Burkhart v. Timme et al
Filing
63
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS: (1)The Motion to Dismiss 27 is GRANTED IN PART AND DENIED IN PART, as follows: (a) all claims for monetary damages asserted against the Defendants in their official c apacities are dismissed with prejudice as legally barred; (b) all claims for injunctive relief against Defendants Trainor, Wager, Ortiz, andSegura in their official capacities are dismissed with prejudice as legally barred; (c) all claims for injunct ive relief against Defendant Timme in her official capacity remain pending;(d) the Eighth Amendment claim based on Mr. Burkharts placement in RP status is dismissed without prejudice to amendment upon a proper showing; (e) the Due Process claim remai ns pending; (f) the Double Jeopardy claim is dismissed with prejudice as legally barred; (g) the Fourth Amendment claim based on searches of Mr. Burkharts cell is dismissed with prejudice as legally barred; (h) the claim against Defendant Segura for excessive force is cognizable as an Eighth Amendment claim and remains pending. by Judge Marcia S. Krieger on 12/7/11.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-00341-MSK-MEH
DAVID LEE BURKHART,
Plaintiff,
v.
WARDEN RAE TIMME, in her official and personal capacity;
CASE MANAGER ARTHUR TRAINOR, in his official and personal capacity;
ASSISTANT WARDEN RON WAGER, in his official and personal capacity;
CASE MANAGER III SHELLY ORTIZ, in her official and personal capacity; and
CORRECTIONAL OFFICER I MS. SEGURA, in her official and personal capacity,
Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS
THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss (#27), to
which Plaintiff David Lee Burkhart responded (#32), and the Defendants replied (#45). Having
considered the same, the Court FINDS and CONCLUDES the following.
I.
Jurisdiction
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1343 and 42
U.S.C. § 1983.
II.
Background
Mr. Burkhart is a prisoner incarcerated in the Fremont Correctional Facility, a state
prison in Colorado. In his Complaint (#1)1, he asserts a variety of civil rights claims based on
1
The Court is mindful that Mr. Burkhart is proceeding pro se and, therefore, the Court
construes his pleadings liberally and holds him to a “less stringent standard” than pleadings
alleged violations of his constitutional rights, primarily centering around his placement in
“Restricted Privileges” (“RP”) status pursuant to regulations issued by the Colorado Department
of Corrections (“CDOC”).
Construing the Plaintiff’s allegations most favorably to him, the Court finds that the
Complaint (#1) alleges the following facts.
Placement of an inmate in RP status is governed by CDOC’s Administrative Regulation
No. 600-05.2 Privileges are restricted for inmates “who refuse to participate in required labor,
educational, or work programs, or who refuse to undergo available counseling or combination of
the foregoing.” Id. at II. If an offender refuses to participate in or is terminated from a CDOC
sanctioned work or treatment program, an incident report is issued and supervisors are notified.
Id. at IV.A. Case managers then determine if the offender meets the criteria for placement in RP
status. Id. The inmate has 15 days to file an administrative appeal using a specified form. Id. at
IV.B. RP status is imposed for a minimum of 90 days. Id. at IV.C. A procedure is specified for
drafted by lawyers in accordance with Haines v. Kerner, 404 U.S. 519, 520 (1972). Such liberal
construction is intended merely to overlook technical formatting errors, poor writing style, and
other defects in the party’s use of legal terminology, citation, and theories. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, cannot act as a pro se litigant’s legal
advocate, and a pro se plaintiff retains the burden to allege sufficient facts to state a viable claim.
Furthermore, pro se status does not relieve a party of the duty to comply with the various rules
and procedures governing litigants and counsel or the requirements of the substantive law, and in
these regards, the Court must apply the same standard to counsel licensed to practice law and to
a pro se party. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994).
2
The Court may consider this regulation, attached to the Defendants’ Motion to Dismiss,
without converting the motion to a motion for summary judgment as the Plaintiff has referred to
it in his Complaint and it is central to his claims. GFF Corp. v. Associated Wholesale Grocers,
Inc., 130 F.3d 1381, 1385 (10th Cir. 1997) (“if a plaintiff does not incorporate by reference or
attach a document to its complaint, but the document is referred to in the complaint and is central
to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be
considered on a motion to dismiss”).
removal from RP status, including satisfactory participation in the program causing placement on
RP status and case manager review. Id. at IV.D.
