Denson v. Maufeld et al

Filing 92

ORDER on Partial Motion for Dismissal 85 . Ordered that Maifeld's Partial Motion to Dismiss is Denied by Chief Judge Wiley Y. Daniel on 07/13/11.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02087-WYD-KLM
SAMMIE LEE DENSON, JR.,
Plaintiff,
v.
MAJOR L. MAIFELD and
JOHN DOES 1-5,
Defendants.

ORDER on PARTIAL MOTION for DISMISSAL
This matter is before the Court on the Defendant Maifeld’s Partial Motion to Dismiss,
filed March 14, 2011 [ECF No. 85]. Plaintiff filed his response on April 7, 2011 [ECF No.
88]. Plaintiff’s Second Amended Complaint was accepted for filing on March 1, 2011 [ECF
No. 82].
Defendant Maifeld moves for dismissal of the third of the three claims in Plaintiff’s
Second Amended Complaint. In his third claim, Plaintiff alleges that Defendant Maifeld and
John Does 1-5 conspired to retaliate against him for exercising his First Amendment rights.
The claim is brought under 42 U.S.C. § 1983.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s

complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs
v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks
omitted).
“Factual allegations must be enough to raise a right to relief above the speculative
level[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) [hereinafter Twombly].
In fact, Twombly dealt with a conspiracy claim, albeit under the Sherman Act, 15 U.S.C. §1.
After later cases applied the plausibility standard to prisoner cases, the Supreme Court
“validated this interpretation in Ashcroft v. Iqbal, ___ U.S. __, 129 S. Ct. 1937 (2009).” Gee
v Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010).
Pursuant to Rule 8, “[t]o 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, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550
U.S. at 570). “A pleading that offers ‘labels and conclusions’ or a formulaic recitation of the
elements of a cause of action will not do. Nor does the complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 129 S.Ct. at 1949 (quoting
Twombly, 550 U.S. at 555, 557). “Although the pleading standard of Fed.R.Civ.P. 8 does
not require detailed factual allegations, . . . it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Gee, 627 F.3d at 1184 (quoting Iqbal
129 S.Ct. at 1949).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
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between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S.
at 557 (internal quotations omitted.)). In other words, “a plaintiff must ‘nudge [ ][his] claims
across the line from conceivable to plausible’ in order to survive a motion to dismiss.” The
Ridge at Red Hawk, L.L.C. v.Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting
Twombly, 550 U.S. at 547); see also Iqbal, 129 S. Ct. at 1950-51. “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, 129 S.
Ct. at 1950. “Nowhere in the law does context have greater relevance to the validity of a
claim than prisoner civil rights claims.” Gee, 627 F.3d at 1185.
“[A] prisoner claim may not be plausible unless it alleges facts that explain why the
usual justifications for the complained-of acts do not apply.” Gee, 627 F.3d at 1185. “It is
sufficient that he can plead facts from which a plausible inference can be drawn that the
action was not reasonably related to a legitimate penological interest.” Id. at 1188.
To state a cause of action for conspiracy under § 1983, a plaintiff must “allege
specific facts showing agreement and concerted action among defendants.” Durre v.
Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). More specifically, survival of a motion to
dismiss,
requires a complaint with enough factual matter (taken as true) to suggest an
agreement was made. Asking for plausible grounds to infer an agreement
does not impose a probability requirement at the pleading stage; it simply
calls for enough fact to raise a reasonable expectation that discovery will
reveal evidence of illegal agreement. . .[A]n allegation of parallel conduct
and a bare assertion of conspiracy will not suffice. Without more, parallel
conduct does not suggest conspiracy, and a conclusory allegation of
agreement at some unidentified point does not supply facts adequate to
show illegality. Hence, when allegations of parallel conduct are set out . . .
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they must be placed in a context that raises a suggestion of a preceding
agreement, not merely parallel conduct that could just as well be independent
action.
Twombly, 550 U.S. at 556-57. “[A]n allegation of parallel conduct absent context implying
a meeting of the minds” is, by itself, insufficient to withstand a motion to dismiss. Gee, 627
F.3d at 1183.
Defendant’s Conspiracy Argument
Defendant Maifeld argues that Plaintiff’s conspiracy claim fails to state a claim upon
which relief may be granted because he has not alleged specific facts which show
agreement and concerted action among the defendants, rather than conclusory allegations.
Plaintiff notes that the Second Amended Complaint alleges that in December 2007,
after a disciplinary hearing in which he was essentially sentenced to ‘time served’ in
segregation, one of the guards told him that, on Maifeld’s orders, he would not yet be
released back into the general population. (Second Amended Complaint (hereafter Comp.)
at ¶ 21). The next day, he further alleges, he was confronted by Maifeld and another
security officer who threatened to return him to the Colorado State Penitentiary and lock
him in segregation for ‘years.’ (Comp. at ¶¶ 22, 23 & 26.)
Plaintiff also alleges that he has been placed on suicide watch several times since
he first filed his complaint. (Comp. at ¶ 38.) He contends that there was no psychological
need for suicide watch and that the orders were made in direct contradiction of a
physician’s order. Id. It is Plaintiff’s position that the orders to place him on suicide watch
were solely to retaliate against him by requiring him to be placed in segregation without any
clothes. (Comp. at ¶¶ 30 & 38). After one particular segregation order based on a suicide
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watch, the order was lifted by a doctor after a mental health review. (Id. at ¶ 31).
Plaintiff contends that Maifeld and the John Does 1-5 conspired to remove him from
the job he had at the Limon Correctional Facility in retaliation for his lawsuit against them.
(Id. at ¶ 44.) He alleges that although he had recently filed a grievance related to mental
health treatment, nothing about that grievance was related to his job performance or
responsibilities. (Id. at ¶¶ 40-41). He says he had good job ratings from his supervisors
and that his physicians did not recommend his removal from his job. (Id. at ¶¶ 42-43.)
Although, at this point, he cannot tie the loss of his job to Maifeld, he has shown that the
other likely explanations do not apply, as suggested by the case law. See Gee, 627 F.3d
at 1185. This makes it more plausible that a more nefarious purpose was at work.
While Plaintiff’s amended complaint certainly contains a great deal of conclusory
language, that is not all it contains. It is clear from the complaint that Defendant Maifeld
has supervisory powers over at least some other security officers. Her rank has been
described as Major which would seem to denote some amount of authority. While Plaintiff’s
mention of several other staff members, such as Sgt. Cochran, Lt. Benzene and Mr.
Heidenthal, raises the question of whether they could have been just following the orders
of a superior officer, his complaint as a whole makes it plausible that Maifeld’s alleged
desire to punish Plaintiff necessarily required the agreement of some of her subordinates.
In this case, the issue of concerted action leaves questions about whether the ‘meeting of
the minds’ constituted an actual agreement between conspirators or merely illustrated the
power of a coercive supervisor. In any event, Plaintiff has stated a claim of conspiracy
such that he is entitled him to discovery on this issue.
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Defendant’s Argument regarding Damages
Defendant further argues that the Prison Litigation Reform Act, (PLRA) 42 U.S.C.
§ 1997e(e) precludes Plaintiff’s § 1983 claim for damages against Maifeld in the absence
of a physical injury. It is Defendant’s position that the blood clots and blood flow problems
of which Plaintiff complains in his Second Amended Complaint are “not a physical injury for
purposes of the PLRA.” (Mtn. at 5). No authority is cited for this statement, although it does
appear that Defendant has made an accurate representation of Plaintiff’s claimed injuries.
Plaintiff adds that discovery will show that his medical issues have been diagnosed by a
physician.
As Plaintiff has noted, his physical injuries need not be substantial. While the statute
does not contain a definition of the “physical injuries,” courts have now had fifteen years
to explore the parameters of that phrase in the context of the PLRA.
Appeals courts confronting the issue have held that although a de minimis
showing of physical injury does not satisfy the PLRA's physical injury
requirement, an injury need not be significant to satisfy the statutory
requirement. See Mitchell v. Horn, 318 F.3d 523, 536 (3rd Cir. 2003)
(surveying the authorities and finding “the courts of appeals have read
1997e(e) to require a less-than-significant-but-more-than-de minimis physical
injury as a predicate to allowing the successful pleading of an emotional
injury.”)
Clifton v. Eubank, 418 F.Supp.2d 1243, 1245 (D. Colo. 2006).
Plaintiff also notes that the injuries to which he has referred are often precursors of
much more serious circulatory problems. This could particularly be true if Plaintiff has been
subject to additional time in segregation. On the whole, I believe Plaintiff has raised a
reasonable specter of physical injuries such that his claim for monetary damages will

