Dunbar v. USA et al

Filing 36

ORDER granting 18 Motion to Dismiss Complaint, by Magistrate Judge Michael J. Watanabe on 12/19/2014. Therefore, Claim III of the Complaint is dismissed with prejudice. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01838-MJW
CARLTON DUNBAR,
Plaintiff,
v.
UNITED STATES OF AMERICA,
FNU FOSTER, and
DOES 1-20,
Defendants.

ORDER
ON DEFENDANT FOSTER’S MOTION TO DISMISS COMPLAINT (Docket No. 18)

MICHAEL J. WATANABE
United States Magistrate Judge
This case has been referred to the undersigned by Chief Judge Marcia S. Krieger
for all purposes (see Docket No. 17) upon the consent of the parties (see Docket No.
16) pursuant to 28 U.S.C. § 636(c) and the Pilot Program to Implement the Direct
Assignment of Civil Cases to Full Time Magistrate Judges.
Plaintiff is an inmate in the custody of the Federal Bureau of Prisons (“BOP”) and
is housed in the United States Penitentiary, Administrative Maximum (“ADX”). In his
Complaint, brought through counsel, he raises just one claim against defendant Foster
(Claim III), namely, a First Amendment claim under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff asserts
therein that Foster deliberately and intentionally prevented plaintiff from being able to
file an administrative remedy form (a “BP-9") within twenty days of an alleged attack by

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another inmate. (Docket No. 1 at 12, ¶ 55). He asserts:
While in the SHU [Special Housing Unit], Plaintiff repeatedly
requested the Administrative Complaint form BP-228(13) (the “BP-8"). His
confinement to the SHU meant that Plaintiff was entirely reliant upon his
counselor, Defendant Foster, to provide him with the BP-8 and file it on his
behalf. In response, Defendant Foster told Plaintiff that he did not want to
help Plaintiff sue the BOP or its employees for the injuries Plaintiff
sustained. Defendant Foster, knowing that Plaintiff was required by BOP
policy to file such form in time to subsequently file his BP-9 within twenty
(20) days of the incident and that a delay may harm his ability to bring a
later Bivens calim, intentionally delayed the filing of the administrative
remedies.
(Docket No. 1 at 10, ¶ 40). Plaintiff seeks compensatory and punitive damages on his
Bivens claim. (Docket No. 1 at 14, ¶¶ 2 and 3).
Now before the court is Defendant Foster’s Motion to Dismiss Complaint (Docket
No. 18). Plaintiff has filed a response (Docket No. 29), and Foster has filed a reply
(Docket No. 32). The court has carefully considered these motion papers as well as
applicable Federal Rules of Civil Procedure and case law. In addition, the court has
taken judicial notice of the court file. The court now being fully informed makes the
following findings, conclusions of law, and order.
Foster moves to dismiss the Complaint pursuant to Fed. R. Civ P. 12(b)(6) on the
grounds that there is no Bivens remedy for plaintiff’s First Amendment claim, and even
assuming the existence of a Bivens remedy for such a claim, plaintiff has not plausibly
pleaded a First Amendment violation. This court agrees with Foster’s arguments, and
the Bivens claim against him shall be dismissed.
Under Rule 8(a)(2), 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). A motion to
dismiss pursuant to Rule 12(b)(6) alleges that the complaint fails “to state a claim upon

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which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “A complaint must be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) if it does not plead ‘enough facts to state a claim to
relief that is plausible on its face.’” Cutter v. RailAmerica, Inc., 2008 WL 163016, at *2
(D. Colo. Jan. 15, 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127
S. Ct. 1955, 1974 (2007)). “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 . . . .” Bell Atlantic
Corp., 550 U.S. 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) (quoting Bell Atlantic Corp., 127 S. Ct. at 1974).
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). The Circuit court has further “noted that ‘[t]he nature and
specificity of the allegations required to state a plausible claim will vary based on
context.’” Id. The court thus “concluded the Twombly/Iqbal standard is ‘a wide middle

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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 Court stated will not do.’” Id.
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 the plaintiff’s favor. Morse v. Regents of the Univ. of Colo.,
154 F.3d 1124, 1126-27 (10th Cir. 1998); Seamons v. Snow, 84 F.3d 1226, 1231-32
(10th Cir. 1996). 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 Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)). “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. at 1191.
Plaintiff may not assert a Bivens claim for damages based on an alleged violation
of the First Amendment. Davis v. Holder, 2014 WL 1713429, at *8 (D. Colo. Apr. 23,
2014); Bogard v. Hutchings, 2014 WL 959496, at *3-4 (D. Colo. Mar. 12, 2014);
Blackman v. Torres, 2013 WL 941830, at *2 (D. Colo. Mar. 11, 2013), reconsideration
denied, 2014 WL 976934, at *2 (D. Colo. Mar. 12, 2014); Williams v. Klien, 20 F.
Supp.3d 1171, 1174 (D. Colo. 2014).
Alternatively, even if plaintiff could bring a First Amendment claim under Bivens,
he has failed to “demonstrate actual injury from interference with his access to the
courts–that is, that [he] was frustrated or impeded in his efforts to pursue a nonfrivolous

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legal claim concerning his conviction or his conditions of confinement.” Gee v.
Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (emphasis added). Instead, plaintiff
merely alleges that he was unable to obtain a BP-8 form and that this “may” harm his
ability to bring a later claim. Therefore, plaintiff has failed to state a First Amendment
claim.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Defendant Foster’s Motion to Dismiss Complaint (Docket No.
18) is granted. Therefore, Claim III of the Complaint is dismissed with prejudice.

Date: December 19 , 2014
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge