Brosh et al v. Duke
Filing
25
ORDER Adopting in Part and Rejecting in Part 18 Report and Recommendations, and denying in part and granting in part 9 Motion to Dismiss by Judge Christine M. Arguello on 10/24/12.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-00337-CMA-MJW
JEFF BROSH, and
JOHN COON,
Plaintiffs,
v.
LINDA DUKE, in her individual capacity,
Defendant.
ORDER ADOPTING IN PART AND REJECTING IN PART THE JULY 23, 2012
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, AND DENYING
IN PART AND GRANTING IN PART DEFENDANT DUKE’S MOTION TO DISMISS
This matter is before the Court on the July 23, 2012 Recommendation of United
States Magistrate Judge Michael J. Watanabe (Doc. # 18), in which he recommended
that Defendant Sergeant Linda Duke’s Motion to Dismiss (Doc. # 9) be granted. For the
following reasons, the Court adopts in part and rejects in part the Recommendation of
the Magistrate Judge and denies in part and grants in part Defendant Duke’s Motion to
Dismiss.
I. BACKGROUND
Plaintiffs Jeff Brosh and John Coon (collectively, “Plaintiffs”) initiated this action
on February 9, 2012. The following facts are taken from Plaintiff’s Complaint. (Doc.
# 1.)
The incident that gave rise to this lawsuit occurred on February 12, 2010, at the
Fremont Correction Facility (“Fremont”) where Plaintiffs were incarcerated. On that
date, Plaintiffs were participating in a kitchen work assignment under the supervision
of Sergeant Rhonda Wheeler. At approximately 6:00 p.m., Plaintiffs were instructed to
carry milk cartons into a large cooler, referred to as Cooler # 4. When Plaintiffs arrived
at Cooler # 4, they found Defendant Duke supervising two other inmates. After
Defendant Duke permitted Plaintiffs to enter Cooler # 4, she removed the two other
inmates and locked Plaintiffs inside. After locking Plaintiffs in Cooler # 4, Defendant
Duke continued with her normal workday, without notifying anyone of her actions. After
approximately twenty minutes passed, Sergeant Wheeler discovered Plaintiffs, and
freed them from Cooler # 4. Sergeant Wheeler later confronted Sergeant Duke, who
admitted to intentionally locking Plaintiffs in the cooler.
Plaintiffs’ single claim for relief, brought under 42 U.S.C. § 1983, asserts that
Defendant Duke’s intentional act of locking them in the cooler violated Plaintiffs’ Eighth
Amendment right to be free from cruel and unusual punishment. On April 17, 2012,
Defendant Duke moved to dismiss Plaintiffs’ Complaint. (Doc. # 9.) In her motion,
Defendant Duke argued that Plaintiffs failed to state a claim upon which relief could be
granted, that she is entitled to qualified immunity, that Plaintiffs were not entitled to
compensatory damages absent physical injury, and that Plaintiffs’ declaratory and
injunctive claims were moot. Plaintiffs responded on May 11, 2012, and Defendant
Duke replied on May 25, 2012. (Doc. ## 15, 16.)
2
On July 23, 2012, the Magistrate Judge issued his Recommendation, finding that
Plaintiffs had failed to state a claim upon which relief could be granted. (Doc. # 18 at 8.)
Plaintiffs filed objections on August 20, 2012, and Defendant Duke responded to those
objections on September 24, 2012. (Doc. ## 21, 24.)
II. STANDARDS OF REVIEW
A.
RECOMMENDATION OF MAGISTRATE JUDGE
When a magistrate judge issues a recommendation on a dispositive matter,
a district court judge is required to “determine de novo any part of the magistrate
judge’s [recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
An objection is properly made if it is both timely and specific. United States v. One
Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir.
1996). An objection is timely if made within 14 days after the magistrate judge issues
his recommendation. Id. An objection is sufficiently specific if it “enables the district
judge to focus attention on those issues – factual and legal – that are at the heart
of the parties’ dispute.” Id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
If objections are not made or if made improperly, the Court has discretion to review the
recommendation under whatever standard it deems appropriate. Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991). In conducting its review, “[t]he district judge may
accept, reject, or modify the [recommendation]; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
3
B.