An inmate in RP status is denied television and radio in the cell and is prohibited canteen
items except medical and hygiene items (and a few specific clothing items). Id. IV.F. The
inmate is required to turn in all privilege items; if any previously permitted items are now
prohibited, such items are permanently confiscated. Id. Inmates on RP status wear different
colored uniforms and are not allowed to attend recreation with general population offenders. Id.
Mr. Burkhart was placed in RP status on December 2, 2010 by Defendants Trainor and
Ortiz, both case managers. According to Mr. Burkhart, before this he was employed in a facility
kitchen and had requested to change his job. He told Mr. Trainor, his case manager. Mr.
Trainor had him fill out a job change request form but informed him that he could not be moved
until a replacement was found. Upon hearing this, Mr. Burkhart asked to speak to Mr. Trainor’s
supervisor, which ended the meeting. Mr. Burkhart and Mr. Trainor met weekly from
September 12, 2010 until November 17, 2010. Finally, Mr. Trainor stated that “the replacement
of you comes down from my supervisor III.”
Mr. Trainor reported Mr. Burkhart for failure to work on November 17, 2010. In
addition to being placed on RP status, Mr. Burkhart was also placed in punitive segregation. On
November 27, 2010, Mr. Trainor had Mr. Burkhart sign a form acknowledging that he
understood that he was being placed on RP status and the consequences of violating the
restrictions. Mr. Burkhart states that he wrote on the form that he had not “refused” to work but
rather had “failed” to work.
On December 1, 2010, Mr. Burkhart appeared in front of a job board but was not
permitted to give his side of the story. Thereafter, it appears that Mr. Burkhart filed a written
protest to Ms. Ortiz, the supervising case manager. Mr. Burkhart tried to explain that he had had
an issue at the kitchen and had told Mr. Trainor about it. Ms. Ortiz refused to modify the RP
decision and informed him that he was not entitled to a hearing. Mr. Burkhart filed an appeal on
December 10, 2010, primarily complaining that he was not given a hearing or a copy of his
acknowledgment form; the appeal was denied by Defendant Wager, the Assistant Warden of the
facility.
Mr. Burkhart alleges that at Fremont, inmates in RP status are kept in lock-down 22
hours a day and are segregated from general population offenders. In addition, no visits are
permitted for the first 30 days, and thereafter only by appointment. Mr. Burkhart also alleges
that cells of RP status inmates are searched every day.
Mr. Burkhart claims that Defendant Segura, a correctional officer, uses language that can
be construed as “fighting words” in order to “entice offenders to create a disturbance.” He
alleges that on January 10, 2011, Ms. Segura used such language to provoke a response; after
Mr. Burkhart responded, Ms. Segura “assaulted” Mr. Burkhart and placed him in wrist restraints.
He contends that the restraints were applied too tightly and caused him injury; thereafter, Ms.
Segura refused Mr. Burkhart’s request for medical attention.
Based on the above facts, it appears that Mr. Burkhart asserts the following claims for
relief: (1) violation of the Eighth Amendment, apparently based on the contention that RP status
amounts to cruel and unusual punishment; (2) violation of due process under the Fourteenth
Amendment, on the grounds that offenders are placed in RP status without a hearing; (3)
violation of the Double Jeopardy clause by imposing two punishments on Mr. Burkhart for the
same offense of failing to work (punitive segregation and placement in RP status); (4) violation
of the Fourth Amendment based on Ms. Segura’s searches of Mr. Burkhart’s cell, including a
search whereby she seized, copied and distributed Mr. Burkhart’s legal work to other offenders
in the general population, and by improperly seizing Mr. Burkhart and placing him in wrist
restraints so tightly that they caused injury; and (5) a negligence claim with respect to Ms.
Segura’s refusal to permit him medical attention for the injuries received from the wrist
restraints. The Defendants are all named in their official and individual capacities.
The Defendants move to dismiss the claims based on Eleventh Amendment immunity,
failure to state a claim, and failure to exhaust administrative remedies.
III.
A.
Analysis
Immunity
First, the Defendants argue that any claims for monetary damages asserted against them
in their official capacities are barred by the Eleventh Amendment. The Defendants are all
employees of CDOC, which is considered an arm of the State of Colorado and therefore immune
from suit under the Eleventh Amendment. Griess v. State of Colo., 841 F.2d 1042, 1044 (10th
Cir. 1988) (concluding that Eleventh Amendment immunity was not waived for State of
Colorado or CDOC). A claim against a state official in his or her official capacity is construed
as a claim against the state itself and generally barred by the Eleventh Amendment. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
However, immunity does not apply to the extent that a plaintiff seeks prospective
declaratory or injunctive relief pursuant to Ex Parte Young, 209 U.S. 123 (1908). See Hill v.
