to relief, these allegations cannot form the basis of his claim. See Fymbo, 213 F.3d at 1321. Moreover, allegations attributing conduct to “[t]he jail” do not sufficiently allege any action on the part of Defendants Elder or Gillespie. See Cedillos v. Youngblood, No. 1:21-cv-00138-DAD-BAM (PC), 2021 WL 2534534, at *2 (E.D. Cal. June 21, 2021), report and recommendation adopted, 2021 WL 3032688 (E.D. Cal. July 19, 2021) (“Plaintiff attributes all COVID issues to the “administration, ” or the medical chief or officers or nurses, but does not state what each person did or did not do which violated his constitutional rights. Plaintiff must name each person he believes violated his constitutional rights.”).
With respect to the objective component, a plaintiff must allege facts establishing “conditions sufficiently serious so as to ‘deprive inmates of the minimal civilized measure of life's necessities.'” Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “The Eighth Amendment's prohibition on cruel and unusual punishment does not mandate comfortable prisons,' and conditions imposed may be restrictive and even harsh.” DeSpain, 264 F.3d at 973 (quotation omitted). “An inquiry into conditions of confinement . . . relies on the particular facts of each situation; the ‘circumstances, nature, and duration' of the challenged conditions must be carefully considered, ” id. at 974, “as well as the measures employed to alleviate the condition.” Shannon, 257 F.3d at 1168.
The court notes that Mr. Thirsk's general statements that Defendants provided inadequate cloth masks to detainees instead of N-95 masks and that Defendants did not effectively enforce mask usage at CJC are not accompanied by any supporting factual details of the circumstances of these alleged conditions of confinement, so as to permit the court to determine the nature, manner, or duration of these alleged conditions. See generally [Doc. 27]. Indeed, Mr. Thirsk's Amended Complaint contains essentially no allegations specific to the conditions of confinement he experienced-perhaps because his allegations appear to have been copied from other complaints filed in this District- such as the frequency or length of his alleged exposure to individuals who refused to wear masks, the frequency or length of his interactions with others in which he was required to wear an “inadequate” cloth mask, or the nature of his specific living conditions. See generally [id.]. Absent any allegations describing the “circumstances, nature, and duration” of the alleged conditions, the court is not satisfied that Mr. Smith's allegations sufficiently support the objective component of a Fourteenth Amendment claim. Cf. Herbert v. Smith, No. 20-cv-6348 (PMH), 2020 WL 5898977, at *3 (S.D.N.Y. Oct. 5, 2020) (plaintiff failed to state a Fourteenth Amendment allegation where he “[did] not explain for how long he was exposed to the[] circumstances”).
Nevertheless, “[i]t is undisputed that COVID-19 is a highly dangerous disease that poses a significant risk of severe illness and death.” Petitpas v. Griffin, No. 3:20-cv-00769 (JAM), 2020 WL 6826723, at *6 (D. Conn. Nov. 21, 2020); see also Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (“[I]f a risk is obvious [such] that a reasonable man would realize it, we might well infer that [the prison official] did in fact realize it.”). But even assuming-without deciding-that Defendants knew generally of the risks attendant to COVID-19, “even if [Defendants] knew or should have known of COVID-19's highly contagious nature, it does not necessarily mean they disregarded an excessive risk to inmate health or safety.” Winburn v. Nagy, No. 2:20-cv-11145, 2021 WL 5822097, at *5 (E.D. Mich. Nov. 19, 2021), report and recommendation adopted, 2021 WL 5798032 (E.D. Mich. Dec. 7, 2021) (quotations and emphasis omitted). Here, the court respectfully cannot conclude that the Amended Complaint contains sufficient allegations demonstrating that either Defendant consciously disregarded a known risk to Plaintiff's health or safety, where Plaintiff himself alleges facts suggesting that Defendants undertook “measures employed to alleviate the condition.” Shannon, 257 F.3d at 1168. Indeed, while the court does not downplay Plaintiff's concerns about adequate protective equipment in the CJC, the “provision of cloth masks, rather than N95 masks, does not demonstrate that defendants have disregarded the risk of COVID-19.” Nellson v. Barnhart, 454 F.Supp.3d 1087, 1095 (D. Colo. 2020); see also Sheppard v. Jefferson Cty. Sheriff's Off. Det. Facility, No. 20-cv-03373-CMA-SKC, 2021 WL 3934390, at *4 (D. Colo. Aug. 10, 2021), report and recommendation