Mauchlin v. Davis et al

Filing 146

ORDER: The Court ADOPTS, AFFIRMS, and MODIFIES the 132 Recommendation, to wit, the Court AFFIRMS all aspects of the Recommendation and MODIFIES the Recommendation by finding that Defendant Davis is entitled to qualified immunity; and GRANTS in Part and DENIES in Part 121 Defendants' Motion to Dismiss. By Judge Raymond P. Moore on 10/9/2014.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-01449-RM-BNB
PETER P. MAUCHLIN,
Plaintiff,
v.
WARDEN B.R. DAVIS,
DR. P. ZHON, Psychologist,
ASSOCIATE WARDEN MUNSON,
ASSOCIATE WARDEN MILUSNIC,
CHIEF CORRECTIONAL SUPERVISOR KRIST,
CHIEF CORRECTIONAL SUPERVISOR LLOYD,
UNIT MANAGER P. RANGEL, and
CORRECTIONAL SUPERVISOR JANSON,
Defendants.
ORDER
This matter is before the Court on United States Magistrate Judge Boyd N. Boland’s
Recommendation (“Recommendation”) (ECF No. 132) and Defendants’ Objection to the
Recommendation (“Objection”) (ECF No. 133). Magistrate Judge Boland recommended that
this Court grant Defendants’ Motion to Dismiss (ECF No. 121) Plaintiff’s Second Amended
Complaint (“Complaint”) (ECF No. 115) in its entirety as to Plaintiff’s Fifth and Fourteenth
Amendment claims. As to Plaintiff’s Eighth Amendment claim, Magistrate Judge Boland
recommended this Court grant Defendants’ Motion to Dismiss as to Defendant Davis and deny
as to Defendants Zohn, Munson, Milusnic, Krist, Lloyd, Rangel, and Janson.

For the reasons stated below, the Court AFFIRMS, ADOPTS, and MODIFIES in Part the
Recommendation, OVERRULES in Part Defendants’ Objection, GRANTS Defendants’ Motion
to Dismiss Plaintiff’s Fifth and Fourteenth Amendment Claims, GRANTS Defendants’ Motion
to Dismiss to the extent Plaintiff’s Complaint asserts supervisory liability under the Eighth
Amendment as to all Defendants, GRANTS Defendants’ Motion to Dismiss Plaintiff’s Eighth
Amendment claim based upon personal participation as to Defendant Davis and DENIES
Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment personal participation claim as to
the remaining Defendants.
I.

LEGAL STANDARDS
A.

Review of the Magistrate Judge’s Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule
of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of
the magistrate judge’s [recommendation] that has been properly objected to.” In conducting its
review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the
Federal Rules of Civil Procedure and specific enough to enable the “district judge to focus
attention on those issues – factual and legal – that are at the heart of the parties’ dispute.” United
States v. One Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn,
474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, “the district court
may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory
2

Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”).
B.

Standards for Dismissal

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must
be dismissed if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do. . . .” Id. at 555 (citations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Id. A “plaintiff must ‘nudge []
[his] claims across the line from conceivable to plausible’ in order to survive a motion to
dismiss. . . . Thus, the mere metaphysical possibility that some plaintiff could prove some set of
facts in support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(emphasis in original, internal citation and quotation omitted).
3

The Tenth Circuit Court of Appeals has held “that 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) (internal quotation and citation omitted). The Tenth Circuit has
further noted “that the nature and specificity of the allegations required to state a plausible claim
will vary based on context.” Id. (Internal quotation and citation omitted.) Thus, the Tenth
Circuit “concluded the Twombly/Iqbal standard is ‘a middle ground between heightened fact
pleading, which is expressly rejected, and allowing complaints that are no more than labels and
conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme
C]ourt stated will not do.’” Id. (Citation omitted.)
For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept all well-pled factual allegations in the complaint as true and resolve all
reasonable inferences in a plaintiff’s favor. Morse v. Regents of the Univ. of Colo.,
154 F.3d 1124, 1126-27 (10th Cir. 1998) (citation omitted); Seamons v. Snow, 84 F.3d 1226,
1231-32 (10th Cir. 1996) (citations omitted). However, “when legal conclusions are involved in
the complaint ‘the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to [those] conclusions. . . .” Khalik, 671 F.3d at 1190 (quoting Iqbal,
556 U.S. at 678). “Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will
disregard conclusory statements and look only to whether the remaining, factual allegations
plausibly suggest the defendant is liable.” Id.