MOTIONS TO DISMISS
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim is to test Athe sufficiency of the allegations within the four corners of the
complaint.@ Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A complaint will
survive such a motion only if it contains Aenough facts to state a claim to relief that is
plausible on its face.@ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For a
motion to dismiss, A[t]he question is whether, if the allegations are true, it is plausible
and not merely possible that the plaintiff is entitled to relief under the relevant law.@
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir. 2009).
AThe plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully.@ Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotation marks and citation omitted).
In reviewing a Rule 12(b)(6) motion, a court must accept all the well-pleaded
allegations of the complaint as true and must construe them in the light most favorable
to the plaintiff. Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless,
a complaint does not Asuffice if it tenders >naked assertion[s]= devoid of >further factual
enhancement.=@ Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). AThe
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.@ Miller v. Glanz,
948 F.2d 1562, 1565 (10th Cir. 1991).
4
III. ANALYSIS
The difficulty in this case stems from the fact that Plaintiffs did not specify what
type of Eighth Amendment claim they intended to bring. (Doc. # 1.) As case law makes
clear, there are several different types of Eighth Amendment claims that require
different showings of proof. See Hudson v. McMillian, 503 U.S. 1, 8 (1992) (“[w]hat is
necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments
Clause depends upon the claim at issue”). In her Motion to Dismiss, Defendant Duke
argued that Plaintiffs had failed to state a plausible Eighth Amendment conditions of
confinement claim or a deliberate indifference to medical needs claim. In response,
Plaintiffs contended that they had brought a conditions of confinement claim, but did
not argue that they had pleaded any other type of Eighth Amendment claim. Understandably taking his cue from the parties’ arguments, the Magistrate Judge also
construed the Complaint as primarily bringing a conditions of confinement claim.
Although the Court agrees with the Magistrate Judge that Plaintiffs have not pleaded
a plausible conditions of confinement claim,1 the Court finds that the factual allegations
in the Complaint are sufficient to sustain an excessive force claim under the Eighth
Amendment.
1
Based on the Court’s de novo review of the Complaint, it does not appear that Plaintiffs
intended to bring an Eighth Amendment deliberate indifference to medical needs claim. To the
extent that such a claim was brought, however, the Magistrate Judge was correct in finding that
Plaintiffs failed to allege an affirmative link between Defendant and the alleged one-day delay
in medical care. (Doc. # 18 at 8.) Plaintiffs raised no objection to this aspect of the Magistrate
Judge’s Recommendation , and the Court finds “there is no clear error on the face of the
record.” Fed. R. Civ. P. 72 advisory committee’s note.
5
The Court will begin its analysis by briefly explaining why it finds Plaintiffs’
objections unconvincing. The Court will then explain, however, why the factual
allegations in the Complaint are sufficient to state an excessive force claim under the
Eighth Amendment. Finally, because the Court finds that the factual allegations in the
Complaint are sufficient to state a claim for relief, the Court will also discuss the other
arguments made by Defendant Duke in her Motion to Dismiss; specifically, her
arguments that she was entitled to qualified immunity, that Plaintiffs are not entitled to
compensatory damages absent physical injury, and that Plaintiffs’ claims for declaratory
and injunctive relief are moot.
A.
PLAINTIFFS’ OBJECTIONS
Plaintiffs’ first objection is that the Magistrate Judge applied an incorrect legal
standard because he “incorrectly [ruled] on the ultimate issue as to whether Plaintiffs
will prevail at trial.” (Doc. # 21 at 3.) This argument is wholly without merit. The
Magistrate Judge made no improper credibility determinations as Plaintiffs claim; rather,
he accepted as true the facts alleged by Plaintiffs and found that the factual allegations
were insufficient to sustain a plausible conditions of confinement claim. As Defendant
Duke observes, that the Magistrate Judge “construed the facts in a light most favorable
to Plaintiffs and found them wanting, is not indicia that the facts were not construed
favorably to Plaintiffs.” (Doc. # 24 at 4.)
Plaintiff’s second objection is that the Magistrate Judge erred by finding that
Plaintiffs had not pleaded a viable conditions of confinement claim. Again, the Court
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finds this argument without merit. To state a conditions of confinement claim under the
Eighth Amendment, a prisoner must allege “an objective component and subjective
component associated with the deficiency.” Shannon v. Graves, 257 F.3d 1164, 1168
(10th Cir. 2001). The objective requirement is that the conditions complained of must
be “sufficiently serious” to implicate constitutional rights. Because discomfort is “part of
the penalty that criminal offenders pay for their offenses against society,” Rhodes v.
Chapman, 452 U.S. 337, 347 (1981), Plaintiffs must show that the challenged condition
was more than uncomfortable, and rose to the level of “posing a substantial risk of
serious harm” to their health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
In the instant case, Plaintiffs were locked in Cooler # 4 for approximately twenty
minutes.2 To determine whether this is “sufficiently serious,” the Court must examine
the particular facts of the situation, including the circumstances, nature, and duration of
the challenged condition. See Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001).
Although exposure to cold temperatures can give rise to conditions of confinement
claims, the Court agrees with the Magistrate Judge that “the approximately twenty
minutes plaintiffs were in the cooler is, by several magnitudes a shorter period of time
facing cold conditions than in other cases.” (Doc. # 18 at 7) (citing cases). Given this
only brief exposure to cold temperature, the Court finds that the condition complained of
is not “sufficiently serious” to sustain an Eighth Amendment conditions of confinement
claim. See Despain, 264 F.3d at 974 (“the length of exposure to the conditions is often
2
The Complaint does not allege the precise temperature of Cooler # 4, but it is reasonable to
infer that Cooler # 4’s temperature was above freezing, considering that milk was being stored
in it.
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of prime importance.”); see also Whitnack v. Douglas Ctny., 16 F.3d 954, 958 (8th Cir.
1994) (“the length of time required before a constitutional violation is made out
decreases as the level of filthiness endured increases.”). Because amendment of this
claim would be futile, Plaintiffs’ conditions of confinement claim should be dismissed
with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.
2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim
. . . and granting leave to amend would be futile.”).
B.
EXCESSIVE FORCE CLAIM
Although the Court finds Plaintiffs’ objections without merit, the Court also finds
that the factual allegations pleaded in the Complaint are sufficient to sustain an
excessive force claim against Defendant Duke.3 A prisoner’s Eighth Amendment right
to be free from cruel and unusual punishment is implicated when a prison official uses
force against the prisoner. Whitley v. Albers, 475 U.S. 312, 319 (1986).
At first glance, it seems that excessive force is not at issue here because
Defendant Duke employed no direct physical force against Plaintiffs’ bodies, as is the
case in so many excessive force claims. See, e.g., Hudson, 503 U.S. 9-10 (stating that
“[t]he Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily
excludes from constitutional recognition de minimis uses of physical force, provided
3
To be sure, this is not the theory of relief Plaintiffs relied upon in their Response to the Motion
to Dismiss. Although Plaintiffs discuss some considerations relevant to an excessive force
claim in their objections, it is clear that Plaintiffs have merely conflated their conditions of
confinement claim with the law pertaining to excessive force claims. (Doc. # 24 at 8.) In the
future, Plaintiffs should pay more attention to the distinctions between the different Eighth
Amendment claims.
8
that the use of force is not of a sort repugnant to the conscience of mankind.”)
(emphasis added, citation and internal quotations omitted). However, by locking
Plaintiffs in Cooler # 4, Defendant Duke forcibly restricted Plaintiffs’ movement, and it
is reasonable to infer that Defendant Duke’s purpose was to cause harm to Plaintiffs.