adopted, 2021 WL 3931221 (D. Colo. Sept. 2, 2021) (the provision of cloth masks “undermine[s] any conclusory averments that Defendants knew of and disregarded an excessive risk to Plaintiff's health and safety.”). Moreover, the Amended Complaint does not contain allegations demonstrating that Defendants knew that the cloth masks provided to CJC detainees and inmates were ineffective or that the provision of cloth masks otherwise constitutes a conscious disregard to a known risk. While Plaintiff alleges that there was a COVID-19 outbreak in October 2020, see [Doc. 27 at ¶ 4], he does not tie the allegations of an outbreak to the provision of cloth masks over N-95 masks or otherwise allege that Defendants knew that the cloth masks they were providing were not sufficient to protect CJC detainees. See [id. (suggesting that the outbreak occurred before “the jail's present failure to implement and enforce the mask policy which was stipulated to in [Weikert]”)]. The same is true with respect to Defendants' allege failure to enforce mask-wearing: the Amended Complaint contains no allegations suggesting that either Defendant was aware of any failure on the part of CJC detainees, inmates, or staff to regularly wear masks. See generally [id.].
Insofar as Mr. Thirsk alleges that Defendant Elder has failed to comply with the Stipulated Preliminary Injunction in Weikert, the proper course of action is for the Weikert plaintiffs, through their counsel, to challenge any alleged violations in that case, not for Plaintiff-who was not a party in Weikert-to initiate a new civil action.
“A defendant with knowledge of a risk need not take perfect action or even reasonable action” to avoid constitutional liability. Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006); see also Bodnar v. Lake Cty. Jail, No. 2:20-cv-157-PPS-APR, 2020 WL 1940742, at *2 (N.D. Ind. Apr. 22, 2020) (“[W]hile Bodnar may prefer medical grade equipment to better protect himself, the decision to provide him with a lesser quality mask is consistent with current guidelines and in no way runs afoul of the Constitution.”). Simply put, “what many of [Plaintiff's] allegations actually indicate is that the CJC was actively grappling with how to deal with a public health crisis of unprecedented magnitude.” Jones, 2021 WL 6280202, at *6.
For this same reason, the court does not find that Plaintiff's allegations are sufficient to support a supervisory theory of liability as to either Defendant based on the provision of cloth masks or failure to enforce their usage; because Mr. Thirsk has not alleged that either Defendant consciously disregarded a known risk to Plaintiff's health or safety, the allegations fail to establish the culpable mental state of either Defendant, which is required to establish Defendants' personal participation in any alleged violation. Dodds, 614 F.3d at 1199. Nor has Plaintiff alleged that any constitutional violation was the result of Defendants' creation, active enforcement, or implementation of “a policy which is constitutionally infirm.” Id. For this reason, there is no affirmative link between Defendants Elder or Gillespie and any constitutional violation, which is fatal to Mr. Thirsk's supervisory theory of liability. Id.
Accordingly, the court respectfully finds that Mr. Thirsk has failed to state a Fourteenth Amendment claim against Defendants in their individual capacities. For the reasons set forth above, the court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED and that Claims One and Two against Defendants in their individual capacities be DISMISSED without prejudice.
Having found that Mr. Thirsk fails to state cognizable constitutional claims, the court also concludes that Defendants are entitled to qualified immunity against Plaintiff's claims. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (describing the two-step qualified immunity analysis, i.e., whether the plaintiff has alleged a violation of a constitutional right and whether the right at issue was “clearly established” at the time of the defendant's alleged misconduct). In turn, the court does not address Defendants' additional arguments with respect to qualified immunity. See [Doc. 37 at 9-10]; Pearson, 555 U.S. at 236 (holding that a court, within its sound discretion, can consider either prong of the qualified immunity analysis first, and qualified immunity may be appropriate in light of a failure to establish either prong). Should the presiding judge disagree with the undersigned's Recommendation with respect to the individual-capacity claims, the court is prepared to issue a supplemental Recommendation addressing this argument.