4

C.

Pro Se Status

Plaintiff is proceeding pro se. The Court, therefore, reviews his pleadings and
other papers liberally and holds them to a less stringent standard than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United
States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). A pro se litigant's
conclusory allegations without supporting factual averments are insufficient to state a claim upon
which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may
not assume that a plaintiff can prove facts that have not been alleged or that a defendant has
violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113
F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual
allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff’s behalf)
(citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a
court may not construct arguments or theories for the plaintiff in the absence of any discussion of
those issues) (citations omitted). Plaintiff's pro se status does not entitle him to application of
different rules of civil procedure. See Hall, 935 F.2d at 1110; Wells v. Krebs, Case No. 10 CV
00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010) (citation omitted).
D.

Biven’s Claims

Plaintiff brought this action pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 115 at 4.) Under Bivens, “‘it is
particularly important’ that plaintiffs ‘make clear exactly who is alleged to have done what to
whom, . . . as distinguished from collective allegations.” Pahls v. Thomas, 718 F.3d 1210, 1225
5

(10th Cir. 2013) (alteration in original) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1215 (10th Cir. 2011)). “When various officials have taken different actions with respect
to a plaintiff, the plaintiff’s facile, passive-voice showing that his rights ‘were violated’ will not
suffice. Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated contention
that ‘defendants’ infringed his rights.” Pahls, 718 F.3d at 1225-26 (emphasis in original and
citations omitted). “It is incumbent upon a plaintiff to ‘identify specific actions taken by
particular defendants’ in order to make out a viable . . . Bivens claim.” Id. at 1226 (emphasis in
original) (citing Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998)).
II.

FACTUAL AND PROCEDURAL BACKGROUND
No party objects to the Magistrate Judge’s recitation of Plaintiff’s factual allegations

against Defendants or to the Magistrate Judge’s recitation of the case’s procedural history.
Accordingly, the Court adopts and incorporates the factual and procedural history included
within the Recommendation as if set forth herein. (ECF No. 132 at 2-6.)
Briefly, Plaintiff, at times relevant to the Complaint, was an inmate of the Federal Bureau
of Prisons (“BOP”) incarcerated at the United States Penitentiary, Administrative Maximum in
Florence Colorado (“ADX”). (ECF No. 115 at 6.) Plaintiff’s Complaint arose from his
conditions of confinement while housed in the ADX’s “Lower ‘A’ Range” or the “Special
Housing Unit” (“SHU”). (ECF No. 115 at 6.) Plaintiff made several general allegations that
pertain to all Defendants or are couched in the passive-voice with the actor who subjected him to
such treatment left undefined. (ECF No. 115 at 4-13.) Additionally, Plaintiff made specific
allegations as to each Defendant regarding that Defendant’s treatment of him. (ECF No. 115 at
13-18.)
6

Plaintiff brought claims against all Defendants for violating his Fifth, Eighth, and
Fourteenth Amendment rights. (ECF No. 115 at 13-18.) Plaintiff did not specify which of his
Fifth and Fourteenth Amendment rights are at issue despite briefly referring to “equal
protection” and “due process” rights. (ECF No. 115 at 12-13.) The Magistrate Judge found no
allegations supporting a Fourteenth Amendment claim.

(ECF No. 132 at 6.) Moreover, the

Magistrate Judge concluded that the Fifth Amendment claim was the improper vehicle for
asserting the claims herein. (ECF No. 132 at 6-7.) No party filed an objection as to the
Magistrate Judge’s Recommendation with respect to Plaintiff’s Fifth and Fourteenth Amendment
claims.
III.

ANALYSIS
The Court has reviewed the Recommendation, Defendants’ Objection, and all relevant

pleadings. The Court concludes that Magistrate Judge Boland’s analysis of the issues 1 was
thorough and his conclusions were correct. As an additional ground for dismissal of claims
against Defendant Davis, this Court holds Defendant Davis is entitled to qualified immunity.
A.

Eighth Amendment Claim against Defendants

Plaintiff claimed the conditions during his incarceration in the SHU were egregious
enough to violate his Eighth Amendment right to be free from cruel and unusual punishment.
(ECF No. 115 at 6-18.)

1

Plaintiff filed no objections to any aspect of the Recommendation. Defendants do not object with respect to the
Magistrate Judge’s recommendation to dismiss Plaintiff’s Fifth and Fourteenth Amendment claims against
Defendants. (ECF No. 133 at 2 n.2.) Because no party filed a timely and specific objection to these aspects of the
Recommendation and this Court finds no clear error in the Magistrate Judge’s analysis, this Court adopts the
Recommendation with respect to dismissing Plaintiff’s Fifth and Fourteenth Amendment claims alleging “equal
protection” and “due process” violations. (See ECF No. 132 at 6-7.)
7

Under Bivens, an individual cannot be held liable unless he or she caused or
participated in an alleged constitutional violation. Pahls, 718 F.3d at 1225 (citing Iqbal,
556 U.S. at 676); Jackson v. Grondolsky, Case No. 09-5617, 2011 WL 13704, at *5
(D.N.J. Jan. 3, 2011) (holding that “personal involvement may exist only where the
named defendant violated the plaintiff’s rights either by executing the acts at issue
himself or herself, or by directing others to violate the plaintiff’s rights”) (citing Baker v.
Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995) and Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988)). There must be an affirmative link between the alleged
constitutional violation and the defendant’s own participation or failure to supervise.
Serna v. Colorado Dep’t of Corrs., 455 F.3d 1146, 1151-52 (10th Cir. 2006). “[I]n all
cases, a plaintiff must show that each defendant acted with the requisite state of mind.”
Pahls, 718 F.3d at 1226 (citation omitted).
In regard to supervisory liability, “[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal,
556 U.S. at 676; accord Pahls, 718 F.3d at 1225. Under Bivens, a plaintiff asserting a claim of
supervisory liability may proceed against a defendant-supervisor only by demonstrating: (1) the
defendant promulgated, created, implemented or possessed responsibility for the continued
operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with
the state of mind required to establish the alleged constitutional deprivation.” Pahls, 718 F.3d at
1225 (citing Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010)). “A plaintiff must
therefore identify the specific policies over which particular defendants possessed responsibility
and that led to the alleged constitutional violation.” Id. at 1226.
8

To state a “conditions of confinement” claim under the Eighth Amendment, Plaintiff
must have pled facts establishing that “(1) the condition complained of is ‘sufficiently serious’ to
implicate constitutional protection, and (2) prison officials acted with ‘deliberate indifference’ to
inmate health or safety.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “In order to satisfy the first requirement, the
inmate must show that he is incarcerated under conditions posing a substantial risk of serious
harm. With regard to the second requirement, the Supreme Court has explained that deliberate
indifference entails something more than mere negligence . . . [but] something less than acts or
omissions for the very purpose of causing harm or with the knowledge that harm will result. The
[Supreme] Court defined this deliberate indifference standard as equal to recklessness, in which a
person disregards a risk of harm of which he is aware.” Id. at 971-72 (internal quotations and
citation omitted). Thus, an Eighth Amendment claim has both an objective 2 (was the deprivation
sufficiently serious) and subjective (did the officials act with a sufficiently culpable state of
mind) component. See Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006).
In regard to the subjective component of whether an official acted with deliberate
indifference,
a prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.

2

The Magistrate Judge found that Defendants did not challenge whether Plaintiff adequately pled facts establishing
an objectively serious deprivation of his Eighth Amendment Rights, i.e., the conditions of his confinement posed a
substantial risk of serious harm. (ECF No. 132 at 10 n. 4 (citing ECF No. 121 at 9 n.5).) No party filed an objection
to this finding. The Court finds no clear error in this finding and thus adopts this aspect of the Recommendation.
9

Farmer, 511 U.S. at 837; accord DeSpain, 264 F.3d at 975. Thus, deliberate indifference
“requires both knowledge and disregard of possible [substantial] risks. . . .” DeSpain,
264 F.3d at 975.
The Court will, below, separately examine the allegations supporting Plaintiff’s Eighth
Amendment claim against Defendants in reference to the Magistrate Judge’s dismissal or
nondismissal recommendations.
1.