The Court finds that this use of force, although indirect, implicates the Eighth
Amendment’s prohibition against the excessive use of force by prison officials. See
Washington v. Hively, --- F.3d ---, 2012 WL 3553419, at *2 (7th Cir. 2012) (“persecution
. . . involves the use of significant physical force against a person’s body, or the infliction
of comparable physical harm without direct application of force”). In Washington, the
Seventh Circuit stated that locking a person in a cell and starving him would be an
example of excessive force. Id. Similarly, locking Plaintiffs in a cooler for a potentially
indefinite amount of time was an act of force.
The Tenth Circuit has also held that a prison official’s indirect application of force
may give rise to a plausible Eighth Amendment excessive force claim. See Despain,
264 F.3d at 978 (holding that spraying pepper spray into a cell block “implicates the
excessive use of force.”). Moreover, in the context of a Fourth Amendment excessive
force claim, the Tenth Circuit has stated that “[p]hysical contact is similarly not required
to demonstrate the unreasonableness of the force used to effect a particular seizure.”
Martin v. Bd. of Ctny. Comm’rs of Pueblo, 909 F.2d 402, 406 (10th Cir. 1990). As
Martin recognized, “[i]t would require a perverse reading . . . to conclude that officers
can employ whatever threat or nonphysical force they want, regardless of the amount
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of injury inflicted, so long as no physical contact exists.” Id. at 407. Given the
recognition in case law that the indirect use of force can constitute “excessive force,”
the Court finds it appropriate to apply the Whitley standard for excessive force claims
to the factual allegations pleaded in the Complaint.
When prison officials use force against prisoners, the core judicial inquiry in
determining whether the force was excessive is “whether force was applied in good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
Hudson, 503 U.S. at 7; Whitley, 475 U.S. 320-21. The Court considers the need for the
use of force, the relationship between that need and the amount of force used, the
extent of the prisoner’s injuries, the extent of the perceived threat that the prisoner
posed, and any efforts made by the prison officials to lessen the severity of the
response. See Hudson, 503 U.S. at 7.
Accepting the factual allegations in the Complaint as true, the Court finds that the
excessive force test is easily met in this case. Locking Plaintiffs in Cooler # 4 was not a
good faith effort by Defendant Duke to maintain or restore order; indeed, it appears that
Defendant Duke acted with no legitimate penological purpose whatsoever. “Where no
legitimate penological purpose can be inferred from a prison employee’s alleged
conduct . . . , the conduct itself constitutes sufficient evidence that force was used
maliciously and sadistically for the very purpose of causing harm.” Despain, 264 F.3d
at 978 (internal quotations and citations omitted).
10
In his Recommendation, the Magistrate Judge stated that the action of Defendant
Duke was “unprofessional, unbecoming of a person in her position, and juvenile at
best.” (Doc. # 18 at 7.) Certainly, this is one way to view Defendant Duke’s conduct.
However, it is also reasonable to view Defendant Duke’s actions as far more sinister.
Fortunately, Plaintiffs were discovered by Sergeant Wheeler approximately twenty
minutes after they were locked in Cooler # 4. Had Sergeant Wheeler not discovered
Plaintiffs, however, Defendant Duke’s conduct might have caused substantial injury to
Plaintiffs.4 As such, it is reasonable to infer that Defendant Duke acted with malicious
intent to harm Plaintiffs.
In Hudson, the Court explained that the distinct test applied in excessive force
claims stems from society’s expectations. 503 U.S. at 8-9. When a prison official
maliciously and sadistically uses force to cause harm, “contemporary standards of
decency always are violated.” Id. at 9. This is because, as a society, we expect that
prison officials, when applying force to prisoners, will act only for legitimate purposes.
See Despain, 264 F.3d at 978. (“We will not require inmates to be subjected to the
malicious whims of prison guards.”). As explained, Defendant Duke acted with no such
legitimate purpose in applying force to Plaintiffs. Thus, the Court finds that her conduct
was “repugnant to the conscience of mankind.” Whitley, 475 U.S. at 327.