3. Municipal Liability
Finally, the court briefly addresses Mr. Thirsk's claims to the extent they are asserted against Defendants in their official capacities. See [Doc. 6 at 1; Doc. 27 at 1]. “An action against a person in his official capacity is, in reality, an action against the government entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998). Government entities can be sued directly only where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). “[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694.
“[A] claim under § 1983 against . . . a municipality cannot survive a determination that there has been no constitutional violation.” Crowson v. Wash. Cty. Utah, 983 F.3d 1166 (10th Cir. 2020). “[T]here must be a constitutional violation, not just an unconstitutional policy, for a municipality to be held liable.” Id. at 1191. Because Mr. Thirsk has not alleged facts demonstrating that he suffered a constitutional injury, the court finds that he cannot state a claim against either Defendant in their official capacity. Accordingly, the court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED and that Claims One and Two be DISMISSED without prejudice insofar as they are raised against Defendants in their official capacities.
The requirement of an underlying constitutional violation is not to be confused with the Tenth Circuit's directive that municipal liability does not always require underlying individual liability. See Quintana v. Santa Fe Cty. Bd. of Comm'rs, 973 F.3d 1022, 1033-34 (10th Cir. 2020) (“[E]ven where ‘the acts or omissions of no one employee may violate an individual's constitutional rights, the combined acts or omissions of several employees acting under a governmental policy or custom may violate an individual's constitutional rights.'”); see also Taylor v. Armor Corr. Health Servs., Inc., No. 20-cv-01406-WJM-NYW, 2021 WL 4556213, at *13-15 (D. Colo. July 21, 2021), report and recommendation adopted, 2021 WL 4272717 (D. Colo. Sept. 21, 2021) (discussing this Tenth Circuit precedent and explaining that, while individual liability may not always be required to state a municipal-liability claim, a plaintiff must nevertheless allege facts demonstrating a constitutional injury).
D. State Law Claims
Finally, Mr. Thirsk asserts two claims arising under the Colorado Constitution: one under Article II, Section 20, which protects against the imposition of cruel and unusual punishments, see Colo. Const. art. II, § 20, and the other under Article II, Section 25, which provides that no person shall be deprived of life, liberty, or property without due process of law. See Colo. Const. art. II, § 25; see also [Doc. 6 at 9; Doc. 33 at 6, 9]. “If federal claims are dismissed before trial, leaving only issues of state law, ‘the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.'” Bauchman for Bauchman v. W. High Sch., 132 F.3d 542, 549 (10th Cir. 1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Thatcher Enters. v. Cache Cty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). Because this court has recommended dismissal of both federal claims, the court further RECOMMENDS that the presiding decline to exercise supplemental jurisdiction over Mr. Thirsk's state-law claims and DISMISS those claims without prejudice.
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) Defendants' Combined Motion to Dismiss Plaintiff's Complaint (Doc. 6) Pursuant to Fed.R.Civ.P. 12(b)(6) and Response to Proposed Amendments [Doc. 37] be GRANTED;
(2) Plaintiff's Claims be DISMISSED without prejudice; and
Dismissal without prejudice to allow amendment of the complaint is appropriate where the plaintiff is “close to stating a claim but [is] missing some element that may not have occurred to him.” Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010); see also Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990) (“If it is at all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief, the court should dismiss with leave to amend.”). Given the length of time this action has been pending, the fact that the allegations in the Amended Complaint do not appear to have been drafted by Plaintiff, and because there is presently no request by Plaintiff to amend his Second Amended Complaint or any articulation of proposed amendments, the court declines to preemptively recommend that Mr. Thirsk be granted leave to amend, reserving the issue of whether to sua sponte grant leave or to require a motion to amend for the presiding judge.
(3) To the extent that Plaintiff's Amended Complaint [Doc. 27] and Supplement [Doc. 33] could be construed as a motion to amend, that motion 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 E. 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).
In addition, it is ORDERED that:
(1) A copy of this Recommendation shall be sent to:
Seth Adam Thirsk 850 West Chenango Englewood, CO 80110