United States District Court, D. New Mexico
MATTHEW R. MORA, Plaintiff,
v.
BERNALILLO COUNTY METROPOLITAN DETENTION CENTER; SERGEANT C. OWENS and SERGEANT C. GRIEGO, Defendants.
Matthew R. Mora Plaintiff Pro Se
MEMORANDUM OPINION AND ORDER
THIS
MATTER comes before the Court under 28 U.S.C. §
1915(e)(2) and rule 12(b)(6) of the Federal Rules of Civil
Procedure on the Prisoner's Civil Rights Complaint, filed
December 23, 2014 (Doc. 14)(“Complaint”).
Plaintiff Matthew R. Mora appears pro se and is proceeding in
forma pauperis. The primary issues are: (i) whether the
Complaint's Claim I, which alleges that Defendant
Sergeant C. Owens and Defendant Sergeant C. Griego stripped
Mora naked and made graphic sexual comments to him, states a
claim for sexual harassment; (ii) whether the Complaint's
Claim II, which alleges that Owens and Griego refused Mora
access to various necessities and to requested medical
attention, states a claim for cruel and unusual punishment;
and (iii) whether the Complaint's Claim III, which
alleges that Owens and Griego refused Mora access to medical
attention in response to his exercise of a protected right,
states a claim for retaliation. After carefully reviewing the
Complaint's allegations, the Court will allow Claim I and
Claim II to proceed, and will dismiss Claim III.
FACTUAL
AND PROCEDURAL BACKGROUND
The
Complaint's factual allegations are as follows. Mora
alleges that, on February 2, 2014, during his incarceration
at Bernalillo County Metropolitan Detention Center in
Albuquerque, New Mexico, Defendants Owens and Griego placed
him in the “Pac 2” unit where they stripped him
and another inmate, Randall Parker, naked, and then taunted,
mocked, and subjected them to “graphic” and
“disgusting” sexual comments. Complaint at 2-3.
Mora alleges that this incident “went on for over a
week.” Complaint at 6. Mora asserts that he was
“treated worse than an animal, ” and that this
incident was dehumanizing, embarrassing, and traumatic.
Complaint at 6. Mora further alleges that he was “not
given a shower for multiple days nor let out for
exercise” and that Owens and Griego refused him use of
the telephone. Complaint at 2-3. Finally, Mora alleges that
he “asked C. Owens and C. Griego to see the doctor at
PSU, ” but that Owens and Griego refused him medical
attention as “punish[ment]” for “exercising
a protected right.” Complaint at 3. Proceeding under 42
U.S.C. § 1983, Mora asserts claims for (i) sexual
harassment; (ii) cruel and unusual punishment; and (iii)
retaliation. See Complaint at 2-3.
LAW
REGARDING IN FORMA PAUPERIS COMPLAINTS
The
Court has discretion to dismiss an in forma pauperis
complaint sua sponte pursuant to § 1915(e)(2) “at
any time if the action . . . is frivolous or malicious; [or]
fails to state a claim upon which relief may be
granted.” The Court also has discretion to dismiss a
complaint sua sponte under rule 12(b)(6) for failure to state
a claim if “it is ‘patently obvious' that the
plaintiff could not prevail on the facts alleged, and
allowing him an opportunity to amend his complaint would be
futile.” Hall v. Bellmon, 935 F.2d 1106, 1109
(10th Cir. 1991)(quoting McKinney v. Oklahoma Dep't
of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)).
To survive dismissal under rule 12(b)(6), a plaintiff must
allege sufficient facts, accepted as true, to “state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In the context of a pro
se complaint, the Court applies the same legal standards that
apply to pleadings that counsel draft, but liberally
construes the complaint's allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th
Cir. 1992).
LAW
REGARDING RULE 12(b)(6)
Rule
12(b)(6) authorizes a court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a
Rule 12(b)(6) motion tests the sufficiency of the allegations
within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994)(Brorby, J.). The sufficiency
of a complaint is a question of law, and when considering a
rule 12(b)(6) motion, a court must accept as true all
well-pled factual allegations in the complaint, view those
allegations in the light most favorable to the non-moving
party, and draw all reasonable inferences in the
plaintiff's favor. See Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322
(2007)(“[O]nly if a reasonable person could not draw .
. . an inference [of plausibility] from the alleged facts
would the defendant prevail on a motion to dismiss.”);
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)(Briscoe, J.)(“[F]or purposes of resolving a
Rule 12(b)(6) motion, we accept as true all well-pled factual
allegations in a complaint and view these allegations in the
light most favorable to the plaintiff.”)(citing
Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
2006)(McKay, J.)).
A
complaint need not set forth detailed factual allegations,
yet a “pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of
action” is insufficient. Ashcroft v. Iqbal,
556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. at 678. “Factual allegations must
be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. at 555
(citation omitted).
To
survive a motion to dismiss, a plaintiff's complaint must
contain sufficient facts that, if assumed to be true, state a
claim to relief that is plausible on its face. See Bell
Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v.
Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. at 678
(citing Bell Atl. Corp. v. Twombly, 550
U.S. at 556). “Thus, the mere metaphysical possibility
that some plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complainant 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, LLC v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007)(Kelly, J.) (emphasis
omitted). The United States Court of Appeals for the Tenth
Circuit has stated:
“[P]lausibility” in this context must refer 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.”
The allegations must be enough that, if assumed to be true,
the plaintiff plausibly (not just speculatively) has a claim
for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008)(McConnell, J.) (citations omitted) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. at 570).
Although
affirmative defenses must generally be pled in the
defendant's answer, not argued on a motion to dismiss,
see Fed.R.Civ.P. 8(c), there are exceptions. First,
a defendant can argue an affirmative defense on a motion to
dismiss where the defendant asserts an immunity defense --
the courts handle these cases differently than other motions
to dismiss. See Glover v. Gartman, 899 F.Supp.2d
1115, 1137-39, 1141 (D.N.M. 2012)(Browning, J.)(citing
Pearson v. Callahan, 555 U.S. 223 (2009));
Robbins v. Oklahoma, 519 F.3d at 1247. Second, the
defendant can raise the defense on a motion to dismiss where
the facts establishing the affirmative defense are apparent
on the face of the complaint. See Miller v. Shell Oil
Co., 345 F.2d 891, 893 (10th Cir. 1965)(Hill,
J.)(“Under Rule 12(b), a defendant may raise an
affirmative defense by a motion to dismiss for the failure to
state a claim. If the defense appears plainly on the face of
the complaint itself, the motion may be disposed of under
this rule.”). The defense of limitations is the
affirmative defense that the complaint's uncontroverted
facts is most likely to establish. See 5 Charles
Alan Wright et al., Federal Practice & Procedure:
Civil § 1277, at 643 (3d ed. 2004). If the
complaint sets forth dates that appear, in the first
instance, to fall outside of the statutory limitations
period, then the defendant may move for dismissal under rule
12(b)(6). See Rohner v. Union P. R. Co., 225 F.2d
272, 273-75 (10th Cir. 1955)(Wallace, J.); Gossard v.
Gossard, 149 F.2d 111, 113 (10th Cir. 1945)(Phillips,
J.); Andrew v. Schlumberger Tech. Co., 808 F.Supp.2d
1288, 1292 (D.N.M. 2011)(Browning, J.).
The
plaintiff may counter this motion with an assertion that a
different statute of limitations or an equitable tolling
doctrine applies to bring the suit within the statute. The
Tenth Circuit has not clarified whether this assertion must
be pled with supporting facts in the complaint or may be
merely argued in response to the motion. Cf. Kincheloe v.
Farmer, 214 F.2d 604 (7th Cir. 1954)(Major, J.)(holding
that, once a plaintiff has pled facts in the complaint
indicating that the statute of limitations is a complete or
partial bar to an action, the plaintiff must plead facts
establishing an exception to the affirmative defense). It
appears that, from case law in several Courts of Appeals, the
plaintiff may avoid this problem altogether -- at least at
the motion-to-dismiss stage -- by refraining from pleading
specific or identifiable dates. See Goodman v. Praxair,
Inc., 494 F.3d 458, 465-66 (4th Cir. 2007)(Niemeyer,
J.); Hollander v. Brown, 457 F.3d ...