Shapiro v. Falk et al
ORDER The Recommendation of the Magistrate Judge ECF No. 20 is ADOPTED INFULL; Plaintiffs Objection to the Recommendation ECF No. 25 is OVERRULED; Defendants Motion to Dismiss ECF No. 18 is GRANTED IN PART and DENIED IN PART; Plaintiffs clai ms against Defendants Bilderaya and Falk are DISMISSED, and those defendants shall be dismissed from this action and removed from the case caption in future filings; Plaintiffs claim for injunctive relief is DISMISSED WITHOUT PREJUDICE; Defendants Motion to Dismiss is DENIED in all other respects; and Plaintiff is GRANTED LEAVE to file a Second Amended Complaint on or before October 10, 2014, by Judge William J. Martinez on 9/18/2014.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-3086-WJM-KMT
ANTHONY D. SHAPIRO,
JAMES FALK, individually and in his official capacity as Warden of the Sterling
RAYMOND BILDERAYA, individually and in his official capacity as major of Custody
and Control of the Sterling Correctional Facility,
STEVEN WEEDER, individually and in his official capacity as Lieutenant of Intake and
Receiving of the Sterling Correctional Facility, Unidentified Northern Transport Unit,
UNIDENTIFIED NORTHERN TRANSPORT UNIT CORRECTIONAL OFFICERS 1
through 20, individually and in their official capacities as Transport officers for the
MARCUS RYNEK, individually and in his official capacity as Lieutenant of Intake and
Receiving of the Sterling Correctional Facility,
ORDER ADOPTING AUGUST 26, 2014 RECOMMENDATION OF MAGISTRATE
JUDGE AND GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on the August 26, 2014 Recommendation of U.S.
Magistrate Judge Kathleen M. Tafoya (“Recommendation”) as to the Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (“Motion”) (ECF No. 16) filed by
Defendants Warden James Falk, Major Raymond Bilderaya, and Sergeant Marcus
Rynek (collectively “Defendants”1). (ECF No. 20.) The Recommendation is
Plaintiffs’ claims are also asserted against Defendants Lieutenant Steven Weeder, and
unidentified Northern Transport Unit Correctional Officers 1 through 20. (Am. Compl. at 1.)
However, as Defendants Falk, Bilderaya, and Rynek are the moving parties, for purposes of the
instant Motion the Court will refer to those parties as “Defendants”.
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Pro se Plaintiff Anthony D. Shapiro (“Plaintiff”) filed a timely objection to the
Recommendation (“Objection”). (ECF No. 25.) Defendants filed no objection. For the
foregoing reasons, the Court overrules the Objection, adopts the Recommendation, and
grants in part and denies in part Defendants’ Motion.
I. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). In the absence of a timely and specific objection,
“the district court may review a magistrate . . . [judge’s] report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72 Advisory
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 conducting its review, “[t]he
district court judge may accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
In addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe
his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United
States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court, however, cannot act as
an advocate for Plaintiff, who must still comply with the fundamental requirements of
the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Neither party objects to the recitation of the factual background set forth by the
Magistrate Judge in the Recommendation. (ECF No. 20 at 2-3.) Accordingly, the Court
adopts and incorporates the factual background detailed in that Recommendation as if
set forth herein. Briefly, Plaintiff is incarcerated at the Sterling Correctional Facility
(“SCF”) and challenges a group strip search to which he was allegedly subjected on
December 6, 2012. (Am. Compl. (ECF No. 6) pp. 4-6.) Plaintiff filed his Complaint on
November 13, 2013 (ECF No. 1) and his Amended Complaint on November 25, 2013,
alleging that the group strip search violated his Fourth Amendment rights. (Am. Compl.
pp. 6-7.) On February 3, 2014, Defendants’ Motion was filed. (ECF No. 16.) Plaintiff
filed a Response (ECF No. 18) and Defendants filed a Reply (ECF No. 19).
The Magistrate Judge’s Recommendation was entered on August 26, 2014, and
contains the following findings and conclusions: (1) Plaintiff permissibly alleged
Defendant Rynek’s identity on information and belief; (2) Plaintiff’s claims against
Defendants Bilderaya and Falk should be dismissed because Plaintiff fails to allege
their personal participation in the alleged constitutional violation; (3) Plaintiff has stated
a plausible claim for a constitutional violation and Defendant Rynek is not entitled to
qualified immunity; (4) Plaintiff’s claim for compensatory damages is not barred by the
Prison Litigation Reform Act; (5) Plaintiff has stated a plausible claim for punitive
damages; and (6) Plaintiff fails to state a claim for injunctive relief. (ECF No. 20.)