Kemp, 478 F.3d 1236, 1255-56 (10th Cir. 2007) (under Ex Parte Young, “the Eleventh
Amendment generally will not operate to bar suits so long as they (i) seek only declaratory and
injunctive relief rather than monetary damages for alleged violations of federal law, and (ii) are
aimed against state officers acting in their official capacities, rather than against the State
itself.”); Roe No. 2 v. Ogden, 253 F.3d 1225, 1233 (10th Cir. 2001). Nonetheless, there must be
some connection between the defendant’s enforcement power and the law at issue. Ex Parte
Young, 209 U.S. at 157; Weston v. Cassata, 37 P.3d 469, 474 (Colo. App. 2001) (“[I]n actions
for declaratory or injunctive relief . . . [state] government entities and their officers are properly
considered ‘persons’ under § 1983 so long as they are responsible for the implementation and
enforcement of a state statute.”).
Mr. Burkhart seeks monetary damages against all of the Defendants. Under the authority
discussed above, such claims are barred to the extent they are asserted against the Defendants in
their official capacities. Mr Burkhart also appears to request injunctive relief in the form of an
order releasing all offenders from RP status and requiring the Defendants to implement a hearing
procedure before inmates can be placed in RP status.3 Mr. Burkhart alleges that Defendant
Timme, the Warden of the Fremont Correctional Facility, implemented the RP regulation.
Therefore, construing the allegations in the light most favorable to Mr. Burkhart, he may be
stating a claim against Ms. Timme in her official capacity under Ex Parte Young for injunctive
relief. This claim for injunctive relief asserted against Ms. Timme, therefore, is not dismissed.
B.
Failure to State a Claim
1.
Applicable Law
Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted. There is a strong presumption against dismissal for
failure to state a claim under Rule 12(b)(6). See Cottrell, Ltd. v. Biotrol Int’l, Inc., 191 F.3d
1248, 1251 (10th Cir. 1999). However, a claim must be dismissed if the complaint does not
3
He also seeks some form of protective order to prevent harassment, but this remedy, if it
were granted, would presumably be directed at individuals.
contain enough facts to make the claim “plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is plausible on its face if the complaint contains sufficient
facts for a court to draw an inference that the defendant is liable for the alleged misconduct. See
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing id. at 556). Although a plaintiff is not
required to include detailed factual allegations in a complaint, the complaint must contain “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action” and
must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In
reviewing a complaint under Rule 12(b)(6), a court should accept, as true, all well-pleaded facts
and construe all reasonable allegations in the light most favorable to a plaintiff. Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009).
1.
Eighth Amendment
Defendants argue that Mr. Burkhart’s allegations, even if true, do not demonstrate a
violation of the Eighth Amendment; in other words, denying of privileges does not amount to
cruel and unusual punishment.
The Eighth Amendment prohibits punishments which, although not physically barbarous,
“involve the unnecessary and wanton infliction of pain,” or are grossly disproportionate to the
severity of the crime; this includes punishments that are “totally without penological
justification.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citations omitted). In addition,
prison officials are required by the Eighth Amendment to provide humane conditions of
confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable
safety from serious bodily harm. Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Mr. Burkhart alleges that the RP regulation results in “excessive” punishment; however,
his allegations are entirely conclusory. Thus, they are insufficient to state a claim. Mr. Burkhart
does not allege that the RP regulation is lacking any penological purpose. Indeed, on its face the
regulation shows that it is intended to address failure to participate in work or treatment
programs. In addition, there are no allegations that show any deprivation of a basic human need,
such as food,4 clothing, shelter, sanitation, medical care, or safety. Mr. Burkhart has not
suggested that there are any facts that he would like to plead. Therefore, this claim is dismissed
without prejudice.
2.
Due Process
Mr. Burkhart’s Due Process claim appears to be premised on the imposition of RP status
without a hearing. The Defendants argue that Mr. Burkhart has failed to allege a sufficient claim
because he has no liberty interest or property interest protected by the Due Process clause. The
Supreme Court has held that a prisoner is entitled to due process before he is subjected to
conditions that “impose[ ] atypical and significant hardship ... in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Giving Mr. Burkhart the
benefit of all favorable inferences, he may be able to demonstrate that the restriction of his
privileges imposes atypical and significant hardship in relation to the ordinary incidents of prison
life. Accordingly, dismissal of this claim is not appropriate at this time.