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remain intact for the present.1
Qualified Immunity
Defendant’s final argument in her motion to dismiss is that she is entitled to qualified
immunity. The defense having been raised, it is Plaintiff’s burden to show it is not
appropriate.
As Defendant notes, Plaintiff must come forward with facts or allegations sufficient
to show both “‘that the defendant’s actions violated a constitutional or statutory right’” and
that the right was clearly established at the time of the defendant’s alleged unlawful
conduct. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (quoting Albright v.
Rodriguez, 51 F.3d 1531, 1534 (10th Cir 1995)). See also Workman v. Jordan, 32 F.3d
457, 479 (10th Cir. 1994); Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996). Pursuant
to Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), it is up to my discretion which prong
should be addressed first in this particular fact situation.
Of course, considering a defense of qualified immunity in the posture of a motion to
dismiss varies from the analysis under a summary judgment standard.
[W]e accept as true all well-pleaded facts, as distinguished from conclusory
allegations, and view the facts in the light most favorable to the nonmoving
party to determine whether the complaint sets forth plausible grounds to
believe the claims asserted will find evidentiary support. But we conduct this
review in light of the unique nature of qualified immunity, which imposes a
heavy two-part burden on a plaintiff[.]

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In searching for a case which discussed the severity of blood clots or circulatory
ailments, I found only an unpublished case from the Middle District of Pennsylvania in
which an objection (to a magistrate judge’s recommendation) contained a reference to
blood clots Plaintiff had suffered. That mention in the objection was found to be
sufficient to allow the plaintiff to amend his complaint so as to avoid dismissal. Scerbo
v. Lowe, 2007 WL 1366773 *4 (M.D.Pa.)
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Trant v. Oklahoma, 2011 WL 2356385 *4 (10th Cir. June 15, 2011) (citation omitted).
Plaintiff argues that he has met the standard for stating his claim of conspiracy to
violate his constitutional rights and has therefore satisfied the first prong of the test. He
goes on to cite cases which establish both that prison officials may not retaliate against
prisoners for exercising their First Amendment rights, Smith v. Maschner, 899 F.2d 940
(10th Cir. 1990) and that allegations of conspiracy may form the basis of a claim brought
pursuant to § 1983. Tonkovich V. Kansas Bd. Of Regents, 159 F.3d 504 (10th Cir. 1998).
I have found that Plaintiff’s complaint has set forth plausible grounds to believe his
claim of conspiracy asserted will find evidentiary support. As it is his contention that
defendants conspired to retaliate against him for exercising his First Amendment rights, that
is undoubtably a right that was clearly established at the time of the alleged misconduct and
that Defendant knew or should have known. The defense of qualified immunity must fail.
Based on the foregoing analysis, it is therefore Ordered that Defendant Maifeld’s
Partial Motion to Dismiss is DENIED.
Dated: July 13, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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