Opinion
Civil Action No. 18-cv-03292-RBJ-MEH
05-16-2019
EDMOND WALKER, Plaintiff, v. TYLER MOZATTI, in his individual and official capacities, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
This action arises out of the incarceration of the Plaintiff during which the Defendant allegedly used racial slurs against the Plaintiff and placed him in disciplinary segregation in January 2017 in retaliation for Plaintiff's complaints against the Defendant. In response to the operative Complaint, Defendant filed the present partial motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) arguing the Plaintiff fails to state an official-capacity claim against Defendant. For the reasons that follow, this Court respectfully recommends that the Honorable R. Brooke Jackson grant the Defendant's motion.
STATEMENT OF FACTS
The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in the operative Complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On January 18, 2017, Defendant approached Plaintiff outside of his cell during Plaintiff's "free time," used a racial slur, and told Plaintiff he "hated" him for Plaintiff's complaint of racial discrimination, which led to an investigation of Defendant and another deputy. Defendant also told Plaintiff that if he pursued complaints against him, Defendant would place Plaintiff in disciplinary segregation. Plaintiff responded that he would pursue the complaints. Plaintiff watched Defendant go to his desk and get on the telephone; twenty minutes later, Defendant came to Plaintiff's cell and told him to pack his property because he was taking Plaintiff to disciplinary segregation.
The next day, January 19, 2017, Defendant was serving breakfast in the segregation unit; when Plaintiff approached him, Defendant used racial slurs, gloated over sending Plaintiff to segregation, and told Plaintiff that if he pursued complaints against him, Defendant would poison his food and kill him. Plaintiff was afraid for his life.
LEGAL STANDARDS
I. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). "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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two-prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
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.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action," so that "courts 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has made an allegation, "but it has not shown that the pleader is entitled to relief." Id. (quotation marks and citation omitted).
II. Treatment of a Pro Se Plaintiff's Complaint
A federal court must construe a pro se plaintiff's "pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, "if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id. Accordingly, the court must "not supply additional facts, nor...construct a legal theory for plaintiff that assumes facts that have not been pleaded." Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
ANALYSIS
Plaintiff sues Defendant in both his individual and official capacities. Compl. 2. Here, Defendant seeks dismissal only of the Plaintiff's claims against him in his official capacity "because he has asserted no allegations whatsoever to support a claim against the City and County of Denver." Mot. 2. This Court agrees.
"[A] section 1983 suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same." Stuart v. Jackson, 24 F. App'x 943, 956 (10th Cir. 2001) (quoting Myers v. Okla. Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998)); see also Watson v. City of Kan. City, 857 F.2d 690, 695 (10th Cir. 1988) (treating as one claim the plaintiff's claim against a municipality and claims against municipal officials acting in their official capacities). As the Supreme Court explained, "[o]fficial-capacity suits...generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against an entity." Ky. v. Graham, 473 U.S. 159, 165-66 (1985) (citations and quotations omitted).
Thus, a plaintiff suing an official in his official capacity must prove the elements of a § 1983 suit against a municipality: (1) that a municipal employee committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation. Stuart, 24 F. App'x at 956. To establish the second prong against a municipality, a plaintiff may show a municipal policy or custom in the form of any of the following:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Brammer-Hoetler v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)) (internal quotations omitted).
Here, the Plaintiff's allegations do not mention, identify, or reflect any policy, custom, or other action taken by the City and County of Denver, Defendant's employer. Plaintiff argues that, merely because Defendant worked for the City and County of Denver, Defendant's motion should be denied. However, "[a] municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." Fuchs v. Sanders, 659 F. Supp. 2d 1136, 1149 (D. Colo. 2009) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
Therefore, because the Plaintiff does not allege that a policy, custom, practice, or any other action taken by the City and County of Denver caused his injury(ies), this Court recommends that Judge Jackson grant Defendant's motion to dismiss Plaintiff's official-capacity claim against Defendant.
CONCLUSION
In sum, the Court finds that, even taking his allegations as true, Plaintiff fails to allege a plausible claim against Defendant in his official capacity; accordingly, the Court respectfully recommends that Judge Jackson grant Defendant's Motion to Dismiss Official Capacity Claim pursuant to Fed. R. Civ. P. 12(b)(6) [filed March 6, 2019; ECF No. 17].
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). --------
Respectfully submitted this 16th day of May, 2019, at Denver, Colorado.
BY THE COURT:
/s/
Michael E. Hegarty
United States Magistrate Judge