3.
Double Jeopardy
The Defendants move for dismissal of Mr. Burkhart’s Double Jeopardy claim on the
grounds that prison disciplinary sanctions do not implicate the double jeopardy clause of the
Fifth Amendment. Wirshing v. Colorado, 360 F.3d 1191, 1205 (10th Cir. 2004) (prison
4
Although Mr. Burkhart states that supplementary food items from the canteen are
necessary to fend off “malnutrition” from the facility’s kitchen services, and such items were not
available to inmates in RP status, this would be an issue relating to the general provision of food,
not to the validity of the RP regulation.
disciplinary sanctions do not implicate double jeopardy protections). Mr. Burkhart has cited no
legal authority demonstrating that Double Jeopardy protections apply to a prison disciplinary
sanction such as the restriction of privileges. Accordingly, this claim is dismissed with
prejudice.
4.
Fourth Amendment
The Defendants contend that Mr. Burkhart does not state a claim under the Fourth
Amendment because prison searches do not violate an inmate’s Fourth Amendment rights. The
Supreme Court has held that “the Fourth Amendment proscription against unreasonable searches
does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526
(1984) . To the extent that Mr. Burkhart’s claim is based on searches of his cell, he does not
state a claim.
However, Mr. Burkhart also asserts a claim against Ms. Segura for allegedly assaulting
him and using wrist restraints in a manner that caused him injury. If Mr. Burkhart can
demonstrate that Ms. Segura acted maliciously and sadistically for the very purpose of causing
harm rather than in a good-faith effort to maintain or restore discipline such facts plausibly state
a claim for excessive force in violation of the Eighth Amendment5. Mitchell v. Maynard, 80
F.3d 1433, 1440 (10th Cir. 1996) (citing Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)); see also
Stanton v. Furlong, 73 Fed.Appx. 332 (10th Cir. 2003) (citing Mitchell as the applicable
standard for inmate’s claim that officer used excessive force in placement of handcuffs).
5
In general, excessive force claims are examined under the Fourth Amendment as an
unreasonable seizure. Graham v. Connor, 490 U.S. 386 (1989). However, in the prison setting,
excessive force claims fall under the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327,
(refusing to consider a Fourteenth Amendment due process claim by a prison inmate for
excessive force because the Eighth Amendment “serves as the primary source of substantive
protection to convicted prisoners” in such cases).
Therefore, while not cognizable as a Fourth Amendment claim, Mr. Burkhart’s claim based on
Ms. Segura’s conduct on January 10, 2011 is not be dismissed as it states a colorable Eighth
Amendment claim.6
C.
Failure to Exhaust Administrative Remedies
The Defendants also argue that Mr. Burkhart’s claim against Ms. Segura fails because he
did not allege that he had exhausted his claims within the CDOC’s grievance procedures.
Failure to exhaust is an affirmative defense, not a pleading requirement. Jones v. Bock, 549 U.S.
199, 216 (2007). Therefore, Mr. Burkhart’s failure to plead exhaustion does not require
dismissal of the claim.
IT IS THEREFORE ORDERED
(1)
The Motion to Dismiss (#27) is GRANTED IN PART AND DENIED IN
PART, as follows:
(a) all claims for monetary damages asserted against the Defendants in their
official capacities are dismissed with prejudice as legally barred;
(b) all claims for injunctive relief against Defendants Trainor, Wager, Ortiz, and
Segura in their official capacities are dismissed with prejudice as legally barred;
(c) all claims for injunctive relief against Defendant Timme in her official
capacity remain pending;
(d) the Eighth Amendment claim based on Mr. Burkhart’s placement in RP status
is dismissed without prejudice to amendment upon a proper showing;
(e) the Due Process claim remains pending;
6
To the extent Mr. Burkhart also asserts a state law negligence claim based on the same
conduct, it also remains pending.
(f) the Double Jeopardy claim is dismissed with prejudice as legally barred;
(g) the Fourth Amendment claim based on searches of Mr. Burkhart’s cell is
dismissed with prejudice as legally barred;
(h) the claim against Defendant Segura for excessive force is cognizable as an
Eighth Amendment claim and remains pending.
Dated this 7th day of December, 2011
BY THE COURT:
Marcia S. Krieger
United States District Judge
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