Defendant Davis

The Magistrate Judge recommended dismissal of Plaintiff’s Eighth Amendment claim
against Defendant Davis for “failure to allege personal or supervisory participation” in the
alleged Eighth Amendment violation. (ECF No. 132 at 9.) In this regard, Magistrate Judge
Boland relied primarily upon case law holding that mere copying of grievances or complaints to
a warden is insufficient to establish personal liability. See, e.g., Davis v. Arkansas Valley Corr.
Facility, 99 Fed. App’x 838, 843 (10th Cir. 2004) 3. No objection has been filed to this aspect of
the Recommendation. Accordingly, the Court reviews the Magistrate Judge’s Recommendation
for clear error. Having reviewed the Recommendation and the record, the Court discerns no
clear error on the face of the Recommendation. The Court finds that Magistrate Judge Boland’s
Recommendation to dismiss Plaintiff’s Eighth Amendment claim against Defendant Davis is
sound.
3

The Magistrate Judge correctly observed implicitly that Plaintiff’s specific allegations against Defendant Davis
(ECF No. 115 at 13-14) were different from those specific allegations against the other Defendants (ECF No. 115 at
14-17). (See ECF No. 132 at 9-10.) Plaintiff’s specific allegations as to each Defendant other than Defendant Davis
included an allegation that that individual Defendant either “made rounds” or “inspect[ed]” Plaintiff’s cell and
personally witnessed Plaintiff’s conditions of confinement. (See ECF No. 115 at 13-17.) With respect to Defendant
Davis, Plaintiff’s specific allegations were narrower. Further, this Court finds significant Plaintiff’s failure to file an
objection with respect to the Magistrate Judge’s Recommendation as it pertains to Defendant Davis (ECF No. 132 at
9). The Court will not construct a legal theory for Plaintiff nor supply an objection to the Recommendation when
none is made. See Whitney, 113 F.3d at 1173-74.
10

2.

Defendants Zohn, Munson, Milusnic, Krist, Lloyd, Rangel, and Janson

The Magistrate Judge recommended not dismissing Plaintiff’s Eighth Amendment claim
against Defendants Zohn, Munson, Milusnic, Krist, Lloyd, Rangel, and Janson (collectively, the
“Seven Defendants”). (ECF No. 132 at 10.) The Magistrate Judge held that Plaintiff alleged
sufficient facts “to state a plausible [Eighth Amendment] claim” against the Seven Defendants as
they “directly participated in subjecting [P]laintiff to the alleged unconstitutional conditions of
confinement (as opposed to supervisory participation)” and were “deliberately indifferent” to the
risk to Plaintiff’s health. (ECF No. 132 at 10-11.) Defendants filed objections to these aspects
of the Recommendation. (ECF No. 133 at 4-9.) Defendant’s object on the bases that Plaintiff
failed to allege: (1) each Defendant’s personal involvement in the alleged constitutional
violation; (2) each Defendant’s supervisory involvement in the alleged constitutional violation;
(3) sufficient facts that would “connect the substance of his lawsuit to his interactions with the
named Defendants”; and (4) facts establishing that each of the Seven Defendants knew of and
disregarded a risk to Plaintiff’s health or safety.
a.

Personal Participation and Connection to Each Named Defendant

There exists a tension between this Court’s obligation to construe Plaintiff’s pro se
Complaint liberally, see Haines, 404 U.S. at 520-21, and this Court’s obligation to ensure
Plaintiff’s Bivens Complaint specifies who did what to him, see Pahls, 718 F.3d at 1225. Thus,
this Court looks both to Plaintiff’s general allegations as they pertain to the Seven Defendants
and Plaintiff’s specific allegations as to each of the Seven Defendants. Plaintiff’s Complaint, in
general, alleged that the conditions of his confinement were “unsanitary and excessively noisey
[sic].” (ECF No. 115 at 6.) In regard to the unsanitary conditions, Plaintiff alleged that his cells
11

had “streaks of feces, mucous, urine, spit, etc., on walls, ceilings, and floors” and that he was
required to eat in such conditions. (ECF No. 115 at 8.) In regard to the noisy conditions,
Plaintiff alleged that he was subjected to on a “daily basis and late into the night, a high decibel,
constant volume of ‘excessive noise’ consisting of yelling (conversationally), screaming (in fear,
anger), frequently supplemented by the loud banging (kicking?). . . .” (ECF No. 115 at 6.)
Plaintiff alleged that “any of [the Seven Defendants] could have . . . ordered Plaintiff[’]s removal
from [the SHU] to a (vastly) cleaner and quieter area. . . .” (ECF No. 115 at 11.) Standing alone,
these general allegations likely would be insufficient to state an Eighth Amendment Claim. But
Plaintiff made further allegations with respect to each of the Seven Defendant’s personal
participation in these conditions of confinement. Plaintiff made specific allegations with regard
to each of the following Seven Defendants:
(1) With respect to Defendant Zhon, Plaintiff alleged that Defendant Zhon “made
rounds/inspections” of Plaintiff’s confinement area, that Plaintiff complained to Defendant Zhon
personally about his confinement conditions, and that Defendant Zhon “refused to correct or
remedy” the confinement conditions. (ECF No. 115 at 14.)
(2) With respect to Defendant Munson, Plaintiff alleged that Defendant Munson made
inspections of Plaintiff’s cell, that Plaintiff complained to Defendant Munson about his
confinement conditions, and that Defendant Munson refused to correct or remedy the
confinement conditions. (ECF No. 115 at 14.)
(3) With respect to Defendant Milusnic, Plaintiff alleged that Defendant Milusnic made
“rounds” of Plaintiff’s confinement area, that Plaintiff complained to Defendant Milusnic about

12

his confinement conditions, and that Defendant Milusnic did not correct or remedy the
confinement conditions. (ECF No. 115 at 14-15.)
(4) With respect to Defendant Krist, Plaintiff alleged that he complained to Defendant
Krist about the confinement conditions, that Defendant Krist made rounds of Plaintiff’s
confinement area, and that Defendant Krist did not correct or remedy the confinement
conditions. (ECF No. 115 at 15-16.)
(5) With respect to Defendant Lloyd, Plaintiff alleged that he complained to Defendant
Lloyd about the confinement conditions, that Defendant Lloyd made rounds of the confinement
area, and that Defendant Lloyd took no actions to correct or remedy the confinement conditions.
(ECF No. 115 at 15-16.)
(6) With respect to Defendant Rangel, Plaintiff alleged that Defendant Rangel made
rounds of Plaintiff’s confinement area, that Plaintiff complained to Defendant Rangel about his
confinement conditions, and that Defendant Rangel did not correct or remedy the confinement
conditions. (ECF No. 115 at 16-17.)
(7) With respect to Defendant Janson, Plaintiff alleged that Defendant Janson made
rounds of the confinement area, that Plaintiff complained to Defendant Janson about the
confinement area conditions, and that Defendant Janson took no action to remedy or correct the
confinement conditions. (ECF No. 115 at 17-18.)
When the general allegations as to all Seven Defendants and the specific allegations as to
each of the Seven Defendants are read together, Plaintiff sufficiently pled facts to state a Bivens
claim based upon the Seven Defendants’ personal participation in the alleged constitutional
violation. Plaintiff alleged who (Zhon, Munson, Milusnic, Krist, Lloyd, Rangel, and Janson) did
13

what (failed to remedy the confinement conditions that were unsanitary and excessively noisy) to
him. (ECF No. 115 at 6-18.) Thus, Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008) (arising in the context of the defendants’ asserting a qualified immunity defense), is
distinguishable from the present matter because each of the Seven Defendants has fair notice of
what each (reading in conjunction both the general and specific allegations) allegedly did to
Plaintiff. Further, in Robbins, the court specifically noted that “allegedly tortious acts
committed” by certain defendants “are entirely different in character and therefore are
mistakenly grouped in a single allegation.” Robbins, 519 F.3d at 1250. In contrast, here,
Plaintiff alleges a single constitutional violation regarding his confinement conditions and each
of the Seven Defendant’s failure to remedy the violation. Hence, it is proper for Plaintiff to have
made a single allegation as applicable to all Seven Defendants.
Defendants object on the basis that Plaintiff’s “specific allegations” with respect to the
Seven Defendants are repetitive and “nothing more than a generic” statement which make no
distinction as to what acts are attributable to whom. (ECF No. 133 at 6-7.) Defendants’
objection, in this regard, is self-defeating. Because the prison environment is highly regulated
and daily life is necessarily repetitive, see Hudson v. Palmer, 468 U.S. 517, 526-28 (1984), it is
logical that Plaintiff’s confinement conditions allegation would be the same for each Defendant
and each of the Seven Defendant’s personal participation in the singular alleged constitutional
violation, each Defendant’s failure to remedy the confinement conditions, would be similar.
Therefore, this Court overrules Defendants’ objections that Plaintiff failed to allege facts
sufficient (1) to establish the Seven Defendants’ personal participation in the alleged

14

constitutional violation and (2) to connect the substance of his lawsuit with each of the Seven
Defendants.
b.

Supervisory Participation

None of the allegations identified supra in III.A.2.a with respect to each of the Seven
Defendants, or any allegations with respect to Defendant Davis, implicated their role as
“supervisors.” Plaintiff’s Complaint did not identify a policy as to which any Defendant
“promulgated, created, implemented, or possessed responsibility for the continued operation of
[that] policy.” See Pahls, 718 F.3d at 1225-26 (holding that a plaintiff may proceed on a claim
of Eighth Amendment supervisory liability claim only by identifying a policy that resulted in a
constitutional violation and showing that a defendant possessed responsibility for such policy).
Plaintiff’s Complaint did not link any Defendant’s conduct to a policy. Plaintiff’s vague
allegations regarding particular Defendant’s supervisory or managerial status were insufficient to
state an Eighth Amendment supervisory liability claim. See id. By only addressing whether
Plaintiff’s Complaint stated a claim against the Seven Defendants for personal participation, the
Magistrate Judge correctly found implicitly that Plaintiff did not allege sufficient facts to state an
Eighth Amendment supervisory liability claim. (See ECF No. 132 at 10.)
Defendants object on the basis that Plaintiff undermined his claim by pleading that the
Seven Defendants have “upper managerial status/authority” (ECF No. 115 at 11). (ECF No. 133
at 5.) Plaintiff also pled that Defendant Janson is a “correctional supervisor” (ECF No. 115 at
17). Defendants may be correct that each of the Seven Defendants is a supervisor but that is not
the issue in determining whether Plaintiff adequately pled facts sufficient to state a Bivens claim
predicated upon the Seven Defendants’ personal participation. Plaintiff’s allegations that these
15

individuals have supervisory status and that these individuals personally participated in the
alleged constitutional violation are not mutually exclusive. Rather, Plaintiff’s Complaint
sufficiently alleged that these Seven Defendants, by their own actions, violated his constitutional
rights. See Iqbal, 556 U.S. at 676; (see ECF No. 115 at 11 (Additionally, given the Defendants[’]
upper managerial status/authority. . . .”) (emphasis added)). Thus, this case is distinguishable
from Bingham v. Zavares, Case No. 10 CV 604, 2011 WL 2610124, at *4-6 (D. Colo. Apr. 20,
2011) (affirmed and adopted in Bingham v. Zavares, Case No. 10 CV 604, 2011 WL 2601789, at
*1 (D. Colo. July 1, 2011)). In Bingham, the court held that because Bingham failed to plead
facts regarding certain defendants “personal participation in” the alleged constitutional violation,
he failed to state a valid Bivens claim. Id.
Thus, this Court overrules Defendants’ objection that the Magistrate Judge had to
determine whether Plaintiff’s Complaint alleged supervisory liability for an alleged
constitutional violation.
c.

Deliberate Indifference

Defendants’ objection to the Magistrate Judge’s Recommendation with respect to the
subjective component of an Eighth Amendment claim is hardly a model of clarity. Defendants
appear to rely upon their argument in support of dismissing Plaintiff’s claim for failure to
adequately plead a Bivens claim and its prior briefing. (ECF No. 133 at 8-9.) Defendants’
objection is without merit. Having previously determined that Plaintiff adequately pled a Bivens
claim regarding the Seven Defendants’ personal participation in the alleged constitutional
violation, Plaintiff need only have pled facts which plausibly state that these individuals acted
deliberate indifference. As stated previously, deliberate indifference “requires both knowledge
16

and disregard of possible [substantial] risks. . . .” DeSpain, 264 F.3d at 975. Plaintiff alleged
that the Seven Defendants made rounds in the SHU. (ECF No. 115 at 14-18.) Since these Seven
Defendants were exposed to Plaintiff’s conditions, Plaintiff adequately pled that these
individuals had the requisite knowledge. Plaintiff alleged that he complained to each of the
Seven Defendants regarding the unsanitary and noisy conditions of his confinement (ECF No.
115 at 6-18) and that each of these individuals failed to remedy or correct the alleged
constitutional violation (ECF No. 115 at 14-18). Thus, Plaintiff adequately pled that these
individuals exercised deliberate indifference by disregarding the substantial risk his confinement
conditions posed to his health.
B.

Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (internal quotation marks and citation omitted). To resolve a claim of qualified
immunity, the Court must consider two elements: (1) whether a constitutional violation
occurred, and (2) whether the violated right was “clearly established” at the time of the violation.
Id. at 230-31. The Court may “exercise [its] sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Id. at 236; accord Brown v. Montoya, 662 F.3d 1152, 1164 (10th
Cir. 2011). “Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the
inquiry.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). Whether a
right is “clearly established” is an objective test:
17

[t]he relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted. In order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other courts must have found the
law to be as the plaintiff maintains.
Brown, 662 F.3d at 1164 (internal quotation and citation omitted). A right is “clearly
established” if the “[t]he contours of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). The Tenth Circuit has instructed that Bivens liability and the defense of
qualified immunity often travel hand-in-hand. Pahls, 718 F.3d at 1227.
The Court will, below, separately examine the arguments supporting Defendants’ motion
to dismiss on the basis of qualified immunity in reference to the Magistrate Judge’s dismissal or
nondismissal recommendations.
1.

Defendant Davis

The Magistrate Judge did not reach the issue as to whether Defendant Davis is entitled to
qualified immunity. (See generally ECF No. 132.) Defendant Davis objects to the
Recommendation’s failure to address this issue. (ECF No. 133 at 9 n.7.) Having previously
determined that Plaintiff failed to adequately plead a Bivens claim that Defendant Davis violated
his Eighth Amendment Rights, the Court holds that Defendant Davis is entitled to qualified
immunity. See Pearson, 555 U.S. at 232 (holding that the first prong of the qualified immunity
defense is whether a plaintiff can establish facts demonstrating a constitutional right violation).
2.

Defendants Zohn, Munson, Milusnic, Krist, Lloyd, Rangel, and Janson

Because Plaintiff sufficiently pled facts to state a Bivens claim against the Seven
Defendants for his conditions of confinement, the Magistrate Judge held that the Seven
18

Defendants are not entitled to qualified immunity. (ECF No. 132 at 11-12.) Defendants object
to this aspect of the Recommendation on the basis that Plaintiff had failed to adequately state
such a claim. (ECF No. 133 at 9.) Again, because Plaintiff sufficiently alleged facts regarding
the Seven Defendants personal participation in his confinement conditions which violated the
Eighth Amendment, see supra III.A, Plaintiff meets the first prong defeating qualified immunity.
And because it is clearly established that deliberate indifference in failing to remedy unsanitary
confinement conditions consisting of human waste for an extended period of time violates the
Eighth Amendment, DeSpain, 264 F.3d at 974-75, the Seven Defendants are not entitled to
qualified immunity.
IV.

CONCLUSION
Based on the foregoing and a de novo review as to which an objection was filed, the

Court:
(1)

ADOPTS, AFFIRMS, and MODIFIES the Recommendation (ECF No. 132), to

wit, the Court AFFIRMS all aspects of the Recommendation and MODIFIES the
Recommendation by finding that Defendant Davis is entitled to qualified immunity;
(2)

OVERRULES in Part Defendants’ Objection (ECF No. 133), to wit, the Court

OVERRULES all aspects of Defendants’ Objection with the exception that Defendant Davis is
entitled to qualified immunity;
(3)

GRANTS in Part Defendants’ Motion to Dismiss (ECF No. 121), to wit, the Court

grants Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment claim against Defendant
Davis;

19