The only part of the Recommendation to which Plaintiff specifically objects is the
final conclusion, that his claim for injunctive relief should be dismissed. (ECF No. 25 at
3-4.) Because such a claim may only be maintained if Plaintiff “can demonstrate a
good chance of being likewise injured in the future”, Facio v. Jones, 929 F.2d 541, 544
(10th Cir. 1991), the Magistrate Judge found that Plaintiff had failed to establish such a
likelihood because his allegations of a pattern of group strip searches were conclusory.
(ECF No. 20 at 17.) The Magistrate Judge also noted that Plaintiff’s request for
injunctive relief was overbroad, as he seeks to bar Defendants from conducting any
group strip search of him, even one that is properly justified by a legitimate penological
purpose. (Id. at 18.)
In his Objection, Plaintiff does not object to the finding in the Recommendation
that his injunctive relief claim is overbroad. However, he contends that he sufficiently
alleged other specific incidents in which group strip searches have been conducted at
SCF, in that his Amended Complaint cited a case filed by a different plaintiff challenging
the same conduct. (Id. (citing Sue v. Colo. Dep’t of Corrs., No. 07-cv-1711-REB-MJW
(D. Colo. Aug. 7, 2007).) Furthermore, Plaintiff states that his Response to the Motion
contained a citation to an additional case challeng ing abusive strip searches at SCF.
(Id. (citing Alward v. Milyard, No. 12-cv-0878-REB-KLM (D. Colo. Apr. 4, 2012).)
The Court finds these case citations insufficient to allege a likelihood of future
injury. Plaintiff’s Amended Complaint cites the Sue case only in the context of alleging
that the settlement in that case resulted in the implementation of regulations prohibiting
group strip searches. (See Am. Compl. p. 6.) The Amended Complaint does not allege
that such searches repeatedly occur, or even that the facts as alleged by the Sue
plaintiff are true. Similarly, the Alward case is cited in Plaintiff’s Response in support of
the argument that his Fourth Amendment rights were infringed, and does nothing to
bolster his factual allegations regarding the likelihood of recurring group strip searches.
(See ECF No. 18 at 10.) The Court finds that Plaintiff’s deficient allegations have failed
to establish more than a speculative possibility that he is likely to suffer the same injury
in the future, and he has therefore failed to state a valid claim for injunctive relief. See
Facio, 929 F.2d at 544. Accordingly, Plaintiff’s Objection as to that aspect of the
Recommendation is overruled.
However, as Plaintiff correctly notes in his Objection, a plaintiff should be
permitted to amend his complaint to resolve pleading deficiencies unless such
amendment would be futile. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006). Although Plaintiff has already once amended his complaint, the
Federal Rules of Civil Procedure require the Court to permit additional amendments
when justice so requires. Fed. R. Civ. Pro. 15(a). Accordingly, the Court will permit
Plaintiff to file a Second Amended Complaint to attempt to cure the pleading
deficiencies in his claim for injunctive relief.
As to the remaining, unobjected-to findings and conclusions in the
Recommendation, they are well-reasoned and thorough, and the Court finds no clear
error. See Summers, 927 F.2d at 1167. Accordingly, the Recommendation is adopted
in its entirety.
For the reasons set forth above, the Court ORDERS as follows:
The Recommendation of the Magistrate Judge (ECF No. 20) is ADOPTED IN
Plaintiff’s Objection to the Recommendation (ECF No. 25) is OVERRULED;
Defendants’ Motion to Dismiss (ECF No. 18) is GRANTED IN PART and
DENIED IN PART;
Plaintiff’s claims against Defendants Bilderaya and Falk are DISMISSED, and
those defendants shall be dismissed from this action and removed from the case
caption in future filings;
Plaintiff’s claim for injunctive relief is DISMISSED WITHOUT PREJUDICE;
Defendants’ Motion to Dismiss is DENIED in all other respects; and
Plaintiff is GRANTED LEAVE to file a Second Amended Complaint on or before
October 10, 2014.
Dated this 18th day of September, 2014.
BY THE COURT:
William J. Martínez
United States District Judge
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