MARCIA S. KRIEGER, District Judge.
According to Mr. Street's Second Amended Complaint
Approximately six weeks later, Mr. Simon was assigned (by unidentified persons) to share a cell with Mr. Street. On ten occasions over a roughly 30-day period, Mr. Simon raped Mr. Street. Mr. Simon instructed Mr. Street not to make any complaints, and stated that Defendant Brown, an investigator with the BOP, "had it in for [Mr. Street], didn't like [him], and wanted [him] fucked with." Mr. Street contends that when he "finally built up the courage to reach out for help," he was "ridiculed by [Mr. Brown] and the local FBI agents," although he does not elaborate.
As relevant here, Mr. Street brings a single claim for relief: a Bivens claim against Mr. Lawson and Mr. Brown, alleging that they failed to protect him from harm in violation of the 8
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10
With regard to what must be pled to avoid dismissal, the Supreme Court in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), described the standard that must be met as "facial plausibility." In this context, "plausibility" refers to the scope and degree of specificity of the allegations in the complaint. Khalik v. United Air Lines, ___ F.3d ___, 2012 WL 364058 (10
Iqbal suggests that one way for the Court to proceed when considering a Rule 12(b)(6) motion is for the Court to "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. 129 S.Ct. at 1950. Once the complaint has been winnowed down to only those sufficiently-specific, non-conclusory factual allegations, the Court treats those allegations as true and proceeds to examine whether, under the controlling law, those facts are sufficient to state a claim.
In considering Mr. Street's filings, the Court is mindful of his pro se status, and accordingly, reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in his use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve Mr. Street of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the Court will treat Mr. Street according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
The most appropriate case discussing the standard to be applied to a Bivens claim by an inmate claiming that prison officials failed to protect him against sexual assault in violation of the 8
A superficial reading of Farmer might suggest that Mr. Street's allegations would be sufficient to assert a claim against Mr. Lawson. Mr. Lawson allegedly told other inmates that Mr. Street was a child molester and was at risk of being raped if placed in the general population of the prison. The fact that Mr. Lawson was specifically cognizant of the risk of rape faced by Mr. Street would demonstrate his subjective perception of a risk of harm to Mr. Street; Mr. Lawson's dissemination of the character of Mr. Street's crimes to other inmates (presumably those who might not otherwise know of Mr. Street's crimes) indicates Mr. Lawson's deliberate indifference to the risk that other inmates might violently retaliate against Mr. Street.
But this reasoning expands Farmer further than it was apparently intended. There is little question that Mr. Lawson could be held liable for the assaults on Mr. Street if the perpetrator of those assaults was someone who decided to attack Mr. Street because of Mr. Lawson's statements (either because the perpetrator learned of Mr. Street's crimes through Mr. Lawson or because the perpetrator understood Mr. Lawson to be essentially endorsing an attack against Mr. Street). The situation is far less clear, however, if the perpetrator of the assault on Mr. Street was entirely unaware of Mr. Lawson's statements. Farmer makes clear that a prison official cannot escape liability by showing that "he did not know that the complainant was especially likely to be assaulted by the
Taken together, the caselaw makes clear that the focus of the analysis is on the particular
Accordingly, the Court finds that Mr. Street's Second Amended Complaint fails to state a cognizable Eighth Amendment claim against Mr. Lawson. That defect, however, could arguably be cured by amendment. Accordingly, the Court will grant Mr. Street 14 days from the date of this Order to file a Motion to Amend and a proposed Third Amended Complaint that adequately alleges (if Mr. Street can do so consistently with his obligations under Fed. R. Civ. P. 11(b)) specific facts demonstrating a connection between Mr. Lawson's conduct and Mr. Simon's assaults.
Turning to the claim against Mr. Brown, Mr. Street alleges that Mr. Brown specifically instigated the attacks. Specifically, Mr. Street alleges that Mr. Simon told him that Mr. Brown "wanted [Mr. Street] fucked with." A reasonable inference one could draw from this assertion is that Mr. Brown encouraged Mr. Simon's assault of Mr. Street. For purposes of a motion to dismiss, the Court must treat such an allegation as true, even while it recognizes that Mr. Street may have a great deal of difficulty in proving this.
The Defendants argue that, even if Mr. Street states a cognizable claim against them, they are entitled to qualified immunity. The qualified immunity argument focuses solely on Mr. Street's ability to allege a cognizable constitutional injury; the Defendants do not (and cannot) contend that the contours of the constitutional right asserted by Mr. Street are not "clearly established." Accordingly, because the Court finds that Mr. Street has (or may be able to) assert cognizable 8
For the foregoing reasons, Defendants Brown and Lawson's Motion to Dismiss
Pursuant to Fed. R. Civ. P. 4(m), service upon a defendant must be completed within 120 days of commencement of the action, unless the plaintiff can show good cause. Accordingly, Mr. Street will be given 14 days to show cause why the claims against Mr. Simon should not be dismissed for failure to effect timely service under Rule 4(m). In responding to that Order, Mr. Street shall specifically identify the steps he has taken to date to locate a current address for Mr. Simon, the additional steps he believes he will need to take to obtain that address, and the time frame in which he anticipates taking those additional steps. The Court advises Mr. Street that the failure to show good cause for an extension of time to achieve service on Mr. Simon may result in dismissal of his claims against Mr. Simon without prejudice.