Based on the allegations in the Complaint, it does not appear that Plaintiffs
suffered any significant physical harm from the approximately twenty-minute exposure
4
It is unclear when Plaintiffs might have been discovered had Sergeant Wheeler not found
them locked inside Cooler # 4.
11
to cold temperature inside Cooler # 4.5 The Court recognizes that de minimis
“applications of force are necessarily excluded from the cruel and unusual punishment
inquiry.” Despain, 264 F.3d at 978; Hudson 503 U.S. at 9 (“Not every push or shove,
even if it may later seem unnecessary in the peace of a judge’s chambers, violates a
prisoner’s constitutional rights.”). However, the Supreme Court has held that the focus
of an excessive force inquiry should be on the force used, not on the seriousness of the
injury sustained. See Wilkins v. Gaddy,130 S.Ct. 1175, 1178 (2010) (“Injury and force,
however, are only imperfectly correlated, and it is the latter that ultimately counts.”).
Prisoners do not lose their excessive force claims simply because they may have the
good fortune to escape serious injury. See id. Here, the force employed by Defendant
Duke was not de minimis because it could have caused serious injury to Plaintiffs had
Sergeant Wheeler not found them after twenty minutes. Thus, at least at this stage in
the litigation, the seemingly insignificant injury suffered by Plaintiffs does not preclude
them from pursuing their Eighth Amendment claim against Defendant Duke.
C.
QUALIFIED IMMUNITY
In her Motion to Dismiss, Defendant Duke asserts that she is entitled to qualified
immunity. Under the doctrine of qualified immunity, government officials are protected
Afrom liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
5
Plaintiffs allege only that they “suffered physical and emotional injury as a result of the
incident.” (Doc. # 1, ¶ 4.) Plaintiffs do not specify the nature or seriousness of their injuries,
and there are no other allegations in the Complaint that Plaintiffs suffered any substantial injury.
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known.@ Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (internal quotation marks omitted)).
AQualified immunity requires a >two-step sequence.=@ Morris v. Noe, 672 F.3d
1185, 1191 (10th Cir. 2012) (quoting Pearson, 555 U.S. 223). AWhen a defendant
asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to
show that: (1) the defendant violated a constitutional right and (2) the constitutional right
was clearly established.@ Id. (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009)).
Having already determined that Plaintiffs have sufficiently alleged that Defendant
Duke violated their constitutional right to be free of excessive force, the Court must
determine whether this right was clearly established when Defendant Duke locked
Plaintiffs in Cooler # 4 on February 12, 2010. “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that [her] conduct was unlawful in the situation [she] confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001). The Court finds that Defendant Duke had
sufficient notice that her conduct was unlawful.
Although the Court has been unable to find any Supreme Court or Tenth Circuit
cases in which a prisoner was intentionally locked in a cooler by a prison official, it is
well-established that prisoners possess a right to be free from the use of excessive
force. See Hudson, 503 U.S. 1. As the Supreme Court explained, “[w]hen prison
officials maliciously and sadistically use force to cause harm, contemporary standards
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of decency always are violated . . . whether or not significant injury is evident.” Id. at 9.
Thus, at this stage of the proceedings, Defendant Duke’s assertion of qualified immunity
must fail.
D.
WHETHER PLAINTIFFS ARE ENTITLED TO COMPENSATORY DAMAGES
Defendant Duke also argues that Plaintiffs’ claim should be dismissed under the
Prison Litigation Reform Act (“PLRA”). The PLRA provides that “[n]o Federal civil action
may be brought by a prisoner confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e). However, even when prisoners do not allege physical
injury, § 1997e(e) does not foreclose a prisoner’s claim for nominal or punitive
damages. Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001). Punitive
damages are available when “the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous indifference to federally
protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). As the Court has
already explained, it is reasonable to infer from the factual allegations that Defendant
Duke acted with malicious intent. Thus, the Court denies Defendant Duke’s request to
dismiss Plaintiffs’ claim in the entirety.
Although the case may move forward on Plaintiffs’ claim for punitive and nominal
damages, the Court agrees with Defendant Duke that Plaintiffs may not recover
emotional distress damages because the Complaint does not contain sufficient factual
allegations of physical injury. The PLRA provides no statutory definition for the term
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“physical injury” and the Tenth Circuit has provided little guidance. See McConnell
v. Cirbo, No. 11-cv-02342, 2012 WL 3590762, at *11 (D. Colo. Apr. 24, 2012)
(unpublished). However, it is clear that while an injury “need not be significant to
satisfy the physical injury requirement,” a de minimis injury does not satisfy the statutory
requirement. See Clifton v. Eubank, 418 F. Supp. 2d 1243, 1245 (D. Colo. 2006) (citing
Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003)).
Defendant Duke contends that Plaintiffs’ claim for compensatory damages
should be dismissed because Plaintiffs do not allege that they suffered from any actual
physical injury. (Doc. # 9 at 9.) In response, Plaintiffs point to the allegation in the
Complaint that they “suffered physical and emotional injury as a result of the incident.”
(Doc. # 1, ¶ 4.) However, this vague and conclusory allegation provides no detail on the
nature of the alleged injuries sustained by Plaintiffs. As such, Plaintiffs’ allegation is
insufficient to show that Plaintiffs’ injuries were more than de minimis. Thus, Plaintiffs’
claim for compensatory damages should be dismissed.6
E.
WHETHER PLAINTIFFS’ CLAIMS FOR DECLARATORY AND
INJUNCTIVE RELIEF ARE MOOT
Finally, Plaintiffs seek injunctive and declaratory relief.7 In her Motion to Dismiss,
Defendant Duke asserts, and Plaintiffs concede, that neither Plaintiff is presently
6
As it is possible that Plaintiffs can amend this claim, dismissal is without prejudice. See
Brereton, 434 F.3d at 1219.
7
Although the Complaint does not specify what sort of equitable remedies Plaintiffs request,
both parties seem to assume that Plaintiffs’ request for “[d]eclaratory relief and other appropriate equitable relief” (Doc. # 1 at 6) refers to their desire to avoid working with Defendant
Duke.
15
incarcerated at FCF.8 As such, the Court agrees with Defendant Duke that Plaintiffs’
request for equitable relief is moot.
“Mootness is a threshold issue because the existence of a live case or
controversy is a constitutional prerequisite to federal court jurisdiction.” McClendon v.
City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). “This requirement exists at all
stages of federal judicial proceedings, and it is therefore not enough that the dispute
was alive when the suit was filed; the parties must continue to have a personal stake
in the outcome.” Id. Despite conceding that they are not presently at FCF, Plaintiffs
argue that their claim for equitable relief is not moot because Plaintiff Brosh may be
transferred back to FCF.9 Plaintiffs’ concern, however, is wholly speculative. See
Jordan v. Sosa, 654 F. 3d 1012, 1032 (10th Cir. 2011) (rejecting prisoner’s argument
that his claims were not mooted by transfer to new prison when it was “entirely
speculative” that the prisoner might be transferred back to his former facility). Thus,
the Court finds that Plaintiffs’ claim for equitable relief should be dismissed as moot.
IV. CONCLUSION
Based on the foregoing, the Court ADOPTS IN PART AND REJECTS IN PART
the Magistrate Judge’s Recommendation. (Doc. # 18.)
Accordingly, it is ORDERED that Defendant Duke’s Motion to Dismiss (Doc. # 9)
is DENIED IN PART and GRANTED IN PART. Specifically, Plaintiffs’ claim for
8
Plaintiff Brosh is presently incarcerated at the Arkansas Valley Correctional Facility, and
Plaintiff Coon is on parole.
9
Plaintiffs make no argument as to why their claim for injunctive and declaratory relief is not
moot with respect to Plaintiff Coon.
16
compensatory damages is DENIED WITHOUT PREJUDICE, and Plaintiffs’ claim for
declaratory and injunctive relief is DENIED AS MOOT. Defendant Duke’s Motion to
Dismiss is DENIED in all other respects.
DATED: October
24
, 2012
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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